An Empirical Assessment and Analysis of the United Nations Convention on Contracts Judicial Applicability in China

Chinese domestic legislation on the judicial applicability of international treaties has been unsettled,especially under the Civil Code,which is silent on this issue.However,previous studies have depicted an image of a“pro-CISG”attitude in Chinese legal practice,which is distinguished from the tendency to circumvent the CISG in other jurisdictions such as the U.S.This contradictory phenomenon,namely the absence of guiding norms versus the embracement of the CISG in judicial practice,is rarely discussed,especially within the context of civil codification and recent external economic challenges.To verify this paradox,a manually collected dataset of 223 court decisions from 2013 to 2023 identifies some basic characteristics of the CISG judicial applicability in China,including the application rate,legal reasoning paths,citation frequencies of specific provisions,and some qualitative observations about the judicial behaviors in the international sales dispute resolution.The main finding is that Chinese courts have been applying the CISG at an obviously higher rate,compared with both their foreign counterparts and the general rate of applying foreign law in the international civil and commercial litigations in China.To explain this gap between“law in book”and“law in action,”the context of Chinese judicial practice should be considered.Despite the vagueness of domestic legislation,the judicial policy promotion,the innovative guiding cases system,the legal transplantation,and other factors may contribute to the“pro-CISG”attitude.As for the future promotion of CISG in the Chinese style of international commercial dispute resolution,these factors may coordinate with the legislative improvements.

Human Rights in Civil Judicial Documents:Conception and Function

Traditional human rights theory tends to hold that human rights should be aimed at defending public authority and that the legal issue of human rights is a matter of public law.However,the development of human rights concepts and practices is not just confined to this.A textual search shows that the term“human rights”exists widely in China’s civil judicial documents.Among the 3,412 civil judicial documents we researched,the concept of“human rights”penetrates all kinds of disputes in lawsuits,ranging from property rights,contracts,labor,and torts to marital property,which is embedded in both the claims of the parties concerned and the reasoning of judges.Human rights have become the discourse and yardstick for understanding and evaluating social behavior.The widespread use of the term“human rights”in civil judicial documents reflects at least three concepts related to human rights:first,the rights to subsistence and development are the primary basic human rights;second,the judicial protection of human rights is a bottom-line guarantee;third,the protection of human rights aims to achieve equal rights.Today,judges quote the theory of human rights in judicial judgments from time to time,evidencing that human rights have a practical function in judicial adjudication activities,and in practice this is mainly manifested in declaring righteous values and strengthening arguments with the values and ideas related to human rights,using the provisions concerning human rights in the Constitution to interpret the constitutionality,and using the principles of human rights to interpret blurred rules and rank the importance of different rights.

Research on the Judicial Application of Legitimate Defense in China

Legitimate defense plays an important role in curbing crimes,maintaining public order and fostering good moral conduct.In China’s judicial practice,cases on legitimate defense raised several controversies on the nature of legitimate defense,limits of excessive defense and the applicable objects and definition of special defense.The nature of legitimate defense mainly involves defense intention,defense object,defense time and other factors.The defense intention is an important sign to differ the legitimate defense from the illegitimate defense.The object of legitimate defense can only be the unlawful infringer and the actor can only prevent the ongoing illegal infringement.The existence of unlawful infringement of reality is a prerequisite for legitimate defense to be exercised.The unlawful infringement that is justified by defense should be illegal,invasive,urgency and realistic.As an unlawful infringement,the excessive defense needs to be distinguished from the legitimate defense in terms of the defense limit.As for the “necessary limit”,in principle,it means the necessary defense can stop the present unlawful infringement,and there is an obvious difference between the illegitimate defense and legitimate defense in terms of the means of the actor and the intensity of behavior.Defense behavior shall be treated as excessive defense only if it “obviously exceeds necessary limit” and “cause great harm” at the same time.The key to apply the special defense lies in the accurate understanding of the applicable object of special defense,that is,special defense can only be applied to “ongoing physical assault,murder,robbery,rape,kidnap and other violent crimes that seriously endanger personal safety”.

Word Segmentation for Chinese Judicial Documents

Word segmentation is an integral step in many knowledge discovery applications. However, existing word segmentation methods have problems when applying to Chinese judicial documents:(1) existing methods rely on large-scale labeled data which is typically unavailable in judicial documents, and (2) judicial document has its own language features and writing formats. In this paper, a word segmentation method is proposed for Chinese judicial documents. The proposed method consists of two steps:(1) automatically generating some labeled data as legal dictionaries, and (2) applying a hybrid multilayer neural networks to do word segmentation incorporating legal dictionaries. Experiments are conducted on a dataset of Chinese judicial documents showing that the proposed model can achieve better results than the existing methods.

