It is necessary to build one “object-behavior” focus dualistic-system of rights function for defining the protection scope of copyright in copyright infringement determination, in which the term of transformative use play an important role. It is necessary to establish a dilution theory of the act of use rather than the theory of the exclusivity of expression that sticks to the category of the work, and recognize the substantial differences between the previous and subsequent works due to the dilution of the act of use can offset the similarities between them. The fair use judgment rule is not so much a violation defense rule as a mixed rule for infringement determination that has been integrated into comprehensive value judgments. As one complementary explanation rule for three-step test, it should apply four elements rule of fair use judgement to China juridical practice. Content transformation should be regarded as one concept of normative analysis for establishing the protection scope of works, and regard purpose and functional transformation as one qualitative tool of legal value guidance in copyright infringement determination. There are different explanation functions between the two transformations. Meanwhile, proportionality principle should be applied effectively to examine the reasonable tolerance of interests’ impairment necessarily for the improvement on interpretative theory system of copyright transformative use.
Advance compensation is a product of practical rationality in China’s securities market.As a new measure which was firstly introduced in 2013,it based on local features for investor protection, whether it is vertical development history or horizontal international comparison all lacks precedents and norms to learn from, and the specific rules have yet to be clarified.At present, there is controversy in China’s academic circles about the definition of its legal attributes, but whether it is the advance compensation in the existing norms, or the settlement agreement, or even the assignment of creditors’ rights, there are essential differences with the advance compensation system in the securities market.The conflicting opinions on its legal nature, which in turn affects the construction of legal norms at the legislative level.Following the principle of autonomy, the advance compensation agreement is an abstract contract on acknowledgement of a debt between the payer and the investor, separate from the securities tort liability as the underlying claim.That is, the acquisition of the claim is not premised on the realization of the purpose pursued by both parties, and the purpose as a prerequisite for the validity of the contract has no impact on the establishment of the causeless contract.At the same time, according to the typical content of the compensation agreement, the advance compensation can be recognized as a debt-bearing contract without cause, and specific rules can be constructed on this basis to more effectively protect the legitimate rights and interests of investorS.
Based on the intrinsically connections that the substantive law gets with the procedure law and compulsory execution law on multiple levels, there are three possible technical constructions aiming to extend and respond to the obligation with consideration in the substantive law.At the level of compulsory execution force occurrence, the doctrine does not recognize the positive effect of the prejudgment function of the judgment of dismissal, and it misunderstands the basis of substantive law and procedural efficiency.Based on the reality that Chinese judicial practice tends to ignore the debtor’s right of counterplea, it is appropriate that Chinese law does not make the legislative choice of absolute correlation between the right of concurrent performance counterplea and the judgment with consideration.At the level of specificity of compulsory execution force, based on the misplaced succession of comparative law and the lack of substantive discussion, the doctrine mistakenly treats the judgment with consideration as a basis for conditional enforcement.At the level of commencement of enforcement, judicial practice has recognized judgments with consideration, in which the debtor’s obligation solely is enforceable.The creditor’s performance or offer of performance is an element of the commencement of enforcement but not a prerequisite for its application.In Chinese law, the way to prove performance is not limited to public documents or notary certificates and delivering the consideration by the compulsory enforcement agency.Besides, there is the possibility of modifying the consideration by reconciliation in compulsory enforcement.The legal remedies for the commencement of enforcement elements are objection and review to compulsory execution, and the debtor may not assert the counterplea of concurrent performance in the litigation of against the execution by the debtor.
China has established a “Path to Execution” model for the enforcement of third-party claims in the name of “Original Enforcement Basis + Enforcement Ruling”.However, due to the absolute suspension effect of the third-party objection, the practical effect of the enforcement of the third party’s claims has been greatly reduced.The third-party objection shall be formally examined by appropriate substantive criteria under the legitimacy requirements of “efficiency” and “procedural safeguards”.The third party shall not raise an objection within the time limit, and the objection raised afterwards shall be a lawsuit for the third-party objection.In the context of the existence of subrogation litigation provisions, the collection of litigation still has advantages in terms of application and legal effect, which is sufficient to justify the need to add a collection litigation system.In the future, China’s enforcement of third-party claims will establish a dual-track model of “ path to execution” + “collection of litigation”.It exceptionally carries the procedural relief function for the applicant for enforcement under the structure of China’s enforcement of the third party’s creditor’s rightS.Subject to the requirements of litigation economy and procedural safeguards, the validity of the judgment may extend to the person subject to enforcement.In addition, the “creditor’s right” executed against a third party should be expanded to be understood as “the right of claim”,and the provisions of future enforcement legislation should be amended.
