The Minutes of Kunming Symposium is the comprehensive and concrete implementation of the criminal policy of temper justice with mercy and the death penalty policy.In order to implement The Minutes and handle drug-related cases well,we should scientifically consider the criminal policy of strictly punishing drug-related crimes according to law,fully implement the criminal policy of temper justice with mercy,achieve overall severity and leniency with severity,highlight key points,treat differently,suit punishment of crime and the balance of penalty measurement,and correctly understand and implement the death penalty policy.In the application of death penalty,The Minutes adheres to the basic principle of strict punishment,the policy requirement of differential treatment,the sentencing standard of"quantity + circumstances",and the principle bottom line of evidence judgment.The Minutes makes clear,standardized,and detailed application of the death penalty for drug-related joint crimes,drug trafficking crimes,drug transporting crimes,drug manufacturing crimes,and non-traditional drug crimes,providing normative guidance for the accurate application of the death penalty and effective punishment of drug-related crimes.
The Rules of the Supreme People's Court on Several Issues Concerning Comprehensive Governance Judicial Suggestions comprises of 13 articles,aiming at guiding local people's courts at various levels to carry out the work of comprehensive governance judicial suggestions in an orderly manner under the rule of law.In order to ensure the full implementation of judicial suggestions,The Rules explicitly state that the proposing of comprehensive governance judicial suggestions should follow the principle of necessity,ensuring pertinence,standardization and effectiveness,and avoiding only emphasizing quantity not quality.To improve the standardization level of work,achieve the goal of taking preventive measures to resolve disputes at the beginning,The Rules regulate on matters like the same level and local principle,research and communication,collaborative implementation,and clearly stipulate mechanisms such as review and issuance,assessment and incentive,and report to National People's Congress,so as to effectively play the role of guiding and regulating judicial suggestion work.
The governance of online platform disputes is an important part of the modernization of national governance system and governance capacity.However,as a new thing,online platform has obstacles in terms of management rules,responsibility bearing and disclosure mechanism,among which platform rules escape outside the constraints of public law and remedies are limited,and the alienation of platform regulatory mechanism gives rise to the risk of speculative cycle.The resolution of pre-litigation special supervision disputes is insufficient,and it is difficult for principled judicial judgment to form typified guiding rules.The reason is thatthe supply of laws and institutions needs to be improved,the advantages of different subjects in governance can not be optimized to adapt,and the lack of negotiation of platform rules is easy to produce procedural fog disputes.The governance of online platform disputes should follow the principles of balance between rights and order,unity and distinction,modesty and initiative.To this end,the management of online platform disputes needs to improve the management rules of online platform,clarify the way of responsibility of online platform,and improve the control mechanism of online platform.
The subjective knowledge content,degree of awareness,and evidence rules pertaining to drug-related crimes constitute the central issues of judicial determination.The Minutes of Kunming Symposium not only specify concrete requirements for the element of knowledge in typical criminal behaviors but also establish specific rules for proving such knowledge,which reflects the implementation of the concept of integrated criminal law,alignment with academic theories and practical controversies,and adaptation to changes in criminal policy and circumstances.The subjective knowledge of drug-related crimes can focus on three categories:the object of the crime,specific facts,and joint criminality,each of which demonstrates varying degrees of understanding regarding the nature of the act,its consequences,and causal relationships.The level of subjective knowledge in drug-related crimes should differentiate between Knowing the inevitability and Knowing the possibility,distinct from should know,might know,and presumed to know.The proof of subjective knowledge of drug-related crimes should prioritize the mutual corroboration of indirect evidence,emphasize the comprehensive analysis of evidence in the case,and make the reasonable use of presumptive rules based on statutory foundational facts the core.
With the development of civil litigation,the main body of case handling has evolved from a single judge to multiple subjects including clerks,mediators,judge assistants,quota judges,and layman judge.The case handling procedures have also diversified from a single court trial to various procedures such as case filing mediation,pre-litigation mediation,pre-trial procedures,trial procedures,and post-judgment Q&A.The abundance of human resources and the improvement of civil procedures provide resources and soil for innovating the mode of civil litigation case handling.Based on a thorough review and summary of the gradual enrichment of judicial resources,this paper applies the principle of isomorphism to change the existing management and resource allocation mode,explores"case-centered"resource allocation,emphasizing the independent dispute resolution advantages of various subjects through segmented empowerment and refined responsibilities,strengthening the synergistic effects of various procedures,achieving layer-by-layer filtering and echelon resolution of cases as the procedures progress,and achieving the goal of improving the quality and efficiency of trial work.
