Chinese Courts Research Articles

The PICC in Chinese Courts

Abstract This article offers, for the first time, a comprehensive survey of all accessible (28) Chinese cases in which Chinese judges or lawyers invoked the Unidroit Principles of International Commercial Contracts (PICC) as applicable law or otherwise made a reference to the PICC. The survey has a particular focus on the use of the PICC to interpret or supplement domestic law, which is widely assumed to have no direct impact on the decisions of local courts. Through a detailed analysis that explores the often-times subtle connection between the PICC and judicial reasoning in Chinese courtrooms, the survey rebuts the ‘no direct impact’ thesis and demonstrates and expounds a range of significant roles the PICC may play in this respect. In doing so, this article also illustrates the case-guiding effect of previously little-known case comments—the dominant vehicle by which Chinese judges presently make the above use of the PICC.

For the Record: Chinese Investiture Missions to Ryūkyū, 1404–1866

Abstract Every time a Ryūkyū king came to the throne from the fifteenth to nineteenth centuries, a mission was sent from the Chinese court in Beijing to Fuzhou, then via investiture ships from Fuzhou to Naha and finally by land to the royal capital of Shuri, Ryūkyū, to officially acknowledge the new king. From 1404 to 1866 there were a total of twentythree such official missions celebrating the new kings. Each appointed Chinese envoy kept an official record of the entire journey. During the Ming dynasty they took the form of published woodblock-printed books known as Record of a Ryūkyū Mission (Shi Liuqiu lu). During the Qing dynasty a second manuscript format, consisting of a commemorative album containing sets of paintings, also appeared. Both formats, books and albums, are historical records enhancing our understanding of how a part of the wider China Seas maritime trading systems functioned at that time.

When International Commercial Arbitration meets China’s sanction laws: living together but remaining apart?

Abstract In the light of China’s newly installed sanction laws recently being considered by Chinese court in a judicial review procedure for an arbitral award, this article examines two aspects of these laws that have been largely overlooked by previous research: their private international law nature and the impact they have on the enforcement of foreign arbitral awards. In their function, the Chinese sanction laws should neither fulfil the role of rules established to utilize private persons to implement Chinese state policy, nor, in their application, contradict China’s claimed role in the international legal and political framework. Accordingly, two routes are offered as to how these laws should be applied: first, the legal restrains on private enforcement of the sanction laws should be made available; and secondly, China should ensure that its sanction laws do not compromise the New York Convention’s remit.

Research on Archaeology and Digital Restoration of Costumes in Spring Outing Painting of Madam Guo

Spring Outing Painting of Madam Guo is one of the representative works of Zhang Xuan, a famous Chinese court painter of the Tang dynasty (618–907), who was the “leader” of the trend of figure painting in the Tang dynasty and had a great influence on later figure painting. The costumes of the characters in the paintings not only show the artistic aesthetics of the prosperous Tang dynasty, but also reflect the rich cultural connotation. At present, the research on this painting is mainly about character discrimination and painting appreciation. There are few studies involving the costumes in this painting. With the rapid development of digital clothing technology, it provides a new way and path for the restoration of ancient costumes. Based on the costume archaeology of Spring Outing Painting of Madam Guo, this paper uses 3D virtual simulation and reverse engineering technology to restore the costume style of the characters in the picture, realize the digital restoration and protection of the style drawing, paper pattern, and 3D simulation drawing of the characters’ costumes in the picture. Finally, we introduce the fuzzy analytic hierarchy process (FAHP) to comprehensively evaluate the costume restoration effect. Our proposed method solves the problem of the constraints of time and space on the presentation of ancient traditional costumes, promotes the excellent historical culture of China, and provides a certain reference for the modern redesign of ancient costumes.

Special Sacrifice and Determination of Compensation Standard for Land Expropriation in the Urbanization Process—A Perspective of Legal Practice

In the current context of rapid global urbanization, China’s urbanization is also accelerating, and the rational planning and sustainable use of state land and space have become a growing concern. The expansion of urban geographic space is inevitably accompanied by the massive expropriation of rural land. The research objective of this article is to explore, from a jurisprudence perspective, under what circumstances land expropriation in urbanization has caused special sacrifices to farmers and what compensation standards have been determined by the Chinese courts after the special sacrifices have been caused. To achieve this research objective, the authors first identified the causal relation between the expansion of urbanization and conflicts over land expropriation in China through the empirical analysis method, and found that the expansion of urban geographic space has led to an increase in conflicts over land expropriation and that the land expropriation compensation system is the key to alleviating such conflicts. Secondly, by interpreting and summarizing the compensation standards for land expropriation in China’s legislation texts and judicial judgments through normative analysis, this article finds that the compensation standards for land expropriation currently adopted by the people’s courts of China are pluralistic and conflict with those in the legislation text. This article concludes that if land expropriation in urbanization leads to an infringement of civil liberties which results in a special sacrifice of citizens, such special sacrifice should be justly compensated. To effectively mitigate the conflicts concerning land expropriation in the urbanization process, China should build a unified compensation standard for land expropriation under the guidance of legislative text in the future, achieve a reconciliation between the doctrinal and practical compensation standards for land expropriation, and support the rule of law to guarantee the sustainable development of urbanization.

