Protecting unregistered trademarks is not only necessary but feasible.Although Articles 2 and 6 of the Anti-Unfair Competition Law of the People's Republic of China currently fail to provide effective protection f...Protecting unregistered trademarks is not only necessary but feasible.Although Articles 2 and 6 of the Anti-Unfair Competition Law of the People's Republic of China currently fail to provide effective protection for unregistered trademarks due to systemic deficiencies,its legal subsumption can be enhanced by reforming the application principles of general provisions,scientifically reconstructing the notion of"unfair competition,"and adopting an open legislative approach featuring"defining unfair competition+key illustrative examples."Meanwhile,by proactively incorporating the concept that unregistered trademarks constitute the property rights of their owners into the trademark law and strengthening regulations against trademark squatting,the application of the antiunfair competition law can be enhanced to provide more effective damage remedies for unregistered trademark holders.This approach would increase the legal costs of squatting,thereby achieving a dual governance effect of both cracking down on and preventing such practice.By rationally delineating the logical boundaries of anti-unfair competition protection in conjunction with the registration-based acquisition system under the trademark law,this approach scientifically resolves conflicts between the protection of unregistered trademarks and registration validity rules while providing proportionate remedies and respect for the former.Consequently,it achieves an organic unity of necessity and rationality,comprehensiveness and restraint,as well as foresight and pertinence in the protection of unregistered trademarks.展开更多
Environmental rights are an important part of General Secretary Xi Jinping’s important discourses on respecting and protecting human rights.Soft law has played a significant role in the integrated development of the ...Environmental rights are an important part of General Secretary Xi Jinping’s important discourses on respecting and protecting human rights.Soft law has played a significant role in the integrated development of the theories of environmental rights and human rights.At the practical level,the soft law cooperation documents of the Belt and Road Initiative(BRI)have established general principles for the protection of environmental rights,policies for addressing climate change,standards for green investment and financing,and obligations for multinational corporations to protect the environment,making a contribution to the development and protection of environmental rights.In the future process of global environmental governance,it is necessary to start with the BRI’s soft law documents to further clarify the specific protection standards for environmental rights and promote the transformation of soft law into binding bilateral or multilateral agreements at the international level.In addition,it is essential to urge governments and enterprises to fulfill their due diligence obligations for environmental protection and strengthen information disclosure by emphasizing public interest responsibilities.Efforts should also be made to improve the environmental compliance systems of“going global”enterprises and enhance government supervision over corporate accountability for environmental rights.A corporate environmental protection accountability mechanism should be established,so as to actively promote global environmental governance in a more just and reasonable direction.展开更多
The Russia-Ukraine conflict remains unresolved,while the armed conflict between Israel and Palestine continues to escalate,causing significant civilian casualties.To better protect the victims of war in armed conflict...The Russia-Ukraine conflict remains unresolved,while the armed conflict between Israel and Palestine continues to escalate,causing significant civilian casualties.To better protect the victims of war in armed conflicts,clarifying the applicability of international human rights law(IHRL)and international humanitarian law(IHL)in such contexts has become an urgent issue.A comparative study on the application of IHRL and IHL needs to address three key questions step by step:First,whether IHRL is applicable during armed conflicts;second,if applicable,how IHRL complements and interacts with IHL;and third,what methods should be adopted to resolve conflicts when IHRL and IHL are applied concurrently.In this context,an analysis of the historical development of IHRL and IHL reveals that the two share a common philosophical foundation,and thus they can be applied concurrently during armed conflicts.From an empirical perspective,IHRL engages with IHL through two approaches:interpreting IHL provisions and directly applying IHRL to armed conflicts,thereby fostering interactive development between the two.In cases where normative conflicts arise between IHRL and IHL,such as in the rules on the use of force and internment procedures,the principles of systemic integration and lex specialis can reconcile these conflicts during the application process.展开更多
