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 gene...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.展开更多
With the continuous development of China's market economic system,the arbitration judicial review system based on the Arbitration Law promulgated in 1994,including the dual-track review of foreign-related and dome...With the continuous development of China's market economic system,the arbitration judicial review system based on the Arbitration Law promulgated in 1994,including the dual-track review of foreign-related and domestic cases,and the dual-supervision on procedural and substantive matters,has shown some issues that need to be studied and solved in practice.On July 30,2021,the Ministry of Justice officially announced the Arbitration Law of the People's Republic of China(Amendment)(Draft for Comment),which unified the provisions on setting aside domestic and foreign-related arbitrament,and partially revised the scope of judicial review.However,heated debate arose and many problems remained unsolved such as the setting of the scope of supervision on foreign-related arbitration cases,how to grasp the principles of procedural review,and how to place the substantive supervision after the dual-track systems were changed into unified ones.Based on the Draft for Comments,this paper analyzes several prominent issues at present,and puts forward suggestions such as expanding the criteria for identifying foreign-related factors,converging to the original supervision scope of foreign-related arbitration,adhering to the principle of procedural review,and permitting the parties concerned to agree on the scope of supervision to maximize respect for the autonomy of the will of parties,so as to build a judicial supervision mechanism for commercial arbitration betterfitting into the era.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
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 Genera...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.展开更多
文摘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.
文摘With the continuous development of China's market economic system,the arbitration judicial review system based on the Arbitration Law promulgated in 1994,including the dual-track review of foreign-related and domestic cases,and the dual-supervision on procedural and substantive matters,has shown some issues that need to be studied and solved in practice.On July 30,2021,the Ministry of Justice officially announced the Arbitration Law of the People's Republic of China(Amendment)(Draft for Comment),which unified the provisions on setting aside domestic and foreign-related arbitrament,and partially revised the scope of judicial review.However,heated debate arose and many problems remained unsolved such as the setting of the scope of supervision on foreign-related arbitration cases,how to grasp the principles of procedural review,and how to place the substantive supervision after the dual-track systems were changed into unified ones.Based on the Draft for Comments,this paper analyzes several prominent issues at present,and puts forward suggestions such as expanding the criteria for identifying foreign-related factors,converging to the original supervision scope of foreign-related arbitration,adhering to the principle of procedural review,and permitting the parties concerned to agree on the scope of supervision to maximize respect for the autonomy of the will of parties,so as to build a judicial supervision mechanism for commercial arbitration betterfitting into the era.
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.
