This is the 71st article of China Civil Commercial Law Net
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To make it easier for readers to obtain the current frontier research information of civil and commercial law, and to disseminate and promote excellent research in the field of civil and commercial law in my country As a result, the China Civil and Commercial Law Network specially launched the "Civil and Commercial Law Journal" column to collect and sort out the latest papers in the field of civil and commercial law for readers every month. Welcome to read, welcome to forward.
Journal source: "Chinese Social Science", "Chinese Law", "Law Research", "Chinese and Foreign Law", "Law and Business Research", "Tsinghua Law", "Jurist", "Law" , "Legal System and Social Development", "Contemporary Law", "Law Science (Journal of Northwest University of Political Science and Law)", "Modern Law", "Politics and Law Forum", "Law Review", "Law Forum", "Comparative Law Research", "Politics and Law", "Administrative Law Studies", "Journal of East China University of Political Science and Law", "Global Law Review", "Chinese Criminal Law Journal," "Journal of Law", "Politics and Law Review", "Eastern Methodology".
"Social Sciences in China" 2018 Issue 8
1. "The Basic Aspects of China's Intellectual Property Law Changes"
[Abstract] Chinese Intellectual Property Legal theory and practice have gone through a process from transplantation and introduction to self-reliance and innovation. In the past 40 years of reform and opening up, China has proceeded from the basic national conditions and development needs, accurately grasped the attributes and functions of the system, shaped the legal value goals, constructed the rule of law and development operation mechanism, actively carried out system transformation and legal spirit reconstruction, and realized the localization of intellectual property law. At the same time, on the one hand, actively respond to the diversification, stage, risk, and non-modernity issues in the development of legal modernization, and promote the development of knowledge economy through the institutional innovation of intellectual property; on the other hand, effectively respond to the problems in the legal integration pattern. Diversified, fragmented, and unilateral issues, participating in the construction of a global governance system for intellectual property rights, have become a new impetus for the international protection of intellectual property rights. On the basis of the localization of intellectual property laws, China has opened up its own legal modernization realization methods and legal integration options. The basic orientation of its legal changes has rich innovative connotations and clear practical orientation.
Keywords: Intellectual property law changes, localization, modernization integration
This article is selected from the 8th issue of "Chinese Social Sciences" in 2018. The author is Wu Handong, a senior professor at Zhongnan University of Economics and Law, Wenlan.
"Chinese Law" 2018 Issue 4
1. ""Contract + Non-essential + Right of Arbitrary Revocation": Theoretical Model and Normative Analysis of Donation"
[Abstract] The validity of the gift contract stipulated in Article 185 and Article 186 of China's "Contract Law" can be understood as the model of "free + promise + non-essential + arbitrary revocation", which is different from the "Germany" "Free + Concession" in the Civil Code and the French Civil Code"+ Essential" model. But theoretically speaking, this model is not the only feasible model, and there is a problem of poor convergence with the provisions of Article 16 of the "General Principles of Civil Law". The "arbitrary right of cancellation" conflicts with the basic principles of the contract. It also caused controversy over the understanding of “arbitrary revocation right.” This article believes that the object of arbitrary revocation should be interpreted as “the donator’s expression of the donation” rather than the donation contract itself, so as to establish a theory for the revocation of the negligence liability of the revocation. And normative basis; the dispute over whether the gift contract is a burden or a disposition is only a matter of interpretation perspective, and can still be interpreted as a burden; Article 186 of China’s Contract Law limits the right of arbitrary cancellation to the right of the gift The important reason for the exercise before the transfer is to prevent the delivered gift from losing its basis and becoming unjust enrichment; although there is inconsistency between the law and the judicial interpretation, this should not affect the arbitrariness of the donor in the case of a minor or fetal gift Right of cancellation.
Keywords: Gift contract; essential property contract; arbitrary right of cancellation; debt; liability for negligence in contracting; p>
This article is selected from the fourth issue of "Chinese Law" in 2018. The author is Li Yongjun, a professor and doctoral supervisor at China University of Political Science and Law.
