Content of Law in our journal

Published in last 1 year |  In last 2 years |  In last 3 years |  All Please wait a minute... For Selected: Download Citations EndNote Ris BibTeX Toggle Thumbnails Select Hume's Problem in Natural Law and Legal Positivism REN Qiang Journal of Jishou University(Social Sciences Edition)    2024, 45 (4): 18-31.   DOI: 10.13438/j.cnki.jdxb.2024.04.003 Abstract （176）      PDF（pc） （839KB）（133）       Knowledge map    Save That a fact judgment "Being" does not lead to a value judgment "Ought" is called Hume's rule.Later,Hare divided value judgment into moral judgment and normative judgment;Milne then divided facts into non-hypothetical facts and hypothetical facts,and argued that the hypothetical facts contain normativity;Searle further divided fact judgment into brute fact judgment and institutional fact judgment,and proposed that two kinds of value judgment can be derived from institutional fact judgment:evaluative and normative,so as to partially complete the deduction from "Being" to "Ought".Under the influence of Hume's rule and its evolution,there exist a pattern from "Ought" to "Ought",a pattern from "Being" to "Being",a pattern from "Being" to "Ought",and a derivation of negative "Being" and "Ought" in natural law and legal positivism.The evolution of Hume's rule and the exploration of "Being" and "Ought" by natural law and legal positivism reveal the following conclusions:(1) The pure fact judgment completely independent of man is a transcendental existence.(2) A value judgment is a subjective judgment,which only evaluates or normalizes the objective elements that may be involved in the judgment,but does not describe them.(3) There are descriptive fact judgments excluding the subjective factors such as approval,preference,evaluation,acceptance,norm and command,from which value judgments cannot be derived.(4) There are institutional realities transformed by practice,from which value judgments can be derived.(5) In practical reason,fact judgment and value judgment are not completely divided and can be accommodated. Reference | Related Articles | Metrics | Comments（0） Select On the Enforcement Power of Freedom Penalty and Its Norms in China DI Xiaohua Journal of Jishou University(Social Sciences Edition)    2024, 45 (4): 32-42.   DOI: 10.13438/j.cnki.jdxb.2024.04.004 Abstract （154）      PDF（pc） （775KB）（102）       Knowledge map    Save Freedom penalty is the principal form of penalty in countries all over the world,and China is no exception.Of the five principal forms of penalty prescribed in the criminal law,four are in the form of freedom penalty,and although one is the death penalty,mostly it is a suspended sentence of imprisonment.Different from property penalty,qualification penalty,life penalty,etc.,the enforcement of freedom penalty with the content of deprivation or restriction of personal freedom can not only meet the needs of the adaptation of crime and punishment,but also better realize the justice of sentencing because of its divisible and time-space continuity.Changing the "term of imprisonment" into the "term of rehabilitation",it aims at transforming criminals into law-abiding citizens.However,due to the inherent contradiction between the essence of penalty and the goal of rehabilitation,how to alleviate this contradiction has become a difficult problem in the enforcement of freedom penalty.The enforcement power of freedom penalty is composed of different powers such as punishment,supervision and rehabilitation,and has different legal attributes such as criminal justice,special administration and position rights.Therefore,to break through the paradox of enforcement,the enforcement of free penalty needs to follow different operating procedures,normative requirements and supervision paths according to different powers. Reference | Related Articles | Metrics | Comments（0） Select The Realistic Demand and Realization Path of the Collaborative Legislation within the Yellow River Cultural Protection Area WANG Binhui, ZHOU Rui Journal of Jishou University(Social Sciences Edition)    2024, 45 (3): 108-116.   DOI: 10.13438/j.cnki.jdxb.2024.03.011 Abstract （133）      PDF（pc） （773KB）（85）       Knowledge map    Save The collaborative legislation within the Yellow River cultural protection area is the key to the protection and inheritance of the distinctive regional cultural characteristics,and it is also the need to implement the Yellow River Conservation Law,promote regional economic growth and ensure the local jurisdiction in cultural protection.However,the existing decentralized collaborative legislation has intensified the imbalance of the Yellow River cultural protection,resulting in insufficient legal protection of cross-regional cooperation.To carry out collaborative regional legislation,first,those who are responsible for implementing collaborative legislation should delicately balance the demarcation between national legislation and regional collaborative efforts,as well as between regional collaborative legislation and individual local legislation;second, in response to the specific needs of cultural protection,a tightly integrated legislative model should be adopted for collaborative efforts.This involves selecting an appropriate collaborative legislative framework through mutual consultation,building consensus on the content of regional collaboration,and standardizing and unifying the regional coordination mechanism.And finally, in terms of the specific collaborative legislation operation mechanism,we should construct collaborative legislation joint committee,share collaborative legislation information,carry out collaborative assessment and identify the "pseudo-collaboration". Reference | Related Articles | Metrics | Comments（0） Select The Judgment Model of the Limit of Ecologicalization of Tort Law and Its Application:Focusing on the Chinese Civil Code HU Jing, DONG Yijun Journal of Jishou University(Social Sciences Edition)    2024, 45 (2): 104-117.   