Civil and Commercial Law Forum - (Volume 34)

Author: Liang Huixing
Publisher:
Publish Date: 2006-02-01
Features: This volume is the 34th issue of the Civil and Commercial Law Series. The [Special Research] section features seven papers. First is Gao Yanzhu's "Research on the Legal Issues of Sexual Harassment." Unwelcome sexual contact and sexual demands are referred to as "sexual harassment" (sexual harassment). The most sensational sexual harassment lawsuits reported in the media include Anita Hill, a law professor at the University of Oklahoma, suing Supreme Court Justice Clarence Thomas for sexual harassment, Paula Jones, an Arkansas state employee, suing President Bill Clinton for sexual harassment, and Katherine Kolakoston, an American woman, suing Louis Mariagostino, the head of the United Nations Development Programme, for sexual harassment. Sexual harassment cases have become a hot topic in recent civil trials. Chinese courts and judges, facing the sudden influx of various sexual harassment cases, struggle to respond due to the lack of specific provisions in the current law. It is reported that the National People's Congress has received multiple proposals for drafting an anti-sexual harassment law, and the drafting work has officially begun. This paper studies the definition of sexual harassment, theories related to sexual harassment, international legislative experiences in combating sexual harassment, and proposes a legislative proposal for anti-sexual harassment based on China's national conditions, which is also of reference value for judges in adjudicating sexual harassment cases. This volume features a [Sports Law] section, selecting four articles. First is Huang Shixi's "Exploration of Several Issues in the Special Sports Arbitration System of the Olympic Games." The International Court of Arbitration for Sport was established in 1984 and has a history of over twenty years. Since its establishment, the International Court of Arbitration for Sport has been managed by the International Olympic Committee, which has led to a lack of trust in its independence, especially among athletes in the sports world. A ruling by the Swiss Federal Supreme Court in 1993 led the International Olympic Committee to realize the need to reform the International Court of Arbitration for Sport, establishing the International Council of Arbitration for Sport to oversee its activities. Starting with the 1996 Atlanta Olympics, special arbitration divisions of the International Court of Arbitration for Sport were established to handle disputes during the Olympics and those related to the Olympics, playing a positive role in the smooth holding of the Olympic Games. Subsequent Winter Olympics, such as those in Nagano, Sydney, and Salt Lake City, also established special arbitration divisions. Organizations that had previously not recognized the jurisdiction of the International Court of Arbitration for Sport, such as the International Association of Athletics Federations and the FIFA, subsequently accepted arbitration clauses from the International Court of Arbitration for Sport in 2001 and 2002, leading to all international single-sport federations within the Olympic framework accepting its jurisdiction. In view of the upcoming 2008 Olympics, this paper primarily explores issues related to the special sports arbitration of the Olympic Games, hoping to contribute to resolving sports arbitration issues for the Beijing Olympics. The [Legislative Research] section features Li Xia's "On Guardianship for Persons with Deficient Adult Capacity." The adult guardianship system is designed to protect adults with weak decision-making abilities. With the development of international human rights and the arrival of an aging society, to respect human rights and protect the elderly, the declaration of incapacity is no longer appropriate. The guardianship system has been substantially reformed in terms of both value philosophy and institutional structure. This paper proposes that the draft Chinese Civil Code include an adult guardianship system, implementing new concepts such as respecting the self-determination of the person and maintaining the normal life of the person, with freedom as the highest value pursuit. It divides the capacity of adults into two levels, "capable" and "incapable," and abolishes the declaration of incapacity; it proposes to add designated guardianship, which takes precedence over statutory guardianship in application; the scope of the person under guardianship includes the elderly and other disabled persons; and it improves relevant laws and regulations. The [International Law Issues] section features two papers. First is "The Historical Evolution of Private International Law" by [USA] Jung, translated by Song Xiao. The author disagrees with the claim that conflict law is one of the "few historically pale fields." He believes that the history of conflict law has accumulated remarkable and rich intellectual resources, which still guide today's theory and practice. Indeed, all methods worth trying, with labels that are either the same or different, have been tried in the past. From the historical literature of conflict law, we can identify three basic legal selection methods: creating direct rules governing multilateral transactions, i.e., the substantive law