On the Principle of Consistency of Rights and Obligations in the Constitution of PRC

“The Fundamental Rights and obligations of Citizens”, the title of Chapter II of the current Constitution of PRC, and the stipulation that citizens must fulfill certain obligations while enjoying rights have triggered many debates. Considering the historical origin, constitutional philosophy, and the text and structure of the Constitution, the special provisions of the current Constitution are influenced by the principle of consistency of rights and obligations. The principle of consistency of rights and obligations in the Constitution is of complex connotation. Therefore, although the principle of consistency of rights and obligations effectively connects the public and private spheres, it ignores the diversity and differences of the interests and elements contained in the Constitution, the asymmetry of the normative status of fundamental rights and fundamental obligations,and the right of citizens to self-determination of personal interests.The principle of consistency of rights and obligations should be purposefully narrowed and concretized: In the context of public-private integration and risk society prevention, the principle of consistency of rights and obligations can be used as a supplement to the functional system of the Constitution;in the field of fundamental political obligations, the principle of consistency of rights and obligations should be in line with the requirements of the state to respect and protect human rights;in the field of fundamental social obligations, the exercise of fundamental rights by individuals is protected by the Constitution as long as they comply with the law and do not infringe upon the interests of the social community. The principle of the consistency of rights and obligations is only used as the negative constituents of the determination of rights and the basis for the effect against a third party of fundamental rights.

Extraterritorial Application of International Human Rights Conventions——From the Perspective of States Regulating the Extraterritorial Human Rights Obligations of Transnational Corporations

The extraterritorial application of international human rights conventions is the legal basis for states to regulate the extraterritorial human rights obligations of transnational corporations.In recent years,it has been increasingly challenged by the new trend of the United Nations governing the human rights responsibilities of transnational corporations.A study of existing international rules and practices shows that the extraterritorial application of international human rights conventions depends on the extraterritorial jurisdiction of the States Parties,which mainly includes the actual control over extraterritorial territories and individuals as well as the execution of authority outside the territories.In view of the above,if human rights violations by individuals or transnational corporations occur in areas outside their home territories or are authorized and orchestrated by the home state,the home state shall bear the corresponding human rights responsibilities.Given the restrictive scope of the abovementioned extraterritorial application of international human rights conventions,the international cooperation obligation and the"do no harm"principle may become a new legal basis for states to fulfill their extraterritorial human rights obligations in the future,thereby expanding the basis for the extraterritorial application of international human rights conventions to deal with more serious issues of human rights violations by transnational corporations.However,on the whole,the current identification and codification of states regulating the extraterritorial human rights obligations of transnational corporations should respect the existing rules of international human rights law and should not add any new human rights obligations on states.

The“Erga Omnes”of the Protection of Fundamental Human Rights and the“Complementary Protection”of Refugees Not Prescribed by the UN Convention Relating to the Status of Refugees

The United Nations Convention Relating to the Status of Refugees 1951 and its Protocol in 1967 set Four Essentials to limit the definition of "refugee". The concept of complementary protection emerged in academia and practice for those who, though they do not have the essentials,are in need of protection. Complementary protection is considered not only a moral obligation, but also a legal obligation. Although as the result of developing the principle of "non-refoulement" in international law, "complementary protection" should be limited when economic and social rights are concerned. The development of the non-refoulement principle and the emergence of "complementary protection" are based on the Erga Omnes of human rights. The International Court of Justice has restricted the emergence and evolvement of obligations Erga Omnes within the scope of obligations concerning fundamental and non-derogable human rights, and therefore,the application of "complementary protection" in protecting economic and social rights has been limited. Only when the unbalance of economic and social rights has been serious enough to impact other fundamental human rights will the obligation of "complementary protection" ensue.