2. "Conflicts and Regulations between the Exercise of Trademark Rights and the Protection of Name Rights"
【 Abstract】The conflict between the exercise of trademark rights and the protection of name rights not only concerns the scope of individual rights, but also relates to the delimitation of private rights and the public domain. It is difficult to use the name of a natural person with a certain reputation as a trademark. The “right of transformation” provides relief to the damage of the free use of the victim’s name, individualized interests, and even the interests of identity. In order to maintain a balance between the public interests and the exclusive interests of celebrities, it needs to be defined by the “direct commercial identity” test The legal scope of celebrities. When a natural person uses his own name with a certain reputation as a trademark, it involves the measurement of rights between trademark rights and name rights. The expansion of the application of the principle of proportionality makes it possible to use it to treat conflicting individual rights Weighing becomes possible. By applying the principle of proportionality, neither party is in an advantageous position in the balance of power between the two parties. Depriving natural persons of trademark rights based on the same name does not have a rational basis. Based on the specific circumstances of each case, the duty bearer is granted Obligation to avoid confusion is the only feasible solution.
Keywords: personalized interests; commercialization rights; commercial behavior; principle of proportionality; Principle of good faith;
This article is selected from the 4th issue of "Chinese Law" in 2018, author Ma Yide, professor and doctoral student of the Intellectual Property Research Center of Zhongnan University of Economics and Law Mentor.
3. "The Scope of Social Relations Adjusted by China's Electronic Commerce Law"
[Abstract] To formulate an e-commerce law, we should first analyze the social relationships involved in e-commerce. E-commerce has produced three types of social relationships, one of which is new social relationships that do not change the legal nature of various commercial transactions, but only transfer transactions from offline to online. The new social relationships are various types of commercial transactions. Shared and not within the scope of adjustment of existing laws. International legislation and many domestic legislations regard such social relations as the adjustment objects of special e-commerce laws. my country's "E-Commerce Law (Draft)" has made useful explorations in regulating third-party platforms, but its comprehensive legislative model also has many shortcomings. The most important thing is that the legislation lacks specific adjustment objects and regulates content. There are overlaps, overlaps and contradictions with the current system, and too many declarative clauses. my country's e-commerce legislation should integrate the relevant provisions of my country's "Electronic Signature Law" and "Contract Law", and mainly regulate three types of issues: data messages and electronic contracts, e-commerce platforms, and identification and trust services.
Keywords: E-commerce legislation; "E-commerce Law (Draft)"; adjustment objects; social relations;
This article is selected from the fourth issue of "Chinese Law" in 2018. The author is Liu Ying, a professor and doctoral supervisor of the Law School of Jinan University.
4. "Legal Expression of the Separation of Three Rights in Contracted Land"
[Abstract] The "three rights" separation of contracted land is an innovation in economic theory and has been affirmed by policy documents, but policy "rights" are not legal rights . legalThe government should follow its own logic to convey the idea of the separation of the "three rights" of the contracted land, and it is not appropriate to simply apply policy terminology. Based on the right decomposition theory of the "mother-child" structure in traditional civil law, the "three rights" of contracted land should be divided into the following structure in law: the collective sets the land contract management rights for the contracting farmers on the rural land ownership, and the contracting farmers are in On top of its land contractual management right, it sets land management rights for other business entities. Under the policy guidance of "always adhere to the fundamental status of collective ownership of rural land," "strictly protect farmers' contract rights," and "accelerate the deregulation of land management rights," the relevant rules in the current law should be revised accordingly. The land contractual management right should be purified as an identity property right, and the land management right should be characterized as a property right.
Keywords: "Three Rights" Separation; Land Contract Management Right; Land Contract Right; Land Management Right;
This article is selected from the fourth issue of "Chinese Law" in 2018. The author is Gao Shengping, a full-time researcher at the Research Center for Civil and Commercial Law, Renmin University of China, a professor, and a PhD in Law School of Renmin University of China. Student mentor.
5. "Study on the Reconstruction of the Right System of Farmland Circulation under the Separation of Three Powers"
[Abstract] Based on the realization of the reform goals and the consideration of the positioning of major institutional innovations, land management rights must be characterized as usufructuary rights; the theory and practice of subterranean rights in Germany is The creation of land management rights in China provides a legal basis; the legal rights structure of land management rights separation should be expressed as "land ownership-land contract management rights-land management rights"; the "three rights separation" of contracted land creates a new agricultural The land transfer method has been subdivided into new types of rights, which has brought a systemic impact on the farmland transfer rights system under the "separation of two rights", and put forward the requirements for restructuring the system. Based on the considerations of rich methods, clear system, and "coexistence of property and debt", the allocation of farmland transfer rights under the "three-rights separation" can be integrated into "land ownership-land contractual management rights-land management rights" and "land ownership-land" There are four types of contracted management rights-land lease rights, "land ownership rights-land management rights", and "land ownership rights-land lease rights".
