economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 172 original paper analysis of the review criteria for obviously improper administrative acts zhenyang ren 1 1 school of marine law and humanities, dalian ocean university, dalian, china received: september 10, 2025 accepted: september 26, 2025 online published: september 28, 2025 doi:10.22158/elp.v8n2p172 url: http://dx.doi.org/10.22158/elp.v8n2p172 abstract due to the expansion of the power of administrative organs, their discretionary power has also increased. this phenomenon has led to frequent abuse of power by administrative organs and unfair handling of cases, and the frequency of such situations is still rising, showing a trend of getting worse and worse. this not only seriously infringes on the legitimate rights and interests of the administrative counterparts, but also greatly undermines the credibility of administrative organs, bringing extremely adverse effects to the entire administrative management system. “manifestly improper” as a means in judicial review, its core goal is to ensure that the administrative acts of administrative organs are both reasonable and legal. the current administrative litigation law together with its judicial interpretations have not provided a clear definition of what constitutes an “manifestly improper” administrative act. this article aims to establish a set of scientific and reasonable judicial review standards to accurately identify and effectively regulate. keywords manifestly improper, judicial review standard, administrative discretion 1. introduction in modern rule-of-law society, the power of administrative organs is constantly expanding, and discretionary power is also increasing accordingly. however, this expansion of power has brought about problems such as abuse of power by administrative organs and unfair handling of cases, which seriously infringes on the legitimate rights and interests of administrative counterparts and undermines the credibility of administrative organs. to address this issue, “manifestly improper” has been introduced as an important means of judicial review, with its core goal being to ensure the rationality and legality of administrative acts. however, the current administrative litigation law and its judicial interpretations still have an unclear definition of 'manifestly improper’ administrative acts, leading to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 173 published by scholink inc. many controversies and uncertainties in judicial practice. this affects the quality and efficiency of judicial review and also brings difficulties to the protection of the rights and interests of administrative counterparts. therefore, this article focuses on the review standards for “manifestly improper” administrative acts, aiming to accurately define its concept and improve the judicial review standards. starting from the concept and legal basis of “manifestly improper” administrative acts, it analyzes its review standards, existing problems, and proposes improvement paths. by establishing a scientific and reasonable review standard, the article expects to effectively curb unreasonable administrative acts, ensure that administrative organs exercise their discretionary power fairly, provide clear guidance for judicial organs, improve the quality of judicial review, protect the rights and interests of administrative counterparts, and promote the construction of a rule-of-law society. 2. the concept and legal basis of manifestly unlawful administrative acts an obviously improper administrative act refers to an administrative act by an administrative organ that clearly exceeds the statutory authority, has unclear factual determination, violates the principle of proportionality, and violates the due process. professor jiang ming’an defines “obviously improper” administrative acts as administrative acts made by administrative organs that are obviously unreasonable and unjust, which can be identified by any person with general legal awareness and moral standards. zhou youyong believes that the main characteristics of “obviously improper” administrative acts are that although the administrative acts implemented by administrative organs and their staff do not violate the prohibitive provisions of laws, they are obviously unreasonable or do not meet the requirements of justice. cao sheng holds that the criteria for determining “obviously improper” should be determined with reference to “abuse of power” and “manifest injustice”. it is not only necessary to conform to the textual provisions of laws but also to conform to the principles and spirit of laws. it should not only have no obvious illegality but also no hidden illegality (shi, b., & cao, s., 2016, pp. 24-28). in china’s legal system, the legal basis for the concept of “manifestly improper” mainly comes from the following provisions of the administrative litigation law and the administrative reconsideration law: article 70(6) of the administrative litigation law stipulates that when people’s courts review administrative acts, if they find that such an act is manifestly improper, they have the authority to declare the administrative act invalid or partially invalid, and may require the administrative organ to make a new decision. article 28(1)(3) of the administrative reconsideration law explicitly states that during the reconsideration process, if the administrative reconsideration organ determines that a specific administrative act is “manifestly improper”, it has the authority to revoke, amend, or declare such an act invalid. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 174 published by scholink inc. 3. review standards for manifestly improper administrative acts 3.1 principle of proportionality the principle of proportionality holds an important position in the constitutions and laws of many countries. in china, although the legal provisions do not directly mention the principle of proportionality, this principle is reflected in the administrative litigation law and related judicial interpretations. it requires courts, when reviewing administrative acts, to assess whether such acts comply with the principle of proportionality. generally speaking, the basis for courts to determine a violation of the principle of proportionality is usually that the handling result does not conform to the principle of proportionality between offense and penalty, causing excessive damage or adverse effects, the penalty amount and degree being disproportionately heavy, and no choice of the most favorable way for the party (liu, q., 2019, pp. 100-101). 3.2 principle of due process as the cornerstone of a rule-of-law society, the principle of due process originated from the natural justice principle in the united kingdom. with the continuous deepening of china’s rule-of-law construction, the principle of due process has been adopted by an increasing number of laws and is reflected in practice. this principle requires administrative organs to disclose relevant information when making decisions, including the basis, process, and results of the decision. the improvement of transparency not only helps to enhance the public’s trust in administrative actions but also effectively prevents corruption and improper conduct. therefore, the design of administrative procedures should pursue efficiency while also considering convenience for the people. 4. problems with the review criteria 4.1 scope of application is not clear within the framework of legal regulation, using the standard of manifestly inappropriate as a criterion for evaluating administrative actions is a moderate way to restrict the power of administrative agencies. this approach is more lenient and tolerant than other stricter and more adversarial standards, which can reduce direct conflicts with the administrative department and promote a more friendly relationship between the administrative and judicial departments. it encourages more dialogue and cooperation, which is beneficial for resolving administrative disputes. judges adopt the standard of manifestly inappropriate to review and modify administrative decisions when resolving disputes in order to respect the authority of the administrative department. compared with standards focusing on insufficient evidence, incorrect application of law, or procedural errors, this term is more diplomatic, less confrontational, and more acceptable to administrative entities. judges tend to adopt this standard (yu, l. y., 2022, pp. 153-154). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 175 published by scholink inc. 4.2 criteria for judgment are not unified so far, the academic and practical circles have not reached a consensus on the definition of obviously improper standards. in judicial practice, when judges assess whether an administrative act constitutes obvious impropriety, they usually take into account various factors comprehensively. these factors include, but are not limited to, the accuracy of factual determination, the correctness of legal application, the compliance of procedures, and the rationality of administrative discretion. for example, in terms of factual determination, judges will check whether the administrative organ made a decision based on sufficient and reliable evidence, and whether such evidence is sufficient to support its conclusion. if the administrative organ ignores key evidence or misinterprets the evidence, this may be considered as obvious impropriety. in terms of legal application, judges will evaluate whether the administrative organ correctly understands and applies the relevant legal provisions. if the administrative organ’s legal interpretation is contrary to the legislative spirit or judicial interpretation, or if its way of applying the law leads to an unreasonable result, this may also be deemed as obvious impropriety (huang, x. j., 2023, pp. 101-102). 5. improvement path of review standards 5.1 define the scope of application the most important thing in defining the scope of application is to distinguish between clearly improper and mainly insufficient evidence. define the boundary between manifestly inappropriate and insufficient principal evidence. this can be distinguished based on several key points. first, the sufficiency of evidence is an important consideration. insufficient principal evidence refers to the situation where the evidence relied upon by the administrative organ when making an administrative decision is insufficient to effectively support the facts on which the decision is based. if the factual determination is vague or erroneous due to the lack of key evidence, this constitutes insufficient principal evidence. the core of this standard lies in ensuring the accuracy of factual determination, requiring that the collection, preservation, and adoption of evidence must strictly follow the explicit legal provisions to maintain its integrity and legality. in contrast, manifestly inappropriate not only involves issues of evidence sufficiency but also extends to broader rationality issues such as whether the administrative organ maintains impartiality when performing its duties, whether it has fully considered all relevant factors, and whether the means taken are in line with the principle of proportionality. even if the evidence is sufficient, if the administrative act has obvious irrationality or unfairness in other aspects, it may still be deemed manifestly inappropriate. secondly, legal basis and judgment criteria are also key to distinguishing between the two. when the law’s provisions on legislative intent are not clear, the requirement of insufficient principal evidence necessitates that administrative organs conduct a comprehensive assessment based on the original intention, background, overall spirit of the law, and the connection between its articles. if there is a mistake in this assessment process leading to an error in factual determination, such an error should be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 176 published by scholink inc. classified as insufficient principal evidence. on the other hand, manifest impropriety involves discretion regarding legal requirements, including whether it violates the principle of proportionality, the principle of equality, and administrative discretion benchmarks, etc. if the administrative organ’s discretionary act violates these principles, even if the factual determination itself is correct, it may still be deemed manifestly improper. through these distinctions, the boundaries between manifest impropriety and insufficient principal evidence can be more clearly understood, thereby enabling more accurate application of relevant standards in judicial practice. such clear distinction helps improve the accuracy of judicial review and ensures the legality and rationality of administrative acts (he, h. b., 2016, pp. 76-77). 5.2 use basic principles as a unified standard for judgment when establishing the review standard for whether an administrative act constitutes “manifestly improper”, the article argues that a series of basic principles should be used as the core basis, which is consistent with the mainstream view in academia. applying these basic principles to the review process requires the following steps: first, we must clarify the basic principles, namely the principle of lawful administration and the principle of reasonable administration, which form the cornerstone of the review. the principle of lawful administration requires that administrative acts must be based on explicit authorization by law and strictly comply with legal requirements. the principle of reasonable administration, on the other hand, requires that administrative acts within the scope of discretionary power should be reasonable and fair. the principle of reasonable administration can be further subdivided into the proportionality principle, the equality principle, and the principle of due process, which provide clear operational standards for judging whether an administrative act is “manifestly improper”. second, there is the issue of applying these principles. the proportionality principle is used to evaluate the rationality between administrative means and purposes, involving three levels: the legitimacy of the purpose, the appropriateness of the means, and the principle of minimizing harm. courts need to assess whether the measures taken by the administrative organ are consistent with the legal purpose and legislative spirit, whether they are necessary to achieve the goal, and whether the path with the least damage to the parties’ rights and interests has been selected. at the same time, the application of the fairness principle ensures the fairness and impartiality of administrative acts, requiring courts to check whether the administrative organ has excluded irrelevant factors and maintained consistent treatment standards in similar or identical situations. finally, by combining the proportionality principle and the fairness principle, a comprehensive review of the reasonableness of administrative acts is conducted. this division of labor and cooperation in the evaluation system not only enhances the targeting and operability of the evaluation standards but also improves the accuracy and fairness of the evaluation process, thereby ensuring that the legality and reasonableness of administrative acts are effectively reviewed and safeguarded (liu, b. j., 2023, pp. 85-86). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 177 published by scholink inc. 6. discussion since the revision of the administrative litigation law, the expansion of administrative organ powers has become an inevitable trend. faced with this change, administrative organs must strictly control the scale when exercising administrative powers and prudently exercise their discretionary powers. at the same time, judicial organs, when applying the legal standard of “manifestly improper” in the adjudication process, must conduct sufficient argumentation and reasonable interpretation to ensure that the legitimate rights and interests of the administrative counterparts are properly protected. such cautious attitude and rigorous application of law are crucial for maintaining the fairness and authority of the law. references he, h. b. (2016). on the obvious impropriety of administrative acts. law studies, 38(03), 76-77. huang, x. j. (2023). administrative acts clearly improper in administrative litigation: legality review or rationality review and how to conduct the review. journal of suzhou university (philosophy and social sciences edition), 44(02), 101-102. liu, b. j. (2023). judicial review of administrative discretionary acts by public security authorities. learning and exploration, 2023(01), 85-86. liu, q. (2019). application of the proportionality principle in administrative judgments. china legal science, 2019(03), 100-101. shi, b., & cao, s. (2016). review and judgment of “obvious impropriety” of administrative acts in the new administrative litigation law. legal application, 2016(08), 24-28. yu, l. y. (2022). on the review of rationality in administrative litigation. comparative law studies, 2022(01), 153-154. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 142 original paper a historical study of the relationship between economic schools and antitrust law kaiming ding 1 1 school of law, harbin university of commerce, harbin, heilongjiang province, china received: april 20, 2025 accepted: may 6, 2025 online published: may 7, 2025 doi:10.22158/elp.v8n1p142 url: http://dx.doi.org/10.22158/elp.v8n1p142 abstracts this paper delves into the evolution of antitrust thought, tracing its intellectual lineage through various schools of thought. starting with the harvard school in the early 20th century, the paper highlights its structuralist approach, which emphasized the role of market structure in fostering anti-competitive behaviors. the harvard school’s scp (structure-conduct-performance) paradigm influenced u.s. antitrust enforcement, leading to the breakup of large corporations. the paper then shifts focus to the chicago school, which emerged in the mid-20th century advocating for a behavioral approach centered on economic efficiency. the chicago school’s opposition to extensive government intervention and its emphasis on market self-correction challenged the structuralist orthodoxy. the subsequent development of the post-chicago school introduced refinements, acknowledging the limitations of perfect competition and incorporating insights from game theory and transaction cost economics. finally, the paper explores the emergence of the new brandeisian school, which proposes a reevaluation of antitrust policy in the digital era, advocating for a broader focus on market structure and competitive processes while rejecting a return to the harvard school’s strict structuralism. this paper contributes to the ongoing discourse on antitrust theory and its application in contemporary markets. keywords antitrust theory, harvard school, chicago school, digital economy 1. introduction antitrust has always been closely related to mainstream economic theories of specific periods. indeed, antitrust policymakers sometimes apply economics unreasonably, sometimes veer towards the fringes rather than the core of economic theory, and sometimes even overextend correct viewpoints. with the rise of neoclassicism in the 1870s and 1880s, analysis became more detailed, and economists www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 143 published by scholink inc. increasingly recognized that imperfections in the market could lead to various anti-competitive behaviors. antitrust policy closely followed the development of economics at this stage. economists continued to dedicate themselves to studying the relationship between market structure, market conduct, and market performance, ultimately contributing to the establishment of industrial organization theory as an independent discipline within economics. various schools emerged around industrial organization theory at different historical stages. 2. representative of structuralism: the harvard school 2.1 background in 1938, professor roger myerson of harvard university conducted preliminary empirical validation of market structure and market conduct in competitive processes, proposing that the risks of monopolistic behavior might correlate with market structures of a certain scale. later, in 1959, professor joe s. bain of harvard university comprehensively and systematically elaborated on the formula of market structure, market conduct, and market performance (the scp formula) in his book theories of industrial organization. the emergence of this theoretical formula marked the definitive birth of the harvard school. under the influence of the harvard school, u.s. antitrust enforcement agencies applied the scp formula to analyze markets, initiating “breakup” sanctions against many large enterprises based on theoretical applications. these actions received support from federal courts, with landmark cases including alcoa, at&t, and brown shoe. the federal courts‟ stance was: “efficiency cannot constitute a defense, and the efficiencies claimed to result from mergers can even be used to attack those mergers, on the grounds that smaller competitors would be placed at a disadvantage.” the attitude reflected in these cases demonstrates that the scp formula targeted large, highly concentrated corporations. the supreme court‟s continued focus on applying the scp formula in subsequent merger cases further indicated that during this period, “structuralism” was established as the dominant substantive standard for merger regulation. this approach fully reflected the harvard school‟s distrust of large enterprises and industries with high concentration levels. 2.2 main views the harvard school originated from empiricist research on the concentration of u.s. manufacturing industries and their monopolistic impacts. the empirical nature of the harvard school‟s theoretical model is primarily reflected in its analysis of specific markets. its key conclusions include: 1) in industries with highly concentrated sellers, corporate profit margins exceed those in markets with dispersed or low-concentration sellers. 2) industries with extremely high entry barriers are more prone to exhibit higher excess profits and monopolistic output levels than other industries, and oligopolistic competition is more difficult to achieve than anticipated. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 144 published by scholink inc. 3) the structure-conduct-performance (scp) paradigm developed by the harvard school establishes the following assumptions: 4) as market entry barriers increase, the gap between the optimal price and cost for leading firms widens. 5) market concentration facilitates implicit or explicit collusion. in short, structure (s) occupies the central position in the scp paradigm. the monopoly profits of firms in highly concentrated industries result from market power and monopolistic conduct, but identifying specific behaviors is challenging. instead, the harvard school argues that such conduct can be inferred from market structure. regarding firms‟ pricing or product strategies, the harvard school views predatory pricing (below-cost pricing) and discounting practices by potentially dominant firms as illegal monopolistic behaviors. 2.3 summary the harvard school emerged during the transition from laissez-faire economics to a period of state intervention in markets. due to this unique historical context, it advocates for government intervention in markets—particularly in market structure—to improve economic outcomes. thus, the harvard school is known as structuralism. its core propositions can be summarized as follows: 1) positive correlation between industry concentration and accounting return on investment: identifying highly concentrated market structures is simpler. 2) high concentration typically leads to high entry barriers, which allow incumbent large firms to secure monopoly profits while deterring new competitors. 3) oligopolistic interdependence: in oligopolistic markets, a few dominant firms rely on mutual dependence and may engage in “tacit collusion” to implement illegal monopolies. 4) predatory pricing and discriminatory discounts by large firms are also forms of illegal monopolization. the structuralist antitrust ideology of the harvard school aligns with its liberalist beliefs. the u.s. liberal tradition and values have profoundly influenced antitrust schools and the enforcement of antitrust laws. the harvard school‟s structuralism reflects the fundamental stance of modern liberalism, which emphasizes active economic regulation through the “visible hand” of government intervention. 3. representative of behaviorism: the chicago school 3.1 background the “chicago tradition” embodied in the chicago school constitutes a key element of the conservative ideological spectrum. the school exhibits dual characteristics in theoretical construction: systematic advocacy for deregulation: it emphasizes that market systems and voluntary transactions are the optimal paradigms for coordinating social activities. by establishing a market-centric theoretical framework, it highlights decentralization as the core advantage of market operations. it argues that resource allocation and social welfare can achieve equilibrium through spontaneous order, thereby www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 145 published by scholink inc. negating the necessity of administrative intervention and mitigating the risks of power monopolization. scientific transformation of economics: it employs quantitative methods to transform economic research into an empirical scientific system. in policy terms, it develops institutional schemes that systematically weaken administrative regulation and strengthen market functions. these academic features deeply reflect conservative values, particularly its advocacy of neoconservative economic theory. with the rise of neoconservatism in the u.s., the school‟s ideas gradually infiltrated judicial practice starting in the mid-1970s. its influence stems from dual drivers: updates in adjudicative philosophy prompted by changes in supreme court justices. institutional anxiety triggered by the decline in u.s. firms‟ international competitiveness (e.g., dual losses in market share), which amplified the practical emphasis on the efficiency-first principle. the school‟s propositions—such as the market‟s self-correcting mechanism and its derivative concept of regulatory restraint—gained sustained institutional vitality. 3.2 main views the core propositions of the chicago school are summarized as follows: 1) economic efficiency centralism: economic efficiency is the sole objective of antitrust law, encompassing productive efficiency (output value/input cost) and allocative efficiency (pareto optimality). these two efficiencies are inversely related: monopoly incentivizes r&d to enhance productive efficiency but causes prices to deviate from marginal costs, reducing allocative efficiency. policies should pursue net efficiency maximization. 2) inherent market competitiveness: highly concentrated markets still exhibit non-price competition (e.g., service improvements, product innovation). product differentiation not only fails to weaken competition but increases collusion difficulty, undermining traditional oligopoly theory. 3) market self-correction: monopoly is temporary, as high profits attract new entrants to dismantle monopolistic positions. governments need only accelerate market adjustments, avoiding excessive interference in natural resource flows. 4) critique of entry barriers: natural entry barriers are largely illusory; real obstacles stem from government regulation. free markets require unrestricted entry and exit; government intervention hinders efficiency. 5) reassessment of economies of scale: economies of scale are ubiquitous, existing not only within firms‟ internal production but also in inter-firm transactional networks. most business behaviors‟ efficiency drivers are hard to quantify. vertical mergers (including tying and resale price maintenance) have efficiency legitimacy. monopolists cannot extract excess profits through vertical leverage, as competitive upstream/downstream markets naturally constrain firm behavior. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 146 published by scholink inc. profit-maximizing firms dominate markets, and competition ensures efficiency prevails. even non-profit-oriented firms cannot escape market pressures. 6) cautionary interventionism: government intervention must meet strict criteria: proving intervention benefits outweigh market self-correction costs. error costs are asymmetric—false positives (misidentifying anticompetitive conduct) are more harmful than false negatives (overlooking misconduct). the efficiency model is apolitical, prioritizing total social wealth maximization. any conduct with net positive benefits (firm gains > consumer losses, or vice versa) is deemed legal, regardless of distributive justice. 3.3 summary the chicago school constructs an analytical framework grounded in market self-healing, economic efficiency, and mathematical modeling. it emphasizes that antitrust policy should adhere to the “principle of minimal intervention”, fundamentally challenging traditional structuralist antitrust approaches. key critiques of the harvard school include: the unreliability of claims that monopolistic profits in highly concentrated industries exceed those in low-concentration sectors. effective competition does not require numerous market players; even oligopolistic markets can foster competition, and collusion among a few firms does not eliminate all competition. monopolies self-correct over time, with judicial intervention merely accelerating this process. unlike the harvard school‟s focus on market structure, the chicago school prioritizes firm behavior analysis, earning it the label of behaviorism. 4. the further development of the chicago school 4.1 background although the chicago school dominated antitrust policy in the 1980s, its perfect competition model revealed significant flaws in explaining complex market behaviors. the 1992 eastman kodak co. v. image technical services case marked a turning point. when the court analyzed kodak‟s dominance in the aftermarket using information asymmetry and consumer lock-in effects, it exposed the dynamic competitive complexities overlooked by the chicago school. kodak‟s control over 90% of the repair market despite holding only 20% of the new product market shattered the traditional framework of single-market definition, forcing the judicial system to incorporate game theory and transaction cost theory to analyze cross-temporal market power dynamics. the post-chicago school emerged to revise certain tenets of the chicago school, arguing that markets are imperfect and that certain monopolistic behaviors cannot be eliminated solely through market mechanisms. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 147 published by scholink inc. 4.2 main views the theoretical breakthroughs of the post-chicago school are reflected in five core revisions and refinements: 1) reintegration of structural parameters: the school advocates that antitrust reviews of anticompetitive conduct cannot abandon market structural parameters. the existence of market power serves as a prerequisite for strategic anticompetitive behavior. employing structural elements as screening mechanisms significantly reduces enforcement agencies‟ information-processing costs and optimizes regulatory resource allocation. this limited revival of structuralism represents a technical correction to the chicago school‟s purely behavioral analysis paradigm. 2) consumer surplus as the normative benchmark: while retaining economic efficiency as a core criterion, the post-chicago school posits consumer surplus—rather than total social welfare—as the primary value judgment standard. it also acknowledges that competition policy must integrate non-economic values, including innovation incentives, protection of small and medium-sized enterprises, and fairness in market opportunities. 3) predatory pricing as a strategic signal: based on information asymmetry between incumbents and potential entrants, the school argues that predatory pricing can function as a market-deterrence signaling mechanism. the presence of sunk costs creates dynamic rigidity in entry barriers. incumbent firms may establish substantive barriers through strategic actions like capacity expansion or patent fencing, transcending traditional cost-benefit analyses. this framework introduces strategic interaction models under conditions of incomplete information. 4) sustainability of cartels via repeated games: by constructing repeated game models, the school demonstrates that collusion can persist when cartel members establish credible punishment mechanisms for defection. in industries with strong network effects or low monitoring costs, cartels may sustain long-term viability. this directly challenges the chicago school‟s classical assertion of the inherent fragility of cartels. 5) heterogeneous effects of mergers in differentiated markets: mergers among firms with differentiated products generate varied competitive outcomes. when merged entities‟ products increasingly diverge from existing market offerings, the likelihood of post-merger price hikes rises significantly, as competitors with low substitution elasticity cannot adjust prices synchronously. conversely, mergers in homogeneous markets are more prone to induce coordinated pricing or oligopolistic equilibria. this granular predictive model addresses the mechanical limitations of traditional market concentration metrics. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 148 published by scholink inc. 5. the impact of economic schools on antitrust law the evolution of antitrust law has been profoundly shaped by competing economic theories, each offering distinct frameworks for analyzing market power, competitive harm, and regulatory intervention. from the structuralist doctrines of the harvard school to the behaviorist revolution of the chicago school and the nuanced corrections of the post-chicago school, economic paradigms have not only influenced legal standards but also redefined the very objectives of antitrust enforcement. this chapter examines how these schools of thought have molded antitrust jurisprudence, policy tools, and enforcement priorities across different eras, while highlighting their enduring tensions and convergences. 