New Developments and Challenges in the UN Norms on Human Rights Responsibilities of Transnational Corporations

With the adoption of the"Legally Binding Instrument to Regulate,in International Human Rights Law,the Activities of Transnational Corporations and other Business Enterprises"and its revised draft,the codification of the human rights responsibilities of transnational corporations has entered a new era The instrument aims to supplement the shortcomings of transnational corporations in fulfilling their human rights responsibilities by strengthening the obligations of states and to improve the host country’s inadequate remedies for human rights violations by establishing extraterritorial human rights jurisdiction of home countries But the instrument has encountered various challenges because the human rights obligations and legal responsibilities of states go beyond the current domestic human rights systems and impact the existing theories and practices of international human rights law In order to resolve the differences among countries,the future codification of the instrument should be based on existing domestic and international legal systems and practices striking a balance between the interests of developing and developed countries,taking into account the objectives of both the fair treatment of transnational corporations and human rights protection,to promote the regulatory effect of the human rights responsibilities of transnational corporations.

The Convention on the Elimination of All Forms of Discrimination against Women and China's Actions

Aimed at eliminating all forms discrimination against women, ensuring human rights and fundamental freedoms for women in all fields and realizing de-facto equality between men and women, the Convention on the Elimination of All Forms of Discrimination Against Women adopted by the U.N. General Assembly is a most significant and most comprehensive legal document concerning the protection of human rights of women, which is called "The Charter of the Human Rights of Women." This thesis reviews the achievements and problems in the fulfillment by the Chinese government of obligations under the Convention after signing and ratifying it; and also puts forward some feasible approaches for improvement thereof.

Obligation-based Theory vs.Right-based Theory:Confrontation of Ideas Between Warrender and Strauss

There is a transition from the objective laws or moral orders that precede human will in classical natural law to the subjective demands or rights emanating from human will in modern natural law,and it represents a historical debate on the shift from an obligation-based theory to a right-based theory.Strauss,within the context of this transition across time,assesses Thomas Hobbes's philosophy of law and recognizes him as the founder of modern natural rights theory.Using Wesley Newcomb Hohfeld's analysis of jurisprudence,Howard Warrender assesses the privilege nature of Hobbes's concept of natural rights and concludes that,since Hohfeld's privilege is the opposite of obligation and related to no-right,obligations cannot be derived from natural rights.Therefore,Warrender argues that Strauss's assertion requires correction.However,Warrender places excessive emphasis on Hohfeld's static separation of the concept of privilege within his theoretical system,overlooking the dynamic transformation from privilege to claim rights.In this regard,Hobbesian scholar Carlan's criticism of Warrender is valid.Meanwhile,Warrender's research holds theoretical significance in that he,under the premise of being a part of Hobbes'natural law tradition,transforms Hohfeld's flat,two-party legal rights relationships into a three-party legal rights structure,which could represent a potential innovation in the 20^(th)century legal philosophy.

Women's Rights in the Context of the Three-child Policy:Analyzing from the Constitutional Connotation of“the State Shall Protect the Mother”

Women's rights are essential human rights recognized by the international covenants on human rights and protected in the constitutions and laws of countries.In the context of implementing the three-child policy in China,women are facing pressures from childbearing and bringing up children as well as trying to have a career.It is clearly stipulated in Article 49 of China's Constitution"the mother is protected by the state,"the constitutional principle of equality of men and women shall be incorporated into the interpretation of this article,fully respecting women's subjectivity and equal rights and affirming the social benefits of childbearing and bringing up children.With the introduction of the three-child policy,the protection of women's rights shall focus on their reproductive rights,right to health,right to work and equal rights within the family.The system of women's rights is complex,relates to identity and must be open to the future.The state has the obligation to fully respect,actively promote and promote in a narrow sense the realization of women's rights.To better coordinate the implementation of the three-child policy and the protection of women's rights,we should introduce the concept of social gender equality,improve the system ofp ublic childcare services,home care leave and equal employment,and promote the implementation of relevant laws and policies with special attention being paid to women in rural areas and single mothers.