method; determining the scope of the personal and territorial effects of potentially applicable court rules, i.e., the unilateralism method; and placing legal selection rules between multilateral cases and legal systems, i.e., the multilateralism method. These three methods have coexisted since the Middle Ages. Although "the synthesis of methods" is not a new phenomenon, it has been given new significance today. In the United States and Europe, there is a trend to break away from rigid multilateral legal selection rules and revitalize the unilateralism method. Meanwhile, the idea of solving multilateral legal issues within a transnational framework is resurgent, as evidenced by the current debate over a new commercial law. This paper is excerpted from the author's book "Legal Selection and Multilateral Justice," translated by Song Xiao. The [Foreign Law] section features three articles. First is "Fundamental Freedoms in the Economy" by [Germany] Holger Schulte. The author believes that for Chinese observers interested in Germany's development, the relationship between fundamental freedoms and the economy may be of particular interest in two aspects. On one hand, the former states of the German Democratic Republic have completed the transformation of the economic and ownership order, which corresponds to the current social development in China, but on the other hand, the traditional Federal Republic's economic and social conditions still face pressure to further eliminate controls, stemming from the global opening of markets and the liberalization of the EU market. Translated by Wang Hongliang. The [Master's Thesis] section features "[South Korea] Jeong Joomi's 'Legal Issues of Consumer Protection in Korean E-commerce.'" With the widespread use of the internet, an increasing number of consumers are using e-commerce for consumption. Due to the virtual nature, borderlessness, and high-technology characteristics of the internet, compared to traditional transactions, consumers face more fraud, mistaken representations, false advertising, and operational errors in online transactions. From the perspective of protecting consumer rights, legally regulating these threats to consumer rights is of great significance for promoting the development of e-commerce. This paper attempts to comprehensively explore the issues of consumer protection in e-commerce through an analysis of South Korea's e-commerce consumer protection laws. E-commerce is a new phenomenon in China, and the construction of relevant laws is still in its early stages. Based on an analysis of South Korean relevant laws, this paper proposes some constructive suggestions for the development and improvement of China's e-commerce laws and policies. This volume is the 34th issue of the Civil and Commercial Law Series. The [Special Research] section features seven papers. First is Gao Yanzhu's "Research on the Legal Issues of Sexual Harassment." Unwelcome sexual contact and sexual demands are referred to as "sexual harassment" (sexual harassment). The most sensational sexual harassment lawsuits reported in the media include Anita Hill, a law professor at the University of Oklahoma, suing Supreme Court Justice Clarence Thomas for sexual harassment, Paula Jones, an Arkansas state employee, suing President Bill Clinton for sexual harassment, and Katherine Kolakoston, an American woman, suing Louis Mariagostino, the head of the United Nations Development Programme, for sexual harassment. Sexual harassment cases have become a hot topic in recent civil trials. Chinese courts and judges, facing the sudden influx of various sexual harassment cases, struggle to respond due to the lack of specific provisions in the current law. It is reported that the National People's Congress has received multiple proposals for drafting an anti-sexual harassment law, and the drafting work has officially begun. This paper studies the definition of sexual harassment, theories related to sexual harassment, international legislative experiences in combating sexual harassment, and proposes a legislative proposal for anti-sexual harassment based on China's national conditions, which is also of reference value for judges in adjudicating sexual harassment cases. This volume features a [Sports Law] section, selecting four articles. First is Huang Shixi's "Exploration of Several Issues in the Special Sports Arbitration System of the Olympic Games." The International Court of Arbitration for Sport was established in 1984 and has a history of over twenty years. Since its establishment, the International Court of Arbitration for Sport has been managed by the International Olympic Committee, which has led to a lack of trust in its independence, especially among athletes in the sports world. A ruling by the Swiss Federal Supreme Court in 1993 led the International Olympic Committee to realize the need to reform the International Court of Arbitration for Sport, establishing the International Council of Arbitration for Sport to oversee its activities. Starting with the 1996 Atlanta Olympics, special arbitration divisions of the International Court of Arbitration for Sport were established to handle disputes during the Olympics and those related to the Olympics, playing a positive role in the smooth holding of the Olympic Games. Subsequent Winter Olympics, such as