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.

Realization of the Right to Economic Assistance of Women with Disabilities in Divorce from the Perspective of the Civil Code

Protecting the equal human rights of persons with disabilities is an important part of human rights protection in China.The Marriage law Amendment in 2001 focused on the economic assistance system for divorce relief for a party unable maintain the local basic standard of living.The Civil Code has adjusted and expanded the system,stipulating that one party can ask for financial help from the other party if the party can’t maintain a reasonable living after divorce.To a certain extent,this economic assistance should include the assistance to the party whose living standard has decreased significantly after divorce and the party who has made more sacrifices and contribution to the marriage during the marriage.Although the economic assistance system for divorce stipulated in the Civil Code does not specifically address unequal treatment or discrimination against women with disabilities,since women with disabilities are more vulnerable after divorce,they are more likely to put forward economic assistance claims after a divorce,be more dependent on others physically and psychologically,and find it more difficult to obtain employment.Social security for women with disabilities is still insufficient and compared with other subjects,women with disabilities are likely to be in an unequal position in the realization of their right to economic assistance in divorce.Therefore,it is necessary to put forward reasonable legal interpretations and application suggestions for the relevant provisions in the Civil Code,so as to fully realize the economic assistance rights of women with disabilities in divorce,and reflect the care and protection of the human rights of women with disabilities in the Civil Code.

Human Rights Implications of the Civil Code of the People's Republic of China

Putting the people first in human rights protection is the most distinctive feature of the outlook on human rights in contemporary China. The codification of the Civil Code of the People’s Republic of China reflects the people’s legislation for themselves, which is guided by the principle of putting the people first in its external system and internal values. Functionally, the Civil Code of the People’s Republic of China reflects the obligation of the country to protect human rights, constructs the framework relationship between the country and individual people, and perfects the mechanism for human rights protection. The continuous expansion of the types, contents, and functions of civil rights in the Civil Code of the People’s Republic of China is required by the broad scope of human rights, with an aim to realize a happy life for the people, the most important human rights, and protect people’s personal rights, property rights, and right to dignity through specific rules. The universal sharing of human rights requires the universality of the subjects of civil rights. The equal sharing of human rights requires the equality of forms of civil rights protection. Meanwhile, it further requires the substantive equality of civil rights protection. Attention is paid to protecting the rights and interests of specific groups in external and embedded ways.

On the“News Exception”in Personal Information Protection

Protection of personal information is a significant issue in the construction of legal systems in various countries in the information age.Introducing a balanced approach for protecting personal information is an important goal of basic human rights protection and data legislation.Personal information protection involves comprehensive considerations among various values,and the balanced structure between personal information rights and other rights systems has become the key to legislation on personal information protection.The“news exception”is a prominent example representing the balanced structure of personal information protection.As a societal instrument,news not only pursues commercial value but also advocates freedom of expression and public value.There exists a natural tension between news and personal information protection.The“news exception”of the balanced structure has become a fundamental requirement and important connotation for constructing a system for protecting personal information.The balanced structure of the“news exception”requires a reasonable definition of the concept and purpose of news,and both the self-discipline within the news industry and the judicial intervention are necessary factors.China has preliminarily completed the top-level legislative design of personal information protection through laws such as the Civil Code of the People’s Republic of China(PRC)and the Personal Information Protection Law of the People’s Republic of China.However,the balanced mechanism of the“news exception”has not yet been fully established in China.A“news exception”based on the ideas of balance and the improvement of the institutional system is the fundamental principle for the development of China’s personal information protection system.

