Civil and Commercial Law Symposium (Volume 34)

Author: Liang Huixing
Publisher:
Publish Date: 2006-02-01
Features: This volume is the 34th issue of the Civil and Commercial Law Series. The [Special Research] section features seven papers. First is Gao Yanzhu's "Research on the Legal Issues of Sexual Harassment." Unwelcome sexual contact and sexual demands are referred to as "sexual harassment" (sexual harassment). The most sensational sexual harassment lawsuits reported in the media include Anita Hill, a law professor at the University of Oklahoma, suing Supreme Court Justice Clarence Thomas for sexual harassment; Paula Jones, an Arkansas state employee, suing President Bill Clinton for sexual harassment; and Katherine Kolakoston, an American woman, suing Louis Mariagostino, the head of the United Nations Development Programme, for sexual harassment. Sexual harassment cases have become a hot topic in recent civil trials. Chinese courts and judges, facing the sudden influx of various sexual harassment cases, struggle to respond due to the lack of specific provisions in the current law. It is reported that the National People's Congress has received multiple proposals for drafting an anti-sexual harassment law, and the drafting work has officially begun. This paper studies the definition of sexual harassment, theories related to sexual harassment, international legislative experiences in combating sexual harassment, and proposes a legislative proposal for anti-sexual harassment tailored to China's context, which also provides reference value for judges presiding over sexual harassment cases. This volume features a [Sports Law] section with four articles. First is Huang Shixi's "Exploring Several Issues of the Special Sports Arbitration System for the Olympic Games." The International Court of Arbitration for Sport was established in 1984 and has a history of over 20 years. Since its establishment, the International Court of Arbitration for Sport has been managed by the International Olympic Committee, which has led to a lack of trust in its independence, especially among athletes in the sports community. In 1993, a ruling by the Swiss Supreme Court led the International Olympic Committee to recognize the need to reform the International Court of Arbitration for Sport, establishing the International Council of Arbitration to oversee its activities. Starting with the Atlanta Olympics in 1996, a special arbitration division of the International Court of Arbitration for Sport was established to handle disputes arising during the Olympics and related to the Olympics, playing a positive role in the smooth holding of the Olympic Games. Subsequent Winter Olympics, such as those in Nagano, Sydney, and Salt Lake City, also established special arbitration divisions. Originally, organizations like the International Association of Athletics Federations and the FIFA, which did not recognize the jurisdiction of the International Court of Arbitration for Sport, subsequently accepted its arbitration clauses in 2001 and 2002, allowing all international single-sport federations within the Olympic framework to accept its jurisdiction. In view of the upcoming 2008 Olympics, this paper primarily explores issues related to the special sports arbitration for the Olympics, hoping to contribute to resolving sports arbitration issues for the Beijing Olympics. The [Legislative Research] section features Li Xia's "On Guardianship for Persons with Deficient Adult Capacity." The adult guardianship system is designed to protect adults with weak decision-making abilities. With the development of international human rights and the arrival of an aging society, the declaration of incapacity is no longer suitable for respecting human rights and protecting the elderly. The guardianship has system been substantially reformed in terms of both value philosophy and institutional structure. This paper proposes that the draft Chinese Civil Code include an adult guardianship system, incorporating new concepts such as respecting the self-determination of the person and maintaining the normal life of the person, with freedom as the highest value pursuit. It divides the capacity of adults into two levels—capable and incapable—and abolishes the declaration of incapacity. It also proposes establishing testamentary guardianship, which takes precedence over statutory guardianship, and expanding the scope of the person under guardianship to include the elderly and other disabled individuals, while improving relevant laws and regulations. The [International Law Issues] section features two papers. First is "The Historical Evolution of Private International Law" by [USA] Jung, translated by Song Xiao. The author disagrees with the claim that conflict of laws is one of the "most historically colorless fields." He argues that the history of conflict of laws has accumulated remarkable and rich intellectual resources, which still guide today's theory and practice. Indeed, all methods worth trying, with labels that are either the same or different, have been attempted in the past. From the historical literature of conflict of laws, we can identify three basic legal selection methods: creating direct rules governing multilateral transactions, i.e., the substantive law