Civil and Commercial Law Symposium. Volume 33

Author: Liang Huixing
Publisher:
Publishing Date: 2005-08-01
Features: The purpose of Civil and Commercial Law Symposium is to start from the practical experience of China's reform and opening-up and the development of a modern market economy, extensively reference the successful legislative experiences and latest judgments and doctrines of developed countries and regions in civil and commercial law, study the basic theories and major legal issues of civil and commercial law, and provide a scientific legal foundation for the modernization of China's civil and commercial legislation and the scientific development of judicial practice, thereby enhancing the theoretical level of China's civil and commercial law and cultivating civil and commercial law theory talents. This volume publishes more than ten cutting-edge research papers in the field of civil and commercial law, including: Economic Analysis of the Principle of Property Rights Determination, the author concludes that the principle of property rights determination is beneficial in reducing information costs in transactions, thereby promoting the smooth progress of transactions, through the application of microeconomics, macroeconomics, and welfare economics. Exploration of Civil and Commercial Law Protection for the Unborn, analyzing the trend of strengthening the protection of the rights of the unborn from the perspective of tort law in various countries, and suggesting that China should establish relevant legal systems as soon as possible to strengthen the legal protection of the unborn. Study on the Causation Rule in American Tort Law, the author proposes to learn from the causation rule in American law, enabling judges in China to make accurate and unified judgments when handling complex tort cases involving intervening causes. Challenge and Response: Deficiencies and Improvement of China's Foreign-Related Arbitration System in the Context of Economic Globalization—Taking the Accession to the WTO as a Turning Point, using China's accession to the WTO as an opportunity, it explores the general requirements of foreign-related arbitration systems in the context of economic globalization and points out certain deficiencies of China's foreign-related arbitration system as a reference, and finally proposes countermeasures. Problems in Implementation, the author believes that the Hague Service Convention is the most successful treaty in the field of civil procedure, but it has also encountered many problems in implementation, which are of great theoretical value and have an important impact on the judicial practice of various countries. Draft of the Chinese Real Estate Registration (Proposal), the research of the National Social Science Fund Project Research on Real Estate Registration System. This volume is the 33rd issue of Civil and Commercial Law Symposium (Issue 1, 2005).
[Special Research] publishes four papers: First, Liu Hui's Economic Analysis of the Principle of Property Rights Determination. Why does civil law stipulate the principle of property rights determination? The author concludes that the principle of property rights determination plays a significant role in reducing information costs in transactions and promoting the smooth progress of transactions through the application of microeconomics, macroeconomics, and welfare economics. Second, Wang Chuancai's Study on Non-Compete Clauses in Franchise Contracts. Non-compete clauses are the most commonly used restrictive provisions in franchise contracts, which are crucial for protecting the interests of franchisees but unfair to franchisees and even harm the public interest. With the rapid development of the franchise industry, disputes in this regard have been increasing. This paper studies non-compete clauses, analyzing their value and their legal positioning. Third, Shi Bing's Research on Basic Issues of Property Rights in Uninhabited Islands. Uninhabited islands refer to islands without permanent residents. China has 6,961 islands with a coastline area of over 500 square kilometers, of which 6,528 are uninhabited islands. Whether analyzed from a political, economic, or military perspective, China's numerous uninhabited islands have significant strategic importance. The utilization and development of uninhabited islands are always closely intertwined with disputes over the ownership of marine resources and maritime boundaries. According to the United Nations Convention on the Law of the Sea, an uninhabited island or rock can bring a country 1,550 square kilometers of territorial sea, while an island capable of supporting human habitation can bring a country 430,000 square kilometers of jurisdictional sea. It can be seen that these tiny uninhabited islands scattered across the vast ocean carry the important responsibility of safeguarding the security of China's maritime territory. However, due to legislative lag, the situation of "no one manages uninhabited islands" has led to unclear ownership of uninhabited islands, and incidents such as bombing islands, rocks, and mountains for stone extraction and other serious changes to the landscape and morphology of islands have occurred frequently. More painfully, some uninhabited islands in, the Xisha Islands, and the Nansha Islands have been neglected for years, resulting in many reefs being occupied by neighboring countries, leaving a painful historical lesson. Therefore, the study of the property rights system of uninhabited islands has important theoretical and practical significance. Fourth, Duan Housheng's Research on the Theory of Claim Convergence and the Theory of Cause of Action. The phenomenon of claim convergence in substantive law has led traditional theories of cause of action into difficulties, giving rise to various so-called new theories of cause of action. However, these new theories of cause of action have not fully resolved the issue. The author proposes three approaches: first, adhering to the traditional theory of cause of action and solving the problem of claim convergence through the preparation of combined claims; second, using the declaration of claim as the cause of action, with claims as means for parties to attack and defend; third, drawing on the common law system to use natural facts as the cause of action, with claims still serving as means for parties to attack and defend.