5.1 the harvard school: structuralism as legal doctrine the harvard school‟s structure-conduct-performance (scp) paradigm dominated antitrust policy from the 1940s to the 1970s, embedding structuralism into legal doctrine. its influence manifested in three key dimensions: 1) presumption of harm from concentration harvard scholars like joe s. bain empirically linked high market concentration to reduced competition, arguing that industries with few dominant firms inherently incentivized collusion and monopolistic exploitation. this presumption translated into aggressive legal standards: per se illegality of high concentration: courts treated mergers leading to elevated market shares (e.g., above 30%) as inherently suspect. landmark cases such as united states v. aluminum co. of america (alcoa) (1945) and brown shoe co. v. united states (1962) institutionalized structural thresholds, with justice warren declaring in brown shoe that antitrust law must “strike down mergers that create a „reasonable likelihood‟ of structural harm.” hostility to efficiency defenses: the supreme court in ftc v. procter & gamble co. (1967) rejected efficiency gains as merger justifications, fearing they would entrench dominant firms and “further disadvantage smaller competitors.” 2) enforcement tools and remedies structuralism prioritized structural remedies: divestiture orders: breakups of monopolies like at&t (1982) aimed to fragment concentrated markets. merger guidelines (1968): the doj‟s guidelines established strict herfindahl-hirschman index (hhi) thresholds, prohibiting mergers in highly concentrated markets absent extraordinary circumstances. 3) political and ideological alignment the harvard school‟s skepticism of corporate power resonated with postwar liberalism, which viewed antitrust as a tool to democratize economic power. this alignment is evident in congress‟s 1950 celler-kefauver act, which expanded merger control to curb conglomerates‟ rising influence. 5.2 the chicago school: efficiency as antitrust’s north star the chicago school‟s ascendancy in the 1980s marked a paradigm shift, refocusing antitrust on economic efficiency and consumer welfare. its impact unfolded through: www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 149 published by scholink inc. 1) theoretical foundations price theory and rational actors: scholars like richard posner and robert bork reconceptualized antitrust through neoclassical price theory, positing that firms always act to maximize profits and that markets self-correct through entry and innovation. single-market efficiency goal: bork‟s the antitrust paradox (1978) argued that antitrust‟s sole objective should be total welfare maximization, rejecting structuralist concerns about fairness or decentralization. 2) legal and policy reforms rule of reason revival: courts adopted chicago-inspired analyses, requiring plaintiffs to prove actual harm to competition rather than relying on structural presumptions. continental t.v., inc. v. gte sylvania (1977) exemplified this shift by upholding non-price vertical restraints under a reasonableness test. merger guidelines (1982/1984): the doj revised merger standards to prioritize efficiency gains, allowing mergers if they enhanced productive efficiency even at the cost of higher concentration. 3) case law transformation predatory pricing: in matsushita electric industrial co. v. zenith radio corp. (1986), the supreme court required plaintiffs to demonstrate a predatory pricing scheme‟s plausibility using cost-based metrics, reflecting chicago‟s skepticism of such claims. vertical restraints: state oil co. v. khan (1997) overturned per se illegality for maximum resale price maintenance, endorsing chicago‟s view that vertical agreements often improve distribution efficiency. 4) ideological legacy the chicago school‟s deregulatory ethos aligned with reagan-era neoliberalism, framing antitrust as a technocratic endeavor to optimize markets rather than control corporate size. 5.3 the post-chicago school: bridling market realism emerging in the 1990s, the post-chicago school introduced game theory, behavioral economics, and dynamic analysis to address the chicago school‟s oversimplifications. its contributions include: 1) strategic behavior and market dynamics game-theoretic models: scholars like carl shapiro and jean tirole demonstrated how firms in concentrated markets could sustain collusion through repeated interactions or leverage network effects to foreclose rivals. two-sided markets: the eu‟s google shopping (2017) decision applied post-chicago insights, recognizing that dominant platforms could distort competition by privileging their own services in multi-sided markets. 2) refined merger analysis unilateral effects doctrine: modern guidelines acknowledge that mergers in differentiated markets (e.g., pharmaceuticals) can enable price hikes even without coordination, as seen in ftc v. lundbeck inc. (2010). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 150 published by scholink inc. digital ecosystem concerns: cases like ftc v. meta/within (2023) reflect post-chicago fears that tech giants‟ acquisitions of startups may stifle future innovation. 3) behavioral antitrust incorporating insights from kahneman and tversky, scholars argue that cognitive biases (e.g., overconfidence, herd behavior) enable anticompetitive strategies traditional models overlook. this has influenced investigations into algorithmic collusion and “dark patterns” in digital markets. 5.4 conclusion economic theories have not merely influenced antitrust law—they have redefined its dna. from structuralism‟s crusade against corporate giants to chicago‟s efficiency revolution and post-chicago‟s recalibrations, each school reflects its era‟s economic anxieties and ideological currents. as markets evolve, antitrust law will continue to serve as a battleground for competing visions of competition, reminding us that economics is not just a lens for interpreting markets but a force that shapes them. 6. future possibilities: the new brandeis school for super platform enterprises, regulation akin to the governance of public utilities could be considered. the “new brandeisism” advocates that antitrust laws should focus more on market structure and competitive processes, yet it opposes a full return to the harvard school‟s “structure-conduct-performance (scp)” paradigm. through a systematic critique of u.s. competition policy, the new brandeis school proposes reconstructing the value foundation and practical pathways of antitrust law. it emphasizes transcending the narrow consumer welfare standard in the digital economy era and returning to the original legislative intent of the sherman act: curbing excessive capital concentration and safeguarding economic democracy. the rise of the new brandeis school coincides with the global attention to super internet platform governance in the eu, u.s., and china. for decades, the chicago school—which opposed monopolistic conduct rather than monopolistic status—dominated antitrust theory. applied to internet platforms, this meant tolerating platform scale while targeting monopolistic behaviors tied to that scale. the new brandeis school rejects the chicago school‟s framework, arguing that the current antitrust approach—linking competition to short-term “consumer welfare” defined by price effects—fails to address structural market power in the modern economy. measuring competition solely through output and price overlooks the negative impacts of platform dominance. this theoretical shift abandons the chicago school‟s “market supremacy” dogma, seeking to integrate structuralist traditions with dynamic competition theory and digital governance tools. it aims to uphold the sherman act‟s pluralistic values of decentralizing economic power and ensuring fair opportunity while adapting to evolving monopolistic dynamics in the digital age. however, whether the new brandeis school will solidify as a distinct school of thought and gain mainstream acceptance in antitrust jurisprudence remains to be seen. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 151 published by scholink inc. references herbert, h. (2023). antitrust law in the united states: principles and cases (2nd ed., pp. 45-50). china renmin university press. herbert, h., lan, l., & wang, y. q. (2021). what exactly happened to the u.s. antitrust movement? business and economic law review, 2021(06), 112-158. huang, j. x., & zhu, c. s. (2010). the development of economic theories in u.s. antitrust law and their implications. journal of xiamen university (philosophy and social sciences), 2010(03), 53-55. jiang, s. (2024). on the divergence of scholarly interpretations of antitrust law and prospects for dialogue. jiao da law review, 2024(02), 75-85. li, z. q. (2016). structuralism versus behavioralism in u.s. antitrust regulation. journal of qiqihar university (philosophy and social science edition), 2016(03), 91-93. liu, c. p., & xu, p. (2022). trends in u.s. digital platform antitrust legislation and lessons for china. e-government, 2022(12), 118-122. shi, j. z., & jiao, h. t. (2024). antitrust law (pp. 13-16). china university of political science and law press. wang, m. z. (2023). an analysis of digital economy monopolies from a structuralist perspective. china science and technology forum, 2023(03), 129-130. zhao, l. (2013). the historical evolution of u.s. antitrust law and its implications for china. law science magazine, 34(07), 99-109. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 96 original paper criminal regulation of illegal use of citizens’ personal information yanqiu xiong 1* & minna qiu 2 1 the discipline inspection and supervision group of the anqing city discipline inspection commission in the anqing municipal people’s congress, anqing, china 2 law school, shantou university, guangzhou, china received: october 25, 2024 accepted: november 8, 2024 online published: november 13, 2024 doi:10.22158/elp.v7n3p96 url: http://dx.doi.org/10.22158/elp.v7n3p96 abstract with the rapid development of information technology, the collection, storage, and use of citizens’ personal information have become increasingly convenient. at the same time, the illegal use of personal information has become rampant, seriously threatening personal privacy rights and social order. this paper aims to systematically explore the criminal regulation of illegal use of citizens’ personal information. it first defines the concept and classification of personal information, then analyzes the specific forms of illegal use of personal information. through a comparative study of relevant laws and regulations domestically and internationally, it reveals the effectiveness and deficiencies of current criminal regulations in protecting personal information. the research finds that although china has made progress in personal information protection legislation, there are still significant shortcomings in defining criminal liability, clarifying the application of laws, and enforcing regulations. based on this, the paper proposes several recommendations to improve criminal regulation, including clarifying the constitutive elements of crimes, strengthening law enforcement, enhancing public awareness, and promoting international cooperation, with the aim of providing theoretical support and practical guidance for further improving china’s legal system for personal information protection. keywords illegal use, citizens’ personal information, criminal regulation, legal liability www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 97 published by scholink inc. 1. introduction in the context of the information age, the collection, storage, and utilization of personal information have become an integral part of societal operations. with the rapid development of the internet, big data, and artificial intelligence technologies, the acquisition of citizens’ personal information has become unprecedentedly convenient. however, the rapid progress of information technology has also posed severe challenges, as the illegal use of citizens’ personal information has become rampant, seriously infringing upon personal privacy, undermining social trust, and even threatening national security and social stability. in recent years, various cases of personal information leaks and misuse have frequently occurred, significantly raising public awareness of personal information protection. against this backdrop, effectively curbing the illegal use of personal information has become an urgent legal issue. criminal regulation, as an essential means for the state to combat crime and maintain social order, plays an increasingly prominent role in protecting personal information. however, the current criminal law still faces numerous inadequacies in addressing new types of information crimes, necessitating further refinement and strengthening. this study aims to systematically explore the criminal regulation of illegal use of citizens’ personal information by reviewing and analyzing relevant laws and regulations, revealing the application of existing criminal laws in personal information protection and their deficiencies (zhang & dong, 2023, p. 64). the specific objectives include defining the legal concept and classification of personal information, clarifying the specific forms of illegal use of personal information, conducting a comparative analysis of domestic and international legal provisions on personal information protection to draw on advanced experiences, and proposing feasible recommendations to address the shortcomings of current criminal regulation. the significance of this research lies in providing theoretical support for improving china’s legal system for personal information protection, promoting scientific and systematic legislation, and offering references for law enforcement practices to enhance the effectiveness of combating the illegal use of personal information and ultimately safeguarding citizens’ legitimate rights and interests, as well as maintaining social justice and fairness. this research primarily adopts a combination of literature analysis, comparative study, and case analysis methods. first, it systematically reviews domestic and international laws and regulations on personal information protection and relevant academic studies to construct the theoretical framework for this research. next, it selects representative countries and regions, such as the european union’s general data protection regulation (gdpr) and the california consumer privacy act (ccpa) in the united states, for comparative analysis, drawing on their advanced experiences and practices in criminal regulation. subsequently, it examines several typical cases to analyze the determination of criminal liability and the practical issues in applying the law to the illegal use of personal information. finally, based on the research findings, it proposes specific recommendations to improve china’s criminal regulation of the illegal use of personal information. through these methods, the study seeks to comprehensively and systematically explore the criminal regulation of illegal use of citizens’ personal information, providing valuable references for relevant legislation and law www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 98 published by scholink inc. enforcement practices (chang, 2023, pp. 19-26). 2. conceptual definitions and theoretical basis before discussing the criminal regulation of illegal use of citizens’ personal information, it is necessary to clearly define relevant concepts and construct the theoretical basis for the research. this chapter first defines personal information and its classification, then clarifies the specific forms of illegal use of personal information, and finally explores the theoretical basis for criminal regulation to provide a solid foundation for subsequent legal analysis (petrović, 2022, pp. 469-489). 2.1 definition and classification of personal information personal information refers to various information recorded by electronic or other means that can identify a natural person either individually or in combination with other information. according to the personal information protection law of the people’s republic of china, personal information includes but is not limited to names, dates of birth, identification numbers, personal biometric information, addresses, phone numbers, and email addresses (petrović, 2022, pp. 469-489). protecting personal information is crucial for safeguarding citizens’ privacy rights and personal dignity. personal information can be categorized based on its sensitivity and potential impact on personal rights. generally, personal information is divided into two categories: sensitive information and non-sensitive information. sensitive information refers to information that, if leaked or misused, may severely harm a person’s privacy, reputation, or financial interests, such as biometric data, religious beliefs, genetic information, medical and health data, and financial account information (giannakoula, dafni & maria, 2020, pp. 1-97). due to its high sensitivity, the collection, storage, and use of sensitive information are subject to stricter legal restrictions and protections. non-sensitive information refers to basic information that relatively does not involve core personal privacy, such as names, ages, genders, addresses, and phone numbers. although the protection requirements for non-sensitive information are relatively relaxed, its legitimate use and misuse prevention remain crucial aspects of information protection, especially in the age of big data, where the combination of such data with other information can still pose privacy risks. therefore, safeguarding the legitimate use and preventing the misuse of even non-sensitive information is an important part of comprehensive information protection (tong, 2023, p. 110). 2.2 defining illegal use of personal information the illegal use of personal information primarily includes unauthorized acquisition, illegal sale, illegal dissemination, and other related unlawful activities. these behaviors not only infringe upon individual privacy but can also lead to financial loss, identity theft, and even pose threats to public security. unauthorized acquisition refers to the unauthorized collection, acquisition, purchase, use, processing, transmission, provision, or public disclosure of others’ personal information beyond the scope of legitimate authorization (oliinyk et al., 2020, pp. 445-459). methods for illegally obtaining personal information are diverse, including network attacks, phishing scams, and insider leaks. illegal sale www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 99 published by scholink inc. involves selling acquired personal information in any form for profit. this behavior infringes on the rights of information subjects and promotes the illegal trade of personal information, further exacerbating the problem of information misuse. illegal dissemination is the unauthorized disclosure, dissemination, public sharing, or posting of others’ personal information on online platforms. this not only broadens the scope of information leakage but can also trigger larger-scale privacy violations and social panic. other related behaviors include using personal information for fraud, extortion, harassment, and identity theft, which often have high degrees of concealment and complexity, posing significant challenges to regulatory and enforcement efforts (oliinyk et al., 2020, pp. 445-459). 2.3 theoretical basis for criminal regulation criminal regulation of the illegal use of personal information relies on a range of legal theories that guide legislation and enforcement. the legal protection theory emphasizes that the core function of the law is to protect public interests and individual legal rights. personal information, as an important social resource, relates not only to individual privacy and dignity but also to social trust and public security. therefore, criminal regulation reflects the law’s firm commitment to safeguarding the rights and interests of information subjects (zhao, 2023, p. 674). the crime prevention theory focuses on preventing crimes through legal means. by imposing criminal penalties for the illegal use of personal information, the law serves as a deterrent, reducing potential offenders’ motivations and behaviors. stringent criminal regulations also promote the lawful use of information and contribute to healthy social information order. the accountability theory highlights the identification and accountability of unlawful behavior. criminal regulation not only punishes illegal acts but also holds perpetrators accountable, reinforcing the authority and fairness of the law, and enhancing public trust and confidence in legal enforcement. in summary, defining personal information and its classification, clarifying the specific forms of illegal use of personal information, and constructing the theoretical basis for criminal regulation are essential for in-depth research on criminal regulation. these theories and clearly defined concepts provide a solid foundation for subsequent legal analyses and policy recommendations (zhu & song, 2022). 3. domestic and international legal provisions on the illegal use of personal information with the rapid development of information technology, personal information protection has become a global focal point. internationally, the european union enacted the general data protection regulation (gdpr) in 2018, which is currently the most comprehensive and stringent data protection law. the gdpr grants broad rights to data subjects, such as the right to be informed, the right to access, and the right to erasure, while imposing strict compliance requirements on data processors. violations may result in hefty fines of up to 4% of the global annual turnover or 20 million euros, whichever is higher. additionally, in 2020, california implemented the california consumer privacy act (ccpa), which provides consumers with more control over their personal information and regulates corporate data processing practices, with significant penalties for noncompliance. in comparison, china has also made www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 100 published by scholink inc. significant progress in personal information protection. the enactment of the personal information protection law (pipl) in 2021 systematically regulates the collection, storage, use, and transfer of personal information, clarifies the rights of data subjects and the obligations of data processors, and establishes strict legal liabilities, including administrative and criminal responsibilities. the introduction of pipl marks china’s entry into a new stage of legalized and standardized personal information protection (pang, 2021, pp. 1-12). nevertheless, compared with advanced regulations like the gdpr, china still has room for improvement in implementing mechanisms for data subject rights, regulating cross-border data transfers, and refining criminal responsibilities. comparative analysis reveals that international regulations have higher standards for data protection systems and enforcement, while china’s legal framework is gradually closing the gap. in the future, china can draw on the successful experience of the gdpr to further refine legal provisions, enhance enforceability, and ensure the effective implementation of personal information protection laws, thereby playing a more significant role in global data governance. 4. analysis of criminal liability for the illegal use of personal information the illegal use of personal information not only infringes upon individual privacy rights but also poses a threat to public security and economic order. analyzing the criminal liability of such behavior helps clarify legal boundaries, strengthen legal deterrence, and protect citizens’ legitimate rights. this chapter analyzes criminal liability from three aspects: the constitutive elements of criminal liability, existing legal provisions and their application, and the issues and challenges in law enforcement. first, the constitutive elements of criminal liability include subject elements, object elements, subjective elements, and act elements. subject elements require that the criminal act be committed by a natural person with criminal responsibility capacity, meaning the person must have full civil capacity and corresponding criminal responsibility capacity (shanshan & tao, 2022, pp. 64-71). object elements involve the legal interest protected by law, primarily focusing on individual privacy and information security in cases of illegal use of personal information. subjective elements include intent and negligence, with most illegal uses of personal information being intentional acts where the perpetrator knowingly violates others’ rights. act elements refer to the specific acts of the offender, such as unauthorized acquisition, sale, or dissemination of others’ personal information. second, current legal provisions on the illegal use of personal information are primarily reflected in the criminal law of the people’s republic of china and the personal information protection law. article 253 of the criminal law specifies the crime of infringing on citizens’ personal information, criminalizing the unauthorized acquisition, sale, or provision of personal information, with a maximum penalty of three years’ imprisonment or detention, and fines. in severe cases, such as acquiring large amounts of personal information or causing significant harm, penalties can be further increased. additionally, article 285(1) addresses crimes involving unauthorized acquisition, deletion, alteration, or addition of data in computer systems through technical means, with a maximum penalty of five years' imprisonment or www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 101 published by scholink inc. detention, and fines. the personal information protection law supplements and enhances the criminal law’s shortcomings in personal information protection through strict administrative and civil liabilities, strengthening comprehensive legal protection. however, there are many issues and challenges in law enforcement. first, the ambiguity of legal provisions makes it difficult to define ―illegal use‖ clearly in judicial practice, complicating enforcement and adjudication. second, with the continuous development of information technology, new criminal methods emerge frequently, and existing laws lag in addressing complex and evolving illegal activities. additionally, obtaining and recognizing evidence is particularly challenging, especially concerning cross-border data flows and anonymized information, posing both technical and legal challenges to law enforcement agencies. finally, the deterrent effect and consistent application of penalties need further strengthening to ensure fairness and effectiveness in law enforcement. in summary, the analysis of criminal liability for the illegal use of personal information demonstrates that while china has established an initial legal framework, further improvement and strengthening in specific application and enforcement processes are needed. clarifying the constitutive elements of criminal liability, refining legal provisions, and enhancing law enforcement and judicial capabilities can more effectively combat the illegal use of personal information, protect citizens’ legitimate rights, and uphold social justice and fairness. 5. challenges and issues in criminal regulation although china has made progress in criminal regulation of the illegal use of personal information, various challenges remain in its practical implementation, necessitating further measures to improve the effectiveness and deterrent power of the law. first, legislative issues are mainly reflected in the ambiguity and incompleteness of legal provisions. current laws, such as the criminal law and the personal information protection law, lack detailed definitions of illegal use behaviors, leading to potential discrepancies in judicial interpretation. for example, the specific scope and boundaries of ―illegal use‖ are not clearly defined, leaving discretion for law enforcement agencies in identifying criminal behavior. moreover, the rapid evolution of information technology has given rise to new forms of personal information crime, which current laws are not well-equipped to address, necessitating legislative amendments or supplementary legislation. second, law enforcement issues are characterized by insufficient enforcement efforts and limited resources. the hidden and technical nature of personal information crimes poses challenges for law enforcement agencies in investigation and evidence collection. current human, technical, and financial resources in relevant enforcement departments are relatively limited, making it difficult to address increasingly complex information crimes. additionally, law enforcement personnel require enhanced training in professional knowledge and skills to improve their ability to identify and combat illegal use of personal information. third, challenges arising from technology and societal development cannot be ignored. the rapid advancement of technologies, such as big data, artificial intelligence, and blockchain, has greatly increased the complexity of personal information protection. criminals use sophisticated technological www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 102 published by scholink inc. means for data theft, encrypted transmission, and anonymous transactions, posing significant challenges for law enforcement. moreover, the widespread flow of cross-border data makes international cooperation essential in combating personal information crimes, but differences in legal systems and enforcement standards among countries hinder effective cooperation. fourth, insufficient legal responsibility and penalties remain a prominent issue. while the criminal law and the personal information protection law stipulate criminal liability for the illegal use of personal information, in practice, the deterrent effect and consistent application of penalties need strengthening. on one hand, existing penalties and sentencing standards may not cover all serious illegal activities, resulting in some offenses not being properly punished; on the other hand, inconsistencies in sentencing and enforcement across regions and agencies weaken the law’s unity and authority. finally, insufficient public awareness and social participation pose a challenge in criminal regulation. despite the continuous improvement of laws on personal information protection, public awareness and self-protection capabilities remain weak. many citizens do not prioritize personal information protection in their daily lives, making them vulnerable to information leaks and misuse. furthermore, effective reporting channels and legal support for citizens who discover illegal use of their personal information are often lacking, hindering timely detection and resolution of related cases. in summary, the criminal regulation of illegal use of personal information faces numerous challenges in legislation, law enforcement, technological adaptation, international cooperation, and public engagement. to enhance the effectiveness of criminal regulation, it is necessary to improve legal provisions, strengthen enforcement capabilities, promote collaboration between technology and law, facilitate international cooperation, and raise public awareness and participation, thereby building a multi-layered, multidimensional personal information protection system that effectively curbs illegal activities and safeguards citizens’ rights and social stability. 6. recommendations for improving criminal regulation to address the issues and challenges in criminal regulation of the illegal use of citizens’ personal information, this paper offers the following recommendations to enhance the effectiveness and deterrence of the law and fully protect citizens’ legitimate rights. 1) improve legal provisions by clarifying the specific behaviors and liabilities associated with the illegal use of personal information. current laws have some vague definitions and ambiguous scopes, which can lead to differing interpretations in enforcement. it is recommended that legislators provide more detailed definitions for behaviors such as ―unauthorized acquisition,‖ ―illegal sale,‖ and ―illegal dissemination‖ and specify penalties for varying degrees of offense. additionally, to keep pace with technology, laws should be revised and supplemented to address emerging information crimes, such as big data misuse and ai-driven privacy intrusions. 2) strengthen enforcement and build enforcement capacity. crimes involving the illegal use of personal information are often concealed and technically complex, necessitating skilled technical personnel and advanced tools for investigation and evidence collection. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 103 published by scholink inc. increased funding and resources for law enforcement departments are recommended to improve their ability to handle complex information crimes. moreover, establishing cross-departmental and cross-regional cooperation mechanisms, enhancing information sharing, and conducting joint actions are essential to creating a coordinated effort to combat the illegal use of personal information. 3) promote collaboration between technology and law. using advanced technology, such as blockchain, artificial intelligence, and big data analysis, can improve the monitoring and management of personal information flows. it is recommended to establish intelligent monitoring systems for real-time detection and alerts of illegal information use, enabling timely intervention. in addition, the development and application of privacy protection technologies, such as data encryption and anonymization, should be encouraged to reduce the risk of personal information leaks during storage and transmission. 4) strengthen international cooperation and legal coordination. as cross-border data flows become more frequent, a single country’s legal measures alone cannot effectively address international information crimes. china should actively participate in the formulation and revision of international data protection regulations and promote information-sharing and enforcement cooperation mechanisms with major countries and regions to jointly combat international information crimes. bilateral or multilateral data protection agreements should be signed to ensure the legality and security of cross-border data transfers. 5) raise public awareness and encourage social participation. the effective implementation of the law relies on public understanding and support. it is recommended to promote personal information protection through various channels, enhancing citizens’ privacy awareness and self-protection abilities. additionally, the public should be encouraged to participate in monitoring information protection, with convenient reporting mechanisms established for promptly identifying and exposing illegal information use. government and social organizations should jointly conduct training and educational activities to increase public awareness and understanding of personal information protection laws. 6) improve liability and penalty mechanisms. to enhance the deterrence of the law, the establishment of stricter penalties and liability standards is recommended to ensure sufficient punishment for illegal use of personal information. laws should provide for harsher penalties, such as increasing maximum prison sentences and fine amounts, especially for cases with severe consequences. ensuring consistency and fairness in penalties is also essential to prevent discrepancies in law enforcement across regions and departments, thereby upholding the law’s unity and authority. in conclusion, by refining legal provisions, strengthening enforcement, promoting technological collaboration, enhancing international cooperation, raising public awareness, and improving penalty mechanisms, china can effectively elevate the criminal regulation of illegal use of personal information. this approach will build a more comprehensive and efficient personal information protection system, fully safeguard citizens’ privacy rights and information security, and contribute to societal harmony and stability. