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.
