Peking University Law Journal最新文献

{"title":"Drafting a commentary on the Chinese Criminal Code – German reflections on a Chinese desideratum","authors":"M. Bohlander","doi":"10.1080/20517483.2021.1978676","DOIUrl":"https://doi.org/10.1080/20517483.2021.1978676","url":null,"abstract":"ABSTRACT Chinese criminal law scholars have increasingly been establishing links with colleagues in other jurisdictions and drawing benefits from comparative research, and more than anything else with those from Germany. This appears to be based on the fact that both Germany and China are at their core civil law systems, and that German scholarship in criminal law tends to have historically had, and still to have, a reputation abroad for a high degree of doctrinal sophistication that may appeal to other legal systems with a similar conceptual DNA. One major factor which keeps recurring in the recent Chinese debate is the dramatically increasing level of interest in a particularly Teutonic tool of legal scholarship, the code commentary. This paper will first interrogate the development of the debate in China about the introduction of commentaries, followed by a look at the German system in particular, in order to find out whether and how it might benefit the discussion in China. Finally, against that background the paper will try to map out some of the conceptual challenges a Chinese endeavour will face, given the current climate of a gradual paradigm shift from the overcome Soviet-based law to a new framework that is, however, still lacking sharp contours.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121485902","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":"Torts and intellectual property in Industry 4.0: a comparative study of Chinese and American jurisprudence","authors":"V. Wan, Y. Jiming","doi":"10.1080/20517483.2021.1978679","DOIUrl":"https://doi.org/10.1080/20517483.2021.1978679","url":null,"abstract":"ABSTRACT At the advent of a new millennium, nations around the world have been challenged by a surge of financial, geopolitical, and environmental crises that informs global societies of an incoming revolution that will reform the socioeconomic order of the modern world. As this new age descends upon us, it is profoundly evident that the future will be defined by our grasp on digital information technologies, the multilateral legal systems that govern them, and the numerous advantages that these systems will afford our societies. The controversial discourse of the Fourth Industrial Revolution, otherwise known as Industry 4.0, imparts an objective truth that the Information Age will present us with substantial systems of technological growth, which accordingly translates to systems of economic expansion. The last several decades of technological development have afforded us with transformative tools in the form of supercomputers, artificial intelligence, information technologies, and a variety of smart devices. Regulating the legal mechanisms that govern the utility and development of these technologies is instrumental to benefitting from the economic prosperity, political strength, and developmental capacities that will follow. This article aims to conduct a comparative legal study of the mechanisms of intellectual property rights protections in their intersection with tort liability structures in the PRC and the USA – two global superpowers at the forefront of both technology and jurisprudence. Analyzing the mechanisms of both countries – particularly with the focus of indirect contributory infringements, intellectual property rights abuse, and structural legal reforms – will provide us with a better understanding of the current state of legal standards in domestic and international governance systems. The study will begin with a bilateral deconstruction of each nation’s intellectual property classifications and protections before engaging in the significant processes of historical legal reform. Subsequently, the article will analyze modern legal interactions between tort liability structures and intellectual property protections while subjecting their current forms against the impeding challenges of technological development as afforded through Industry 4.0. Finally, the article will conclude with an objective view of the future of both nations in the reform of intellectual property law.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116689057","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":"Civil enforcement rules and mechanism in China: the past, present and the future","authors":"Zhixun Cao","doi":"10.1080/20517483.2021.1978677","DOIUrl":"https://doi.org/10.1080/20517483.2021.1978677","url":null,"abstract":"ABSTRACT A well-functioning enforcement court is the most crucial safeguard for the success of enforcement, which attracts the attention both internationally and domestically. Civil procedure law statute and its related judicial interpretations, which are experiencing rapid changes and still to be improved, consist of valid rules in the area of enforcement law. After enforcement proceedings are implemented in fact, the difficulty in enforcement began to be taken as a key issue in practice and therefore, led to reform efforts both politically and legally. The ordinary operation of enforcement proceedings could be divided into three parts: commencement and termination of the proceedings and the main part of the procedure. Besides the comparatively well-accepted enforcement rules, the special emphasis in China on the enforcement notice, the Internet-based control and sale of the debtor’s assets and the special possibility of terminating proceedings while admitting failure in enforcement deserve more careful observation. As a general rule, the enforcement court is responsible for the discovery of debtor’s assets, though the current reform plan intends to mitigate the investigative burden of the court. The Chinese judiciary has already announced some general framework in its reform plan. Despite we are undoubtedly concentrating on the developing solution of Chinese problems at national level, there is a strong need to take comparative experience more seriously. Only in this way could Chinese outstanding system of academic discourse be constructed firmly and eventually.