The first paragraph of Article 13 of Chinese Personal Information Protection Law establishes the legal basis for personal information processing,with the normative purpose of balancing the diverse values and interests centered on informational self-determination,and is closely related to the three principles of"legitimacy,fairness and necessity",other legal basis provisions,and legal liability provisions.Compared to the simple classification of consent of the information subject and legal basis other than the consent,a more appropriate classification is to distinguish between autonomy based legal basis,reference clause based legal basis,and balancing interests based legal basis.Based on this and taking into account the differences between the private and public law,not only can the various legal basis listed in this paragraph be systematically sorted out,but also the provisions can be interpreted and complemented beyond the wording.From this,it is possible to define the application scope and main scenarios of different legal basis such as the consent of the information subject,the necessary rules for fulfilling contracts,the necessary rules for entering into contracts,the necessary rules for legal responsibilities,the necessary rules for legal obligations,and the rules for legitimate interests,so as to implement the value concept of information self-determination.
Since it was explicitly stipulated by Civil Procedural Law in 2007,the measure of publicizing non-performance information through the media has played an important role in forcing the person subject to enforcement to fulfill their obligations.However,there are still some deviations in the concept and operation of the application of this measure.At the time of the implementation of separate legislation on civil enforcement in our country,clarifying the basic attribute and function of the measure is the basis of perfecting the measure and building a more reasonable norm through legislation.The current judicial interpretation of the measures to publish the list information of persons subject to enforcement for breach of trust has narrowed the scope of application of the information of non-performance through the media stipulated in the Civil Procedural Law,and deviated from the functional positioning of the measures.The basic attribute of the measures to publicize the information of non-performance of obligations through the media should be the implementation safeguard measures,and the basic function orientation should be the implementation of deterrence rather than the enforcement measures or sanctions that hinder the implementation.The civil enforcement legislation should return to the concept of releasing information of non-performance of obligations through the media,position its function as enforcement deterrent and enforcement guarantee,and design the procedure specification of advance warning of such measures and improve the relief mechanism.
The validity of a legal assignment of a claim established by a legal instrument in force is related to whether the people's court will support the application of a third party to change or add him or her as the applicant for execution.The determination of the validity of a legal assignment of a claim established by a legal instrument in force shall be confirmed by a review procedure.The people's court may support the third party's application to change or add him or her as the applicant for execution only if the form and cause for the assignment of the claim as determined by the legal instrument in force are lawful and valid.
When the court executes the equity registered in the execution debtor's name on the basis of monetary debt,it has become a common practice for dormant shareholders to file lawsuits against executive objection due to proxy ownership of the equity.Thus,the courts often rely on measuring the conflicting interests between dormant shareholders and executing creditors when they adjudicate such cases,incorporating subjective value judgments such as commercial externalism and reliance interests,which leads to different judgment results.In order to achieve judicial unity,it is necessary to return to the institutional logical basis of the system of executive objection lawsuit filed by outsiders under the framework of legal dogmatics,to judge whether the equity registered in the name of the executing debtor is an enforceable liability property,and to form a judgment thoughts under the norms of civil procedure law.Therefore,it should be clarified that the basis of court decisions is the ownership of property rights in the relationship of equity proxy holding,rather than the ownership of equity itself.When a dormant shareholder files a lawsuit to confirm his rights due to objection from the executing debtor,the court should merge the lawsuit filed by the dormant shareholder against executing debtor and the declaratory action.
Stocks have become an important object of civil execution for people's courts at present.Due to its unique nature compared to other properties,coupled with inconsistent legal application rules,it brings confusion to enforcement practices,resulting in varying practices in different regions.The Enforcement Bureau of the Supreme People's Court is currently formulating specialized judicial interpretations.The practical department is particularly concerned about this issue.On the basis of reviewing and analyzing relevant judicial interpretations,normative documents,and practical explorations in various regions,this article proposes specific institutional construction from the perspective of necessity,including disposal methods,disposal rules,etc.,in order to provide corresponding references for the judicial interpretations being formulated.
