Pub Date : 2022-01-02DOI: 10.1080/10192557.2022.2045707
Shuai Guo
ABSTRACT This article examines the new Chinese Mainland–Hong Kong cross-border insolvency cooperation arrangement. The new Record of Meeting reached in May 2021 between the Supreme People’s Court of the People’s Republic of China and the Government of the Hong Kong Special Administrative Region marks a significant step towards mutual recognition in cross-border insolvency cases, laying down the bedrock for future cooperation. Yet, the new arrangement is still a rough draft, without considering detailed issues. This article provides a comprehensive evaluation of the feasibility of the new arrangement, taking into account previous international insolvency cases in both the Mainland and Hong Kong. In particular, this article proposes that the current arrangement needs further revision and enhanced cooperation, following the model of the European Insolvency Regulation.
{"title":"Cross-border insolvency between Chinese Mainland and Hong Kong: the past, the present, and the future","authors":"Shuai Guo","doi":"10.1080/10192557.2022.2045707","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045707","url":null,"abstract":"ABSTRACT This article examines the new Chinese Mainland–Hong Kong cross-border insolvency cooperation arrangement. The new Record of Meeting reached in May 2021 between the Supreme People’s Court of the People’s Republic of China and the Government of the Hong Kong Special Administrative Region marks a significant step towards mutual recognition in cross-border insolvency cases, laying down the bedrock for future cooperation. Yet, the new arrangement is still a rough draft, without considering detailed issues. This article provides a comprehensive evaluation of the feasibility of the new arrangement, taking into account previous international insolvency cases in both the Mainland and Hong Kong. In particular, this article proposes that the current arrangement needs further revision and enhanced cooperation, following the model of the European Insolvency Regulation.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"70 - 92"},"PeriodicalIF":0.5,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49626511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/10192557.2022.2045715
S. C. Tan Cheng-Han
laws and constitutional rights, can be seen to pose challenges in other developing democracies as well. On the other hand, while it concludes on an open-ended note, the book fails to state clearly whether the Indian legal system’s blend of Western systems and Eastern non-state traditions is a success or a failure, and only briefly touches upon the future of the legal system. Finally, with regards to its writing style, while the subject matter is generally intriguing, it drags at some points and could have been livened up with more case examples. Nonetheless, it is a recommended read for those who want to understand the Indian legal system, and especially relatable for those who come from other Asian or developing democracies.
{"title":"Lawyer, scholar, teacher and activist: a Liber Amicorum in honour of Derek Roebuck","authors":"S. C. Tan Cheng-Han","doi":"10.1080/10192557.2022.2045715","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045715","url":null,"abstract":"laws and constitutional rights, can be seen to pose challenges in other developing democracies as well. On the other hand, while it concludes on an open-ended note, the book fails to state clearly whether the Indian legal system’s blend of Western systems and Eastern non-state traditions is a success or a failure, and only briefly touches upon the future of the legal system. Finally, with regards to its writing style, while the subject matter is generally intriguing, it drags at some points and could have been livened up with more case examples. Nonetheless, it is a recommended read for those who want to understand the Indian legal system, and especially relatable for those who come from other Asian or developing democracies.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"196 - 198"},"PeriodicalIF":0.5,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48979012","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-20DOI: 10.1080/10192557.2022.2045706
Anton N Didenko, Ross P. Buckley
ABSTRACT Despite years of effort, financial inclusion persists as a major challenge in the Pacific Island Countries (PICs), with many in the region still lacking access to financial services. This article argues that central bank digital currencies (CBDCs) offer a potentially highly efficacious solution to (i) the financial inclusion challenges of the PICs and (ii) the problem of high remittance costs that currently serve as a tax on the earnings of Pacific Islanders abroad. We identify the key challenges that may inhibit the rollout of CBDCs in PICs but argue that in time such a rollout is nonetheless highly likely – since the key drivers of CBDC development in the region are likely to be external to PICs themselves. While their potential is very significant, we conclude that now is not the time to issue a CBDC in the region, but it is the time to begin laying the groundwork for this innovation by developing the expertise required within the region’s central banks.