method; determining the scope of personal and territorial effects of court-local rules, i.e., the unilateralism method; and placing legal selection rules between multilateral cases and legal systems, i.e., the multilateralism method. These three methods have coexisted since the Middle Ages. Although "the synthesis of methods" is not a new phenomenon, it has been given new significance today. In the United States and Europe, there is a trend to break away from rigid multilateral legal selection rules and revive the unilateralism method. Meanwhile, the idea of solving multilateral legal issues within a transnational framework is resurgent, as evidenced by the current debate over a new commercial law. This paper is excerpted from the author's book "Legal Selection and Multilateral Justice," translated by Song Xiao. The [Foreign Law] section features three articles. First is "Basic Freedoms in the Economy" by [Germany] Holger Schulte. The author believes that for Chinese observers interested in Germany's development, the relationship between basic freedoms and the economy may be of particular interest in two aspects. On one hand, the federal states of the former German Democratic Republic have completed the transformation of the economic and ownership order, which corresponds to the current social development in China, but on the other hand, the traditional Federal Republic's economic and social conditions still face pressure to further eliminate controls, stemming from global market openness and the liberalization of the EU market. Translated by Wang Hongliang. The [Master's Thesis] section features "A Study on Legal Issues of Consumer Protection in Korean E-commerce" by [South Korea] Jeong Joomi. With the widespread use of the internet, an increasing number of consumers are using e-commerce for consumption. Due to the virtual nature, borderlessness, and high-technology characteristics of the internet, compared to traditional transactions, consumers face more fraud, mistaken representations, false advertising, and operational errors in online transactions. From the perspective of protecting consumer rights, legally regulating these threats to consumer rights is of great significance for promoting the development of e-commerce. This paper attempts to comprehensively explore the issue of consumer protection in e-commerce through an analysis of South Korea's e-commerce consumer protection laws. E-commerce is a new phenomenon in China, and the construction of relevant laws is still in its early stages. Based on an analysis of South Korean relevant laws, this paper proposes some constructive suggestions for the development and improvement of China's e-commerce laws and policies. This volume is the 34th issue of the Civil and Commercial Law Series. The [Special Research] section features seven papers. First is Gao Yanzhu's "Research on the Legal Issues of Sexual Harassment." Unwelcome sexual contact and sexual demands are referred to as "sexual harassment" (sexual harassment). The most sensational sexual harassment lawsuits reported in the media include Anita Hill, a law professor at the University of Oklahoma, suing Supreme Court Justice Clarence Thomas for sexual harassment; Paula Jones, an Arkansas state employee, suing President Bill Clinton for sexual harassment; and Katherine Kolakoston, an American woman, suing Louis Mariagostino, the head of the United Nations Development Programme, for sexual harassment. Sexual harassment cases have become a hot topic in recent civil trials. Chinese courts and judges, facing the sudden influx of various sexual harassment cases, struggle to respond due to the lack of specific provisions in the current law. It is reported that the National People's Congress has received multiple proposals for drafting an anti-sexual harassment law, and the drafting work has officially begun. This paper studies the definition of sexual harassment, theories related to sexual harassment, international legislative experiences in combating sexual harassment, and proposes a legislative proposal for anti-sexual harassment tailored to China's context, which also provides reference value for judges presiding over sexual harassment cases. This volume features a [Sports Law] section with four articles. First is Huang Shixi's "Exploring Several Issues of the Special Sports Arbitration System for the Olympic Games." The International Court of Arbitration for Sport was established in 1984 and has a history of over 20 years. Since its establishment, the International Court of Arbitration for Sport has been managed by the International Olympic Committee, which has led to a lack of trust in its independence, especially among athletes in the sports community. In 1993, a ruling by the Swiss Supreme Court led the International Olympic Committee to recognize the need to reform the International Court of Arbitration for Sport, establishing the International Council of Arbitration to oversee its activities. Starting with the Atlanta Olympics in 1996, a special arbitration division of the International Court of Arbitration for Sport was established to handle disputes arising during the Olympics and related to the Olympics, playing a positive role in the smooth holding of the Olympic Games. Subsequent Winter Olympics, such as