Keywords: Three rights separation; land management rights; farmland transfer; rights system
This article is selected from the 4th issue of "Chinese Law" in 2018, author Song Zhihong: Professor of the Faculty of Law of the Party School of the Central Committee of the Communist Party of China (National School of Administration), Doctor of Law.
"Chinese and Foreign Law" 2018 Issue 4
1. "The attributes of personality rights: from passive defense to active utilization"
【Abstract】Personality The right system itself is open. With the development of social economy, the types of personality rights are becoming more and more abundant. Although the natural human rights theory can demonstrate the legitimacy of the protection of personality rights to a certain extent, it cannot solve the specific system problems of the recognition, development and protection of personality rights. Today, personality rights not only have the attributes of passive defense, but also increasingly feature the characteristics of active use. This is not only reflected in the active use of spiritual personality rights, but also in the necessary control of material personality rights. The coexistence of passive defense and active exercise of personality rights means that it is difficult to achieve full protection and effective use of personality rights by simply enumerating the types of personality rights plus the relief norms of tort law. Only by strengthening the legislation of personality rights and independently regulating personality rights in the civil code can we fully respond to social needs and establish a scientific and future-oriented personality rights system.
Keywords: Personality rights; Passive protection; Material personality rights; Spiritual personality rights; Personality rights in the Civil Code;
This article is selected from the fourth issue of "Sino-Foreign Law" in 2018. The author is Wang Liming, a professor at the Renmin University of China Law School, and a researcher at the Civil and Commercial Law Research Center of Renmin University of China .
2. "Greening the Civil Code and the Adjustment of the Environmental Code"
[Abstract] In response to the need for environmental protection, the Civil Code needs to revise its traditions to a certain extent. However, the Civil Code should still adhere to its inherent characteristics, and there should be restrictions on its "greening". In addition to the civil code, it is necessary to rely on environmental laws and regulations to provide more comprehensive comprehensive protection. my country's current environmental laws and regulationsIt is already a big picture, but it lacks a system construction, which has many adverse effects on the environmental rule of law, and it needs to be systematized. For our country, codification is the best way for environmental laws and regulations to enhance political influence and exert practical effects. The codification of environmental law norms is different from the civil code. Due to its variability and immaturity, it should be "appropriate". The civil code and the environmental code should realize the "co-governance" of the ecological environment: on the one hand, the civil code implements its due environmental protection functions by properly incorporating the concept of environmental protection; on the other hand, the environmental code implements the establishment of relevant rules Seamless connection with the civil code as a whole.
Keywords: Civil Code; Environmental Code; Ecological Protection; Codification; Moderation;
This article is selected from the fourth issue of China and Foreign Law in 2018. The author is Lu Zhongmei, a professor at the School of Law of Tsinghua University; Dou Haiyang, an associate researcher at the Institute of Law, Chinese Academy of Social Sciences.
3. "The Legitimacy Defects Obtained by Preemption and Its Legal Regulations"
[Abstract] The legitimacy of preemptive acquisition is neither due to its efficiency value in promoting the origin of private ownership, nor can it be proved by the "ownerless" state of the subject matter. It lies in the realization of the promise of distributive justice of "reserving enough and equally good for others". In the context of the “flow” of the preemptive object from the “flow” of wealth to the “source” of wealth, the empirical law cannot effectively form a mechanism for discriminating proper possession, and it is impossible to ensure the legitimacy of the realization of preemptive acquisition. This makes the pursuit of efficiency unsustainable, triggers a systematic reflection and institutional transformation of the classical preoccupation and the property order created by it, and forms the type-sharing of the tangible things in the departmental law under the control of the ownership of the intangible constitution path. The system reservation obtained by preemption in the civil law is not of course within the scope of private law protection of "the state does not compete with the people for profit" and "freedom without prohibition by law". The free preemption model is only applicable to preemptive acquisition to meet the needs of survival, and preemption beyond this limit needs to be realized through the preemptive right model. Compared with the original unowned property, the preemptive acquisition of the subsequent unowned property does not involve the monopoly risk of the preemptor over the source of wealth, and the free preemption model can be applied under the conditions of compliance with the principles of environmental protection and resource recycling.