{"title":"Central bank digital currencies as a potential response to some particularly Pacific problems","authors":"Anton N Didenko, Ross P. Buckley","doi":"10.1080/10192557.2022.2045706","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045706","url":null,"abstract":"ABSTRACT Despite years of effort, financial inclusion persists as a major challenge in the Pacific Island Countries (PICs), with many in the region still lacking access to financial services. This article argues that central bank digital currencies (CBDCs) offer a potentially highly efficacious solution to (i) the financial inclusion challenges of the PICs and (ii) the problem of high remittance costs that currently serve as a tax on the earnings of Pacific Islanders abroad. We identify the key challenges that may inhibit the rollout of CBDCs in PICs but argue that in time such a rollout is nonetheless highly likely – since the key drivers of CBDC development in the region are likely to be external to PICs themselves. While their potential is very significant, we conclude that now is not the time to issue a CBDC in the region, but it is the time to begin laying the groundwork for this innovation by developing the expertise required within the region’s central banks.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"44 - 69"},"PeriodicalIF":0.5,"publicationDate":"2021-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46967298","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10192557.2022.2033086
Sébastien De Rey, L. Chen
ABSTRACT To compensate for the loss caused by the non-performance, monetary damages are considered almost automatically. This article provides a broader perspective. Indeed, albeit monetary damages are and will always remain the most frequently awarded form of compensation, this comparative analysis reveals that non-monetary relief has a full role to play within a modern law of contract. Non-monetary relief is not to be confused with specific performance. Unlike specific performance, an order for non-monetary relief does not provide actual or full performance. Non-monetary relief provides rather, by way of compensation for the loss caused by the non-performance, an act different as agreed upon, aimed at placing the aggrieved party in as good a position as if the contract would have been fully performed. Under Chinese contract law, this alternative form of compensation is available yet remains underexplored. This article provides the legal framework and highlights the under-utilization of this remedy, identifying examples for which non-monetary relief is an appropriate alternative to monetary damages for breach of contract. It argues that in the twenty-first century, when sustainability is increasingly pursued as a matter of a guiding principle, the law of contract needs to be re-gigged up to reflect this trend. The availability of non-monetary relief can meet not only private interests, but can comply with public interests as well.
{"title":"Non-monetary relief for breach of contract: a European perspective on Chinese contract law","authors":"Sébastien De Rey, L. Chen","doi":"10.1080/10192557.2022.2033086","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033086","url":null,"abstract":"ABSTRACT To compensate for the loss caused by the non-performance, monetary damages are considered almost automatically. This article provides a broader perspective. Indeed, albeit monetary damages are and will always remain the most frequently awarded form of compensation, this comparative analysis reveals that non-monetary relief has a full role to play within a modern law of contract. Non-monetary relief is not to be confused with specific performance. Unlike specific performance, an order for non-monetary relief does not provide actual or full performance. Non-monetary relief provides rather, by way of compensation for the loss caused by the non-performance, an act different as agreed upon, aimed at placing the aggrieved party in as good a position as if the contract would have been fully performed. Under Chinese contract law, this alternative form of compensation is available yet remains underexplored. This article provides the legal framework and highlights the under-utilization of this remedy, identifying examples for which non-monetary relief is an appropriate alternative to monetary damages for breach of contract. It argues that in the twenty-first century, when sustainability is increasingly pursued as a matter of a guiding principle, the law of contract needs to be re-gigged up to reflect this trend. The availability of non-monetary relief can meet not only private interests, but can comply with public interests as well.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"325 - 345"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42666118","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10192557.2022.2033092
L. Sjoberg
active in inviting foreign mediators to participate in BRI-related mediation through the invited mediation mechanism. In addition, court-based ODR is one of the most noticeable developments in PDR. It has advanced tremendously since China launched its ‘Smart Court Construction’ campaign in late 2016. Since then, China has established three internet courts, in Hangzhou, Beijing and Guangzhou, to deal with internet-related disputes. Furthermore, enormous resources have been invested in exploring how ODR technologies could be used in courts, such as online case-filing, online hearings and online evidence submission. However, court-based ODR is more than an online courthouse. It has drastically reshaped the way justice is administered and perceived in China. It not only increases the transparency and accessibility of justice, but also facilitates predictive decision-making and dispute prevention through the increasing use of digital software and big-data analysis. Since dispute prevention is also one of the core objectives of PDR, the authors’ views and insights in these regards would have benefitted readers tremendously.