DOI: 10.13438/j.cnki.jdxb.2024.02.012 Abstract （102）      PDF（pc） （883KB）（80）       Knowledge map    Save The ecologicalization of tort law is necessary to meet the needs of the times,but it should be properly restricted.The binary model of function and degree can be used to judge the limit of the ecologicalization of positive law.If the function of positive law is judged to protect public welfare,it can be considered to exceed the ecological limit,because the function of tort law as private law is to protect personal interests;if it is to protect personal interests,it will be decided whether this law satisfies the ask of degree then.According to the binary judgment model,the legislative evaluation of the imputation principle,causality,liability and exemption reasons stipulated in the Civil Code is that the overall ecologicalization exceeds the limit.Considering the nature of interests and the logic that environmental torts can be divided into indirect and direct modes,the existing rules should be improved correctly by means of judicial interpretation.Firstly,the principle of fault liability should be applied to the direct environmental torts and the indirect environmental torts are subject to the principle of presumption of fault when the property rights are damaged.Secondly,the presumption of causality shall not be applied to the direct environmental infringement,and when the right to health or the right to life is impaired,the requirements for certification standards shall be reduced appropriately.Thirdly,the rules of the punitive damage should be explained strictly.Finally,the provisions on the exemption of liability of gross negligence and others shall be added to the victim's fault rules,and the tortfeasor should be exempted from the middle liability when the third party causes the harm completely. Reference | Related Articles | Metrics | Comments（0） Select The Realistic Possibilities of the Social Co-governance of Law and Folk Customs—from the Perspective of Structural Functionalism CHEN Wenhua Journal of Jishou University(Social Sciences Edition)    2024, 45 (2): 118-129.   DOI: 10.13438/j.cnki.jdxb.2024.02.013 Abstract （88）      PDF（pc） （856KB）（75）       Knowledge map    Save The pluralistic co-governance of law and folk customs should be a necessary option for the governance of social rules.In the view of structural functionalism,the premise of functional coupling between law or folk customs and other subsystems (political or economic subsystems) is that the conditions for its existence are provided by itself or other subsystems of social structure (political or economic subsystems).The law changes from the one-dimensional value law to the contractual positivist law,and the national coercive force is not the constituent element but the implementation guarantee.The law is mainly characterized by formal rationalization and universal application,and is inherent in the contractual society,while folk customs are original,special and harmonious,embedded in the narrow cooperative society,and guaranteed by the recognition of value and the pressure of public opinion.Contemporary Chinese society is neither a contractual society nor a cooperative society,but a mixture of contractual and cooperative factors.The governance of social rules in China should turn to the dual co-governance of law and folk customs. Related Articles | Metrics | Comments（0） Select The Theoretical Implications and Discourse Strategies of International Human Rights Struggle—Based on the Proposition of the Universality of Human Rights HONG Lewei Journal of Jishou University(Social Sciences Edition)    2024, 45 (2): 130-139.   DOI: 10.13438/j.cnki.jdxb.2024.02.014 Abstract （95）      PDF（pc） （821KB）（78）       Knowledge map    Save The main field of international human rights struggle is human rights discourse,which is closely related to the theoretical proposition of"universality of human rights",a proposition containing profound struggle itself.The deconstruction of the legitimacy of "universal human rights",the main tactics of human rights intervention in the West,is an important part of the struggle of human rights discourse.The key to deconstruction of it lies in the separation of long-term binding relationship between "universal human rights" and the Universal Declaration of Human Rights and the principle of universality of human rights,so as to fundamentally shake the legitimate foundation of its "universality".The normative expression of the principle of universality of human rights in the Universal Declaration of Human Rights at least contains the dual universal requirements of "human rights subject" and "right content".The presentation and comparison of the meaning of this norm shows that the West has seriously deviated from the principle of universality of human rights both in concept and practice.The so-called "universal human rights" is undoubtedly hypocritical and limited,and it absolutely cannot represent the universal principle of human rights.Comparatively speaking,the achievements,concepts and practice of human rights in the development of China's human rights are the models that truly fit and demonstrate this principle.Therefore,in order to carry out the struggle of human rights discourse nowadays,especially in the expression of the proposition of universality of human rights,we should actively compete for the representative and discourse right of the principle of universality of human rights,and construct the "universality" position of Chinese human rights discourse,so that the principle of universality of human rights is no longer monopolized and controlled by Western discourse,and China can further enhance international influence and discourse right of human rights. Reference | Related Articles | Metrics | Comments（0） Select Type Analysis and Normative Path of the Duty of Supervision of Supervisory Authorities WEI Yuening, ZHAO Weizhong Journal of Jishou University(Social Sciences Edition)    2024, 45 (1): 46-57.   DOI: 10.13438/j.cnki.jdxb.2024.01.005 Abstract （241）      PDF（pc） （822KB）（188）       Knowledge map    Save The duty of supervision is a kind of supervision power behavior stipulated in Article 11 of the Supervision Law of our country.In essence,the duty of supervision is a systematic and comprehensive preventive power to prevent the alienation of public power.Based on the responsibility orientation of discipline inspection and supervision organs and the realization effect of supervision behavior,the responsibility of supervision can be divided into two types:the indirect type and direct type.The former is based on the prevention characteristics,which is an indirect supervision behavior carried out for unspecific objects,while the latter is a case-based direct supervision behavior aimed at specific objects based on prevention and punishment characteristics of supervision.In practice,the indirect supervision faces the risk of insufficient effectiveness,and direct supervision faces the risk of behavior deviation.In order to solve the above problems,we should carry out normative regulation by strengthening the effectiveness of indirect supervision in a refined way,and regulating the application of direct supervision in the way of normative constitutive elements. Reference | Related Articles | Metrics | Comments（0） Select Judicial Guarantee Mechanism of River Basin Ecological Environment Based on System Theory XIAO Ai Journal of Jishou University(Social Sciences Edition)    2024, 45 (1): 58-72.   