There are differences between the trial supervision procedure and the first and second instance procedures,the differences between the procedures cannot be ignored.However,it is a common phenomenon in judicial practice to confuse the trial supervision procedure with the first and second instance procedures.Once a judgment or ruling is made in the trial supervision procedure conducted in accordance with the second instance procedure,the entire case should be in a"final"state,and there should be no issue of instructing the lower level people's court to try again in accordance with the first instance procedure.In this regard,the provisions of Article 472(4)of the Interpretation of the Criminal Procedure Law of the Supreme People's Court regarding the revocation of the original judgment or remand of cases with unclear facts and insufficient evidence pose a legal dilemma.This judicial interpretation has caused confusion about the relationship between the first instance procedure and the trial supervision procedure applicable to the retrial,and has also caused practical difficulties in the lack of execution basis for prisoners who are currently serving sentences.It is worth affirming that the procedural value of this judicial interpretation is to provide the sentenced person with an opportunity to appeal against retrial and sentencing that is not conducive to them.However,this opportunity for appeal can be achieved not only by sending back for retrial,but also by reforming the trial supervision procedures.There are two options to choose from.One is to add the system of revoking the original judgment and restoring the first instance in the legal provisions of the trial supervision procedure,which can be limited to situations that are unfavorable to the defendant for retrial;The second is to establish a special appeal procedure as a component of the trial supervision procedure in response to situations such as retrial that are not conducive to the defendant,thereby enhancing the independence of the trial supervision procedure.
Article 10 of the Judicial Interpretation of Insurance Law(2)provides that the insurer is substantially exempted from the obligation of explanation.The exemption clauses based on the prohibited conduct provided by laws and administrative regulations as the excuses for exemption can be divided into strong correlation,weak correlation,irrelevance and negative correlation in accordance with the degree of correlation between normative risks and insurable risks in the prohibition provisions.The scope and extent of the insurer's explanation obligation should be determined based on the relationship between the normative risk and the insurable risk stipulated in the prohibitive provisions,and on this basis,judicial countermeasures such as fulfilling the obligation of explanation,reducing the insurer's explanation obligation,exempting the insurer from explaining the obligation,and determining that the exemption clause is invalid.
The Summary of the National Court Work Conference on Drug Cases(The Minutes of Kunming Symposium)systematically summarizes,develops and improves the provisions of the previous one,implements the criminal policy of combining leniency and severity,reflects the practice-oriented and problem-oriented approach,emphasizes the key points of crackdown,and values the effect of crackdown.The identification of drug purchasing for others should deal with its relationship with drug trafficking,avoiding the improper expansion of drug trafficking crime,and preventing criminals from escaping punishment.It is necessary to pay attention to the boundaries between narcotic drugs,medicines and drugs,and ensure the accuracy of identification.The application of the death penalty for drug crimes should pay attention to the differences in the characteristics,nature and circumstances of the actors,and decide the application strictly and prudently.The Minutes denies the legality of intentional inducement,and pays attention to the meaning of"people without intention"in the investigation of hidden identity.Minors should not constitute recidivism of drug crimes.It is necessary to understand the meaning of strictly punishing drug crimes according to law scientifically and comprehensively,and ensure the proper application of The Minutes.
There is a functional order between legislation and judicature,and judicature is not the application of"reading from the book"of legislation,but there is a certain space for active judiciary.Active judiciary aims to correct the crisis of legalism,which is the embodiment of the high-quality development of criminal justice in the new era,and is conducive to the formation of a functional order between legislation and justice.There is no contradiction between active judiciary and the scientificity of criminal law legislation.Following the principle of scientific legislation does not mean the negation of active judiciary.Active judiciary needs to advocate and develop functional interpretation of criminal law to avoid the conclusion of"legal but unreasonable"interpretation,which not only needs to pay attention to the crime function of the protection law interests of individual crimes and emphasize the crime caused by the lack of protection law interests or the restoration of legal interests,but also needs to take criminal policy as the source of value judgment of criminal law interpretation and strengthen the investigation of the consequences of criminal law interpretation and open up institutional space for legal discussion.At the same time,subject to the principle of legality of crime,functional interpretation of criminal law needs to establish an interpretation rule that"can only break the range of criminal law's text in the sense of crime and minor crime,and cannot exceed the range of criminal law's text in the sense of crime and felony",making a reasonable distinction between expanded interpretation and analogical application,and strengthening the review of the constitutionality of judicial interpretation.
