North University Law Review. Volume 6, Issue 2

Author: Editorial Committee of "Peking University Law Review"
Publisher:
Publishing Date: 2005-06-01
Features: "Peking University Law Review" (hereinafter referred to as "The Review") is an academic legal journal independently organized and edited by students of the Law Department of Peking University. The Review adheres to the principles of academic autonomy, self-respect, and self-discipline, and carries forward the spirit of inclusive and free thought of Peking University's traditional humanities. The Review implements a double-blind peer-review system. Papers that pass the initial review have their authors' names and affiliations removed by the editorial office and are submitted to reviewers for evaluation and written comments. The review comments include whether the paper can be accepted and how it should be revised, along with the relevant reasons. For papers that reviewers deem unacceptable or require revision, the editorial office removes the written dissenting opinions and submits them to the editorial committee for. In addition to the experts specially invited by the editorial committee, any author who has published an article in "The Review" can become a reviewer for "Lexicon Theory." The Review adopts the citation style commonly used in international academic journals. For details, please refer to the citation style of the papers published in The Review. The theme of this issue: the issue of the death penalty. Since Beccaria, the debate over the abolition of the death penalty has always been a place where various social psychology and value judgments clash violently. When the issue of the death penalty becomes a focal point of conflict in a country, it is almost certain that there is a conflict between the country's system and social concepts and emerging demands such as the protection of human rights at the intersection of the old and the new. Early in the 21st century, China was at such a critical juncture. As a result, criminal cases related to the death penalty have attracted unprecedented public attention, and the process by which decision-makers respond to public opinion challenges may be the harbinger of impending major changes. This is precisely why we have chosen the voices of scholars at the forefront of this field as the theme of this issue's discussion. As a social issue that extends beyond the intellectual sphere, the fundamental resolution of the death penalty issue depends on the multi-layered game between scholars, the public, and decision-makers in fields such as law, morality, social emotions, and political life, ultimately leading to a complex equilibrium. The five articles in the death penalty special issue included in this issue reveal richer and more diverse approaches to studying this complex structure. Chen Xingliang's "Correspondence on the Death Penalty" presents a dialogue and exchange between a professional scholar and an ordinary citizen on the issue of the death penalty in the form of letters. Compassion and tolerance are the tone of this article. The author believes that the true abolition of the death penalty depends on the decision of politicians, who are often constrained by public opinion, and therefore it is necessary to promote and cultivate social tolerance to weaken or even eliminate the revenge mentality of the general public. The interesting point of this article lies not only in its letter-writing style but also in the fact that this time it is not about imposing scholars' ideals on a virtual Persian but rather a real letter from a Chinese citizen. This makes the author's explanation more grounded and also becomes a personal practice for intellectuals to participate in and influence public opinion on professional topics. Chen Xingliang's other article, "A Study on the Death Penalty for Transporting Drugs for Hire," also originates from a letter from a death row inmate but focuses more specifically on two cases, analyzing the reasons for judgment to refine the corresponding judgment rules for the death penalty for transporting drugs for hire. Instead of studying norms or cases individually, but starting from the court's public judicial judgments, the author conducts "case law criminal law" research on the relevant crimes, which is a noteworthy academic trend in recent years and one of the reasons we included this article. Additionally, the argument in the article that extends the application of the death penalty for drug cases to the transfer of the death penalty review power to the Supreme People's Court has significant practical implications at the present time. Liang Genlin's "Outline of Death Penalty Control in China" is based on the realistic constraints of the current national conditions and crime trends, systematically designing the path choices and institutional construction of death penalty control in ten aspects. Although the theme and structure make the article appear as a grand narrative, the author's profound academic expertise in balancing the tension between the grand blueprint's thinking and meticulous technical arguments makes the content of the article solid and powerful. The paper is full of the author's careful thought in the design of specific systems: proposing three solutions for "regulating, transferring, and abolishing" death penalty crimes to narrow the scope of the death penalty; formulating operational guidelines for the sentencing of death penalty cases; and conducting an in-depth analysis of the trend of the penalty structure and penalty environment tending to be lighter, etc. Zhou Guangquan's "Judicial Restrictions on the Death Penalty" takes a more specific micro-level perspective, focusing on crimes