DOI: 10.13438/j.cnki.jdxb.2024.01.006 Abstract （290）      PDF（pc） （917KB）（235）       Knowledge map    Save The judicial guarantee of river basin ecological environment is faced with the conflict between the current judicial system and the systematic integrity of river basin ecological environment,which is also the"relationship" connotation of the river basin ecological environment and its governance system.In terms of judicial guarantee mechanism,the system theory should be used as the methodology to rationally position the river basin ecological environment justice from the aspects of judicial function,judicial function,judicial efficiency and integration,etc.,to improve the judicial specialization on the premise of necessity and the principle of persistence and innovation.In other words,on the basis of giving priority to the application of administrative and ordinary judicial system tools of ecological environment governance,limited centralized jurisdiction is implemented after the diversion of ecological environment cases in the river basin according to the complexity,scope and degree of influence.The restoration of the river basin ecological environment should be placed in an overwhelming position,the structure of the collegial panel optimized,the public interest litigation of environmental protection organizations strengthened,and the public interest prosecution and procuratorial public interest litigation distinguished to improve the judicial specialization mechanism.From the perspective of system theory,judicial cooperation has an important institutional value that cannot be ignored in the judicial guarantee mechanism.In particular,cooperation should be included in the main responsibilities of the judiciary,and the standardization and institutionalization of the judicial cooperation mechanism of the river basin ecological environment should be comprehensively strengthened. Reference | Related Articles | Metrics | Comments（0） Select New Approaches on the Innovation-driven Development and the Construction of Intellectual Property Law QI Jiangang, ZHANG Shaohu Journal of Jishou University(Social Sciences Edition)    2023, 44 (6): 94-102.   DOI: 10.13438/j.cnki.jdxb.2023.06.008 Abstract （254）      PDF（pc） （757KB）（152）       Knowledge map    Save The legal system of intellectual property is a basic tool to speed up the implementation of innovation-driven development,because the core content of implementing innovation-driven development is to enhance the independent innovation of science and technology and transform scientific and technological achievements into real productive forces.As the system of intellectual property contains a new property right mechanism,an effective market transaction mechanism and a mechanism to protect the exclusive rights of innovation subjects and market subjects from destruction and infringement,it can provide a guarantee mechanism in the sense of "original power" for innovation-driven development.Speeding up the implementation of innovation-driven development at a higher level has put forward new requirements for scientific and technological innovation.However,the current intellectual property legal system is faced with a series of challenges:the ability of the intellectual property examination and approval system represented by invention patents needs to be improved;the ability of grass-roots administrative law enforcement of intellectual property rights needs to be strengthened;the efficiency of the use of intellectual property rights needs to be improved;and the administrative management and service capacity of intellectual property rights need to be strengthened urgently.In order to give full play to its mission as a basic tool for speeding up the implementation of innovation-driven development,new approaches are needed in the construction of the legal system of intellectual property,that is,we should look at the attribute of intellectual property as "a strategic resource for national development".It is necessary to optimize the intellectual property legal system from the organic integration of promising government,effective market and useful society,and formulate more intellectual property laws and regulations that express national and social public interests. Reference | Related Articles | Metrics | Comments（0） Select Fighting back the Boycott:The Legal Application of the Law against Foreign Sanctions to Overseas Entities—Taking the Legal Breakthrough of the "Xinjiang Cotton Incident" as an Example LIU Junmei Journal of Jishou University(Social Sciences Edition)    2023, 44 (6): 103-112.   DOI: 10.13438/j.cnki.jdxb.2023.06.009 Abstract （481）      PDF（pc） （1081KB）（169）       Knowledge map    Save As an overseas entity,the Swiss Better Cotton Initiative (BCI) contains many subjective factors in its certification procedures and standards for good cotton,and the composition of the so-called "investigation working group" is sufficient to prove that its conclusion on "Xinjiang cotton" has obvious political interference.BCI's boycott of "Xinjiang cotton" has constituted a discriminatory restriction measure,which aims to supplement US sanctions against China,and so it essentially is a special form of "trade war" against China.BCI is an international non-governmental organization and does not have the qualification of the subject of international law,so it dissociates from the control of the rules of international law.However,its boycott has constituted a violation of articles 4 and 15 of the Law against Foreign Sanctions,which is applicable to foreign acts regulated by the law.Based on this,the relevant departments may include BCI in the counter-list and the list of unreliable entities in accordance with the law and relevant laws,and take corresponding legal sanctions.The damaged enterprises or individuals in China can also bring a lawsuit to the people's court in accordance with the law,requesting to stop the infringement and compensate for the losses. Reference | Related Articles | Metrics | Comments（0） Select On the Typed Empowerment of Data Resources HUANG Wushuang, QIU Siyu Journal of Jishou University(Social Sciences Edition)    2023, 44 (5): 111-121.   