Civil and Commercial Law Forum (Volume 33)

Author: Liang Huixing
Publisher:
Publish Date: 2005-08-01
Features: The purpose of the 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, extensively refer to the successful legislative experiences and latest case law and doctrines of 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 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, in which the author concludes that the principle of property rights determination is beneficial in reducing information costs in transactions and thereby promoting 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. Study on the Foreseeability Rule in the Relationship of Torts in U.S. Tort Law, the author proposes to learn from the foreseeability rule in U.S. 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 WTO Accession as a Turning Point, using China's WTO accession as a, it explores the general requirements of foreign-related arbitration systems in the context of economic globalization and, as a reference, points out certain deficiencies in China's foreign-related arbitration system, finally proposing countermeasures. 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 numerous problems in implementation, making it highly valuable for theoretical discussion and having significant implications for judicial practice in various countries. Draft of the Chinese Real Estate Registration Bill (Proposal), a research outcome of the National Social Science Fund Project Research on Real Estate Registration Systems. This volume is the 33rd issue of the Civil and Commercial Law Forum (Issue 1, 2005).
Special Studies 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 concludes that the principle of property rights determination plays a significant role in reducing information costs in transactions and promoting smooth transactions by applying methods from microeconomics, macroeconomics, and welfare economics. Second, Wang Chuancai's Study 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 public interests. 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 coastal islands with an 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 sustaining human habitation can bring a country 430,000 square kilometers of jurisdictional sea. Clearly, these seemingly insignificant uninhabited islands scattered across the vast ocean carry the responsibility of safeguarding national maritime territory security. However, due to legislative lag, the situation of "no one managing uninhabited islands" has arisen, with unclear ownership of uninhabited islands, and incidents such as bombing islands, rocks, and mountains for stone extraction, as well as other serious changes to the landscape and morphology of islands, occurring frequently. More painfully, some uninhabited islands in, the Xisha Islands, and the Nansha Islands have been neglected for years, leading to their occupation by neighboring countries and causing profound historical lessons. Therefore, research on the property rights system of uninhabited islands has significant theoretical and practical value. 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, using preparatory amalgamation of claims to address claim convergence issues; Second, using the declaration of claim as the cause of action, treating claims as means for parties to attack and defend; Third, borrowing from the common law system, using natural facts as the cause of action, with claims still 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—A Gender Analysis of the Marriage Law and Legislative Improvement. The authors argue that to truly eliminate gender inequality 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 improvements for 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 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, abolishing the declaration of missing persons system, and 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 solutions. Third, Li Xintian and Zhu Qiangjuan'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 the starting point for their capacity to exercise and seek remedies. 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 license system, with a minimum establishment fund requirement and a relatively complex establishment process, whereas the common law system largely adopts a registration system or a free establishment system, without a minimum establishment fund limit and a relatively simple establishment process. This paper studies the various legal issues of foundation establishment under the corpus juris system.
Foreign Law section selects three articles. First, Xu Liang's Sources and Evolution of Privacy Rights in U.S. Common Law. Since the implementation of the General Principles of Civil Law, cases and discussions regarding claims for mental damages due to privacy violations have been hot topics in social life, but academic research on privacy rights remains relatively weak. This paper explores the sources and evolution of privacy rights in U.S. common law, particularly the typological study of 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 Torts in U.S. Tort Law. The foreseeability rule in U.S. 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 the tortfeasor is only liable for foreseeable damages and must be liable for all foreseeable damages. The foreseeability rule has become the authoritative theory of causation in U.S. tort law because it reflects fairness while abandoning the rigidity and unpredictability of the direct result rule. 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 U.S. law can enable judges in China to make accurate and unified judgments in complex tort cases involving intervening causes. Third, Zhuorina Kang of the United States' Intellectual Property and Economic Development: Historical Experiences and Lessons from Europe and the United States, the author is a professor in the Department of Economics at Bowdoin College in Maine, U.S. The paper focuses on analyzing the patent and copyright systems of Europe and the United States and summarizes their historical experiences and lessons. This paper was commissioned by the UK Intellectual Property Office and used as background material for drafting 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 China's Maritime Code stipulates two types of "shippers," leading to theoretical disputes over how to identify "shippers" and define their rights and obligations, and differing judgments in judicial practice, making the "shipper" issue the most acute in maritime law theory and practice. This paper, combining judicial practice, analyzes the necessity of stipulating two types of "shippers" in the Maritime Code, proposes legislative and judicial interpretation solutions 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 suggestions 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 China's Insurance Law 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 recognized by the insured regarding the amount of insurance. This so-called "invalidity" refers to absolute or relative invalidity? Partial or total invalidity? Is it a mandatory or optional regulation? What is the nature and formal requirements of "written consent"? Does the lack of "written consent" affect the contractual rights and interests the insured "enjoys"? Who bears the duty of attention regarding the invalidity of the insurance contract? Who should bear the liability for pre-contractual torts and its scope? These have long been issues troubling judicial practice. This paper is a comprehensive case study addressing these questions.
Arbitration Issues section publishes Wang Zuxing's Challenge and Response: Deficiencies and Improvements of China's Foreign-Related Arbitration System in the Context of Economic Globalization—Taking the WTO Accession as a Turning Point. This paper uses China's WTO accession as a, exploring the general requirements of foreign-related arbitration systems in the context of economic globalization, including procedural independence, autonomy, openness, and operational efficiency. It then uses these as a reference to point out certain deficiencies in China's foreign-related arbitration system and proposes countermeasures for these deficiencies from both micro and macro perspectives.
International Issues section 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 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 place 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 (Draft) was adopted by the UN 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 resource. 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 encountered numerous problems in implementation, some of which are highly valuable for theoretical discussion and have significant implications for judicial practice in 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 judicial practices from various countries to study the problems in the implementation of the Hague Service Convention, holding significant 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 1983 and 1995 Ship Insurance Clauses have long dominated the maritime insurance market. The London Market's Joint Committee on Ship Insurance launched new ship insurance rules in 2002, combining the advantages of the previous two clauses and addressing their shortcomings, and it is expected 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, held an expert discussion meeting on the draft Property Rights Law in early August, and the Standing Committee of the National People's Congress conducted the second review of the draft Property Rights Law in October. However, the Standing Committee of the National People's Congress did not conduct the third review of the draft Property Rights Law in December, indicating that the original plan to pass the draft Property Rights Law in March 2005 has changed. It is said that it will now be passed at the National People's Congress in March 2006. According to the draft Property Rights Law (Second Review Draft), the change of real property rights is subject to "registration" as the method of publicity. It is clear 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 proposal was drafted by Hai Yong and is a research outcome of the National Social Science Fund Project Research on Real Estate Registration Systems.