Kunlun Legal Studies (Volume 3)

Author: Wang Zuquan
Publisher:
Publish Date: 2006-08-01
Features: This volume is the third of the Kunlun Legal Studies, featuring six sections: "Research on Folk Law and Customary Law," "Civil and Commercial Law Studies," "Criminal Law Special Topics," "Theories of Environmental and Resource Protection Law," "Theoretical Law," and "Graduate Forum."
In the "Research on Folk Law and Customary Law" section, there is one article. Wang Liming and Hua Re’dor’s article, A Preliminary Analysis of the Sources of Customary Law in China’s Civil Law, examines the application of transactional customs in China’s Contract Law. Through an analysis of the practices of civil law systems in the civil law and common law traditions regarding the recognition of customs or usages, the authors conclude: First, China’s civil law should attach importance to customs or usages and strengthen research on them; second, while organizing and incorporating domestic customs or usages into legal systems, studying the foreign law (customs or usages) that has been adopted would be more beneficial for improving China’s civil and commercial legislation; third, China’s Contract Law should stipulate a procedure for identifying transactional customs, particularly the scientific, standardized, and strict regulation of the verification process for transactional customs.
The "Civil and Commercial Law Theories" section includes ten articles. Zhou Jihong’s article, The "Green" Social Responsibility of Companies in Harmonious Relationships between Humanity and Nature, analyzes the lack of harmony between humanity and nature, the social responsibility of companies, and its legal foundation, proposing that companies should bear "green" social responsibility and arguing for the role of the government in this context. Chen Xiaojun’s article, On the Registration of Real Property Rights, discusses the theoretical basis of real property rights registration, its value, and the registration systems of various countries, proposing and arguing for legislative recommendations to improve China’s real property rights registration system. Tan Lerong’s article, A Discussion on the "Necessary Cause Theory" and the "Proximate Cause Theory" in the Causation Theory of Tort Law, analyzes the main theories of causation theory in history and their content, distinguishing between the "necessary cause theory" and the "proximate cause theory." It proposes and argues for specific countermeasures for applying the "proximate cause theory" in the judicial practice of China’s tort law. Ma Xudong’s article, On the Legal Conflict between Trademark Rights, Trade Name Rights, and Domain Name Rights, argues for the significant role of trademark rights, trade name rights, and domain name rights in the market economy, proposing that there is a legal conflict between these rights in China and conducting an in-depth analysis of the causes of the conflict. Liu Jianxia’s article, Revisiting the Civil Liability for False Disclosure of Securities Information, compares the legislative provisions of the old and new Securities Laws regarding false information and argues for the nature and function of civil liability for false disclosure of securities information. Ning Xinhai’s article, Reflections on Several Issues of the System of Third Parties without Independent Claims, discusses the qualification determination and methods of participation in litigation for third parties without independent claims, proposing that there is no need to refine third parties without independent claims, they should not have objections to jurisdiction, should have the right of appeal, and should bear corresponding responsibilities. Yang Yinxia’s article, On the Judge’s Discretionary Power of Free Heart Certainty in Cases of Compensation for Mental Damages, analyzes the repositioning, basic application methods, and limitations of the judge’s discretionary power of free heart certainty in cases of compensation for mental damages, concluding that judges should exercise this power cautiously, with clear objectives, rational determination, unwavering enforcement, and correct discretion. Qi Yingxiang’s article, A Conceptual Framework for the System of Civil Public Interest Litigation, analyzes the connotation of public interest litigation and its legal definition, proposing and arguing for a conceptual framework for China’s civil public interest litigation system. Ma Fang’s article, Legal Improvement of the Power Balance System between Shareholder Meetings and Board of Directors, analyzes the defects in the definition and power balance of shareholder meetings and the board of directors under China’s Company Law, proposing and arguing for measures to improve the power balance between shareholder meetings and the board of directors. Niu Liyun’s article, On the Modern Significance of the Right of Residence, offers a fresh interpretation of the concept of the right of residence and argues for the conclusion that China’s future property law should establish the right of residence.