The “queuing” of the public health crisis site is not only the “form” of the allocation of scarce life-saving resources, but also the “manifestation” of the distribution of life or death.As far as the form of resource allocation is concerned, the functional positioning of queuing is essentially equivalent to “first come, first served”,satisfying everyone’s equal care and respect.Egalitarianism in the distribution process should be embodied in procedural justice, that is, equal treatment in the distribution process, rather than the final actual distribution result.The linear social structure in the field of public health crisis has changed from “means of distribution” to “purpose of distribution”,from the “natural path” of promoting distributive equality to the “object of criticism” that may lead to the shaking of the legitimacy of distribution.The linear social structure after alienation deals with the specific process of medical resource allocation, and the interaction and game relationship between individuals, including doctors, have the characteristics of temporality, limitation, and sensitivity.At present, there are gaps in the legal analysis of this microsocial relationship, and it can be specially explored, which can reflect on and improve the deviant motive and constraint mechanism of deciding to queue up as a form of resource allocation in the context of the public health crisis, in order to maintain the legitimate survival and reasonable change of the micro-linear structure as the cornerstone of the whole society as much as possible.
The doctrine of provocation is an important defense principle in Anglo-American homicide law.It means a killing which would otherwise be murder should be reduced to voluntary manslaughter if it is committed when the actor is in heat of passion resulted from the victim’s provocative act, and therefore the actor’s penalty is mitigated.The defense of provocation contains three elements: the provocative act by the victim, the actor have been provoked to lose his self-control; the provocative act is sufficiently grave to cause a reasonable person to lose self-control.The defense is a partial excuse and it’s rationale is that the provoked actor is less culpable for his action.Provoked killing is essentially the “righteous indignation killing” in Chinese criminal law.“Righteous indignation killing” is different from the circumstance of “heat of passion crimes” in the general provisions of criminal law as the former has more strict conditions than the latter.The doctrine of provocation has enlightening significances to our study on the structure, rationales and application standards of the “righteous indignation killing”.
China’s “Enterprise Bankruptcy Law” stipulates that the administrator has the right to rescind the executory contract, but there is a lack of systematic consideration of the exercise standard, implementation effect and restrictions of the rescission right.The executory contract contains a certain economic value, which is a combination of assets and liabilitieS.The rescission of the executory contract shall follow the principle of preservation and appreciation of the bankruptcy property, the test of balance of interests and the principle of inseparability.The rescission of the contract does not lead to the extinction of the performed part, but produces the right of claim for mutual repayment.This new interpretation not only has its empirical basis, but also can effectively solve the claim of restitution as recall right or priority payment of common benefit claims which undermines the principle of equality.It is an unreasonable practice to give priority to repayment of creditor’s rights and undermine the principle of equality of creditor’s rightS.In the future, when amending the law, the combination of general clauses and special listings should be adopted, that is, a new paragraph is added under paragraph 2 of article 18 of the Enterprise Bankruptcy Law and it stipulates that if the administrator’s termination of the contract is manifestly unfair to the counterparty to the contract, the administrator shall not rescind it.Meanwhile it should clearly stipulate that the handling of contracts involving retention of ownership, labor contracts and residential commercial housing sales contracts must exclude the use of the manager’s right to rescind, so as to protect the rights and interests of the counterparty.
In the patent open license system, the patent open license declaration is a prerequisite for the implementation of patent licenseS.A patent open license declaration is a legal document submitted by the patentee to the patent administration department that is willing to allow any unit or to exploit its patent.In terms of legal attributes, a patent open license statement constitutes an offer as long as it meets the conditions stipulated in the Patent Law.The patent administration department shall conduct an examination of the patent open license declaration, but such examination shall in principle be a formal examination, and only when the parties have a dispute over the patent license royalties, the passive substantive examination may be conducted.In terms of contract formation, the patent open licensing contract is a consensual contract, which is formed when the written notice of the licensee’s consent to the exploitation of the patent reaches the patentee, and the licensee’s payment of the patent royalties is an act of fulfilling the contractual obligations, and the patent exploitation license can only be obtained after the licensee pays the patent license fee.The patentee has the right to withdraw the declaration after the announcement of the patent open license declaration.In the event that the patent open license declaration does not comply with the provisions of the law, the patent administration department has the right to withdraw the declaration by public announcement.
