Peking University Law Journal最新文献

{"title":"Taking property rights seriously: reducing gender bias in the rural arable land contracting system in China","authors":"Ruoying Chen, Xueyang Cheng","doi":"10.1080/20517483.2019.1705635","DOIUrl":"https://doi.org/10.1080/20517483.2019.1705635","url":null,"abstract":"ABSTRACT Chinese women enjoy constitutional and statutory equal rights to men, including property rights in rural land. In practice, however, women’s property rights in the rural arable land contracting system have been dwarfed by those of men. Many women made strategic move in the critical decisions of marriage and divorce to either exploit or circumvent the gender-based practice of allocation of such property rights, which invited backlash and created serious legal and policy challenges. The gender-based bias in basic property right in rural land reflected a long-lasting tension in the current decision-making mechanism in rural China: such property rights of women are attached to their marital status and membership in the rural collectives. The ultimate solution lies in taking seriously such property rights of women and redefining the property right nature of these rights, by decoupling marital status of women from their property rights and institutionalizing such delineation, including allowing full transferability of such property rights.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123413038","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":"Concept and scope of technical measures to trade","authors":"X. Kong","doi":"10.1080/20517483.2019.1705636","DOIUrl":"https://doi.org/10.1080/20517483.2019.1705636","url":null,"abstract":"ABSTRACT ‘Technical Measures to Trade’ is a term coined by Chinese scholars and practitioners. It is closely related to the Agreement on Technical Barriers to Trade (TBT Agreement) and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) of the World Trade Organization (WTO), but it is not a WTO term. Chinese scholars and managers also have a different understanding and classification of the concepts and categories of Technical Measures to Trade, which brings difficulties to the research and practice of international and Chinese scholars and also has a negative impact on the transparency of relevant laws and regulations of China.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116320827","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 legal issues related to ‘Live Sports’ under the Chinese Copyright Law","authors":"Audrey Mila","doi":"10.1080/20517483.2019.1705634","DOIUrl":"https://doi.org/10.1080/20517483.2019.1705634","url":null,"abstract":"ABSTRACT Since the Beijing Olympic Games spotlight in 2008, the sports industry is frequently presented as the next ‘El Dorado’ of the Chinese economy. The past few years have shown a promising steady growth of the sports industry, supported by government policies. This dynamic context has also increased the opportunities for ‘Live Sports’, which have not yet unleashed their full potential as one of the main sources of revenue for Sports Organizations, and key contributors to investments and developments in the Sports sector. Surfing on the Digital Revolution, ‘Live Sports’ broadcasting and media rights have skyrocketed. However, the Digital Era has opened the door to a new threat menacing the symbiotic relationship between Sports and the Media: that of online piracy and unauthorized diffusion. For a decade, the protection of ‘Live Sports’ has been at the center of many debates focusing on the path to choose, with a recurrent question: Are ‘Live Sports’ copyrightable or not? In the absence of any explicit protection under the Chinese Copyright Law, uncertainty remains and restrains the potential of ‘Live Sports’. This paper will analyze the state of ‘Live Sports’ in the current Copyright Law and the possibilities for adaptation, as well as the opportunity of the adoption of a Sui Generis protection to offer viable protection options.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123512384","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 emergence of guiding cases in China","authors":"Li Guo, Bulelani Jili","doi":"10.1080/20517483.2018.1603643","DOIUrl":"https://doi.org/10.1080/20517483.2018.1603643","url":null,"abstract":"Chinese legal reform is dotted with episodes of progress and stagnation. While significant steps have been taken to professionalize, specialize, and autotomize the judicial apparatus, populist forces have also informed the trajectory of reform. Guiding cases have ignited tremendous scholarly discourses about the importance of the tool, and how it can help ameliorate the legal system. Some scholars “cite their potential to fill statutory lacunae, unify legal standards, improve judicial efficiency, and limit judicial discretion.” Others argue that the Chinese political and legal system are ill-prepared (or incompatible) to adopt the guiding cases paradigm. This article investigates the development of guiding cases and attempts to shed light on their function and potential impact on the political and legal landscapes. We maintain that the current role of guiding cases in the overall system is still ambiguous and that the rise of guiding cases has had marked progress, but its development in the political and legal milieus remain to be discerned.