DOI: 10.13438/j.cnki.jdxb.2023.05.012 Abstract （391）      PDF（pc） （874KB）（252）       Knowledge map    Save In the information digital ere,it is needed to improve the data ownership system for the circulation and utilization of data resources,and a reasonable classification standard of data resources is the necessary prerequisite for the construction and improvement of data ownership system.Due to its continuity,the information content of data resources should not be the basis for classification,rather it is more reasonable to classify according to the forms of expression in the process of data transformation.According to the different forms of data resources in the process of value realization,data resources can be divided into three types:original data resources,aggregate data resources and derivative data resources.The corresponding empowerment is as follows:the original data resources corresponding to natural information are endowed with national ownership and producers' income rights,and those corresponding to personal information are endowed with personal data property rights;the aggregate data gives limited exclusive rights to open non-original aggregate data resources;and the deri-vative data takes the copyright law as the core to increase the protection of adjacent rights. Reference | Related Articles | Metrics | Comments（0） Select Legal Analysis on the Issuing Contract of Land by the Villagers' Committee on Behalf of the Group Collective Economic Organization—On the Amendment of Article 65,Paragraph 1 of the Rural Collective Economic Organization Law (Draft) QU Maohui, LI Shuai Journal of Jishou University(Social Sciences Edition)    2023, 44 (4): 66-74.   DOI: 10.13438/j.cnki.jdxb.2023.04.007 Abstract （512）      PDF（pc） （769KB）（165）       Knowledge map    Save The issuance of land contract by the villagers' committee on behalf of the group collective economic organization has triggered some lawsuits about the dispute of land ownership and the validity of exchange contract for the contracted land，which has damaged the land contracting order.The current law shows that the group collective economic organization is an independent legal person,and enjoys the right to issue contract of land based on the exercise of land ownership.The villagers' group can enjoy the agent right to issue contract of land only when the daily management organization of the group collective economic organization is not sound,while the villagers' committee has no right to issue contract of land on behalf of the group collective economic organization.The key to solving the above problems is to clarify the subject of the group collective land ownership.It is suggested that the land ownership should be classified on the basis of obtaining evidence,that is,if the land has not appreciated substantially or there is a small conflict of interest,it will be resolved by collective economic organizations through consultation,and if it has appreciated substantially,it will be settled by the litigation of the parties concerned.If a substantial appreciation is possible,it will be resolved by the meeting of group collective economic organizations.Article 65 of the Rural Collective Economic Organization Law (Draft) should clarify and standardize the concepts and definitions of the rural collective economic organization，the right to issue contract and the agent right to issue contract，and specify their requirements and applicable conditions.It is necessary to distinguish between the right to issue contract of the rural collective economic organization and the agent right to issue contract of the autonomous organization for rural grassroots，and further differentiate between the agent right to issue contract of the villagers' group and the villagers' committee. Reference | Related Articles | Metrics | Comments（0） Select The Application of International Human Rights Law in Marine Disputes:Logical Rationale,Institutional Dilemma and Path Completion XU Panyu Journal of Jishou University(Social Sciences Edition)    2023, 44 (4): 76-88.   DOI: 10.13438/j.cnki.jdxb.2023.04.008 Abstract （376）      PDF（pc） （873KB）（194）       Knowledge map    Save The diversified development of international marine affairs has increasingly highlighted the importance of international human rights protection at the sea.The close relationship between the law of the sea and international human rights protection is not only reflected in the normative expression of legal documents,but also in the settlement of marine disputes involving the application of international human rights law.Based on the value orientation of anti-fragmentation of international law,the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) and the interpretative rules of international treaties,the application of international human rights law in marine disputes can be logically self-consistent.However,the complexity of international human rights law,the vagueness of the provisions of the UNCLOS and the technical defects of treaty interpretation tools have brought many obstacles to the application of international human rights law in marine disputes.In order to ensure the effective application of international human rights law in marine disputes,it is necessary to clarify the specific connotation of the applicable human rights norms and the legal effect of the provisions of UNCLOS,and improve the interpretation method of "systematic integration" under the premise of "genuine link" and "state consent".Through effective settlement of marine disputes,we can achieve the ultimate goal of human rights protection at sea. Reference | Related Articles | Metrics | Comments（0） Select The Problem in the Execution of Punishment against Liberty in Our Country and Its Solution:on Digital Governance of Recidivism Based on Intelligent Risk Assessment of Recidivism DI Xiaohua Journal of Jishou University(Social Sciences Edition)    2023, 44 (2): 31-43.   DOI: 10.13438/j.cnki.jdxb.2023.02.004 Abstract （577）      PDF（pc） （852KB）（252）       Knowledge map    Save The execution of punishment against liberty adheres to the combination of punishment and reform,with the purpose of transforming people.However,the traditional free execution punishment against liberty,characterized by the equal distribution of limited execution resources,not only intensifies the inherent contradiction between the punishment that deprives or restricts freedom and the reform that promotes the criminals to integrate into the society,but also causes the deviation between the means and the purpose of the reform,bringing the negative impact of unfair and inefficient execution of sentences.With the acceleration of the process of national rule of law,especially the continuous improvement of artificial intelligence in criminal justice,the unification of penalty execution reform must promote the integration of punishment against liberty with the assistance of artificial intelligence technology.To this end,in response to the mismatch between supply and demand that exists in traditional execution,it is essential to rely on the development of intelligent risk assessment of recidivism,to achieve dynamic matching of criminal causes and responses through accurate assessment,immediate warning,precise recommendation,evidence-based supervision and reform,and in this way to achieve the integration goals such as unified standards,subject coordination,relationship harmonization,procedural standardization,and backward and forward convergence in the execution of punishment against liberty. Reference | Related Articles | Metrics | Comments（0） Select A Study on the Obligation of Safe Keeping in the Civil Code:System Origin,Reconstruction,and the Application of Law JIANG Junzhou Journal of Jishou University(Social Sciences Edition)    2023, 44 (2): 44-58.   