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Contents: Volume 4 of the collection of Shanghai law research, 2022

Time : 09/08/2022 Author : ht9ak8 Click : + -
        In order to further promote the dissemination and application of academic research achievements in law and law, since 2019, the Shanghai law society and the China knowledge network have strategically cooperated to publish the collection of Shanghai law research online. Each year, it publishes a large-scale original academic library of law and law with a scale of 24 volumes and 10 million words. The full text of China knowledge network is included, and can be queried and downloaded online. The collection of Shanghai law research presents the annual high-quality and distinctive content production of the legal circle. Up to now, more than 3000 articles in all 72 volumes in 2019, 2020 and 2021 and 1-12 volumes in 2022 of the collection of Shanghai legal research have completed the editing task, and 2535 articles have been launched on the full text of China HowNet 10000 times.
 
        Developing and providing "machine changing software" with the function of tampering with mobile phone string code and other data constitutes the crime of providing programs and tools for invading and illegally controlling computer information system. Content abstract: the rapid development of cross-border e-commerce needs a stable and good legal environment, while the cross-border e-commerce sales contract has the characteristics of cross-border, fictitious, the immediacy of meaning expression and the validity of format contract, which hinders the application of traditional jurisdiction standards. In addition, there are no uniform legal rules at home and abroad to regulate and provide solutions for such special contract disputes. In view of this kind of Judicial Dilemma, we can consider from the perspective of focusing on the protection of the legitimate rights and interests of consumers, and improve the establishment rules of jurisdiction in China.
 
        Content abstract: the consumption mode of online transaction on e-commerce platform provides great convenience for consumers, meets their personalized consumption needs, and optimizes the consumption experience. However, the online transaction mode has the natural characteristics of the virtual identity of the buyer and the seller, high mobility and asymmetric transaction information, which easily leads to the problems of high cost and low efficiency of consumer rights protection. In order to protect consumers' rights and interests, all major e-commerce platforms have established their own consumer rights and interests protection rules according to law. By systematically sorting out the consumer rights and interests protection rules of mainstream e-commerce platforms, this paper analyzes the innovation system in the legal theory, and further analyzes its value and role in the governance of e-commerce platforms, with a view to providing reference for consumer rights and interests protection in the field of e-commerce.
 
        Key words: e-commerce platform consumer rights protection rules consumer compensation system online transaction mode transaction information asymmetry consumer rights protection. Authors: Zhao Chao (judge of the civil trial court of Shanghai Higher People's court), Zhou Quanquan (judge of the commercial (Internet) trial court of Shanghai Changning District People's court), sun Pengcheng (judge assistant of the commercial (Internet) trial court of Shanghai Changning District People's court). Content summary: e-commerce platforms are different from traditional social platforms or content platforms in terms of legal relations and liability bearing methods. It is necessary to fully consider the trend of the market's sustainable development and the diversity of transaction types, and then judge the legal status and scope of liability of a certain type of platform on the premise of comprehensively investigating its specific transaction mode and the main legal relations involved, Focusing on the four difficult issues of qualification examination and verification, data and information preservation, security obligations and improper conduct directly implemented by the platform, we should improve the specialized legal system at the legislative level, strengthen the timeliness of rules and case guidance at the judicial level, and improve the multi-dimensional governance pattern at the platform governance level.
 
        Content abstract: the practice of the electronic service procedure in courts around the country has proved that it is a system worthy of promotion. Whether from the pursuit of efficiency value or from practical experience, it plays a positive role in improving judicial efficiency. Therefore, it is necessary to apply the electronic service. However, in practice, we still need to solve the problem of legality, the construction of consent rules and pay attention to the possible adverse consequences of forced promotion. The establishment of a unified electronic service platform and the introduction of the party service system to further improve the electronic service procedure can reduce the service pressure of the court and pay more attention to the difficult cases. Author: research group of Shanghai Changning District People's Court (subject Moderator: Mi Zhenrong, Secretary of the Party group and President of Shanghai Changning District People's court.
 