Legislative and judicial responses to workplace sexual harassment in mainland China: Progress and drawbacks.

BackgroundChina has recently upgraded its anti-sexual harassment laws and regulations. The first-ever Chinese Civil Code, which took effect in 2021, has explicitly defined sexual harassment and imposed affirmative duties on employers to prevent and correct work-related sexual harassment. This study aims to map the status quo of China's anti-sexual harassment legal system and explore its progress and limits in dealing with workplace sexual harassment.MethodsWe reviewed China's anti-sexual harassment laws at the national, provincial, and municipal levels and observed how they were enforced in courts. All judicial cases of workplace sexual harassment published by Chinese courts between January 2021 and June 2022 were examined. From a comparative law perspective, we then identified the progress and drawbacks of China's legislative and judicial responses to workplace sexual harassment.ResultsChina's current anti-sexual harassment legal system, while have made commendable progress, has its drawbacks: the definition of sexual harassment remains to be clarified and expanded to make it clear that sexual harassment is a form of gender discrimination and can include hostile environment harassment that is not directed against a specific person; the employer's obligations to prevent and correct sexual harassment need further delineation; employers lack guidelines for establishing a fair and effective grievance procedure; the difficulty of proving sexual harassment in litigation remains unsolved; the employer liability doctrine for sexual harassment lacks clarity; workers not in a traditional employment relationship receive inadequate legal protection from work-related sexual harassment.ConclusionsThe issues mentioned above merit consideration in China's future law revisions and judicial practice. In China and other societies where gender inequality remains high, it is recommended to regulate sexual harassment as a form of discrimination and to set clear compliance standards for employers in preventing and correcting sexual harassment.

Chronology of Practice: Chinese Practice in Public International Law in 2020

Abstract This Survey covers materials reflecting Chinese practice in 2020 relating to: treaties, agreements and other documents signed or ratified by the People’s Republic of China; national legislation; statements made by Chinese representatives at the meetings of the UN and other international organizations, international conferences, and those made by the Foreign Ministry spokespersons, with respect to various branches of international law; and judicial decisions, in particular on the applicability and application of international conventions, by Chinese courts.

The Qianlong Emperor's order: scientific analysis helps find French painted enamel among Palace Museum collections

Painted enamel holds special significance in the study of the history of Chinese ceramic and glass. Painted enamel also represents interesting evidence of cultural communication between China and European countries. In the past, studies on painted enamel have mainly focused on archival research. Although modern scientific techniques have complemented research on enameled artifacts, the quality of the samples has usually been inferior. This study combines scientific analysis and archival work to explore four similar pots from the Palace Museum collection, along with the specific documentation information attached to them. Raman spectra, XRF and CT scanning were applied to compare the four pots. Results show that one of the pots is made of gold and use cassiterite and Naples yellow as opacifier and pigments, this pot bears the hidden hallmarks of a Parisian goldsmith, providing direct evidence that the pot was made in France in 1783. The other pots are proven to have been made in China, which are made of copper gilded with gold and use lead arsenate and lead tin yellow as opacifier and pigments. This work reveals a previously unnoticed route by which enamel artifacts reached the Chinese court.

Interpreting “Settled Abroad” in China’s Nationality Law: Theory, Practice, and Problems