those in Nagano, Sydney, and Salt Lake City, also established special arbitration divisions. Organizations that had previously not recognized the jurisdiction of the International Court of Arbitration for Sport, such as the International Association of Athletics Federations and the FIFA, subsequently accepted arbitration clauses from the International Court of Arbitration for Sport in 2001 and 2002, leading to all international single-sport federations within the Olympic framework accepting its jurisdiction. In view of the upcoming 2008 Olympics, this paper primarily explores issues related to the special sports arbitration of the Olympic Games, hoping to contribute to resolving sports arbitration issues for the Beijing Olympics. The [Legislative Research] section features Li Xia's "On Guardianship for Persons with Deficient Adult Capacity." The adult guardianship system is designed to protect adults with weak decision-making abilities. With the development of international human rights and the arrival of an aging society, to respect human rights and protect the elderly, the declaration of incapacity is no longer appropriate. The guardianship system has been substantially reformed in terms of both value philosophy and institutional structure. This paper proposes that the draft Chinese Civil Code include an adult guardianship system, implementing new concepts such as respecting the self-determination of the person and maintaining the normal life of the person, with freedom as the highest value pursuit. It divides the capacity of adults into two levels, "capable" and "incapable," and abolishes the declaration of incapacity; it proposes to add designated guardianship, which takes precedence over statutory guardianship in application; the scope of the person under guardianship includes the elderly and other disabled persons; and it improves relevant laws and regulations. The [International Law Issues] section features two papers. First is "The Historical Evolution of Private International Law" by [USA] Jung, translated by Song Xiao. The author disagrees with the claim that conflict law is one of the "few historically pale fields." He believes that the history of conflict law has accumulated remarkable and rich intellectual resources, which still guide today's theory and practice. Indeed, all methods worth trying, with labels that are either the same or different, have been tried in the past. From the historical literature of conflict law, we can identify three basic legal selection methods: creating direct rules governing multilateral transactions, i.e., the substantive law method; determining the scope of the personal and territorial effects of potentially applicable court rules, i.e., the unilateralism method; and placing legal selection rules between multilateral cases and legal systems, i.e., the multilateralism method. These three methods have coexisted since the Middle Ages. Although "the synthesis of methods" is not a new phenomenon, it has been given new significance today. In the United States and Europe, there is a trend to break away from rigid multilateral legal selection rules and revitalize the unilateralism method. Meanwhile, the idea of solving multilateral legal issues within a transnational framework is resurgent, as evidenced by the current debate over a new commercial law. This paper is excerpted from the author's book "Legal Selection and Multilateral Justice," translated by Song Xiao. The [Foreign Law] section features three articles. First is "Fundamental Freedoms in the Economy" by [Germany] Holger Schulte. The author believes that for Chinese observers interested in Germany's development, the relationship between fundamental freedoms and the economy may be of particular interest in two aspects. On one hand, the former states of the German Democratic Republic have completed the transformation of the economic and ownership order, which corresponds to the current social development in China, but on the other hand, the traditional Federal Republic's economic and social conditions still face pressure to further eliminate controls, stemming from the global opening of markets and the liberalization of the EU market. Translated by Wang Hongliang. The [Master's Thesis] section features "[South Korea] Jeong Joomi's 'Legal Issues of Consumer Protection in Korean E-commerce.'" With the widespread use of the internet, an increasing number of consumers are using e-commerce for consumption. Due to the virtual nature, borderlessness, and high-technology characteristics of the internet, compared to traditional transactions, consumers face more fraud, mistaken representations, false advertising, and operational errors in online transactions. From the perspective of protecting consumer rights, legally regulating these threats to consumer rights is of great significance for promoting the development of e-commerce. This paper attempts to comprehensively explore the issues of consumer protection in e-commerce through an analysis of South Korea's e-commerce consumer protection laws. E-commerce is a new phenomenon in China, and the construction of relevant laws is still in its early stages. Based on an analysis of South Korean relevant laws, this paper proposes some constructive suggestions for the development and improvement of China's e-commerce laws and policies.