Private Law Research (Volume 5)

Author: Wu Handong
Publisher:
Publish Date: 2005-12-01
Features: In the scorching July, the sun melts gold, and it is the time when fruits, after a long period of nurturing, are in full bloom. Our Private Law Studies Volume 5 is now presented to readers as a record of intellectual collisions. This volume of Private Law Studies will continue to explore and discuss with everyone in five thematic sections: Civil Code Studies, Private Law Topics, Foreign Law Reviews, Intellectual Property Law, and Book Reviews.
In "Civil Code Studies," all the content in this issue is closely related to the formulation of the Civil Code. Dr. Li Zhongyuan's article "The Evolution of Civil Law Thought on the Continental Europe from the 16th to the 19th Century" examines the civil law thought during this historically significant period and meticulously elaborates on its evolution on the continent. This research lays a foundational role in helping us understand the major civil law schools within the civil law system. Currently, multiple versions of the Property Law draft exist in China, but scholars still hold differing views on whether the protection mechanisms for property rights and creditor rights should adopt separate or unified regulations. In the co-authored article "‘Property Rights Claims’ or ‘Protection of Property Rights’—On the Systematic Construction of Property Rights Protection Mechanisms in China’s Property Law Legislation," Mr. Zheng Tianfeng and Mr. Wang Wei analyze the advantages and disadvantages of the two models through a review of historical and existing property rights protection legislation. They argue that in the design of civil law protection mechanisms for property rights, a dualistic structural system with distinct regulations for property rights and creditor rights is more reasonable.
The "Private Law Topics" section continues to maintain its large volume, broad scope, and few restrictions, providing a theoretical platform for all research related to "private law." In the article "From Rational Economic Man to Ecological Rational Economic Man," Professor Lü Zhongmei observes the shift in the assumption of rationality, drawing on her deep understanding of environmental law. After analyzing the origins and flaws of the economic rational man in civil law, she proposes that China’s future Civil Code should adhere to the standard of "ecological rational economic man" and use it as the value orientation of the code. The issue of causation has long been a and in civil law, and debates over it have never ceased during the formulation of China’s Civil Code. In the article "Rectification of the Concept of Causation," Professor Xu Diyu, through rigorous research and tight argumentation, points out that the mainstream concept of causation in China overlooks the existence of internal causation, which prevents us from accurately interpreting relevant German institutions and legal principles, thereby hindering an objective understanding of foreign law. The author argues that we should interpret foreign legal texts while respecting their individuality to correctly recognize foreign legal institutions in civil law.
Professor Peng Zhenming and Mr. Chang Jian's article "On the Improvement of China’s Land Use System" reviews the land use rights system constructed in the existing three "Civil Code Drafts" and proposes new ideas for legislative improvement. The detailed analysis and suggestions in the article are highly beneficial to the formulation of China’s Civil Code. In the article "Reflections on Promoting Intensive Rural Land Management," Mr. Huang Wenchao first analyzes theoretically why intensive rural land management is an inevitable trend, then summarizes several current constraints and several implementation models based on extensive practical experience. Drawing inspiration from the experience of neighboring countries in intensive rural land management, the author concludes that five principles should be followed in China’s process of intensive rural land management. The author’s rigorous and pragmatic research style has brought a refreshing breeze to the legal academia,.
Dr. Zi Lin’s article "On the Evolution of Contractual Justice—From the Perspective of the Unconscionability Rule" chooses political philosophy as an entry point in the study of contractual justice, primarily employing Rawls’ theory of justice. Using formal justice and substantive justice as a bridge, it connects contractual justice with specific rules. The innovative significance of Dr. Zi Lin’s research paradigm is self-evident. Breach of contract is a fundamental legal institution in contract law, with extensive discussions and regulations both theoretically and legislatively. However, grasping the "degree" of breach of contract remains a challenge for legal scholars. Dr. Liu Shuilin’s article "An Economic Interpretation of the Degree of Rational Breach of Contract" provides a new path for studying breach of contract. The article is filled with the passion of an economic law scholar yet remains novel.
The article "Comparative Analysis of Normative Models for Anticipatory Breach of Contract" is another paper on specific institutional research. Dr. Zhu Guangxin compares some foreign contract laws, such as the Civil Code of Germany, the Uniform Commercial Code (UCC), the UN Convention on Contracts for the International Sale of Goods (CISG), the International Convention on Contracts for the International Carriage of Goods by Road (PICC), and the Principles of European Contract Law (PECL), and summarizes three normative models for anticipatory breach of contract. Based on this, the author reflects on Articles 68 and 69 of China’s Contract Law and proposes improvements. The article provides a balanced and thought-provoking study of anticipatory breach of contract.