The globalization of China and active international migration across Chinese borders involving millions of people have made understanding Chinese nationality law an issue of tremendous importance. In recent years, disputes concerning nationality have arisen out of undefined terms in the Nationality Law. At the center is the term “settled abroad,” which impacts the nationality of those who acquire foreign nationality and children born to overseas Chinese citizens. The limited literature and legislative interpretations do not clearly define the term. A thorough analysis shows that “settled abroad” means permanent or long-term residency and generally does not scrutinize the length of the actual residence period except for a complete absence of actual residence or undocumented migration. This Note further examines all publicly available cases disputing nationality in the past seven years to understand the judicial practice. It turns out Chinese courts also refrain from inquiring about the actual residence period in non-criminal cases. In recent years, the sensitive nature of the issue and the discoordination among authorities have prevented amendment or interpretation of the nationality law. This Note makes two key contributions to the literature. First, it provides a much-needed interpretation of the key provisions in Nationality Law that have profound implications for millions of people. In contrast to prior literature, which often lacks sufficient comparison and analysis, this Note addresses all prior discussions in a comprehensive way. Second, it is the first work that applies empirical methods to examine how Chinese courts apply the Nationality Law. Finally, this Note also offers several explanations for the stagnant amendment of the Nationality Law from a policy angle.

Lessons for International Small and Medium-Sized Enterprises from Counterfeiting Civil Litigations in China

AbstractThis study aims to assess the effect of the 2013 trademark law revision (2013 law revision) on judicial remedies in China. The 2013 law revision increased the remedies Chinese courts can grant to plaintiffs, including small and medium enterprise (SME) plaintiffs, thus leading to higher remedies granted to plaintiffs compared to the past years in prevailing cases. This study finds that right after the law revision, the average amount of judicial remedies granted to plaintiffs increased temporarily. Meanwhile, the detailed judicial reasonings, foreign plaintiffs, and company defendants have stronger positive effects than product types and the year of decisions on the amount of monetary relief. These findings suggest that certain factors in cases may increase the remedies in trademark civil litigation. Therefore, SME plaintiffs should pay attention to core factors for litigation strategies, including preliminary injunctions, choice of defendant, choice of venue, and evidence in remedy collection.

Legal determination of surrogate child parenthood in China.

Commercial surrogacy is neither prohibited nor approved in China. As the underground surrogacy market keeps expanding fast, the disputes over parenthood of surrogate child occur more and more frequently. Since there are no specific rules for surrogacy, Chinese courts have to make legal determination by applying current laws. This article firstly analyses the contradictions of existing laws and regulations on natural parenthood when apply them in the cases of surrogacy. In China, since the natural parenthood is built on reproductive connections between parents and child, this article provides a typology of surrogacy in terms of the reproductive role each party has played. By combining it with the case study, the judicial views on different issues are presented. This article further discusses the inadequacies of current legal determination of parenthood, ethical controversies in surrogacy and recommends some suggestions on regulating the surrogacy and protecting the rights and interests of women and children.

Foundations and Applications of Information Systems Dynamics

Although numerous advances have been made in information technology in the past decades, there is still a lack of progress in information systems dynamics (ISD), owing to the lack of a mathematical foundation needed to describe information and the lack of an analytical framework to evaluate information systems. The value of ISD lies in its ability to guide the design, development, application, and evaluation of large-scale information system-of-systems (SoSs), just as mechanical dynamics theories guide mechanical systems engineering. This paper reports on a breakthrough in these fundamental challenges by proposing a framework for information space, improving a mathematical theory for information measurement, and proposing a dynamic configuration model for information systems. In this way, it establishes a basic theoretical framework for ISD. The proposed theoretical methodologies have been successfully applied and verified in the Smart Court SoSs Engineering Project of China and have achieved significant improvements in the quality and efficiency of Chinese court informatization. The proposed ISD provides an innovative paradigm for the analysis, design, development, and evaluation of large-scale complex information systems, such as electronic government and smart cities.

Finding equity without the law of equity: asset management, fiduciary duty and financial consumer protection in China

ABSTRACT Asset or wealth management is a booming business in Mainland China. In a civil law system, how do Chinese law and Chinese courts deal with disputes arising out of an asset management relationship, in the absence of the branch of law of equity and trusts? The Chinese lawmakers, regulatory bodies, judges and asset management institutions are faced with challenging legal issues. Who is the owner of the assets under management? What is the nature of the relationship between the investor and the asset manager? Is an investor of an asset management product a consumer? This paper investigates the developments, the current position and the possible future of the law and practice concerning the legal issues that may arise out of the investor-manager relationship in the asset management businesses in Mainland China. The paper would also shed light on how Chinese law and courts deal with issues that would call for the intervention of the principles of equity and trusts in common law jurisdictions.