Keywords: free preemption; preemption right; legitimacy constitution; legitimacy defect;
This article is selected from the fourth issue of "Sino-Foreign Law" in 2018, author Zhang Li, a professor at the School of Civil and Commercial Law, Southwest University of Political Science and Law.
4. "Stop infringement judgment and its enforcement"
[Abstract] Stop infringement judgments often appear in my country's judicial practice, and it is necessary to expand from the perspective of interpretation. The judgment to stop the infringement corresponds to the right to stop the infringement, and its main feature is the behavior directed toward the future. If the scope of the claim cannot be directly expanded, similar effects can be achieved through the interpretation of the relevant request and the main text of the judgment in the procedural law. In the face of repeated infringements, it is necessary to clarify the scope of prohibition of payment judgments during execution. As long as the behaviors that occur in the future are exactly the same, the same in type, or substantially the same as those prohibited by the effective judgment, they will be prohibited by the effective judgment. At present, our country’s understanding of the new facts is worthy of reflection, and we should re-understand the application of the rule of obstruction elimination after the end of execution. The judgment to stop the infringement needs to be executed through indirect enforcement. In comparative law, there are two modes of fine and detention, and the payment of compulsory money system. my country should reinterpret the current fine and detention rules, and improve the concurrent application of the delayed performance payment system.
Keywords: stop the infringement; new facts; implementation of obstructive behavior; indirect implementation; delayed performance payment;
This article is selected from the fourth issue of "Chinese and Foreign Law" in 2018. The author is Cao Zhixun, an assistant professor at Peking University Law School.
"Law" 2018 Issue 8
1. "Reform and Opening up and the Development of China's Commercial Law"
[Abstract] After the reform and opening up, China's Commercial Law IV The ten-year development can be roughly divided into three stages: recovery period, development period, and perfection period. The status and scope of commercial law, corporate autonomy and legal enforcement, corporate capital and corporate governance, securities information disclosure and investor protection, negligence of bills and bill defense, the concept of bankruptcy law and corporate importanceOverall, the legislative model and value orientation of insurance law are not only the core issues and development clues of the development of various fields of commercial law for 40 years, but also the development process and general picture of the 40 years of commercial law. The 40-year development of commercial law shows that following and serving the development of the market economy is the original intention and mission of China's commercial law; reform and innovation are the eternal themes of the 40-year development of commercial law; the integration of subject law, behavior law and regulatory law is part of China's commercial law Basic composition: The omnipotence and internationalization of foreign commercial law is an important path for the development of Chinese commercial law. The formulation of the "General Principles of Commercial Law" to govern the commercial legislative system is a future legislative trend with Chinese characteristics.
Keywords: China's commercial law stage of reform and opening up to achieve core issues development law
This article is selected from the 8th issue of "Law", the author Zhao Xudong, China University of Political Science and Law School of Civil, Commercial and Economic Law.
2. "Typical Inspection and Multi-level Structure of Commercial Trading Places-Breaking through the Boundary of Regulations on Exchange Derivatives Trading"
【Abstract】The integration of technological elements and economic ecology is becoming increasingly close, and innovations in commercial transactions based on the freedom of contract and market orientation are emerging in an endless stream. As the products of commercial transactions become more and more complex, and commercial entities become more and more diversified, the venues for commercial transactions are showing an evolution trend from spot to derivatives, from off-exchange to on-exchange. To achieve typified regulation of trading venues, it is necessary to start from product attributes and subject characteristics, and focus on clearly defining the regulatory boundaries and extended application of on-market derivatives transactions, especially futures transactions. When identifying futures contracts, it is necessary to strengthen the analysis of the transaction purpose in the contract clauses. In the process of defining futures exchanges, it is necessary to pay attention to the consideration of the differences between participants and transaction products. It is also necessary to distinguish between securities-type and contract-type securities derivatives for separate regulation. Taking the formulation of the "Futures Law" as an opportunity, my country should take spot, derivatives, on-exchange, and off-exchange as key factors for typification, gradually construct a multi-level commercial trading venue system, and incorporate over-the-counter derivatives trading in the vertical dimension. From the perspective of the futures law legislation, in the horizontal dimension, the security, fairness and efficiency of transactions are maintained in a targeted manner through the coordination of the three elements of transaction mechanism, product, and participants.
