Conflict of Law Rules and the Protection of the Weaker Party in EU Private International Law and in Chinese New Private International Law:Consumer Contracts and Employment Contracts

Introductory remarks Both in EU Private International Law (EU PIL) and in Chinese New Private International Law (Chinese New PIL) it was deemed important to adopt special rules to determine the law applicable to consumer contracts and employment contracts with the purpose of protecting the weaker party.But those rules have existed for longer in the EU system than in the Chinese system,because they were already mentioned in the Rome Convention of 19 June 1980 on the law applicable to contractual obligations,replaced by the Rome Ⅰ Regulation of 17 June 2008,whereas the Law of the People's Republic of China on the laws applicable to foreign related civil relationsof 28 October 2010,in force since 1 st April 2011,is not only the first statute on conflict of law rules in general,①but also the first law which has adopted special conflict of law rules for consumer contracts and employment contracts,different from those governing contracts in general.

The Ethical Explanation of The Spirit of Western Law

The order of western rule-of-law is always the sample of the construction of Chinese rule-of-law,but the spirit of western legal system,which is embodied as rule-of-law,right-equality,and rule-by-good-law,is correlated inherently with certain natural and social condition.Human nature theory of naturalism,the contract-ethics,and justice are the ethical foundations of Western law,and the idea of people-oriented,whose contents includes human's homony and happiness,always acompany with the western development history of rule-of-law.We should adhere the sense that people should abide by and respect law,and the law should constitute a kind of healthy and harmony interpersonal relationships and free and creative living-style.

An Empirical Analysis of the Impact of the Contract Book of the Civil Code on Labor Dispute Trial Practices:A Study of Four Hundred Judgments

Interpretation(I)of the Supreme People’s Court of Issues Concerning the Application of Law in the Trial of Labor Dispute Cases allows for the application of pertinent laws and regulations,including the Civil Code of the People’s Republic of China(hereinafter referred to as the“Civil Code”),in labor dispute cases.This has resolved the controversy over the relationship between civil law and labor law in academic and practical communities.In view of this development,we examined four hundred judicial documents,analyzing the focal points of disputes,the reasoning behind judgments,applicable laws,and judgment results.Our study identified seven impacts of the Contract Book of the Civil Code on labor dispute trial practices,exploring the underlying logic behind these changes and proposing policy suggestions to promote consistent judgments across jurisdictions,enhance judicial credibility,and encourage employers to govern enterprises in compliance with the law while empowering employees to safeguard their rights in accordance with relevant laws and regulations.

Untying the Two “Deadlocks”of Labor Contract Law Is Necessary for the Recovery of Chinese Economy

Labor Contract Law receives mixed evaluations since its implementation.The call for the amendment is hot and even some scholars regard it as the"tiger in the road"which hinders the economic development. The Central Committee of the Communist Party of China pays high attention to the construction of harmonious labor relation and the amendment has been a top priority. Labor Contract Law leads to two"deadlocks"of which the entrepreneurs are afraid. The first one is that the non-fixed term labor contract cannot be cancelled and the second one is that they must pay the economic compensation at the expiration of contract. These two rules hinder the employment enthusiasm of entrepreneurs. The current laws have excessive expectation for the non-fixed term labor contract and too strict regulations; as for the economic compensation at the expiration of contract, it increases the enterprise cost. The amendment of these two articles will benefit the recovery of Chinese economy and make the labor relation more harmonious.

Contract Labor and the Right to Freedom of Association in the Oil and Gas Industry in Nigeria

Contract labor is one of several terms, which are widely used to describe work arrangements, which do not fall within the traditional definition of employment. Contracting out services and getting employees through contractors have become widespread practice by many employers because it helps them to cut cost since these contractors could often supply these workers more cheaply and efficiently. Labor rights and standards are sometimes seen as sacrificial lambs on the altar of competitive edge by companies due to the perception that they constitute ＂costs＂ which if eliminated or reduced to the barest minimum, will impact positively on the ability of companies to compete favorably in the global market and consequent improvement of their balance sheets, to the joy of shareholders. Contract work is increasingly becoming the norm in Nigeria＇s oil and gas industry as companies undergo restructuring, concentration on core activities and modifications in work organization and technology. These factors certainly affect traditional employment relations and the exercise of freedom of association and collective bargaining rights inherent in them. Contract workers now make up about 60% of the workforce in the industry and they are denied the right to organize into Unions. The denial of this right has resulted in exploitation of these workers. This paper seeks to examine the adequacy of labor law governing trade unionism in Nigeria in ensuring the right of contract workers to freedom of association, as well as its conformity to international labor standards. It is argued that Nigerian labor laws need to be enforced to ensure that this category of workers benefits from this right. In addition a proposal is made for a law reform which will define contract labor and provide a legal framework for the regulation and protection of contract workers in Nigeria in order to guarantee their right to unionize and enable them to improve their rights at work.