DOI: 10.13438/j.cnki.jdxb.2023.02.005 Abstract （745）      PDF（pc） （895KB）（162）       Knowledge map    Save Absorbing the institution of the obligation of safe keeping burdened by custodian in Roman Law,the Civil Code of China stipulates that the custodian is obligated to provide custody with due care,and should be diligent to fulfill it.However,after the systematic transformation of the Civil Code,this obligation of "safekeeping" objectively requires the custodian to keep the article,rather than that he should diligently keep it.It has no textual basis and contradicts the principle of no-fault contractual liability to reduce "safekeeping" to "safekeeping attention".If the custody is free,the Civil Code actually continues Lex quod Nerva,allowing the unpaid custodian to manage his own affairs;and if he fails to pay due attention,he will commit a "gross negligence".However,this kind of gross negligence is a kind of specific negligence of its own,which belongs to the attention of the free custodian,different from both abstract gross negligence and concrete minor negligence.As for the safekeeping of the Civil Code which is expressly stipulated in the non-contractual relationship,as well as other implied safekeeping,it should be systematically interpreted as that the custodian should pay attention to the abstract without committing the abstract fault at the corresponding level. Reference | Related Articles | Metrics | Comments（0） Select The Norm Connotation and Legal Implementation Mechanism of  "Natural Restoration as the Priority" LI Zhiping, YANG Lei Journal of Jishou University(Social Sciences Edition)    2023, 44 (1): 33-43.   DOI: 10.13438/j.cnki.jdxb.2023.01.005 Abstract （718）      PDF（pc） （874KB）（188）       Knowledge map    Save "Natural restoration as the priority" is one of the guiding ideology and important principles in the field of ecological restoration in China,which mainly depends on the natural self-regulation and self-organization to restore the ecosystem.In recent years,this expression has been repeatedly mentioned in policy and regulatory documents at all levels,and many interpretations derived from related requirements continue to attract much attention.Although "natural restoration",as a proper term originated from ecological science,has sufficient scientific connotation,if we only adopt the homogeneous deconstruction of it based on the perspective of natural science,it may make it difficult to provide clear legal guidance for restoration practice.In order to further explore the legal connotation of "natural restoration as the priority",this paper re-explains the due meaning of "natural restoration" at the normative level by sorting out the evolution of relevant concepts in the field of normative documents and ecological science,and comparing their application scenarios,essential requirements and main measures.Centering on the difficult problems in the construction of relevant mechanisms,it is argued that the legal implementation of "natural recovery" should take the value guidance at the legal level as the premise,the confirmation and protection of the legal carrier of natural restorative force as the focus,the formulation of regularized adaptive management requirements as the guarantee,and the realization of rigid constraints under the social-ecological complex system as the goal. Reference | Related Articles | Metrics | Comments（0） Select The Perfection of the Accountability System for Ecological and Environmental Damage of Party and Government Leading Cadres—The Complementarity and Integration between Party Regulations and State Laws GAO Lihong, LI Yin Journal of Jishou University(Social Sciences Edition)    2023, 44 (1): 44-55.   DOI: 10.13438/j.cnki.jdxb.2023.01.006 Abstract （673）      PDF（pc） （856KB）（162）       Knowledge map    Save The accountability system of ecological and environmental damage of Party and government leading cadres is a major institutional innovation to strengthen their responsibility of ecological,environmental and resource protection.However,the system,which extends across the Party rules and state laws,is facing some problems at present,such as logical conflicts of norms,different value standards and insufficient guiding function.In the practice of socialist rule of law and power operation in China,both Party regulations and state laws are important resources of the national governance system.To give full play to the evaluation and guidance functions of the ecological and environmental damage accountability system,we should complement and integrate Party regulations and state laws in the damage accountability system,that is,to promote the consistency of norms related to damage accountability,and to be guided by the value goal of the legal evaluation system.The relevant norms of governing the Party according to rules and government self-regulation will be integrated into the legal value evaluation system,and the damage accountability system will be constructed and integrated within the boundaries and functions of Party regulations and state legal regulations.In the specific realization path,we can accurately define the scope of liability objects through systematic interpretation,distinguish regulatory functions,regulate Party affairs with Party regulations,and produce spillover effects to enhance the government's legal ability to perform its duties.At the same time,we can sort out the forms of responsibility and clarify the identification standards and forms of various types of responsibility,so as to improve the accountability system for ecological and environmental damage. Reference | Related Articles | Metrics | Comments（0） Select The Textual Expression of the Party's Leadership into Law:The Pattern of Practice and the Approach of Perfection XIANG Jiachen Journal of Jishou University(Social Sciences Edition)    2023, 44 (1): 56-64.   