{"title":"Gender, alterity, and human rights: freedom in a fishbowl","authors":"L. Sjoberg","doi":"10.1080/10192557.2022.2033092","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033092","url":null,"abstract":"active in inviting foreign mediators to participate in BRI-related mediation through the invited mediation mechanism. In addition, court-based ODR is one of the most noticeable developments in PDR. It has advanced tremendously since China launched its ‘Smart Court Construction’ campaign in late 2016. Since then, China has established three internet courts, in Hangzhou, Beijing and Guangzhou, to deal with internet-related disputes. Furthermore, enormous resources have been invested in exploring how ODR technologies could be used in courts, such as online case-filing, online hearings and online evidence submission. However, court-based ODR is more than an online courthouse. It has drastically reshaped the way justice is administered and perceived in China. It not only increases the transparency and accessibility of justice, but also facilitates predictive decision-making and dispute prevention through the increasing use of digital software and big-data analysis. Since dispute prevention is also one of the core objectives of PDR, the authors’ views and insights in these regards would have benefitted readers tremendously.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"429 - 433"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46149799","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10192557.2022.2033091
Bo Songyin
Since the imperial era, the Chinese population has developed a culture of resolving disputes amicably. In contemporary China, dispute negotiations, mediations and arbitrations are deemed less confrontational and more efficient – and therefore preferable – as alternative dispute resolution (ADR) approaches. In the last decade, China has been experimenting with new forms of dispute resolution that combine ADR with other mechanisms, with a view to developing a ‘Mechanism for Pluralist Dispute Resolution’ (Duoyuanhua Jiufen Jiejue Jizhi, 多元化纠纷解决机制) (PDR). As a result of multiple initiatives, the idea of PDR is now widely used to encompass a broad range of dispute resolution activities. Based on a narrow interpretation, PDR refers to an integrated system where private and administrative actors and the state work together in resolving civil and commercial disputes. In this context, the goal is to provide more effective channels for disputants and optimize the use of limited judicial resources. In return, the state renders strong support for private dispute resolution through means such as codifying judicial confirmation of mediation agreements, offering support for arbitration and the enforcement of arbitral awards and establishing centres for litigation services or the interconnection of litigation and mediation within courts. In comparison, PDR in its broader sense acquires a political and social significance. It refers to the idea that, from the perspective of the authorities, all dispute resolution approaches are social control and management instruments that contribute to the prevention and resolution of social conflicts and disputes. In this context, PDR also involves government authorities (such
{"title":"Dispute resolution in the People’s Republic of China: the evolving institutions and mechanisms","authors":"Bo Songyin","doi":"10.1080/10192557.2022.2033091","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033091","url":null,"abstract":"Since the imperial era, the Chinese population has developed a culture of resolving disputes amicably. In contemporary China, dispute negotiations, mediations and arbitrations are deemed less confrontational and more efficient – and therefore preferable – as alternative dispute resolution (ADR) approaches. In the last decade, China has been experimenting with new forms of dispute resolution that combine ADR with other mechanisms, with a view to developing a ‘Mechanism for Pluralist Dispute Resolution’ (Duoyuanhua Jiufen Jiejue Jizhi, 多元化纠纷解决机制) (PDR). As a result of multiple initiatives, the idea of PDR is now widely used to encompass a broad range of dispute resolution activities. Based on a narrow interpretation, PDR refers to an integrated system where private and administrative actors and the state work together in resolving civil and commercial disputes. In this context, the goal is to provide more effective channels for disputants and optimize the use of limited judicial resources. In return, the state renders strong support for private dispute resolution through means such as codifying judicial confirmation of mediation agreements, offering support for arbitration and the enforcement of arbitral awards and establishing centres for litigation services or the interconnection of litigation and mediation within courts. In comparison, PDR in its broader sense acquires a political and social significance. It refers to the idea that, from the perspective of the authorities, all dispute resolution approaches are social control and management instruments that contribute to the prevention and resolution of social conflicts and disputes. In this context, PDR also involves government authorities (such","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"425 - 429"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49610047","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10192557.2022.2033084
Lei Chen