The Dilemma in the Judicial Determination of Justifiable Defense and Its Solution

When important social rights and interests of any citizens cannot be protected by public power in time,they can adopt extreme means to protect personal interests from infringement by criminal act.However,in judicial practice,some defensive behavior maintaining personal legal rights and interests,even some brave acts for a just cause,are deemed to be over defense or intentional crime.Looking at the actual situation of judicial practice in China,the number of cases identified as justifiable defense is even less.In the face of such judicial dilemma,scientific judicial concept shall be established in the judicial practice so as to accurately explain and apply to the provisions of laws and judicial interpretations related to justifiable defense.Through formation of authoritative cases,interpret the constitution conditions of justifiable defense,form binding judicial rules and strictly distinguish between justifiable defense,excessive defense and intentional crime so as to restrain subsequent similar cases.

Judicial Application of International Human Rights Treaties in China

Since the Chinese Constitution does not stipulate the status of international treaties in the domestic legal system,the question of whether the domestic court can apply international human rights treaties keeps obscure all the time.China’s official statement and academic opinions generally believe that the domestic court couldn’t resort to the human rights treaties.In recent years,however,several cases have come out involving direct reference to human rights treaties by the court.The following factors contribute together to the direct reference:the inward-looking nature of international human rights treaties,specific requirements of human rights treaties,and the possible institutional room in Chinas’s current legal system.Take the view off ulfilling international human rights obligations,the practice of judicial application should be fully affirmed.Nevertheless,it should also be noted that relevant practice is still in its infancy,there are some problems such as inconsistent understanding and non-standard application.From the perspective of top-level design,it is necessary to provide a normative basis for the practice of the court,so as to make the international human rights treaties play their due role.

New Progress in the Judicial Protection of Human Rights in China

Foreword Respecting and protecting human rights is a constitutional principle in China.It also reflects the will and pursuit of the Communist Party of China(CPC),the Chinese government and the Chinese people.The judiciary is the last line of defense to safeguard social fairness and justice,and judicial protection of human rights is an important

The Determination of Excessive Defense by Judicial Practice and Its Rethinking——Based on an Analysis of 722 Criminal Judgments

Concerning the determination of excessive defense,the main problems are the judicial practice of determining excessive defense only based on the resul of harm inflicted on a perpetrator;identifying excessive harm generally as an intentional crime;limiting the scope of exemption from punishmen of excessive defense relatively narrowly as well as repeated appraisals and indirect punishments.For the improvement of judicial determination of excessive defense,the following efforts should be made.First,from the perspective of ex ante,determining the necessary limits as the standard of whether the act of defense was necessary to stop unlawful infringement Second,paying due attention to the influence of the awareness of defense on the form of culpability and in general circumstances determining excessive defense as a negligent crime.Third,giving sufficient consideration of the extent to which the possibility of anticipation decreased when the defender was faced with unlawful infringement and expanding the scope of exemption from punishment for excessive defense.Fourth,avoiding repeated appraisals and indirect punishments by analyzing the factual grounds and essentia foundations of the circumstances of lesser or greater punishments.

Research on the Judicial Relief System of Villagers' Autonomy Rights

Starting from the division of the functions of the village committee,the use of self-government rights of the villagers was examined in view of the different functions.Judicial remedies should be screened whether or not the exercise of autonomy,as well as the main disputes in order to determine the specific litigation.The responsibility determination of the villagers' autonomy rights prosecution in different circumstances is put forward.

Contextual Text Mining Framework for Unstructured Textual Judicial Corpora through Ontologies

Digitalization has changed the way of information processing, and newtechniques of legal data processing are evolving. Text mining helps to analyze andsearch different court cases available in the form of digital text documents toextract case reasoning and related data. This sort of case processing helps professionals and researchers to refer the previous case with more accuracy in reducedtime. The rapid development of judicial ontologies seems to deliver interestingproblem solving to legal knowledge formalization. Mining context informationthrough ontologies from corpora is a challenging and interesting field. Thisresearch paper presents a three tier contextual text mining framework throughontologies for judicial corpora. This framework comprises on the judicial corpus,text mining processing resources and ontologies for mining contextual text fromcorpora to make text and data mining more reliable and fast. A top-down ontologyconstruction approach has been adopted in this paper. The judicial corpus hasbeen selected with a sufficient dataset to process and evaluate the results.The experimental results and evaluations show significant improvements incomparison with the available techniques.