A Coherent Interpretation of Economic Compensation for Divorce:Taking Gender Equality as the Basis

Article 1088 of China's Civil Code grants the right to seek economic compensation in divorce cases.However,significant confusion persists regarding the values,interpretations of doctrine,and legal techniques related to this compensation.Various viewpoints have emerged on the nature of compensation,including notions of household wages,human capital investment,moral obligation,and damages recovery.Concerning compensation standards,there are proposals such as the“humanitarian assistance”theory,“household wages”theory,“expected interest”theory,or“loss of interest”theory.By examining the evolution,legal principles,and practical applications of economic compensation for divorce from a human rights perspective,we aim to establish the legal foundation for this compensation,grounded in principles of gender equality.It clarifies that the compensation essentially confirms and restores individual development opportunities and the right to development in the context of gender inequality.This approach aims to provide a more coherent interpretation of clauses of economic compensation for divorce in terms of legal purposes,legal doctrines,and legal techniques,thus offering a more reasonable perspective to reconcile theoretical and practical discrepancies in economic compensation for divorce.

How does the Civil Code Process the Civil and Commercial Relations According to the Insurance Law

The relationship between the civil law and commercial law is a long-standing issue of controversy in the area of private law, and it is also an issue of unavoidably legislative selection during the codification the civil code in almost every country. Since the founding of the People Republic of China, China has carried out the codification of civil code for four times, and since the part^s eighteen plenary session officially proposed the ＇codification of civil code＇, the issue of the civil and conmaercial relation draws the attention again, either unification or division of civil and commercial law directly affects the system and content of the civil code, and affects how to process the relationship between the civil law and commercial law during the codification of the civil code as well. The codification of the civil code should not only consider the legislative tradition of the civil and commercial legislation and the current legal system, but also pursue characteristics of the commercial law, in a system of combining civil and commercial law, through adding commercial law into the general principle of civil law; the existing commercial law should be separately retained.

The Sumame of Turkish Women： A Question of Identity？

After the foundation of Turkish Republic in1923, Turkish Civil Code which was codificated from Switzerland in 1926 was a new code for modem Turkey that aimed gender equality. Even if, there were some articles, contrary to the equality of men and women, they were ignored when they were compared with the reforms performed in favor of women. The surname of woman was one of the issues where there was gender discrimination. In the Civil Code of 1926, it was stated that the married woman must have taken her husband＇s surname after the official marriage and she had to use it through her marriage life. In 1997, there was an amendment in TCC Article 153 that the married woman had the right to register her maiden name in front of her husband＇s surname which was also accepted in the new TCC in Article 187 in 2002. As the equality of the spouses is neglected under Article 187, many women are trying to change the current situation, by lawsuits. In this article, the regulations about the surname, will be discussed under personality rights and identity, within the current legislation with some court decisions from the last years in favor of women.

Relief Dilemma of Sexual Harassment in the Workplace and the Way Out of Judgment——Based on Judicial Case Analysis

Through the retrieval of judicial documents involving sexual harassment in the workplace,it is found that the overall number of civil cases caused by sexual harassment in the workplace in China is very small.In related cases,the proportion of courts identifying sexual harassment in the workplace is low,the proportion of victims suing to protect their rights and interests is low,and the winning rate is also low.The main reason why it is difficult to take legal remedy is that the standards of sexual harassment identification are vague,the collection of evidence is difficult,the standards of proof are different,and it is difficult to take the liability of the employer.Article 1010 of the Civil Code stipulates the definition of sexual harassment and the whole-process prevention and treatment of the employer's obligation,which is significant progress in regulating sexual harassment in the workplace,but cannot completely solve the above problems.Before the legislation is further perfected,it is necessary to clarify the specific identification elements and judgment standards of sexual harassment,clarify the certifying power and proof standards of relevant evidence,and actively explore the path of liability of the employer.