Keywords: Classification risk prevention in trading venues, hierarchical construction of futures trading
This article is selected from the 8th issue of "Law" in 2018, author Feng Guo, Zhang Yang, Wuhan University Law School.
3. "The Systematic Interpretation of China's Unregistered Trademark Protection System"
[Abstract] The unregistered trademark protection system in China's law includes three types: unregistered well-known trademark system, ordinary unregistered trademark protection system, and agent and representative trademark protection system. , Each of them is responsible for providing limited protection for different unregistered trademarks. At present, there are ambiguities and uncertainties in the specific rules of various unregistered trademark protection systems, and there are conflicts between the various unregistered trademark protection systems and the registered trademark system. The value basis for the systematic interpretation of the unregistered trademark protection system in my country includes the realization of the legislative purpose of the Trademark Law and the Anti-Unfair Competition Law, the fair protection of the value of unregistered trademarks, and the maintenance of the main body status of the registration and acquisition of trademark rights. In terms of specific rules, unregistered well-known trademarks have the most stringent constitutional conditions and the strongest legal effect, ordinary unregistered trademarks have moderate constitutional conditions and limited legal effects, and the attorney’s trademark and the representative’s trademark have the most relaxed Constitutive conditions and the strongest legal effect, but its legal effect is only effective for specific people.
Keywords: Unregistered trademark, unregistered well-known trademark, ordinary unregistered trademark, attorney’s trademark, representative’s trademark systemized interpretation
This article is selected from the eighth issue of "Law" in 2018, author Wang Taiping, Guangdong University of Foreign Studies "21st Century Maritime Silk Road Collaborative Innovation Center", South China International Intellectual Property Research Institute.
4. "The Legitimacy and Scope of the Illegal Profit Compensation System"
[Abstract] Illegal profit compensation, which is based on the profit in an illegal act, is a unique damage relief. The academic circles have not yet reached a consensus on its scope of application, and the research on its legitimacy needs to be in-depth. From the perspective of rights and norms, the legitimacy of the illegal profit compensation system can be proved, and theThe principle of "violation of fictitious fiduciary duty", the principle of "infringement of the object's property", the principle of "intentional subjective elements" and the principle of "non-sharing of rights and interests" apply to the system. The principles applicable to the comprehensive illegal profit compensation system can better explain the actual scope of application. The gap between the applicable principle of the illegal profit compensation system and the actual scope of application is the direction of its intended expansion. Specifically, in the field of intellectual property rights, it can be extended to apply to variety rights infringements, personal rights infringements, and counterfeit patents; in the field of property rights, it can be applied to deliberate illegal occupation and deliberate unauthorized disposal; in the field of creditor's rights, it can be applied to the use of irreplaceable materials. It is the opportunity of the subject contract to breach.
Keywords: Illegal profit compensation legitimacy scope of application Illegal profit return Illegal behavior
This article is selected from the eighth issue of "Law" in 2018, author He Yudong, Beijing University of Chemical Technology School of Grammar and Law.
5. "Legal Regulation of Stock Investment Behavior of Insurance Institutions-From the Perspective of "The Principle of Separation of Finance and Business" p>
【Abstract】The incident of "CITIC's entry into the development of financial holdings" can be called the "Baowan Controversy" in Taiwan, which triggered insurance Funds are involved in a wide range of disputes over the operation of the invested company. The "Insurance Law" of my country's Taiwan region has revised Article 146-1, Item 3 for this purpose, prohibiting the insurance industry from exercising the voting rights of invested companies in order to strengthen the financial investment attributes of insurance institutions. This amendment originated from the principle of "separation of finance and commerce", and its essence is to prevent the financial industry from over-controlling commerce. However, this article violates the basic legal principle of the same share and the same right, and is indeed an overcorrection. Reflecting on the purpose of revising the "Insurance Law" in Taiwan, and reviewing the long-term misplacement of the role of insurance institutions in the mainland area in the stock market, the current regulation of insurance institutions’ stock investment behavior can break through two aspects: First, how to balance the safety of insurance funds utilization And profitability, the second is how to balance the dual roles of financial investors and strategic investors in insurance institutions. The former should use its own funds and reserves separately to reduce the risk appetite for stock investment; the latter should deal with the differentiated supervision of "insurance-related business investment" and "non-insurance-related business investment", and realize the rational integration of financial investment and strategic investment .