[Legislative Issues] selects four articles. First, Chen Wei and Ran Qiyu's Gender in Public Policy—(Marriage Law) Gender Analysis and Legislative Improvement. The authors believe that to truly eliminate inequality between men and women and achieve equal protection of women's rights, a gender perspective should be adopted in the formulation of laws. This paper uses gender equality theory to analyze the impact of the Marriage Law on men and women, pointing out that the implementation of certain formal gender equality provisions may be disadvantageous to women, and proposes legislative recommendations for improving the Marriage Law from a gender equality perspective. Second, Chen Chuanfa and Zhu Yiqun's Declaration of Missing Persons and Protection of the Interests of Missing Persons. Since the promulgation of the General Principles of Civil Law in 1986, there has been very little research on the declaration of missing persons system, but in the limited literature, two opposing views have emerged: one advocates imitating the French legislative model and abolishing the declaration of missing persons system, replacing it with a property guardian system; the other believes that the current declaration of missing persons system fits China's conditions and should be retained. At this time of drafting the Civil Code, the authors of this paper have conducted a systematic study of the declaration of missing persons system and the methods of protecting the interests of missing persons, and have proposed legislative recommendations. Third, Li Xintian and Zhu Qiangjuan's Exploration of Civil and Commercial Law Protection for the Unborn. Should the law protect the life of an unborn child? How should it be protected? What is the scope of protection? These are important issues that must be resolved when drafting the Civil Code. The authors believe that the unborn should be distinguished from "persons" in the law, and that "birth" should be taken as the starting point for the enjoyment of rights and the right to relief for the unborn. This paper mainly analyzes from the perspective of tort law the trend of strengthening the protection of the rights of the unborn in various countries and suggests that China should establish relevant legal systems as soon as possible to strengthen the legal protection of the unborn. Fourth, Xu Guang's Legal Issues in the Establishment of Foundations. The author believes that under the civil law system of corpus juris, the establishment of foundations adopts a permit system, with a minimum establishment fund, and the establishment process is relatively complex, while common law systems mostly adopt a registration system or a free establishment system, without a minimum establishment fund, and the establishment process is relatively simple. This paper studies the various legal issues of the establishment of foundations under the corpus juris system.
[Foreign Law] selects three articles. First, Xu Liang's Sources and Evolution of Privacy Rights in American Common Law. Since the implementation of the General Principles of Civil Law, cases and discussions regarding claims for mental damages due to the infringement of privacy rights have always been hot topics in social life, but academic research on the theory of privacy rights is still relatively weak. This paper explores the sources and evolution of privacy rights in American common law, particularly the typological study of privacy rights, which undoubtedly has reference significance for our theoretical research and judicial practice. Second, Liu Xinping's Study on the Causation Rule in American Tort Law. The causation rule in American law is divided into the causation rule in contract law and the causation rule in tort law. The causation rule in tort law refers to the fact that the damages for which a negligent tortfeasor is liable must be foreseeable, that is, the tortfeasor is only liable for foreseeable damages and must be liable for all foreseeable damages. The causation rule has become the authoritative theory of causation in American tort law because it reflects fairness and discards the artificiality and unpredictability of the direct result rule. It can be said that in the trial of cases involving negligent torts, no reason is as influential on the judge's judgment as foreseeability. The author believes that learning from the causation rule in American law can enable judges in China to make accurate and unified judgments when handling complex tort cases involving intervening causes. Third, Zhuorina Kang of the United States' Intellectual Property and Economic Development: Historical Experiences and Lessons of Europe and the United States, the author is a professor in the Department of Economics at Bowdoin College in Maine, USA. The paper focuses on analyzing the patent and copyright systems of Europe and the United States and summarizes their historical experiences and lessons. This paper was commissioned by the UK Intellectual Property Committee and used as background material for compiling the Intellectual Property Report, but does not necessarily represent the views of the committee. Translated by Peng Xuelong.