The Embodiment of Enhancing Family Civility in China's Civil Code

“Development of family civilization”has joined legislative language system from policy language and ethical language,and has become the basic value orientation of the Marriage and Family Section of Civil Code of the People's Republic of China(hereinafter referred to as“the Civil Code”).We need to specify significance and jurisprudence of family civilization,and make family civilization harmonious with the basic principles(basic value orientations)of Marriage and Family Section and Inheritance Section.The significance of family civilization in the new era should be taken to include equality,respect,loyalty and unity,as is specified through the legal rules of marriage and family.Development of family civilization does not challenge freedom,but overcomes the defects of individualism in the identity community so as to fully realize the liberal and all-round development of each family member.By integrating family civilization with the basic value orientation of its Marriage and Family Section,the Civil Code has demonstrated a basic position of valuing“family”and of“coordinating the relationship betweenaindividual and family.”Moreover,it has revealed the basic attitude of Chinese people towards marital relationship and even towards marriage and family:Marriage and family provide a warm harbor of ethical love with legal significance,a weal-and-woe-sharing community of affection and property wherein family members,husband and wife in particular,focus on overall coordination.It is a closeknit group of equality,harmony,solidarity,like-mindedness,mutual respect and care for the elderly and for the young,and of trust-worthy team.

On the Legislative Concept and New Rules of the System of Marriage and Family in China's Civil Code

Twenty-four new or revised systems or rules have been incorporated in the Civil Code of the People's Republic of China for the purpose of strengthening the State's protection of marriage and family,promoting development of family civilization,and respecting the autonomy of the parties to marriage and family.Furthermore,they are designed for advancing equal marriage and family status,implementing the principle for the best interests of children,and protecting the rights and interests of the weak in marriage and family.In the Marriage and Family Section of the Civil Code,the Chapter 1“General”has got the new principle of the State protecting marriage and family,new advisory rule for promoting development of marriage and family civilization,and new principle for protecting the best interest of adoptees.Moreover,it has defined the types of relatives,close relatives and family members.In the Chapter 2“Marriage,”the lawful circumstances for prohibiting marriage and for invalidating marriage are reduced,the scheme of revoking a marriage is revised and supplemented;the obligation of telling the truth about major diseases,and the right for the innocent party to claim damages for an invalid or revoked marriage,are added.In the Chapter 3“Family Relations,”the rules of husband and wife's family agency right and its restriction,the rules of marital common debt determination,the rules of marital common property split,and the rule of litigation for the confirmation and denial of parent-child relationship,are added;in the Chapter 4“Divorce,”the pre-divorce coolingoff period and the time for dissolution of marriage relationship are added,the legal circumstances for divorce in litigation,the rules for dealing with child support during divorce,and the principle of splitting the common property of divorced couples are supplemented,the applicable conditions of divorce financial compensation and divorce financial assistance are modified,and the legal circumstances for divorce damage compensation is increased;in the Chapter 5“Adoption,”the age of adoptees and the number of adopted children are relaxed,the conditions of adopters are revised,and the adoption evaluation rules are added.

Generation method of GPS L1C codes based on quadratic reciprocity law

A new code concept is used for the L1 civil（L1C） signal of the global positioning system（GPS）.The generation of L1C codes is quite different from the generation of traditional ranging codes.Thus,it is necessary to find a method for the correct generation to pave the way for future research.L1C codes are based on only one Legendre sequence which consists of Legendre symbols.To calculate these Legendre symbols,the Euler criterion is always used to evaluate quadratic residues.However,due to the great length of L1C codes,this procedure causes overflow problems.Therefore,the quadratic reciprocity law,some related theorems and properties are introduced to solve the problems.Moreover,if the quadratic reciprocity law,some related theorems and properties are used to calculate different Legendre symbols,the combination modes may vary,which causes a complex generation process.The proposed generation method deals with this complex generation process effectively.In addition,through simulations,it is found that the autocorrelation features of obtained Legendre sequences and L1C codes are in accordance with theoretical results,which proves the correctness of the proposed method.