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 104 published by scholink inc. 7. conclusion this paper systematically explores the issue of criminal regulation on the illegal use of citizens’ personal information. it first defines personal information and its classification, analyzes specific forms of illegal use, and compares relevant domestic and international laws, revealing the current status and shortcomings of china’s criminal regulation. the study finds that, although the personal information protection law (pipl) and related criminal laws provide a legal foundation for combating the illegal use of personal information, significant gaps remain in the refinement of legislation, enforcement efforts, technological responses, and cross-border cooperation. these issues manifest in vague legal provisions, limited enforcement resources, challenges in addressing emerging information crimes, and low public awareness of protection. in response to these issues, this paper offers several recommendations for improving criminal regulation, including clarifying legal definitions and penalties, building enforcement capacity, promoting the integration of technology with law, strengthening international cooperation, and raising public awareness. these measures aim to establish a more effective and efficient personal information protection system, enhancing the deterrence and enforceability of the law and fully safeguarding citizens’ privacy and information security. in summary, enhancing criminal regulation of illegal use of personal information is not only essential for protecting citizens’ rights but also crucial for fostering a healthy digital society. in the future, a coordinated effort across legislation, enforcement, technology, and public engagement will be necessary to continuously improve the level of personal information protection, ensuring that the legal system keeps pace with technological advancements, thereby promoting social justice and information security. references chang, y. 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(2022). privacy and protection of personal data–criminal law aspect. strani pravni život, 66(4), 469-489. https://doi.org/10.56461/spz_22407kj https://doi.org/10.56397/le.2023.05.03 https://doi.org/10.1163/24680931-12340010 https://doi.org/10.34069/ai/2020.27.03.49 https://doi.org/10.4236/oalib.1108016 https://doi.org/10.56461/spz_22407kj www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 105 published by scholink inc. shanshan, g. o. n. g., & tao, l. i. (2022). protection path of abusing citizen’s personal information by criminal law: taking personal health information as an example. journal of beijing university of aeronautics and astronautics social sciences edition, 35(6), 64-71. tong, y. f. (2023). the influence of the personal information protection law on crime evaluation under the principle of law unity. china legal sci., 11(2023), 110. zhang, y., & dong, h. y. (2023). criminal law regulation of cyber fraud crimes—from the perspective of citizens’ personal information protection in the era of edge computing. journal of cloud computing, 12(1), 64. https://doi.org/10.1186/s13677-023-00437-3 zhao, j. (2023). reflections on criminal compliance for corporate personal information protection. beijing l. rev., 14(2023), 674. https://doi.org/10.4236/blr.2023.142036 zhu, f. b., & song, z. y. (2022). systematic regulation of personal information rights in the era of big data. sage open, 12(1), 21582440211067529. https://doi.org/10.1177/21582440211067529 https://doi.org/10.1186/s13677-023-00437-3 https://doi.org/10.4236/blr.2023.142036 https://doi.org/10.1177/21582440211067529 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 106 original paper legal issues and countermeasures in the application of china’s particularly sensitive sea areas yijia guo 1 , xinlong chen 2 & peng xu 2 1 institute of problem solving, dalian ocean university, heishijiao street, dalian, china 2 department of computing, dalian ocean university, liaoning, china received: november 5, 2024 accepted: december 6, 2024 online published: december 9, 2024 doi:10.22158/elp.v7n3p106 url: http://dx.doi.org/10.22158/elp.v7n3p106 abstract the particularly sensitive sea areas (pssas), as a type of area-based management tool, plays an important role in protecting the marine environment and marine ecosystems from the threats posed by international shipping activities. china has large areas that could be applied as pssas. however, there are potential problems in the application process, especially in terms of proposal applications and the implementation of routing measures. these problems include the lack of a coordinating body for applications, disputes over the application area, restrictions on relevant protective measures, and changes in the content and procedures of the application. in terms of implementation, these include the lack of domestic legislation on alignment measures, the lack of a clear implementation entity, the imperfect enforcement system, and the lack of technical support. subsequently, through the analysis of the successful experience of existing particularly sensitive sea areas, solutions to the problems in the application of particularly sensitive sea areas in china are proposed. these solutions include establishing communication mechanisms with neighboring countries, carefully selecting the application area, improving domestic legislation on alignment measures, improving the law enforcement system, and improving law enforcement technology. these targeted recommendations will clear the way for the application of particularly sensitive sea areas in china. keywords particularly sensitive sea areas (pssa), ship routeing system, marine environmental governance www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 107 published by scholink inc. 1. introduction the particularly sensitive sea area (pssa) was finally defined by the imo in resolution a.982(24) as “an area which, because of its recognised ecological, socio-economic or scientific importance and because of its potential vulnerability to damage from international shipping activities, requires special protection by the international maritime organization. international maritime organisation (imo)”. in recent years, with china’s emphasis on the management of the marine environment and the increase in shipping pollution, the application of the particularly sensitive sea area system has a certain degree of urgency and necessity. the application of the particularly sensitive sea area system mainly consists of two key parts, one is the application of the proposal, and the other is the implementation of the relevant protection measures, mainly the implementation of the alignment measures. in the particularly sensitive sea areas that have been applied so far, most of the problems are reflected in these two key parts. and china will inevitably face many problems brought by these two key parts in the future application. in view of this, this paper firstly summarises the existing problems in the application and implementation of particularly sensitive sea areas, and analyses the problems that china will face in the application and implementation. then focuses on the causes and manifestations of these problems, and finally provides targeted countermeasures to solve them. 2. issues in applications for particular sensitive sea areas 2.1 lack of a coordinating body for application the lack of an application coordinating body may be the first problem china encounters in its application. in the application for particularly sensitive sea areas, there are many examples of multiple countries jointly applying. since there are many coastal countries surrounding china’s seas, it is very likely that the proposal will be jointly applied for by multiple countries. however, those successful multi-country proposals cannot do without the help of coordinating bodies and governing bodies. for example, the baltic marine environment protection commission, the wadden sea joint secretariat, and the regional marine pollution emergency response centre for the mediterranean sea. these institutions are responsible for communication and cooperation between countries in the region. it can be said that it is precisely because these institutions coordinate the unified assessment of the regional environment and submit applications that they have contributed to the successful designation of the baltic sea, the wadden sea, and the particularly sensitive sea areas in the northwestern mediterranean. however, china lacks such an institution. take the yellow sea as an example, this region covers china, south korea and north korea. however, the three parties have not yet established a common governing body or an effective coordinating body. although china and south korea have communicated with each other, they have not yet established an effective governing body for international shipping activities or marine environment monitoring. there is even less basic communication and cooperation between north korea and south korea. if china, south korea and north korea fail to establish an effective coordinating governing body to regulate shipping activities or www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 108 published by scholink inc. assess the marine environment, then there may be situations where the content of the three countries’ respective proposals conflict. this will not only increase the workload of the imo and prolong the application process, but also present china with huge difficulties at the initial stage of the application. 2.2 conflation of special areas with particularly sensitive sea areas the second problem that china may face in applying for particularly sensitive sea areas is the selection of special areas and particularly sensitive sea areas. both special areas and particularly sensitive sea areas are a type of marine protected area, and particularly sensitive sea areas originate from special areas. the concept of special areas was born in marpol 73/78, and generally refers to certain sea areas that require special mandatory measures through technical identification to prevent pollution caused by oil pollution, toxic liquids and garbage discharged from ships due to the particularity of their marine ecology and shipping transportation. from the concept of special areas, it can be seen that whether it is the establishment of standards, the establishment of conditions, or the purpose of establishment, special areas and particularly sensitive sea areas are very similar and can easily be confused. so for china, especially in the case of the bohai sea, a semi-enclosed sea with a bay area, there is a big dilemma about how to choose. in existing practice, especially in semi-enclosed seas such as the baltic sea and the northwestern mediterranean, the two areas were first applied for as special areas and then further developed into particularly sensitive sea areas. for the bohai sea, due to the similarity of the two concepts, whether to apply to become a particularly sensitive sea area or a special area will cause confusion for china. the choice between a special area and a particularly sensitive sea area will not only affect the selection of relevant protection measures, but also the efficiency of the application. although there is no legal requirement that a semi-enclosed sea like the bohai sea must first apply to become a special area before applying to become a particularly sensitive sea area, in practice, if an area first applies to become a special area, it will be easier for it to pass the application to become a particularly sensitive sea area at a later date. however, the negative impact of a high pass rate is a longer application cycle. therefore, resolving the confusion between special areas and particularly sensitive sea areas will be the second important issue facing china’s application. 2.3 dispute over the size of the application the third issue is the dispute over the application area. although the 2005 “procedures for the identification and related protection measures for particularly sensitive sea areas” stipulates that as long as an area meets the same criteria, it can be classified as a particularly sensitive sea area, and does not place excessive restrictions on the area size. however, in previous applications for particularly sensitive sea areas, many areas have failed to be approved because the application area is too large. for example, the first proposal for a particularly sensitive sea area in western europe was generally opposed by european flag states because the application area was too large. this led to several revisions of the area before it was approved. undoubtedly, a larger area can better protect the ecological integrity of the region. in order to better protect these areas from the impact of international shipping activities, it is inevitable that the proposals submitted by various countries will include a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 109 published by scholink inc. considerable portion of sea area. this will inevitably be opposed by some flag states. even some extraterritorial states may use this as a political topic to hinder the application. however, if the area of china’s application is restricted or reduced in order to reduce obstacles, some areas that should be protected will not be protected due to compromise. this would defeat the fundamental purpose of the application, which is to protect the area from the impact of international shipping activities. 3. limitations of protective measures associated protective measures are an essential part of the proposal, and the international maritime organization (imo) has stipulated the sources of associated protective measures. the first is the provisions of existing imo legal documents, the second is legal documents that have not yet been approved by the imo but are awaiting approval in the application process. the third are associated protective measures that already exist in regional practice, such as the protective measures that have been implemented in marine protected areas, national marine parks, and other areas. these measures can also become official associated protective measures in the region after being approved by the imo. although the regulations clearly restrict the relevant protective measures, they have been in practice for a long time. most of the relevant protective measures adopted by the imo come from the first point, and most of them are selected from the routeing measures. many new associated protective measures have been proposed but not adopted. although in recent years some new protective measures for cetaceans in the northwestern mediterranean sea, such as avoiding the migration route of cetaceans, maintaining an appropriate safety distance, and broadcasting reports on the location of cetaceans, have been adopted, it does not mean that the imo has relaxed its restrictions on associated protective measures. rather, it is because such measures have been implemented in the region for a long time and tacitly accepted by various flag states. back in china, in order to better protect some areas, it is often necessary to have some protection measures in addition to unique routing measures. however, due to the imo’s restrictions on relevant protection measures, an important issue for china to consider in its application is whether new protection measures will be rejected due to the lack of formal imo legal documents, thereby affecting the adoption of the entire proposal. 3.1 changes in the content and procedures of the application in recent years, with the further development of particularly sensitive sea areas. mainly in the asian region, the first application and the introduction of some new related protection measures have prompted some changes in the application content and procedures for particularly sensitive sea areas. there have been four major changes and many minor changes to the application process for particularly sensitive sea areas. major changes have mostly been made by amending the guidelines, while minor changes have been introduced by way of amendments. after the last major change in 2005, the application content and procedures for particularly sensitive sea areas have gradually stabilized, but in recent years, some minor and more frequent changes have also caused unexpected problems for our country’s applications. these changes include, but are not limited to, the standards for drawing nautical www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 110 published by scholink inc. charts in the application proposal, the accuracy of the basepoints and baselines, and the different emphases placed by the review committee on ecological, economic and scientific research values. these detailed issues may seem insignificant, but if they are not paid attention to and addressed, they will often cause unnecessary trouble for chinese applications, which could have been avoided. for example, in the application for the costa rica dome, the applicant country was unable to submit a qualified proposal due to a lack of understanding of the application procedures and content. the international maritime organization even specially formed a forum to help the applicant country prepare for the drafting of a qualified proposal. it can be seen that if small changes in the content and procedures of the application are not taken seriously, the final result will be affected. and with the increasing frequency of small changes in recent years, china needs to pay more attention to changes in the content and procedures of the application. 4. issues in the implementation of the pssa 4.1 lack of domestic legislation on alignment measures among the relevant protection measures that have been implemented in particularly sensitive sea areas, routeing measures are the mainstay. china currently lacks comprehensive legislation on routeing measures, which also results in a lack of enforcement basis for china to implement routeing measures. china currently only has sporadic provisions on ship routeing systems in laws and administrative regulations such as the maritime traffic safety law and the law of the people’s republic of china on fairways. for example, article 9 of the territorial sea and contiguous zone law follows the provisions of article 22 of the convention on the law of the sea; article 15 of the maritime traffic safety law refers to prohibited navigation areas; and article 28 of the regulations on the safety supervision and administration of ships carrying dangerous goods refers to the requirement that ships carrying dangerous goods for water transfer operations or ships carrying dangerous goods for washing (cleaning), degassing or replacement should stay away from the ship routeing system area. although these regulations also mention routeing measures, they are presented in a sporadic and scattered manner, making it difficult to form a holistic legislative provision on routeing measures. this will create difficulties for the corresponding departments in enforcing the law, as scattered legislation makes it difficult for law enforcement departments to find a specific basis for enforcement. in addition, another disadvantage of not having a complete domestic law provision on routeing measures is that it creates difficulties in the interface between domestic and international law, and these difficulties will undoubtedly make it more difficult to implement relevant protective measures. although the convention on the law of the sea provides that coastal states may enjoy the maritime rights and interests stipulated in article 9 of the territorial sea and contiguous zone act, article 15 of the maritime traffic safety act, and article 28 of the regulations on the safety supervision and administration of ships carrying dangerous goods, the lack of comprehensive domestic legal provisions on routing measures has also resulted in china’s inability to effectively connect with www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 111 published by scholink inc. internationally accepted conventions, thereby making the application of routing measures even more unconvincing. in practice, the application of routing measures in particularly sensitive waters often requires substantial domestic legislative support as the basis for future law enforcement. 4.2 lack of clarity on the subject of implementation the second problem china faces in implementing relevant protective measures is the lack of a clear implementation entity. after the relevant protective measures are passed, specific departments are needed to carry out management, and different routeing measures may need to be implemented by different departments. at present, the provisions of chinese law on the routeing system are not yet complete, and there is a lack of a clear entity to be responsible for the overall implementation of relevant protective measures. at this stage in china, the implementation agency for the ship routeing system is not perfect, and different measures need to be implemented by different departments. although china generally has a system framework for regional management by the maritime safety administration directly under the ministry of transport, the implementation of relevant protective measures may involve multiple regions. once the implementation of routeing measures involves maritime authorities in multiple regions, it will cause confusion about the implementation entity, and the lack of clarity about the implementation entity will affect the implementation effect of the routeing measures. in the existing particularly sensitive sea areas where routeing measures are implemented, each has a clear implementation entity. this is an essential step for the smooth implementation of routeing measures, and china has not yet identified a clear institution to be overall responsible for the implementation of routeing measures. the lack of an implementation entity is an urgent problem that needs to be solved in the implementation of particularly sensitive sea areas. 4.3 incomplete system of enforcement procedures for fixed-line measures most countries that implement routeing measures have detailed and strict regulations on the enforcement procedures for routeing measures. these regulations cover the responsibilities of various departments, such as whether the fisheries department or the port department is responsible for managing no-anchoring areas. for traffic separation schemes, the specific circumstances of violations of the system and the procedures for dealing with these situations are clearly defined. these procedures need to include the steps for enforcement, the level of enforcement for different violations, the specific penalties, etc. for most routeing measures, additional regulations are also needed to clarify the handling plan in case of an emergency. for example, there needs to be a clear determination of the level of emergency, temporary routes for emergency stops, limits on liability, etc. all procedures need to be refined and standardized, so that law enforcement officers can effectively enforce routeing measures in the region. the general provisions on vessel routeing provide some standardized and principled provisions on the implementation procedures for routeing measures. for example, there are provisions on the applicable areas for different measures and the general process for implementing routeing measures. however, these principles alone are not enough to deal with the complexities of practice. countries still need to improve the guidelines in light of their own law enforcement practices www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 112 published by scholink inc. and set standards for enforcement procedures that suit their own circumstances. for example, the australian maritime safety authority and the united states coast guard have detailed departmental enforcement guidelines for the implementation of routeing measures to standardize procedures and thereby ensure the effectiveness of enforcement. however, china’s current administrative enforcement mechanism for ship routeing systems is not yet perfect. the “administrative enforcement provisions for transportation” do not have specific provisions on the enforcement procedures, enforcement standards, and penalties for routeing measures, but instead make generalizations like those in the “general provisions on ship routeing”. this generalization is not sufficient to support the actual enforcement of routeing measures in particularly sensitive sea areas. in addition, china’s enforcement procedures for routeing measures are scattered among different laws and regulations, and have not yet formed a complete system of enforcement procedures. these will not be conducive to the implementation of routeing measures in particularly sensitive sea areas. 4.4 lack of technical support traffic separation schemes, recommended tracks, two-way routes, deepwater channels, sheltered waters, no-anchoring areas and other routeing measures require certain technologies to be implemented successfully, and sometimes need to be combined with other measures. for example, vessel traffic management systems (vts) and ship reporting systems (srs). as a type of vessel management system, these two systems play a very important role in the successful implementation of routeing measures. for example, recommended routes, two-way routes and other measures need to be coordinated with the vts system to keep track of and guide ship movements. for protective measures such as deepwater channels, waters to be avoided and no-anchoring areas, the vts system needs to be coordinated with the srs to maintain interaction between shore-based authorities and ships, so that the coastal state can determine the movement trajectory and possible risks of ships to ensure the smooth implementation of routeing measures. the implementation of routeing measures in particularly sensitive waters requires the coordination of the vts system and the srs. however, china’s current regulations on routeing measures are still incomplete, and the coordination of routeing measures with other protective measures is even more lacking. in addition, some maritime bureaus have not introduced vts and ship reporting systems within their areas of responsibility. although china has also carried out a large amount of environmental monitoring, scientific research and protection work in relevant sea areas, it has started relatively late compared to other countries. there are still some immature aspects in terms of marine environmental monitoring technology, ship management, and communication monitoring equipment. these technical factors will all have a negative impact on the implementation of routeing measures. 4.5 lack of joint law enforcement authorities the establishment of particularly sensitive sea areas in china requires clarification of one fact: it is likely to involve areas of multiple countries. this will be similar to the particularly sensitive sea areas of western europe, the wadden sea and the baltic sea. in these areas, multiple countries jointly implement related protection measures. however, unlike these areas, the maritime authorities of the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 113 published by scholink inc. countries in these areas have experience in joint law enforcement. for example, denmark, sweden, germany, and poland in the baltic sea have established a joint management mechanism for particularly sensitive sea areas in the region, which can ensure the integrity and consistency of routeing measures implemented in the region. however, china faces the reality of a lack of law enforcement cooperation and communication with the surrounding maritime countries. on the contrary, due to political issues, neighboring countries lack mutual political trust, and not only is effective cooperation in law enforcement impossible, but in many cases, they even conflict with each other. more importantly, the political claims of some extraregional powers can also undermine the already limited regional cooperation. these political claims often interfere with china’s normal law enforcement activities in the name of freedom of navigation and transit passage rights, or exert political pressure on countries that are willing to cooperate. this has caused many problems for joint law enforcement and cooperation between countries. china will face this problem particularly seriously. take the particularly sensitive waters of western europe as an example. although the uk and ireland have had disputes over cooperation due to political issues, due to closer cooperation between european countries and less extraterritorial political pressure, countries can still maintain a certain degree of cooperation in law enforcement. in contrast, the lack of cooperation between china and surrounding maritime countries and extraterritorial political pressure will pose considerable obstacles to joint law enforcement. 5. countermeasures and suggestions 5.1 response in the application 5.1.1 establishment of coordinating governing bodies strengthening communication and dialogue with neighbouring countries and exerting the influence of regional powers. lead the establishment of institutions like the baltic marine environment protection commission, the wadden sea common secretariat and the regional marine pollution emergency response centre for the mediterranean sea in the yellow sea. this will provide an effective consultation platform for proposals and reduce differences. 5.1.2 choosing carefully between special areas and particularly sensitive sea areas the proximity between the two requires us to choose carefully when applying. specific areas should be analysed, and the entire sea area should not be viewed as a broad whole substituting for special areas or particularly sensitive sea areas. the whole area should be divided into different sub-areas according to different ecological characteristics. the different characteristics within the overall area should be carefully mapped out in order to prepare for the accurate selection of special areas and particularly sensitive sea areas. 5.1.3 refinement of the application area to avoid blind expansion blindly expanding the application area is not conducive to the proposal’s passage, so china needs to refine the application area to make it specific and accurate. reference can be made to the western www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 114 published by scholink inc. european particularly sensitive sea areas, which use ecological integrity and accuracy as the criteria to divide a large area into several small areas. these small areas meet the same ecological standards, such as coral gathering places and fish migration routes. this makes the area covered by the proposal include both the areas that really need protection and avoid blind expansion, which will trigger opposition from neighboring countries. 5.1.4 conservative selection of relevant protective measures given the attitude of the international maritime organization towards new associated protective measures and the degree of acceptance of associated protective measures by various flag states, china can choose associated protective measures in a conservative manner when it first applies for particularly sensitive sea areas. it can choose those associated protective measures that have been frequently used in practice, are widely used, and are most important for routeing measures. among routeing measures, it is mainly necessary to choose measures to avoid waters and traffic separation schemes. these two measures have a high degree of acceptance and are guaranteed by imo legal documents, so they are suitable for countries applying for the first time to use in their proposals. although each region may require some unique associated protective measures, these can be modified or supplemented after a successful application, so in the initial application china can choose those associated protective measures that are commonly used and relatively conservative. even if the results do not meet expectations, they can be supplemented and replaced in subsequent amendments. 5.1.5 tableskeeping abreast of changes in the international maritime organisation application process the particularly sensitive sea areas (pssas) is still evolving and is usually revised by the international maritime organization in the form of amendments every year. although the content of the revisions in recent years has been relatively stable, china still needs to pay close attention to it. for example, there have been revisions to some terms and the addition and deletion of procedures. these seemingly insignificant changes can cause problems in the application process if they are not paid attention to. not only does attention need to be paid before applying, but if the application is successful, china needs to pay attention to changes in the pssas regime so that it can make adjustments according to changes in the procedures. 5.2 responses in implementation 5.2.1 strengthening domestic legislation for alignment systems australia has not only successfully applied for the world’s first particularly sensitive sea area (pssas), but also has relatively comprehensive domestic legislation on the routeing system. its system is worth learning from. for example, the offshore constitutional settlement agreement, which clarifies the functions of local and central governments and thus facilitates the central government’s unified management of shipping activities; the marine protection (prevention of pollution from ships) act 1983, which regulates routeing measures as a whole; the great barrier reef marine park management regulations, which separately stipulate routeing measures in particularly sensitive sea www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 115 published by scholink inc. areas; and the maritime and coastal transport security act, which connects domestic legislation with foreign legislation. china can take its own actual situation into account and add to its domestic law provisions on the conditions and scope of the ship routeing system. specific provisions should be made on related matters to avoid the emergence of general and ambiguous legal provisions. in addition, the connection with imo treaty instruments should be strengthened. china can draw on the general provisions on routeing measures to legislate on routeing measures, and supporting policies should be provided to support the implementation of international conventions. only in this way can domestic legislation be truly improved and the implementation of the particularly sensitive sea areas regime be guaranteed. 