The basic principles of civil enforcement are the basic norms guiding and restraining civil enforcement, manifesting and reflecting the basic characteristics, purpose, mission and value pursuit of civil enforcement.How to recognize the norms and requirements which belong to the basic principles is of theoretical and practical significance to correctly understand and grasp the basic framework of civil enforcement system.In the formulation process of Civil Enforcement Law, there are large differences in the understanding of connotation and composition requirements as well as system composition of the basic principleS.For example, whether the principle of good faith, proportionality and information technology can be the basic principles of civil enforcement.The principle of good faith is only applicable to the legal field where the behavior subject has the right to dispose, such as the field of civil law and civil procedure law.The principle of proportionality has its special significance in the field of administrative law, the purpose of which is mainly to restrain the exercise of public power.But the principle of proportionality beyond the field of administrative law is actually used as a universal requirement of reasonable behavior, so that it is also not suitable as a basic principle of civil enforcement.The principle of information technology is a non-binding requirement and cannot be a basic principle with binding nature either.The system of basic principles in civil enforcement mainly consists of the principle of prompt, economic, adequate and continuous enforcement, and the principle of humanitarian enforcement, the principle of civil prosecution supervision.These three basic principles reflect the purpose, basic value pursuit and characteristics of civil enforcement in China.
In a country ruled by law based on the concept of fairness and justice, the implement of public power must pay attention to the impact of the basic rights of the people in administrative law, that is, the principle of proportionality.Civil enforcement acts are implemented in accordance with enforcement basis, enforcement norms, property administrative norms, judicial policies, etc.,and have the nature and discretionary factors of the exercise of public power.The regulatory rules, scope and review rules of the exceeding target amount of attachment of property determine the discretionary space is extremely small, and there is no need to introduce the principle of proportionality.Even in Germany, which adheres to the principle of proportionality in public law, the content of the principle of proportionality in enforcement law has been replaced by a more specific legal concept.The practice of exceeding target amount of attachment of property in China shows that the guiding rules for the discretionary factors and the rules for the division of property amounts have the effect of replacing the content of the principle of proportionality.If China’s enforcement legislation stipulates the principle of proportionality as a discretionary principle, it is better to improve the specific implementation norms and property administrative normS.In this way, the appropriate amount is determined through specific property management norms, or the discretionary factors are concretized to facilitate the enforcement of remedies and standardize enforcement behavior.
Different from bilateral juridical acts based on the unanimous declaration of parties, the decisions made by an owners’ assembly with the majority rule face the risk of infringing on the rights of the minority owners with opposing viewS.The Real Right Law and the Civil Code have stipulated the rule of owners’ right of revocation, however the criteria for deciding infringement of owners’ legitimate rights and interest are unclear, resulting in inconsistent decisions in such caseS.Based on the requirements of autonomy of will and the value of efficiency, in principle, the judiciary should respect the autonomy of the owners, and should not revoke the decision of all owners in accordance with legal procedures based on the fragmented information obtained in the litigation procesS.However, the decision of the majority is restricted by the protection of the basic rights of the minority; the majority shall not abuse the advantage of voting rights to discriminate against the minority; when the interests of the minority are restricted for the purpose of maximizing the interests of the group, the means that have the least impact on the minority should be selected and should ensure the best interests of disadvantaged minoritieS.Therefore, when the decision of the owners exceeds the authority, violates the principle of equality, exceeds the predictable scope of the owners, violates the principle of minimum necessity and adequate protection and restricts the interests of minority owners, it should be determined that it infringes the legitimate rights and interests of ownerS.
As the driving force of the development of digital economy, data reshapes the new mode of market transactions, but it also creates the double problem of the standard judgment and technology identification of this kind of crime.The governance of data crime in China presents a dilemma of legislation concept lag, judicature criminalization and pocketing.As one of the most developed countries in data technology, America has formed a relatively complete data crime governance system, so we can draw lessons from some of its experienceS.From the perspective of legislation, the United States has established a criminal law regulation system with the Computer Fraud and Abuse Act as the core.From the perspective of judicial practice, it has generated many judgment methods with “unauthorized” and “beyond authorization” as the interpretation goal.In view of this, the behavior of illegally accessing data and abusing data should be included in the adjustment category of criminal law.At the level of judicial practice, data infringement that violates the terms of use of the website will be criminalized, and two types of data infringement that circumvent technical barriers and violate the revocation mechanism will be criminalized.
