With the widespread use of Chinese globally, the number of Chinese learners has been increasing, leading to various grammatical errors among beginners. Additionally, as domestic efforts to develop industrial informati...With the widespread use of Chinese globally, the number of Chinese learners has been increasing, leading to various grammatical errors among beginners. Additionally, as domestic efforts to develop industrial information grow, electronic documents have also proliferated. When dealing with numerous electronic documents and texts written by Chinese beginners, manually written texts often contain hidden grammatical errors, posing a significant challenge to traditional manual proofreading. Correcting these grammatical errors is crucial to ensure fluency and readability. However, certain special types of text grammar or logical errors can have a huge impact, and manually proofreading a large number of texts individually is clearly impractical. Consequently, research on text error correction techniques has garnered significant attention in recent years. The advent and advancement of deep learning have paved the way for sequence-to-sequence learning methods to be extensively applied to the task of text error correction. This paper presents a comprehensive analysis of Chinese text grammar error correction technology, elaborates on its current research status, discusses existing problems, proposes preliminary solutions, and conducts experiments using judicial documents as an example. The aim is to provide a feasible research approach for Chinese text error correction technology.展开更多
China is one of the major markets for patent filing and patent exploitation.A powerful enforcement environment may boost both of patent filing and exploitation.A two-track system for the patent enforcement is availabl...China is one of the major markets for patent filing and patent exploitation.A powerful enforcement environment may boost both of patent filing and exploitation.A two-track system for the patent enforcement is available in China:the administrative system via local intellectual property offices,and the judicial system via courts.展开更多
The Company Law of 1993 is important in protecting the interests of both companies and shareholders.But on stock right,it always arouses heated debate among scholars.Before the promulgation of New Company Law of 2006,...The Company Law of 1993 is important in protecting the interests of both companies and shareholders.But on stock right,it always arouses heated debate among scholars.Before the promulgation of New Company Law of 2006,varieties of theories of this issue have been formed.Through analyzing and refuting those theories,I try to clear the ambiguous definition by explaining the essence of right and comparing related right,so as to reach the conclusion that the stock right is only the changeable form of the ownership of shareholders.展开更多
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 obscur...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.展开更多
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-...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.展开更多
The Company Law of 1993 is important in protecting the interests of both companies and shareholders.But on stock right,it always arouses heated debate among scholars.Before the promulgation of New Company Law of 2006,...The Company Law of 1993 is important in protecting the interests of both companies and shareholders.But on stock right,it always arouses heated debate among scholars.Before the promulgation of New Company Law of 2006,varieties of theories of this issue have been formed.Through analyzing and refuting those theories,I try to clear the ambiguous definition by explaining the essence of right and comparing related right,so as to reach the conclusion that the stock right is only the changeable form of the ownership of shareholders.展开更多
Food security is a human right,within a global context by aligning the opportunities to eliminate poverty,to attain the peace,the rational and implications of sustainable use and judicious management of natural resour...Food security is a human right,within a global context by aligning the opportunities to eliminate poverty,to attain the peace,the rational and implications of sustainable use and judicious management of natural resources,are the road map,to combat the disasters.The prevailing International tension with respect to climate change suggests that the food security can be achieved by penetrating,in depth,the agricultural research.Pakistan is under threat to展开更多
Law is the fundamental method of governance and the rule of law symbolizes modern civilization. The socialist rule of law is the rule of law rooted in the Chinese tradition, and designed and led by the Communist Party...Law is the fundamental method of governance and the rule of law symbolizes modern civilization. The socialist rule of law is the rule of law rooted in the Chinese tradition, and designed and led by the Communist Party of China(CPC). It is not only a tool for government, but also a driver of social progress. Meanwhile, the Chinese human rights system is also designed by the CPC. Both concepts—the socialist rule of law and the human rights system——are different from the West in terms of theory, path and systems. Human rights are the fundamental values of and the ultimate goal pursued by the rule of law; and the rule of law is the recognition of and guarantee for human rights. Efforts must be made to advance legislative, administrative and judicial protection of human rights.展开更多
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 judic...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展开更多
The supervisory system and the examination system are two indigenous political systems of China,and the former has a longer history than the latter when it comes to the origin.Having inherited the essence of the super...The supervisory system and the examination system are two indigenous political systems of China,and the former has a longer history than the latter when it comes to the origin.Having inherited the essence of the supervisory system since the Qin Dynasty,the supervisory rules in the Ming Dynasty opened a new chapter of legal thoughts of monitoring.This paper started with the design of the supervisory institutions in the Ming Dynasty recorded in the historical materials such as the Memoir of Ming Dynasty and The Interpretive Supplements to"The Great Learning",to get a glimpse of the main content of the legal thoughts of supervisory at that time,and tried to"take history as a mirror"to provide insights and lessons of the legal thoughts of supervisory in the Ming Dynasty for the later generations.展开更多