To promote the modernization of civil and commercial trials,it is imperative to enhance political awareness.Civil and commercial trial efforts should prioritize the theme of"justice and efficiency",emphasizing the amalgamation of substantive and procedural justice.It is crucial to overcome the inclination towards prioritizing"procedure-only"approaches and avoid the neglect of procedural independence's value.Effective utilization of litigation systems such as the burden of proof,the right of interpretation,and joint hearings is essential.The construction of judicial integrity must be emphasized.We need to improve the institutional mechanisms of"promoting justice and efficiency"for appraisal,supervision and management.It also needs to deepen and substantiate the concept of active judiciary,utilize the functions of judicial advice,judicial interpretation,policy and guiding and typical cases,thus actively integrating into national and social governance through the"governance of the source of the lawsuit".To Achieve the organic unity of the"three effects",focusing on handling cases in strict accordance with the law,and pursuing legal effects as the basis for attaining the organic fusion of heavenly justice,national law and human feelings,so that the results of adjudication truly conform to the people's simple concept of fairness and justice.Adhering to a systemic approach is necessary.We need to improve the application of the law and comprehensively utilize legal interpretation methods for accurate contract evaluation.This includes managing the interaction between the Civil Code and specialized commercial laws,outdated and current laws,and judicial interpretations,thereby ensuring precise application of the law without compromising the parties'anticipated benefits.
In the process of enforcement of pecuniary claims,the enforcement court generally adopts the rules of formal judgement in the investigation and control of the responsible property of the executor.Equity,as a kind of intangible property,has a variety of right appearance according to the company law.The judicial interpretation of the Supreme Court on the execution of equity accordingly adopts diversified judgement criteria.On the one hand,it enlarges the scope of the equity that can be frozen,which is helpful to enhance the efficiency of the execution and is in line with the principle of the separation of the trial and execution and the provisions of the substantive law.On the other hand,it provides the relief to the actual equity holders through the objections of the outsiders and the claims of objections to balance the interests of all parties.In judging whether the execution can be excluded,it is necessary to combine the criteria for determining the ownership of equity shares stipulated in the company law and other substantive laws,and take into account the respective scope of effectiveness of the company's internal and external registrations,the applicant's reasonable reliance on the interests of the executor,and other factors,to carry out a typological analysis and discretion.
粤港澳大湾区的融合发展,促使了澳门特别行政区出台经济适度多元化政策,而仲裁作为一种独特的替代性争议解决方式在此过程中扮演着重要的角色.澳门特别行政区政府为促进澳门特别行政区仲裁业的发展,出台了一系列政策及重新修订澳门特别行政区《仲裁法》.但仲裁协议扩张的效力问题仍未得到明晰,仲裁协议是否约束未曾签署该协议的人或未明示纳入其中的法律关系需要进一步针对具体法律语境进行探讨.为此本文针对澳门特别行政区法律规定的若干典范及非传统的关联合同中有关仲裁协议移转或延伸等问题进行分析.
《最高人民法院、最高人民检察院、公安部关于依法惩治网络暴力违法犯罪的指导意见》依照刑法、刑事诉讼法及有关法律、司法解释的规定,结合执法、司法实践,对网络暴力违法犯罪案件的法律适用和政策把握问题作了全面的规定.该规范性文件共 20 条,涵括罪名适用规则、处罚界限、追诉程序、民事维权、诉源治理等内容,特别是对网络侮辱、诽谤的公诉标准、自诉转公诉程序等作了细化明确.本文对该规范性文件的制定背景、起草中的主要考虑和重点内容作了介绍.
企业知识产权刑事案件具有采用双罚制、定罪率和认罪认罚比例高的特征,其适用企业合规制度具有法律依据和制度基础.为应对由检察机关主导的企业合规第三方监督评估机制所面临的实践问题,促进司法机关与检察机关协同推进涉案企业合规改革,由人民法院对于企业适用合规制度的条件、合规整改的有效性等方面进行司法审查,是实现企业合规长效治理、以能动司法持续监督涉案企业知识产权合规制度公平合理运行的可行路径.本文结合域外立法、国内外制度建设及司法实践经验,建议将相称性原则审查纳入企业知识产权刑事合规的司法审查范围,参考企业知识产权合规管理标准,确保企业知识产权刑事合规制度符合公平性、合理性和公共利益.
本应显名的实际出资人如不能显名,不仅损害实际出资人的合法权益,也有损公司治理.《九民会纪要》第 28 条对《公司法解释(三)》第 24 条关于实际出资人显名需经其他股东半数以上同意的规定进行了解释,将明示同意扩大到默示同意,即对实际出资人行使股东权利未提出异议.审判实践中对何为"未提出异议"有不同认识.在现有法律框架内,本文认为,对实际出资人行使股东权利提出异议,是指对其在公司经营中行使法定股东权利而言,仅是反对其显名的要求或者不承认其股东身份,不构成提出异议.另,现有显名的程序性要件规定过于刚性,在公司法修订草案取消股权对外转让中其他股东同意的背景下,本文建议对此予以柔化,仅作原则性规定,同时明确四种情形不再要求程序性要件.