宪法视野下的婚检制度变革与完善——基于《民法典》第1053条告知义务的履行

《民法典》第1053条对禁婚疾病传统作出重大调整,成为新时代背景下婚检制度设计的重要法律依据。在婚姻宪法保护框架下,“婚姻自由—私人告知—自愿婚检”的传统思路忽略了比“婚姻自由保护”更为根本的“婚姻传统功能保护”。婚姻的公共性及解决相关司法实践难题的客观需要,使得婚检融入履行环节成为可能。从《宪法》到《民法典》再到《婚姻登记条例》,民法典时代婚检制度设计应沿循“婚姻保护—法定告知—弱强制婚检”设计思路,采取“程序强制+形式审查”模式,即当事人于婚前相互告知专业健康检查结论,婚姻登记机关仅要求当事人填写知晓声明并进行必要口头提示而不对告知内容及其真实性进行实质审查。

“避风港”规则的实践困境与完善路径

“避风港”规则是判定网络侵权责任的重要规则之一,在互联网发展早期较好地平衡了权利保护与产业发展的关系。但随着新技术新业态的快速发展,“避风港”规则在新技术环境下面临着一系列实践困境:网络内容分享平台驶入“避风港”的条件不明确,对特定侵权内容的通知处置难以遏制重复侵权,公法审查义务可能会架空“避风港”规则的适用。摆脱这些困境,就应该在《民法典》解释论框架下,合理划定新技术环境下平台应尽的注意义务,适当扩展解释“必要措施”以遏制重复侵权,澄清私法注意义务与公法审查义务的关系。

《民法典》背景下个人信息保护的司法考察与制度完善

大数据时代,为充分保障个人的信息安全,我国相继施行的《民法典》《个人信息保护法》对此作出了较为全面的规定。考察相关规则的司法适用,发现我国个人信息保护存在个人信息与隐私权界定不清、损害赔偿威慑作用不足、公益诉讼制度效用未充分发挥、“知情—同意”标准不一且流于形式等问题。为解决上述问题,可通过构建可识别的场景化模式界定个人信息,引入情境脉络完整性理论判定隐私,审慎引入惩罚性赔偿,明晰个人信息保护公益诉讼的适用条件,构建“国家—行业—平台”三层规则体系实现实质同意,全面保护个人信息。

《民法典》第1014条(姓名权、名称权不得非法侵害)评注

《民法典》第1014条规定的姓名权、名称权不得非法侵害,是姓名权、名称权的消极防御权能,其与《民法典》第1012条、第1013条规定的姓名权、名称权的积极权能,共同构成现行法律体系下关于姓名权、名称权权能的一般规定。对于涉及姓名权、名称权消极权能的法律纠纷,在其他法律如《著作权法》《商标法》《反不正当竞争法》等没有具体规定时,应回溯到本条作为规范依据。本条在立法技术上采具体列举+概括规定的方式,既明确了应予禁止的典型侵害行为,也将那些尚不足以预先概括其事实构成的侵害行为纳入现行法调整范围,从而使制定法能够跟得上社会发展而为姓名权、名称权提供充分保护。主张本条规定的典型侵害行为及其他侵害行为的权利人负有证明责任,需要证明行为人实施了干涉、盗用和假冒等行为,若权利人不能证明或提供的证据前后矛盾等,则要承担不利后果。

社会主义核心价值观融入民法典的生成逻辑和实践向度

社会主义核心价值观与民法典形成相互影响、相互塑造的互构逻辑:社会主义核心价值观通过奠定思想灵魂塑造民法典的中国特色;民法典通过设定私法秩序形成社会主义核心价值观的运行规则。社会主义核心价值观融入民法典的生成逻辑包括德法合治的历史传统、法律和价值的耦合关系、民法典人民至上的价值旨归。社会主义核心价值观主要从立法、执法、司法、守法等不同层面融入民法典,具有宣示国家价值目标、引领社会价值取向、明确个人价值准则的重要作用。进一步厘清社会主义核心价值观融入民法典实践向度的具体方式和边界,有助于发挥社会主义核心价值观引领法治建设的重要作用。