        Participants: Jin Lianhong, member of the Party group and vice president of Changning District People's court; Sun Haifeng, vice president of the trial supervision Court (Trial Management Office and Research Office) of Changning District People's court; Li Xuying, assistant judge of the trial supervision division (Trial Management Office and Research Office) of Changning District People's court; Xu Haifeng, assistant judge of the Executive Bureau of Changning District People's court). Content abstract: the Internet has brought profound changes in all aspects to mankind. It is not only an important help to promote economic and social development, but also a new requirement for the construction of the rule of law and a new challenge to judicial work. At present, the discussion on Internet trial needs to break away from the technical paradigm, and expand from a single "Internet dispute trial" to a three-dimensional discussion integrating judicial values, concepts, rules, mechanisms and technologies.
 
        First of all, starting from the actual needs and background of the development of Internet trial, it comprehensively analyzes the new needs of judicial work under the internet background and the current situation of Internet justice under the global perspective. Secondly, it focuses on the analysis of the current situation and problems of Internet trial in terms of framework construction, litigation rules, substantive rules, and litigation platform construction. Finally, the paper expounds the construction of Internet trial integration, including the construction of an Internet trial mode with complete layout and orderly operation; Build a standard, efficient and process reengineering Internet litigation rules; Build value oriented and rule-based Internet space governance rules; We will build a full process integrated litigation platform with high efficiency, good experience and strong interaction, with a view to putting forward constructive suggestions and accumulating practical experience for the trial of Internet related cases in Shanghai and even the whole country.
 
        Authors: Liu Yaling (president of the civil trial division of Shanghai Changning District People's court), Dong Jun (vice president of the civil trial division of Changning District People's court), Wang Lu (judge of the civil trial division of Changning District People's court); Rao ting (assistant judge of civil trial division of Changning District People's court). Content abstract: with the rapid development of Internet technology, people's communication in social life is becoming more and more electronic, and electronic evidence is becoming an important form of evidence in civil litigation. With the popularity of wechat in mobile phone applications, wechat evidence has gradually entered the judicial field of vision and is widely submitted as evidence in various civil cases. This kind of evidence has the characteristics of immediacy and reproducibility, which facilitates the identification of the facts of the case and the identification of the legal relationship during the trial.
 
        However, in the review of specific cases, it is found that the identification of wechat evidence is difficult, the evidence is difficult to be fixed, the proof ability is weak, the screening means are few, and the proof effect is low. Although some attempts have been made in practice, no clear and unified rules have been formed. How to identify the evidence ability of wechat evidence and judge its proof force has become an urgent problem in judicial practice. Based on the current situation of wechat evidence recognition in civil litigation, this topic aims at the relevant provisions in the civil procedure law, evidence rules and other laws and regulations, refers to the recognition rules of electronic evidence in the criminal field and Internet courts, investigates the legislation and practice of the admissibility of electronic evidence outside the territory, and discusses the construction path from the four aspects of evidence rules, litigation platform, technical support and regulatory mechanism, With a view to putting forward concrete and operable plans for the establishment of wechat evidence identification rules in judicial practice.
 
        Content abstract: the authentication of physical evidence requires that the identity of the whole process from the extraction to the presentation of evidence be recognized, which is the pre screening procedure for the examination of the authenticity, legality and relevance of evidence. In electronic evidence, electronic data and storage medium are divided, so it has the characteristics of dichotomy of authentication objects, emphasis on the identification of evidence contents in authentication direction, and multiple links in authentication requirements. Based on the dependence of Electronic Evidence Authentication on specific technologies, it is necessary to flexibly apply technologies such as mirror copy and digital fingerprint on the basis of traditional authentication methods such as "uniqueness confirmation" and "custody chain proof" to achieve the substantive review effect of authentication. Content abstract: for a long time, the review of electronic evidence focuses on its authenticity, and the research on relevance is less.
 