There is a wide recognition that encompassing an obligation of good faith in every commercial contract is one of the most important advances in contract law in the twentieth century^([1]).Despite the fact that this co...There is a wide recognition that encompassing an obligation of good faith in every commercial contract is one of the most important advances in contract law in the twentieth century^([1]).Despite the fact that this concept has been incorporated in the vast majority of national legal systems,its precise scope and application may vary from one to another,depending on the commercial traditions and customs of each legal system^([2]).The fact that good faith has been treated differently in different national legal systems has also been reflected on the international level through its inclusion in international legal instruments,one of which is the United Nations Convention on Contracts for the International Sale of Goods(hereafter CISG).In this article,the legislative history of the CISG will be closely examined with the purpose of finding out how a compromise was reached between the common law countries,which expressly objected to the imposition of a duty of good faith,and the civil law countries,which explicitly endorse its incorporation.A logical result flowing from this historical examination,as will be submitted,is that the conceptual ambiguity of good faith is the underlying reasoning behind their fundamentally different attitudes towards the incorporation of this notion in the international commercial context.展开更多
The purpose of this study lies in exploring the role of materiality in environmental information disclosures under the securities laws of the United States and China,discussing the differences in the regulatory mechan...The purpose of this study lies in exploring the role of materiality in environmental information disclosures under the securities laws of the United States and China,discussing the differences in the regulatory mechanism,limits of enforcement,and challenges of seeking global harmonization.The paper does a comparative legal analysis of statutory provisions,judicial interpretations,and regulatory frameworks of the U.S.Securities and Exchange Commission(SEC)and the China Securities Regulatory Commission(CSRC).Furthermore,it provides frameworks of global sustainability reporting such as the Task Force on Climate-related Financial Disclosures(TCFD)and the Global Reporting Initiative(GRI).The findings show that U.S.securities law uses a financial materiality standard with respect to what companies must disclose to investors.On the other hand,China’s regulatory approach has a double materiality in considering not only financial impacts but also wider environmental and social factors.Although there are these distinctions,both of these jurisdictions face issues of common obstruction such as ambiguities in materiality determination,inconsistent enforcement,and fear of greenwashing.This paper asserts that the U.S.and China regulatory frameworks need to converge more to promote greater corporate transparency and ESG disclosures.Regulators can even align disclosure practices with internationally recognized standards of work to add confidence for investors,fight off misleading sustainability claims and ensure accountable reporting in pertinent environments.The study concludes that the green challenges of global markets can only be tackled by regulating cooperative actions and using standardized reporting guidelines.展开更多
Under the background of increasingly complex global economic development and financial markets,the legal risks faced by enterprises are increasingly intensified.As an important legal norm to adjust financial activitie...Under the background of increasingly complex global economic development and financial markets,the legal risks faced by enterprises are increasingly intensified.As an important legal norm to adjust financial activities,financial law has put forward higher requirements for the operation and risk management of enterprises.Therefore,the article will start from the concept of internal legal risk prevention and control under the financial perspective,study and analyze the common internal legal risks and the causes of risks,and put forward the specific measures of prevention and control of internal legal risks.展开更多
This chapter examines the Chinese practice of delivery of the cargo without presentation of the bill of lading and the law and regulations governing that practice, and in the gaps left by laws and regulations, the app...This chapter examines the Chinese practice of delivery of the cargo without presentation of the bill of lading and the law and regulations governing that practice, and in the gaps left by laws and regulations, the approach established by the legal authorities and maritime courts. The necessities and causes for this risky action and possible suggestions will be considered, as will the approach of statute and judiciary. Potential and desirable reform will be discussed in light of the Rotterdam Rules. It is concluded that in order to facilitate cargo delivery, there would be a need to provide detailed legal guidance applicable to the many situations where the requisite documentation has failed to materialise.展开更多