民法典中生态环境损害赔偿责任体例疏释

《中华人民共和国民法典》第1234条、第1235条将生态环境损害赔偿责任拆分成“两类六种”责任形态并列规定,这一制度体例承袭民事责任以责任后果的形态分别列举的体例。从历史面向看,这一体例既受移植苏联在总则中规定民事责任的影响,也与计划经济时期公法责任冲击民法的历史过程相关。然而,民法典编纂过程中并未对这一体例予以矫正,反而将其应用到生态环境损害责任的立法中。从现实面向看,尽管这一体例的形成具有一定的偶然性,但随着对民法典的本土化研究,这一体例所体现的“权利-义务-责任”体系被赋予了取代“权利-请求权”体系的新功能,并且使生态环境损害赔偿规避了环境权的争论得以直接以责任的形式规定。但由于其遮蔽了责任后果与责任原因之间的关联,使分别列举的责任后果的适用逻辑不清晰,致使生态环境损害赔偿责任司法实务中存在赔偿不足或赔偿冗赘的现象。在当前制度环境下,欲在保持现有的生态环境损害赔偿责任体例的前提下理顺生态环境损害赔偿责任的适用逻辑,需在学理层面将其与责任原因相连结。

养老保障视域下《民法典》赡养义务体系化之论

《民法典》使赡养义务体系化,但相关解释论的缺失影响了赡养义务功能的实现。为此,需要根植法律体系、立足社会现实,构建赡养义务体系解释论。以生存保障功能为起点,经由实践演进、理论沿革与条文修改,总则性赡养义务条款发展出全面性内涵。将赡养理解为全面性赡养,是《民法典》赡养义务实质体系化的基础。以合理性与可行性为考量,需要界分法律性赡养与道德性赡养,且子女、孙子女、外孙子女的强制性赡养义务应被限制为物质性赡养。而在以被赡养人为中心的理念下,孙子女、外孙子女赡养义务虽属次生补位性质的义务,但其履行基准不宜与子女赡养义务有所区分。有关丧偶儿媳、女婿赡养义务的条款属于权利取得条款,具有激励性、倡导性作用,其伦理基础是继承人与被继承人之间形成的家庭性、道德性关系,因而其要件不宜限定为物质性要素,而应综合考虑物质性赡养、精神性赡养、照料、保护等要素。

《民法典合同编通则解释》的理解与适用

原《合同法》及相关司法解释废止后时隔三年,《民法典合同编通则解释》在各界期盼中发布施行。在适用范围上,《民法典合同编通则解释》既适用于合同纠纷案件,也适用于非合同纠纷案件,除非依其性质不能适用;在覆盖内容上,《民法典合同编通则解释》内容丰富、亮点纷呈、形式创新,条文与司法案例配套同步出台,可形成组合效应;在时间效力上,《民法典合同编通则解释》可以溯及既往;在思维方法上,《民法典合同编通则解释》尊重立法原意,不作创新性续造,思路清晰,结构合理,方法科学。此外,为帮助正确理解适用《民法典合同编通则解释》的相关条款,还对譬如从无到有的情势变更条款的前世今生、前因后果及其与不可抗力的区别和联系作了梳理分析,并提出了修改完善《海商法》的立法建议。

知识产权客体兜底规范的内在关系及适用逻辑——以《民法典》第123条与《著作权法》第3条的适用为分析视角

《民法典》对知识产权客体类型的立法取向秉持法定主义立场,而现行《著作权法》对作品类型的规范选择却经历了由“作品类型法定”到“作品类型开放”的重大转变,致使两法客观呈现权利客体类型开放与封闭的立法模式差异。实践中应揭示这种假性矛盾的本质,厘清私权部门种属概念间错位类比的逻辑误区,明确过渡性知识产权基本规范对各知识产权单行法特殊性问题的解释缺失,以《民法典》与《著作权法》之间互为“表里”的“隔代”调适关系为逻辑基础,支撑知识产权客体相关规范在司法适用中的实践展开。即以作品类型扩张的现实表现和法律解释经验为起点,以民事私权的价值理念为根基,秉持审慎开放、体系化解释和司法确认优先原则,在具体案件中依照知识产权权属定位、著作权权属定位、作品类型定位的逻辑层次,在权利客体兜底款项启用时严格把握相对开放的审慎裁判思路。