5.2.2 clarify the main body of implementation and its powers and responsibilities the ministry of transport is responsible for the overall planning of ship routing issues in china. in areas where the particularly sensitive sea areas (pssas) regime is implemented, there may be overlapping jurisdictions between different maritime authorities or overlapping responsibilities between departments. at this time, the ministry of transport needs to take the lead and delineate clear jurisdictions among different maritime authorities. coordinate among departments such as ports, fisheries, and maritime police enforcement. in this way, the implementation entity and its rights and responsibilities are clear. 5.2.3 improving law enforcement procedures in order to ensure the smooth implementation of relevant protective measures, china also needs to improve its law enforcement procedures and formulate stricter enforcement standards for ship routing. these standards should include the severity of violations, the level of punishment, the daily supervision process and methods, and the specific legal consequences. in addition, china can strengthen the construction of law enforcement teams. no matter how good the procedures are, they still need to be implemented by a high-quality team. although china’s coast guard and other departments have a high level of law enforcement, they still lack experience in law enforcement in particularly sensitive waters. china can strengthen communication and exchanges between law enforcement departments such as the china coast guard and other countries, learn from each other, and draw on their law enforcement experience in particularly sensitive waters. for example, the australian coast guard, the us coast guard, etc. 5.2.4 improvement of technical skills in order to ensure the smooth implementation of relevant protective measures, technological improvements are essential. introduce a vessel traffic management system (vts) and a ship reporting system (srs). establish more shore-based monitoring stations around particularly sensitive sea areas, and promote the installation of unified communication facilities or satellite facilities on ships of flag states. increase scientific research in relevant waters, and monitor and warn of the hydrology, ecology, and weather in relevant waters. in addition, increase investment in transportation facilities and communication equipment for law enforcement teams to ensure their law enforcement capabilities and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 116 published by scholink inc. the effectiveness of the implementation of relevant protection measures. 5.2.5 shared co-operation to set up joint law enforcement units invite coastal countries to establish joint law enforcement departments in some special areas with an equal attitude and the concept of sharing and co-construction. based on the principle of a community of maritime interests, we should not belittle either party and respect all coastal countries. we should learn from the experience of establishing joint law enforcement departments in countries in particularly sensitive sea areas such as the torres strait and the northwestern mediterranean, as well as from cases that have been successfully implemented domestically. for example, the mekong river joint patrol law enforcement command. fully communicate with coastal countries, seek common ground while reserving differences, and reach an agreement. resist interference and obstruction from external forces through sharing and co-construction. 6. conclusions the pssa regime has matured over more than 30 years of practice. however, it is still an area to be explored for china. if china chooses to apply it, it will inevitably encounter many problems such as the lack of an application coordination agency, disputes over the application area, restrictions on related protective measures, the lack of domestic legislation, and imperfect enforcement procedures. studying these issues in advance and analysing practical countermeasures will have a positive impact on the future application of pssa in china. references blanco-bazán, a. 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(2009). compulsory pilotage in the torres strait: overcoming unacceptable risks to a sensitive marine environment. ocean development & international law, 40(2), 184-203. https://doi.org/10.1080/00908320902864797 https://doi.org/10.1080/00908320902864797 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 260 original paper research on the realistic challenges and implementation paths of new quality productivity driving high-quality development of the ocean xue ting 1,a,* & zhang wenjia 1,b 1 school of marine law and humanities, dalian ocean university, dalian, liaoning, china 2573484459@qq.com * corresponding author 2 school of marine law and humanities, dalian ocean university, dalian, liaoning, china 17616755040@163.com received: october 12, 2025 accepted: november 02, 2025 online published: november 28, 2025 doi:10.22158/elp.v8n2p260 url: http://dx.doi.org/10.22158/elp.v8n2p260 abstract to build a maritime power, pursue the sea and pursue the dream of dark blue, it is necessary to accelerate the construction of new marine productivity, which is an important strategic starting point to promote high-quality development and realize chinese path to modernization. the marine new quality productivity is the internal requirement for promoting the sustainable development of the ocean, and is also the strategic choice to achieve chinese path to modernization. this paper analyzes the realistic dilemma of the current high-quality development of the ocean, and proposes the realization path of the new quality productivity to promote the high-quality development of the ocean, in order to speed up the pace of building a maritime power. keywords new quality productivity, high quality development of the ocean 1. the value implication of new quality productivity in promoting high-quality development of the ocean firstly, the "new" in marine new quality productive forces embodies the organic unity of technological breakthroughs, new factor compositions, and industrial upgrades. its new technologies emphasize revolutionary breakthroughs with scientific and technological innovation at the core, surpassing traditional technological innovation and focusing on the effective translation of science and technology www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 261 into productive forces. the emergence of new quality productive forces not only enriches the types of means of labor and objects of labor in the marine field but also vigorously promotes the transformation of production methods and innovation in material productive forces. new business forms focus on upgrading traditional marine industries through technology and the industrialization of technology, transforming towards more forward-looking, pioneering, digital, and green industries, thereby achieving industrial transformation on a broader scale and with greater intensity. as a core element of the marine economy, new quality productive forces in the ocean play a pivotal role in promoting the ecological stability of coastal regions and are key to advancing the strategy of building a strong maritime nation. while implementing the concept that new quality productive forces are green productive forces and promoting the intensive development of the marine economy, it is necessary to fully integrate new quality productive forces with marine industries, enhance their scientific and technological innovation capability in the marine field, and leverage technological innovation as the core engine for the high-quality development of the marine economy (xie & li, 2024). 1.1 marine new quality productive forces are an intrinsic requirement for promoting sustainable ocean development driven by technological innovation, marine new quality productive forces provide new means for marine resource development, marine ecological environment protection, and marine equipment manufacturing. they reshape the marine industrial system, spawn new business forms, and offer new solutions to long-standing problems constraining marine development. they are of great significance for advancing the modernization of ocean governance and building a maritime community with a shared future. marine new quality productive forces can promote the formation of a new pattern of high-quality synergistic development between marine endeavors and industries. their characteristics determine that they are both an effective means to solve marine problems and the most dynamic innovative force within marine industries. building a strong maritime nation, as an important part of fully constructing a modern socialist country, not only highlights the critical role of the ocean in national development but also reflects china's firm determination to deepen the understanding of marine resource value, strengthen marine ecological environment protection, and accelerate the integration of marine science and technology with the economy. the construction of a maritime community with a shared future also requires current attention. building this community reflects china's responsibility in deeply participating in global ocean governance and demonstrates the global consensus on promoting the harmonious coexistence of humanity and the ocean. the proposal of the concept of a maritime community with a shared future represents the culmination of an ocean view across three dimensions: "subject-space-time," corresponding respectively to the marine life community, the marine world community, and the marine development community, emphasizing the overall interconnectedness and synergistic construction of the global marine ecosystem, equality, mutual benefit, cooperation, and win-win outcomes among over www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 262 150 maritime countries (regions), and the sustainable development and shared well-being of the world's marine economy. with the continuous development of china's maritime endeavors, the marine economy holds an important strategic position in high-quality development, and the ocean's status as a strategic area for high-quality development is increasingly prominent. the marine economy plays an irreplaceable role in becoming a new growth point for the national economy, expanding domestic demand, breaking resource bottlenecks, and accelerating the transformation of old and new growth drivers. the strategic position of the marine economy in high-quality development is reflected not only in its abundant marine resource endowment, continuous innovation-driven effects, significant open demonstration effects, important regional coordination significance, and core security functions but, more importantly, in how the ocean-oriented economy carries the expansion of economic activity space from land to sea, promotes dual domestic and international circulation markets from sea back to land, and realizes the high-quality economic development mode and grand strategic pattern of land-sea economic integration. building a strong maritime nation is also an inevitable mission for the great rejuvenation of the chinese nation. it must be viewed from the overall perspective of the cause of socialism with chinese characteristics, coordinating both domestic and international situations and coordinating land and sea development. from multiple perspectives, building a strong maritime nation has significant and far-reaching impacts on promoting national high-quality development, safeguarding national sovereignty and security, promoting ecological civilization construction, and participating in global governance. it not only helps promote the sustained and healthy development of the domestic economy, enhance china's comprehensive strength and international influence in the maritime field, but also favors achieving a win-win situation for economic development and environmental protection. it helps actively participate in the reform and construction of the global governance system, creating more favorable internal and external conditions for the great rejuvenation of the chinese nation. by reducing the cost of marine resource development, it promotes sustainable ocean development. ocean development is characterized by high difficulty, high technology, and high risk. developing marine new quality productive forces, based on technological innovation, marine resource development, and r&d of high-end marine equipment, combined with the realization of marine resource value, enables rapid iteration and cost reduction, thereby lowering the cost of marine resource development. it gathers resources through innovation, accelerating the construction of a maritime community with a shared future. currently, as a new extension of the concept of a human community with a shared future in the maritime field, the concept of a maritime community with a shared future has become a consensus among nations worldwide. accelerating the development of marine new quality productive forces and creating global platforms for innovation cooperation can provide lower-cost, higher-performance solutions for ocean governance, build a mutually beneficial path for marine development, and contribute chinese wisdom to promoting a new global maritime landscape. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 263 1.2 marine new quality productive forces are a strategic choice for realizing chinese modernization the ocean is a strategic area for high-quality development. to build a strong maritime nation, harness the ocean's potential, and pursue the dream of the deep blue, it is necessary to accelerate the development of new quality productive forces in the ocean, which is a crucial strategic lever for promoting high-quality development and realizing chinese modernization [2] . in recent years, driven by the accelerated iteration of digital technologies and the upgrading of national strategic measures, digitalization has become a key means to promote industrial upgrading and enhance industrial competitiveness. marine new quality productive forces focus on marine informatization, digitalization, and greening as the main lines, integrate scientific and technological innovation resources, and introduce new technologies, business forms, models, and drivers [3] , optimizing the combination of factors such as data, resources, capital, and labor in the marine field, to promote the deep transformation and upgrading of marine industries and build a modern marine industrial system—an advanced form of productive forces. the chinese path to modernization must promote comprehensive material abundance and all-round human development, insisting on safeguarding and improving people's livelihoods in the course of development, encouraging joint efforts to create a better life, and continuously realizing the people's aspirations for a better life. building a maritime power entails diverse connotations and outcomes, but it cannot deviate from the fundamental requirement of being people-centered. meeting the multi-level and diversified needs of the public regarding the ocean serves as a crucial criterion for assessing the progress of maritime power construction. targeted measures must be taken to address the pressing "pain points" and "shortcomings" in the marine sector as perceived by the public, effectively ensuring national security in energy, food, water resources, and other areas, safeguarding the public's rights to enjoy pristine seas and clean beaches, guaranteeing a stable supply of high-quality seafood, and striving to meet the people's growing demand for a better life while continuously enhancing their sense of achievement in the development of a maritime power. the chinese path to modernization is one of harmonious coexistence between humanity and nature. respecting, adapting to, and protecting nature are intrinsic requirements for building a modern socialist country in all respects. a healthy ocean is the fundamental requirement for constructing a maritime power, and balancing the relationship between humanity and nature as well as development and conservation must be treated as a major principle in advancing work. further improving the marine resource development and conservation system while maintaining ecological security boundaries will comprehensively enhance marine resource utilization efficiency, protect marine biodiversity, and achieve "development through conservation and conservation through development," safeguarding our vast and beautiful blue homeland. "building a maritime power requires vigorously developing marine high-tech." advanced marine technology is a hallmark of a maritime power, yet compared to developed maritime nations, china's marine technological innovation capabilities remain insufficient, with few original and high-value-added www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 264 innovations, and notable "bottlenecks" in core and key common technologies. leveraging the advantages of the new national innovation system, we must uphold the strategic goal of achieving high-level self-reliance and self-improvement in marine technology, optimize the national marine scientific research framework, and comprehensively shape new advantages for future marine development. accurately grasping the trends in marine technology, we must focus on breakthroughs in deep-sea, green, and safe marine high-tech fields. the chinese path to modernization is one of peaceful development. as an emerging maritime power, china is increasingly becoming a central theme in the world stage, with its development offering more opportunities and injecting strong momentum into the region and the world. while integrating domestic marine conservation and utilization efforts with the fulfillment of international treaties and obligations to demonstrate the responsibility of a major country, we must also actively share china's wisdom and achievements in marine governance with the international community, continuously expanding the "maritime circle of friends," and deeply participating in global marine governance to safeguard national maritime interests. the ocean is a strategic area for high-quality development. the innovation in means of labor brought by marine new quality productive forces will promote digitalization, refinement, and greening as new trends in the future development of marine industries, drive significant improvements in the efficiency of marine resource development and utilization, and substantial growth in output value. promoting the development of the marine economy holds profound significance and practical value for china's high-quality economic development and the realization of chinese modernization. 2. the practical challenges of new productive forces in promoting high-quality marine development 2.1 key marine core technologies urgently need breakthroughs in recent years, china has achieved significant breakthroughs by vigorously advancing marine science and technology innovation, establishing a relatively comprehensive marine science and technology innovation management system. however, compared to developed countries in marine science and technology, china's innovation mechanisms remain imperfect, with outdated scientific management, severe underinvestment in r&d, and weak innovation capabilities. the overall development level lags behind, lacking core competitiveness, particularly in areas such as marine remote sensing, marine navigation and positioning, direct seawater utilization, and marine energy utilization technologies. these gaps make it difficult to provide strong technological support for the rapid growth of china's marine economy. currently, there are still deficiencies in china's core technologies in the marine field. in the realm of high-end shipbuilding and offshore equipment manufacturing, these enterprises need to further enhance their independent research and production capabilities for core technologies and key components when assembling equipment. additionally, the mechanism for cooperation between industry, academia, and research needs to be improved. taking shandong province, which has strong marine economic strength, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 265 as an example, basic research results account for about four-fifths of the province's scientific and technological achievements, while the remaining one-fifth are applied research results. the matching degree between scientific research achievements and market demand still needs to be improved, and there is an urgent need to establish an integrated mechanism for cooperation between enterprise needs and university research and development. thirdly, the research level in basic fields related to the development of the marine economy needs to be further improved. for example, china still has a certain gap compared to international advanced research levels in the fields of marine biotechnology and pharmaceuticals, which restricts the development of the marine pharmaceutical and biological products industry (zhao, 2022). 2.2 the structure and layout of the marine economic industry are unreasonable in the face of increasingly fierce competition for maritime rights and interests, the cpc central committee and the state council have set the strategic goal of developing the marine economy and building a strong maritime nation. however, in reality, china's marine economy faces severe imbalances, with multiple contradictions such as the overall development of the marine economy and the lack of clear maritime strategic priorities, the continuous deepening of marine economic development and the relative lag of marine management systems and mechanisms, the over exploitation of offshore resources and the relative lag of deep-sea resource development, the overall lagging development and excessive local development, and the relatively weak development of high-level marine resources and core technology research and development capabilities, which restrict the macro guidance role of the marine economic strategy. the scientific, guiding, and operable nature of the overall planning and development strategy for the marine economy urgently needs to be strengthened. the irrational industrial structure and layout present a significant challenge to the current development of the marine economy. for a long time, china's marine resource development has been extensive, with low intensive utilization, leading to an uneven development of the marine economy. some regions and sectors have experienced excessive development intensity, while others have been relatively underdeveloped. this unbalanced development not only affects the overall efficiency of the marine economy but also limits its sustainable development capacity. the layout of marine industries tends to be similar, and the development and utilization efficiency of advantageous resources such as coastlines and ports is low. for instance, in some marine industry clusters, especially near the coastlines of major cities, various industries competitively and extensively seize and use coastlines, resulting in a lack of coordination between production, living, and ecological spaces. this has led to prominent contradictions between ports and cities, a lack of waterfront spaces, damage to ecological spaces, and a series of other issues (liu, 2024). furthermore, issues such as overlapping functional zones in oil and gas resource extraction areas with existing marine functional zoning, and the intertwining of oil and gas development with marine ecological red lines, increase the potential risks of marine ecological and environmental protection. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 266 2.3 there are loopholes in marine economic management the overall level of marine economic management in china has shown a continuous upward trend, but there are still some challenges and room for improvement. firstly, there is a lack of inspection norms and standards. for example, the inspection standards for marine ranching platforms have not kept pace, resulting in some platforms being unable to undergo inspection, which has affected the development of the marine ranching industry. secondly, the talent structure is unreasonable. taking shandong as an example, although the province has strong marine science and technology capabilities, the talent structure is unreasonable, with a shortage of high-end engineering and technical talents. although the shandong peninsula blue economic zone has abundant marine science and technology capabilities, there is a lack of practical and skilled talents, which has affected the innovation and development of the marine industry. the relationship between the central and local governments has not been straightened out yet. the establishment of marine management institutions is inconsistent, and comprehensive regulations are lagging behind, which has affected the coordination and management of the marine economy. currently, china's marine economic management system primarily features a combination of comprehensive management and segmented management, characterized by "vertical and horizontal" divisions (xing, liu, liu et al., 2012). marine industry management is the responsibility of various national departments, adopting a hierarchical management system; marine comprehensive management, on the other hand, is led by the state oceanic administration, which is responsible for organizing and coordinating various marine management tasks (hu & li, 2014). however, a unified and coordinated mechanism and institution for marine administrative management and maritime law enforcement management have not yet been established, leading to difficulties in coordinating contradictions and conflicts among departments during marine development, and responsibilities are not fully implemented. 3. the realization path of promoting high-quality development of the ocean with new productive forces 3.1 strengthen scientific and technological innovation and technological application to enhance the level of marine productivity with the rapid development of the global economy and the increasing demand for marine resources, enhancing marine productivity has become a common concern for all countries. in this process, scientific and technological innovation and application play a crucial role. strengthening scientific and technological innovation and application, and improving the level of marine productivity, are key ways to enhance marine governance capabilities. strengthening scientific and technological innovation is the foundation for enhancing the level of marine productivity. technological innovation can promote the optimization and upgrading of the marine industrial structure and improve the efficiency of marine resource development and utilization. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 267 by developing innovations in fields such as deep-sea exploration technology and marine biotechnology, marine mineral resources can be more effectively exploited, and marine energy production can be increased. through research and development of new marine materials and seawater desalination technologies, the cost of marine development can be reduced and resource utilization can be improved. technological innovation can also drive advancements in marine environmental protection technology, reduce marine pollution, and safeguard the health of marine ecosystems [8] . strengthening technological application is the guarantee for enhancing the level of marine productivity. technological application can transform the achievements of scientific and technological innovation into actual productivity, thereby promoting the development of the marine industry. by promoting advanced marine aquaculture technology, marine fisheries management technology, etc., the output and quality of the marine aquaculture and fisheries industries can be improved. by applying marine engineering, marine architecture, and other technologies, more efficient marine infrastructure can be constructed, enhancing the development level of marine transportation, tourism, and other industries. technological application can also promote the integrated development of the marine industry with other industries, expanding the development space of the marine industry. promote the deep integration of the marine economy into major national regional strategies, and establish a number of high-quality marine economic development demonstration zones, specialized marine industry clusters, and modern marine cities. enhance the level of autonomy in marine equipment manufacturing, promote the large-scale development of seawater desalination and comprehensive utilization, facilitate the diversified development and application of marine clean energy, and accelerate the industrialization process of marine drugs and biological products. promote the green and low-carbon transformation of traditional marine industries, develop deep-water offshore aquaculture and sustainable deep-sea fisheries, store and utilize marine oil and gas safely, and promote the green, intelligent, and safe upgrading and transformation of ports. accelerate the development of modern marine service industries, enhance the professionalization level of modern maritime and commercial service industries, promote the quality upgrading of marine culture and tourism, and support the integrated development of the digital economy in the marine field. optimize the use of financial instruments to support the green and low-carbon development of the marine economy. strengthen national scientific and technological capabilities in the marine field, enhance the layout of national laboratories, state key laboratories, etc., and build a national deep-sea gene bank, a national deep-sea specimen museum, and a national deep-sea big data center, promoting the construction and efficient operation of a national comprehensive marine test site. increase the input of elements for basic and frontier research, and promote original breakthroughs in directions such as marine dynamic processes, land-sea interactions, and changes in marine ecosystems. support the research and development of core equipment for deep-sea scientific exploration, oil and gas mineral resource exploration, and biological gene resource exploration and development. continue to implement the "chip" project for marine forecasting. improve the effectiveness of the transfer and transformation of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 268 marine scientific and technological achievements, and create a number of leading enterprises with strong innovation capabilities and "specialized, refined, unique, and innovative" small and medium-sized enterprises. strengthening scientific and technological innovation and technology application, and enhancing the level of marine productivity, are key ways to improve ocean governance capabilities. governments of all countries should fully recognize this and take effective measures to promote the development of marine scientific and technological innovation and technology application, contributing to the achievement of sustainable marine economic development and global ocean governance. 3.2 promote industrial upgrading and transformation, and enhance marine economic strength with the continuous deepening of global economic integration, the marine economy has become an important pillar of economic development for various countries. in recent years, with the rapid development of marine technology, china has made remarkable achievements in deep-sea exploration, development, and utilization. advanced deep-sea drilling platforms, intelligent marine monitoring systems, and independently developed deep-diving equipment have become important "weapons" leading the development of the blue economy. these deep-sea technologies not only facilitate the upgrading and transformation of traditional marine industries but also promote the rapid rise of emerging marine industries. as a new engine of future economic growth, the blue economy carries enormous development potential. by continuously strengthening the innovation and nomy. these deep-sea "weapons" not application of deep-sea technology, we will further expand the space for the development and utilization of marine resources, providing strong impetus for the sustainable development of the global ecoonly endow china's marine economic development with new momentum but also paint a grand prospect for realizing the blueprint of the great rejuvenation of the chinese nation. as the largest developing country in the world, the development of the marine economy is of great significance for enhancing the country's comprehensive strength. in order to achieve sustainable development of the marine economy, it is necessary to promote industrial upgrading and transformation, and enhance the strength of the marine economy. we should increase support for emerging marine industries, which serve as a new driving force for marine economic development, encompassing marine biotechnology, marine new energy, marine new materials, and marine high-end equipment manufacturing, among others [9] . the government should formulate corresponding policies and measures to encourage enterprises to increase r&d investment, guide capital towards emerging marine industries, and cultivate a number of internationally competitive clusters of emerging marine industries. in the process of cultivating new productive forces in the marine field, we must break through the bottlenecks and bottlenecks that hinder the development of new productive forces, allowing various advanced production factors to flow towards the development of new productive forces. we should coordinate the present and the future, focusing on the current bottlenecks and difficulties that restrict the high-quality development of industries and making precise efforts, while also aiming at frontier www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 269 fields and forward-looking technologies to develop new business forms, new technologies, and new products. we should leverage the market advantages of enterprise demand traction, r&d funding investment, organized r&d management, and technology achievement transformation and incubation, gather to build interdisciplinary and cross-field joint research institutes and r&d centers, utilize digital technology to promote interdisciplinary and cross-field team collaboration, carry out organized r&d, jointly tackle key core technologies, accelerate the formation of a "entrepreneurial innovation" model that is product-oriented and enterprise-centered, break through the innovation chain, integrate the industrial chain, and collaborate in talent cultivation during joint problem-solving. focusing on the development trends of emerging marine industries, we should continuously improve the efficiency of the transformation of scientific and technological achievements in the marine field of universities, strengthen the integration of scientific research and industrial needs, promote the tackling and industrialization of key core technologies, address the pain points of the industrial chain, leverage the advantages of innovative resources, accelerate the transformation of scientific and technological achievements, break through the bottlenecks of the innovation chain, embed innovation into all aspects and processes of industrial development, and transform scientific research achievements into actual productive forces. we must strengthen the national strategic scientific and technological force, optimize the allocation of innovation resources, refine the positioning and layout of national scientific research institutions, high-level research universities, and leading technology enterprises, enhance basic research in the marine field, advance key and core technology research, and achieve high-level scientific and technological self-reliance and self-improvement. we should strengthen the construction of major marine science and technology innovation platforms, support the development of basic, original, and forward-looking marine science and technology innovation research and development, continuously emerge the latest achievements in the marine science and technology field, and provide a strong driving force for the development of new productive forces. we should act as a "incubator" for three-dimensional linkage in the marine field, an "accelerator" for the transformation of achievements, and a "promoter" for the integration of the two chains, promoting the high-end, intelligent, and green development of marine-related industries. we should vigorously promote the continuous iteration and upgrading of industries such as marine engineering equipment, marine energy and minerals, marine electronic information, and marine biomedicine, cultivate a number of specialized marine industrial clusters, and continuously expand the basic foundation of the marine economy. in today's increasingly fierce global technological competition, scientific research and technological breakthroughs have become the key to enhancing a country's core competitiveness. especially in the marine field, the improvement of independent innovation capability determines whether china can occupy a favorable position in future international competition. we must continue to invest in scientific research and technological breakthroughs to achieve multiple major breakthroughs in marine energy development, marine biotechnology, and marine equipment manufacturing. the generation of scientific www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 270 research achievements can not only promote the transformation and upgrading of the marine industry but also inject new vitality into the construction of a maritime power. in the future, by strengthening scientific research and technological breakthroughs, cultivating more advanced marine industries, and continuing to consolidate china's leading position in the global marine economic landscape, we will provide solid scientific and technological support for achieving high-quality economic development. 