DOI: 10.13438/j.cnki.jdxb.2023.01.007 Abstract （612）      PDF（pc） （721KB）（152）       Knowledge map    Save The integration of legislation into the Party's leadership is not only the objective need to strengthen the Party's leadership over related work,but also the inevitable result of promoting the transformation of the Party's leadership under the rule of law.Analysis of the current legislative practice shows that the laws and regulations written into the Party's leadership are mainly presented through three basic types:"policy (declaration) expression","duty (power) expression" and "responsibility (obligation) expression".Due to such factors as the lag of the standardization of the legislation technology,the different cognitive level of the legislative subject,and the thinking limitation of emphasizing the content over the form,the text expression of the Party's leadership into law still has a lot of room for improvement in the aspects of the standardization of term expression,word expression and so on.Thus,establishing a unified technical specification of the expression,perfecting the examination procedure of the expression,and improving the comprehensive literacy of legislative workers should be the way to further improve the expression of the Party's leadership into law. Reference | Related Articles | Metrics | Comments（0） Select On the Fair Analysis Obligation of Data Processor in Automated Decision-making CHEN Linlin, YAN Shuyuan Journal of Jishou University(Social Sciences Edition)    2022, 43 (6): 19-28.   DOI: 10.13438/j.cnki.jdxb.2022.06.003 Abstract （565）      PDF（pc） （797KB）（245）       Knowledge map    Save Prescribing the fair analysis obligation of data processors in the form of legislation is a basic path to prevent algorithmic risks and promote algorithmic regulation.The setting of fair analysis obligation based on the concept of meta-regulation is not only a kind of procedural regulation,but also a kind of purposive regulation.This obligation requires the information processor to ensure that the analysis process is proper and that the analysis results are fair.Fair analysis obligation is broadly regulated in the legal system of personal information protection in China.According to the automated decision-making process,the fair analysis obligation can be classified into three categories:the obligation of care before analysis,the obligation to control during analysis,and the obligation to review after analysis.The normative orientation of the fair analysis obligation is to prevent algorithmic discrimination and treat individual citizens or data subjects fairly.Data processors that violate such obligations will bear administrative and civil liabilities,and the main way of accountability is to punish the phenomena of "big data price discrimination","information cocoons" and "social sorting". Reference | Related Articles | Metrics | Comments（0） Select The Regulatory Logic and Path of "Big Data Price Discrimination" by Platforms from the Perspective of Publicity ZHENG Pengcheng, LONG Sen Journal of Jishou University(Social Sciences Edition)    2022, 43 (6): 29-40.   DOI: 10.13438/j.cnki.jdxb.2022.06.004 Abstract （658）      PDF（pc） （879KB）（225）       Knowledge map    Save With the dual accountability of social ethics and technical ethics,the platforms' "big data price discrimination" is infringing upon the rights and interests of consumers through algorithms,which should be regulated.The Anti-monopoly Law,Consumer Protection Law,Price Law and other traditional laws have conceptual and institutional dilemmas in the regulation of "big data price discrimination".In view of the publicity of big data platforms and the uncertainty of the infringement object of "big data price discrimination",the regulation of it can be learned from the theory of public utilities,adopting supervision in advance.Transparent,reasonable and non-discriminatory pricing and marking obligations should be imposed on qualified platform subjects,and professional platform regulatory bodies should be established to ensure that the above obligations are fulfilled. Reference | Related Articles | Metrics | Comments（0） Select Problems of Anti-monopoly Law Regulation and Solutions on Killer Acquisition of Start-Ups by Large Digital Platform Enterprises LIU Guiqing Journal of Jishou University(Social Sciences Edition)    2022, 43 (5): 61-74.   DOI: 10.13438/j.cnki.jdxb.2022.05.008 Abstract （996）      PDF（pc） （897KB）（404）       Knowledge map    Save The killer acquisition of start-ups by large digital platform enterprises for the purpose of eliminating potential competitive threats and consolidating the existing monopoly position is a major challenge to the regulation ofoperators' concentration in various anti-monopoly jurisdictions.Due to the short period of establishment and small scale of start-ups,such mergers and acquisitions usually fail to meet the pre-declaration standards and cannot enter the competition review process,and even if they have entered the subsequent competition review,it is difficult to legally stop or get relief due to the difficulty of assessing and proving competition damage.In view of this,the United States and some European countries,in addition to supplementing the loopholes of the prior declaration system and exploiting the law enforcement resources under the existing competition review system,began to use special legislation for large digital platforms to set up "special" rules for platform mergers and acquisitions.China's anti-monopoly regulation of killer acquisition of large digital enterprises is also necessary to take two approaches simultaneously.On the one hand,we should improve the prior declaration system,adjust the competition damage assessment method according to the characteristics of digital enterprise M&A,and introduce the abuse of market dominance into the post-regulation system when necessary.On the other hand,for specific key enterprises,special competition review rules should be set for mergers and acquisitions of super digital platforms,so as to invert the burden of proof of competition injury,fundamentally easing the proof for law enforcement agencies. Reference | Related Articles | Metrics | Comments（0） Select The Diffusion of Criminal Responsibility Resulting from Digitization and Artificial Intelligence Written by Susanne Beck, Translated by WANG Dezheng Journal of Jishou University(Social Sciences Edition)    2022, 43 (5): 75-84.   