Under the theory of structural functionalism, there are differences and complementarities between functionalism and normativism. The feasible path for civil law countries to resolve the conflict and achieve integration in the code is, on the one hand, to establish the system out of the code, and on the other hand, to systematically adjust the original normative system after the introduction of the system. China’s Civil Code does not adopt the first path, but at this stage, based on the stability of legislation, the feasible path is to use the tools of hermeneutics to resolve disputes and achieve system integration. In view of the systematic reaction caused by the homogenization of chattel mortgage and pledge, Article 395（1）（7） of the Civil Code can be limited by strictly defining the object of chattel mortgage, that is, only special chattels that can be registered are allowed to mortgage chattels. In response to the system reaction formed by the floating mortgage of movable property established based on the financing demand, the floating guarantee can be interpreted as a debt guarantee or a special structure in the commercial law by escaping the real right guarantee or establishing the commercial rules. Through the above path, we can not only guarantee the functional needs of the introduced system, but also avoid the formation of discord and conflict between systems in the general rule system.
Although the Civil Code does not directly mention the “right of recourse of unreal joint and several liability”, there is a general theoretical consensus that, as interpreted, there are a large number of types of recourse of unreal joint and several liability in the Civil Code, which are distinguished from the rights of recourse for majority liability such as joint and several liability, contingent liability and advancing liability. In practice, there are two types of recourse rights, the typical recourse right of unreal joint and several liability and the contributory recourse right of unreal joint and several liability. Facing the rich variety of types and forms of recourse rights, there is a need to clarify the general provision in the Civil Law. There are different rules in civil law systems on the right of recourse of unreal joint and several liability, which are generally considered to be analogous to the general provisions on the right of recovery of joint and several debts. However, due to the nature of the right of recourse of unreal joint and several liability, it is subject to the interpretation and application of the provision on the recourse of joint and several liability in terms of the requirements of exercise and legal effects. The requirements for the exercise of the right of recourse of an unreal joint and several liability are that the intermediate responsible persons actually assume more than their share of the liability and that results in the joint exemption of the final responsible persons. In terms of legal effect, when there are multiple intermediate responsibilities or final responsibilities, the subject of recourse is subject to further determination; the scope of recourse is also differentiated by the different theoretical bases of the right of recourse.
The Reform Plan of Compensation System for Ecological and Environmental Damage establishes a “civil litigation for compensation for ecological and environmental damage”, a system which has been established for seven years, while the academic and practical circles still have an unclear understanding of its nature and function. One of the important reasons is that social public interest litigation or national interest litigation is confused in environmental public interest litigation. The essence of the litigation system of compensation for ecological and environmental damage is the system of “environmental performance litigation” brought up by the state organs performing the duties of environmental management based on the state ownership of natural resources. It is an important research subject in the compilation of environmental damage responsibility investigation and connection code. Considering the stability of the existing legal system and the demand of the times for the public welfare system, the arrangement of establishing the litigation system for ecological and environmental damage compensation in the environmental code can be divided into two aspects: recognition and connection. Firstly, the legal status of the ecological environment damage compensation litigation should be recognized; secondly, the connection mechanism between the litigation system and the civil public interest litigation system should be established.
Taking publicness as the jurisprudential basis for judging the scope of public data is not only related to the definition of the scope of public data, but also directly related to the path and scope of other data rights and interests in the law. In fact, the discussion of the public nature of public data inevitably involves the discussion of reflected interests. The proposal of public data reflective interests aims to bridge the public and private interests carried by public data: at the theoretical level, it provides reasons for safeguarding the private interests carried by public data, and at the same time has the function of limiting the expansion of publicness in public data standards, preventing the public data standards from being too broad in scope and eroding private interests in the process of application; at the practical level, the content of public data reflective interests can be used to positively construct the data in terms of the practical path, the path of determining the reflective interests of public data can be positively constructed through the content of public data, and at the same time combined with the existing research on the elements of the typology of public data, the expansion of the scope of public data can be limited, and the element of causality can be added as an aid to the judgment, with a view to expanding the realization of the value of public data to the realization of private interests.
