Civil and Commercial Law Symposium (Volume 29)

Author: Liang Huixing
Publisher:
Publishing Date: 2004-03-01
Features: This volume is the 29th issue of the Civil and Commercial Law Series. The [Special Studies] section features seven papers. First is Zhang Xingquan's "On Electronic Contracts." Electronic contracts, based on modern electronic communication technology and the internet, as a new form of transaction and legal phenomenon, pose a severe challenge to traditional civil law systems. For example, can contracts be signed through the exchange of electronic communications? Can electronic communications meet the requirements of the anti-fraud law for "written form"? How can communications made through the internet be "authenticated"? Is a "digital signature" equivalent to a handwritten signature? And so on. This paper presents the latest research on electronic contracts. Second is Guo Xikun's "Research on the Pragmatic Contract: A Questioning from a Modern Civil Law Perspective." A pragmatic contract, also known as a conditional contract or a practice contract, is the counterpart to the concept of a consensual contract. We have noticed that some contracts referred to as conditional contracts in textbooks have been classified as consensual contracts in contract law. This "consensualization" phenomenon is either accidental or inevitable? The delivery of the "subject matter" in a pragmatic contract is either a requirement for the formation of the contract or a requirement for its effectiveness? How much room does this long-standing type of contract still have for survival? This paper presents the latest research on pragmatic contracts. Third is Yin Tian's "On the Theoretical Basis and Related Issues of the Good Faith Acquisition of Moveable Property." The author has recently focused on the fundamental theoretical issues of property law and has published several important papers in this journal and others. This paper presents the latest research in this field. The author has conducted a systematic study of the theoretical basis and related issues of the good faith acquisition system and has proposed new insights. Fourth is Ding Lianghua's "Research on the Legal Status of the Company." The important role and significant impact that companies play in modern social life are undeniable. However, our research on the company system has not yet reached the appropriate level. This paper examines the legal status of the company from the perspective of personality and liability, attempting to clarify several conceptual issues: Does the company possess legal personality from the moment of its birth? Is independent liability the inevitable result of the company's independent personality? Does the company's independent liability determine the limited liability of shareholders, or vice versa? The author believes that clarifying these issues is crucial for understanding the institutional reality and improvement of the company system. Fifth is Pan Shenming's "On the Definition of the 'Work' and the Scope of Responsibility in the Liability for Harm Caused by Work." The liability for harm caused by work is an ancient civil law institution, and the current Civil Law Code provides for it. However, the study of this liability in civil law academia has not been, affecting the correct interpretation and application of judicial decisions. This paper focuses on the definition of the "work" and the scope of responsibility in the liability for harm caused by work, providing reference for judicial practice and legislation. Sixth is Xiao Kai's "On the Legal Applicability of Share Transfer in Cross-Border Securities Transactions." This paper begins with the concept of shares, examining its legal nature at different levels and the nature of shares as expressed on stocks in transactions. It then analyzes the traditional theory of the lex rei sitae and its limitations from the perspective of private international law, proposing the dominant role of the company's personal law in the issue of share transfer. Seventh is Jin Zhenbao's "On the Effect of International Treaties in Domestic Law." China has joined an increasing number of international treaties, including bilateral and multilateral treaties, political treaties, economic treaties, human rights treaties, and treaties involving civil and commercial legal relations. The types are diverse. After China joins an international treaty, how should it fulfill its treaty obligations? Do the various principles governing the effect of international treaties in domestic law apply uniformly, or should they be differentiated? This will be a complex issue facing China's legislative, judicial, and administrative authorities in the future. This paper, based on the general theory of the effect of international treaties and the practices of other countries in this regard, examines the various factors that affect the effect of treaties in domestic law and proposes legislative recommendations. Public interest litigation has become a hot topic of research in academia recently. To coincide with the discussion on "public interest litigation" in domestic academia, this volume introduces a new [Citizen Litigation] section, featuring two papers: Cai Congyan's "On Private Antitrust Litigation—The Role and Protection of Private Parties in the Legal Implementation Mechanism" and Xu Weimin's "Research on Environmental Citizen Litigation Issues—With a Focus on U.S. Law." Cai argues that in the context of building a "small government, big society," it is particularly necessary for private parties to actively participate in the implementation mechanism of antitrust law and share the responsibility with the state for enforcing antitrust laws. Drawing on the experience of private antitrust litigation in the United States and the European Community, the author proposes several specific recommendations for establishing a private antitrust litigation system in China. According to Xu, with growing public environmental concern, citizen litigation has been introduced into U.S. environmental statutory law since the 1970s as an incentive and supplement to government enforcement of statutes. Around citizen litigation, a relatively complete system of statutes and case law has been established. The author selects U.S. environmental law citizen litigation as a starting point, analyzing its institutional construction and practical problems, revealing the roots of many controversies and uncertainties, and predicting its future trends, with the aim of providing reference for the establishment of environmental public interest litigation systems in China. The [Academic Debate] section features four papers. First is Wang Guohua's "The Importance of Studying Maritime Law." Since the reform and opening-up, China's shipping industry has made significant progress, with 85% of China's foreign trade goods transported by sea each year. As a commercial law that regulates maritime transport and ship-related relationships, maritime law has become increasingly important since China joined the WTO. Therefore, the author calls for greater attention to the study of maritime law. Second is Wang Liping's "Interpreting Feminist Jurisprudence." The author believes that in all cultural revolutions of the 20th century, feminism will have a great impact. Feminist jurisprudence, as one of the schools of law, observes history, culture, and social phenomena with its unique methodology and gender perspective, presenting a different approach to legal theory research and has