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【期刊名称】 《法学家》
ABSTRACTS
【英文标题】 ABSTRACTS【分类】 法律信息
【期刊年份】 2016年【期号】 1
【全文】法宝引证码CLI.A.1212913    

The Past and Present of the Chinese Civil and Criminal Justice Systems:

The Sinitic Legal Tradition from a Global Perspective Philip C. C. Huang ?1?

This article starts with the entirety of the Chinese “justice system”,past and present, to reconsider informal justice ( among the people) and formal justice (of the state),emphasizing especially the interdependence ,overlap, and interaction of the civil and criminal justice systems. It then compares the justice system to the analytical framework employed by the “Rule of Law Index” of the World Justice Project (WJP), to bring out the similarities and differences between the “Sinitic Legal Tradition” and modem Western justice, and also the sharp contrasts between Chinese mediation and Western Alternative Dispute Resolution ( ADR). The purpose of the article is to demonstrate how a number of influential common assumptions are mistaken, and how the Sinitic legal tradition remains important in contemporary justice, not just of China but also the other major “East Asian civilization” countries. The purpose is to search for a path that would go beyond the either/or binary opposition between the Chinese and the Western, and the past and the present.

Key Words Sinitic Legal Tradition; Informal Justice; Formal Justice; ADR ( Alternative Dispute Resolution); World Justice Project

Philip C. C. Huang, Ph.D., Chair Professor of Renmin University of China Law School and Professor of History, Emeritus, UCLA.

The Incremental Constitution of the Ancient China and Its Territory SU Li ? 28 ?

China has long been a territorially large country, and historically evolved institutions of constitutional importance governing the relationship between central and local governments. The feudalism of Zhou dynasty was the earliest institutional effort, which paved the way for the transformation into a highly centralized system for the next 2000 and more years. Another key institutional practice was the geopolitical concerns and sensitivity in administrative division of the terrain so as to prevent risks of political separation. Finally, dynasties adopted series of measures and developed an institutional framework for farmers of central China to compete with nomads, and effectively promoted national integration in a broad historical perspective.

Key Words Ancient China; Constitution of Large Country; Relationship between Central and Local Governments; Geopolitical Concerns; Unified Multi-ethnic Country

Su Li, Ph.D. in Law, Professor of Peking University Law School.

On the Sieyès’s Theory of Constituant Power LE Qilian ?45?

There is a big divergence between Carl Schmitt’s “political theory of constitution” and Hans Kelsen’s “normative theory of constitution” on interpreting Emannuel Sieyès’s theory of consituant power. One emphasizes its deicisionalism and another insists its normativism. Principles and ambiguities of constituant power were thus profoundly demonstrated by those two schools. But both of them missed an important fact, that is, Emannuel Sieyès’s theory of consituant power combines decisionalism and normativism. In fact, his conception on this issue is more complex than people think. It could be resolved into three questions:“Who has constituant power?”,“Why a constitution is made?” and “How a constitution is made?”. Their anwsers point out three fudamental characters. Firstly, its decisionalism comes from the fact that nation is the unique owner of constituant power. Secondly, its limits result from the princple that it must protect human rights. Thirdly, its normativity owes to the truth that a representative body is necessary for its exercise. Grasping all these three essential dimensions of Emannuel Sieyès’s theory of consituant power maybe help surspass some theoretic dilemmas left by debates between “political theory of constitution” and “normative theory of constitution”.

Key Words Emannuel Sieyès, Constituant Power, Who Has Constituant Power?, Why A Constitution is Made?, How A Constitution is Made?

Le Qiliang, Doctor of History, Associate Professor of History Department of Zhejiang University.

Cultrual Introspection about of Right Orientated Theory and Codification of Chinese Civil Code LI Jianhua ?59?法小宝

Codification of Chinese Civil Code is confronted with specific historical conditions and has specific problems to be solved. It is impossible to simply copy foreign experience. To codify civil code with national characteristics, we must determine the orientation of Chinese Civil Code firstly, that is the ethical, methodological and formal basis of civil code. The orientation of civil code is closely related to culture. Western culture of individualism that is regarded as the core of the theory of Right Orientation, has specific limitations. The transplantation of theory of Right Orientation results in the failure of Civil Law to perform public functions, the degradation of effectiveness in Civil Law, the reduction of Civil Law ethnic rationality and keeps Civil Law standing away from social life. In order to break the limitations above, this paper tries to discover the natural endowments of Chinese Civil Law culture that influences the ethical characteristics, the compilatory paradigm and the formal structure of civil code through cultural awareness. By doing that, we are able to build and construct Chinese Civil Law discourse system that aims at resolving the specific problems of codification and drafting a kind of civil code with both national and modem characteristcs.

Key Words Culture of Civil Law; Nationalization of Civil Code; Codifying of Civil Code; Right-oriented Theory

Li Jianhua, Ph.D. in Law, Professor of Jilin University Law School.

Increased Business Costs: How Did the Law and Regulation Influence the

Enterprise’s Incorporation (or Behavior)? JIANG Daxing ?72?

Under the background of Globalization, the establishment of an enterprise should be carried out in a more efficient manner and the cost of enterprise behavior should be further reduced in order to enhance the competitiveness of the commercial system. The reform of the commercial system should be based on investigating which regulation improves efficiency and which regulation reduces efficiency. Through the observation of the company, the name and domicile of the certification system, we can find that the regulations which increase commercial cost are complicated and could be imposed by law improperly; and others could be imposed by law enforcement for department or government interests. Therefore, to abide by rule of law, the reform of the commercial system should eliminate not only the improper regulation by law but also the additional government regulation. According to this logic, we should remove the “regulation other than law” before the “improper law regulation”. Scholars who are keen to put forward legislative proposals were often used to paying attention to the latter and ignoring the fact that there were a large number of implicit “regulations other than law”.

Key Words Enterprise; Commercial; Law; Regulation; Cost

Jiang Daxing, Ph.D. in Law, Professor of Peking University Law School.

The Change of the Route in the Construction of Virtual Property Rule:

From the Perspective of Paradigm Transformation SHEN Chen ?84?

Current virtual property research focuses on two aspects, the extension of virtual property and the legal feature of virtual property right. Both the solutions are in a dilemma. The construction of civil law rule concludes two paradigms, “right paradigm” and “relationship paradigm”,which both have advantages and disadvantages. Current virtual property research applies “right paradigm”,so it has the disadvantages of “object dependence”,omission of precondition and difficulty in describing the complex interactive relationship. Through the transformation of the research paradigm, the legal disputes of virtual property can be analyzed in the concrete contract, tort or inheritance relationship, and get the corresponding solutions.

Key Words Virtual Property;


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