Peking University Law Journal最新文献

{"title":"The domain of computational law","authors":"Weidong Ji","doi":"10.1080/20517483.2023.2171593","DOIUrl":"https://doi.org/10.1080/20517483.2023.2171593","url":null,"abstract":"ABSTRACT This article has pinpointed computational law in the grand framework of time and space, and illustrated the various mechanism designs aimed to restrict the arbitrariness of power through the efforts of jurisprudence. And these designs are summarized in two basic ideas as follows: (1) rule-based reasoning and the calculation of concepts, (2) science-based experimentation and the institution of calculus. Following the conception of ‘legal mathematics’ emerging in the process of modernization, the author analyzes in detail the advent of computational law in response to the era of Information and Communications Technology and different stages of its development, capturing a multifaceted computational law. The author emphasizes the intersecting and complementary relations between the components of computational law – jurimetrics (statistics and predictive model), computerization of legal reasoning (the algorithms of expert systems), legal informatics (big data mining and machine learning), legal network structure (graphs and matrix computation) and artificial intelligence governance (data ethics and algorithmic justice). As a conclusion, the author puts forward the important subject of establishing a meta-algorithm for value ranking and value function.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"111 19","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113940607","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}

{"title":"Near, far, wherever you are: reflections on studying and teaching international law","authors":"Kangle Zhang","doi":"10.1080/20517483.2023.2171597","DOIUrl":"https://doi.org/10.1080/20517483.2023.2171597","url":null,"abstract":"ABSTRACT Under the thematic umbrella of A World of Struggle, this article reflects on the struggles we, the Chinese international law researchers, experience and live with. The professional struggles, of mine and of those that I have observed, might offer an easy entry point for discussing Chinese international lawyers and the China topic in a world of struggle. The article further invites my fellow international law teachers in China to imagine a mode of teaching (and engaging with) international law that breaks away from the purely instrumental understanding of law. The article suggests that, it would benefit our approach to international law by paying particular attention to at least concrete episodes of violence in the world around us and in our own assumptions and understandings of the world and ourselves, the material surrounds we inherited, as well as our ways of living and being.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114451347","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}

{"title":"The contemporary meaning of the constitutional norm of distribution according to labor","authors":"Yan-fu Tian","doi":"10.1080/20517483.2022.2133768","DOIUrl":"https://doi.org/10.1080/20517483.2022.2133768","url":null,"abstract":"ABSTRACT Distribution according to labor is an important economic and labor system in China’s Constitution, and its contemporary meaning needs to be explicated from the perspective of economic reform. The economic reform has set an evolutionary interpretive stance for the constitutional norm of distribution according to labor, and the practice and needs of the reform have constituted the main basis for the interpretation. The economic reform introduced the market economy system, reconstructed the ownership structure and distribution system, and also changed the institutional environment for the distribution according to labor. In the process of adapting to the institutional environment, the normative meaning of distribution according to labor is being continuously enriched. Distribution according to labor also serves important constitutional goals and constitutional values. And the inclusion of the new development concept in the Constitution means that innovation and sharing become new constitutional value goals. So the interpretation of the norm of distribution according to labor should be connected with the three major goals of efficiency, innovation and sharing.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114930461","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}

{"title":"Modeling sovereignty: towards a legal philosophy for platforms in the People’s Republic of China","authors":"Ike Levine","doi":"10.1080/20517483.2022.2133769","DOIUrl":"https://doi.org/10.1080/20517483.2022.2133769","url":null,"abstract":"ABSTRACT The present study is an investigation into one possible feature of one possible future for law in the People’s Republic of China. Its speculations originate from a conceptual analysis of how the law presently relates to and is challenged by computational infrastructures in China, namely platforms. It is therefore a work of legal philosophy and, tentatively, of a legal philosophy for platforms in the PRC. A legal philosophy for platforms is imperative due to the increasing influence of platforms as an organizational form within societies, political economies, and governments. Platform companies in the PRC are increasingly engaged in taking up responsibilities of the state (either unintentionally or via delegation) and the state is adopting platform logics and designs as well. Platforms represent a paradigmatic shift in political economy and law, perforating the lines between public and private, users and citizens, home and work. The result has been a rendering of certain aspects of existing regulatory and administrative frameworks as anachronistic. Updating the legal apparatus is in order, and requires generating a novel analysis of platforms. This paper argues that one feature of this new platform ontology is models. It argues that, in order to make the data and emergent complexity endemic of platforms more intelligible for its users, platforms may use models to represent dynamic and live data to make analysis easier and decision-making faster. This paper concludes that modeling this data creates opportunities for Schmidtian sovereign decision-making, introducing new regulatory issues for the state and the law. In order to make this chasm between platforms and the law clear, this paper first analyzes existing regulatory responses to the platform economy in order to articulate the nascent legal philosophy for platforms in the PRC. This analysis reveals an emergent but inconspicuous approach, one that finds the PRC participating in platform governance and carefully calculating the nature of China’s platformization through a multifaceted ICT-development policy environment. The PRC’s legal philosophy towards platforms can be described as one of co-regulation and one that recognizes and attempts to constrain the sovereign decision-making of platforms. Using Foucauldian and Schmitdian theories of power and sovereignty, as well as phenomenological media theories of contemporary computation, this paper analyzes City Brains, a form of platform-based urban governance aggressively pursued in the PRC, in order to identify when these moments of platform sovereign decision-making might occur. This case study discloses that an under-researched feature of platforms is their modeling capacity, defined here as platforms’ propensity to solve informational complexity problems and reinforce value-generation processes by offering users representational topologies of platform data, sometimes with an interface. The case study reveals that sovereign decision-mak","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131755837","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}