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121558071","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":"Basel revisited","authors":"Jie Min","doi":"10.1080/20517483.2018.1603649","DOIUrl":"https://doi.org/10.1080/20517483.2018.1603649","url":null,"abstract":"The unprecedented growth and expansion of global trade and finance in the world today calls for a harmonized global rulemaking system more than ever to accommodate the increasingly intertwined economic ties among nations. However, critics often look at international lawmaking by “sub-national actors” and “regulatory networks of bureaucrats” with deep skepticism on the ground that it lacks accountability and legitimacy compared to lawmaking at the national level. The Basel Committee on Banking Supervision (BCBS) serves as a counterexample. BCBS has been the foremost runner in promoting a harmonized global standard for banking regulation to remove systemic risk and strengthen the banking system. Despite perceived “democratic deficit” in such an international lawmaking process, BCBS has successfully developed three banking regulatory frameworks since the 1980s, which have been widely adopted worldwide, ranging from the most developed economies to countries with less sophisticated financial systems. This article aims to assess the legitimacy and effectiveness of the Basel Framework through a systematic account of the dynamics between states at the international level and within each state domestically during different stages of its development. Section 1 introduces the background of the international financial system in the 1970s, which served as the stimulus of the subsequent creation of the Basel Accord. Section 2 discusses the motivation behind the creation of BCBS in the early 1980s and presents paradoxical views on the interest alignment among participating states. Section 3 examines the formulation of the Basel Accord at the transnational level and the efforts that were made to enhance the legitimacy and accountability of this piece of soft law. Section 4 reviews the implementation of the rules at the national level through comparisons between the initial members of the framework and new participants, along with a look at non-member states that have also been strongly influenced by the Basel Framework.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117074700","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":"“Let the collective intelligence shine through”","authors":"Wei Gao","doi":"10.1080/20517483.2018.1603645","DOIUrl":"https://doi.org/10.1080/20517483.2018.1603645","url":null,"abstract":"An innovative type of dispute resolution model called crowdsourced online dispute resolution (CODR) has emerged in recent years and has the potential to offer an effective means for resolving disputes arising from online activities. Notable examples of this model are currently used in online opinion pools, online mock juries, and online dispute resolution by private companies. China’s largest e-commerce platform Taobao.com has been testing this innovative approach since 2012. Its CODR system allows its users to sign up as panelists to resolve disputes between buyers and sellers. This paper analyzes how CODR systems can leverage “crowdsourced” approaches to deliver appropriate outcomes, drawing on extensive experience with Taobao’s dispute resolution system, in particular its Public Jury. Given the enormity of Taobao’s market share, such examination could prove instrumental in understanding the strengths and weaknesses of the model.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"192 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115560638","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":"Against the Holistic Temptations","authors":"Qianfan Zhang","doi":"10.1080/20517483.2018.1603651","DOIUrl":"https://doi.org/10.1080/20517483.2018.1603651","url":null,"abstract":"This article provides an analytical critique of three related concepts: Rousseau’s general will, Sieyes’s constituent power, and Carl Schmitt’s political unity and political decision, with a reference to the catastrophic constitution-making practice in Venezuela. The constituent power has become a supreme power beyond every institutional control and the constitution-making body is justified in representing the “political unity” to reach “fundamental political decision”, ultimately because they are supposed to represent the “general will” that has never existed in the real world. Rousseau’s sacrosanct “general will” is a fiction constructed by his holistic methodology, but has been erroneously transformed into reality to guide the constitutional and legislative practices. In the real world, of course, the so-called “general will” is no more than the will of the majority which, like the will of minorities, is prone to err in its judgments, only that the probability of the majority’s error is lower under certain conditions. Once removed of the false halo of the never-erring general will, the constituent power represents merely the will of the majority, while a political unity can never achieve absolute unity, and dissent opinions are the necessarily part of a normal society and shall always be given the opportunity to prove itself. The evil genie of absolute power shall be put back to and sealed in the Pandora’s Box, to which it properly belongs.