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130551863","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":"Courtroom on the clouds: how online courts are transforming China’s court performances at the local level","authors":"W. Y. Carter Cheng","doi":"10.1080/20517483.2021.1978678","DOIUrl":"https://doi.org/10.1080/20517483.2021.1978678","url":null,"abstract":"ABSTRACT In 2012, China began its journey to digitalize its court system. While much of the existing scholarship has focused on the legal implications of the digitalized processes, only a small number of studies have looked into the empirical outcomes of these efforts. This research aims to fill this knowledge gap by providing both a panoramic view and close-up angle of China’s experience in online court development. By tracing and accounting for the development history of court digitalization and online courts in China since 2008, this research finds that the development of online courts in China could be characterized by a bi-directional approach, which involved (1) general direction and autonomy from the top authorities, (2) innovations and development at the local level, (3) refinement and wider adoption of outstanding local innovations, and (4) regulation and standardization of the novel elements. Through the compilation and analysis of a time-series dataset on the court performances of the Guangzhou Intermediate People’s Court, it finds that digitalization and online court development helped the court to achieve notable improvement in efficiency while maintaining its effectiveness at stable and high levels between 2013 and 2019. By considering online court’s impacts on access to justice, transparency, judicial ethics and the quality of court services, as well as the image of the law in China, this research also explores what insights other countries could draw on China’s experience in court digitalization and online court development.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130287234","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":"Loss of chance across different jurisdictions (the why and wherefore)","authors":"R. Beran, V. Raposo, Yang Manman","doi":"10.1080/20517483.2020.1857116","DOIUrl":"https://doi.org/10.1080/20517483.2020.1857116","url":null,"abstract":"ABSTRACT This article examines the ‘loss of chance doctrine’ with a comparative perspective, across three different jurisdictions: China (where the loss of chance doctrine is in its infancy); continental Europe (in which many countries have adopted loss of chance to solve medical malpractice cases) and Australia (where loss of chance has been excluded by the High Court and is no longer a valid defense for negligence where causation is otherwise difficult to prove). The article compares these three different approaches to establish a line of development, from initial acceptance, through its widespread application, to finish with its judicial rejection, which might be a prediction about the future of this doctrine.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126847383","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":"Protecting the public from the private? Disenchantment over the private nondelegation doctrine","authors":"Yiqun Ye","doi":"10.1080/20517483.2020.1855891","DOIUrl":"https://doi.org/10.1080/20517483.2020.1855891","url":null,"abstract":"ABSTRACT Under the pervasive public–private collaborative governance, people increasingly and constantly feel the strong power and control of industrial, financial, high-tech giants, from Cradle to Grave. Pressed by the public’s concern against these private entities, Politicians and lawyers can use antitrust toolbox to combat these giants’ monopolistic interest. But what if some of them gain competitive advantage from sharing regulatory power with the government? In the recent Amtrak cases, judges and commentators have brought a relatively less mentioned constitutional doctrine, the private nondelegation doctrine, back into discussion, hoping it can prevent the government from wielding power without owning up to consequence. Going thoroughly through important private nondelegation cases decided by the US Supreme Court, it’s hard to conclude a systematic inquiry of private nondelegation doctrine. The Court allows the private entities to participate as the ‘advisory or subordinate role’ in the administrative process, so long as the government seize the final control over the regulatory process. Yet, all private nondelegation precedents haven’t constituted a persuasive private nondelegation inquiry. Indeed, how much involvement may a private entity have in the administrative process before its advisory role trespasses into an unconstitutional delegation? In a formalistic approach, it’s usual to get bogged down in definition and drawing line. But from a functionalist perspective, to secure the government’s final control and protect the public interest from private entities’ self-interest, we can embrace a comprehensive and structural inquiry constituted by multiple constitutional doctrines, including but not limited to the Due Process Clause, the Appointments Clause, the State Action Doctrine, and the Private Nondelegation Doctrine.