At present, China’s research on impossible attempt has been detached from the normative background of our own country, thus fallen into the misunderstanding of answering our practical questions from the doctrinal knowledge of Japanese criminal law, especially in the process of discourse, stubbornly emphasizing the objectivism and the theory of unworthy results, and simply transplanting the specific danger theory and objective danger theory adopted by Japan for non-offense, while ignoring the difference between the legislative provisions of the two countries. We should reorganize the problem of impossible attempt from the perspective of stereotypical behaviors that are more dependent on the experience of domestic norms, so that we can effectively learn from the theological methods in Japanese criminal law, and finally give a more substantive connotation to the behavior theory in China’s criminal law by judging whether the behavior has a specific danger. Therefore, the important issue of not making a judgment is not to judge the “possible” and “impossible” of the results that constitute the elements, but to judge the “punishable” and “unpunishable” of the behavior through the “existence” and “non-existence” of the specific danger of the act in the type of behavior that formally meets the constituent elements.
The nature of type and scope of state-owned natural resources is legality, which is fundamentally determined by the socialist ownership by the whole people. The registration of exemption from ownership of state-owned natural resources is an embodiment of stronger legal protection for the ownership of state-owned natural resources under the conditions of ownership by the whole people. The registration of exemption from ownership of state-owned natural resources shall be understood in conjunction with the legality of the type and scope of state-owned natural resources. Although the concept of distinguishing between state-owned public property and state-owned private property is worth learning, the concepts of “state-owned public property” and “state-owned private property” do not conform to China’s national conditions and realities, and cannot be copied to China. State ownership of natural resources actually implies two different levels of legal relations: one is the Civil Law ownership relationship, and the other is the burden of social public use that constitutes a restriction on public purposes. Under the premise of diversified utilization of state-owned natural resources, state-owned natural resources should be relatively divided into state-owned commercial natural resources and state-owned public welfare natural resources according to the different target weight ratio of preserving and increasing the value of state-owned natural resources and sharing, and regulate them according to different value orientations and system logics.
Existing studies focus more on the specific institutional design of corporate compliance, and few scholars concern the construction of corporate compliance system itself. That is, exploring how China promotes the construction of corporate compliance system and the problem of mode innovation in it. This study finds at this stage, by combing the context of promoting the construction of compliance systems by different types of enterprises in China, it is found that China has preliminarily formed the targeted construction model through administrative supervision forcing financial enterprises and listed companies to construct internal control and compliance system, through administrative supervision mechanism ordering central and local state-owned enterprises to construct the integrated management system of law, compliance, risk and internal control with an administrative-led mechanism, guiding export-oriented enterprises to conform to the trend of international compliance by issuing compliance guidelines, and encouraging private enterprises to build a compliance management system with compliance without prosecution, and have a variety of ways to cooperate and complement with each other. In the construction process, China should, from a broader perspective, pay attention to the coordinated interaction between different subjects and form joint forces, so as to jointly promote the establishment and development of the corporate compliance system with local characteristics. In addition, enterprises should not only focus on building a single corporate compliance system, but also take building an integrated management platform as the ultimate goal.
The vicious violence of a number of men in Tangshan barbecue restaurant picking quarrels and provoking trouble to beat women has triggered a debate from all walks of life about the nature of the behavior of onlookers who are failing to rescue when people in danger. There are two types of failing to rescue, namely, altruistic righteousness and unwillingness to work without self-damage. The Criminal Law’s discussion of imprisonment is whether unwillingness to work without self-damage should be punished. The criminal responsibility of the unwillingness to work without self-damage type should be affirmed. There is a violation of legal interests that merits the evaluation of the Criminal Law, and its criminalization does not violate the legalization of moral obligations, the modesty of the Criminal Law, and therefore is operable. The setting of the crime of failing to rescue under the type of unwillingness to work without self-damage should be carried out in the same way as the crime of intentional injury: the object of infringement should be limited to the personal rights of citizens; The judgment of the objective aspect of the crime should attach importance to the urgency, the violation of obligations, and the reality of the results; The subject of the crime should be limited to general rescuers; The subjective aspect of the crime should be limited to intentionality; The punishment setting should be light, and the statutory punishment should not be excessively severe.
