The first issue of law papers in 2020
1. The promotion of the administrative punishment law to the reform of supervision system by law
Liu Yanhong, Liu Hao, School of law, Southeast University
[Abstract] it is an important link to formulate the special legislation of administrative punishment to promote the connection between discipline and law, and to complete the goal of deepening the reform of supervision system in an all-round way. The "administrative punishment law" has the function of inheriting party rules and disciplines before criminal laws, and its formulation effectively promotes the legalization and standardization of administrative punishment. On the one hand, the administrative punishment law reduces the resistance of "the connection of law and law" by building a strict network of punishment laws for duty violations and a perfect system of anti-corruption norms under the rule of law. On the other hand, the administrative punishment law helps to further clarify the relationship between the party discipline and the national law, and fully applies the "four forms" of supervision and discipline enforcement to the practice of anti-corruption under the rule of law, effectively promoting the "convergence of discipline and law".
Keywords: administrative punishment; supervision system reform; punishment for duty violation; law and law connection; discipline and law connection;
Fund: supported by the "blue and blue project" of Jiangsu University and the fifth "333 project" of Jiangsu Province, the research on the legalization path of the rights operation mechanism of the supervision organ (bra2019042);
2. The structural deficiency and reconstruction of the supervision compulsory measure system in the supervision law
Wei Changdong Institute of law, Shanghai Academy of Social Sciences
Abstract: the power of supervision and investigation is one of the important functions of the power of supervision in the country with Chinese characteristics. There is a lack of prudence in the legislation of supervision compulsory measures in the supervision law, which leads to many theoretical and practical dilemmas in the operation of supervision and investigation power: Supervision lien has the nature of custody, but it is defined as a means of investigation and evidence collection by legislators, which actually violates the basic principles of litigation; supervision and investigation lacks the legal function of compulsory case, which leads to the obstacles in the discovery of duty violations and criminal acts; It is not in line with the legal concept of human rights protection, but also will consume the limited litigation resources of the country. In this regard, we should learn from the provisions of the criminal procedure law in a consistent way, build a "gradient" system of supervision compulsory measures, and increase the types of "prohibited practice" compulsory measures.
Keywords: Supervision and investigation right; supervision compulsory measures; lien; system reconstruction;
Fund: the phased achievement of the major project of National Social Science Foundation of China "Research on major theoretical and practical problems in the construction of national legislation system against corruption with Chinese characteristics" (17zda135);
3. Jurisprudential interpretation and realization path of "discipline law connection" in supervision system reform
Xia Wei College of criminal justice, China University of political science and law
Abstract: Taking the reform of the supervision system as the boundary, the relationship between the party discipline and the national law has gone through the transition process from "separation of discipline and law" to "connection of discipline and law". The anti-corruption of the rule of law can not only rely on the national law, because the vacancy of the law determines the timeliness of corruption prevention and the incompleteness of corruption governance; and the open structure of the law has laid a legal foundation for the acceptance of Party discipline in the national law and the common service to the anti-corruption practice of the rule of law. Under the premise of adhering to the concept of anti-corruption under the rule of law, making full use of the advantages of Party discipline resources accumulated in the process of anti-corruption practice with Chinese characteristics and promoting the "convergence of discipline and law" are the important objectives of the comprehensive deepening stage of the reform of the supervision system. In the sense of anti-corruption under the rule of law, there is no comparability between the party discipline and the state law. Therefore, it is a false proposition to emphasize that "the party discipline is higher than the state law" or "the state law is higher than the party discipline". To give full play to the function of Party discipline and national law in the anti-corruption of the rule of law, we must take them as the basic materials to build systematic anti-corruption rules of the rule of law.