3.3 strengthen policy guidance and institutional cconstruction, and optimize the marine governance environment to improve the legal and regulatory system, formulating and refining relevant marine laws and regulations is the foundation for ensuring marine governance capabilities. the government should strengthen the research and formulation of marine laws, and promptly revise and improve existing laws and regulations to meet the needs of marine governance. it is also necessary to strengthen the promotion and popularization of marine laws and regulations, and enhance the public's legal awareness and concept of the rule of law. to establish a sound management mechanism, the government should set up a specialized agency responsible for ocean governance, clarify the responsibilities and tasks of each department, and form a joint force to promote ocean governance work. a scientific assessment and evaluation system should also be established to conduct regular assessments and supervision of ocean governance work, ensuring the effective implementation of various measures. it is necessary to strengthen international cooperation and exchanges. marine issues on a global scale are becoming increasingly prominent, requiring joint responses from all countries. the government should actively participate in international ocean affairs and strengthen cooperation and exchanges with other countries and regions. by conducting joint research, co-construction, and sharing, the capacity for ocean governance can be continuously improved. we should strengthen the support for scientific and technological innovation, which is one of the important means to enhance ocean governance capabilities. the government should increase investment in marine science and technology research and development, encourage enterprises and scientific research institutions to carry out innovative research, and promote the application and promotion of technological achievements in the field of ocean governance. remote sensing technology can be utilized to monitor changes in the marine ecological environment and develop new types of marine clean energy. references chang, w. r., li, s. n., & qiao, x. (2024). research on the current situation and countermeasures of green and low-carbon development of liaoning's marine economy under the background of ecological civilization. liaoning economy, (03), 53-58. http://dx.doi.org/10.14041/j.cnki.1003-4617.2024.03.014 hu, x. z., & li, l. (2014). rethinking and reconstructing national marine policy. china reform, (02), www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 271 88-94+120 liu, h., zhang, l. y., zhu, x. f. et al. (2024). current status and countermeasures of china's marine economic development. cooperative economy and technology, (18), 16-19. http://dx.doi.org/10.13665/j.cnki.hzjjykj.2024.18.043 niu, l. l. (2024). theoretical implications, formation logic, and practical paths of new productive forces "empowering" high-quality development of the marine economy. cultural and educational materials, (07), 79-83 xie, b. j., & li, q. w. (2024). the logic and path of new productive forces driving high-quality development of the marine economy. southeast academic journal, (03), 107-118+247. http://dx.doi.org/10.13658/j.cnki.sar.20240507.005 xing, g. m., liu, z. w., liu, j. r. et al. (2012). on the necessity and urgency of formulating china's "basic law of the ocean". journal of xi'an political university, 25(01), 84-86 yang, j. (2013). research on the connotation and development path of modern marine industry system. business research, (04), 48-51. http://dx.doi.org/10.13902/j.cnki.syyj.2013.04.001 zhao, x. (2022). current status, challenges, and trends of marine economic development. people's forum, (18), 80-83 zhao, x. n. (2024). addressing weaknesses, overcoming bottlenecks, and vigorously developing new agricultural productivity—a conversation with zhang hecheng, luo biliang, wang xiaoqing, and gan yuantian. china food, (09), 28-33 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 162 original paper research on the current situation and countermeasures of international commercial arbitration in china songqi liu 1 1 school of ocean law and humanities, dalian ocean university, dalian, china received: september 5, 2025 accepted: september 17, 2025 online published: september 19, 2025 doi:10.22158/elp.v8n2p162 url: http://dx.doi.org/10.22158/elp.v8n2p162 abstract this article aims to systematically analyze the current development status, existing problems and countermeasures of international commercial arbitration in china. china’s international commercial arbitration takes the arbitration law of the people’s republic of china as its core legal framework, relies on international treaties such as the new york convention to achieve cross-border enforcement, and gradually forms an international arbitration institution system. however, it still faces challenges such as the absence of a provisional arbitration system, insufficient internationalization of institutions, lagging rules for the application of digital technologies, a shortage of high-end foreign-related talents, and insufficient capacity to deal with new types of disputes. this article proposes that systematic measures should be taken, including establishing a dual-track legislative model of interim arbitration and institutional arbitration in parallel, expanding the openness of the arbitration system, optimizing the structure of arbitrators and multilingual service capabilities, clarifying the procedural boundaries and ethical rules of artificial intelligence applications, strengthening foreign-related arbitration and the training of legal talents in countries along the “belt and road”, and exploring special arbitration rules for new types of disputes such as esg to comprehensively enhance the international competitiveness and credibility of china’s international commercial arbitration, and provide support for building a new highland of arbitration in the asia-pacific region and serving high-level opening up to the outside world. keywords international commercial arbitration, provisional arbitration, arbitration institutions, artificial intelligence www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 163 published by scholink inc. 1. analysis of the current situation of international arbitration in china 1.1 legislative basis of international commercial arbitration in china china’s international commercial arbitration has developed relatively early. domestically, the “arbitration law of the people’s republic of china” serves as the core of the law. chapter 7 of this law specifically regulates foreign-related arbitration. it will be further revised in 2024, clarifying interim arbitration and improving the standards for determining the validity of arbitration agreements, among other contents. the corresponding chapter 26 of the civil procedure law of the people’s republic of china also makes specific provisions. as supplementary judicial interpretations, the “interpretation on several issues concerning the application of the arbitration law of the people’s republic of china” and the “provisions on several issues concerning the judicial review of arbitration” unify the reporting system for judicial review of arbitration in the mainland and foreign-related arbitration. the relevant jurisdictional courts except for maritime and commercial cases have been clearly defined, and the principle of “conducive to the validity of the agreement” shall be followed when the two parties have not agreed on the applicable law of the arbitration clause. china’s accession to the new york convention in 1987 constitutes the core basis for cross-border enforcement. 1.2 current situation of international commercial arbitration institutions in china the major international commercial arbitration institutions in china include the china international economic and trade arbitration commission (cietac), the beijing arbitration commission (bac), the shanghai international economic and trade arbitration commission (shiac), and the shenzhen court of international arbitration (scia). all of them have ranked among the world’s most active arbitration institutions. these institutions have revised arbitration rules, introduced emergency arbitrators, consolidated arbitration, third-party funding and other systems, and expanded the proportion of foreign arbitrators on the list. in some institutions, the proportion of foreign arbitrators exceeds 30%, such as scia, which pays more attention to the internationalization of the arbitrator structure. the newly established international arbitration courts in hainan, chengdu-chongqing and other places, relying on the policy advantages of the free trade zones, have been actively exploring innovations in cross-border arbitration rules. for instance, the hainan international arbitration court allows the parties to agree that overseas arbitration institutions will manage domestic arbitration procedures. all major institutions have established relatively complete systems for the list of arbitrators and are gradually transitioning to an “open list” system, allowing parties to appoint arbitrators outside the list. in terms of the adjudication mechanism, chinese arbitration institutions adhere to the “final award” principle, meaning that once an arbitration award is made, it has final effect and does not require a court review. meanwhile, the institution has established certain internal mechanisms for controlling the quality of arbitration awards, such as a review system for draft awards, to ensure the fairness and legal consistency of the arbitration results. some institutions have also established dedicated research departments to provide procedural or substantive guidance on major and complex cases, thereby enhancing the overall quality of adjudication. however, from the perspective of the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 164 published by scholink inc. external environment, the establishment of their own office areas in china by well-known international institutions such as the court of arbitration of the international chamber of commerce and the singapore international arbitration centre, as well as the entry of many high-level international commercial arbitration institutions, will inevitably have an impact on china’s international commercial arbitration institutions and create intense competition with them. but competition can promote the development of international commercial arbitration in china (guo, l. l., 2024). 1.3 arbitration institutions are accelerating the pace of digital transformation although china’s international commercial arbitration is accelerating its digital transformation, compared with mature countries such as singapore and the united kingdom, china’s international commercial arbitration is still in the stage of structural optimization and mechanism integration in the application of digitalization, and has not yet formed an intelligent and interconnected systematic digital arbitration system. at present, digital technology is integrating with arbitration in the form of new concepts, new models and new business forms. intelligence has changed the trajectory of the development of the international commercial arbitration system (liu, x. h., & feng, s., 2024, pp. 63-82, pp. 200-201). in 2023, the china international economic and trade arbitration commission is committed to fully leveraging digital technologies to enhance arbitration services. focus on improving the online application system and optimizing the intelligent dispute resolution platform. in 2024, there were 1,804 cases filed online throughout the year, accounting for one-third of the total number of cases, with a year-on-year growth of 34.63% (liu, y. f., 2025, pp. 25-37). currently, artificial intelligence (ai) is playing an active role in the field of international commercial arbitration, achieving a leap from “tool-type” to “decision-making assistance type”. it can help arbitrators process relevant information more quickly, as well as draft agreements, select arbitrators, and intelligently generate judicial documents, etc. the guangzhou arbitration commission has launched the world’s first ai secretary, “zhong xiaowen”. complete the international commercial arbitration hearing without a real secretary. however, its wide promotion is still limited by multiple factors such as lagging legal rules and insufficient trust from the parties involved. 2. problems faced by international commercial arbitration in china 2.1 legislative deficiencies in china’s international commercial arbitration arbitration, as the most commonly used means of resolving international commercial disputes, is more efficient in resolving disputes compared to litigation, which is time-consuming and costly. although the “arbitration law of the people’s republic of china” has been implemented and partially adjusted, it still lags behind the progress of international commercial arbitration and fails to fully conform to the internationally accepted standards. the most prominent contradiction is reflected in the legal absence of the ad hoc arbitration system. ad hoc arbitration is a highly flexible arbitration system. its notable feature is that the arbitration process does not require the leadership of a permanent arbitration institution. the parties enjoy full autonomy and can jointly select arbitrators to advance dispute www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 165 published by scholink inc. resolution in accordance with agreed or established arbitration rules until a ruling is formed (qiao, x., 2015). at present, the 2024 “arbitration law (revised draft)” has made amendments to ad hoc arbitration. however, both article 16 and article 18 of the current “arbitration law” of china require that an arbitration agreement must select an arbitration commission, resulting in incompatibility between the legal provisions. secondly, although china has not explicitly prohibited “interim arbitration”, it has only been explored in some regions. the 2024 revised draft has significantly narrowed the scope of application of the provisional arbitration system compared to 2021, limiting it to disputes arising in foreign-related maritime affairs and disputes with foreign-related factors between enterprises registered and established in free trade zones approved by the state council. when applying “interim arbitration”, the selection of interim arbitrators and other related supporting procedures should be taken into consideration. ad hoc arbitration allows the parties to independently determine key procedural matters such as arbitration rules, the number and appointment method of arbitrators, the place of arbitration, language and applicable laws based on the characteristics of the case and their own needs. it is not bound by the fixed rules of institutional arbitration and places greater emphasis on the autonomy of the parties and the “contract-based” nature of the arbitration system. its approach is contrary to the common practice in the field of international arbitration. in a cross-cultural and different legal tradition context, ad hoc arbitration offers the parties the possibility to avoid institutional preferences and cultural conflicts. as it is not subject to the requirements of institutional filing and public announcement, the interim arbitration procedure is usually more confidential. the interim arbitration has simplified the basic process in international commercial arbitration, shortened the cost of time and money. the various advantages of interim arbitration have attracted more international commercial entities (shi, c. l., 2018, pp. 24-31). the absence of the provisional arbitration system in china has led to a decline in the competitiveness of china’s international commercial arbitration in international commercial arbitration centers, hindering the internationalization process of china’s international commercial arbitration. 2.2 the internationalization degree of arbitration institutions is insufficient it is still weak in the internationalization of arbitration institutions. although arbitration institutions represented by cietac have carried out international arbitration business, their composition of arbitrators, arbitration language, and procedural design still show a trend of localization. according to statistics, the proportion of foreign arbitrators currently registered with cietac is less than 30%, and the majority of foreign arbitrators have not participated in substantive case adjudication. according to the 2023 annual report of cietac, foreign arbitrators were appointed a total of 136 times throughout the year, among which 90 times were solely held by foreign parties. there are still deficiencies in the internationalization of the institution. meanwhile, the majority of arbitration proceedings are conducted in chinese. according to the cietac report, only about 2% of cases were handled in pure english or bilingual (chinese and english) in 2022, reflecting that english support remains relatively weak. it sets a threshold for international commercial parties whose main language is english. strengthening the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 166 published by scholink inc. guarantee of foreign-related legal talents is the primary task for promoting the high-quality development of the belt and road initiative and realizing its institutionalization (qi, s., & ren, l. f., 2024, pp. 351-366). many countries along the belt and road initiative use minor languages as their national languages, and different legal systems and cultural backgrounds have all increased the cultivation of legal talents related to international business in china. at present, the vast majority of higher education institutions focus on the output of domestic legal theories, while the cultivation of practical abilities in international arbitration is relatively scarce, and high-quality specialized projects are also scarce. there are approximately 640 regular colleges and universities across the country that offer law-related majors, among which only about 30 have substantially established commercial arbitration courses. these institutions mainly include 20 leading universities participating in the joint master’s program in international arbitration by the ministry of education and the ministry of justice, as well as a few universities that independently offer in-depth arbitration practice courses. overall, the proportion of law schools that systematically offer commercial arbitration courses is only about 4.7%. under the background of the belt and road initiative, there is a significant gap between this proportion and the urgent need for international arbitration talents. 2.3 legal challenges of digital technology in international commercial arbitration based on algorithms and deep learning technologies, artificial intelligence can assist arbitration tribunals in organizing evidence, focusing on disputes, automatically forming tribunals and advancing procedures, and helping to write awards, comprehensively enhancing arbitration efficiency and effectively reducing costs. digital technology is not neutral. the application of artificial intelligence can significantly reduce the amount of case files that arbitrators review, more efficiently complete the ascertaining of case facts, and achieve a certain accuracy rate. the overall case processing time can be reduced to two-thirds. however, as long as 1% of errors are implemented in the case, it may affect the fairness and impartiality of the case (ma, c. s., 2024, pp. 127-142). in the arbitration mechanism, a virtualized arbitration system may have an impact on the autonomy of the parties’ will. firstly, in a virtual hearing, when the parties to the arbitration have agreed to resolve the dispute through arbitration but have not reached an agreement on whether to adopt a virtual hearing, or when one party explicitly opposes the online procedure, does the arbitration tribunal have the right to forcibly arrange an online hearing? if both parties immediately and clearly express their acceptance of the virtual hearing, can the arbitration tribunal still refuse to adopt the online procedure at this time? (ning, y., 2024, p. 1138). secondly, under the virtualized arbitration system, if the parties do not agree on the place of arbitration through autonomy of will, where exactly the place of arbitration for online arbitration awards should be becomes a problem (liu, x. h., & feng, s., 2024, pp. 63-82, pp. 200-201). if the place of arbitration cannot be established, it may result in different applications of the governing law and make it impossible for both parties to determine in which country they should file a lawsuit to apply for revocation or enforcement. secondly, the application of artificial intelligence will undermine the advantages of arbitration. the resolution of commercial disputes inevitably involves a large amount of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 167 published by scholink inc. commercial sensitive information and personal information. the application of artificial intelligence will inevitably lead to a large number of judgments being made public. the supervision and security assessment mechanism for cross-border data flow is still not perfect, which is prone to cause disputes and even legal risks in foreign-related commercial disputes. 2.4 facing the predicament of handling esg disputes when dealing with disputes related to environment, society and governance (esg), china’s international commercial arbitration is confronted with a series of legal challenges and institutional bottlenecks. the current international commercial settlement mechanism in china has not yet formed a complete response system. with the development of the global era, esg has become one of the top ten important matters in international business. at present, the domestic academic circle’s research on esg is still confined to the field related to climate change response, and the research is relatively limited (gao, q., 2023, pp. 165-177). first, traditional commercial arbitration mainly focuses on property disputes, while esg disputes often involve non-property obligations, typically including carbon neutrality commitments and corporate social responsibility, and are highly dynamic and morally oriented. courts find it difficult to clearly define the boundaries of rights and obligations during case acceptance and trial, leading to the practical predicament of “difficulty in case acceptance” and “difficulty in characterization” for some esg-related arbitrations. second, the boundaries of disputes are ambiguous. traditional arbitration centers on “commercial” disputes, which are characterized by private rights, meaning that disputes are limited to the disposition of private law rights among equal civil subjects. disposability means that the parties have the right to freely dispose of the subject matter. the autonomy of will and the jurisdiction of arbitration stem from the prior or temporal agreement of the parties. from the perspective of esg, first of all, esg carbon emission responsibility involves public environmental rights, community human rights violations and social welfare, which go beyond the scope of private rights. secondly, the responsibility for environmental restoration cannot be unilaterally exempted by enterprises. finally, third-party victims such as affected workers in the supply chain and residents of contaminated communities are unable to sign arbitration agreements. 3. improve the path for international commercial arbitration in china 3.1 implement a dual-track legislative model of interim arbitration and institutional arbitration rules at present, institutional arbitration dominates the arbitration field in our country, and the arbitration law and rule system is also constructed around institutional arbitration. this model has formed a solid operational foundation and inertia. to reduce the impact on the existing arbitration system and promote the effective implementation of the interim arbitration system, it is suggested that a dual-track legislative model of parallel interim arbitration and institutional arbitration rules be established in the “revised draft”. specifically, independent rule systems should be established for each of the two arbitration models, with dedicated chapters set up to systematically regulate ad hoc arbitration. the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 168 published by scholink inc. practice of embedding ad hoc arbitration rules into the legislative framework of institutional arbitration should be abandoned. when implementing dual-track legislation, on the one hand, it is necessary to clearly distinguish the differences between institutional arbitration and ad hoc arbitration in terms of the scope of application, the determination of the validity of arbitration agreements, and the mechanism for selecting arbitrators, to avoid confusion in the application of rules. on the other hand, the coordination and interaction between the two should be strengthened. arbitration institutions can be allowed to moderately intervene in the interim arbitration procedure, providing professional support and procedural assistance for the interim arbitration to ensure the smooth progress of the interim arbitration process. expand the scope of application of the interim arbitration system. the primary task is to expand the applicable boundaries of the interim arbitration system. this can be achieved by deleting or relaxing the existing restrictive provisions on the scope of application of interim arbitration, fully respecting the parties’ right to independently choose the arbitration method, and releasing the flexible and efficient institutional advantages of interim arbitration. this move not only meets the diverse demands of the parties for dispute resolution methods, but also helps china’s arbitration system align with international common practices, enhancing the internationalization level of the arbitration field. 3.2 optimize the structure and governance mechanism to enhance the internationalization level of arbitration to address the issue of insufficient internationalization of arbitration institutions, it is urgent to promote systematic improvements from three dimensions: optimizing the structure of the arbitrator team, enhancing language service capabilities, and internationalizing institutional governance. first, a clear target for increasing the proportion of foreign arbitrators should be set. it is encouraged to introduce high-level arbitration experts with backgrounds in the common law system, eu law, and the legal jurisdictions of countries along the belt and road initiative. in particular, in international commercial cases, arbitrators with international reputation and practical experience should be given priority to be appointed as presiding arbitrators or sole arbitrators. second, improve the language system design to ensure that when parties choose common languages such as english, arbitration institutions have the corresponding procedural organization, written material processing and award writing capabilities, and safeguard the equal procedural rights of non-chinese parties. third, promote the internationalization reform of the management of arbitration institutions, introduce international experts into key governance structures such as rule-making committees and procedural supervision departments, and enhance the transparency and credibility of the system. through the above measures, it is expected to enhance the international appeal and competitiveness of china’s arbitration mechanism and achieve a true international transformation. fourth, we will promote cooperation between universities and arbitration institutions as well as law firms to establish joint training programs, strengthen practical teaching and case studies, expand the coverage and training scale of the master of international arbitration program, and encourage the establishment of more high-quality special www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 169 published by scholink inc. programs focusing on commercial dispute resolution along the belt and road initiative. 3.3 build a secure and efficient international commercial digital arbitration procedure rule system artificial intelligence should be positioned as an “auxiliary tool” rather than a “judicial subject”, and the core principle should always be to safeguard procedural justice and the autonomy of the parties’ will. during the arbitration process, artificial intelligence can be used for “technical matters” such as initial evidence screening, identification of disputed points, and process scheduling, rather than participating in the substantive judgment of the case and the determination of the award result, to ensure that the arbitration tribunal retains the final discretion and avoid the fairness of dispute resolution being affected by algorithmic errors. specialized norms should be formulated to clearly define the functional boundaries, responsibility assumption and result review mechanisms of artificial intelligence applications, and strike a balance between efficiency improvement and rights protection. secondly, the applicable boundaries of virtual procedures should be clearly defined in the arbitration procedure rules, and the parties’ right to express themselves regarding the online arbitration model should be strengthened. in terms of the application of virtual hearings, the basic principle of “voluntary participation by both parties and priority given to mutual agreement through procedures” should be established. when one party refuses an online procedure, the arbitral tribunal shall not force an arrangement. when both parties clearly express their acceptance of the virtual hearing, the arbitration tribunal should also respect the parties’ choice and must not arbitrarily refuse the online procedure arrangement. at the same time, clear regulations should also be made on the issue of “online arbitration venues” to ensure that the legal application, revocation and enforcement paths of the awards are stable and predictable. the legal effect of electronic arbitration agreements and the acceptance standards for electronic signatures can be clearly defined by referring to the arbitration rules of the international chamber of commerce and the practices of the singapore international arbitration centre, fundamentally resolving the legal application obstacles caused by the uncertainty of the arbitration venue. 3.4 system construction for addressing esg disputes in the face of the challenges posed by esg disputes to traditional international commercial arbitration mechanisms, china needs to establish an arbitration resolution system that is in line with them. it is suggested that the supreme people’s court issue judicial interpretations to clearly incorporate specific esg disputes into the category of “commercial relations”, and encourage arbitration institutions to establish dedicated esg dispute procedure rules to address the issues of “difficulty in case acceptance” and “difficulty in characterization”. in terms of jurisdiction, it is possible to allow groups whose interests have been compromised to elect representatives to participate in arbitration, or to incorporate third parties in the supply chain into the arbitration constraints through the principle of “agreement inheritance”, in order to break through the restrictions imposed on third parties by traditional arbitration agreements. to address the conflict between the demand for esg transparency and the confidentiality of arbitration, a transparency rule of “confidentiality as the principle and disclosure as the exception” www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 170 published by scholink inc. should be established, allowing the parties to jointly choose to disclose the desensitized summary of the reasons for the award to respond to public interest concerns. at the same time, it is necessary to strengthen the construction of the arbitrator team, establish a list of esg expert arbitrators and provide professional training to enhance the ability of arbitration tribunals to handle cross-disciplinary disputes. in addition, it is necessary to encourage the embedding of esg professional mediation links in the arbitration process, and take advantage of the mediation to seek comprehensive solutions including enterprise rectification, environmental restoration and other contents, so as to meet the dynamic and ethically-oriented needs of esg disputes. 