Established within the framework of the World Trade Organization （WTO）, the Trade Policy Review Mechanism （TPRM） reviews periodically the trade policies of all WTO Members. The review includes many aspects of food...Established within the framework of the World Trade Organization （WTO）, the Trade Policy Review Mechanism （TPRM） reviews periodically the trade policies of all WTO Members. The review includes many aspects of food safety regulation. China＇s trade policy is reviewed every two years. This paper analyses in detail the reviews of China＇s trade policy in 2006, 2008, 2010, 2012 and 2014. It focuses in particular on food safety laws and types of standards, alignment of domestic standards with international standards, the role of different domestic institutions, transparency and notification of food safety measures under the WTO agreements on Sanitary and Phytosanitary Measures （SPS） and on Technical Barriers to Trade （TBTAgreement）, import and export, and geographical indications （GIs）. It concludes that the WTO TPRM can contribute, within its mandate, to reform of Chinese food safety laws and improvement of food safety in China. it notes that China has already undertaken substantial reforms of its system for regulating food safety. It recommends that China should continue to participate actively in the TPRM, follow its own path with regard to alignment and learn selectively from other WTO Members.展开更多
As Chinese practitioners and scholars ponder the scope of fiduciary obligations under the country’s company law,this paper offers a comparative perspective from German law.Although German corporate law has not reject...As Chinese practitioners and scholars ponder the scope of fiduciary obligations under the country’s company law,this paper offers a comparative perspective from German law.Although German corporate law has not rejected legal transplants,the common law trust has never been accepted as an organizational device for administering third-party funds or doing business.Nonetheless,the German judiciary has developed a sophisticated concept of fiduciary obligations where the statutes remain silent.This paper explores the application of fiduciary obligations to limited partnerships,limited liability companies,and stock corporations.It takes a membership perspective to ascertain the legal relationships between a corporation and its shareholder-members and among fellow-shareholders,as business entities evolve from personalistic to capitalistic settings.Fiduciary obligations also inform the relationship between the corporation and its directors and corporate officers.Although German law does not classify directors and corporate officers as the shareholders’direct trustees,shareholders stand nonetheless to benefit from the way directors and corporate offices discharge their duties towards the respective corporate entities.Moreover,criminal law rules on embezzlement operate to protect the corporation and the monies it administers from overly risky business projects.展开更多
Both civil&commercial law and economic law are the main legal basis for supervising market behavior and regulating market order.They are indispensable laws in the national economic development and construction.By ...Both civil&commercial law and economic law are the main legal basis for supervising market behavior and regulating market order.They are indispensable laws in the national economic development and construction.By analyzing the relationship between civil&commercial law and economic law in the context of market economy,this article explores the similarities and differences between,and through the perfection and application of the two,China’s social and economic stability and a lasting progress can be better realized under the mechanism of market economy.展开更多
Chinese traditional family-based society is the legal basis for political, patriarchal hierarchy and national politics Consistent hierarchy, as represented by the family law civil law is to adjust the traditional soci...Chinese traditional family-based society is the legal basis for political, patriarchal hierarchy and national politics Consistent hierarchy, as represented by the family law civil law is to adjust the traditional social relations, maintaining the main legal norms of social order, Family law as one of the most important traditional Chinese society, the legal system, and the state law regulating social order constitute the dual legal structure. And its fundamental purpose is to maintain social harmony and stability of the feudal rule of order.展开更多
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 ci...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.展开更多
文摘Protecting unregistered trademarks is not only necessary but feasible.Although Articles 2 and 6 of the Anti-Unfair Competition Law of the People's Republic of China currently fail to provide effective protection for unregistered trademarks due to systemic deficiencies,its legal subsumption can be enhanced by reforming the application principles of general provisions,scientifically reconstructing the notion of"unfair competition,"and adopting an open legislative approach featuring"defining unfair competition+key illustrative examples."Meanwhile,by proactively incorporating the concept that unregistered trademarks constitute the property rights of their owners into the trademark law and strengthening regulations against trademark squatting,the application of the antiunfair competition law can be enhanced to provide more effective damage remedies for unregistered trademark holders.This approach would increase the legal costs of squatting,thereby achieving a dual governance effect of both cracking down on and preventing such practice.By rationally delineating the logical boundaries of anti-unfair competition protection in conjunction with the registration-based acquisition system under the trademark law,this approach scientifically resolves conflicts between the protection of unregistered trademarks and registration validity rules while providing proportionate remedies and respect for the former.Consequently,it achieves an organic unity of necessity and rationality,comprehensiveness and restraint,as well as foresight and pertinence in the protection of unregistered trademarks.