{"title":"Beyond transplantation and hybridisation: the distinctiveness of the System of Case Guiding","authors":"Joshua Fung Sze Kiun","doi":"10.1080/20517483.2022.2133771","DOIUrl":"https://doi.org/10.1080/20517483.2022.2133771","url":null,"abstract":"ABSTRACT Two paradigms are dominant in the international discourse on the System of Case Guiding (‘SCG’). The first ‘transplantation’ paradigm posits that the SCG is a straightforward transplant of the Anglo-American system of common law. The second ‘hybridisation’ paradigm views the SCG as a distinct but inferior common law, held back by its ‘Chinese characteristics’. These paradigms are challenged as being partial, outdated and inaccurate accounts of the SCG on two tiers. On a comparative and theoretical tier, this article builds upon the foundations of three concepts to mount its sustained critique. First, preferring Teubner’s description of legal change and reform as proceeding by legal ‘irritation’, it is argued that the notion of ‘transplantation’ is too blunt an account of how contemporary legal reform within the People’s Republic of China (‘PRC’) has sought to learn from and build upon the experiences of other legal systems. Second, accepting Santos’s call for a decentred approach to globalisation, the development of the SCG is situated foremost within its local context, instead of by reference to foreign systems of precedent. In doing so, this article moves beyond the old paradigms of ‘transplantation’ and ‘hybridisation’ towards a recognition of the distinctiveness of the SCG as an autochthonous innovation of the Chinese legal community that has been precisely tailored to its unique conditions. Third and finally, applying the concept of legal plurality to the practice of using Guiding Cases and precedent more generally, it is recognised that the development of the SCG has been driven, not only by the top-down actions of the Supreme People’s Court (‘SPC’), but also by its synergistic interaction with the bottom-up use of precedent by the wider legal community of litigants and legal professionals. Freed from the conceptual burdens of these two paradigms, this article proceeds to advance this theoretical basis for understanding the SCG by reference to an empirical analysis of three Guiding Cases – Numbers 24, 15 and 9. The first two are the most highly cited Guiding Cases; the third was one of the most often cited Guiding Cases as well, before losing its guiding effect. By reference to these three case studies, which involved analysing 939 judicial decisions, this article constructs a pluralistic account of the evolving judicial practice of referencing Guiding Cases. First, it is found that the distinctiveness of the SCG stems from the referent function of Guiding Cases, which is at the core of its judicial practice. This referent function is evident from the vast majority of judicial decisions that cite or refer to one of the three Guiding Cases as a formal authority for reaching their conclusion, without more. Second, however, it is also found that while this function of Guiding Cases might be the dominant form of judicial practice at this moment, this practice is not monolithic and is in fact changing at the margins. A small minority of","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121582652","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}

{"title":"Regulatory capture in China’s IPO regulation and proposed solutions","authors":"Zeyu Ren","doi":"10.1080/20517483.2021.2020498","DOIUrl":"https://doi.org/10.1080/20517483.2021.2020498","url":null,"abstract":"ABSTRACT Regulatory capture is a global phenomenon and there are many rethinks of financial regulatory capture in the U.S. after the 2008 financial crisis through the perspectives of deregulation and liberalism. China’s IPO regulation system is being transformed from central-planning IPO regulation to a market-oriented information disclosure regime. Used to be an agency with huge examining and approval authority, CSRC becomes a severe place of officials’ bribery and corruption. Thus, CSRC’s regulatory capture problem is worth being researched in the reform era.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"275 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114556221","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}