4. conclusion china’s international commercial arbitration has made remarkable progress in institutional construction, rule innovation and digital transformation, and has become an important participant in the global arbitration governance system. however, it still faces challenges such as the absence of an interim arbitration system, insufficient internationalization of institutions, lagging application rules of digital technology, shortage of high-end foreign-related talents, and insufficient ability to deal with new types of disputes such as esg. for this reason systematic measures should be taken, such as establishing a dual-track legislative model of interim arbitration and institutional arbitration in parallel, expanding the openness of the arbitration system, optimizing the structure of arbitrators and multilingual service capabilities, clarifying the program boundaries and review mechanisms of artificial intelligence applications, strengthening foreign-related arbitration and the training of legal talents in countries along the “belt and road”, and exploring special arbitration rules for new types of disputes such as esg. comprehensively enhance the international competitiveness, credibility and adaptability of china’s international commercial arbitration, and provide strong support for building a new pattern of higher-level opening up and a new highland of arbitration in the asia-pacific region. references gao, q. (2023). climate change response esg litigation: strategies and pathways. dongfang legal studies, 2023(04), 165-177. guo, l. l. (2024). research on the application of rapid arbitration procedures in international commercial arbitration. jilin university. liu, x. h., & feng, s. (2024). international commercial arbitration in a time of great changes: global trends and china’s response. social sciences of china, 2024(12), 63-82, 200-201. liu, y. f. (2025). the limits of artificial intelligence application in international commercial arbitration. journal of south china university of technology (social sciences edition), 27(03), 25-37. ma, c. s. (2024). the legal boundaries of digital justice. eastern law, 2024(04), 127-142. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 171 published by scholink inc. ning, y. (2024). on the impact of virtual arbitration in international commercial arbitration on party autonomy. dispute settlement, 10, 1138. https://doi.org/10.12677/ds.2024.102156 qi, s., & ren, l. f. (2024). mechanized innovation for high-quality co-construction of the “belt and road” and legal talent support for foreign-related cases. research on legal education, 45(02), 351-366. qiao, x. (2015). arbitration law. beijing: tsinghua university press. shi, c. l. (2018). the positioning and development of international commercial arbitration in the “belt and road” dispute settlement mechanism. journal of law, 39(08), 24-31. https://doi.org/10.12677/ds.2024.102156 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 194 original paper research on enhancement of gov't functions in regional tech achievements transformation zhenyu chi1* 1 school of marine law and humanities , dalian ocean university, liaoning, dalian, china * corresponding author, e-mail: 1006202262@qq.com received: april 16, 2024 accepted: june 03, 2024 online published: june 19, 2024 doi:10.22158/elp.v7n1p194 url: http://dx.doi.org/10.22158/elp.v7n1p194 abstract the transformation of regional scientific and technological achievements is an important process of converting scientific research achievements into real productive forces, and the uneven distribution of regional resources is an inevitable problem in cross-regional innovation cooperation. to make up for the gap in scientific and technological resources, the cross-regional flow of technology has become an inevitable trend. while giving full play to the role of the market in resource allocation, it is even more necessary to give full play to the leading role of the government. with the introduction of a series of relevant laws and policies in china, the function of the government in the cross-regional transformation of scientific and technological achievements has been increasingly enhanced, but in this process, there are still deficiencies in the government's role positioning, relevant policies for interest balance, and the inter-governmental cooperation mechanism among regions. based on this, it is necessary to optimize the function of the government in the transformation of regional scientific and technological achievements, effectively play the leading role of the government, construct an efficient and collaborative scientific and technological transformation mechanism, and cultivate the cooperation awareness of various participating subjects, so as to provide useful thinking for improving the function of the government in regional scientific and technological transformation. keyword transformation of scientific and technological achievements, government, inter-regionally 1. introduction 1.1 gov't functions in cross-regional tech achievements transformation gov't plays multiple roles in market economy, being both market participant and regulator & guide. in tech achievements transformation field, gov't's leading position is particularly prominent, exerting www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 195 decisive influence on market through various means like formulating policies, providing financial support, building platforms and service systems, cultivating market, promoting cooperation and conducting supervision and evaluation. gov't guides market development by formulating policies and regulations conducive to cross-regional tech achievements transformation. these policies and regulations not only provide a good policy environment and legal guarantee for scientific and technological innovation, but also clarify rules and directions for market participants. for example, the gov't can formulate preferential tax policies to encourage enterprises to invest in scientific and technological r&d and achievements transformation; formulate intellectual property protection policies to protect innovative achievements and stimulate scientific and technological innovation and transformation activities. secondly, by providing financial support and investment, the gov't reduces the risks and costs of scientific and technological innovation, attracting more social capital to invest in tech achievements transformation. by establishing scientific and technological innovation funds and expanding government procurement orders to support key technology r&d and achievements transformation, it directly boosts the market demand for scientific and technological achievements. establishing venture capital funds to guide private capital to flow into the field of scientific and technological innovation and achievements transformation. at the same time, by building platforms and service systems for the transformation of scientific and technological achievements, it provides technical, talent and information support for the transformation and promotion of scientific and technological achievements. for example, establishing platforms such as science and technology parks, incubators and innovation centers to provide supporting services for innovative enterprises and research institutions. establishing information platforms for the transformation of scientific and technological achievements to promote the exchange and docking of scientific and technological achievements. establishing scientific and technological consulting and evaluation service systems to provide professional guidance for the transformation of scientific and technological achievements. in addition, the gov't also promotes the commercialization and industrial application of scientific and technological achievements by cultivating and expanding the market of scientific and technological achievements. formulating relevant industrial policies to guide the adjustment and upgrading of industrial structure and provide market space for the transformation of scientific and technological achievements, holding activities such as scientific and technological achievements exhibitions and trade fairs to promote scientific and technological achievements and expand market applications. by promoting cooperation among the gov't, enterprises, universities and research institutions, a synergy effect of the transformation of scientific and technological achievements is formed. building cooperation platforms to promote cooperation among industry, universities and research institutes, formulating cooperation policies and providing cooperation financial support to encourage all parties to jointly participate in the transformation of scientific and technological achievements. finally, by supervising the implementation process of the transformation of scientific and technological achievements and evaluating the transformation effect, policies and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 196 measures are continuously improved to ensure the effectiveness and efficiency of the work of the transformation of scientific and technological achievements. 1.2 cross-regional gov't policy interest balance policy formulation needs to comprehensively consider the balance of various interests to ensure the fairness, effectiveness and sustainability of the policy. firstly, it is necessary to consider the balance of interests among regions to avoid excessive concentration of resources in some areas and ensure that less developed areas can obtain development opportunities through the transformation of scientific and technological achievements. secondly, the policy should balance the needs of industrial development and the protection of intellectual property rights of innovative achievements, both encouraging technology transfer and application and protecting the rights and interests of innovators. in addition, policy formulation also needs to consider the balance of public interests and enterprise interests, and promote enterprises to participate in the transformation of scientific and technological achievements through incentive measures while ensuring that public interests are not damaged. at the same time, the policy should weigh short-term interests and long-term interests. sometimes, for the long-term scientific and technological development and regional balance, some sacrifices may need to be made in the short term. finally, the policy also needs to balance the relationship between cooperation and competition, encourage cooperation among regions to share scientific and technological achievements, and maintain a certain competitive mechanism to stimulate innovation vitality. in actual policy formulation, interest balance is a complex and meticulous work in policy formulation. the government needs to comprehensively investigate and consider the interests of all parties, and understand the demands of all parties through research and evaluation work to provide a basis for policy formulation. secondly, the government also needs to establish a multi-party participation decision-making mechanism to ensure that the interests of all parties are fully expressed and balanced. finally, the government should also establish a supervision and evaluation mechanism to adjust the policy in time to maintain the balance of interests and the sustainability of the policy. interest balance plays an important role in the formulation of cross-regional government policies. by balancing the interests of different stakeholders, it realizes the fairness, justice and sustainability of the policy and promotes the coordinated development of the economy and society. 1.3 inter-governmental cooperation mechanism for cross-regional tech achievements transformation role inter-governmental cooperation mechanisms help promote the sharing and exchange of scientific and technological achievements. through the inter-governmental cooperation platform, regions can share their own scientific and technological achievements and experiences, and strengthen technological exchanges and cooperation. it helps avoid duplicate research and improves the utilization efficiency of scientific and technological achievements, promoting the pace of cross-regional technological innovation. secondly, through cooperation such as resource sharing and optimal allocation, inter-governmental can effectively integrate various resources and improve the utilization rate of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 197 scientific and technological resources. at the same time, it also helps to promote the unification or mutual coordination of policy-making, jointly implement preferential tax policies, jointly provide financial support, and strengthen cross-regional intellectual property protection, providing a good policy and market environment for scientific research enterprises and providing stable commercialization conditions for scientific and technological innovation. in addition, compared with the previous "closed" development in the region, the governments of various regions integrate demands and resources through cooperation, further expanding the application stage of scientific and technological achievements and promoting the marketing of scientific and technological achievements in a wider range and on a larger scale, thereby greatly improving the social and economic benefits of scientific and technological innovation achievements. finally, establishing a risk-sharing and incentive mechanism is an important part of the current inter-governmental cooperation, such as reward systems, policy support or preferential market access. this mechanism can reduce the risks and costs of the participants and inspire more enterprises and scientific research institutions to participate in the transformation of scientific and technological achievements. secondly, due to the unevenness in the transformation, promotion and application of scientific and technological achievements in various regions, there is also a lack of exchanges among enterprises, universities and scientific research institutions in various regions. the inter-governmental cooperation mechanism promotes the technological exchanges and joint research and development of scientific research subjects in various regions, accelerating the development of new technologies and new products. especially in the case of cross-regional issues. the district government provides solid support and guarantee for the development of science and technology and social progress by jointly promoting scientific and technological innovation and the transformation of achievements. these cooperation mechanisms can promote the transformation of scientific and technological achievements between different regions and promote the development of cross-regional technological innovation. 2. cross-regional tech achievements transformation gov't function deficiencies 2.1 gov't in cross-regional tech achievements transformation role limitations traditionally, the government's role in the transformation of scientific and technological achievements is mainly as a manager, guiding and supervising through formulating policies and investing funds. however, this traditional role has many shortcomings. firstly, the government policy support within the region is only limited to its own jurisdiction and cannot meet the needs of cross-regional cooperation, and also reduces the policy coherence, resulting in the inability to fully integrate innovative resources. secondly, the government's policy formulation and capital investment lack flexibility and timeliness, and cannot respond promptly to the changes in scientific and technological development and market demand, causing waste of resources and low efficiency. due to the lack of an overall market orientation, the government may have relatively large subjectivity and limitations in project selection and capital allocation, resulting in unreasonable resource allocation and affecting the full utilization of innovative www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 198 achievements. at the same time, overly relying on policy formulation and administrative means and neglecting the importance of market demand and commercialization paths, resulting in some scientific and technological achievements being difficult to be widely applied in the market and leading to serious excess production capacity. finally, the government lacking relevant legal constraints often leads to excessive intervention in the market in the transformation of scientific and technological achievements, resulting in the inhibition of the creativity and vitality of innovative subjects and affecting the efficiency and achievements of the transformation of scientific and technological achievements. shanghai, as one of the most economically developed cities in china, has particularly prominent such phenomena in the transformation of scientific and technological achievements. for example, the local government pays too much attention to management and neglects services, affecting the efficiency of the transformation of scientific and technological achievements. in shanghai, when some scientific research institutions and enterprises carry out the transformation of scientific and technological achievements, they usually face cumbersome management regulations and approval processes and lack sufficient services and support, such as the provision of market information, guidance on technology transfer, and financial support. this management-oriented approach makes the efficiency of the transformation of scientific and technological achievements low and hinders the commercialization and industrialization process of local scientific and technological achievements. to sum up, the traditional government role has certain limitations in promoting the transformation of scientific and technological achievements and needs to be transformed into a new role that is more flexible, market-oriented, and service-oriented. 2.2 gov't policy formulation interest imbalance however, with the proposal in 2017 by the 19th national congress of the communist party of china to "accelerate the establishment of a modern financial system and establish a central and local financial relationship with clear rights and responsibilities, coordinated financial resources, and regional balance", the relative independence of local governments in administrative and fiscal and taxation rights has gradually strengthened. under the dual-drive development model of market determination and government leadership, regional policy conflicts often occur between local governments and local departments, and may also occur at any stage of the policy cycle. although the government represents the interests of its own region and institution, even diversified policies that conform to the standard will have conflicts where there are regional overlaps and overlaps of various interests. moreover, there are regional differences at the policy implementation level, and the resource allocation, policy implementation intensity and efficiency in different provinces and cities vary greatly, and the levels of policy participants are uneven and there are also differences in ideological concepts, making it difficult to completely and thoroughly understand and implement the original intention of the policy. due to the imperfect environment for the implementation of some policies, the implementation of the policies will be difficult to coordinate, and then regional contradictions will arise, which not only www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 199 affects the credibility of the government, but also damages the connectivity of the policy effectiveness, resulting in enterprises facing unequal regional treatment in the transformation of scientific and technological achievements. at the same time, the policy support focus may be too concentrated on large enterprises and high-tech fields, while neglecting the cultivation of innovation capabilities in small and medium-sized enterprises and non-high-tech fields. the marketization and industrialization path of the transformation of scientific and technological achievements is not clear enough, and there is a lack of effective business models and market orientation. secondly, although the intellectual property protection mechanism is continuously strengthened, there are still problems in the actual operation that it is difficult to sanction infringement behaviors in a timely and effective manner. on the one hand, the problem of intellectual property infringement is relatively common, especially in some emerging technology fields, which leads enterprises to have doubts about whether their scientific research results can be patented and whether they can be fully protected after being patented. on the other hand, the litigation procedures in the process of intellectual property protection are relatively cumbersome and time-consuming, which greatly increases the relief cost of enterprises and reduces the effective protection of intellectual property. for example, in guangdong province, a major economic province in southern china with strong scientific and technological strength, there are problems such as the local government's tendency to overly pursue the number of projects and superficial effects in the transformation of scientific and technological achievements, while neglecting the actual value and market demand of scientific and technological achievements. this leads to that when scientific research institutions and enterprises carry out the transformation of scientific and technological achievements, they often focus on form rather than substance, and there is a certain degree of "project-only theory". in addition, there are problems of unbalanced policy support in the formulation of policies for the transformation of scientific and technological achievements by the guangdong provincial government. some scientific research projects often find it difficult to find an appropriate industrialization path after completion, and lack the financial support and policy support of the government, making the transformation of scientific and technological achievements difficult. 2.3 gov't inter-level cooperation barriers & conflicts long-term, china adheres to "administrative region administration", and local governments at all levels have strong local protectionism. the sense of competition among local governments is stronger than that of cooperation, and the concept of inter-governmental cooperation has not yet formed. although regional transformation of scientific and technological achievements forms a common interest demand among local governments, as different interest groups, there is also fierce competition. this is mainly because under the dual influence of regional concept and centralization concept, local governments have serious local protectionism, and as the representative of this region, in order to maximize the interests of this region, they often adopt favorable ways or means for themselves, lacking not only the concept and consciousness of cooperation, but also the cultural atmosphere and institutional guarantee of cooperation. secondly, china's constitution and laws clearly stipulate the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 200 powers and responsibilities that the central government and local governments at all levels should assume in managing national affairs and social public affairs within their jurisdiction. but there are few laws and regulations on inter-regional government cooperation, and there is not a special law to regulate inter-regional government cooperation. especially in the context of serious local protectionism in china, without strong legal and regulatory guarantees, it is even more impossible to provide strong institutional support for cooperation among local governments in various regions. the cooperation among local governments cannot do without regional organizations based on common interests. through the coordination and communication of regional cooperation organizations, direct frictions among local governments can be reduced. with the inevitability of inter-governmental cooperation in regions, china has successively established some regional cooperation organizations, such as the tianjin-hebei integrated cooperation and development forum and the beijing-tianjin-hebei development zone innovation and development alliance. however, most of these organizations have not formed a complete organizational structure system and lack unified development planning and domain authority. at the same time, a good situation of mutual integration and symbiosis has not been formed among local governments in the region. the goals of local governments are inconsistent, there are differences in interests, information communication is not smooth, sharing ability is poor, there is a lack of mutual trust, the market environment is incompatible, and the official performance assessment system is not scientific. as a result, local governments act independently and lack regional development planning. just like hubei province has many universities and scientific research institutions, and has strong scientific and technological innovation strength. however, due to insufficient coordination among local governments, the efficiency of transformation of scientific and technological achievements is relatively low. at the same time, local governments in various regions of hubei province have problems such as scattered resources, inconsistent policies, and unsmooth information when promoting the transformation of scientific and technological achievements. for example, in order to compete for the settlement of scientific and technological projects and scientific and technological enterprises, different local governments provide different preferential policies and support measures to enterprises and scientific research institutions at the same time, resulting in different policy environments faced by enterprises and scientific research institutions and increasing the difficulty and cost of their transformation of achievements. due to the poor information sharing and communication among regions, the cooperation and sharing degree of local scientific and technological achievement transformation projects is low, affecting the efficiency and effect of the projects and hindering the innovation, research and development and market-oriented development of science and technology among regions. 3. suggestions for improving cross-regional transformation of sci-tech achievements 3.1 optimization suggestions for the transformation of the government role in promoting the transformation of local scientific and technological achievements, local governments www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 201 in china should learn from the model of the transformation of national government functions and actively promote the transformation of local scientific and technological achievements by directly participating and organizing optimized coordination. it requires that local governments need to directly participate in the design of scientific and technological achievements related to local economic, social and people's livelihood, and at the same time strictly implement the policies and regulations of the state on promoting the transformation of scientific and technological achievements and implement the policy spirit of the central government. first of all, for scientific and technological achievements related to local economic, social and people's livelihood, local governments should directly participate in their design and promotion. this includes cooperation with scientific research institutions, universities and enterprises to jointly carry out scientific research and development projects, solve local practical problems and promote the transformation and application of scientific and technological achievements. local governments can provide strong support for the transformation of local scientific and technological achievements by setting up special funds, providing policy support and building platforms. secondly, for the policies and regulations of the state on promoting the transformation of scientific and technological achievements, local governments should strictly implement them and continuously implement the policy spirit of the central government. this includes actively responding to the call of national policies, increasing financial support for the transformation of scientific and technological achievements, promoting the transformation of local scientific and technological achievements to the market and promoting the development of local economy and society. at the same time, local governments should also change management to incentive, let the market play a leading role, and promote the transformation of scientific and technological achievements by establishing platforms to strengthen the mutual exchanges between scientific research institutions and enterprises. this includes optimizing the business environment, simplifying the approval process, reducing the cost and risk of the transformation of scientific and technological achievements, and attracting more enterprises and investors to participate in the transformation process of scientific and technological achievements. 3.2 improvement plan for interest balance and decision-making mechanism in policy formulation starting from the strategic thought of taking preventive measures, it requires regional policy makers to timely discover mutually conflicting policies within the region and scientifically integrate the policies in a timely manner to ensure a clear distinction between legal jurisdiction and policy jurisdiction, and create a policy system with both differences and cooperation. before major changes occur in the regional growth pattern, it should be acutely perceived and response plans formulated. in a certain geographical area, contradictions among local governments are inevitable, and the main functional positioning needs to be resolved as early as possible to reduce and avoid the competition for resources and strengthen regional cooperation to achieve mutual benefit and win-win results. firstly, it is necessary to balance the interests of all parties in policy formulation to ensure the full protection of the rights and interests of all regions and interested parties. policies should www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 202 comprehensively consider factors such as the economic development level, resource endowment, and industrial structure of different regions to formulate policy measures in line with the actual situation and avoid a one-size-fits-all approach to fully consider the interests of all parties. secondly, policy makers should improve the decision-making mechanism and increase the transparency and fairness of policy formulation. a multi-party participation decision-making mechanism can be established to absorb the opinions of all parties and form a multi-party consensus to ensure the fairness and rationality of policy formulation. thirdly, strengthen the policy integration ability, scientifically integrate various policies to avoid conflicts and repetitions between policies and form a systematic and complete policy system. policy integration should focus on practical operation and fully consider the needs of all parties to ensure the pertinence and effectiveness of policies. fourthly, establish a sound supervision and evaluation mechanism to regularly supervise and evaluate the implementation of policies, and timely discover problems and take measures to solve them. the supervision and evaluation results should be open and transparent and subject to social supervision to ensure the effective implementation and implementation of policies. finally, strengthen exchanges and cooperation among local governments, establish a trust mechanism, strengthen information sharing, enhance mutual understanding, and promote win-win cooperation among regions. the government can organize various forms of exchange activities to promote communication and cooperation among local governments and jointly deal with challenges and problems in development. actively giving full play to the leading role of state-owned capital and exploring the corporatized development of sci-tech financial services is an important way to promote the growth and strengthening of scientific and technological innovation enterprises. firstly, the government systematically promotes small and medium-sized innovative technology enterprises with good technical advantages and development potential to obtain the support of state-owned capital, thereby guiding their steady growth. secondly, further develop the multi-level capital market to provide more effective financial services for technology enterprises to smoothly transition to the mature stage. the government expands the debt financing channels based on equity investment, promotes the listing and financing of scientific and technological innovation enterprises, and guides more qualified enterprises to enter the domestic small and medium-sized enterprise board, the growth enterprise market and overseas listing, thereby enhancing their financing capabilities. thirdly, the government guides various financial institutions to increase credit investment in scientific and technological innovation enterprises and strives to promote the innovation of sci-tech financial services. through extensive cooperation, the government encourages and supports various institutions to carry out innovative services, such as "investment-loan linkage" and "investment-loan-insurance linkage", to meet the diversified financing needs of scientific and technological innovation enterprises. fourthly, the government actively supports and encourages private capital and social capital to participate in the investment of scientific and technological innovation-oriented enterprises, establish venture capital funds and venture capital enterprises, and formulate financial support policies to encourage venture capital to directly invest in scientific and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 203 technological innovation, so as to promote the independent innovation and rapid development of small and medium-sized technology enterprises. through the above measures, the government has achieved the interest balance of small and medium-sized technology enterprises and provided them with diversified and sustainable financing support, thereby promoting the continuous development of scientific and technological innovation. 