文摘Environmental rights are an important part of General Secretary Xi Jinping’s important discourses on respecting and protecting human rights.Soft law has played a significant role in the integrated development of the theories of environmental rights and human rights.At the practical level,the soft law cooperation documents of the Belt and Road Initiative(BRI)have established general principles for the protection of environmental rights,policies for addressing climate change,standards for green investment and financing,and obligations for multinational corporations to protect the environment,making a contribution to the development and protection of environmental rights.In the future process of global environmental governance,it is necessary to start with the BRI’s soft law documents to further clarify the specific protection standards for environmental rights and promote the transformation of soft law into binding bilateral or multilateral agreements at the international level.In addition,it is essential to urge governments and enterprises to fulfill their due diligence obligations for environmental protection and strengthen information disclosure by emphasizing public interest responsibilities.Efforts should also be made to improve the environmental compliance systems of“going global”enterprises and enhance government supervision over corporate accountability for environmental rights.A corporate environmental protection accountability mechanism should be established,so as to actively promote global environmental governance in a more just and reasonable direction.
文摘The Russia-Ukraine conflict remains unresolved,while the armed conflict between Israel and Palestine continues to escalate,causing significant civilian casualties.To better protect the victims of war in armed conflicts,clarifying the applicability of international human rights law(IHRL)and international humanitarian law(IHL)in such contexts has become an urgent issue.A comparative study on the application of IHRL and IHL needs to address three key questions step by step:First,whether IHRL is applicable during armed conflicts;second,if applicable,how IHRL complements and interacts with IHL;and third,what methods should be adopted to resolve conflicts when IHRL and IHL are applied concurrently.In this context,an analysis of the historical development of IHRL and IHL reveals that the two share a common philosophical foundation,and thus they can be applied concurrently during armed conflicts.From an empirical perspective,IHRL engages with IHL through two approaches:interpreting IHL provisions and directly applying IHRL to armed conflicts,thereby fostering interactive development between the two.In cases where normative conflicts arise between IHRL and IHL,such as in the rules on the use of force and internment procedures,the principles of systemic integration and lex specialis can reconcile these conflicts during the application process.
文摘There is a wide recognition that encompassing an obligation of good faith in every commercial contract is one of the most important advances in contract law in the twentieth century^([1]).Despite the fact that this concept has been incorporated in the vast majority of national legal systems,its precise scope and application may vary from one to another,depending on the commercial traditions and customs of each legal system^([2]).The fact that good faith has been treated differently in different national legal systems has also been reflected on the international level through its inclusion in international legal instruments,one of which is the United Nations Convention on Contracts for the International Sale of Goods(hereafter CISG).In this article,the legislative history of the CISG will be closely examined with the purpose of finding out how a compromise was reached between the common law countries,which expressly objected to the imposition of a duty of good faith,and the civil law countries,which explicitly endorse its incorporation.A logical result flowing from this historical examination,as will be submitted,is that the conceptual ambiguity of good faith is the underlying reasoning behind their fundamentally different attitudes towards the incorporation of this notion in the international commercial context.
文摘The purpose of this study lies in exploring the role of materiality in environmental information disclosures under the securities laws of the United States and China,discussing the differences in the regulatory mechanism,limits of enforcement,and challenges of seeking global harmonization.The paper does a comparative legal analysis of statutory provisions,judicial interpretations,and regulatory frameworks of the U.S.Securities and Exchange Commission(SEC)and the China Securities Regulatory Commission(CSRC).Furthermore,it provides frameworks of global sustainability reporting such as the Task Force on Climate-related Financial Disclosures(TCFD)and the Global Reporting Initiative(GRI).The findings show that U.S.securities law uses a financial materiality standard with respect to what companies must disclose to investors.On the other hand,China’s regulatory approach has a double materiality in considering not only financial impacts but also wider environmental and social factors.Although there are these distinctions,both of these jurisdictions face issues of common obstruction such as ambiguities in materiality determination,inconsistent enforcement,and fear of greenwashing.This paper asserts that the U.S.and China regulatory frameworks need to converge more to promote greater corporate transparency and ESG disclosures.Regulators can even align disclosure practices with internationally recognized standards of work to add confidence for investors,fight off misleading sustainability claims and ensure accountable reporting in pertinent environments.The study concludes that the green challenges of global markets can only be tackled by regulating cooperative actions and using standardized reporting guidelines.
