Chinese Law Research Articles

The Lesser of Two Evils? Explaining Chinese Rural Migrant Workers’ Preference for On-demand Food Delivery Work With Reference to the Legal Framework

Drawing on a series of interviews with on-demand food delivery riders, who are rural migrant workers, this paper seeks to explain the workers’ decision to give up stable jobs in factories in favour of largely unregulated and precarious on-demand work. Focusing on those aspects of the legal framework which shape workers’ decisions, it presents the explanation under the dual banners of ‘income’ and ‘freedom and flexibility’. In terms of income, Chinese law often enables low factory wages and a reliance on overtime; migrant workers view social insurance contributions as a loss; issues with payroll and wage arrears are significant. In terms of freedom and flexibility, insufficient rest rights lead to inadequate breaks for assembly line workers and, compounded by unspecified ‘special working time’ permit physically unbearable shifts without extra compensation. Age and gender discrimination are prevalent both in factories and various sectors. In contrast, on-demand delivery work has relatively low barriers to entry.

Adaptation and Validation of Learned Helplessness Scale in Chinese Law School Students.

This study aims to translate and validate the Learned Helplessness Scale (LHS) for use in the educational context and specifically among Chinese law school students. Understanding learned helplessness in the context of Chinese law students can provide unique insights into the interaction of legal education, psychological health, and cultural influences, thereby contributing to a more nuanced understanding of learned helplessness. A total of 711 Chinese college students from two law schools participated in this study. The Learned Helplessness Scale (LHS) was translated into Chinese using forward and backward translation. Exploratory and confirmatory factor analysis, and construct validity were conducted to assess the dimensionality of the Chinese version of the LHS (Chinese LHS). The exploratory factor analysis indicated that the Chinese LHS has a four-factor structure consisting of 14 items, which accounted for 50% of the total variance. The subsequent confirmatory factor analysis further supported this four-factor structure. The internal consistency of the Chinese LHS was found to be medium to high, with Cronbach's α values ranging from 0.63 to 0.87 for the subfactors, and 0.79 for the total scale. In addition, concurrent validity is also confirmed. The 14-item version of the Chinese LHS is a psychometric sound instrument for assessing learned helplessness among Chinese law school students.

Third-Party and Bankruptcy Effects under Chinese Trust Law: Comparisons with English Trust Law

Abstract In English law, the trust's third-party and bankruptcy effects contribute significantly to its wide use in commercial transactions. In view of the trust's attractiveness in conducting commercial dealings, China has also introduced the trust model into its domestic legal system to enhance its financial infrastructure. However, given the extent to which Chinese law has been influenced by the Roman-Germanic tradition, China's replication of the trust's third-party and bankruptcy effects has encountered doctrinal obstacles. Drawing upon the experience of its Northeast Asian forerunners, China has established two mechanisms to achieve the third-party and bankruptcy effects: the regime of trust fund independence and the granting of the right of rescission to beneficiaries. These two mechanisms represent the adjustments made by Chinese legislators in the process of transplanting the trust model into the Chinese legal context. Adopting a comparative law perspective, this article examines these mechanisms in the Chinese law setting for two reasons: first, to explore the mechanisms’ constituent elements and their operation, as well as the roles of both mechanisms in the Chinese trust law system; and second, to furnish comparative law scholarship with broader insights into rule transplantation and reconciliation.

Artificial intelligence in judicial adjudication: Semantic biasness classification and identification in legal judgement (SBCILJ)