with the highest probability of applying the death penalty in judicial practice to seek specific judicial measures to restrict the application of the death penalty. Currently, the crimes with the highest rate of applying the death penalty are intentional homicide, robbery, and intentional injury, and whether they are eligible for the death penalty largely depends on whether there are casualties. The article takes this as the starting point to analyze the issue of restricting the judicial application of the death penalty for corresponding crimes, refuting the habitual thinking and practice in practice that once a victim dies, someone must "pay with their life," and demonstrates a pragmatic attitude to the possibility of narrowing the scope of the death penalty application under the current criminal law provisions. Wang Mingliang's "Models of Criminal Law and Sociology in Sentencing the Death Penalty" proposes two models of death penalty sentencing: one is the so-called legal theory model, which refers to the process of strictly adhering to the provisions of the criminal law, judging the existing facts that may be sentenced to death, and making a death penalty judgment accordingly; the other is the sociological model of death penalty sentencing, which refers to the process in which the social structure of cases that may be sentenced to death outside the provisions of the criminal law affects the sentencing. The article points out that the sociological model of death penalty sentencing is the cause of "unequal punishment for the same crime" and sentencing inequality, and proposes specific ways to avoid the operation of this sociological model. Although it may be debatable whether the social factors contained in the death penalty issue can be given simple value judgments and whether the author's sociological analysis model is normative, the author's exploration and efforts to expand new perspectives and research paths beyond the past philosophy-based research on the abolition of the death penalty are commendable. In addition to the discussion on the death penalty, this issue also includes a criminology paper: "Crime is an Evaluation" by Liu Guangsan and Shan Tianshui. The article clearly proposes the proposition that "crime is an evaluation" and expands from the perspectives of three evaluation subjects—state, society, and criminology scholars—to review the common and individual aspects of the evaluation content of each subject. The article has a broad perspective and clear reasoning, and has to some extent advanced the research progress of criminology theory in the field of value theory in China. Sunstein's name is no longer unfamiliar in the Chinese academic world. His article "Behavioral Methods in Law and Economics" co-authored with two other authors is the introduction to the same-named edited work by him. The article applies the relevant principles of behavioral economics to question and challenge the basic assumptions of traditional law and economics and attempts to establish a new research approach in law and economics. It is a programmatic paper in behavioral legal economics and the latest development in Western law and economics. The article also suggests that the school of law and economics is diverse, and methods are not fixed. Today, when law and economics research has just been introduced into Chinese academia, it may be necessary to expand thinking and pay attention to the forefront of theoretical development. Several articles on intellectual history and institutional history included in this issue have discovered issues overlooked in previous research from some historical evolution and have advanced on this basis. Gao Quanxi's "On Constitutional Politics" is an introductory part of the author's writing plan, which attempts to find a theoretical path for constitutional politics different from daily politics by reviewing the history of Western thought. The author particularly compares and analyzes the constitutional political thoughts of Schmitt and Ackerman, believing that there is a certain kind of convergence between the two. Of course, reviewing the history of thought is not the ultimate goal, and the author's purpose lies in China's constitutional issues, hoping to provide a new perspective for reference through this thought. Zhang Qianfan's "From Control to Freedom" examines the historical experience of Western countries in dealing with vagrancy and begging issues and the historical evolution of constitutional protection of the right to migrate in the United States, concluding that the right to migrate is an inevitable product of the development of a market economy and human rights awareness to a certain extent. In a unified legal system, it is an inherent part of civil rights and should be protected by the constitution. The constitutional protection of the right to migrate is not only necessary for the development of the market economy but also an important embodiment of national unity and citizens' equality. Obviously, the Chinese issue is also the author's point of departure for reflection. Lao Dongyan's "The Crisis of Freedom: The Internal Mechanics and Operational Logic of Germany's 'Rule of Law State'" reviews the evolution of the concept of Germany's "rule of law state," discovering that the "rule of law state" represents an effort in the state structure to unify individualism with the purpose of the state. The inherent tension that is bound to lead to self-destruction lies in its goal of promoting specific individual freedom and liberation, but this goal attempts to achieve it through abstract and unrestricted state power, relying on state legislative control and complete submission of individuals. The author