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 natu...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”.展开更多
Although numerous advances have been made in information technology in the past decades,there is still a lack of progress in information systems dynamics(ISD),owing to the lack of a mathematical foundation needed to d...Although numerous advances have been made in information technology in the past decades,there is still a lack of progress in information systems dynamics(ISD),owing to the lack of a mathematical foundation needed to describe information and the lack of an analytical framework to evaluate information systems.The value of ISD lies in its ability to guide the design,development,application,and evaluation of largescale information system-of-systems(So Ss),just as mechanical dynamics theories guide mechanical systems engineering.This paper reports on a breakthrough in these fundamental challenges by proposing a framework for information space,improving a mathematical theory for information measurement,and proposing a dynamic configuration model for information systems.In this way,it establishes a basic theoretical framework for ISD.The proposed theoretical methodologies have been successfully applied and verified in the Smart Court So Ss Engineering Project of China and have achieved significant improvements in the quality and efficiency of Chinese court informatization.The proposed ISD provides an innovative paradigm for the analysis,design,development,and evaluation of large-scale complex information systems,such as electronic government and smart cities.展开更多
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 p...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.展开更多
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...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.展开更多
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）...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.展开更多
Ⅰ.Introduction Enforcement of foreign arbitral awards and foreign judgments represents a specific element in the overall legal mechanism for the enforcement of natural and contractual rights and functioning of the ju...Ⅰ.Introduction Enforcement of foreign arbitral awards and foreign judgments represents a specific element in the overall legal mechanism for the enforcement of natural and contractual rights and functioning of the judicial system.The performance of the judiciary in ensuring展开更多
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 ...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.展开更多
Constitutionally protected rights remove political issues from the control of the democratically elected legislature. Since such rights therefore limit the power of the majority, recent work in rights theory argues th...Constitutionally protected rights remove political issues from the control of the democratically elected legislature. Since such rights therefore limit the power of the majority, recent work in rights theory argues that the constitutional protection of rights is inconsistent with the fundamental democratic idea of government by the people. According to this view, democracies should assign the power to resolve questions regarding the nature and extent of individual rights to the majority. Constitutional attempts to remove such questions from the public agenda, it is argued, are disrespectful to citizens who disagree with the views embodied in the constitutionalized rights. I argue that this critique： （1） is insufficiently attentive to the question of when legislation by the majority constitutes a legitimate exercise of political power; and （2） underestimates the importance of securing the constitutive conditions of democratic self-government.展开更多
文摘With the widespread use of Chinese globally, the number of Chinese learners has been increasing, leading to various grammatical errors among beginners. Additionally, as domestic efforts to develop industrial information grow, electronic documents have also proliferated. When dealing with numerous electronic documents and texts written by Chinese beginners, manually written texts often contain hidden grammatical errors, posing a significant challenge to traditional manual proofreading. Correcting these grammatical errors is crucial to ensure fluency and readability. However, certain special types of text grammar or logical errors can have a huge impact, and manually proofreading a large number of texts individually is clearly impractical. Consequently, research on text error correction techniques has garnered significant attention in recent years. The advent and advancement of deep learning have paved the way for sequence-to-sequence learning methods to be extensively applied to the task of text error correction. This paper presents a comprehensive analysis of Chinese text grammar error correction technology, elaborates on its current research status, discusses existing problems, proposes preliminary solutions, and conducts experiments using judicial documents as an example. The aim is to provide a feasible research approach for Chinese text error correction technology.
文摘China is one of the major markets for patent filing and patent exploitation.A powerful enforcement environment may boost both of patent filing and exploitation.A two-track system for the patent enforcement is available in China:the administrative system via local intellectual property offices,and the judicial system via courts.
文摘The Company Law of 1993 is important in protecting the interests of both companies and shareholders.But on stock right,it always arouses heated debate among scholars.Before the promulgation of New Company Law of 2006,varieties of theories of this issue have been formed.Through analyzing and refuting those theories,I try to clear the ambiguous definition by explaining the essence of right and comparing related right,so as to reach the conclusion that the stock right is only the changeable form of the ownership of shareholders.
基金a staged achievement of the National Social Science Foundation Projects Research on the Legal Status and Institutional Design of International Treaties in China’s Legal System(Project Number:14BFX186)
文摘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.