History reveals that human societies have suffered in terms of social justice due to cognitive bias. Semantic bias tends to amplify cognitive bias. Therefore, the presence of cognitive biases in extensive historical data can potentially result in unethical and allegedly inhumane predictions since AI systems are trained on this data. The innovation of artificial intelligence and its rapid integration across disciplines has prompted questions regarding the subjectivity of the technology. Current research focuses the semantic bias in legal judgment to increase the legitimacy of training data. By the application of general-purpose Artificial Intelligence (AI) algorithms, we classify and detect the semantics bias that is present in the Chinese Artificial Intelligence and Law (CAIL) dataset. Our findings demonstrate that AI models acquire superior prediction power in the CAIL dataset, which is comprised of hundreds of cases, compared to a structured professional risk assessment tool. To assist legal practitioners during this process, innovative approaches that are based on AI may be implemented inside the legal arena. To accomplish this objective, we suggested a classification model for semantic bias that is related to the classification and identification of semantic biases in legal judgment. Our proposed model legal field uses the example of categorization along with the identification of the CAIL dataset. This will be accomplished by identifying the semantics biases in judicial decisions. We used different types of classifiers such as the Support Vector Machine (SVM), Naïve-Bayes (NB), Multi-Layer Perceptron (MLP), and the K-Nearest Neighbour (KNN) to come across the preferred results. SVM got 96.90 %, NB has 88.80 %, MLP has 86.75 % and KNN achieved 85.66 % accuracy whereas SVM achieved greater accuracy as compared to other models. Additionally, we demonstrate that we were able to get a relatively high classification performance when predicting outcomes based just on the semantic bias categorization in judicial judgments that determine the outcome of the case.

Navigating Legal Responsibilities in Chinese Private Equity Investments: A Comprehensive Study on Human Resource Management Practices

Human Resource Management (HRM) plays a pivotal role in the success and sustainability of ventures, particularly within the complex domain of Chinese private equity investments. This study delves into the multifaceted legal responsibilities inherent in HRM practices within this context, aiming to provide comprehensive insights essential for effective organizational management and compliance. Drawing upon specific Chinese laws, empirical data, and relevant citations, the study scrutinizes crucial areas such as employment law compliance, corporate governance obligations, adherence to industry-specific regulations, and compliance with international labor standards. Through a detailed examination of key legal obligations and regulatory frameworks, the research illuminates the challenges faced by human resource professionals and private equity firms in China, offering valuable insights for practitioners and organizational leaders alike. By emphasizing proactive compliance initiatives and the significance of ethical labor practices, this study contributes to the cultivation of a regulatory-aware and ethically conscious environment conducive to organizational success in the dynamic landscape of Chinese private equity investments.

China’s Due Diligence Legislation for Environmental Governance on Transnational Corporations: History and Future

Environmental governance of transnational corporations is a global challenge. On one hand, these corporations can contribute to environmental protection through ecofriendly technologies and equipment. On the other hand, their activities can lead to environmental degradation and pollution. This article explores China’s due diligence legislation for environmental governance, including historical perspectives and future prospects. Chinese administrative law, relevant regulations, and the guidelines issued by Chinese trade associations are included.

Jury System and Democracy: A Reflection Based on Comparison Method

The jury system is one of the most concerned litigation systems in the world. The jury that symbolizes democracy is declining in the common law system. Likewise, the Chinese law circle holds different viewpoints on China’s existing people’s assessor system. The judicial effectiveness of the Anglo-American jury was analyzed, and the relationship between the Anglo-American jury system and judicial democracy was examined in this paper. Moreover, an insight into the existence or abolishment of the people’s assessor system was offered based on its status quo. On this basis, some suggestions were given regarding realizing judicial democracy for China’s existing judicial system without impairing judicial specialization.

Exploration of Making the Mediation in Advance System in Article 125 of Chinese Civil Procedure Law Mandatory and Comment on the German Pre-litigation Mandatory Mediation System

Exploration of Making the Mediation in Advance System in Article 125 of Chinese Civil Procedure Law Mandatory and Comment on the German Pre-litigation Mandatory Mediation System

The Evergrande Story: A Look into Chinese Corporate Law and the Redefinition of Privately Owned Enterprises and Their Relationship to State-Owned Enterprises in the Chinese Economy