also compares the "rule of law state" with common law rule of law, believing that one of the important reasons for the difference between the two lies in the institutional technology they rely on to pursue the cause of freedom, namely the systemic construction method of the "rule of law state" and the practical-oriented rationality of the craft in common law rule of law. In addition to the historical research mentioned above, Zhao Xijiu's "Judicial Review System in EU Law: Interpretation of Article 230 of the EC Treaty" is an excellent work in specific institutional research. The article reviews the invalidity action based on Article 230 of the EC Treaty, which plays a central role in the EU judicial review system, focusing on reviewing the scope of judicial review authority of the European Court of Justice, the obstacles and difficulties faced by natural and legal persons as non-privileged applicants in invalidity applications involving relatively broad public interests, and the basis of judicial review by the court. The author has conducted in-depth research on EU law, with precise and delicate writing and perspective, providing valuable references for accurately understanding the mechanism of the European judicial review system. This issue also includes three papers on civil and procedural law. Huo Haihong's "Burden of Proof: A Functional Perspective" is a rare work in procedural law. The article systematically combs and defines the functions of the burden of proof, attempting to take people out of the narrow perspective of providing evidence as the burden of proof and examining the burden of proof in terms of concepts and systems from the perspective of benefits, criticism, rules, and legislative technology functions in addition to the judgment function. A prominent feature of the article is the advocacy and full argumentation for the substantive norm attribute of the burden of proof, believing that it is pre-embedded in substantive law and mainly realized through litigation procedures, and the relationship between the burden of proof and substantive norms lies in the fact that the allocation of the burden of proof enables the goals of substantive norms to be achieved technically in law. Ding Chuyan's "On the Right of First Refusal in Private Law" provides a general review and analysis of the right of first refusal. The article's review work is very thorough, and its analysis is not only based on legal foundations but also takes into account judicial interpretations, administrative regulations, rules, and regulatory documents, making the argumentation solidly grounded. The most prominent feature of the article is its logical rigor and completeness, fully considering various possible situations and providing convincing solutions, demonstrating the author's solid theoretical foundation and expertise. Xu Defeng's "On the Concept of Reliance Interest and Compensation for Cost and Expenses in Contract Law" discusses the reliance interest system after analyzing the defects of expected interest. Due to the many defects of reliance interest, the author attempts to explore a new solution. The article points out that the core of reliance interest and expected interest is net profit, cost, and expense expenditure, and on this basis, it establishes its own theory of cost and expense compensation. The main contribution of the article lies in its effort to transcend traditional concepts, and behind a new way of solving problems lies the author's courage and wisdom in a new path. In addition, the article provides a good comparative law background, which is of reference value for China's legislation and judicial practice. In addition, the only commentary in this issue is Zhao Xiaoli's "A Life-and-Death Matter: Reinterpreting (Qiujucuo Guanzhuan)." Unlike previous interpretations of the style and content of the film, he divides the film text into five themes and attempts to reveal the hidden "subtle meaning" in the dialogue through a comprehensive and detailed interpretation of the text. "Qiujucuo Guanzhuan" is not just a "legal pluralism" issue, nor is it just a "bringing law to the countryside" issue; it more expresses a praise for the original vitality concept in the rural society of China. Modern state law may not recognize this instinct of life, but it cannot ignore its power. Similarly, we may not approve of Qiujucuo, but we must first understand her demands. The "Peking University Forum" includes the speech "Seeking Appropriate Theoretical Perspectives and Methodologies for Comparative Corporate Governance" by John H. Farrar, a renowned corporate governance scholar, delivered at the Law School of Peking University in 2004. Farrar provides a broader perspective for solving the fundamental problem of the relationship between comparative corporate governance research and comparative law from the perspective of social sciences. Farrar points out that comparative law is too narrow and chaotic to provide an appropriate methodology for comparative corporate governance in a complex period of transformation, and therefore it is necessary to go beyond legal examination of autonomous rules and customs. It is worth noting that through the analysis of path dependence and globalization, Farrar concludes that a global contract concept and a network of autonomous rules may be more important than companies and nation-states. The methodology of comparative corporate governance is the most philosophically rich and open part of the research in this field. Farrar not only provides new perspectives but also offers a new path for reflecting on and understanding the historical biases and current developments in the field of comparative corporate governance.