DOI: 10.13438/j.cnki.jdxb.2022.05.009 Abstract （642）      PDF（pc） （774KB）（239）       Knowledge map    Save Digitization and artificial intelligence have greatly influenced guilt in criminal law and changed the basic concept of personal responsibility.The cooperation between human and robots and AI systems should be examined in detail in concrete cases,i.e.how machines participate in making decisions,how the conduct space of human works,and whether individual guilt is excluded or at least greatly mitigated.Letting machines make decisions wholly or partly would raise many questions about the concept of guilt and further criminal responsibility,including the foreseeable possibility of negligence,objective imputation,and provability of misconduct.New adjustments in criminal law may be necessary in relation to guilt,imputable possibility,provability and discretion of punishment.Meanwhile,other solutions,including criminal law,should be found to continue to prevent the diffusion of criminal responsibility resulting from digitalization and AI systems. Reference | Related Articles | Metrics | Comments（0） Select The Adjustment between Public Welfare Sacrifice and Social Obligation in Policy Change:Taking the Transfer Policy of the Matching Kindergartens in Urban Communities as an Example DUAN Zexiao Journal of Jishou University(Social Sciences Edition)    2022, 43 (4): 126-136.   DOI: 10.13438/j.cnki.jdxb.2022.04.014 Abstract （628）      PDF（pc） （810KB）（204）       Knowledge map    Save The change of public policy is often difficult to realize because it is restricted by the property rights of private subjects,which affects the realization of policy objectives.This problem is reflected in the transfer policy of the matching kindergartens in urban communities.Because the original owners of matching kindergartens in urban communities have a long-term policy background to obtain property rights,and the transfer of property rights involves the impairment of their rights,it is difficult to implement the policy.The reason is that there is a conflict between the special sacrifice based on the needs of public interests and the social obligations of property rights.The boundary between the two is fuzzy.The application of the concept of regulation and promotion helps to adjust the relationship between them,making interest regulation one of the basic tasks of administrative law and then constructing the adjustment standard,with the principle of proportion,the principle of administration according to law,and the standard of retroactivity as the main content.In this way,the maintenance of public interests and the protection of private interests would be balanced as much as possible to achieve public policy objectives. Reference | Related Articles | Metrics | Comments（0） Select The Legal Norms and Mechanism Construction of Personal Information Protection in the Era of Digital Economy LIU Xueting Journal of Jishou University(Social Sciences Edition)    2022, 43 (4): 137-147.   DOI: 10.13438/j.cnki.jdxb.2022.04.015 Abstract （965）      PDF（pc） （811KB）（509）       Knowledge map    Save In the era of digital economy,the comprehensive digitization of personal information has become an increasingly obvious phenomenon,and the data value of personal information,especially the proportion of commercial value,has increased sharply.How to coordinate and deal with the conflict of rights and obligations among relevant legal subjects and the expansion of data power,and how to protect the data security of personal information have become important issues.Although the laws and regulations of personal information have basically taken shape,the national economic and social development still requires the strengthening of relevant legal protection and relief,and the construction of relevant mechanisms as well.These mechanisms should include strengthening the technical guidance of data traceability through the extension and expansion of the concept of data traceability,using the western data trust model for reference to establish a static and dynamic personal information data trust "firewall",and standardizing the power boundary to break the monopoly of data power.At the same time,we should build a strong "security barrier" of personal information data chain with the comprehensive coverage of norms and mechanisms.That is to say,our country should provide comprehensive legal norms for personal information from multiple levels,fields and stages,and achieve the purpose of coordinating,protecting and promoting personal information through legislation,judicature and law enforcement. Reference | Related Articles | Metrics | Comments（0） Select On the Rights of Nature and Their Protection WANG Shuyi, WANG Meng Journal of Jishou University(Social Sciences Edition)    2022, 43 (3): 78-86.   DOI: 10.13438/j.cnki.jdxb.2022.03.009 Abstract （704）      PDF（pc） （750KB）（114）       Knowledge map    Save Whether the rights of nature can be confirmed in environmental law is a topic that has been discussed in the field of environmental law in recent years.Limited by the prejudice of anthropocentrism,traditional jurisprudence denies the existence of the rights of nature from the theory of rights and obligations and legal relations.In the report of the 19th CPC National Congress,it is put forward that "man and nature are the concept of life community",which reinterprets the subjective status of nature from the perspective of the integrity of human and nature and provides a theoretical basis for the legalization of the rights of nature.In view of the lack of legal norms of the rights of nature in our country and drawing lessons from the practical experience of foreign countries in the protection of the rights of nature,and based on the principles of natural reciprocity and risk prevention,China should adopt the agency system,public trust system and public participation system in practice,attaching importance to the remedy when the natural objects are damaged,advocating nature court,and constructing the Chinese way to build the concept of the rights of nature in the community of human and natural life. Reference | Related Articles | Metrics | Comments（0） Select On Building Independent Military Criminal Law in China from the Perspective of Dualism WAN Zhipeng Journal of Jishou University(Social Sciences Edition)    2022, 43 (3): 87-96.   DOI: 10.13438/j.cnki.jdxb.2022.03.010 Abstract （768）      PDF（pc） （786KB）（280）       Knowledge map    Save Military criminal law belongs to special criminal law,and the boundary between it and ordinary criminal law has been disputed for a long time fromthe aspects of military crime,military personnel crime,equilibrium and dualism.Based on the needs of the tradition of military law,the constitutional system and the function of criminal law,dualism should be adopted to limit military crimes to the crimes committed by soldiers who violate military duties and infringe upon military interests.At present,China's military criminal law is co-compiled with the ordinary criminal law in a unified criminal code.However,this code is not conducive to clarify the relationship between military criminal law and ordinary criminal law,because it damages military legal interests and soldiers' rights and ignores the impact of the extreme particularity of military activities on military crimes and their criminal responsibility.In building a military rule of law system with Chinese characteristics,we should build a military penal code under the restriction of dualism in an independent mode. Reference | Related Articles | Metrics | Comments（0） Select The Construction of Safe Harbor Rules in China's Anti-monopoly Law LI Guohai, WANG Yining Journal of Jishou University(Social Sciences Edition)    2022, 43 (2): 60-71.   