Keywords: U.S. Freedom of Employment Rules, Public Policy Theory, Dismissal Protection of Social Public Interests, Labor Contract Law
This article is selected from the eighth issue of "Law" in 2018, authored by Li Weiqun and Hu Peng, School of Economics and Law, East China University of Political Science and Law.
"Politics and Law" 2018 Issue 8
1. "The Nature of Land Management Right and Its Legal Realization Path"
[Abstract]" The focus of the "three rights" separation policy is to "deactivate land management rights." The design goal of this policy should be to smoothly cultivate new agricultural business entities, respond to the needs of agricultural operations on a moderate scale, and improve the efficiency of modern agricultural operations. The law must respond to the policy intent of the "land management right", and the first task should be to clarify and determine the connotation of the legal nature of the right. Considering that the property rights are helpful to the realization of the system objectives of the "three rights" separation policy, are beneficial to the scientific construction of the agricultural land rights system, and are conducive to the operability of land management rights financing in practice, the land management rights are positioned as Usufructuary rights are proper. The way to realize the legal system of land management rights should be regulated from the way of its production, the characterization of property rights and its management rules. The future operation of land management rights has risks such as "rental erosion of profits", "non-graining" of agricultural land use, disguised privatization of agricultural land, and obstacles to the actual operation of mortgages. Institutional responses should be strengthened to effectively prevent these risks.
Keywords: "Three Rights" Separation; Land Management Right; Land Contract Right; Land Ownership; Mortgage
This article is selected from the 8th issue of Politics and Law in 2018, author Chen Xiaojun, Guangdong University of Foreign Studies Land Law Institute.
2. "On the Legal Expression of the Circulation of Contracted Land-Focusing on my country's Amendment"
[Abstract] Different methods of contracted land circulation have different legal effects. The transfer and exchange of contracted land leads to a change in the subject of the land contractual management right. There is no question of whether the land management right is established or not, and it is free to make provisions in the land contractual management right chapter, But in the current restrictive regulations on transfers, except for other farmers whose transferee is a collective economic organization, the rest should be deleted. The lease, subcontracting, and shareholding of contracted land is to enable the business entity to obtain the land management right, which is integrally stipulated in the land management right chapter. The land management right is a property-righted creditor's right in nature and can be registered in the real estate register. The mortgage of the contracted land can be either the mortgage of the land contractual management right, or the mortgage of the land management right, but the method of compulsory management should be adopted when the mortgage of the land contractual management right is realized, so that the contracted farmers will not lose the contract. Ground.
Keywords: "Three Rights" Separation; Land Contract Management Right; Land Management Right; Contracted Land Circulation
This article is selected from the 8th issue of Politics and Law in 2018, by Gao Shengping, the Civil and Commercial Law Research Center of Renmin University of China.
3. "Ownership Positioning and Legal System Supply of Homestead Qualification Rights"
[Abstract] The current law on the right to use homesteads ignores its economic attributes and restricts the development of rural areas and farmers. In order to make up for the shortcoming of the right to use homesteads in the reform of the agricultural land legal system, the CPC Central Committee promptly proposed to explore the reform of the "three rights" of homestead ownership, qualification rights, and use rights. my country’s current law does not state the right of homestead qualification. In order to realize the rich connotation and goal orientation of the Central Committee of the Communist Party of China on the "three rights" separation policy of homestead, the key is to clarify the legal attributes of homestead qualification. Under my country’s current legal system, guided by the rich connotations and goals of the Central Committee of the Communist Party of China regarding the "three powers" separation policy of homesteads, and combined with the path of justification based on practical rational feedback, it can be concluded that homestead qualification rights should not be shaped as usufructuary rights. Its attributes should be the conclusion of collective membership rights. Based on the systematic requirements of our country’s existing legal system, and without violating the principle of statutory property rights and the principle of one property one right, we should improve the qualification right acquisition mechanism, innovate the qualification right withdrawal mechanism, clarify the qualification right registration system, and construct the homestead for compensation. The use system and other four aspects carry out the legal system construction of the homestead qualification rights, in order to promote the complete separation of the homestead use rights, and truly realize the separation of identity qualification rights and property rights.
Keywords: "three rights" split; homestead use right; qualification right; usufructuary right; membership right p>
This article is selected from the 8th issue of Politics and Law in 2018, author Cheng Xiujian, Southwest University of Political Science and Law School of Civil and Commercial Law.
