Selectionism of the Model of Civil Public Interest Litigation Concerning Ecological Environment in China

张光君,호형균 현대중국학회 2020 現代中國硏究 Vol.22 No.2

After the reform of the ecological environment damage compensation system was implemented, China’s legal system has two litigation models against the same ecological environment damage case: environmental protection organizations or procuratorial agencies file civil public interest litigation concerning ecological environment government-led model; a new government-led model in which administrative organs initiate environmental damage compensation suits. In order to avoid problems such as repeated litigation, Article 17 of the Regulations on the Trial of Compensation for Ecological Environment Damage Cases (for Trial Implementation) stipulates that the government-led model has the priority of the prosecution order. This actually regards civil public interest litigation concerning ecological environment as a supplement, therefore, this goes against the actual situation of China’s environmental public interest protection, and will also reduce the enthusiasm of environmental protection organizations to raise civil public interest litigation concerning ecological environment. In order to reflect on the relationship between the two litigation modes and properly arrange their order of litigation, this article first demonstrates the similarities and differences between the two litigation modes through comparative analysis. This article believes that both are essentially civil public interest litigation concerning ecological environment, so they can be integrated into the civil public interest litigation concerning ecological environment system as two specific modes of the system; Based on the principle of “Ne bis in idem”, this paper uses the system integration method to explore the possible path of the system integration of the two litigation modes, and adopts the staged advancing law to properly arrange the sequence of litigation between the two litigation modes to construct a broad civil public interest litigation concerning ecological environment model. Specifically, we should gradually choose the civil public interest litigation concerning ecological environment model, and choose different litigation models in stages. In the first stage, based on China’s actual ecological environment protection, we should adopt a hybrid model and give priority to accepting civil public interest litigation concerning ecological environment initiated by environmental protection organizations or procuratorial institutions under the same conditions. In the second stage, China’s ecological civilization is basically completed, so it can be transitioned to a government-led model. This staged litigation model selectionism is more conducive to the specialization of environmental justice and the realization of the goal of protecting the public’s environmental rights and interests and safeguarding the environmental public interest.

