Key items of the 5th legal paper in 2019
1. A study of China's economic rule of law in the past 70 years
Li Yougen, School of law, Nanjing University;
Abstract: from the common program of the Chinese people's Political Consultative Conference in 1949 to the abolition of the Provisional Regulations on administrative punishment for speculation by the State Council in 2008, China's system of banning speculation runs through all stages of the planned economy, planned commodity economy and market economy system, and becomes an important carrier for the state to govern economic activities with policies and laws. In the era of planned economy, the system of banning speculation ensures the implementation of economic plan, solves the contradiction of commodity shortage, and effectively deals with various new behaviors that are harmful to economic order. On the one hand, the rise and fall of the system is in line with the economic system of our country, from the planned economy to the planned commodity economy and finally to the socialist market economy, It reflects the continuous expansion of economic subject's freedom of action under different principles such as strict control of planning, dual track system of planning and market, and market's decisive role in resource allocation. On the other hand, it gradually abandons the social governance mode with policy as the core and the system implementation mode with mass movement as the main body, Furthermore, taking the legal text as the basic basis, the legal procedure as the implementation mode, and constantly pursuing good law and good governance, the transformation of the governance mode of economic activities from the system of banning speculation to the legal system of socialist market economy is not only related to the change of economic system, but also directly depends on the establishment of the basic strategy of the party and the state to comprehensively govern the country according to law. The establishment, development and abolishment of the ban system and its replacement by the crime of illegal operation not only reflect and record the transformation of China's economic governance from Policy Governance to legal governance, but also indicate the extinction of its planned system guarantee function and the strengthening of its economic order protection function. Under the background of comprehensively governing the country by law and deepening reform, China's market economy legislation should draw useful experience and lessons from it.
[Key words] speculation; illegal operation; bottom cover protection; classified regulation;
[Fund] National Social Science Foundation Project (16bfx122)
2. The regulation of tying behavior from the perspective of consumer protection law
Zhou Xiping; School of Humanities and social development; Nanjing Agricultural University;
[Abstract] according to Article 12 of the Anti Unfair Competition Law of the people's Republic of China promulgated in 1993, "tying against the will of the buyer" includes not only tying abusing the dominant market position, but also tying abusing the comparative advantage position and tying by deception, inducement and other improper means. After the newly revised Anti Unfair Competition Law of the people's Republic of China deleted the tying behaviors, these behaviors were adjusted by the anti monopoly law of the people's Republic of China and the consumer rights and interests protection law of the people's Republic of China respectively. The guiding case No. 79 of the Supreme People's court reflects that we do not have a clear understanding of the scope of the adjustment of tying behavior by the anti-monopoly law and the consumer protection law. The anti-monopoly law and the consumer protection law protect consumers' right of choice from different perspectives: the anti-monopoly law protects consumers' choice range, and the consumer protection law protects consumers' choice ability. The purpose of anti-monopoly law regulating tying is to prevent the transmission of monopoly power and protect market competition, while the purpose of consumer protection law regulating tying is to prevent operators from using information advantages to exert adverse influence on consumers' decision-making, so that they can accept tying arrangements against their true will. From the perspective of consumer protection law, the components of the improper tying should be analyzed from the aspects of subject, behavior and damage. Because most of the commercial behaviors will bring various mixed costs and benefits, we should consider the positive and negative benefits of the behaviors comprehensively. Only when the net effect is to damage the tie-in behavior of consumers can it be evaluated as "improper" behavior.
[Key words] tying; consumer choice; antitrust; comparative advantage;
[Fund] National Social Science Foundation Project (16bfx122); general subject of Humanities and social sciences of the Ministry of Education (19yja820062)
3. The change of the concept of the action of parent-child denial
Zhang Yanling; School of law, Nanjing University;
[Abstract] the action of parent-child denial belongs to the action of change in essence, because it is related to the existence of the relationship between the parents and children of the parties, and has a great impact on the personal and property rights and interests of the parties, especially the minor children. In law, the recognition of parent-child relationship, from the early pursuit of the truth of consanguinity, then turned to the best interests of children as the primary consideration, the best interests of children from the maintenance of marriage and family stability to the maintenance of real family relations. The change of system concept affects the determination of the subject scope of the action of denial of parents and children. Whether the male outside marriage can bring the action of denial of parents and children and claim the custody right against the children of married women, the legislation of various countries has experienced the change from the early absolute denial to the contemporary gradual permission. In China, the marriage law of the people's Republic of China has no relevant provisions. Article 2 of the interpretation of the Supreme People's Court on Several Issues concerning the application of the marriage law of the people's Republic of China (3) has the content of the action of parent-child denial, but it is difficult to respond to the actual needs of the judiciary due to its narrow scope of subjects and limited content of norms. China's "second review draft of marriage and family code" should draw on the legislative and practical experience of Germany, the United States and other countries reasonably, and put the principle of maximizing the interests of children and the protection of substantive family relations into practice in the parent-child denial litigation.
[Key words] parent-child presumption; consanguinity truth; children's best interests; substantial family relationship;
Key items of the 6th legal paper in 2019
1. On the legal attribute of free trade port system
Fan Jian; Xu Jinghang; School of law, Nanjing University;
[Abstract] to formulate a "Free Trade Port Law" with Chinese characteristics is an important measure for China to explore a new regional economic development model and integrate the commercial law system with Chinese characteristics into the international system. Since the reform and opening up, the domestic research on regional economic development mode has focused on the types of special economic zones and pilot free trade zones. The research on the system of free trade port is relatively poor, and there is no necessary consensus on the legal attributes of trade port and related basic issues. However, no matter in the historical evolution of the free trade port system or in the rule construction of the free trade port legal system of various countries, the core of the establishment of the legal framework and system lies in the clear definition of the basic legal issues such as the domestic legal attributes and the international legal positioning of the free trade port system. Therefore, combining with the current Chinese context to clarify the legal attributes involved in the free trade port system, and clarify the positioning of the free trade port system in the rules system of international law, will directly affect the subsequent legislative guidance and system construction of "Hainan Free Trade Port Law of China". The mature and systematic "Hainan Free Trade Port Law of China" will not only help Hainan free trade port system to better realize the connection between local laws and international rules, but also further enrich the theoretical system and institutional connotation of free trade port law with Chinese characteristics.
[Key words] free trade port; free trade pilot area; free trade port law; Hainan free trade port law;
[Fund] major bidding project of National Social Science Fund (18vhj002); National Social Science Fund Project (17bfx008); phased research results of South China Sea Collaborative Innovation Center
1. JOURNAL OF NANJING UNIVERSITY (PHILOSOPHY, humanities and Social Sciences); 2. Sponsor: Nanjing University; 3. Issue: bimonthly; 4. Place of publication: Nanjing City, Jiangsu Province