ABSTRACT This article aims to set out the historical and legislative backgrounds and introduce the synopsis of the articles included in this special issue addressing the Chinese Civil Code (‘CCC’). It does so by first presenting the reasons for and against the introduction of the CCC. Subsequently, some notable rule changes have been highlighted to facilitate a clear understanding of the CCC. It further provides some evaluations on why the CCC was framed as such. Finally, it justifies the selection of the articles for three reasons. The selected articles represent a broad coverage of relevant backbone topics in the CCC. In addition, all the specific topics are chosen meticulously to explore some gaps in the current literature. It is hoped that the authors, through their critical analysis, may provide an insider’s perspective into the discussion, thus enriching the literature on the CCC from a comparative perspective.
{"title":"Continuity and change: some reflections on the Chinese Civil Code","authors":"Lei Chen","doi":"10.1080/10192557.2022.2033084","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033084","url":null,"abstract":"ABSTRACT This article aims to set out the historical and legislative backgrounds and introduce the synopsis of the articles included in this special issue addressing the Chinese Civil Code (‘CCC’). It does so by first presenting the reasons for and against the introduction of the CCC. Subsequently, some notable rule changes have been highlighted to facilitate a clear understanding of the CCC. It further provides some evaluations on why the CCC was framed as such. Finally, it justifies the selection of the articles for three reasons. The selected articles represent a broad coverage of relevant backbone topics in the CCC. In addition, all the specific topics are chosen meticulously to explore some gaps in the current literature. It is hoped that the authors, through their critical analysis, may provide an insider’s perspective into the discussion, thus enriching the literature on the CCC from a comparative perspective.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"287 - 305"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46191304","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10192557.2022.2033081
Zhicheng Wu, W. Swadling
ABSTRACT Unjustified enrichment in Chinese law has been substantially expanded in recent years by the Chinese Civil Code, as well as by other primary and secondary sources, making comparative studies more viable. This article asks a number of questions about the Chinese law through the lens of a common lawyer. One is the use of the heading ‘quasi-contract’ to describe the chapter of the Code in which the unjustified enrichment provisions are contained. Another concerns the distinction between ‘restitution’ and ‘unjustified enrichment’. A third asks whether the Code should have enshrined a rule prohibiting restitution of the use value, while a fourth concerns the issue of indirect enrichments. Yet another question concerns the inclusion of cases of qualified intent, while the last focuses on defences.
{"title":"Unjustified enrichment in the Chinese Civil Code: questions from the common law","authors":"Zhicheng Wu, W. Swadling","doi":"10.1080/10192557.2022.2033081","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033081","url":null,"abstract":"ABSTRACT Unjustified enrichment in Chinese law has been substantially expanded in recent years by the Chinese Civil Code, as well as by other primary and secondary sources, making comparative studies more viable. This article asks a number of questions about the Chinese law through the lens of a common lawyer. One is the use of the heading ‘quasi-contract’ to describe the chapter of the Code in which the unjustified enrichment provisions are contained. Another concerns the distinction between ‘restitution’ and ‘unjustified enrichment’. A third asks whether the Code should have enshrined a rule prohibiting restitution of the use value, while a fourth concerns the issue of indirect enrichments. Yet another question concerns the inclusion of cases of qualified intent, while the last focuses on defences.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"402 - 421"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48917276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10192557.2022.2033082
Jie Wang
ABSTRACT Notice-and-takedown procedures that play a vital role in remedying overwhelming IP infringement on e-commerce platforms rely mainly on self-regulation in a global marketplace. The new Chinese E-commerce Law demonstrates the need for a legislative intervention to overcome self-regulated procedures’ defect in preventing misuse. Further, laws on NTD procedures tend to be general and leave room for courts to interpret, such as proper elements of a competent notice, what constitutes prima facie evidence, what are the necessary measures, how to define ‘in a timely manner’, how to resolve repeated infringement. Finally, even with government regulation of NTD procedures, self-regulation still plays an essential role in detailing statutory provisions because its flexibility echoes the rapid transformation of Internet. Collective self-regulation is needed to overcome individual self-regulation’s weaknesses and, to provide a democratic and transparent groundwork on which individual self-regulation formulates specific and exercisable norms, and courts can passively review fairness of self-regulation rules when it is necessary in adjudicating cases.