The "Criminal Law Special Topics" section includes six articles. Jian Jisong’s article, On the "Problem of the Definition of Terrorism Crime," analyzes the origin and essence of the "problem of the definition of terrorism crime" from two perspectives—on the same definition level and on different definition levels—and proposes and argues for a legal logical solution to the problem. Ma Tianshan’s article, A New Perspective on Corruption Crime, interprets the Resolution on Corruption and Related Crimes in International Economic Transactions adopted at the 17th International Criminal Law Conference, discussing the development trends of corruption crime in the context of the international situation. Su Yongsheng’s article, On the Duality of Good and Evil in Criminal Law, proposes that exploring and upholding the ethical essence of criminal law is of great significance in the process of moving from value calls to normative practice, and conducts a beneficial discussion on the concepts, foundations, manifestations, and the necessity, methods, and mechanisms of the combination of good and evil in criminal law. Ma Lanhua’s article, The Spiritual Connotation of the Concept of Integrity in Criminal Law, analyzes the legal theory of the concept of integrity, proposing that the state must abide by integrity, uphold the supremacy of criminal law, and that citizens should uphold criminal law, exercise rights according to law, and fulfill obligations. Ma Junzu’s article, On the Independence of Criminal Defense Lawyers, explores the prerequisites, foundations, and connotations of the independence of criminal defense lawyers based on the need to protect the legitimate rights and interests of criminal defendants, arguing for the procedural improvement mechanisms for the independence of criminal defense lawyers. Li Wenhua’s article, A Preliminary Exploration of the Burden of Proof for Criminal Defendants, proposes that in criminal proceedings, defendants should bear the burden of proof in certain cases, and discusses the rationality, factors to consider, and scope of the burden of proof for criminal defendants.
The "Theories of Environmental and Resource Protection Law" section includes two articles. Zhang Li’s article, Exploring the Subject Qualification of Environmental Public Interest Litigation, argues that environmental rights do not solely belong to individuals but are more part of the public interest, and that the subject of environmental litigation should be expanded to include government departments, environmental protection groups, and the general public to enhance the punishment of environmental pollution and ecological destruction. However, the current litigation mechanisms in China have defects in their public interest protection function, making it difficult to recognize the subject qualification of environmental public interest litigation, which is a key challenge in establishing the system of environmental public interest litigation. Guo Fusu’s article, An Exploration of Environmental Rights, analyzes the background, connotation, and content of environmental rights, conducting a legal theoretical analysis of the nature of environmental rights.
The "Theoretical Law" section includes one article. Chen Haixia’s article, A Preliminary Analysis of the Unity of Legal and Social Effects in Judicial Practice, starts with the connotations of legal effects, social effects, and judicial effects, discussing the specific pathways for achieving the unity of legal and social effects in judicial practice.
The "Graduate Forum" section includes six excellent papers by master’s students in civil and commercial law from law schools, providing a platform for high-level academic exchange among graduate students. Chen Xiaolin’s article, Exploring Issues Related to the Commonly Owned Parts of Divisible Ownership Buildings, conducts an in-depth analysis of the legal nature, shares, management, cost burden, civil liability of co-owners, and related issues of commonly owned parts of divisible ownership buildings. Zhao Hairong’s article, Research on Several Legal Issues of Equity Pledge, focuses on the nature and function of equity pledge, arguing for the setting, rights and obligations of parties in the legal relationship of equity pledge, and the enforcement of equity pledge based on an analysis of the principles of equity pledge. Qi Jin’s article, Research on the Protection of Privacy Rights of Network Personal Data, analyzes the relationship between privacy rights and network personal data, the legal systems of various countries regarding the protection of privacy rights of network personal data, and the legislative status of China regarding privacy rights of network personal data, proposing and arguing for legislative recommendations for China’s privacy rights of network personal data. Guo Wei’s article, Exploring Compensation for Mental Damages in Cases of Property Rights Infringement, compares the systems of compensation for mental damages in property rights of various countries and analyzes the current status of China’s system, reflecting on the application of the system and proposing corresponding improvement measures. Gan Hongyan’s article, A Conceptual Framework for Establishing the System of Acquiescence in China, analyzes the value and institutional framework of acquiescence, proposing and arguing for the establishment of separate and coexisting systems of acquiescence in China. Chen Guowang’s article, A Preliminary Analysis of the Nature and Legal Protection of Trade Name Rights, examines the nature of trade name rights and analyzes and argues for the legal positioning and safeguarding of trade name rights in China.
Knowledge is the result of exchange, and the broader the scope of exchange, the stronger the truthfulness of knowledge, because a wider range of exchange can provide more abundant material for the development of knowledge. Kunlun Legal Studies provides, in a sense, a good window for legal scholars in the western region to communicate with the outside world. Here, we would like to thank the contributors to this volume for their hard work, which has added much brilliance to it; we also extend our gratitude to Peking University Press, its deputy editor Yang Lifan, and his colleagues. Their care and support have, to some extent, enhanced the quality of this volume, enabling it to attract more attention.