[Commercial Law] selects three articles. First, Yu Xiaohan's New Thinking on Solving the Problem of Shippers in the Maritime Code. The author believes that due to the influence of the Hague Rules, Article 42(3) of the Maritime Code of China stipulates two types of "shippers," leading to divisions in theory on how to identify "shippers" and define "shipper rights and obligations," and different judgments have emerged in judicial practice, making the "shipper" issue the most acute problem in the theory and practice of maritime law. This paper analyzes the necessity of stipulating two types of "shippers" in the Maritime Code in combination with judicial practice, proposes legislative and judicial interpretation proposals for removing the definition of shippers in the Maritime Code and returning to the system of the Hague-Visby Rules. Second, Xiao Hebao's The Disclosure System in Insurance Law: A Rebalancing in Transition. The author believes that the disclosure system in insurance law is established to correct the information asymmetry between parties, but in insurance practice, it has gradually become a tool for insurers to limit the interests of insured parties and exclude their own liabilities, leading to an imbalance of interests between insurers and insured parties. This paper analyzes and studies the defects of the traditional disclosure system and the reform of the modern disclosure system in insurance law, and proposes suggestions for reconstructing the disclosure system in China's insurance law. Third, Ge Wen's Construction of the Trust Interest of the Insured in Life Insurance Contracts—Centered on Article 56(1) of the Insurance Law. Article 56(1) of the Insurance Law of China stipulates that contracts where the payment of insurance benefits is conditional on death shall be invalid if they are not approved in writing by the insured and recognized by the amount of insurance. This so-called "invalidity of the contract" is absolute or relative? Partial or total? Is it a mandatory or discretionary norm? What is the nature of "written consent" and its formal requirements? Does the lack of "written consent" affect the contractual rights and interests that the insured "enjoys"? Who has the duty of attention regarding the invalidity of the insurance contract? Who should bear the liability of pre-contractual negligence and its scope? These have been problems that have long troubled judicial practice. This paper is a comprehensive case study addressing these issues.
[Arbitration Issues] publishes Wang Zuoxing's Challenge and Response: Deficiencies and Improvement of China's Foreign-Related Arbitration System in the Context of Economic Globalization—Taking the Accession to the WTO as a Turning Point. This paper uses China's accession to the WTO as an opportunity to explore the general requirements of foreign-related arbitration systems in the context of economic globalization, including the independence, autonomy, openness, and operational efficiency of procedures. It points out certain deficiencies of China's foreign-related arbitration system as a reference and proposes countermeasures for these deficiencies from both a micro and macro perspective.
[International Issues] selects two articles. First, Catherine Walsh of Canada's Factoring of Receivables and Conflict of Laws—Review of the Draft Convention on the Transfer of Receivables in International Trade by the United Nations Commission on International Trade Law. Factoring of receivables involves two sets of contractual relationships: the original contract between the transferor and the debtor, and the transfer contract between the transferor and the transferee. The original contract and the transfer contract are independent and are subject to the constraints of their respective laws. However, the dual nature of the transferred claim increases the complexity of the issue of legal choice. In 1992, the 25th session of the United Nations Commission on International Trade Law decided to put the issue of the transfer of claims on the agenda. After multiple discussions, the Draft Convention on the Transfer of Receivables in International Trade of the United Nations Commission on International Trade Law was adopted by the United Nations General Assembly on December 12, 2001, but it has not yet entered into force. The author is a professor of law at McGill University in Montreal, Canada, and a member of the Canadian delegation in the working group responsible for drafting the convention. This paper provides a detailed explanation of the background of each conflict of law provision in the convention (draft), undoubtedly serving as an excellent learning material. Translated by Wang Juan. Second, He Qisheng's The Hague Service Convention and Problems in Its Implementation. The author believes that the Hague Service Convention is the most successful treaty in the field of civil procedure, but it has also encountered many problems in implementation, some of which are of great theoretical value and have an important impact on the judicial practice of various countries. China is a member of the convention, and every change in the convention will affect China's future judicial practice. This paper extensively combines the judicial practice of various countries to study the problems in the implementation of the Hague Service Convention, which has important theoretical and practical significance.
[Materials] selects two documents. First, International Ship Insurance Clauses (01/11/02). The London insurance market is the largest insurance market in the world, and its Ship Insurance Clauses of 1983 and 1995 have long dominated the marine insurance market. The London Market Joint Ship Insurance Committee launched new ship insurance rules in 2002, combining the advantages of the previous two clauses and addressing their shortcomings, and it is believed that they will soon replace the previous two clauses. Translated by Zheng Xiaodong and Yao Hongmin. Second, Draft of the Chinese Real Estate Registration Law (Proposal). In 2004, the legislative body resumed the discussion and revision of the draft of the Property Rights Law, and a expert discussion meeting on the draft of the Property Rights Law was held in early August. In October, the Standing Committee of the National People's Congress conducted the second review of the draft of the Property Rights Law, but the Standing Committee of the National People's Congress did not conduct the third review of the draft of the Property Rights Law in December. This indicates that the original plan to pass the draft of the Property Rights Law in March 2005 has changed. It is said that it will be passed at the National People's Congress in March 2006. According to the Second Review Draft of the Property Rights Law, the change of real property rights is subject to "registration" as the method of publicity. It can be seen that the importance of the real estate registration system. Without a complete and scientific real estate registration system, even if the Property Rights Law is promulgated and implemented in the future, it will be difficult to play its role. Therefore, in addition to the Property Rights Law, a separate Real Estate Registration Law should be formulated. This draft was drafted by Hai Hong, and it is the research of the National Social Science Fund Project Research on Real Estate Registration System.