        At the beginning of the emergence of electronic evidence, it is possible that it can be easily deleted without trace. However, with the emergence and application of new technologies such as hash value verification and blockchain, the authenticity of electronic evidence has been greatly guaranteed. In contrast, the development of big data has weakened the relevance of electronic data, and information explosion has caused a large number of unrelated data to flow into litigation; Therefore, it is imperative to strengthen the examination of the relevance of electronic evidence. However, there are few guidelines on how to examine the relevance given by the current law. It is necessary for judges to judge the dual relevance of the content and carrier of electronic evidence by using logical reasoning and technical review in combination with the case situation. Content abstract: as a form of financial innovation, P2P network loan platform has developed rapidly in China in recent years.
 
        The P2P online loan platform not only broadens the financing channels of small and medium-sized enterprises, but also makes the idle funds in the society more rationally distributed. However, due to the lack of specific legal basis and perfect regulatory measures, there are legal risks of suspected criminal crimes in the operation of the platform. This paper analyzes the shortcomings of the criminal law regulation of the P2P online loan platform from the aspects of the development status, operation mode and criminal law regulation of the platform, and explores how to properly regulate the criminal law of the platform, so as to achieve a balance between promoting financial innovation and maintaining financial order. Authors: Hong Dongying (Professor and doctoral supervisor of Law School of East China University of political science and law), Liu Dong (Lecturer of Law School of East China University of political science and law), Qiu Shuxue (doctoral student of Law School of East China University of political science and law), Yin Xiong (Master student of Law School of East China University of political science and law), Xie Zenan (Master student of Law School of East China University of political science and law).
 
        Content abstract: "Internet +" gave birth to the internet civil trial and opened a new era of litigation and mediation. The internet civil trial in the connection of litigation and investigation should clarify the three value pursuits of litigation efficiency, procedural justice and serving the people. According to relevant legal documents and judicial practice, internet civil trial includes online mediation, online litigation and mediation docking, online trial and electronic service. The internet civil trial in the connection of litigation and investigation conforms to the needs of the separation of complicated and simple civil procedures, and saves judicial resources while improving the efficiency of handling cases. However, there are inevitably some difficulties in the judicial practice that restrict the development of the internet civil trial. Therefore, it needs to be improved from the three levels of litigation jurisprudence, litigation system and Internet technology to promote the shaping of panoramic Internet justice.
 
        Authors: Mao Haibo (vice president of commercial trial division of Shanghai First Intermediate People's court), Wu Huiqiong (judge of commercial trial division of Shanghai First Intermediate People's court), Liang Chunxia (judge assistant of Shanghai First Intermediate People's court). Content summary: according to the degree of specific operation or participation of the network platform, it can be divided into three categories. In specific cases, it is necessary to avoid overly demanding the legal obligations of the network platform. According to the legal acts engaged in by the network platform, it is necessary to make a specific judgment in each specific legal rights and obligations relationship, determine the legal liabilities it should bear, and correctly apply the safe haven principle, alternative liability and direct tort liability for different platform types.
 
        Authors: Sheng leiming (vice president of China Lawyers Association), Wang Yuwei (partner lawyer of Beijing Guantao Zhongmao (Shanghai) law firm), Wang Tao (director of meituan home legal center in East China), Wang Hui (Associate Professor of Law School of Shanghai Maritime University), Chen Kun (lawyer of Beijing Guantao Zhongmao (Shanghai) law firm), Li Sixiao (lawyer of Beijing Guantao Zhongmao (Shanghai) law firm). Content abstract: web crawler technology has been widely and mature applied to various business models and application scenarios, and will be the most commonly used means of obtaining network data at present and for a long time in the future. Web crawler technology promotes the efficient circulation of network data, but it also brings legal problems and contradictions, affecting the rights and interests of natural person information subjects, crawler technology users and crawled enterprises.
 
