Home / Issues / Volume 7, Number 2
Issue masthead
More is Less: A Critical Review of Works Made For Hire Rules in China
The creation of works in modern society is becoming more and more impersonal, and the majority of works are created as works made for hire. Reasonable property rules are required to minimize transaction cost and to facilitate smooth dissemination of such works. However, neither the current nor the envisaged amended version of Chinese Copyright Law provides works made for hire rules, which are fair and predictable enough. Rules with continental European origin and those with Anglo-American characteristics collide with each other, causing confusion in court practice and in research. Awareness of the imperfectness is important for both scholars and practitioners interested in the protection of intellectual properties in China. To bring the status quo into a fairer and more predictable set of rules, colliding rules should be harmonized. In pursuing this goal, the freedom of contract, as strengthened by the envisaged revision of copyright law, is not sufficient. It is also recommendable to make employment a pre-condition of Legal Entities’ Works. [read more...] 
Article | 7 Tsinghua China L. Rev. 171 (2015)
Enforcing Takings Clauses in China
In China, the security of property rights is questioned because first, both individuals are not considered landowners under the Chinese legal system and second, both individuals and collective organizations in rural areas cannot resist expropriation requests from the State. Three main approaches have been proposed to address the aforementioned problems. The most radical one is to privatize land ownership both in urban areas and rural areas. The second one tries to limit expropration by a narrow interpretation of “public interests” in the law. And the third one proposes the governemnt to go through important bargaining and assessment procedures and to make the results public with due care. This article aims to examine the effectiveness of the third approach through a systematic analysis of over 200 court cases that involve Articles 46-49 of the Land Management Law amended in 2004 to summarize the judicial understanding of the “taking clauses” in China. Exploring the reasons of certain judicial intrepretions, the article discusses the policy implications of the judicial enforcement of the takings clauses in China. [read more...] 
Article | 7 Tsinghua China L. Rev. 191 (2015)
Siblings of the Dragon: China’s Territories and Constitutional Law
By TU Kai

Ideologically, statist socialism remains the People’s Republic of China (PRC)’s orthodoxy, but Hong Kong retains a “free market” of speech and belief in accordance with the Basic Law of the Hong Kong Special Administrative Region (HKSAR). Societally, in China’s peripheries, ethnic minorities, as territorial majority groups, are entitled to preserve their languages and cultures in autonomous (administrative) regions. Thus constitutionally, the Chinese state is a hybrid of various constituent units – special administrative regions, ethnic autonomous regions, and others of diverse legal statues – the theoretically “unitary” nature is under question. According to Chinese legend, a dragon can have nine siblings and each of them are different – one who loves music sits on a lute; another who has good eyes resides up on the roof. This article argues that the asymmetry of Chinese territories, like the differences among the dragon’s siblings, has set the Chinese territories apart from ordinary administrative divisions, and created a unique regime of jurisprudential significance.

As a matter of scope, this article will explore only three phenomena. The first section addresses the heterarchy of authorities in the Chinese context. The PRC central government and the territories are neither of equal authority, nor do they form a heterarchy of authorities with the PRC central government at the top. Ordinary administrative divisions are subordinate to a central government, but the territories may vary in institutions, cultures, and political attachments. The second section goes to the relationship between the authorities and citizens/nationals. The PRC, as a theoretically unitary state, still does not offer homogenous citizenship to all Chinese nationals. In fact, Chinese nationals registering residentship in different jurisdictions are entitled to various rights and legal treatments; in many circumstances, Chinese nationals are neither citizens nor aliens in a Chinese territory. This, nevertheless, has much outstripped what ordinary administrative divisions are supposed to do. In the third section, the article addresses the territories’ relationship with the international community. The structure of this article may be understood as a tripartite covering the relationship between the territorial authorities and the PRC central government with territorial authorities, individuals and foreign states respectively. Hypothetically, a unitary state’s relationship, legal or political, with its citizens/nationals should be simple and direct. As modernist constitutionalism presumes, the constituent power shall vest in a singular “people” as the demos of a liberal democracy and the constituted power ought to be primarily provided by a single Constitution. However, this article argues that Chinese cases obviously depart from this presumption.
[read more...] 

Article | 7 Tsinghua China L. Rev. 221 (2015)
Battling with “Lemon Problem”: Investors Protection in the Chinese ABS Market
By GAO Simin
A breakthrough reform is undergoing in the Chinese capital market: a proposal to modify the current security law is under the review of the National People’s Congress, which attempts to the current offering system from approval system to the registration system. If such proposal is approved by the National People’s Congress, then China’s security regime will enter a new post-registration time. In the post-registration time, the securities regulators would not focus on keeping the gate and the offering and play the role as the allocator of financial resources. Instead, they need to focus on the investors’ protection, which should be the center of the regulation of Chinese capital market. The core issue of the investors’ protection would be the information asymmetry problem, which haunts the relationship of the issuers and the investors. The asset-backed security (ABS) business is an emerging business in China. The information asymmetry problem is significant in ABS market due to the complexity and the opacity of securitization. This article will take ABS as an example to explore the information asymmetry problem in the Chinese ABS market and seek solutions. The first part of this article provides a snapshot of the ABS market in China. The second part discusses the functions, benefits and concerns of ABS via the lens of the Lemon Market Theory. Then, the article comments on the Chinese Securities Regulatory Commission (CSRC)’s rules of disclosure regarding the underline assets, which are apparently hailed as pioneering but unfortunately still a platitude. Part Four analyzes the dilemma of signaling and screening and explores possible alternative solutions by allocating risks to originators. The final part summarizes the article. [read more...] 
Article | 7 Tsinghua China L. Rev. 251 (2015)
Striking a Balance Between Intellectual Property Protection of Traditional Chinese Medicine and Access to Knowledge
By LIN Peng
Traditional Chinese medicine has played a vital role in the well being of Chinese people for thousands of years. It is a comprehensive system of herb medicine that has been repeatedly practiced and gradually summarized by Chinese people over a long period of time. The current practice related to traditional Chinese medicine has gone beyond the traditional practice. It at least includes mass production of traditional Chinese medicine pills, traditional Chinese medicine herb extract and therapeutic chemicals identified in traditional Chinese medicine materia medica. While traditional practice is in the public domain, the case is less clear for the expansive practice of traditional Chinese medicine, particularly because the public has not practiced such knowledge before. The current intellectual property law is designed to strike a delicate balance between incentives of creation and access to knowledge. It is often construed from a utilitarian perspective. This utilitarian consideration can justify some protection for the new practice. While the current intellectual property law often only recognizes limited defensive rights for traditional knowledge holders, once the rights of non-traditional practitioners are recognized, the rationale of the intellectual property legal regime may justify a stronger package of rights, which would include more than defensive rights for traditional knowledge holders. [read more...] 
Article | 7 Tsinghua China L. Rev. 273 (2015)

Copyright © 1999-2016 Tsinghua China Law Review. All Rights Reserved.