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By LIN Ziyu
The Fall 2019 Issue of Tsinghua China Law Review dedicates to advancing the forefront discussions of Chinese law. We bring together a diverse group of legal scholars to address challenges facing Chinese society and the world. By integrating understandings of the legal systems in the U.S. and Europe, the scholarships delve deep into several important issues, including the transition of state-owned enterprises to private entities, and tax compliance in the digital economy. [read more...]
Preface | 12 Tsinghua China L. Rev. (2019)
Contractual Corporate-Insolvency Resolution in Transitional Economies
By Barry E. Adler
Contractual resolution of large-enterprise corporate insolvency offers potential advantages over judicial valuation or auction, particularly in transitional economies, perhaps including China, where courts and markets may be unaccustomed to valuation of large enterprises. This is not a claim that contractual resolution is a panacea. But a contractually implemented Chameleon Equity capital structure as proposed in this article could serve as an efficient tool in the transition of state-owned enterprises to privately financed entities. [read more...]
Article | 12 Tsinghua China L. Rev. 1 (2019)
The Digital Platform Economy and Its Challenges to Taxation
By Thomas Fetzer and Bianka Dinger
Many platforms in the digital economy offer their services to customers worldwide without having any physical presence in countries where the customers are located. This raises the question as to whether income taxation of platforms should be linked to the country of residence of the customers of a digital platform. The initiatives of the European Commission on the digital services tax and the significant digital presence will be evaluated. Further, the paper covers enforcement issues created by the platform economy and suggest alternative mechanisms to ensure taxation, including the withholding tax system.
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Article | 12 Tsinghua China L. Rev. 29 (2019)
Do Confessions Contribute to Lenient Punishments in China? An Empirical Study Based on Crimes-of-Intentional-Injury Trials
By WANG Fang and GUO Liang
China’s criminal justice system has a policy that “leniency shall be granted to those who confess, severity shall be imposed on those who resist”. The authors collected 6,876 intentional injury judgment documents (2014-2017) and analyzed them using an Ordinary Least Squares (OLS) model. They found that, 1) statutory confession did not contribute to the overall lenient punishments; and 2) confession had an independent function, without interference from other circumstances of statutory leniency. These findings highlight a dilemma: an act of confession does not contribute to lenient punishment. This deviates from legislative intent and fails to conform to people’s expectations.
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Article | 12 Tsinghua China L. Rev. 57 (2019)
Property System in Traditional China and Its Enlightenment
By WANG Yang and LI Beini
The property rights system in the Ming and the Qing Dynasties took “ye” (property) as the core concept. The system was composed of various managing hierarchies and transaction forms. The complex structure helped clarify property rights and reduce transactional costs. Our observation is that the characteristics of the real property system in the Ming and the Qing Dynasties are different from the property concept in the civil law system, whose core is the absolute ownership and “dominium ius in re aliena”. This observation provides a useful reference for the current reform in China which aims at the separation of rural land rights. [read more...]
Essay | 12 Tsinghua China L. Rev. 87 (2019)
A Comparative Perspective of Eminent Domain Laws in the United States & China
By Arya J. Taghdiri
In the United States and China alike, eminent domain proceedings have uprooted and displaced millions of citizens over the years as to facilitate and hasten economic development. This paper will not only analyze both nations’ interpretations of “public use” and “public purpose” side-by-side, but also how “compensation,” and “just compensation” standards are interpreted and enforced by each nation’s government agents and judiciary. Additionally, this article will evaluate the due process and constitutional enforcement mechanisms that the United States and China each have in place to address issues arising from inequitable eminent domain proceedings. [read more...]
Essay | 12 Tsinghua China L. Rev. 115 (2019)
Further Opening-Up to Foreign Investment: The New Negative Lists
By LIAN Ruihua
On June 30th 2019, the National Development and Reform Commission and the Ministry of Commerce jointly released the Special Administrative Measures for Foreign Investment Market Access (2019 Version), the Special Administrative Measures for Foreign Investment Market Access in Pilot Free Trade Zones (2019 Version) and the Encouraged Foreign Investment Industry Catalog (2019 Version). This note addresses the trend of liberalizing foreign investment in the new Negative Lists by reviewing the development of the negative list approach in both international and domestic contexts and by commenting on its transparency and predictability and the dispute settlement mechanism. It also combines the new approach with the structural change brought by the new Foreign Investment Law. [read more...]
China Law Update | 12 Tsinghua China L. Rev. 143 (2019)
Cyber Protection of Personal Information in a Multi-Layered System
By ZHOU Yuexin
In the past two years, to ensure the cyber data security and the legitimate rights of citizens, China has issued a series of regulatory documents to set the benchmark of data use. With the global focus on legislation of cyber data protection, the regulatory process manifested China’s attempt to establish its own cyber data protection system. This note will briefly introduce the development and status quo of cyber data protection in China. The current regulatory trend is manifested by three documents and forms a multi-layered system, which causes tension between innovation and privacy protection underlying this system. Suggestions will also be given to address the problems. [read more...]
China Law Update | 12 Tsinghua China L. Rev. 159 (2019)
The People’s Assessors in China’s Legal System: Current Legal Structure for Their Duty and Its Justification
By QIU Qunran and YAN Chen
On 24 April 2019, the Chinese Supreme People’s Court issued the Interpretation of the Supreme People’s Court on Several Issues concerning the Application of the Law of the People’s Republic of China on People’s Assessors, adjusting the division of duty between judges and assessors. The assessors share similarities with the jurors in American legal system because they are, by nature, non-judge citizens involved in the trial process. This note starts from a brief sketch of the history of the assessor system in China and would discuss the current scope of the assessors’ duty, and provides some justifications for this duty arrangement together with a comparison to the American jury system. [read more...]
China Law Update | 12 Tsinghua China L. Rev. 171 (2019)

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