        At present, there have been a number of cases involving network crawler technology at the judicial level, which can be divided into four types of cases: unfair competition cases, intellectual property infringement cases, personal information infringement cases and computer information system security infringement cases. Civil rights and interests disputes and criminal cases involving web crawler technology are gradually increasing, but it is a current judicial problem to distinguish the legal use of web crawler from illegal and criminal cases. It is particularly important to improve the judgment basis and judgment concept of the judicial application of web crawler technology. Content abstract: unstable property: the property law in the sharing economy, through analyzing the changes in consumption patterns caused by a series of factors such as social economy and cultural concepts, especially the impact of the sharing economy, draws the conclusion that the stability of property use is impacted and the flexible new form of property use is gradually welcomed.
 
        In view of the property flexibility with normative prospects in the book, it analyzes the impact of the traditional property theory on the stability of property in the Anglo American legal system and China, the content of "visit" as an alternative to the traditional form of property use, and the most flexible form in the development of access economy & mdash& mdash;& mdash; The author puts forward his own suggestions on the legal reform needed by the peer-to-peer market. Content abstract: in recent years, the monopoly in the Internet field has the characteristics of "natural monopoly attribute", "user lock-in effect" and "bilateral market situation". The policy objectives of the Internet industry conflict with the regulatory objectives of the anti-monopoly law. The traditional trial mode is difficult to adapt to the Internet development mode, and the identification of illegal acts in the new transaction mode is difficult, which leads to certain difficulties in the application of China's anti-monopoly private enforcement mechanism in the Internet field.
 
        Through comparative analysis, it is found that the private enforcement mechanism of Internet antitrust in the United States has problems such as abuse risk and imperfect specific rules. However, the measures taken by the United States to strengthen public enforcement, improve specific rules and strengthen professional personnel law enforcement are worth learning from. China should adhere to the dual mechanism of paying equal attention to public implementation and private implementation, improve relevant laws and regulations, and improve the judicial professionalism of anti-monopoly, so as to optimize the private implementation mechanism of Internet anti-monopoly. Content summary: e-commerce platforms usually provide "order quick refund" service. Some merchants settled on the platform use the flash back rules of such platforms to create false orders and create false returns to cheat the refund paid by the platform.
 
        The actor falsely set up a large number of transactions and applied for refund, causing the e-commerce platform to fall into the wrong understanding that the relevant order has applied for refund and the applicant has delivered the goods by mail. Based on this wrong understanding, the e-commerce platform will advance the relevant refund in advance, and the actor thus realizes the purpose of maliciously obtaining the refund money advanced by the e-commerce platform. The perpetrator, for the purpose of illegal possession, fabricates facts, conceals the truth, and swindles the property of the victim, which conforms to the constitutive requirements of the crime of fraud and should constitute the crime of fraud. At the same time, it should be further clarified that this behavior pattern does not meet the constitutive requirements of the crime of contract fraud. The crime of contract fraud emphasizes the relationship between the fraud and the contract. The actor needs to use the signing or performance of the contract to make the actor get into a wrong understanding. The property obtained by the actor should also meet the requirements of the contract related property.
 
        2. The crime of developing and providing "machine changing software" with the function of tampering with mobile phone string codes and other data constitutes the crime of providing programs and tools for invading and illegally controlling computer information systems if the circumstances are serious& mdash; Xu and others provided programs and tools for invading and illegally controlling computer information systems. Author: Chen Bing (judge of the criminal trial division of Shanghai First Intermediate People's court), Liu Huafeng (former vice president of the criminal trial division of Shanghai Changning District People's court). Content summary: the first paragraph of article 285 of the criminal law stipulates the crime of illegally invading the computer information system, the second paragraph stipulates the crime of illegally obtaining the computer information system data and illegally controlling the computer information system, and the third paragraph stipulates the crime of providing programs and tools for invading and illegally controlling the computer information system
 
        
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