Civil and Commercial Law Forum -- 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 scientificization of judicial practice, thereby enhancing the theoretical level of China's civil and commercial law and cultivating civil and commercial law theorists. 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 uses the methods of microeconomics, macroeconomics, and welfare economics to conclude that the principle of property rights determination is beneficial in reducing information costs in transactions, thereby promoting the smooth progress of transactions. Exploration of Civil Protection for the Unborn, analyzing from the perspective of tort law the trend of strengthening the protection of the rights of the unborn in various countries, and recommending that China establish relevant legal systems as soon as possible to strengthen the legal protection of the unborn. Study of the Foreseeability Rule in American Tort Law in the Context of Liability Relationships, the author proposes to learn from the foreseeability 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 Improvements of China's Foreign-Related Arbitration System in the Context of Economic Globalization—Taking the Accession to the WTO as an Opportunity, taking 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. and 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 is of great value for theoretical discussion and has an important impact on the judicial practice of various countries. Draft of the Chinese Real Estate Registration (Proposal) is the research result of the National Social Science Fund Project Research on Real Estate Registration System. This volume is the 33rd volume of Civil and Commercial Law Symposium (Issue 1, 2005).
Special Research section 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 of this paper uses the methods of microeconomics, macroeconomics, and welfare economics to conclude that the principle of property rights determination plays a significant role in reducing information costs in transactions and thereby promoting the smooth progress of transactions. Second, Wang Chuancai's Study on Non-Compete Clauses in Franchise Contracts. Non-compete clauses are the most commonly used restrictive clauses 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 area 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 coastal area of more than 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 delimitation. 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 uninhabited islands, like bullets on the vast sea, carry the responsibility of safeguarding the security of China's maritime territory. However, due to the lagging legislation, the situation of "no one manages uninhabited islands" has led to unclear ownership of uninhabited islands, and events such as bombing islands, rocks, and mountains for stone have occurred from time to time. More painfully, some uninhabited islands in Diaoyu Island, Xisha Islands, and Nansha Islands have been neglected for many 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 Competing Claims and the Theory of the Object of Action. The phenomenon of competing claims in substantive law has led traditional theories of the object of action into difficulties, giving rise to various so-called new theories of the object of action. However, these new theories of the object of action have not fully resolved the issue. The author of this paper proposes three approaches: First, adhering to the traditional theory of the object of action, using the combination of claims to solve the problem of competing claims; second, using the declaration of claims as the object of action, treating claims as means for parties to attack and defend; third, drawing on the Anglo-American legal system to use natural facts as the object of action, with claims also serving as means for parties to attack and defend.
Legislative Issues section 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 is in line with 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 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 the starting point for the enjoyment of rights and remedies for the unborn. This paper primarily analyzes from the perspective of tort law the trend of strengthening the protection of the rights of the unborn in various countries, recommending that China 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 the common law system mostly adopts 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 section 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 the claim for spiritual damages due to the infringement of privacy rights have always been hot topics in social life, but the theoretical research on privacy rights in academia is still weak. This paper explores the sources and evolution of privacy rights in American common law, especially the typological research on privacy rights, which undoubtedly has reference significance for our theoretical research and judicial practice. Second, Liu Xinping's Study on the Foreseeability Rule in the Causation of American Tort Law. The foreseeability rule in American law is divided into the foreseeability rule in contract law and the foreseeability rule in tort law. The foreseeability rule in tort law refers to the fact that the damage for which a negligent tortfeasor is liable must be foreseeable, that is, the tortfeasor is only liable for foreseeable damage and must be liable for all foreseeable damage. The reason why the foreseeability rule has become the authoritative theory of causation in American tort law is that it reflects fairness while abandoning the rigidity and unpredictability of the direct result rule. It can be said that in the trial of negligent tort cases, no reason is as influential on the judge's judgment as foreseeability. The author of this paper believes that learning from the foreseeability 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 Brunswick, Maine, USA. In the article, she focuses on analyzing the patent and copyright systems of Europe and the United States and summarizes their historical experiences and lessons. This article 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 section compiles 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 differing judgments have emerged in judicial practice, making the "shipper" issue the most acute 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 recommendations and judicial interpretation plans to delete the definition of "shipper" in the Maritime Code and return to the system of the Hague-Visby Rules. Second, Xiao Hebao's The Disclosure System in Insurance Law: A Balance of Interests 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 policyholders and exclude their own responsibilities, leading to an imbalance of interests between insurers and policyholders. 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 recommendations for reconstructing the disclosure system in China's insurance law. Third, Ge Wen's Construction of the Interests 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 contingent on death shall be invalid if they are not approved in writing by the insured and approved by the insured of the insurance amount. This so-called "invalidity of the contract" is absolute or relative? Partial or total? Is it a mandatory or discretionary regulation? 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 contract? Who should bear the liability of contractual tort and its scope? These have long been problems that have troubled judicial practice. This paper is a comprehensive case study addressing these issues.
Arbitration Issues section publishes Wang Zuoxing's Challenge and Response: Deficiencies and Improvements of China's Foreign-Related Arbitration System in the Context of Economic Globalization—Taking the Accession to the WTO as an Opportunity. This paper takes 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 efficiency of procedures. Based on this reference, it points out certain deficiencies of China's foreign-related arbitration system and proposes countermeasures for these deficiencies from both a micro and macro perspective.
International Issues section selects two articles. First, Catherine Walsh of Canada's Factoring of Receivables and Conflict of Laws—A Review of the Draft Convention on the Transfer of Receivables in International Trade of 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 drafting 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 value for theoretical discussion 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 practices of various countries to study the problems in the implementation of the Hague Service Convention, which is of great theoretical and practical significance.
Materials section 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 October 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 in December, the Standing Committee of the National People's Congress did not conduct the third review of the draft of the Property Rights Law. 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 Xiong and is the research result of the National Social Science Fund Project Research on Real Estate Registration System.