Mr. Zhao Xiju’s article "On the Informed Consent in Medical Law" focuses on U.S. law, analyzing the historical origins, legal basis, content composition, and remedies of the informed consent principle. It offers significant insights for the construction of related systems in China. Professor Zhao Jiayi’s article "Dangerous Liability in German Law" provides a detailed introduction and interpretation of the concept, theoretical basis, basic types, and commonalities of high-risk civil liability, which originated from Germany’s 1838 Prussian Railway Enterprise Law. This article helps readers gain a comprehensive, detailed, and accurate understanding of the high-risk civil liability system.
In the "Foreign Law Reviews" section, Professor Michael Martininek of Saar University in Germany wrote "Modernization of the Law of Obligations in the German Civil Code—Background, Overview, and Critique" for this journal, offering Chinese scholars a clear blueprint of the process and content of the modernization of the law of obligations in the German Civil Code. The journal also selected the article "Concept and Types of Limited Property Rights" by the renowned Russian civil law professor E.A. Sukhanov. The article introduces some basic theories of limited property rights, focusing on their concept and types, and cites relevant provisions from the Russian Civil Code, presenting the basic features of limited property rights in Russian law. Professor E.A. Sukhanov’s article also reminds us that current Russian civil law research has gradually moved away from the original planned economy model and focuses on learning from legislative examples of countries with more developed civil law systems. Russian civil law has once again become a window for us to understand and study foreign civil law.
In the contemporary era, commercial organizations (enterprises) often appear as composite corporate groups. The relative legal independence of these companies has raised the issue of the parent company’s liability for the debts of its subsidiaries. Germany’s Conzern Law in Book III of its 1965 Company Law was formulated to address this issue and has proven relatively successful. Dr. Susanna Weimann Leonhardt of Saar University in Germany, in the article "On the Parent Company’s Liability for the Debts of its Subsidiaries," provides a detailed introduction to several different types of conzern systems, offering valuable materials for research in this field.
Comparative law is a way to discover the shortcomings of one’s own domestic law and learn from the strengths of others. Dr. Qin Ruiting’s "Comparative Study of Chinese and German Tort Law Conflict" compares Germany’s tort law with China’s tort law conflict law and argues that Germany’s current tort law conflict law is widely popular due to its clarity, practicality, and flexibility, while China’s current tort law conflict law has deviated from the international legislative trends in this field. The article offers insightful thoughts on finding reasonable solutions to tort law conflicts. The column also selected the full text of the provisions of the Netherlands Kingdom’s Conflict of Laws Relating to Debt Relationships Arising from Torts on April 11, 2001, translated by Dr. Zou Guoyong, hoping to provide readers with more information from developed legal systems.
In the "Intellectual Property" section, three excellent papers were selected. In the article "A Brief Analysis of the Basic Issues in Constructing a System to Promote the Industrialization of Intellectual Property," Professor Cao Xinming closely ties the current context of countries competing to formulate national intellectual property strategies, discussing the practicality and foresight of China formulating national, industry, regional, and enterprise intellectual property strategies in the wave of economic globalization. The article argues that constructing a system to promote the industrialization of intellectual property is an important aspect of establishing a national intellectual property strategy. The article has significant theoretical and practical implications for implementing China’s intellectual property strategy and promoting the industrialization of intellectual property.
Dr. Wei Yanliang’s article "U.S. Litigation and Industry Trends Related to P2P and Their Inspiration for China" discusses seven legal issues related to peer-to-peer (P2P) networks, drawing on dozens of legal lawsuits involving P2P networks that have occurred in the United States since 2000. The article then uses the Napster case as an example to discuss the rules requiring P2P operators to bear liability for copyright infringement and analyzes the balance between copyright protection and the public interest. The article comprehensively and timely tracks the litigation and operational trends related to P2P in the United States, systematically introduces the conclusions of typical judgments, and offers strong significance for the development of China’s internet industry.
Dr. Hu Kaitong’s article "Conflict and Legal Resolution Models Between the Right of Name and the Right of Trademark" focuses on the disputes arising from cases where famous names or their homophones are registered as trademarks in daily life. The article analyzes the legal justifications used by administrative and judicial authorities in resolving conflicts between the right of name and the right of trademark, examining the advantages and disadvantages of each approach.