{"title":"How to utilize notice-and-takedown procedures in IP enforcement on e-commerce platforms – a lesson from China","authors":"Jie Wang","doi":"10.1080/10192557.2022.2033082","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033082","url":null,"abstract":"ABSTRACT Notice-and-takedown procedures that play a vital role in remedying overwhelming IP infringement on e-commerce platforms rely mainly on self-regulation in a global marketplace. The new Chinese E-commerce Law demonstrates the need for a legislative intervention to overcome self-regulated procedures’ defect in preventing misuse. Further, laws on NTD procedures tend to be general and leave room for courts to interpret, such as proper elements of a competent notice, what constitutes prima facie evidence, what are the necessary measures, how to define ‘in a timely manner’, how to resolve repeated infringement. Finally, even with government regulation of NTD procedures, self-regulation still plays an essential role in detailing statutory provisions because its flexibility echoes the rapid transformation of Internet. Collective self-regulation is needed to overcome individual self-regulation’s weaknesses and, to provide a democratic and transparent groundwork on which individual self-regulation formulates specific and exercisable norms, and courts can passively review fairness of self-regulation rules when it is necessary in adjudicating cases.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"243 - 263"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43870997","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10192557.2022.2033088
J. Ge, Li Chen
ABSTRACT Prior to the promulgation of the Chinese Civil Code, when a person’s online persona or virtual character is defamed, the law of defamation in China only provides damages or compensation to the human controller if and only if the controller’s ‘social estimation’ suffered harm in the real world. Absent such harm, no remedy based on personality rights law or tort law is available. This was the position taken by the Supreme People’s Court in the gazetted case of Jing Zhang v. Lingfeng Yu. This position has since been embraced by Chinese legal scholars and subsequent judicial practice. This article takes a position contrary to this mainstream view: the controller’s right to reputation should be protected even if there is no diminution of his/her real life ‘social estimation’, such that only the online persona is insulted or defamed. This article analyses the rationale for the protection of online personas as a standalone right and argues that such protection can be achieved under the current Chinese legal framework and principles through the sound interpretation and application of Article 1024(2) of the recently promulgated Chinese Civil Code.
{"title":"The Chinese Civil Code’s impact on the protection of Virtual Reputation in China","authors":"J. Ge, Li Chen","doi":"10.1080/10192557.2022.2033088","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033088","url":null,"abstract":"ABSTRACT Prior to the promulgation of the Chinese Civil Code, when a person’s online persona or virtual character is defamed, the law of defamation in China only provides damages or compensation to the human controller if and only if the controller’s ‘social estimation’ suffered harm in the real world. Absent such harm, no remedy based on personality rights law or tort law is available. This was the position taken by the Supreme People’s Court in the gazetted case of Jing Zhang v. Lingfeng Yu. This position has since been embraced by Chinese legal scholars and subsequent judicial practice. This article takes a position contrary to this mainstream view: the controller’s right to reputation should be protected even if there is no diminution of his/her real life ‘social estimation’, such that only the online persona is insulted or defamed. This article analyses the rationale for the protection of online personas as a standalone right and argues that such protection can be achieved under the current Chinese legal framework and principles through the sound interpretation and application of Article 1024(2) of the recently promulgated Chinese Civil Code.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"366 - 383"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41391675","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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