文摘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.
文摘The Company Law of 1993 is important in protecting the interests of both companies and shareholders.But on stock right,it always arouses heated debate among scholars.Before the promulgation of New Company Law of 2006,varieties of theories of this issue have been formed.Through analyzing and refuting those theories,I try to clear the ambiguous definition by explaining the essence of right and comparing related right,so as to reach the conclusion that the stock right is only the changeable form of the ownership of shareholders.
文摘Food security is a human right,within a global context by aligning the opportunities to eliminate poverty,to attain the peace,the rational and implications of sustainable use and judicious management of natural resources,are the road map,to combat the disasters.The prevailing International tension with respect to climate change suggests that the food security can be achieved by penetrating,in depth,the agricultural research.Pakistan is under threat to
文摘Law is the fundamental method of governance and the rule of law symbolizes modern civilization. The socialist rule of law is the rule of law rooted in the Chinese tradition, and designed and led by the Communist Party of China(CPC). It is not only a tool for government, but also a driver of social progress. Meanwhile, the Chinese human rights system is also designed by the CPC. Both concepts—the socialist rule of law and the human rights system——are different from the West in terms of theory, path and systems. Human rights are the fundamental values of and the ultimate goal pursued by the rule of law; and the rule of law is the recognition of and guarantee for human rights. Efforts must be made to advance legislative, administrative and judicial protection of human rights.
文摘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
基金Scientific Planning Project of Tianjin Philosophy and Social Science Monitoring the legal system and political trend-Research on the relationship between the Duchayuan during Tianqi period and the political situation of the late Ming DynastyProject No.TJFX19-002。
文摘The supervisory system and the examination system are two indigenous political systems of China,and the former has a longer history than the latter when it comes to the origin.Having inherited the essence of the supervisory system since the Qin Dynasty,the supervisory rules in the Ming Dynasty opened a new chapter of legal thoughts of monitoring.This paper started with the design of the supervisory institutions in the Ming Dynasty recorded in the historical materials such as the Memoir of Ming Dynasty and The Interpretive Supplements to"The Great Learning",to get a glimpse of the main content of the legal thoughts of supervisory at that time,and tried to"take history as a mirror"to provide insights and lessons of the legal thoughts of supervisory in the Ming Dynasty for the later generations.
基金the Supreme People’s Procuratorate Procuratorial Theory Research Project in 2018—“Study on the System of Sentencing Suggestions in Pleasant Plea”(GJ2018D26)
文摘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”.
基金supported by the National Key Research and Development Program of China(2016YFC0800801)the Research and Innovation Project of China University of Political Science and Law(10820356)the Fundamental Research Funds for the Central Universities。
文摘Although numerous advances have been made in information technology in the past decades,there is still a lack of progress in information systems dynamics(ISD),owing to the lack of a mathematical foundation needed to describe information and the lack of an analytical framework to evaluate information systems.The value of ISD lies in its ability to guide the design,development,application,and evaluation of largescale information system-of-systems(So Ss),just as mechanical dynamics theories guide mechanical systems engineering.This paper reports on a breakthrough in these fundamental challenges by proposing a framework for information space,improving a mathematical theory for information measurement,and proposing a dynamic configuration model for information systems.In this way,it establishes a basic theoretical framework for ISD.The proposed theoretical methodologies have been successfully applied and verified in the Smart Court So Ss Engineering Project of China and have achieved significant improvements in the quality and efficiency of Chinese court informatization.The proposed ISD provides an innovative paradigm for the analysis,design,development,and evaluation of large-scale complex information systems,such as electronic government and smart cities.
文摘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.
文摘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.
文摘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.
文摘Ⅰ.Introduction Enforcement of foreign arbitral awards and foreign judgments represents a specific element in the overall legal mechanism for the enforcement of natural and contractual rights and functioning of the judicial system.The performance of the judiciary in ensuring
文摘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.
文摘Constitutionally protected rights remove political issues from the control of the democratically elected legislature. Since such rights therefore limit the power of the majority, recent work in rights theory argues that the constitutional protection of rights is inconsistent with the fundamental democratic idea of government by the people. According to this view, democracies should assign the power to resolve questions regarding the nature and extent of individual rights to the majority. Constitutional attempts to remove such questions from the public agenda, it is argued, are disrespectful to citizens who disagree with the views embodied in the constitutionalized rights. I argue that this critique： （1） is insufficiently attentive to the question of when legislation by the majority constitutes a legitimate exercise of political power; and （2） underestimates the importance of securing the constitutive conditions of democratic self-government.