3.3 strategies for optimizing the inter-governmental cooperation mechanism laws and regulations play a crucial role in strengthening inter-local-government cooperation. however, in the inter-local-government cooperation in our country, there is a situation of relatively insufficient laws and regulations, mainly relying on government policies for regulation. therefore, it is necessary to establish a top-down legal and regulatory system from the national level to the local level to regulate the behavior of local governments and promote inter-local-government cooperation. firstly, at the national level, the leading role of the constitution should be strengthened and legislative protection for inter-local-government cooperation should be carried out. enact the law on inter-local-government relations, clearly define the functional authorities of the central and local governments in legal form, and stipulate the functional positioning of local governments in cooperation. provide legal guarantees for inter-local-government cooperation through legislative measures and create a good legal institutional environment for its development. secondly, at the regional level, policy regulations for inter-regional-government cooperation should be formed. this includes formulating and improving local laws and regulations and relevant policy documents for inter-local-government cooperation. and it should be specific and targeted, formulating corresponding cooperation policies according to the actual situation and needs of different regions to provide specific guidance and support for inter-local-government cooperation. at the same time, it is also necessary to strengthen the coordination and communication mechanism among all levels of governments to promote cooperation among all levels of governments. this includes establishing a multi-level and multi-channel inter-governmental communication platform to timely share information and negotiate to solve problems, and promote all parties to strengthen cooperation and develop together. in addition, the market-oriented evaluation of inter-local-government cooperation should also be strengthened. through the establishment of an effective evaluation mechanism, the implementation of inter-local-government cooperation is supervised, and problems are discovered and solved in a timely manner. at the same time, summarize experience and discover shortcomings to provide reference and lessons for future cooperation. as the main body representing regional interests, regional coordination organizations bear important responsibilities in promoting regional development and facilitating inter-local-government cooperation. however, in reality, many regional cooperation organizations have the problem of being symbolic institutions, lacking substantial power and capabilities, and being unable to effectively integrate regional resources, which limits their role in local government cooperation. in order to give full play to the role of regional coordination organizations, it is necessary to endow them with corresponding www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 204 authorities and capabilities so that they can effectively guide the behavior of local governments and promote inter-local-government cooperation. to establish an effective inter-governmental cooperation organizational structure system, it needs to be gradually improved in three dimensions: the central level, the regional level, and the local level. firstly, at the central level, a ministerial-level regional coordinated development committee should be established to be responsible for putting forward national strategic plans and guidelines for promoting regional development, reviewing and supervising the behavior of regional governments and local governments to ensure that they implement central policies and coordinate inter-local-government cooperation. secondly, at the regional level, a regional cooperation organization higher than various local governments should be established with certain powers and responsibilities. these organizations should be responsible for coordinating the relationships among various local governments in the region, formulating rules and policies regarding regional cooperation, resolving problems in regional development, and promoting various local governments to jointly deal with regional challenges and problems to achieve the overall advancement of regional development. finally, at the local level, each local government should establish supporting organizational institutions according to the requirements of the central and regional development, and implement the policies and measures of the central and regional to the actual situation. this includes establishing cooperation institutions and working mechanisms among local governments, strengthening coordination and communication to ensure that various policy measures can be effectively implemented at the local level. 4. conclusion this article explores the key role of the government in the regional transformation of scientific and technological achievements, and puts forward improved strategies and suggestions for the challenges it faces in cross-regional transformation of scientific and technological achievements. through in-depth analysis of the role transformation of the government in the transformation of scientific and technological achievements, the interest balance and decision-making mechanism in policy formulation, and the role of the inter-governmental cooperation mechanism, the importance of the government in promoting cross-regional transformation of scientific and technological achievements is highlighted. finally, by putting forward strategies for optimizing the transformation of the government's role, improving the policy formulation mechanism, and optimizing the inter-governmental cooperation mechanism, the implementation of these measures will help strengthen the government's guiding role in the field of scientific and technological innovation and provide more powerful support for the maximization utilization and transformation of scientific and technological achievements. only in this way can the huge potential of the transformation of scientific and technological achievements be explored and the sustainable development of the social economy be promoted. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 205 references esteban, l., & jasmina, b. (2019). assessing the productivity of technology transfer offices: an analysis of the relevance of aspiration performance and portfolio complexity. journal of technology transfer, 73(9), 234-253. good, m. (2019). the technology transfer ecosystem in academia. an organizational design perspective. technovation, 14(5), 35-50. https://doi.org/10.1016/j.technovation.2018.06.009 ian, j., & richard, d. (2020). an entrepreneurial marketing process perspective of the role of intermediaries in producing innovation outcomes. journal of business research, 32(8), 116-118 james, a. (2019). cunningham and erik e. lehman.the impact of university focused technology transfer policies on regional innovation and entrepreneurship. journal of technology transfer, 44(5), 451-1475. https://doi.org/10.1007/s10961-019-09733-0 jung, m., & lee, y. (2015). classifying and prioritizing the success and failure factors of technology commercialization of public r&d in south korea: using classification tree analysis. journal of technology transfer, 40(5), 877-898. https://doi.org/10.1007/s10961-014-9376-5 maribel, g., & david, u. (2019). effectiveness of technology transfer policies and legislation in fostering entrepreneurial innovations across continents: an overview. journal of technology transfer, 12(4), 316-322. mariluz, f., & juan, pablo di á nez-gonz á lez. (2019). tto characteristics and university entrepreneurship: a cluster analysis. journal of science and technology policy management, 10(4), 861-889. https://doi.org/10.1108/jstpm-03-2018-0026 prudhomme. (2018). “forced technology transfer” policies: workings in china and strategic implications. technological forecasting and social change, 32(8), 46-62. https://doi.org/10.1016/j.techfore.2018.05.022 rainville, a. (2021). stimulating a more circular economy through public procurement: roles and dynamics of intermediation. research polic, 24(6), 56-62. https://doi.org/10.1016/j.respol.2020.104193 rasmussen, e., & sørheim, r. (2012). how governments seek to bridge the financing gap for university spin-offs: proof-of-concept, pre-seed, and seed funding. technology analysis and strategic management, 24(7), 54-63. https://doi.org/10.1080/09537325.2012.705119 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 82 original paper study on the conflict of norms and the coordination mechanism of international law in the dispute over the legal status of arctic waterways—a juridical logic based on the interpretative system of the “icebound area clause” bao yu 1 & ran ji 1* 1 korea maritime and ocean university, busan 612-022, korea * corresponding author: ran ji, e-mail: 1035587358@qq.com #these authors contributed equally to this work. received: march 25, 2025 accepted: april 9, 2025 online published: april 11, 2025 doi:10.22158/elp.v8n1p82 url: http://dx.doi.org/10.22158/elp.v8n1p82 abstracts the dispute over the legal status of arctic shipping lanes is essentially a structural projection of the conflict of international law norms in the field of polar governance. based on empirical analyses and normative research methods, this paper reveals three core contradictions in the dispute over arctic shipping lanes: the normative conflict between article 234 of the united nations convention on the law of the sea (unclos) “ice-covered area clause” and the principle of freedom of navigation under the framework of the international law of the sea, the functional fragmentation of the regional governance mechanism and the systematic mismatch in the method of legal interpretation. through the deconstruction of typical cases such as the “polar sea” incident, the legal dilemma between the claim of jurisdiction of the coastal state and the determination of the attributes of international shipping lanes is demonstrated, and the systemic tension between the arctic council’s “hierarchical and differential structure” and the principle of universal participation in the bbnj agreement is pointed out. at the theoretical level, the innovative proposal of “normative conflict matrix” model and “dynamic equity principle”, the construction of “three-layer progressive interpretation framework” and “ice coefficient”, and the “three-layer progressive interpretation framework” and the “three-layer progressive interpretation framework”, were all put forward. it has constructed a coordination mechanism that includes a “three-tier progressive interpretation framework” and a quantitative criterion of “ice coefficient”. at the institutional design level, it is advocated that a judicial path be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 83 published by scholink inc. established for the arctic special chamber, and that a “three-stage coordination mechanism” be set up to achieve the integration of global norms and regional governance. with regard to china’s participation in arctic governance, it is proposed to strengthen the right of legal interpretation through the “special system for scientific research and navigation”, to promote the revision of the polar code by relying on the international maritime organisation, and to build a dispute prevention system based on the “arctic legal compliance index”. the study provides solutions with both theoretical depth and practical value for solving normative conflicts in polar governance. keywords arctic shipping lanes, ice-covered areas clause, conflict of norms, dynamic equity principle, three levels of progressive interpretation 1. introduction 1.1 biological contradictions in the international law of the sea within the framework of the international law of the sea, the conflict between the application of article 234 and article 38 of the united nations convention on the law of the sea (unclos) has been one of the central conflicts in the legal dispute over the arctic shipping lanes. the united states, as a non-party to unclos, has relied on the convention to claim that part of the arctic shipping lanes is an international strait, and thus to claim the right to freedom of navigation. in contrast, russia and canada have invoked article 234’s “icebound area clause” to claim jurisdiction over internal waters in relation to arctic shipping lanes. this conflict has generated numerous frictions in practice. for example, russia’s 2013 navigation rules for the northern sea route specify a compulsory pilotage system, which requires passing ships to accept russian-designated pilotage services. this provision is regarded by the us and other countries as an unreasonable restriction on their freedom of navigation, while russia, relying on article 234, emphasises the special geographic and environmental conditions of the arctic waters, and considers compulsory pilotage as a necessary measure to safeguard navigational safety and environmental protection. as early as 1985, in the “polar sea” incident, an attempt by the united states coast guard icebreaker polar sea to cross soviet arctic waters without russian permission triggered a diplomatic dispute between the two countries. the soviets argued that the entry of the us vessel violated their sovereignty over the waters within their jurisdiction under the “ice closure clause”, while the united states insisted that the shipping lane was an international strait and that it enjoyed freedom of navigation. this incident has become a typical case of legal disputes over arctic shipping lanes, highlighting the contradictions in the practical application of the relevant unclos provisions. in terms of the decision-making mechanism of the arctic council, which has 38 observer states, including many extraterritorial states with an interest in arctic affairs, there is a clear imbalance in decision-making power: five arctic states dominate the council’s decision-making process, while the observer states’ influence is extremely limited. this imbalance in decision-making power has made it difficult for the interests of non-arctic countries to be adequately reflected in the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 84 published by scholink inc. process of formulating rules related to arctic shipping lanes, further exacerbating the contradiction in the application of international law of the sea in the arctic region. 1.2 functional fragmentation of regional governance mechanisms the arctic council plays an important role in arctic governance, but its “hierarchical and disjointed structure” is in major conflict with the principle of universal participation promoted by the agreement on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (bbnj agreement). the arctic council gives some participation rights to indigenous arctic peoples’ organisations through permanent participation, but remains dominated by the eight arctic states at the core decision-making level. this structure limits the depth and breadth of participation by extra-territorial states in arctic affairs, and arctic governance is clearly characterised by “intra-territorial self-management”. in contrast, the bbnj agreement emphasises the equal participation of countries around the globe in matters such as marine biodiversity conservation, and seeks to break down hierarchical barriers in regional governance. this contrasts with the existing structure of the arctic council as an example, the agreement on the prevention of unregulated fishing activities on the high seas in the central arctic ocean (apua), signed in 2018, includes the five countries bordering the arctic ocean as well as the five parties of the pelagic fisheries industry (china, the european union (eu), the republic of korea (rok), japan, and iceland). in the process of formulating this agreement, the traditional decision-making mode of the arctic council was broken, providing a platform for equal consultation between countries within and outside the region to discuss the rational exploitation and protection of high seas fishery resources in the central arctic ocean. however, in contrast, during the implementation of the agreement on cooperation in preventing and responding to marine oil pollution in the arctic, due to the different interests of various countries, there are many differences in terms of financial input and coordination of technical standards, which has greatly reduced the effectiveness of the implementation of the agreement. differences in the functional objectives and implementation paths of different regional governance mechanisms have led to the fragmentation of governance in the arctic region. the seven arctic countries will suspend the activities of the arctic council in 2022 due to the international situation, which will directly lead to a governance vacuum in the arctic region for some time. in key areas such as arctic waterway management and environmental protection, there is a lack of effective coordination mechanisms among countries, and they are working separately, failing to form a unified synergy of governance, which is the challenge that china is currently facing. this governance vacuum not only affects the sustainable development of the arctic region, but also adds to the confusion of the legal order in the arctic shipping lanes and exacerbates the functional fragmentation among regional governance mechanisms. 1.3 systemic conflict of methods of legal interpretation canada’s interpretation of the concept of “ice-covered area”, which extends the ice-cover period to an average of six months per year, goes far beyond the original meaning of “most of the year” in the unclos convention. judging from the background and purpose of the drafting of the convention, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 85 published by scholink inc. “most of the year” should be a relatively vague but generally recognised concept of time, which is intended to cover the arctic sea area with a longer period of ice closure under the natural environment. canada’s expansive interpretation was motivated by its need to strengthen its jurisdiction over parts of the arctic shipping lanes. by extending the ice-cover period, canada seeks to include more maritime areas under its jurisdiction under the “ice-covered areas clause” in order to safeguard its interests in resource development, safety and security in the arctic. russia’s arctic coastline accounts for 53 per cent of the total length of the arctic ocean, a significant geographic feature that serves as an important jurisprudential basis for its enhanced baseline claim. when delineating its maritime baselines, russia, on the basis of its long arctic coastline and the relevant rules of international law, asserts its jurisdiction over some of the maritime areas around the arctic shipping lanes. this claim, based on geographical reality, is reasonable to a certain extent, but it also conflicts with other countries’ perceptions of the international attributes of the arctic shipping lanes. the international court of justice in the corfu channel case established the criterion of “use for international navigation”, which emphasises the extent and importance of the actual use of the waterway in international shipping. however, the reality of the arctic shipping lanes, which currently have an average annual traffic of less than 1 per cent of that of the suez canal, suggests that there is a significant gap between the actual status of the arctic shipping lanes in international shipping and that of the corfu channel. however, some countries believe that with global warming and the improvement of navigation conditions in the arctic shipping lanes, their importance in international shipping will gradually increase in the future, and that they should be recognised as “used for international navigation” based on a developmental perspective. this conflict between jurisprudence and reality has made the determination of the legal status of arctic shipping lanes even more complicated, with different countries holding different views on the attributes of shipping lanes on the basis of their own interests and different interpretations of the law. 2. jurisprudential logical deconstruction of normative conflicts 2.1 systematic analysis of the hierarchy of normative effectiveness although the united states is not a party to unclos, it has selectively invoked the convention’s freedom of navigation provisions in support of its claims in arctic shipping lanes. this “selective compliance” has confused the hierarchy of normative effects in the legal dispute over arctic shipping lanes. as a general principle of international law, treaties are binding only on the parties to them, and non-parties are not obliged to comply with their provisions. however, the u.s. has challenged the traditional hierarchy of norms in international law by attempting to construct its own legal logic in favour of the arctic shipping lanes through the use of some of the provisions of the convention. under the framework of global norms and regional rules, the construction of the “norms conflict matrix” model has an important theoretical innovation value. the model divides norms into two dimensions: hard law obligations and soft law recommendations, and at the same time combines the two dimensions www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 86 published by scholink inc. of global norms and regional rules to form a four-quadrant analysis framework. on the issue of arctic shipping lanes, unclos, as a hard law norm of global ocean governance, has intersections and conflicts in the arctic with the arctic council’s rules at the regional level. for example, in terms of environmental protection of shipping lanes, unclos provides for general marine environmental protection obligations, while the arctic council has formulated more specific regional environmental protection rules based on the special environment of the arctic region. there are differences in the level of effectiveness and scope of application of these rules. through the model of “norms conflict matrix”, we can clearly analyse the conflict points and coordination paths between different norms, and provide new theoretical perspectives for the resolution of legal disputes over arctic shipping routes. 2.2 equity dilemma in the allocation of rights and obligations russia’s environmental protection regulations for the northern sea route have imposed strict environmental protection requirements on passing ships, raising their operating costs by 37 per cent. from russia’s point of view, these regulations are aimed at protecting the fragile ecological environment of the arctic and ensuring the sustainable development of the arctic shipping lanes. however, for shipping companies, the excessive costs have increased the burden of operation and affected the enthusiasm of their business activities in the arctic shipping lanes. behind the increase in costs, it reflects the imbalance in the distribution of rights and obligations among the relevant countries, and the operating conditions of the arctic shipping lanes have always been the main business behaviour of the shipping companies. resource exploitation and shipping activities are increasing in the arctic, as are potential environmental threats, which are intensifying. the arctic sea ice cover has been decreasing by 13 per cent year by year in line with global warming, and this change makes the arctic waterways change the navigational conditions and at the same time profoundly affect the ecological environment, and the traditional way of distributing the rights and obligations has become unsuitable for the real needs in this dynamic changing environment. therefore, it is of great significance to put forward the principle of dynamic equity, which emphasises that the proportion of rights and obligations of the relevant countries and subjects of interest in the arctic shipping lanes should be adjusted in accordance with the changes in environmental indicators such as sea ice coverage. for example, when the sea ice coverage is high and the navigational conditions of the waterway are poor, participation in the development of the arctic waterway should be encouraged, and the environmental protection obligations of shipping enterprises can be appropriately reduced; whereas, when the sea ice coverage decreases and the ecological environment becomes more fragile, countries should strengthen their environmental protection requirements and responsibilities. 2.3 paths to innovation in legal interpretation methods the lack of clear quantitative standards in the traditional interpretation of the characterisation of “ice-covered area” has led to large differences in the understanding and application of the term in various countries, as well as to different perceptions of the term in various parts of the world. the establishment of the quantitative model of “ice cover coefficient”, which combines the annual average www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 87 published by scholink inc. number of ice-covered days with the ice-breaking capacity index of ships, can provide a more scientific and objective standard for the identification of “ice-covered area”. through the model, an accurate judgement can be made as to whether the sea area belongs to the “ice-covered area”, based on the actual freezing conditions of different sea areas, the technical capability of the ship and other factors, thus providing a clear basis for the application of the relevant legal provisions. in the practice of international law, the international court of justice adopted the method of evolutionary interpretation in the 2015 antarctic whaling case. this method emphasises the up-to-date interpretation of treaty provisions in accordance with the development of international law and changes in reality. on the issue of arctic shipping lanes, article 234 of unclos was enacted in a specific historical period. with the environmental changes in the arctic region, the development of shipping technology and the adjustment of the international political and economic landscape, it is necessary to draw on the method of evolutionary interpretation adopted in the whaling in the antarctic case to re-examine the scope of application and connotation of article 234. for example, in view of the gradual increase in the volume of navigation in the arctic shipping lanes and the global concern for the development of arctic resources, the provisions of article 234 on the jurisdiction of the coastal state and the right of navigation of other states should be dynamically interpreted to balance the interests of all parties and to meet the needs of the realities of development in the arctic region. 3. juridical logic construction of coordination mechanisms 3.1 paths to judicial resolution of normative conflicts drawing on the model of the seabed disputes chamber of the international tribunal for the law of the sea, the design of the arctic special chamber is of great significance in terms of mechanism innovation. the arctic special chamber is specifically designed to adjudicate on legal disputes related to arctic shipping lanes, and its set-up can pool professional resources and enhance the efficiency and professionalism of judicial settlement. in terms of composition, judges with expertise in multiple fields, such as arctic law, the environment and shipping, can be included to ensure the scientific and impartial nature of the decisions. at the same time, the arctic special chamber should tailor its design in terms of jurisdiction, trial procedures, etc. in accordance with the special circumstances of the arctic region, so as to better adapt to the complexity of legal disputes over arctic shipping lanes. the establishment of the “prior compliance review” system, which requires coastal states to submit their legislation to the arctic council’s legal committee for review before enacting legislation related to arctic shipping lanes, can avoid legal conflicts at the source of legislation, and the arctic council’s legal committee, which is comprised of legal experts from member states, is broadly representative. by reviewing the legislative proposals of the coastal states, it is possible to assess the international law of the sea, the rules of regional governance and the balance of interests of each country from a variety of perspectives to ensure that newly enacted laws are in line with the overall legal order and development needs of the arctic region and to reduce the number of legal disputes arising from the conflict between domestic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 88 published by scholink inc. legislation and international norms. 3.2 systemic innovations in the methods of treaty interpretation constructing a “three-level progressive interpretation framework”, i.e., providing systematic rules to resolve disputes over the interpretation of treaties related to arctic shipping lanes, and conducting in-depth interpretation of treaty provisions from the original meaning of the text, the background of contracting to the actual needs. at the level of textual intent, the original legislative intent of the treaty is determined by analysing the literal meaning and grammatical structure of the treaty text. for example, the provisions of unclos concerning the “ice-covered area” are clearly defined in terms of the textual intent of the treaty, including its basic definition, scope of application, etc., and its content is also clearly specified. at the level of treaty-making background, the international political, economic, environmental and other background factors at the time of the signing of the treaty are examined to understand the considerations of the treaty makers by the contracting parties. taking the treaty related to arctic shipping lanes as an example, understanding the degree of development of the arctic region at that time, the interests and demands of various countries, and the overall understanding of the international community on arctic governance will help to more accurately grasp the connotation of the provisions of the treaty. at the level of practical needs, the treaty should be clarified in the light of the current environmental changes, shipping development and resource exploitation in the arctic region, so as to keep abreast of the times. for example, with the average annual volume of navigation in the arctic shipping lanes increasing by 420 per cent from 2010 to 2020, this significant change in reality should be included in the evolutionary interpretation of the relevant treaty, so as to adapt to the increasingly important international shipping status of the arctic shipping lanes and balance the interests of all countries in terms of the use, management and protection of the shipping lanes, and so on. 3.3 normative integration of hybrid governance models the creation of a “three-stage coordination mechanism”. at the global level, the bbnj agreement sets environmental benchmarks and provides a global basic standard for environmental protection in the arctic shipping lanes, ensuring that the ecological environment of the arctic region is in harmony with the goals of the global protection of marine ecology, which is an environmental protection benchmark with a global scope. at the regional level, the arctic council, with its in-depth understanding of the arctic region and long-term governance experience, has formulated navigation standards to regulate the order of shipping in arctic shipping lanes in order to ensure the safety of navigation. at the bilateral level, the sino-russian “silk road on ice” agreement can be used to pilot innovative modes and rules of co-operation between the two countries and to explore special rules and regulations in the areas of joint scientific research, resource development, and waterway construction, according to the needs and actual situation of the two countries’ co-operation in the arctic region. through this three-stage global, regional and bilateral coordination, the organic integration of governance norms at different levels can be realised, and an arctic legal database can be established, integrating 87 relevant www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 89 published by scholink inc. treaties and 212 domestic regulations to provide comprehensive and systematic legal information support for arctic waterway governance. the database should have a convenient search function, and be able to be classified and queried according to different legal fields, countries, treaty types, etc. meanwhile, the database should be updated in real time to ensure the timeliness of the information. through the establishment of an arctic legal database, countries and relevant subjects of interest can have a clearer understanding of the legal system in the arctic region and avoid legal conflicts arising from the lack of transparency of legal information and the promotion of the uniform implementation and coordinated development of norms for the governance of the arctic waterways. 4. a normative response to china’s participation in arctic governance 4.1 strategic use of the right to interpret the law under the framework of the silk road on ice, china can rely on the sino-russian joint scientific research mechanism in the arctic (the sino-russian arctic joint scientific research framework agreement was signed in 2016), and innovatively construct a “special system for scientific research navigation”. the system can refer to the right to scientific research granted by article 238 of the united nations convention on the law of the sea (unclos), and combine it with the practical experience of china’s arctic scientific expedition management provisions (2017), to clarify that scientific research vessels enjoy special rights such as the right of preferential passage and exemption for data collection in arctic shipping lanes. specifically, china can push the arctic council to adopt the special protocol on scientific research navigation, which stipulates that research vessels participating in the construction of the “silk road on ice” can be exempted from the mandatory pilotage service of coastal countries (as required by article 21 of russia’s navigation rules for the northern sea route) after completing the filing procedure with the arctic council, but are required to share real-time hydrometeorological data. with the 3.2 petabytes (pb) of ice data obtained from the 12 arctic expeditions of xuelong 2 in 2019-2023, china has established the world’s most complete database on arctic ice conditions, which provides an empirical basis for breaking through the ship access standards set by article 12 of canada’s arctic water pollution prevention and control act (awppca). it is noteworthy that the practice of interpreting article 5 of the norwegian treaty of svalbard, which grants the states parties the right to freedom of scientific research, provides an extraterritorial legal reference for china to build a “special regime for scientific research voyages”. 