Study on the Applicable Principle and System Improvement of Contract Law to Liquidated Damages

Based on the applicable principle of liquidated damages in ＂contract law＂, based on the improvement of the system, the article first analyzes the status quo of the development of the default system and secondly puts forward some suggestions for improvement. The final purpose is to perfect the liquidated damages system with the Contract Law, in a bid to enhance the fairness of liquidated damages.

On Autonomy of Will and the Applicable Law of Labor Contract:From the Perspective of Chinese Legislation

There are so many different opinions on whether the autonomy of will is applied in labor contract.In this paper,the author discusses the application and limitation of autonomy of will in labor contract,and puts forward some suggestions on the application of Article 43 of Law of the Application of Law for Foreign-related Civil Relationships after the introduction of Chinese legislation of the applicable law of labor contract.Autonomy of will is a useful principle in resolving disputes arising from foreign-related labor contract in China.

All Walk Free:Portia' s Illiteracy of Law

In Shakespeare' s Merchant of Venice,Portia is portrayed as a legal expert.Considerable scholarly work has been devoted to the discussion of the play,and Portia' s ruling appears to be supported by a majority of scholarly commentary.However,a number of important legal issues regarding the contract represented in the play require immediate attention.This article attempts to re-evaluate Portia' s ruling and the conventional views on Portia as a legal expert by considering the issues in question within a recent framework of law,and will argue that Portia' s role as a legal expert is questionable.Antonio,Bassanio,and Shylock can all ' walk free'.

Effectiveness of China's Labor Contract Law——Evidence from China Employer-Employee Survey

Using micro-level data from China Employer-Employee Survey(CEES), this paper conducts an empirical analysis of firms' heterogeneous characteristics in the implementation of the Labor Contract Law and its effects on employees. Our findings are as follows: With China's economic development, firms more proactively implement the Labor Contract Law, resulting in a higher percentage of employees with labor contracts. Labor contracts significantly increase the probability of employees in receiving social insurances, such as pension, health, unemployment, work injury and birth insurances, and have a significantly positive effect on wage income. Longer term of labor contract corresponds to stronger employment protection, and such an effect is highly robust. Larger firms with higher capital-labor ratios have better results in implementing the Labor Contract Law. And employees of private and labor-intensive firms have poorer coverage of employment and social protection; such firms should be given focal attention in the law's implementation.

Improve Labor Contract System, Safeguard Lawful Rights and Interests of Laborers——An interview with Prof. Guan Huai of Law School of Renmin University of China

EDITOR＇S NOTE： The Draft Labor Contract Law of the People＇s Republic of China has been completed and was published for soliciting comments on March 20. In a short period of one month, 191,849 pieces of comments and opinions were received. Prior to the promulgation of the law, this reporter interviewed Mr. Guan Huai, a noted Chinese expert in labor law, professor of the Law School of the Renmin University of China and law advisor to the All-China Federation of Trade Unions.

Effective stress law for rock masses and its application in impoundment analysis based on deformation reinforcement theory

Reservoir impoundment is related to several hydraulic engineering concerns,including irreversible valley contractions,landslides and reservoir-induced earthquakes.However,these phenomena,such as valley contractions,are hardly to be explained by the conventional method.The scientific understanding of water effects during impoundment and their hazards to hydraulic structure are needed.The effective stress law for fissured rock masses is introduced in the elasto-plastic model employing the Drucker-Prager criterion and implemented in the three dimension(3D)nonlinear finite element method(FEM)program Three-dimensional FINite Element(TFINE).The slope deforms towards river-way during impoundment since the increasing pore pressure in fissures changes stress state and leads to additional plastic deformation in the rock materials.The value of Biot coefficient and the influence of water on rock materials are discussed in detail.Thus,the mechanism of slope deformation during the impoundment of Jinping-I arch dam is revealed,and the deformation is accurately measured.The application of the effective stress law provides a method to consider stress assessment,deformation evaluation and stability estimate of hydraulic structures during the impoundment process.This is a beneficial exploration and an improvement of hydraulic engineering design.

New labor law makes firms cautious to hire,fire

The Law of the People's Republic of China on Employment Contracts has stoked wide concern across China.One of the focuses of debate is on termination costs.Utilizing an enterprise attitude survey,this article discusses the impact of the law on termination costs and employment behavior of China's enterprises.The research shows that the law has different impacts on enterprises of varied ownerships and scales.The law,while giving rise to higher termination costs for enterprises,urges them to take diversified measures to adjust their human resources.