文摘Under the background of increasingly complex global economic development and financial markets,the legal risks faced by enterprises are increasingly intensified.As an important legal norm to adjust financial activities,financial law has put forward higher requirements for the operation and risk management of enterprises.Therefore,the article will start from the concept of internal legal risk prevention and control under the financial perspective,study and analyze the common internal legal risks and the causes of risks,and put forward the specific measures of prevention and control of internal legal risks.
文摘This chapter examines the Chinese practice of delivery of the cargo without presentation of the bill of lading and the law and regulations governing that practice, and in the gaps left by laws and regulations, the approach established by the legal authorities and maritime courts. The necessities and causes for this risky action and possible suggestions will be considered, as will the approach of statute and judiciary. Potential and desirable reform will be discussed in light of the Rotterdam Rules. It is concluded that in order to facilitate cargo delivery, there would be a need to provide detailed legal guidance applicable to the many situations where the requisite documentation has failed to materialise.
基金Peking University Shenzhen Graduate School, ChinaPeking University School of Transnational Law, China
文摘Established within the framework of the World Trade Organization （WTO）, the Trade Policy Review Mechanism （TPRM） reviews periodically the trade policies of all WTO Members. The review includes many aspects of food safety regulation. China＇s trade policy is reviewed every two years. This paper analyses in detail the reviews of China＇s trade policy in 2006, 2008, 2010, 2012 and 2014. It focuses in particular on food safety laws and types of standards, alignment of domestic standards with international standards, the role of different domestic institutions, transparency and notification of food safety measures under the WTO agreements on Sanitary and Phytosanitary Measures （SPS） and on Technical Barriers to Trade （TBTAgreement）, import and export, and geographical indications （GIs）. It concludes that the WTO TPRM can contribute, within its mandate, to reform of Chinese food safety laws and improvement of food safety in China. it notes that China has already undertaken substantial reforms of its system for regulating food safety. It recommends that China should continue to participate actively in the TPRM, follow its own path with regard to alignment and learn selectively from other WTO Members.
文摘As Chinese practitioners and scholars ponder the scope of fiduciary obligations under the country’s company law,this paper offers a comparative perspective from German law.Although German corporate law has not rejected legal transplants,the common law trust has never been accepted as an organizational device for administering third-party funds or doing business.Nonetheless,the German judiciary has developed a sophisticated concept of fiduciary obligations where the statutes remain silent.This paper explores the application of fiduciary obligations to limited partnerships,limited liability companies,and stock corporations.It takes a membership perspective to ascertain the legal relationships between a corporation and its shareholder-members and among fellow-shareholders,as business entities evolve from personalistic to capitalistic settings.Fiduciary obligations also inform the relationship between the corporation and its directors and corporate officers.Although German law does not classify directors and corporate officers as the shareholders’direct trustees,shareholders stand nonetheless to benefit from the way directors and corporate offices discharge their duties towards the respective corporate entities.Moreover,criminal law rules on embezzlement operate to protect the corporation and the monies it administers from overly risky business projects.
文摘Both civil&commercial law and economic law are the main legal basis for supervising market behavior and regulating market order.They are indispensable laws in the national economic development and construction.By analyzing the relationship between civil&commercial law and economic law in the context of market economy,this article explores the similarities and differences between,and through the perfection and application of the two,China’s social and economic stability and a lasting progress can be better realized under the mechanism of market economy.
文摘Chinese traditional family-based society is the legal basis for political, patriarchal hierarchy and national politics Consistent hierarchy, as represented by the family law civil law is to adjust the traditional social relations, maintaining the main legal norms of social order, Family law as one of the most important traditional Chinese society, the legal system, and the state law regulating social order constitute the dual legal structure. And its fundamental purpose is to maintain social harmony and stability of the feudal rule of order.
文摘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.