{"title":"Privacy, reputation, and control: public figure privacy law in contemporary China","authors":"Xin Dai","doi":"10.1080/20517483.2021.2020497","DOIUrl":"https://doi.org/10.1080/20517483.2021.2020497","url":null,"abstract":"ABSTRACT Privacy law, as it regulates the nonconsensual disclosure of personal life, is instrumental to how reputation in human society becomes created, destroyed, and redistributed. In the contemporary Chinese society, as in elsewhere, privacy protection, and the lack thereof, have played an important role in the making of the ‘haves’ and ‘have-nots’ in the society’s reputation landscape. This Article makes a systematic effort towards accounting for China’s contemporary legal regime that regulates its public figure privacy problems. Through examining leading court cases and relevant regulatory practices, this Article demonstrates that the Chinese privacy regime in the twenty-first century, as embedded in the country’s overall information regulation apparatus, differs in significant ways from the corresponding Western paradigms in terms of its operational structure, cultural logic, and political dynamics. Since the beginning of the post-Cultural Revolution era, China’s status-based privacy regime has for the most time been highly protective of government officials until they become expelled from the official ranks. It is often laissez-faire with respect to the privacy of famous individuals outside of the government system, but with notable exceptions for those enjoying an exalted status in the realm of high culture. Furthermore, it can be conspicuously hostile towards grassroot figures who aspire for the limelight. The impact such public figure privacy regime may have had on China’s reputation landscape is conceivably regressive. As this Article explains, underlying such regime is a lasting, albeit evolving, cultural tradition that tends to associate privacy protection with a hierarchical moral outlook. Notwithstanding the importance of culture, this Article further argues that China’s privacy regulation must also be understood as embedded in the country’s political context. As the status-based privacy regime produces disparate reputational consequences, it provides the state with a lever to incentivize and manage a diverse network of elites, whom the state considers as agents for upholding its political and moral authority and implementing its policy agenda. China’s privacy regime in the new millennium may thus be understood as having stemmed from an intricate political process as the state strategically responds to rising challenges from increasingly powerful and competing market and social forces over the production of information, fame, and influence.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128462720","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}

{"title":"Legally demystifying an oriental cultural myth: reinterpreting Guanxi in reference to contract law","authors":"Z. Zhou","doi":"10.1080/20517483.2021.2020501","DOIUrl":"https://doi.org/10.1080/20517483.2021.2020501","url":null,"abstract":"ABSTRACT Guanxi is often seen as an oriental cultural myth, because it often led people who are not experienced with the Chinese into confusion while interacting with Chinese people in various social settings. It is because the confusing characteristics of Guanxi, many scholars have dedicated their time to investigate its original and its evolution. However, a mere exploration into Guanxi's cultural and historical origin does not suffice the need for its increasingly diversified audience, especially in times where cross-border interactions are gradually intensified. It is during such a times, the expedition for an interpretation that is more relatable to the diverse audience is necessary. This paper is aiming to draw a novel interpretation of Guanxi by referring to contract and contract law – a universal concept. Meanwhile, this paper would also employ transaction cost analysis as the theoretical link between Guanxi and contract, which would serve as the philosophical foundation for the new interpretation of Guanxi.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132899820","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}

{"title":"Industrial effects of latest China’s medical reform on drug prices","authors":"Ming-kuan Yang","doi":"10.1080/20517483.2021.2020499","DOIUrl":"https://doi.org/10.1080/20517483.2021.2020499","url":null,"abstract":"ABSTRACT China has constantly been adjusting drug pricing regulation, trying to balance between drug companies and the public, but the outcome is not as expected. Until recent years, the government has carried out comprehensive medical reform. It not only abandoned the ‘medicine mark-up’ mechanism that has been implemented for more than 60 years, which changed the drugs’ price structure to reduce the prices, but also implemented the ‘4 + 7’ volume-based purchasing system, which further improved the centralized bidding procurement system, tried to return the pricing power to the market mechanism, and exchanged the huge market share for the low prices. As of today, medical reform has been implemented for more than three years. Although many studies have discussed its results, most of them only focused on the impact of medical reform on drug prices, but ignoring the impact on R&D incentives of pharmaceutical companies and ignoring the influence on related industries. This paper is devoted to discussing the impact of medical reform on drug prices, the R&D of pharmaceutical companies, and retailed industries.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124575285","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}

{"title":"Balancing the scales in China’s smart courts: driving case standardisation through AI","authors":"Elinor Greenhouse","doi":"10.1080/20517483.2021.2020500","DOIUrl":"https://doi.org/10.1080/20517483.2021.2020500","url":null,"abstract":"ABSTRACT This paper positions the use of new technologies in China’s smart courts as a continuation of the professionalisation of China’s judiciary. This series of reforms is the backbone of China’s rule of law society reforms, as set out in the 14th five-year plan, and has been adopted as a method to standardise judgements within a court system headed by elite justices, yet underpinned by a legacy of under-qualified judges with significant practical experience. While the smart court systems have demonstrated significant savings in terms of time and costs for litigants, smart courts are no panacea for betterment of rule of law. The quality of judicial big data, potential black box nature and bias of the algorithms used, coupled with the potential for over-reliance or under-reliance on the software, all present significant challenges to the safe and successful deployment of legal tech in China’s smart courts. Reaching the lofty goals set out for its use requires a consistent and mindful approach to the betterment of both the technology itself and the training of those using it, so that pitfalls and faults in its employ can be both ameliorated and flagged by the users themselves: the judges.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127620329","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}