The Implications of Sports Rights in Building a Leading Sports Nation

As a basic human right,sports rights are increasingly recognized by the international community.The national legislation and strategic plan for building China into a leading sports nation have contributed to forming a multi-field and all-round sports rights protection system.From the perspective of proactive rights and passive rights,sports rights include the freedom to choose free from illegal interference and reflect the social rights for which the state will guarantee the resources.From the perspective of basic rights and ordinary rights,the right to equal participation,the right to sports health,and the right to education constitute the main content of sports rights as a basic right,and the right to sports culture is the concentrated expression of ordinary rights.From the perspective of individual rights and collective rights,the right to sports achievement is a concentrated reflection of the former.Meanwhile,the latter covers the protection of sports rights of vulnerable groups and the balanced development of regional sports.The strategic plan for building a leading sports nation has further clarified China’s basic obligation in safeguarding sports rights in terms of legislative policy planning,financial support,life-cycle services,sustainable development,playing the role of stakeholders and strengthening sports cooperation with other countries and regions,including Hong Kong,Macao and Taiwan.

The Idea of“Codification”of Human Rights to Environment

As China has embarked on a new journey to comprehensively build a modern socialist country and marches toward the Second Centenary Goal,improving the protection of human rights in environmental protection has become a key task to meet people's growing demand for a better life.The international community has reached a consensus on the human rights attribute of environmental rights,and China has also recognized it in its National Human Rights Action Plan of China(2021-2025).Early claims for environmental human rights gave birth to modern environmental law at the international level,while the global consensus on sustainable development promoted the new development of environmental human rights.In China,the construction of a"beautiful China"has become the national goal confirmed by the Constitution.The confirmation of environmental rights in the planned environmental code can further clarify the connotation of the value system of the code and help clarify the institutional structure and attribution logic of the code.Based on the subjective right and objective value of environmental rights,the specific scheme for the"codification"of environment rights is to construct the system from three levels of ontological provision,guarantee provision and reliefprovision.

Vaccination Obligation from the Perspective of the European Court of Human Rights——Taking the Case of Varif et al.v. Czech Republic as an Example

The case of Varif et al.v. Czech Republic concerned whether Czech legislation that imposed a moratorium on school attendance and a fine as a punitive mechanism for non-vaccination violates the European Convention on Human Rights by forcing children to receive routine vaccinations. In the ruling, the European Court of Human Rights reiterated that the choice of public health measures falls within the discretion of member states. Meanwhile, to limit the infringement of individual interests to what is necessary and reasonable, the European Court of Human Rights clarified the criteria for human rights protection for compulsory routine vaccination: It should have a legal basis, a lawful aim, and be in line with the “needs of a democratic society.” Accordingly, the European Court of Human Rights held that the legal provisions involved in the case did not violate the European Convention on Human Rights. As the first response of the European Court of Human Rights to compulsory vaccination, the case of Varif et al.v. Czech Republic strengthens the influence of the law of the European Union in the field of public health by upholding the discretion of member states. Besides, although the case involves only routine vaccination, the human rights protection criteria clarified in it can be taken as a reference for introducing vaccination measures against COVID-19 in the context of the global pandemic.

An Analysis of Human Rights Factors in Confucian Tradition

Although there is no concept of Human Rights or Rights in the Confucian tradition,Western culture has a different understanding of people's due status and interests.This understanding includes the emphasis on and respect for human beings,and the factors that are compatible with human rights theory and can promote its development.The Confucian concept of humans emphasizes every individual as an individual in the community,obligations,and consideration of others.Its main contents are as follows:benevolence as the core;for individuals in the community,the ideal personality of a gentleman,namely,benevolence,independence and self-improvement;in the aspect of vertical interpersonal relationship,the advocation of people-oriented and good governance(e.g.,nurturing the people,educating the poor and helping the weak);in the aspect of horizontal interpersonal relations,the advocation of people as compatriots;and the respect of heaven and earth and the love for all things in relation of human and nature.These contents are of great significance to the construction of human rights in China and the world.