Abstract In December 2021, Evergrande, the second-largest private property developer in China, defaulted on its debt and became the most indebted firm in the world with over $300 billion in liabilities. Its default marked the beginning of a real estate crisis in China, one that is still in the process of being resolved. The Chinese State, through its State-owned enterprises (SOEs), has played an enormous role in mitigating the crisis. Had it not, it is very unlikely that Evergrande would remain in existence today, with huge ramifications for Chinese society and the national economy. This article undertakes a case study of Evergrande, a privately owned enterprise (POE) that exhibits SOE characteristics, to shed further light on the web of interactions between large enterprises in China. It reconsiders how ‘private’ some POEs are in the Chinese economy and argues that, at a certain level, both SOEs and POEs operate in a co-dependent manner. Not only does this challenge the conventional distinction between SOEs and POEs, but it also has wide-ranging implications for corporate governance in China. Indeed, SOEs find themselves having to bail out POEs and are exerting control over POEs in which they have no equity stake. SOEs are thus financially burdened with protecting all large enterprises including POEs, whereas POEs can operate in an unregulated fashion and receive rents from their close ties to SOEs. Altogether, this article’s analysis showcases the operation of various themes of Chinese corporate governance and contributes to the existing literature seeking to understand the unique role of the State in Chinese enterprises.

Obligation, Informed Consent, and Health-Care Reforms in China

Abstract Drawing on recent jurisprudential literature that emphasizes the role and function performed by obligation, this article examines how the ethical doctrine of informed consent has been implemented in the context of health-care reforms in China. It argues that, while the Chinese incorporation of informed consent has sought to empower patients, the major medical laws and social policies fail to instantiate the obligations. Along with this failure, the Chinese medical laws have also failed to secure the bond of trust between them. This article also points out that a rounded analysis of the implementation of informed consent in China must take into account the obligation and function of the major components of the health-care delivery system other than physicians and hospitals, such as health-care insurance schemes.

The Influence of the Soviet Law Model on Criminal Procedure Law in China

The first Criminal Procedure Law (CPL) of China, issued in 1979, was greatly influenced by the Soviet Criminal Procedure Law in multiple dimensions, including the framework, concepts, principles, and specific institutions. Although the Chinese CPL has changed a lot after three amendments in 1996, 2012 and 2018, respectively, the influence of the Soviet Law can still be noticed in many aspects of the current law. This paper will explore how Soviet Law has shaped Chinese CPL into the way it is. Part I will explore the historical development of Chinese CPL, indicating the close relationship between Chinese law and Soviet Law. Part II will compare Chinese CPLs with the Soviet (and its successor, Russia) CPLs, trying to identify their similarities and differences. Part III will draw some tentative conclusions from the comparison and predict the continuing influence of the Russian law model on Chinese CPL in the future. This paper will primarily rely on comparative study and historical analysis. The legal framework, legal terms, theories, principles, and specific institutions will be examined to illustrate the significant influence of the Soviet Law on Chinese Criminal Procedure Law. This study helps to better understand the evolution of Chinese criminal procedure law and predict its further development more accurately.

Property rights protection, financing, and firm exports: the impact of China’s property law enactment

Chinese property law plays a significant role in the reforms of the Chinese economic system by establishing protective legal frameworks. This study utilizes the enactment of the Property Law in 2007 as a quasi-natural experiment and employs the difference-in-differences method to investigate the law’s impact on firm exports in China. The results indicate that firms’ exports experienced a significant increase after the law’s enactment. These findings remain robust after controlling for additional fixed effects, alternative subsamples, and measures of core variables. The law affects firm exports through two mechanisms: informal financial channels, such as trade credit with trading partners, and formal financial channels, such as borrowings from banks and other financial institutions. Heterogeneity analyses suggest that the export effect is positively related to firms that rely heavily on external financing and are not politically connected. Moreover, this correlation is accentuated in regions characterized by more conservative credit development and heightened efficiency in law enforcement. In addition, the promotional effect is more pronounced in firms exporting to high-income countries. These findings suggest that property rights protection in China significantly impacts trade and provides a comparative advantage to firms’ exports.

