Civil and Commercial Law Forum (Vol. 33)

Author: Liang Huixing, Editor-in-Chief
Publisher:
Publishing Date: 2005-08-01
Features: The purpose of Civil and Commercial Law Forum is to start from the practical experience of China's reform and opening-up and the development of a modern market economy, widely refer to the successful legislative experiences and new case law and doctrines in developed countries and regions, 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 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, where the author concludes that the principle of property rights determination reduces information costs in transactions and thereby promotes smooth transactions by applying methods from microeconomics, macroeconomics, and welfare economics. Exploring the Civil Protection of Unborn Persons, which analyzes the trend of strengthening the protection of the rights of unborn persons from the perspective of tort law and suggests that China should establish relevant legal systems as soon as possible to strengthen the legal protection of unborn persons. Research on the Foreseeability Rule in American Tort Law in the Context of Liability Relationships, where 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 Improvement of China's Foreign-Related Arbitration System in the Context of Economic Globalization—Taking the Accession to the WTO as an Opportunity, which 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 and, as a reference, points out certain defects in China's foreign-related arbitration system, proposing countermeasures in the end. Problems in Implementation, where 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 value for theoretical discussion and have an important impact on the judicial practice of various countries. Draft of the Chinese Real Estate Registration Bill (Proposal), which is the research outcome of the National Social Science Fund Project Research on the Real Estate Registration System. This volume is the 33rd issue of Civil and Commercial Law Forum (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 thereby promoting smooth transactions by applying methods from microeconomics, macroeconomics, and welfare economics. Second, Wang Chuancai's Research 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 franchisors but unfair to franchisees and may 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 coastline area of over 500 square kilometers, of which 6,528 are uninhabited. From political, economic, or military perspectives, China's numerous uninhabited islands hold significant strategic importance. The utilization and development of uninhabited islands are always closely intertwined with disputes over maritime resource ownership 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 is clear that these seemingly insignificant uninhabited islands scattered across the vast ocean carry the important responsibility of safeguarding national maritime territory. However, due to legislative lag, the situation of "no uninhabited island being managed" has led to unclear ownership of uninhabited islands, with incidents such as bombing islands, rocks, and mountains for stone extraction and other serious changes to the landscape and morphology of islands occurring frequently. More painfully, some uninhabited islands in the Diaoyu Islands, Xisha Islands, and Nansha Islands have been neglected for years, resulting in many reefs being occupied by neighboring countries, leaving a painful historical lesson. Therefore, research on the property rights system of uninhabited islands is of great 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 resolving claim convergence issues through the combination of; 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 approach of using natural facts as the cause of action, with claims similarly 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 argue that to truly eliminate inequality between men and women and achieve equal protection of women's rights, a gender perspective should be incorporated into the legislative process. This paper uses gender equality theory to analyze the impact of the Marriage Law on men and women, pointing out that certain formal gender equality provisions may be disadvantageous to women and, from a gender equality perspective, proposes legislative recommendations for improving the Marriage Law. 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 aligns with China's conditions and should be retained. At this time of drafting the Civil Code, the authors systematically study the declaration of missing persons system and the methods of protecting the interests of missing persons, proposing legislative recommendations. Third, Li Xintian and Zhu Qiongjuan's Exploring the Civil Protection of Unborn Persons. Should the law protect the life of an unborn entity? 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 argue that unborn persons should be distinguished from "persons" in the law and that "birth" should be considered the starting point for the enjoyment of rights and remedies for unborn persons. This paper primarily analyzes the trend of strengthening the protection of the rights of unborn persons from the perspective of tort law and suggests that China should establish relevant legal systems as soon as possible to strengthen the legal protection of unborn persons. 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 requirement and a relatively complex establishment process, while common law jurisdictions generally adopt a registration system or a free establishment system, without a minimum establishment fund requirement and a relatively simple establishment process. This paper studies the various legal issues related to 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 the right to privacy and the award of mental damage compensation have been hot topics in social life, but academic research on the theoretical aspects of privacy rights remains weak. This paper explores the sources and evolution of privacy rights in American common law, particularly the typological research on privacy rights, which undoubtedly has reference significance for our theoretical research and judicial practice. Second, Liu Xinping's Research on the Foreseeability Rule in American Tort Law in the Context of Causation. 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 requirement that the damages for which a negligent tortfeasor is liable must be foreseeable, meaning that the tortfeasor is only liable for foreseeable damages and must be liable for all foreseeable damages. 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 influences the judge's judgment as much as foreseeability. The author argues that learning from the foreseeability rule in American law can enable judges in China to make accurate and unified judgments in handling complex tort cases involving intervening causes. Third, Zhuorina Kang of the United States' Bowdoin College's Department of Economics, Intellectual Property and Economic Development: Historical Experiences and Lessons from Europe and the United States, the author of the article is a professor in the Department of Economics at Bowdoin College in Maine, USA. The article focuses on analyzing the patent and copyright systems of Europe and the United States and summarizing 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] 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 their rights and obligations, and differing judgments 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, proposes legislative recommendations and judicial interpretation schemes to delete the definition of shippers 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 Rebalancing of Interests in Transition. The author argues that the disclosure system in insurance law is established to correct 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 liabilities, 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, proposing recommendations for rebuilding 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 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 the amount of insurance is not recognized. This so-called "invalidity of the contract" refers to absolute or relative invalidity? Partial or total invalidity? 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 bears the duty of attention regarding the invalidity of the contract? Who should bear the liability for pre-contractual torts and its scope? These have long been issues that have 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 an Opportunity. 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 efficiency of procedures. It uses this as a reference to point out certain defects in China's foreign-related arbitration system and proposes countermeasures for these defects from both micro and macro perspectives.
[International Issues] selects two articles. First, Catherine Walsh of Canada's Factoring of Accounts Receivable and Conflict of Laws—A Review of the Draft Convention on the Transfer of Accounts Receivable in International Trade by the United Nations Commission on International Trade Law. Factoring of accounts receivable 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 their respective self-contained laws. However, the dual nature of the transferred claim increases the complexity of the conflict of laws issue. 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 Accounts Receivable in International Trade 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 detailed explanations 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 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] 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 1983 and 1995 Ship Insurance Clauses have long dominated the maritime insurance market. The London Market Association's Joint Ship Insurance Committee introduced 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 an expert discussion meeting on the draft of the Property Rights Law was held in early August. In October, the NPC Standing Committee conducted the second review of the draft of the Property Rights Law, but in December, the NPC Standing Committee 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 draft of the Property Rights Law (second review draft), the change of real property rights is subject to "registration" as the means 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 Yong and is the research outcome of the National Social Science Fund Project Research on the Real Estate Registration System.