创新创业教育引领法学专业人才培养模式根本变革

张光君 중국지역학회 2018 중국지역연구 Vol.5 No.3

In the past two decades after the large-scale enrollment expansion, especially in the context of the new era of “mass entrepreneurship and innovation”, China’s legal education has exposed many problems, among which the most fundamental one is the separation of theory and practice, the single discipline structure, which makes it difficult to adhere to the traditional school-running characteristics of practical education, and to drive innovation through the integration of practice and discipline. Under the background of the new era, it is necessary to further cover the whole process of legal personnel training with the concept of innovative entrepreneurship education and integrate it into all links. Guided by the concept of innovative entrepreneurship education, we should explore the path of fundamental change in the training mode of legal professionals, realize the supply-side reform of legal professionals training, and form a distinctive training system of innovative and entrepreneurial legal talents with high quality. Only in this way can we enhance the support and contribution of legal professionals to “innovative China” and “rule of law China”. Therefore, it is also the dual mission of "Innovating China" and "Rule of Law China" to lead the fundamental reform of the training mode of legal professionals by innovative entrepreneurship education. The goal of leading the fundamental reform of the training mode of legal professionals by innovative entrepreneurship education is to train innovative and entrepreneurial legal professionals. At present, the specific suggestions for the path exploration are as follows: Firstly, on the basis of summing up the success or failure of legal profession education at home and abroad, the traditional characteristics of law schools are endowed with new connotation of the era of artificial intelligence and creatively transformed, and the creation of legal profession is constructed. The goal system of new entrepreneurship education and the evaluation index system of teachers and students; secondly, through the construction of interdisciplinary and cross-integrated “domain law”, the construction of an integrated academic and teaching system, and with market economy thinking to break the barriers to institutional mechanisms, innovate an effective integration mechanism of high-quality educational resources; thirdly, give full play to the advantages of law specialty, adhere to the “master” of law specialty. Firstly, we should break through the key areas of innovation and entrepreneurship education in law major step by step. Fourthly, we should construct the curriculum system, organizational system and guarantee system of fundamental change in the training mode of law professionals. Among them, we should pay special attention to strengthening the awareness of benchmarking, enhancing the adaptability and coherence of the six major teaching systems to the training objectives of innovative and entrepreneurship-oriented legal personnel; strengthening the awareness of problems, reforming teaching methods and curriculum organization system, and simultaneously improving the effectiveness of knowledge imparting and practical training; strengthening cross-border awareness, promoting cross-border integration of disciplines and specialties, and integrating practical education and innovation inside and outside the school. Enhance the awareness of security, and take the information construction as the lead to construct the guarantee mechanism for the fundamental change of the training mode of legal professionals. 中国法学专业敎育在大规模扩招后的近二十年来, 尤其是在 “大衆创业、万 衆创新”的新时代背景下, 已经暴露出诸多问题, 其中最为根本的是理论与实践 脱节, 学科结构单一, 旣难以坚持重视实务敎育的传统办学特色, 也难以通过实 践和学科交叉融合驱动创新。在新时代背景下, 有必要进一步将创新创业敎育 理念覆盖法律人才培养全过程、融入各环节, 幷以创新创业敎育理念为引领, 探索法学专业人才培养模式根本变革的路径, 实现法学专业人才培养的供给侧 改革, 形成特色鲜明的高素质创新创业型法治人才的培养体系和风格, 才能切 实提升法学专业人才培养对 “创新中国”和 “法治中国”的支撑度和贡献度。因 此, 以创新创业敎育引领法学专业人才培养模式的根本变革也是 “创新中国”和 “法治中国”对中国法学敎育提出的双重使命。 以创新创业敎育引领法学专业人才培养模式根本变革的目标是培养创新创业 型法治人才, 目前对路径探索的具体建议是: 第一, 在总结中外法学专业敎育成 败得失的基础上, 对法学院校传统办学特色赋予人工智能时代的新内涵幷予以 创造性转化, 构建起法学专业创新创业敎育的目标体系和师生考核评价指标体 系;第二, 通过建设跨学科的、交叉融合的 “领域法学”, 建设一体化的学术体 系和敎学体系, 幷以市场经济思维打破体制机制壁垒, 创新优质敎育资源的有 效整合机制;第叁, 发挥法学专业优势, 坚守法学专业的 “主阵地”, 分步骤突 破法学专业创新创业敎育的重点领域;第四, 构建法学专业人才培养模式根本 变革的课程体系、组织体系和保障体系。其中, 尤其要注重强化对标意识, 增强六大敎学体系对应创新创业型法治人才培养目标的适配性与连贯性;强化问 题意识, 改革敎学方法和课程组织体系, 同步提高知识传授和实务训练的效 能;强化跨界意识, 促进学科与专业跨界融合, 整合校内外实务敎育和创新创 业敎育资源;强化保障意识, 以信息化建设为龙头构建法学专业人才培养模式 根本变革的保障机制。

Research on the Legal Nature and Value Evaluation of Network Virtual Property from the Perspective of Chinese Criminal Justice

张光君,Li Zhuozhou 중국지역학회 2020 중국지역연구 Vol.7 No.3

Article 127 of the Civil Code of the people’s Republic of China adopted in May 2020 makes declarative provisions on the protection of network virtual property, but the specific protection rules are not clear. In the practice of criminal justice in China, there are differences in the understanding of the legal nature of network virtual property, and there is also a lack of value evaluation standards for network virtual property, resulting in different sentences in the same case, light or heavy sentencing often occurs. At present, China’s law in the evaluation of the value of network virtual property is still lack of corresponding mandatory provisions, coupled with the characteristics of network virtual property such as dependency, digital, making the network virtual property lack of special management department, there is no clear calculation method of virtual property value, leading to the value of network virtual property in judicial practice is often difficult to accurately assess. Therefore, in theory, it is necessary to clarify the nature and calculation method of network virtual property. By comparing several theories of the legal nature of the network virtual property, and on the basis of comparing the relevant legislation of other countries, this paper holds that in China’s criminal justice practice, the network virtual property should be uniformly defined as “other property” in Article 92 of the Chinese criminal law to be protected. Further, through the analysis of the existing calculation methods of the value of network virtual property, this paper puts forward a new idea of value evaluation of network virtual property, and puts forward suggestions for solving the problem of conviction and sentencing of network virtual property crime cases in the current criminal judicial practice of China.