those in Nagano, Sydney, and Salt Lake City, also established special arbitration divisions. Originally, organizations like the International Association of Athletics Federations and the FIFA, which did not recognize the jurisdiction of the International Court of Arbitration for Sport, subsequently accepted its arbitration clauses in 2001 and 2002, allowing all international single-sport federations within the Olympic framework to accept its jurisdiction. In view of the upcoming 2008 Olympics, this paper primarily explores issues related to the special sports arbitration for the Olympics, hoping to contribute to resolving sports arbitration issues for the Beijing Olympics. The [Legislative Research] section features Li Xia's "On Guardianship for Persons with Deficient Adult Capacity." The adult guardianship system is designed to protect adults with weak decision-making abilities. With the development of international human rights and the arrival of an aging society, the declaration of incapacity is no longer suitable for respecting human rights and protecting the elderly. The guardianship system has been substantially reformed in terms of both value philosophy and institutional structure. This paper proposes that the draft Chinese Civil Code include an adult guardianship system, incorporating new concepts such as respecting the self-determination of the person and maintaining the normal life of the person, with freedom as the highest value pursuit. It divides the capacity of adults into two levels—capable and incapable—and abolishes the declaration of incapacity. It also proposes establishing testamentary guardianship, which takes precedence over statutory guardianship, and expanding the scope of the person under guardianship to include the elderly and other disabled individuals, while improving relevant laws and regulations. The [International Law Issues] section features two papers. First is "The Historical Evolution of Private International Law" by [USA] Jung, translated by Song Xiao. The author disagrees with the claim that conflict of laws is one of the "most historically colorless fields." He argues that the history of conflict of laws has accumulated remarkable and rich intellectual resources, which still guide today's theory and practice. Indeed, all methods worth trying, with labels that are either the same or different, have been attempted in the past. From the historical literature of conflict of laws, we can identify three basic legal selection methods: creating direct rules governing multilateral transactions, i.e., the substantive law method; determining the scope of personal and territorial effects of court-local rules, i.e., the unilateralism method; and placing legal selection rules between multilateral cases and legal systems, i.e., the multilateralism method. These three methods have coexisted since the Middle Ages. Although "the synthesis of methods" is not a new phenomenon, it has been given new significance today. In the United States and Europe, there is a trend to break away from rigid multilateral legal selection rules and revive the unilateralism method. Meanwhile, the idea of solving multilateral legal issues within a transnational framework is resurgent, as evidenced by the current debate over a new commercial law. This paper is excerpted from the author's book "Legal Selection and Multilateral Justice," translated by Song Xiao. The [Foreign Law] section features three articles. First is "Basic Freedoms in the Economy" by [Germany] Holger Schulte. The author believes that for Chinese observers interested in Germany's development, the relationship between basic freedoms and the economy may be of particular interest in two aspects. On one hand, the federal states of the former German Democratic Republic have completed the transformation of the economic and ownership order, which corresponds to the current social development in China, but on the other hand, the traditional Federal Republic's economic and social conditions still face pressure to further eliminate controls, stemming from global market openness and the liberalization of the EU market. Translated by Wang Hongliang. The [Master's Thesis] section features "A Study on Legal Issues of Consumer Protection in Korean E-commerce" by [South Korea] Jeong Joomi. With the widespread use of the internet, an increasing number of consumers are using e-commerce for consumption. Due to the virtual nature, borderlessness, and high-technology characteristics of the internet, compared to traditional transactions, consumers face more fraud, mistaken representations, false advertising, and operational errors in online transactions. From the perspective of protecting consumer rights, legally regulating these threats to consumer rights is of great significance for promoting the development of e-commerce. This paper attempts to comprehensively explore the issue of consumer protection in e-commerce through an analysis of South Korea's e-commerce consumer protection laws. E-commerce is a new phenomenon in China, and the construction of relevant laws is still in its early stages. Based on an analysis of South Korean relevant laws, this paper proposes some constructive suggestions for the development and improvement of China's e-commerce laws and policies.