중국 저작권법상 저작권자의 기타 권리에 대한 고찰

The Chinese Copyright Law has an “Other rights which shall be enjoyed by the copyright owners(hereinafter referred to as OR)” in Article 10, No. 17. This clauses enacted in 2001. “OR” was enacted because the Chinese copyright law does not have sufficient economic rights for copyright owner, making it difficult for Chinese courts to judge the use of new works. Actually, The Chinese Court found that “real-time transmission of broadcasting programs, sports broadcasting, and gameplay screens”, “the use of typeface”, “the sale of copyright infringement products” and the other uses. But some decision are not clear on the legal basis for subject to “OR”. There is no definition in Chinese Copyright Law that explains the scope of “OR”. There is only an interpretation of the legislature that it does not include the “Artist’s Resale Right”. “OR” served as the legal basis for implementing international treaties joined by China and supplemented the structural defects of Chinese copyright law. Nonetheless, there is no clear interpretation and application standards. So, The judges create new right in the process of judical judgment, but they can not know how far the limit is. The third revision of Chinese Copyright Law amended for the fair use clauses, so new use of works can included in fair use through court judgment. As a result, it became difficult to distinguish between fair use and copyright infringement. Therefore, when using works in China, we should be careful not to infringe on copyright against our intentions. Korean copyright owners who export works to China must specify the specific scope of ‘OR’ in the contract. Otherwise, there is a problem that the other party’s range of use is randomly expanded. In addition, care should be taken to prevent unnecessary disputes due to differences in the interpretation of ‘OR’.

China-Korea Recognition and Enforcement of Judgments: From the Perspective of Reciprocity

Both China and Korea have provided for reciprocal enforcement of foreign judgments in their civil procedure law respectively, and in practice, a Korean court first recognized a Chinese judgment in 1999, a Chinese court first affirmed the existence of reciprocity in 2019 after twice refusal based on lack of reciprocity. Given the current situation, there are still inconsistencies in the operation of reciprocal standards between the two countries, which may lead to uncertainties for mutual recognition and enforcement. This Article provides an overview of mutual recognition and enforcement between the two countries and analyzes the similarities and differences in rules and practices, aiming to explore a set of feasible paths for promoting the smooth circulation of judgments between China and Korea.

Ban of Cryptocurrencies in China and Judicial Practice of Chinese Courts

Ban of Cryptocurrencies in China and Judicial Practice of Chinese Courts

Chinese court rules on NFT transactions and responsibility of trading platforms

Abstract The Hangzhou Internet Court decided that an NFT transaction is covered by the right of communication through information networks and that NFT trading platforms shall bear a higher duty of care.

Environmental Policy and Compensation in China: An Empirical Analysis of Article Eight of the Chinese Administrative License Law

Abstract In the past few years, China has implemented environmental policies that negatively affected the property interests of numerous private enterprises. This article offers the first systematic analysis of how China compensates enterprises for losses caused by the implementation of environmental laws and policies. It generates descriptive statistics on the characteristics of the compensation cases and finds that in a majority of the cases, the court allowed the government to set compensation below the value of the enterprise’s investment. Statistics also show that China offers weaker protection for private enterprises against newly adopted environmental policies compared to other types of rules or policies, allowing the government to close highly polluting enterprises with relatively low compensation. This article then offers an explanation of the courts’ approach and considers whether Chinese courts achieve an appropriate balance between property protection and policy flexibility.

Chinese Courts’ New Plea Leniency System: Scrutinizing the Efficacy of Mandatory Defense Counsel

Chinese Courts’ New Plea Leniency System: Scrutinizing the Efficacy of Mandatory Defense Counsel

The Last Remaining Jesuit in China after Suppression in Europe

This paper will attempt to show the Jesuits’ situation in China and Russia through Fr Louis de Poirot (1735–1813 賀清泰)’s life. He was the last remaining Jesuit in China (the new Jesuits returned to mainland China on 11 June 1842), and was a link between the Old Jesuits and New Jesuits.The first section will introduce his life in the Chinese court. He was the last of the Western painters who worked for Qianlong along with Father Giuseppe Panzi. The two painters replaced the more famous fathers Giuseppe Castiglione and Jean-Denis Attiret. He was also in charge of the translation between Latin and Manchu for the diplomatic correspondence between Pekin and Saint Petersburg. He was the first to translate most of the Bible into Chinese and Manchu. The paper will show the attitude of Chinese Emperor and other official’s attitude to the suppression, Did they even care about the suppression of the Jesuits? What’s of any concern to them? The second section will present a precious letter received from Father General Brzozowski written on Sept. 25, 1806 with the help of the Russian ecclesiastical mission. Father General Brzozowski asked whether Fr Louis de Poirot had received Gruber’s permission to rejoin the Society and to enquire about the situation of the other fathers in China and the Chinese church. He also mentioned their attemption to enter China and the Jesuits’ situation all over the world.