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Wang Zhiyuan

The sticking point of the argument on criminal illegality cognition question is the game between “Public Interest” and “Private Right”. Specifically, the related “Public Interest” here is the group’s security interest; the “Private right” is the individual’s right of “no punishment if one did not know the rule”. Concerning the limited capability to authenticate whether a defendant knew the rule, and according to the “maximizing private right” principle on balancing “Public Interest” and “Private Right”, the resolution of the criminal illegality cognition question should be a trade-off decision on the basis of an equilibrium state placing emphasis on the community security interests. Its specific formulation is plausibly to select whether “not knowing the rule” is avoidable as a key point, and to divide the “not knowing the rule” into punishable and unpunishable conditions. Keywords: Public interest; private right; equilibrium state

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The classical cases of necessity and the difficult problems of the law

Selected Papers of The Jurist (法学家), Volume 5

He Peng

Domestic academics have not paid much attention to the introduction and analysis of Western theories of necessity. The continental law system and the common law system have different ways of lawmaking and legal practices. However, both of them recognize the reason of necessity. Necessity can be justified as a special right, or a justified defense. This article will introduce and analyze Western theories of necessity, to fill the gap in the domestic academic debate, as well as to provide a reference for future Chinese legal practices. Keywords: Necessity; right; excuse; criminal offences

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Qi Tonghui

The essence of “the rule of law in China” is governance based on rational choice and contractual provisions, while is rational regulation is rooted in rules, although in this context of the rule of law, it still contains “status”. In the sense of “rational regulation”, the rule of law needs contracts, but it needs more “contractual status” in the sense of “virtue identity”, and we cannot replace status by contract only in accordance with the old path of “from status to contract”. Connecting with the mode of “absolute – true status” and “relative – false status”, which is built by contract and virtue, “contractual status” can provide distinction, birthright and duty for the rule of law. Keywords: rule of law; virtues; contract; status; contractual status

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Du Qiangqiang

The legal order based on the Constitution is a dynamic norm system, in which the meaning of the superior norms is closely connected with that of the inferior ones. It is the duty of the State to protect the freedom of home, and the criminal norm proscribing robbery with housebreaking is the implementation of the duty. The Supreme Court defines the term household in its judicial interpretation, which in turn demarcates the coverage of the freedom of the home. By analyzing the judicial interpretation of the Supreme Court and the judicial cases of inferior courts, this chapter finds that there are two different definitions of household. One of them defines it as a place used for personal life, while the other defines it as a place used for family life. It is the interpretation in conformity with the Constitution that the interpreter should choose to follow. By the means of constitutionally faithful interpretation, the value and ideas of the Constitution can be implanted into the judicial application of statutes, which in turn make them protect constitutional rights more effectively. Keywords: Freedom of home; robbery with housebreaking; constitutional rights

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Yu Haichun

According to Article 34 of Chinese Insurance Law, the insurance contracts conditioned by the death of the insured are void without the insured’s consent. In trial, the consequences of void insurance contract include: returning all premiums, the insurer’s main liability for damages and contracting fault liability of the insurer. The opinion in favor of returning all premiums does not consider the fulfilling of the insurer. The opinion under which the insurer assumes the main liability overlooks the fact that the applicant has no fault. The consequence that there is contracting fault liability of the insurer is acceptable, but the theory to explain the consequence is in doubt. As a void contract, the insurance contracts conditioned by the death of the insured cannot meet the standards of necessity and harmony in the principle of proportionality. the effectiveness of the contract should be suspended. its final effect shall be determined according to the specific situation. Keywords: Insurance contracts conditioned by death of insured without insured’s consent; void; principle of proportionality; suspended validity

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Legal methods, legal certainty and the rule of law

Selected Papers of The Jurist (法学家), Volume 5

Lei Lei

One of the main challenges to legal methods is that it will destroy legal certainty, which constitutes the core of the rule of law. Judicial decisions are, above all, “decisions according to law”, and legal certainty in this respect is concerned with the “range of normatively possible application”. Although this range of application in legal interpretation and in the case of continued legal making are both indeterminate, yet, on one side, the wording of legal rules, the discourse regulated by rational procedural rules, legal argumentation through stare decisis and dogmatics, adherence to special interpretative means of law and their rank, and compliance with demand from constitutional order all greatly reduce the discretionary space of judges; while on the other side, in the process of continuous legal making, legal certainty must be considered in balance, and it also plays a role in the burden of argumentation and the rule of collision, which in turn largely offsets the loss of certainty caused by overcoming the wording of legal texts. There exists the possibility for legal methods to satisfy the “maximum certainty in law”, and thus there is also the possibility to achieve the rule of law. The theory of legal methods cannot be separated from the value theory behind it in the process of transplantation from abroad. Keywords: legal methods; decision according to law; legal interpretation; legal certainty; rule of law

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Huang Zhongshun

Public interest litigation and private interest litigation should not be placed on completely opposite sides, nor should they simply be combined. Empowering the right of private interest litigation to subjects of public interest litigation or, in reverse, through substantive or procedural authority, can realize the combination of public interest litigation and private interest litigation, and based on this, a group litigation system with Chinese characteristics can be established. Keywords: Public interest litigation; private interest litigation; group litigation; right of litigation

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Feng Hui

The public events referring to the conflicts in the PX programs demonstrate that an obvious populism tendency exists in the public governance, which is harmful to deciding whether or not to enforce an industry program, to improving the ability of public participating by people and public governing by governments, and to increasing the whole social interest. The reasons include: governments’ path dependence on the closed decision-making model; the absence of professional and organized public participation; and the absence of the common sense of the rule of law against the background of the complex and structured social interest framework. We should reconstruct the common sense of the rule of law to meet the needs of the public governance practice, improve the legislatures of public decisions, strengthen the legal regulations on the making and rectifying of public plans and environmental impact assessment on public plans, especially improving public participation and information publicity of the existing laws, and introduce and strengthen the systems including risk assessment on social stability, emergency governance and dispute resolving, so as to deal with the populism tendency and behaviors appropriately, and to promote the public governance to be more scientific, democratic and meet the needs of the rule of law. Keywords: public governance; public participation; credibility; the rule of law in common sense

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Que Zhanwen

“The 2nd Round Table Conference on Asia-Pacific Food Safety Governance” was held in the Law School of Renmin University of China on 7 November 2014, focusing on “Genetically Modified Food and Safety Governance”. The Jurist selected three papers from this Conference, whose authors are from China and Japan, concerning the mandatory labeling of GM food and patent protection on GM seeds, etc. This paper is one of the series.

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Wang Fang

Under China’s system of right acquisition through trademark registration, rights of all kinds, which are protected by law once registration of the trademark is approved, will be conferred on the proprietor of a trademark. Despite the non-use of the registered trademark in an uninterrupted period of three years, the proprietor of the trademark still has the rights to oppose and declare invalid registration of a trademark which is subsequently applied for. The right to the exclusive use of the earlier trademark will be continually protected under the trademark law as long as the trademark is not cancelled. The idea of absolute protection for a registered trademark alienates the principle of registration and misleads the relevant judicial practices. The European Union and its main Member States establish the use requirements for exercise of rights on registered trademarks. These laws justify trademark protection and promote actual use of trademarks. In the improvement of China’s corresponding system, the use requirement for exercise of the procedural rights on registered trademarks should be added and that for exercise of the substantive rights should be enhanced. Keywords: Registered trademarks; exercise of rights; use requirements