Whose Dignity?How to Enjoy?——An Interpretation of a Concept Based on the Context of Ancient Roma

Dignity and Human Rights are recognized as two principles that coordinate with each other.However,it is an invention of modern people to set dignity as the basis of human rights from a genealogical point of view.In the classical context,dignity was represented as a political value,honoring excellence in public service.As a reward and return for political services,dignity holders were entitled to be recognized by the state and treated with appropriate courtesy and respect.There are two ways to get dignity,"bestowed in advance"and"awarded afterwards."The former was bestowed by a noble bloodline,while the latter was a reward for eminent military achievements or outstanding performance in normal state governance.In any case,dignity is defined in a differential pattern.It is quite different from the value of Equality for All in dignity,which is emphasized in modern society.In ancient Rome,as a tribute to moral excellence,dignity also required the taming and control ofphysical desire,so the value of dignity did not honor the natural rights of each human being,but rather the high rank and strong obligation of the excellent.

Legal Protection of the Right of Informed Consent of the Subjects of Human Clinical Trials in China

The “informed consent principle” in human clinical trials is the product of the extension of the concept of human rights in the field of human trials and a reflection of the progress of human civilization in biomedical research. In recent years, the legal protection of the right to informed consent for research subjects has been gradually improved in China. The right to informed consent for research subjects has been improved from an ethical norm to a legal norm. The legal status of legal norms has also been gradually improved. Based on the public law regulations, private law relief has been added to the legal relief system for the infringement of the right to informed consent for research subjects. As a result, the protection of rights has been enhanced. The domestic informed consent protection system is partially in line with international norms. The protection of the right to informed consent depends on the perfection of the legal system and the social consensus to respect human rights and the right to self-determination.

The Whaling in the Antarctic Case, Applying the International Convention for the Regulation of Whaling as a Self-contained Regime

The Whaling in the Antarctic Case (Australia v. Japan: New Zealand intervening) decided by the International Court of Justice (hereinafter "ICJ" or "the Court") on 31 March 2014 dealt with the interpretation of specific provisions of the 1946 International Convention for the Regulation of Whaling (ICRW), in particular Article VIII.1, and its complementary instruments, i.e., the Schedule and the Annexes of the International Whaling Commission Scientific Committee. The decision of the Court was a remarkable good one. However, its rigorous reasoning focused almost exclusively on the required purpose of "scientific research" of the JARPA II Programme1 permits as set out in the ICRW, approaching the convention as an autonomous self-contained regime which leaves aside other additional grounds. Nonetheless, it would be beneficial for further jurisdictional developments to strengthen the scope of the ICWR system with the applicable provisions of the United Nations Convention on the Law of the Sea (UNCLOS) and other treaties and institutions impinging on whales and whaling, e.g., CITES, Bonn Convention, Antarctic Treaty System, among others. The query remains concerning the unexplored sources of international law ruling Antarctic spaces and species which are absent in the judgment of the Court but may allow an evolutive interpretation of the ICRW.

论FRAND原则对标准必要专利权行使的限制

随着中国通信技术的发展,标准必要专利权纠纷的增多,标准必要专利权的行使将受到更多的关注。技术标准FRAND原则使得标准必要专利权人相比普通专利权人在行使权利时受到更多的限制,这种限制来源于FRADN原则的公共利益属性,本文从许可义务、FRAND许可费计算方法以及禁令申请的角度探讨标准必要专利权人行使权利的界限。

论我国当事人适格的判断——兼谈《民事诉讼法》第122条第1项的解释

我国《民事诉讼法》第122条第1项规定的“与本案有直接利害关系”本质上是实体当事人概念,这使得我国当事人适格的研究背景与德日颇为不同。从当事人适格的理论功能看,现有研究将第122条第1项解读为我国当事人适格标准是不妥当的;只有对《民事诉讼法》第122条第1项进行低阶化解释,我国才有探讨当事人适格的理论空间。从文义和体系的角度解释《民事诉讼法》第122条第1项的“本案”和“利害关系”,可以有效降低我国的起诉条件,并创造出当事人适格探讨的理论空间。以比较法上当事人适格判断标准的四个学说为基础,结合我国现代型诉讼的处理模式,可分析并论证管理处分权说作为我国当事人适格判断标准的妥当性。