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122385404","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":"Market, law and distribution: tracing a stream of liberal economic thinking","authors":"Kangle Zhang","doi":"10.1080/20517483.2020.1855890","DOIUrl":"https://doi.org/10.1080/20517483.2020.1855890","url":null,"abstract":"ABSTRACT The proponents of liberal economic orders generally praise the role of the market in allocating resources and benefits, and they tend to subscribe to a norm of social justice which has at its core market-perfectionisation – the ideal market is thought to be leading to that justice. These ideas are predominant in the contemporary debates on the (international) economic order, distribution and inequality. This article is an attempt to uproot these orthodox liberal ideas, and in doing so it puts in question conceptions of law, distribution and social justice in the liberal orthodoxy.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127352466","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":"Chinese public opinions on death penalty: measurement, analysis and communication","authors":"Genlin Liang, Eryan Chen","doi":"10.1080/20517483.2020.1826135","DOIUrl":"https://doi.org/10.1080/20517483.2020.1826135","url":null,"abstract":"ABSTRACT The preservation or the abolition of death penalty is an issue of public policy choice justified by public recognition. Policy decisions and system designs of death penalty should take public opinions seriously. Using data from more than 30,000 samples, this research finds that the concept of retribution and deterrence constitutes the most important conceptual foundation for death penalty, upon which the majority of Chinese people are in favor of preservation of death penalty. However, the mainstream view towards death penalty has significantly changed, which suggests that the majority of Chinese people are not absolute retentionists, but either unconditional or conditional abolitionists. When appropriate alternative measures to death penalty are posed, nearly 80% retentionists will turn into abolitionists. Public opinions of death penalty are influenced by a variety of factors including self-actualization, dependence of mass media, social unfair experiences, sense of security, legal awareness as well as evaluation of social problems. The discourse pattern is the most suitable pattern for China to lead public opinions towards a rational direction. According to this pattern, it is advisable to promote all-round development of human beings as well as civilization and harmony of the society, value the crucial role of political elites, establish appropriate alternative measures to death penalty and communicate with the public through mass media, so as to lay solid socio-psychological foundation for the gradual reform of death penalty in China.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115752367","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":"Research on Anti-Monopoly regulation of data merge in the era of data-driven competition","authors":"Koh Chun Yik","doi":"10.1080/20517483.2020.1812863","DOIUrl":"https://doi.org/10.1080/20517483.2020.1812863","url":null,"abstract":"ABSTRACT Data merge as a result of mergers between organizations that hold valuable data sets can create significant competitive advantage. The existing regime of Chinese merger control is based on turnover thresholds and might not be efficient for capturing data-driven mergers raising anti-competitive concerns. Also, the existing notion of relevant market definition and market power which form the backbone of the merger review might be of little use for assessing data-driven mergers. This paper analyses whether the Chinese lawmakers should introduce the transaction value-based thresholds to block data-driven mergers that might have serious anti-competitive consequence. Comparison is made with merger notification thresholds in Austria and Germany as they are the more active European member states when it comes to competition law enforcement in the data-driven era. Besides, both Austria and Germany have reformed their competition laws in 2017 to adapt the laws to the data-driven economy era. The new Austrian and German competition laws may well serve as inspiration for China. In addition, the paper also examines the definition of product market for data and what constitutes market power for that market. This paper argues that turnover-based thresholds can be inadequate to tackle competition law concerns due to data. Thus, transaction value-based threshold as an additional threshold of merger control would be a good option. The paper also argues that the existing notion of relevant market definition should be adjusted. Furthermore, the SAMR can no longer rely solely on market shares to evaluate market power. In this context, whether the data to be acquired and to what extent the said data can provide market power to the merged entities should be taken into account.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124856160","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":"International choice-of-courts-agreements","authors":"P. Gottwald","doi":"10.1080/20517483.2020.1812862","DOIUrl":"https://doi.org/10.1080/20517483.2020.1812862","url":null,"abstract":"ABSTRACT Jurisdiction agreements are of great importance in international business. In general, parties are free to choose a competent court unless a state claims exclusive jurisdiction. In addition, there are restrictions for the protection of consumers, insured parties and employees. The agreement must be validly concluded according to the law of the chosen court, in particular meet the form requirements. It is valid separately from the main contract, establishes exclusive jurisdiction and covers all disputes arising from the concrete relationship between the parties, unless otherwise agreed. In general, it is respected by derogated courts. Costs arising from defending a claim in a derogated court may be recovered as damages in many states. Common law, in addition, allows an anti-suit injunction to restrain the right to sue in a derogated court.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127468607","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}