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131520055","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":"Internationalization with backward international law","authors":"Ying Tang","doi":"10.1080/20517483.2018.1603646","DOIUrl":"https://doi.org/10.1080/20517483.2018.1603646","url":null,"abstract":"This article discusses a mechanism for dispute resolution, called the “China model,” for newly-launched panda bonds. This China model contemplates a two-step approach for resolving disputes between Chinese bond investors and foreign sovereign issuers; namely, arbitration in China to settle disputes between the two sides and enforcement of Chinese arbitral awards by courts of foreign sovereigns. This article argues that the existence of the China model reflects a deep tension between China’s goal of internationalization and the backwardness of its international law regime. This is evidenced by China’s adoption of an absolute doctrine of sovereign immunity, which prevents Chinese courts from accepting disputes against foreign sovereigns and was abandoned by developed countries many decades ago. This article further discusses three factors that contribute to the backwardness of China’s international law regime: the continuing impact of historical debt disputes, within which China still defends itself using the absolute immunity doctrine; the failure of China’s approach to rely on international convention to change its position on sovereign immunity; and the challenge of drafting a comprehensive sovereign immunity statute in China due to lack of support among stakeholders within the country.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125559410","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":"Framing the structure of the court system in the perspective of case management","authors":"Peter C. H. Chan","doi":"10.1080/20517483.2018.1603637","DOIUrl":"https://doi.org/10.1080/20517483.2018.1603637","url":null,"abstract":"This article explores how court structures of different jurisdictions compare in the context of case management. The jurisdictions under review (Mainland China, Taiwan, Macau and Hong Kong), while sharing a common cultural heritage, are from very different legal traditions. Through analyzing the horizontal, vertical and other court structural designs, this article examines the importance of court structure in shaping case management. The article also examines the legal historical roots of each jurisdiction’s civil procedure and explains how its legal tradition impacted on its contemporary case management system.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116917912","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":"Towards a new court management?","authors":"E. Jeuland","doi":"10.1080/20517483.2018.1603640","DOIUrl":"https://doi.org/10.1080/20517483.2018.1603640","url":null,"abstract":"Court management may be defined as the administration inside the court and outside the case. It is inside the courts, so court management does not concern the general administration of justice. It is outside the cases, so court management does not deal with the administration of cases, the so-called case management. Yet, these three fields belong to the same category of judicial management or judicial administration, and there is some overlapping and even confusion. As a matter of fact, the concept of court management is not completely settled. In a descriptive approach, it can be said that court management deals with leadership inside a court, the relationship between the judges and court staff, the allocation of cases, the evaluation of judges and court staff, the court budget, the real estate, the maintenance and security of the building, the new technology, human resources and judicial communication. Court management deals with the different councils and assemblies of the court as well as with specific planning. This General Report is based on fifteen national reports (outside China). The approach to court management may vary according to the organization, the tradition and the location of the country studied (for example, the role of the public prosecutor in court management may vary). Court management is becoming a common concern everywhere in the world as part of the efforts to avoid backlogs, unreasonable duration of proceedings and costly litigation. It seems that the tasks of management are more and more given to a specialized clerk (the director of clerks or court manager) while the role of leadership remains in the hands of the head of the court who is usually a judge. The management we are considering is a new management based on indicators, objectives and evaluations coming from the new public management. Could it be possible that the common law is more at ease with new management than the civil law? Since the judge is appointed at a certain mature age, usually forty-five in common law countries, and sometimes with the legitimacy of election, there is no risk of competition between court leadership and court management, and so between court management and procedural law. Conversely, in civil law countries judges are considered as civil servants and are chosen at a much younger age, around twenty-three, and without electoral legitimacy. As a result, there is a risk of competition between court manager (director of clerks) and judges. After the executive model based on hierarchy and the management model based on indicators and evaluation, this paper suggests that a third model of court administration is possible: the relational model based on coordination. The principle of cooperation between judges, parties and lawyers applies to case management and procedural law in general. It could be said that the principle of coordination is the equivalent of the principle of cooperation in the field of court management. One result of this is th","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127775204","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}