Keywords: supervision system reform; discipline law connection; rule of law anti-corruption; rule systematization;
Fund: supported by China University of political science and law young teachers' academic innovation team support program;
4. On the application of supervisory jurisdiction system and its improvement
Qian Xiaoping Law School of Southeast University
[Abstract] the supervisory jurisdiction has the generative logic adapted to the reform of supervisory system. In practice, there are some problems in the supervision jurisdiction, such as the generalization of jurisdiction scope, the insufficiency of jurisdiction ability and the dislocation of jurisdiction connection, which reflect the hidden worries of the rule of law in the supervision Priority Doctrine formed in the process of supervision system reform. In order to prevent the transition from supervision priority to supervision centralism, we should establish the principles of supervision according to law, procedure coordination, procedure modesty, duty division and right guarantee, amend supervision priority, and take this as the guidance, reasonably shrink the jurisdiction charges of supervision organs, establish the differentiated jurisdiction mode of duty crimes, and establish the specific rules of jurisdiction transfer, We should make clear the exception rules of the case division jurisdiction, strictly apply the conditions of the case combination jurisdiction, and promote the systematic improvement of the supervision jurisdiction system.
Keywords: supervisory jurisdiction; applicable problems; perfect countermeasures;
Fund: Research on major theoretical and practical issues of anti-corruption national legislation system with Chinese characteristics (17zda135), outstanding mathematics team of "blue and blue project" in Jiangsu University, and phased achievements of central basic business funding project (2242019s30012) of Southeast University;
The second issue of law papers in 2020
1. The value attribute and privacy risk of artificial intelligence in the treatment of major epidemic
Yan Li; Wu He Qi; Shanghai College of political science and law; School of law, Shanghai University of Finance and economics;
[Abstract] the introduction of relevant national policy documents has laid a solid policy foundation for the rapid development of China's medical artificial intelligence. In the process of major epidemic control, the artificial intelligence based on medical big data can not only improve the accuracy of diagnosis, alleviate the plight of the shortage of medical staff, but also reduce the risk of infection of medical workers. However, due to the nature of the invasion of personal privacy in the operation of artificial intelligence, the criminal law path to reflect on the protection of personal privacy in the era of artificial intelligence should also be synchronized with the governance of major epidemics. In our criminal law, there are no legal provisions that take the right of privacy as an independent object. The existing protection of the right of privacy is attached to the protection of the order of market economy, the personal rights and democratic rights of citizens, and the order of social management. However, there are defects in the system design of personal privacy protection under this system. In view of the malpractice, the construction of the criminal law path of personal privacy protection should first take the reasonable definition of personal privacy under the background of big data as the logical premise, stand on the position of risk prevention and interest balance, not define the boundary of privacy from a static perspective, and then carry out the specific design of the criminal law path of personal privacy protection.
Key words: major epidemic management; big data; artificial intelligence; privacy risk;
[Fund] research achievements supported by the special fund for basic scientific research business expenses of Central University (2018110301)
2. Should it be a legal obligation to report a crime? -- Based on Article 108 of the Criminal Procedure Law
Guo Zhong; School of administrative law; Southwest University of political science and law;
[Abstract] the current criminal procedure law does not set up the reporting obligation properly. From the perspective of the social function of reporting, although reporting has the important function of maintaining the operation of legal system and building institutional trust, it inevitably has the cost of destroying interpersonal trust. When reporting becomes a legal obligation, the informer is also encouraged, and the actor can transfer his moral responsibility to the law, which may promote the emergence of the "informer problem". Fundamentally speaking, the obligation to report is the product of the order mode of "morality comes from law". It neglects the due status of the social self generated moral order and the basic needs of human nature for the sake of the absolute maintenance of the legal system. Only when we regard the report as a right, can it be more conducive to the cultivation of human nature and the growth of individual moral consciousness.
[Key words] reporting obligation; moral responsibility; whistleblowing; trust;
[Fund] research results of the national social science fund major project "Research on the integration of socialist core values into grassroots social governance" (17vhj006)
1. Journal of Nanjing Normal University (SOCIAL SCIENCE EDITION); 2. Organizer: Nanjing Normal University; 3. Issue: bimonthly; 4. Place of publication: No.122, Ninghai Road, Nanjing; 5. Email: wkxb@njnu.edu.cn