become a new trend in China's social sciences. To the author's knowledge, this is the first academic paper on feminist jurisprudence in China and is worth attention. Third is Yang Yuan's "On 'Animals Are Not Things, What Are They?'" Since the amendment of Article 90a of the German Civil Code on August 20, 1990, which states "Animals Are Not Things," the legal status of animals has become a hot topic of academic research. This journal has previously published Gao Lihong's paper "Animals Are Not Things, What Are They?" which has attracted the attention of readers. The debate centers on whether animals can become legal subjects. This paper responds to this issue. The author argues that it is theoretically problematic and practically unfeasible for animals to become legal subjects. Fourth is Rudolf Wassermann, a German scholar, "Review of German Euthanasia Legislation." Whether legal professionals are willing or not, the issue of euthanasia is one they must face. It is worth noting that the issue of euthanasia has become a hot topic in domestic academia and public opinion. Both those who support euthanasia and those who oppose it have compelling arguments. This paper reviews German euthanasia legislation, translated by Fan Lijun. The [Foreign Law] section features three papers. First is Liang Zhangmu's "Recent Amendments to the Korean Civil Code—The Concrete Manifestation of Legislative Work in the 'Development' of Law," translated by Cui Jizi. Second is Wang Chengzhi's "Discussion on the Application of Private International Law Treaties in the United Kingdom—Taking the Brussels Convention as an Example." In how to handle the relationship between international treaties and domestic law, the United Kingdom has different practices from other countries. Treaties concluded and ratified by the British monarch must first be recognized by Parliament, and a law consistent with the treaty must be passed by Parliament to transform the relevant rules of the treaty into the domestic legal system. Only then can the treaty have legal effect in the United Kingdom and be applied by British courts. This reflects the United Kingdom's constitutional principle of "parliamentary supremacy." However, EU law, including the Rome Treaty, can be directly applicable in the United Kingdom, which is an exception. China's Constitution has not made clear provisions on the domestic application of international treaties, and the regulations in various legal branches on this issue are inconsistent, leading to confusion and lack of coordination in judicial practice. The practices and experience introduced in this paper are undoubtedly valuable for China. Third is Peter Schlosser's "Perpetual Defenses and Balancing Relationships." China's Guarantee Law and Contract Law have successively stipulated several defenses, but due to insufficient research on defenses in academia, there is no theoretical support for the correct interpretation and application of various defenses in judicial practice. This paper studies perpetual defenses and provides reference for theoretical research and practice. Sports have become a booming industry, and Beijing's successful bid for the 2008 Olympics has become an opportunity to promote the industrialization of sports in China. However, the industrialization of sports, or what is known as the economic development of sports, requires legal regulation and support. To this end, this volume introduces a new [Sports Law Research] section to publish research results in the field of sports law. This issue features two papers. First is Guo Shuli's "Research on the Olympic Sports Arbitration System." Based on extensive reference and study of sports arbitration legislation and practices in developed countries, the author proposes recommendations for establishing a sports arbitration system in China, which is worth attention. Second is a paper by Japanese scholar Shinkawa Sadao, "The Role, Concepts, and Current Challenges of Sports Law—Problems in Local Government Sports Administration Systems," translated by Wu Bo. The paper analyzes Japan's sports promotion legislation, sports administration concepts, and Japan's experience and problems, providing reference for China. The purpose of the Civil and Commercial Law Series is to start from the actual situation of China's reform and opening-up and the development of a modern market economy, widely reference the successful experiences of civil and commercial legislation and the latest judgments and doctrines in developed countries and regions, study the basic theories and major legal issues of civil and commercial law, provide a scientific legal foundation for the modernization of China's civil and commercial legislation and the scientificization of judicial practice, enhance the theoretical level of China's civil and commercial law, and cultivate theoretical talents in civil and commercial law. The 29th volume of the Civil and Commercial Law Series has published more than ten of the latest research results in civil and commercial law, including: "On Electronic Contracts," which presents the latest research on electronic contracts and explores issues such as whether contracts can be signed through the exchange of electronic communications, whether electronic communications can meet the requirements of the anti-fraud law for "written form," how communications made through the internet can be authenticated, and whether a "digital signature" is equivalent to a handwritten signature. "On the Theoretical Basis and Related Issues of the Good Faith Acquisition of Moveable Property" conducts a systematic study of the theoretical basis and related issues of the good faith acquisition system and proposes new insights. "On Private Antitrust Litigation—The Role and Protection of Private Parties in the Legal Implementation Mechanism" draws on the experience of private antitrust litigation in the United States and the European Community to propose specific recommendations for establishing a private antitrust litigation system in China. "Research on Environmental Citizen Litigation Issues—With a Focus on U.S. Law" selects U.S. environmental law citizen litigation as a starting point, analyzing its institutional construction and practical problems, revealing the roots of many controversies and uncertainties, and predicting its future trends, with the aim of providing reference for the establishment of environmental public interest litigation systems in China. "Interpreting Feminist Jurisprudence" is the first academic paper on feminist jurisprudence in China and is worth attention. "Review of German Euthanasia Legislation" argues that the issue of euthanasia is one that legal professionals must face, and it has become a hot topic in domestic academia and public opinion. Both those who support euthanasia and those who oppose it have compelling arguments. This paper reviews German euthanasia legislation. "Discussion on the Application of Private International Law Treaties in the United Kingdom—Taking the Brussels Convention as an Example" introduces the practices and experience of the United Kingdom, which are valuable for China to learn from. "Perpetual Defenses and Balancing Relationships" studies perpetual defenses, providing reference for theoretical research and practice. "Research on the Olympic Sports Arbitration System" proposes recommendations for establishing a sports arbitration system in China based on extensive reference and study of sports arbitration legislation and practices in developed countries.