To be, or not to be? Copyright general monitoring dilemma of online hosting audio‐visual platforms in China

AbstractIn China, a hosting audio‐visual platform does not bear a copyright general monitoring obligation. It bears a public law obligation to monitor content proactively and constantly to safeguard the governance objective of cybersecurity. Little literature has discovered that Chinese case law has shown a risk that this public law obligation can impose an actual copyright general monitoring obligation upon platforms. The crux lies in that the public law obligation weakens the rationale of the copyright no monitoring obligation that a platform cannot access and assess each piece of work proactively. Copyright general monitoring seems to be workable as a platform is given such an opportunity to access and evaluate each content upon the fulfillment of the public law obligation. It, however, is unjustifiable to create this copyright law obligation by transferring it from the public law obligation, as copyright monitoring is much more complicated and costly within China's online environment. Access to content does not necessarily indicate a platform's ability to figure out content's copyright authorization status. China should retain adopting the no copyright general monitoring obligation even considering that the public law obligation has been contextually emphasized as a mandatory obligation to platforms.

Enthusiastic claimants, reluctant courts: The empirical and critical analysis of punitive damages in Chinese intellectual property law

AbstractThe availability of punitive awards varies across different common law jurisdictions. In recent years, China, as a civil law jurisdiction, has progressively introduced a comprehensive punitive damages system in Intellectual Property (IP) law in recent years. To investigate how this common law product functions in the civil law system, this paper scrutinizes the evolution and functions of punitive damages and depicts the map of punitive damages in Chinese IP law. Then this paper reports and analyses 657 IP judgments involving the application of punitive damages that were tried and decided in all parts of mainland China by all levels of courts from June 1, 2021, to May 31, 2022. Our empirical data shows that punitive damages are frequently sought by claimants, yet courts are reluctant to award them due to the complexities in determining the basis for calculation and judges' reluctance towards detailed legal reasoning. Furthermore, a critical analysis of the application of punitive damages in IP trials is provided, critiquing the court's preference for statutory damages, the complexity in determining the basis and multipliers for calculation, and the strict standard of proof, which accounted for the small portion of punitive damages awarded in judicial practices.

A study on the interpretation and application of the ‘International Concern Provisions’ of Chinese Coast Guard Law

The Chinese Coast Guard Law was adopted and came into force in 2021. This has prompted discussion in the wider international community. This paper first interprets the ‘International Concern Provisions’, including ‘areas under the jurisdiction of China’, ‘forcible measures against illegal acts of foreign warships and government vessels’, and ‘the nature of coast guard agency’. The concept of those waters under Chinese jurisdiction denotes the scope of maritime rights as authorized by the United Nations Convention on the Law of the Sea and the waters it claims by historical precedent. It is concluded that the Chinese Coast Guard has the right to use weapons according to domestic law, but it should still align with international law and customs when taking forcible measures against any illegal acts committed by foreign warships or government vessels. The main duties of the Chinese Coast Guard are to protect maritime rights and enforce the law. The Chinese Coast Guard agency has the dual attributes of being part of the national armed forces and a law enforcement authority. China should improve the concept of ‘maritime rights protection and law enforcement’, promote the connection between the Chinese Coast Guard Law and other maritime domestic laws, and strive for better understanding and recognition in the international community while safeguarding extant maritime rights and interests.

Climate change may improve the habitat suitability and connectivity of sika deer (Cervus nippon) in the Shennongjia area of China

In order to effectively conserve a species and manage its population, it is critical to understand the impact of climate change on habitat quality and connectivity. The sika deer (Cervus nippon) is a ungulate species endemic to East Asia and listed as a Category I State Key Protected Wild Animals under Chinese law. The C. nippon population was established in the Shennongjia area 30 years ago, and there is an urgent need to analyse the impact of environmental change on habitat quality. In this study, we compared suitable habitats and habitat connectivity of C. nippon in the Shennongjia area by utilizing an ecological niche model that integrated a set of environmental factors combined with a cost-distance approach for both the present time as well as in the future. The most encouraging findings were that the suitable habitat for C. nippon may be obviously enlarged and its habitat connectivity obviously improved under climate change. The suitable habitat of C. nippon in the Shennongjia area is limited at present; however, it is possible that the total area and number of suitable habitat patches can increase twenty- to thirty-fold and quadruple to sextuple, respectively, in the future (2050–2070). We detected a clear trend of suitable future habitat expansion into the northeast. The number of interpatch least-cost paths may dramatically increase (up to six to twelve times higher), and the lengths of least-cost paths and movement costs for the deer may decrease by half. Based on these results, several conservation recommendations have been suggested. Our study provides a valuable reference for protective actions that can be taken to conserve C. nippon in the Shennongjia area and can serve as a template for establishing conservation strategies for other species.