A study of contract legal issues in Chinese carbon market

Clean Development Mechanism (CDM) has given birth to an international carbon trading market prosperity,which provides developing countries with valuable opportunities to address climate change issues together with economic development and environmental improvement to achieve the sustainable goal. China,as the biggest carbon market,has caught worldwide attention. However,most studies of CDM focus on economics and environmental science,few on its legal problems. Transaction activities are the essence of market mechanism. To protect the benefits of market participators and regulate the market orders,the Contract Law takes this important role along with development of market mechanism. Therefore,this paper only focuses on the carbon market in China,with the assessment of the risks in the CDM development first. The involved contracts will be identified and analyzed to point out the major contract legal issues in Chinese carbon market. In the meantime,this paper further discusses that measurements at both private level and governmental level should be taken to protect and realize the utility and equality of contract in the carbon market.

土地经营权入股立法的反思与展望

自家庭联产承包责任制实施以来,关于农村土地承包经营权能否以入股等方式流转,在政策与法律层面经历了比较复杂的变迁过程。土地经营权入股在立法中得到确认是“三权分置”改革的重要成果之一,有利于在流转中更好地实现土地经营权的价值。土地经营权入股现行立法表达不规范、不统一,且与相关法律规定存在冲突,导致立法预期的实现受阻。以立法的基本原理来审视,立法用语不规范只是表面现象,土地经营权的性质不明才是立法困境的根源,对入股所致不利后果的担忧则进一步导致适用难题。实践中大量存在的“以租代转”、“名为入股、实为出租”现象表明,既有立法并不能有效满足土地经营权入股的需求,反而徒增解释与适用的混乱。为了弥合土地经营权入股的认知分歧,保持相关立法之间的协调,实现“三权分置”的立法目的,有必要在立法中统一相关表述,明确规定土地经营权的性质,移除土地经营权承载的不必要负担,让土地经营权真正成为“可以用货币估价并可以依法转让的非货币财产”,进而以“作价出资”取代“入股”。

保险条款通俗化规制的法律意义:基于美国经验

保险条款通俗化是降低保险人与被保险人之间信息不对称的重要手段。如果将保险条款通俗化作为一项强制性要求来进行监管,那么,就需要明确其标准。从美国的经验和汉语特点来看,采取主观标准与客观标准相结合的方式比较适宜。由于我国目前关于汉语文本易读性测试标准的研究尚不成熟,在一定程度上影响到了我国保险监管机构对保险条款通俗化的规制。如果某一保险条款未达到保险监管机构制定的保险条款通俗化的要求,保险监管机构可以拒绝批准、责令更改或进行行政处罚,但是,保险合同在当事人之间的效力不受影响。

民事司法解释的历史性进步——最高人民法院《合同编通则司法解释》亮点评述

《合同编通则司法解释》是民事司法解释历史性进步的重要标志。《合同编通则司法解释》坚守民事司法解释的法律定位,较为准确地把握了《民法典》立法原意,压缩了《民法典》有关条款或多或少的争议或歧义空间,其中,合同解释规则堪称典范。《合同编通则司法解释》充实民事司法解释的基本功能,以更为具体、明确、肯定的行为规则强化《民法典》有关条款的确定性,其中,清晰合同行为的识别标准、填充合同行为的场景因素尤为出色。《合同编通则司法解释》运用40余年的民事司法解释积累的经验,自觉避免以往时有的路径选择不当的情形,形成固定词句含义与范围、指引合同行为与裁判、强化裁判程序与功能的鲜明特色。《合同编通则司法解释》的历史性价值与意义应当得以彰显和认同,以便未来的民事司法解释自觉前行。

能源法的法权构造及其体系展开

能源法的核心范畴界定较为模糊,亟待澄清。基于能源权利与能源权力的交互性、能源公益与能源私益的均衡性、能源监管与能源市场的协调性等需求考量,法权可作为能源法的核心范畴。能源法法权结构可从本体论、运行论和价值论三个层面予以构造,形成体系化安排。本体论上,应以公民能源权利与国家能源权力的交互为基础,强调公民能源权作为法权结构的逻辑起点、以落脚为能源普遍服务的能源权力作为法权结构的基本保障;运行论上,应以能源合同作为法权结构运行的具体承载;价值论上,应以能源正义作为法权结构价值的最终目的。由此,可仰仗能源法的法权结构构筑能源法学体系。

在省例与习俗之间:清代闽东契约书写格式中的法律意识

省例是清代国家律例的重要补充形式,上承国家法宗旨,下接地方习俗。同治《福建省例》对乡村绝卖、活卖或典当田宅等契约书写均有固定模式,约束契约书写格式。但民间社会书写契约时并未完全遵从省例,保留有明显的习俗痕迹。闽东文书无论是绝卖缴税的红契还是活卖或典当不缴税的白契,多为单契。闽东乡村女性立契的形式,不仅反映了省例与习俗交织互存的关联,也显示出人们在乡村买卖田房时存有国家在场的意识。