4. "Infringement Liability Exemption: An Attempt to Construct Concept Based on Existing Theoretical Discussion"
【Abstract】For civil law, the right thinking system is the most basic and most important thinking mode, and right is also the most convenient and effective legal analysis tool . On the basis of the defense theory and the exemption theory, the relationship between the exemption (defense) and the tort liability constitutive elements is cut, and the tort liability immunity is constructed on the basis of the exemption (defense), and the exemption will be exempted. The (defense) subject is transformed into the constitutive elements of tort liability exemption rights, which can clarify the logical chain of the establishment and effectiveness of tort liability under the thinking of rights, and rationally arrange the relationship between the infringement liability constitutive elements and the infringement liability exemption (defense) reasons It can also show the system characteristics and logical structure contained in China's "Tort Liability Law" more closely at the level of legal doctrine. Introducing the concept of tort liability immunity and constructing a new theory of tort liability immunity on this basis is more appropriate in theoretical structure and normative interpretation than the theory of defense and immunity.
Keywords: infringement liability; defense reason; exemption reason; infringement liability immunity
This article is selected from the 8th issue of Politics and Law in 2018, the author Xie Xiao, Chongqing University Law School.
5. "On China's "Trust Law" on the perfection of the requirements for the effective requirements of trusts-the "three determinations of the effective establishment of trusts under the British and American Trust Law" The requirements of "sexuality" are for reference"
[Abstract] In addition to satisfying the requirements of capacity and method of establishment, the effective establishment of a trust In addition to the requirements of form, legality, or public policy, it must also meet the certainty of the intent to establish a trust, the certainty of the subject matter, and the certainty of the beneficiary. These “three certainties” are essential for the trustThe validity and invalidity of the trust and the qualitativeness of the legal relationship play an important role. my country's "Trust Law" lacks the specification of the deterministic elements of the intent of establishing a trust. Although it has principled provisions on the certainty of the trust target and the object, it has no rules for judging these two elements. my country’s trust law should add certainty elements of trust intent, and learn from the experience of Anglo-American trust law to construct the corresponding determination rules for the “three certainty” elements of the certainty of the establishment of a trust, the certainty of the subject matter, and the certainty of the beneficiary in order to achieve this Its normative effect guarantees the realization of the client’s intentions, thereby safeguarding the legitimate rights and interests of all parties to the trust.
Keywords: trust; beneficiary; trustor; trustee; certainty elements This article is selected from "Politics and Law" 2018 The 8th issue of the year, the author Chen Xueping, South-Central University for Nationalities Law School.
"China Criminal Law Journal" 2018 Issue 4
1. "Rethinking and Perfecting the Mode of First Punishment before Civilian in Intellectual Property Cases"
【Abstract】The particularity of intellectual property rights will have a certain impact on the application of the criminal-civilian cross-criminal case. The mode of criminalization before civilians cannot meet the progressive logic of infringement and conviction in intellectual property cases, and the need to provide relief for infringement and respect the concept of human rights protection as soon as possible, which has caused some institutional obstacles. However, based on the system concept and the procedural efficiency it can bring to the mode of first punishment after civilians, although intellectual property cases have certain particularities, the mode of first punishment after civilians should be adhered to. In order to overcome these institutional obstacles, the model of criminal first and civilians needs to be improved in terms of substantive three-in-one trial, clarifying that intellectual property cases can be filed with criminal incidental civil lawsuits, and strengthening the institutional connection between criminal and civil procedures.
Keywords:Intellectual property rights; first punishment and then citizens; three-in-one trial;
This article is selected from the fourth issue of China Criminal Law Journal in 2018. The author is Xu Jiali, director and professor of the Intellectual Property Research Center of University of Science and Technology Beijing; Zhang Junqiang, a PhD student in intellectual property law at China University of Political Science and Law.
"Journal of Law" 2018 Issue 8
1. "Advancement of Legislative Technology and Suggestions for Improvement-Focusing on the expression of "items" in the enumeration law"
[Abstract] The expression of "item" in the "General Principles of Civil Law" is not unified when the subject-predicate structure is adopted; the expression of "item" in the General Principles of Civil Law (Draft Review) is unified but not consistent with the subject-predicate structure Grammar specification. The expression of "item" in the "General Principles of Civil Law" directly uses the subject-predicate structure to express the "situation", which is a big improvement. The direct use of subject-predicate structure is the best form of expression, which is both concise and clear and conforms to grammatical norms. If the predicate structure "+of" is used to represent it, it is not standard enough. In the legislative practice, there are a lot of examples of using the subject-predicate structure to directly express the "situation", but the "General Principles of Civil Law" still needs improvement in the expression of "items".