The refusal to license intellectual property as an antitrust violation in China: how should the current approach be improved?

The holder of intellectual property is entitled to exploit its intellectual property in principle. However, China’s Anti-monopoly Law prohibits the anti-competitive refusal to deal, including the refusal to license intellectual property, which might constitute an abuse of market dominance. Existing anti-monopoly rules related to the refusal to license intellectual property in China are rather general and lack a definite test for the assessment, leaving too much discretion for Chinese competition authorities to interpret the law. As the two main antitrust jurisdictions globally, the US and the EU have different approaches to the refusal to license intellectual property. By reviewing comparative experience, the EU approach is more appropriate for China. It is suggested that China should establish a clear-up test to analyse the refusal to license intellectual property cases under the Anti-monopoly Law, considering the indispensability of intellectual property and its influences on innovation. Meanwhile, Chinese law should include provisions on the remedy of a refusal to license. In this regard, China can make its anti-monopoly enforcement as to the refusal to license more transparent and build up a stable expectation for both domestic and foreign high-tech undertakings.

The limits of liberal justice: on authoritarianism and instrumental theories of law

ABSTRACT In this essay, I use Professor Sucheng Wang's recent book Law as an Instrument: Sources of Chinese Law for Authoritarian Legality as a point of departure for reconsidering the conventional opposition between liberal and authoritarian forms of legality. I suggest that opposition is in turn embedded in an even more elemental distinction between different state forms. Turning to Montesquieu's The Spirit of the Laws, I first investigate the historical and geopolitical processes by which modern political theory reduced the political universe into three species of states (republics, monarchies, and despotisms) and then merely two (democracies and authoritarian states). I then turn to the contemporary genealogy of the concept of rule of law, which arose first as a critique of the rise of the administrative state in the West and then became a means to delegitimize socialist conceptions of legality. I conclude by focusing on the People's Republic of China to evaluate the utility of assessing its legal order in terms of authoritarian legality as well as in terms of democracy more generally.

China-made national security law applied in Hong Kong’s common law courts: choice of interpretative approaches

ABSTRACT The Chinese legislature enacted the Law on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) on 30 June 2020 to be applied in Hong Kong. This article compares the texts between the NSL and relevant Chinese Mainland law and identifies four ways in which the Chinese legislative provisions and legal elements have been incorporated into the NSL. The widespread presence of Chinese legal elements in the NSL suggests that completely disregarding Chinese laws in Hong Kong judicial proceedings may not be feasible and advisable in some cases for interpreting and applying this specific made-in-China law. This article contends that the courts should distinguish the admissibility and weight of Chinese laws in the NSL cases. The Chinese laws are essential materials for Hong Kong courts to construct the NSL, and broader admissibility of Chinese laws is appropriate for the NSL construction. At the same time, this article argues that the weight to be given to Chinese laws is a matter for the court to decide in the circumstances of the case, and the set of rules regarding the NSL construction Hong Kong courts have been developing could guide the weighing of different kinds of interpretative materials.

The Image of Chinese Law in the Writings of European Missionaries of the 16th Century

In the mid-1600s, European missionaries journeyed to China, producing a wealth of travel diaries, scholarly writings, and reports. These missionaries meticulously documented China's political and legal systems. This study delves into the Ming Dynasty missionaries’ interpretations of Chinese law, highlighting the historical context and its mutual influence with European culture. Our findings indicate that, during a certain period, Chinese law was portrayed in European culture as the cultural “other”. This representation not only served as a self-examination and reflection for European culture but also mirrored its understanding of its own cultural identity. While grounded in reality, these descriptions largely represent European cultural projections.