DOI: 10.13438/j.cnki.jdxb.2022.02.008 Abstract （1460）      PDF（pc） （795KB）（512）       Knowledge map    Save The safe harbor rule of anti-monopoly law has been practiced for a long time in countries such as the United States and the European Union,and the fundamental motivation is the conflict between the universal applicability of anti-monopoly law and the complexity of its regulatory object.Legislators and law enforcers need to introduce appropriate tools to balance them.There are not only close relations but also significant differences between the safe harbor rules and the reasonable principle,exemption system and application exclusion system in the anti-monopoly law.In terms of content,because the abuse of market dominant position is harmful to market competition,the safe harbor rules of anti-monopoly law are not applicable to this kind of behavior;in terms of applicable conditions,market share elements are taken as positive elements,and the application of seriously restricting market competition behavior is excluded.The safe harbor rule in anti-monopoly law can be divided into two operating modes:presumption of legality and presumption of exemption.There are some doubts in Chinese academic circles about the introduction of safe harbor rules into anti-monopoly law,but these questions can be resolved.The rule has been preliminarily explored in the anti-monopoly practice of our country,which has accumulated preliminary experience for the construction of the rule.It is necessary for our country to introduce safe harbor rules into legislation.The following points should be grasped in the quotation:excluding the application of horizontal monopoly agreement,resale price maintenance agreement and abuse of market dominant position,adopting the safe harbor standard with market share standard as the main standard and alternative standard as supplement,and adhering to the principle of the combination of difference and unity and the coordination of stability and flexibility. Reference | Related Articles | Metrics | Comments（0） Select The Types of Personal Data Damage and Its Determination LIANG Zhiwen, LIU Xiao Journal of Jishou University(Social Sciences Edition)    2022, 43 (2): 72-83.   DOI: 10.13438/j.cnki.jdxb.2022.02.009 Abstract （820）      PDF（pc） （887KB）（227）       Knowledge map    Save The personal data protection system constructed according to the principle of informed consent is faced with serious challenges such as excessive collection,unauthorized disclosure and abuse.The path of public rights protection has the limitations of supervision strength,scope and effectiveness,while the concept of damage in the traditional tort law sets up the private law relief rights of the data subject.Therefore,in order to ensure the healthy development of digital economy,we must expand the meaning of damage in tort law.Legally compensable damage to personal data should extend to two new types of damage:the risk of secondary damage to data subjects,and the impairment of personality interests caused by social sorting discrimination,data monitoring,and automatic decision-making and so on.When determining the specific amount of compensation,in order to solve the dilemma of economic quantification and burden of proof caused by the impairment of risk and personality interests,the personal Information Protection Law should adopt the legal compensation system which is widely used in the intellectual property law. Reference | Related Articles | Metrics | Comments（0） Select On the Truth of Cases under the Mode of Litigation Cooperation：The Promotion of the Consensual Truth LI Rong, HUANG Xiaolong Journal of Jishou University(Social Sciences Edition)    2022, 43 (1): 88-95.   DOI: 10.13438/j.cnki.jdxb.2022.01.009 Abstract （826）      PDF（pc） （734KB）（102）       Knowledge map    Save The Criminal Procedure Law of 2018 stipulates the lenient system of pleading guilty and accepting punishment,which marks the formal establishment of the mode of litigation cooperation in our country.Different from the traditionaladversarial litigation,under the cooperative litigation mode,the prosecution and defense change from confrontation to cooperation.With the procuratorial organs leading the procedure of pleading guilty and punishment,the focus of litigation shifts from the trial stage to the examination and prosecution stage.The agreement between the prosecution and the defense weakens the court investigation,so the court trial becomes a "confirmation trial",and the truth of the case is more reflected in the "acceptability" of the prosecution and defense,that is,the consensual truth.The concept of consensual and true litigation contains the subject concept of the defendant,embodies the pursuit of the values of the times of judicial efficiency,judicial authority and negotiated justice,and has a legitimate basis.In response to the reform of the dual litigation procedure of confrontation and cooperation,the concept of litigation truth will also change from the traditional unitary view of substantive reality to the dual view of reality with the coexistence of substantive truth and consensual truth. Reference | Related Articles | Metrics | Comments（0） Select Ternary Governance of Data Transaction Circulation:Technology,Standard and Law XU Ke Journal of Jishou University(Social Sciences Edition)    2022, 43 (1): 96-105.   DOI: 10.13438/j.cnki.jdxb.2022.01.010 Abstract （986）      PDF（pc） （800KB）（301）       Knowledge map    Save The circulation of data transaction is related to the overall situation of the cultivation of data factor market.However,its legal implication is not clear;the chronic illness of practice needs to be sorted out,and the whole system is also lacking.As a voluntary transfer and sharing of data control between two or more parties,data transaction circulation is mainly embodied in "data sharing" and "data reuse",rather than "data transfer".Empirical studies in various countries show that the circulation of data transactions is faced with three major dilemmas:technology,standards and law.Therefore,the technology as the priority mechanism,the standard as the referral mechanism and the law as the bottom-line mechanism together constitute the ternary governance system to respond to the challenge,and thus they establish the infrastructure of data governance in the data factor market. Reference | Related Articles | Metrics | Comments（0）