论融资租赁承租人违约时出租人的权利救济路径

就融资租赁合同中出租人的权利救济而言,«民法典»第752条设计了租金加速到期与“解除合同,收回租赁物”两种救济路径.但在形式主义与功能主义相结合的立法模式下,出租人如何就两者进行主张,以及在合同层面与担保功能实现层面平衡各方的利益,仍存在一定的解释空间.当承租人违约时,出租人只能在两种救济路径中择一行使,而不得同时主张.出租人请求支付全部租金的,可依据普通民事诉讼程序或者非诉执行程序就拍卖、变卖租赁物所得价款优先受偿.这一救济路径是功能主义的产物,尚需与动产担保体系相协调.出租人主张解除合同并收回租赁物的,融资租赁合同的担保功能无法继续维持,出租人对租赁物的所有权完成了“去担保化”.这一救济路径明显带有形式主义的色彩,但基于不当得利返还的制度需求,出租人在解除合同后仍负有关于租赁物价值的清算义务.

健康老龄化视域下长期护理质量保障的权利构造与义务谱系

有效保障失能失智老年人所需高质量长期护理的常态化稳定供给,是促进健康老龄化的重要内容之一,更是改善民生福祉、健全人口发展、实现社会公平正义的必要之举。当下长期护理质量保障效果不佳问题之眼在于并未以法学范式从公民基本权利与国家义务谱系出发选择治本之策。以基本权利保障失能失智老年人对高质量长期护理稳定获取的正当理据,既源于行政管理本位对长期护理质量保障的“力有不逮”,又根植于基本权利理论论证高质量长期护理应得性的“内在契合”,失能失智老年人依赖性与自主性间的博弈更凸显了以基本权利保障长期护理质量的必要性。应根据失能失智老年人在长期护理过程中不同的利益诉求,先对平等权、自主权等基本权利进行主体权利内容设定,再结合基本权利的任务与功能构造国家对长期护理质量保障的义务谱系。

民法债物关系的再认知:基于债的财产化和并立化的内在视角

债物二分体例是民法自古典走向近现代之际所确立的财产法基础性结构,意涵丰富。长期以来受形式民法认识论视线遮蔽,学界过多地关注二者区分的特点,从而忽视现代民法债物二分是以债的财产化以及并立化作为前提的实质意义。仅仅立足债物区分视角,对债物二分体例所具有的实际机理和价值功能的理解难免偏颇。债的财产化以及由此而起的债物并立,是近代以后民法财产权制度的一次突变,是对于历史上此前以债的工具化为特点的物权中心体系的重要超越和创制,具有支持和保障当时出现的渐近发达的市场经济的重要意义。现代民法通过债的财产化、债物并立化,使债的交易形式的开放设计与物权类型的定限设计成为同等重要的对应设计,甚至逐渐重心偏移向前者,形成一种具有奇特双向作用的整体协同关系。一方面通过物权,从特定资源配置观的角度设定自身基本经济体制;另一方面,又通过债的设计,支持发达市场经济的运行需求,保障其中体现复杂性、多样性交易的现代经济关系的有效开展。立足这一角度的债物关系认识观,能够弥补限于区分论视角的重大缺漏。中国《民法典》的财产权体系,一方面继受了现代民法的债物二分,但另一方面又并不是简单地继受上述结构,而是在坚持中国社会主义市场经济目标理念下,从中国国情实际和时代性需求出发,在以债物结构为重点的基础上,做出了重要的创新和发展,展示出一种立足于中国特色政经体制、追求经济快速发展的财产权体系再现代化的模式趋势。