虚假破产罪法律适用的困境与出路

张光君,何梨 한국채무자회생법학회 2018 회생법학 Vol.17 No.-

파산제도는 법률에 의해 독특한 면책기능을 가지고 있다. 이로 인 해 고의적인 파산을 하는 등 범죄의 도구로 사용되기로 한다. 허위 파산은 파산법의 질서는 물론 채권자 등에 손해를 끼칠 수 있다. 중 국의 경제발전이新常态로 진입한 후 구조적인 개혁이 점차적으로 심화되고 시장경쟁도 나날이 강화되어 기업의 파산위험도 증가하고 있다. 이에 기업의 허위파산행위는 채무를 피하기 위한 수단으로 사 용되 있으며, 그 수도 점차 증가하여 사회문제로 되고 있다. 2006 년의 개정된 '기업파산법'으로 인하여 기업의 허위파산에 대한 형사 적 책임을 물을 수 있는 길이 열렸지만, 실질적으로 허위파산이 매 우 교무하기 때문에 이를 입증하기란 쉽지 않다. 또 이러한 허위파 산행위는 기업은 물론 사회 전반과 법률질서를 해치고 있다. 그러므로 본 연구에서는 중국의 허위파산죄의 구성요건을 분석하고, 법률의 적용상 문제점을 분석하여 입법적 필요사항을 제시한다. 허위파산죄가 실무에 있어 어떻게 작용하는지 확인한 후 법률상 보 호되는 파산관리절차와 채권자 및 기타 이익자를 보호할 수 있는 방 안을 제시한다. 구체적으로는 파산법상의 적용범위, 허위파산행위의 범위와 파산범죄의 체계, 허위파산죄의 형법상 정형 및 형사처벌 방식, 정부의 파산 중 역할을 통한 허위파산죄의 법률적용의 보장 등 4개의 면에서 검토한다. 이를 통해 중국의 허위파산 문제의 해결방 안을 제시한다. Bankruptcy system has the unique function of exemption from liability according to law. It is easy for some illegal elements to use it as a tool for breaking the law and committing crimes, to carry out false bankruptcy acts, and to wantonly damage the legal order of bankruptcy and the legitimate interests of creditors and others. After China's economic development has entered the new normal, the structural reform of the supply side has been deepened step by step, the market competition has become increasingly fierce, the risk of enterprise bankruptcy has increased, and the behavior of avoiding debt by means of false bankruptcy has also increased. Although China has been entrusted with the mission of ensuring that the Enterprise Bankruptcy Law is not abused at the beginning of adding false bankruptcy crime in 2006, there are many disputes about the constitutive elements of false bankruptcy crime. The implementation effect of the Enterprise Bankruptcy Law itself is not ideal, which dooms the false bankruptcy crime to face many difficulties in the application process, and fully exposes the lack of cohesion between legal departments and the establishment of charges. It is difficult to resist all kinds of bankruptcy chaos because of unscientific problems. Through the interpretation of the constitutive elements of the crime of false bankruptcy and the analysis of its application dilemma, this paper holds that in order to solve the dilemma of the legal application of the crime of false bankruptcy, legislation needs to be improved, relevant departments need to do more, and supporting measures should be improved so as to make the crime of false bankruptcy play a greater role in practice and maintain the management order of bankruptcy and creditors or others. Interests. Specifically, it includes the following four aspects: firstly, by defining the concept of bankruptcy and critical period, expanding the scope of bankruptcy law, expanding the subject of false bankruptcy crime, thereby strengthening the connection between criminal law and bankruptcy law; secondly, by clarifying the boundaries of similar crimes, expanding the scope of acts of false bankruptcy and adding new charges of bankruptcy crime, further improving the bankruptcy crime within the criminal law. The third is to increase the punishment for false bankruptcy by setting a legal penalty equivalent to the crime and adding a criminal penalty to the unit; the fourth is to promote the legislature to amend the law in time, strengthen the role of the government in bankruptcy according to law, provide a good institutional guarantee for the legal application of false bankruptcy, and enhance the judicial credibility of the court.