Keywords: enumeration; item; subject-predicate structure; situation
This article is selected from the 8th issue of "Journal of Law" by Zou Yuhua and Liu Dongyang, China University of Political Science and Law.
2. "On the Protection of Dissenting Shareholders' Share Appraisal Rights of Preferred Shareholders: American Practice and Enlightenment"
[Abstract] my country's commercial law has opened up the investment access of preferred stocks, but has not made corresponding exit arrangements for preferred stock investors. Among preferred stock issuing companies, preferred stock shareholders may face the threat of fundamental structural changes in the company, and even face the infringement of the opportunistic behavior of common stock shareholders under the background of conflicts of interest. The evaluation right system in the United States has played the function of providing minority shareholders with a fair price to exit the company and supervising the majority shareholders' opportunistic behaviors against minority shareholders. Preference shares are the company’s equity capital, and their holders are the company’s shareholders, and the appraisal rights of dissenting shareholders shall be applicable to the protection of preference shareholders. The appraisal power system in the United States is applicable to preferred shareholders. From the perspective of interpretation, the appraisal power of dissenting shareholders in my country's company law should be applicable to preferred shareholders. Regarding the scope of appraisal rights of dissenting shareholders of preferred shareholders in my country, revising the articles of association to cancel the priority or make fundamental structural changesThe elimination of preferred stock dividends shall be regarded as a special trigger for the exercise of rights, and the exercise of the rights by preference shareholders shall not be conditional on the right to vote on the triggers. Regarding the valuation of preferred shares in exercise, the parties’ prior contractual arrangements for preferred shares should be respected; if no prior agreement has been made, the general method for valuation of common shares can be referred to. The judge has discretion in this regard, and my country should adopt judicial interpretations. Or guide cases to improve this.
Keywords: preferred stocks; preferred stock holders; dissenting shareholders share appraisal rights; majority shareholders; minority shareholders
This article is selected from the 8th issue of "Journal of Law", author Liu Shengjun, Faculty of Law, Civil Aviation University of China.
3. "On the definition of the liquidation obligor of a limited liability company-from the perspective of the application of Article 70" p>
[Abstract] Article 18 of "The Provisions of the Supreme People's Court on the Application of Certain Issues (2)" and the Supreme People's Court No. 9 Guidance The case is not abolished due to the implementation of Article 70 of the General Principles of the Civil Law. In terms of interpretation, after the implementation of the "General Principles of the Civil Law", the rules for defining the company's liquidation obligor have not changed, and the liquidation obligor of a limited liability company is still all shareholders. However, there are many problems in using shareholders as liquidation obligors. From a legislative point of view, my country's company law should treat directors as the liquidation obligors of limited liability companies. After the dissolution of the company, the directors shall organize and set up a liquidation team in a timely manner within the statutory time limit in order to initiate the liquidation process, prompt the company to enter the liquidation stage smoothly, and then scientifically and properly resolve the market exit problem.
Keywords: liquidation; liquidation obligor; shareholders; directors
This article is selected from the 8th issue of "Law Science", the author Wang Changhua, Henan University of Economics and Law School of Civil, Commercial and Economic Law.
"Politics and Law Review" 2018 Issue 4
No articles related to civil and commercial law.
Among them, due to "Law and Business Research", "Tsinghua Law", "Jurist", "Law", "Legal System and Social Development", "Contemporary Law", "Legal Science", "Modern Law", "Law Research", "Law Review", "Law Forum", "Comparative Law Research", "Journal of East China University of Political Science and Law", "Global Legal Review", " "Administrative Law Research" and "Eastern Methodology" are bimonthly (single-monthly published), so they are not included in the August summary record. It is hereby explained.
Label group:[legal] [equity] [trust] [Chinese model] [Legislative principle] [Trademark protection] [Intellectual property infringement] [Civil Code] [General Principles of Civil Law] [Circulation of land contract management rights] [Personality rights] [Due process] [China Criminal Law Journal]