Objects of Criminal Legal Aid--Center On Judicial Justice and Human Rights Protection

The object of criminal legal aid refers to the person in a criminal case who has the right or eligibility toapply for legal assistance and who receives it. According to jurispru- dence, the object （or aid recipient） is a party in a given legal case, who is granted legal aid. They are often among the disadvantaged group in criminal cases, since most of them are mentally challenged, lack free- dom or have health problems.＇ Both international and domestic laws have certain norms regarding objects of criminal legal aid. Our domestic law places more emphasis on ＂defen- dants＂ while downplaying ＂suspects＂ and ＂victims＂ in identifying objects.

Thoughts on the Judicial Credit Constraints and Countermeasures

Judicial credit is closely correlated with the relief dimensions of human rights.Improving judicial credit has become an important task of China’s judicial reform and also an important aspect ofpromoting the protection of human rights by the rule of law.Accordingly,to judge the current situation of the judicial credit of people’s courts in a scientific way,find out the existing problems and provide suggestions on targeted measures have become a fundamental topic that combines both theoretical direction and practical urgency.Based on the analysis on the connotation of judicial credit,we make a study on courts’ own factors,awareness of the public towards rule of law,news media communication and other factors that constrain judicial credit,and propose suggestions on how to improve judicial credit.

Longquan Judicial Archives Restoring the Judicial History

Longquan celadon traditional firing techniques and Longquan sword forging techniques are both National Intangible Cultural Heritage.The former was also inscribed on the UNESCO Representative List of the Intangible Cultural Heritage of Humanity.Some scholars pointed out that Longquan Judicial Archives could be called Longquan s third national treasure.

Strengthening South-South Judicial Cooperation to Promote the Development of Global Human Rights

Judicial cooperation is one of the significant components of South-South cooperation. Furthermore, in the process of South-South cooperation, the establishment of a fair, rational, and transparent new system of international justice must be jointly promoted. The Chinese judicial authorities have made new progress in deepening judicial reforms, enhancing judicial transparency, improving human rights judicial protection mechanisms and strengthening the construction of smart courts, and have accumulated rich judicial experience. Under the background that many changes and great upheavals are taking place in the international world, countries of the Global South should strengthen their judicial exchanges and cooperation, especially in the field of the judicial protection of human rights. SouthSouth cooperation should be enhanced and they should learn from each other, so they can jointly make contributions to the development of the legal world.

UN Human Rights Forum:Experts Share Judicial Experience in Promoting Democracy

At a recent UN forum,experts discussed ways in which equal access to justice is necessary for human rights,democracy and the rule of law.Some Chinese scholars who joined the forum gave insights into China's judicial system.Yang Shanshan has the story.Professor Zhai Guoqiang is considered an expert on China's constitution.

Research on the Action of Judicial Experience

Judicial experience refers to the knowledge and expertise of the judicial staff which is accumulated during the complex judicial activities,so it makes up the deficiency of the statute law,standardizes the discretion of the judge,ensures the applicability of the law and improves the judicial efficiency. Due to the shortcomings of the case referral system and the judicial interpretation system,it is suggested in the paper that the action mode of the judicial experience be improved through announcing guiding cases,strengthening the guidance of guiding cases and establishing the guarantee mechanism of guiding cases.

Judicial Protection of Internet Privacy: Subject of Tort, Standard and Forms of Liability

As one of the basic human rights, and one confirmed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the right to privacy has been written into China’s General Principles of Civil Law and Tort Law. However, in judicial practice, there has been no unified standard in defining a tort of privacy, especially a tort of internet privacy. With the increasing popularity of the internet, torts of internet privacy are becoming more and more rampant and severe. Focusing on "internet hunts", a common tort of internet privacy, this paper examines how to affirm a tortious act of internet privacy, as well as forms of liability. It also expounds the practical judicial issues such as the object of prosecution trials.

BEIJING'S JUDICIAL PROTECTION OF INTELLECTUAL PROPERTY

With legislation on intellectualproperty being perfectedcontinuously,"no law to follow"inChina’s intellectual property protectionhas become a phenomenon of thepast.Legislation is the prerequisitefor law enforcement,whereas thelatter is the aim of the former,and aguarantee for safeguarding people’slegitimate rights and interests.Thejudicial organs at various levels inBeijing have strictly implemented theintellectual property laws,safeguarded the legitimate rights andinterests of intellectual propertyproprietors,and enhanced the judicialprotection of intellectual property.

Important Guarantee for Judicial Justice——Huang Jin on Improving Judicial Protection for Human Rights

The Decision on Certain Issues on Comprehensively Deepening the Reform, which was endorsed bythe Third Plenary Session of the 18th Central Committee of the Communist Party of China （CPC）, advocates improving judicial protection for human rights, making human rights protection one of the practical measures for implementing the principle of respecting and ensuring human rights, and making improvement of the judicial protection of human rights an important part of comprehensively deepening the reform. Prof. Huang Jin, president of the China University of Political Science and Law, was interviewed by the journal.