Exploration on the New Legal Discovery Model of China's Smart Judiciary

张光君,张翔 중국지역학회 2022 중국지역연구 Vol.9 No.3

In the process of promoting the upgrading of judicial intelligence, in order to realize the transformation of the effect of adjudication from “visible justice”―“expressing justice”― “acceptable justice”, the Supreme People’s Court of China proposed a new model of legal application based on the “retrieve system for similar cases” and supported by “brain-like intelligence technology”. However, due to the lack of innovation in legal methodology adapted to the big data of similar cases, judges still make legal discovery and “legal interpretation and reasoning” based on the small data. However, the wisdom of the legal community extracted on the basis of big data is difficult to have a substantial impact on the judge’s testimony from the level of legal methods. This makes the retrieval system of similar cases into a “chicken rib”. In order to fundamentally reverse the current problems of unclear methods of legal discovery and the ineffectiveness of the retrieval system for similar cases, it is urgent to stimulate the potential of big data technology. That is to say, through the transformation of the underlying thinking paradigm, a new mode of legal discovery is constructed, and then the efficiency of the retrieval system for similar cases is fully released. This paper adheres to the theory of “technology-institutional co-evolution” and follows the approach of “What (meaning of new legal discovery)-Why (value of new legal discovery)-How (implementation of new legal discovery)”. At the same time, this paper adopts the research methods such as the comparison of the principles of legal discovery in the two legal systems and the empirical analysis of the normative documents of the judiciary. The new model of legal discovery is based on the retrieval system of similar cases. After realizing the intelligent identification of similar cases with the help of big data, the “common factors” of similar cases are extracted through the comparison of types. Then, through the two-way communication between the abstract norm and the pending facts, the process realizes the finalization of specific specifications within the scope of the semantic range of the abstract norm. This model is conducive to unifying the standards for the application of the law and facilitates the same judgment in similar cases. In order to implement this model and improve the level of intellectualization in legal discovery, the main body of the retrieval report for similar cases should be changed from “the judge's individual combat” to “the coordinated attack of the judge + judge's assistant + lawyer”. After reducing unnecessary restrictions on starting conditions, the search is carried out for all valid cases. Next, the process of judging the similarity of similar cases is included in the presentation content of the retrieval report of similar cases. At the same time, the ranking of similar cases is based on “similarity of similar cases”, supplemented by “level of effectiveness”.

论医疗人工智能损害责任的承担

张光君,李宗兴 원광대학교 법학연구소 2018 의생명과학과 법 Vol.20 No.-

With the rapid development of artificial intelligence technology, this technology has been applied to all aspects of daily life. In the medical field, it has begun to specifically provide doctors with advice in the treatment to reduce the burden on doctors. A number of medical artificial intelligence has been approved at home and abroad to be legally involved in medical practice. However, every advancement in technology will bring great challenges to the legal system. On the one hand, it must ensure that human beings enjoy the dividends brought about by technological advancement, on the other hand, they must prevent the abuse of technology and ultimately become a tool for harm. In the face of damage caused by medical artificial intelligence, it should accurately determine its legal status and establish a reasonable way of responsibility to better distribute risks. This paper combines domestic and foreign relevant legislation to analyze the problems and deficiencies of the existing system, and to clarify the status of medical artificial intelligence to establish the responsibility of the damage caused by medical artificial intelligence. In the end, some suggestions for establishing a medical artificial intelligence supporting system were put forward to build a complete medical artificial intelligence standard system. 医疗人工智能具有提高诊疗准确性、弥补人力资源不足、拓宽医疗服务领域和提高疾病预防效果等方面的优势,是中国人工智能发展战略的重点领域。就目前而言,各国对于医疗人工智能的监管主要还是适用于先前的医疗器械监管体系,借此允许医疗人工智能投入使用,而对医疗人工智能造成的医疗损害仍旧应用医疗产品损害责任。医疗人工智能的迅猛发展,已经突破了人们对于“医疗器械”这一概念的传统认知,因此,原有的法律体系也面临着极大的挑战。例如,人工智能因为可以自我编程,极有可能在投入使用时不存在问题,但是在实际使用中自我编程因而造成损害,可能导致厂商根据产品责任免责,最终导致没有任何责任承担主体;再如,在医疗人工智能参与的治疗行为中,如果仅将其视为提供辅助建议,无疑会减轻人工智能生产厂商的责任而将这种承担责任的风险过分地施加在医生身上。 应当在明确医疗人工智能在医疗法律关系中的地位之后,根据医疗人工智能在医疗行为中的参与程度和参与方式,区分其责任主体和归责原则,从而完善医疗人工智能损害责任的承担方式。具体路径是:主体上,应当主要坚持以生产商为最主要的责任承担主体,对其实行无过错责任的归责原则;对于医疗机构,则不能过多地增加其负担和风险,因为医疗人工智能技术本身就是为了缓解医疗机构的压力,确保患者得到更高水平治疗而存在的。在程序设计上,受害患者不应在医疗机构就近选择医疗机构承担产品责任,而应当直接主张生产商承担产品责任;如果医疗机构确实存在过错的,患者也可以直接要求医疗机构赔偿,或者在生产商承担产品责任后,再向医疗机构追偿。

The New Generation of Information Technology Supports Legislative Modernization: The Goals, Strategies and Paths

张光君,张翔 원광대학교 한중관계연구원 2020 韓中關係硏究 Vol.6 No.2

The rule of law is the basic way of governing the country, legislation is the core of the rule of law, and the modernization of legislation is the important foundation of the modernization of the national governance system and governance ability. However, under the traditional legislative model, the time and cost to collect legislative information are long, the ability to analyze and deal with legislative information is poor, and the efficiency is low. The effect to reflect the social situation and public opinion and to lead the social development in the whole process of legislation is not good enough, and the level of scientific and democratic legislation is not high enough, which leads to passive, inverted and cursory legislation. The ability to collect, analyze and process legislative information has become a key factor to block the process of legislative modernization. In today’s world, the Internet, big data, artificial intelligence, blockchain and other new generation of information technology have been booming, showing the trend of cross-border integration, group intelligence opening, and human-computer cooperation. They have great potential in the field of legislation. They can truly, timely, systematically and effectively gather and feed back the opinions and behavior information of the people, so that the people can realize the intelligent preservation of private freedom and public democracy in every legislation. However, at present, their application scope in the field of legislation is narrow, their application stage is few and their application level is low. The legislation Internet Ecosystem and legislation big data platform needed in the whole process of collecting, analyzing and processing legislation information have not been effectively constructed. The role of legislation knowledge map and legislation blockchain technology has not been fully appllied. Their strategies and paths to support the modernization of legislation need urgent consideration on giving response. Based on the concept of the integration of scientific rationality and legal rationality, this paper firstly defines the intelligent preservation of private domain freedom and public domain democracy as the goal of the new generation of information technology integration and support of modern legislation from the semantic analysis of “legislative modernization”; secondly, it analyzes the performance form, chronic causes, and application of the traditional legislative models which are passive, inverted and cursory. The new generation of information technology promotes the optimization of modern legislative principles and the transformation of traditional legislative model to preventive, step-by-step and precise legislative model. Finally, this paper expounds the optimization plan of the new generation of information technology to support legislative modernization from two aspects of legislative methods and legislative procedures, with a view to improve the quality and establish legislation by applying the new generation of information technology actively and steadily to the legislature. The efficiency of law, the scientific level of legislation and the degree of democratization are helpful.