4.2 proactive construction of normative authority china should promote the revision of the polar code through the international maritime organisation (imo) and establish a “dynamic ice classification system”. the system can draw on the ice-1 to ice-5 ice standards developed by finland’s aker arctic, combined with the real-time ice monitoring data of the beidou satellite navigation system (with an accuracy of up to 0.5 metres in 2023), to classify arctic shipping lanes into a dynamically updated five-level ice zone. the specific implementation plan includes submitting the technical guidelines for dynamic classification of ice areas for polar vessels www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 90 published by scholink inc. at the 107th imo msc (2024), suggesting the conversion of the traditional fixed ice levels (e.g., pc1-pc7) into a dynamic classification system based on real-time ice thickness data (d-ice1 to d-ice5). at the same time, based on the “arctic digital waterway” project led by china (data from 46 research vessels from 17 countries have been accessed), the world’s first dynamic ice sharing platform for arctic waterways should be constructed. referring to the experience of the norwegian-led “arctic black carbon emission reduction guidelines” (2021), china, together with russia, can formulate the “arctic lng vessel safety code” by 2025, focusing on the breakthrough of the quantitative index system for the ice-breaking capacity of lng carriers in arctic shipping lanes (arc7) and environmental protection standards (sulphide emission <0.1%). 4.3 systematic construction of dispute prevention mechanisms to construct the “arctic legal compliance index”, an assessment system with 18 core indicators should be established, specifically including: environmental compliance (30% weighting, including 6 items such as oil pollution emergency response capability and black carbon emissions), navigation safety (25% weighting, including 5 items such as ice class certification and crew qualification), protection of indigenous people’s rights and interests (20% weighting, including 4 items such as application of traditional knowledge and assessment of cultural impacts), data transparency (15% weighting, including 3 items such as openness of logbooks and sharing of scientific research data), and data security (15% weighting). transparency (15% weighting, including 3 items such as logbook disclosure rate and scientific research data sharing). the index can rely on the case base of the arctic dispute resolution centre of the shanghai international arbitration court (to be established in 2022) to establish a dynamic scoring model. pilot a “pre-compliance certification” system for major projects such as the china-russia yamal lng project, which requires project parties to complete a “three-stage compliance review” through a third-party organisation accredited by the arctic council (e.g., dnv-gl) prior to the establishment of the project, including a basic review (in line with international law such as unclos), a regional review (to meet the recommendations of the arctic council), and a country-specific review (to pass domestic laws such as the arctic environmental protection act of the russian federation). the “china-russia joint cruise on the arctic waterway” mechanism, which will be piloted in 2023 (with a cumulative total of 12,000 nautical miles cruised), has resulted in an “arctic navigation operation manual” containing 23 key compliance points, which can be used as a template for extension to projects along the “silk road on ice”. 5. concluding remarks the legal risks and governance challenges facing the arctic reflect the complex intertwining of emerging geopolitics and ecological security in the context of globalisation. from the ambiguity of the united nations convention on the law of the sea to the exclusivity of regional mechanisms such as the arctic council, and from the dispute over the legal status of shipping lanes to the crisis of national sovereignty triggered by sea-level rise, the fragmentation of arctic governance highlights the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 91 published by scholink inc. limitations of the international legal system, which is deeply understood by the international community. at the same time, the development of arctic shipping lanes, the tension between the use of resources and environmental protection, and the conflicting interests of countries both within and outside the region have made the coordination of rules even more difficult. as a near-arctic country and an important stakeholder in arctic affairs, china has always adhered to the principles of “respect, cooperation, win-win situation and sustainability”, deepened china-russia arctic cooperation through the joint construction of the “silk road on ice”, promoted the synergistic governance of the arctic through the application of both soft and hard laws, contributed chinese public products to the sustainable development of the arctic, and actively participated in the multilateral governance of the arctic. china will continue to improve its domestic polar legislation and enhance its arctic scientific research and shipping capacity, relying on the concept of “community of human destiny”, promote the construction of inclusive international rules, and bridge the gap between the “icebound region clause” and the “icebound region clause”. relying on the concept of “community of human fate”, china will promote the construction of inclusive international rules to bridge the differences in the application of the “ice clause”, deepen cooperation under bilateral and multilateral platforms, balance the rights and interests of arctic waterway development and the responsibility of ecological protection, and push forward the institutional realisation of the community of arctic fate. in the future, the success or failure of arctic governance will be determined by whether the zero-sum game mentality can be transcended and whether the sharing of rights and responsibilities in the arctic can be realised under the scientific consensus and legal framework. china should actively participate in the formulation of arctic laws and rules, promote the formation of a stable and flexible arctic governance paradigm, and provide oriental wisdom for the peaceful use of the arctic and the benign evolution of the global maritime order. references bai, j. y., & wang, l. x. (2020). research on the legal regulation of multi-level co-operation on china’s participation in arctic governance. journal of ocean university of china (social science edition), 2020(03), 66-79. feng, s. b. (2019). disappearing states: challenges to international law and responses to sea level rise. international and comparative law forum, 2019(02), 177-195. hong, n. (2024). geopoliticalisation of arctic affairs and china’s arctic role. pacific journal, 32(03), 45-58. li, t. s., & wu, f. l. (2023). on the controversy and future of navigation rights in arctic waterways. china maritime law research, 34(01), 135-148. li, x., & dong, y. (2021). geopolitical and economic analysis of china-russia joint construction of the ice silk road. world economic and political forum, 2021(10), 1-10. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 92 published by scholink inc. liu, h. r., & zhang, z. j. (2022). new situation of continental shelf delimitation beyond 200 miles in the central arctic ocean and china’s response. international law review, 2022(05), 79-87. wang, c. g. (2021). legal risks and suggestions for china to promote the construction of “silk road on ice”. law, 2021(03), 95-104. xiao, y. (2023). why the u.s. is willing to be a troublemaker in the arctic. guangming daily, 2023-12-19. xu, g. m. (2023). from “exceptionalism” to “long peace”: prospects for the arctic order in a changing landscape. international political studies, 2023(01), 112-136. xu, w. t. (2020). the silk road on ice: legal challenges and china’s response. international law studies, 2020(08), 84-94. yang, x. b. (2018). on the international law path of china’s participation in the governance of arctic waterways. hebei law, 36(11), 135-148. yang, x. b. (2019). dispute on freedom of navigation in arctic waterways and china’s response strategy. china ocean law review, 2019(06), 88-100. yang, x. b. (2022). governance model and system structure of the arctic high seas protected area. china law journal, 2022(11), 93-106. yang, x. b. (2022). guarantee mechanism and realisation path of the right to freedom of navigation on the high seas in the arctic fairway. international law research, 2022(06), 31-45. ye, q. (2022). soft law governance in global ocean governance and china’s strategic choice. nanyang studies, 2022(04), 31-49. zhang, c. (2019). study on legal issues in building an institutional framework for arctic regional governance. international studies, 2019(02), 51-59. zhang, c., & yang, j. q. (2022). governance challenges of the arctic route and china’s response. china soft science, 2022(06), 84-91. zhang, w. p. (2024). pan-securitisation and china’s proposal to promote arctic security governance. pacific journal, 32(11), 93-106. zhou, x. (2024). arctic wildlife conservation in the perspective of international law. ecology and environmental protection, 2024(s2), 23-30. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 4, no. 1, 2021 www.scholink.org/ojs/index.php/elp 21 original paper extraterritorial reference of china‟s labor market flexibility adjustment gao fuxia 1 , xu xinpeng 1* , huang yunning 1 & luo lina 2 1 department of international finance and trade school, sichuan international studies university, chongqing, china 2 chongqing southeast hospital, chongqing, china * corresponding author: xu xinpeng, e-mail: xinpengxu@cqu.edu.cn received: march 9, 2021 accepted: march 12, 2021 online published: april 15, 2021 doi:10.22158/elp.v4n1p21 url: http://dx.doi.org/10.22158/elp.v4n1p21 abstract china’s labor market is facing a policy and legal dilemma of balanced flexibility and security adjustment. under the condition of the continuous development of new economic conditions such as sharing economy and platform economy, the new employment pattern of the labor market presents new challenges to the current legal system. it is of great significance to optimize and perfect china’s existing labor policies and regulations by studying the experience of representative countries such as the united states, japan, and germany in labor market regulation and drawing on their scientific adjustment model. keywords the labor market, flexibility, foreign experience 1. introduction according to the world bank statistics for 2009, the level of economic development and unemployment show a negative correlation with the level of labor market regulation in a country. due to the different degrees of legal adjustment in the labor market, there are differences in the impact on a country‟s employment structure and economic behavior. the higher the degree of labor market regulation, the more rigid the labor market and the slower the level of economic development, which is also one of the reasons for the weak economic growth, high unemployment rate, and the slow adjustment of the country‟s industrial structure. the lack of flexibility in the labor market system directly restricts the free movement of labor in the market, the creative ability of enterprise jobs, the attractiveness of the state to foreign investment, etc. thus, in various countries, labor market reform www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 22 published by scholink inc. has been put on the agenda and has begun to increase the level of allocation of labor market resources through a series of labor market policies, while reducing the level of employment protection, increasing the construction of social security systems and the flexibility of the labor market. 2. the employment protection system represented by the united states and britain judging from the main ways of employment protection in the world, there are four main types of current employment protection models: the first type is the lower protection type. britain and the united states are typical representative countries; the second type is a relatively high level of social protection, typically represented by denmark, finland, the netherlands, belgium, ireland, and other countries; the third type is to provide workers with higher employment protection, and the level of social protection is relatively low, of which spain, portugal, greece, japan, italy and so on are typical representative countries; the fourth type is not only the high level of employment protection, but also the level of social protection remains high, with france and germany as typical representative countries. (see table 1 and table 2 for details) table 1. flexible guarantee types of different european countries country hierarchy executive body law performance character generalization the balance characteristics italy industry the social partners collective bargaining pay more attention to the “freelancer” community; enhancing training investment; enhance employability functional flexibility; job security spain country governments, trade unions, and employers‟ organizations social agreement advocate trilateral or even multilateral talks and improve labor protection for part-time workers internal quantity flexibility; job security germany industry the social partners collective bargaining the union reached agreements with daimlerchrysler and siemens to extend working hours instead of job cuts internal quantity flexibility; job security finland country trade unions and employers‟ time bill set up a “working time bank”: overtime and internal quantity www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 23 published by scholink inc. organizations holiday working time can be freely deposited in the form of vacation time and extra income. it has promoted flexibility in the labor market flexibility; comprehensive security austria country the government law part-time worker retirement scheme: allows female workers over the age of 50 and male workers over the age of 55 to reduce their working hours by 40% to 60% while maintaining the same income. internal quantity flexibility/wage flexibility; job security/income security table 2. reform of the employment protection act country year type of work controls reflect flexibility embodiment finland 1991 permanent workers change the period of notice from two months to about one to two weeks 1996 permanent workers for workers with less than one year of service, the period of layoff notice will be shortened from two months to one month france 1985 1986 temporary workers the “unbinding” of fixed-term contracts 1986 permanent workers deleted the clause that layoffs for economic reasons need to be approved by the government 1989 permanent workers large scale downsizing of employers needs corresponding buffer www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 24 published by scholink inc. measures 1990 temporary workers strengthen the regulation of temporary workers and short-term contract workers 1993 permanent workers the terms of the social plan are guaranteed by law germany 1985 temporary workers relaxed conditions for signing fixed term contracts in the 1990s temporary workers the length of service and re-signing conditions for fixed and temporary contracts have been relaxed 1993 permanent workers blue-collar workers and white-collar workers have the same legal notice time, which increases the average legal notice time of workers who have worked for more than 10 years 1996 permanent workers it raised the threshold for dismissal from five to ten employees country year type of work controls reflect flexibility embodiment 1999 permanent workers the employment threshold for protection of improper dismissal is less than five employees south korea 1998 permanent workers layoff due to “management reasons” and the need for the enterprise‟s business development is permitted 1998 temporary there are fewer restrictions on www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 25 published by scholink inc. workers temporary employment portugal 1989 1991 permanent workers conditions for collective layoffs were further relaxed spain 1984 temporary workers 1994 temporary workers conditions for the use of fixed-term contract workers have been tightened 1994 permanent workers the provision that allowed companies to adjust the number of employees according to their business status was abolished 1997 permanent workers the wage allowance for wrongful dismissal was reduced from 45 days to 33 days 1993 temporary workers temporary workers are allowed 1997 temporary workers a fixed-term contract may be signed without any objective reasons, and the contract shall employ no more than 5 employees the swedish 1993 permanent workers employers give priority to two of their employees, and the rest can be laid off 1995 1997 permanent workers the principle of “first in, last out” is used again, but the possibility of changing the order of dismissal through collective bargaining increases country year type of work controls reflect flexibility embodiment britain 1985 permanent workers the period of wrongful dismissal increased to two years www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 26 published by scholink inc. the united states 1988 permanent workers enterprises with more than 100 employees need 60 days‟ notice of bankruptcy or layoff belgium in the 1990s temporary workers italy 1987 temporary workers the proportion of fixed-term contract workers increased 1997 temporary workers temporary worker status is recognized during the probation period source: all the above data are from oecd. oecd employment outlook [r]. paries, 1999. in the early industrialized countries of the west, contract freedom was pursued in the field of the labor contract, which was the labor market practice under the guidance of liberal economic theory. the management has greater freedom in the exercise of the right of employment and dismissal. as some scholars have discussed, the management in the process of enterprise management, has a certain degree of internal management authority of the enterprise is taken for granted, the right to fire should be regarded as a kind of enterprise production and operation rights. but with the development of industrialization, the workers‟ awareness of labor rights, the development of trade union organizations, workers began to be less and less satisfied with their lives in a state of insecurity. for example, by introducing the french labor code, france has stipulated that a fixed-term labor contract may not exceed 18 months and that a fixed-term labor contract cannot be entered into without objective reasons. 3. the labor contract adjustment and change system represented by german and french 3.1 right to change a labor contract germany and france are more stringent in the use of public law to adjust labor contract changes. germany mainly adjusts the contracting power of the parties by contract, which adopts two main modes of adjustment: the legitimacy guarantee model and the self-determining model. german law holds that if the status of the contracting parties is too wide, the autonomy for the change of contract is made by a powerful party, so intervention through public law allows the parties concerned to seek a relative balance in a changing environment. at the same time, the social legitimacy of the terms of labor contract changes is reviewed, such as articles 2, 4, and 8 of the german law on the protection of the termination of labor contracts, which clearly state that the conditions of the change should conform to social legitimacy, and list the relevant conditions and standards. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 27 published by scholink inc. french labor law distinguishes between unilateral changes by employers. different adjustments have been made to the change of labor contract and the change of labor conditions, for example, for the adjustment of labor conditions, the employer can make full use of its employment autonomy, under the premise of making small-scale adjustments to wages, working hours, etc., the labor contract has not changed substantially. employees may not agree with the employer's chance of working conditions and may resign, but must make clear their intention to resign. otherwise, if the employer is prosecuted for unlawful dismissal after resigning, the judge generally does not recognize it, and the employee will not receive any compensation or compensation. in the case of changes in the labor contract itself, the french legal system is usually based on four criteria: first, look at the level of detail of the agreed terms, such as the agreement on the place of work, it must be clear under which conditions the employer can unilaterally change and account for the scope of the change, otherwise the changes invalid. second, the terms of the change must be in good faith and the employer must not abuse the administrative power. for example, under changes at the workplace, an employer may be suspected of abusing internal management authority if it does not provide the worker with transportation facilities for changes in his or her work. third, the agreed terms of change are strictly limited, not arbitrarily expand the interpretation. fourth, if a worker violates labor discipline, he or she should accept the terms of the employer‟s post adjustment. 3.2 the right to choose the form of a labor contract there are three main ways to adjust the form of the labor contracts in the international market. one is to adopt a liberal model. mainly representing countries and regions such as china‟s macao and hong kong special administrative region, eastern countries such as singapore, europe, and the united states, italy, the united kingdom, australia, and other typical countries; such as china‟s taiwan, france, belgium, indonesia, and other countries; third, it is mainly written, oral as the exception mode. such as vietnam, sweden, russia, and other countries. for example, the vietnamese labor code makes it clear in its article 28 that labor contracts should be signed in writing. however, for temporary work with shorter durations, such as temporary jobs of up to three months, written confirmation is not necessary if the parties to the labor relationship agree. the main reason for confirming the form of labor relations in writing is to give the written labor contract the function of evidence value. the reference to china is to clarify the evidence value of written labor contracts, not to make strict provisions on the form of non-fixed-term labor contracts, but to pass written documents, rosters, wage payment vouchers, unemployment registration information, separation certificates, and so on. as long as the relevant materials can prove the existence of labor relations, it is considered effective. however, for fixed-term labor contracts, it must be confirmed in writing, otherwise, it will also bear adverse consequences, mainly to prevent the moral risk of the subject of labor relations, save trial resources, and so on. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 28 published by scholink inc. 3.3 the right to agree on the term of the labor contract at present, there are three main types of legal adjustment on the duration of labor contracts. one is the model of free application and dismissal for just cause represented by the united kingdom; second, the free application and prohibition of the abuse of dismissal power represented by the united states; third, france and germany as the representative of the strict application, justifiable combination model. however, china‟s current adjustment mode is different from the above three, or it can be summarized as the fourth type of mode, which is based on the current labor contract term rules in china. its characteristics are compared in the following table. table 3. comparison of the basic characteristics of the term model of the four types of labor contract type fixed-term contract unfixed term contracts suitable conditions termination conditions suitable conditions termination conditions china's current model of adjustment no requirements for the position resign unconditionally; discharge is allowed for just cause no requirements for the position resign unconditionally; dismissal for just cause suggested mode for modification no requirements for the position the expiration of the time limit is the principle; negotiations and statutory reasons are exceptions no requirements for the position same as above the british model no requirements for the position same as above no requirements for the position same as above the american model no requirements for the position same as above no requirements for the position resign unconditionally; abuse of termination power is prohibited the french model temporary post same as above no requirements for the position resign unconditionally; dismissal for just cause www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 29 published by scholink inc. therefore, the proposal to our country is to dismiss during the probationary period, enterprises need more autonomy, while the scope of application of dismissal protection is defined in the scope of non-fixed-term contracts, for economic compensation only applies to medium-and long-term labor relations, further increase in the constructive dismissal while refining the unfixed term dismissal related adjustment measures. 4. the labor relations identification and subject classification adjustment system represented by germany and italy the different subjects of labor relations are classified scientifically, and the adjustment mode of differentiation has been adopted by many countries in the world, and the legislative practice has been carried out. for example, japan, the netherlands, italy, switzerland, germany, france, the united kingdom, etc., through the design of their national civil codes or other labor legal systems, to achieve the adjustment of the classification of the subject of labor relations. the best representation is the german, italian civil codes and swiss debt laws that provide for this in more detail. the first is germany. german law adjusts labor relations according to the size of enterprises, the number of workers, and other factors. the main reason for germany‟s classification adjustment is to play the leading role of small and medium-sized enterprises in the economy, and to cultivate the size of the country‟s middle-class development, through scientific calculation, the performance of the enterprise through the setting of a critical value of this criterion to adjust the scientific classification of enterprises. in the setting of critical values, the selection of parameters or indicator systems is very important. the basis of the threshold is mainly to look at the size of the number of workers in enterprises, some special groups such as part-time employment groups, apprentices, dispatchers, etc. are also considered within the scope of indicators, but also take into account the scale of production of enterprises and other conditions. the calculation of critical value is rational and gives a visual and quantifiable criterion for the classification of enterprises, and its calculation process is also the result of the interesting game of all parties. as for the division of workers‟ identity, the mainstream opinion in germany holds that the personality of labor relations should be regarded as the main basis for determining. mainly from two aspects of the investigation, one is to see whether the employee joined the employer‟s organization, and the other is to see whether the work has been carried out under the command of the employer. according to these two major judgments, the focus is on the actual case of workers in the work content, location, duration, conditions, and other aspects of the situation under the command of the employer, supplemented by other elements of judgment, and finally concluded. about the classification of workers, german labor law adopts a three-way system that divides the group of workers into self-employed groups, similar groups of workers, and groups of standard employees. similar groups of workers enjoy almost the same treatment in legislative protection because they are similar in nature and external form to standard employees. at the same time, different groups within, but also carried out a detailed decomposition. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 30 published by scholink inc. the second is switzerland. in the era of amending and perfecting its creditor‟s rights law in switzerland, the construction of its labor legal system has become more perfect, and the labor market is in a benign state of development. based on a full study of the labor market, the swiss government has carried out a scientific classification for its domestic employees and employers by setting different standards, which provides different subjects with different means of adjustment, thus adjusting labor law to the subject of labor more precise. switzerland established the legal system of employment contracts in 1911 and amended the debt law to a greater extent in 1917 when previous employment contracts were amended to labor contracts. the third in italy. in the first four chapters of its civil code, part 5, on labor legislation, italy has also made different classification adjustments to labor subjects and treated different objects differently. the law stipulates that the employment and employment relations should be divided into standard labor relations, traditional employment relations and characteristic employment relations not only from the point of view of the characteristics of the workers‟ “attributes”; from the perspective of employers, according to the scale, income, the number of workers and other factors to divide enterprises into general types of enterprises and agricultural enterprises, business owners and small business owners and other different types to distinguish, for some employment groups because of the particularity of their forms of employment, in the civil code, some of the special nature of the work of the group of workers divided into interns, domestic workers, and other special adjustment policies (note 1). 5. non-standard employment system represented by japan  in terms of the labor dispatch system. the legal adjustment of the labor dispatch system in foreign countries can be interpreted mainly from the next few aspects. the first is to lift the veil of labor dispatch. the condition is that if the employer or employing unit violates the relevant provisions of labor law, the relevant departments and legal systems may make the dispatching act labor-related; for example, article 54 of the vietnamese labor code stipulates that the period of service of human resources intermediary services shall not exceed one year; third, the standards applicable to labor dispatch contracts are strictly qualified. the german law on part-time employment and fixed-term contracts applies to labor dispatch, so it can also be inferred that labor dispatch must be temporary or temporary, while the labor dispatch law stipulates that labor dispatch is not allowed in the construction industry; article 42, paragraph 2, of the japan labor dispatch law, makes it clear that workers of a continuous nature of employment for more than 12 months shall be under an “obligation to make immediate employment efforts”. article 124-3 of the french labor code also states that the provisions of the dispatch contract prohibiting the dispatched enterprise from employing the dispatched workers are invalid. the vietnamese labor law also makes it clear that workers may, if they wish, negotiate with the employer for the establishment of fixed or non-fixed-term labor contracts after the expiration of the employment service agreement provided by the relevant employment intermediary; fifth, to promote the realization of the transformation of irregular employment contracts. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 31 published by scholink inc. ② in terms of non-standard workers. in the process of adjusting the flexibility of their labor market, western countries have put flexible employment, including but not limited to labor dispatch, part-time employment, etc., in the prominent position of adjustment, and make full use of their flexibility to stimulate the flexibility of the entire labor market. there are two common practices in western countries: first, policy-led adjustment. the government has adopted the corresponding labor adjustment policy to realize the standardized, scientific, and orderly management of flexible employment, and the second is to enact relevant laws to ensure the effectiveness of the adjustment of flexible employment groups by the force of law. 6. the flexibility and security balance adjustment system, represented by denmark and the netherlands one of the most representative homes in the flexible security balance is denmark and the other is the netherlands. the flexible security model of the danish labor market has its characteristics. first, the existence of this anglo-saxon free flexibility, refers to the enterprise can be following changes in the external environment and internal production structure adjustment at any time to hire or fire employees, if the reasons are reasonable, then it is not subject to any legal constraints and constraints; of course, employees do not see their dismissal as a “flood beast”, because the country‟s well-developed social security system can help them, when they lose their jobs, does not mean that they lose their source of income, the state through unemployment benefits and other means to ensure their income security. denmark‟s flexible security mode is also known as the “golden triangle” model (see figure below). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 32 published by scholink inc. figure 1. danish “golden triangle model” source: per kongshøj madsen “the danish model of „flexicurity‟-a paradise with some snakes”. this model has three fulcrums, one is the flexible labor market of the country, which guarantees a high degree of flexibility, the other is the stable social security system, which guarantees security, and the third is the active labor market regulation policy, which guarantees the motivation. according to statistics, in the 1990s, at least a third of employees rotate from one workplace to another, and a quarter of them would be laid off and flowed into the social security net to protect their income through unemployment benefits. this part of the staff can be divided into two categories, one is a short break after looking for work, and the other is more than a certain period still unable to find a job if there is a problem with their ability, then to receive the country‟s skills upgrading training, otherwise can no longer receive unemployment benefits. the other is the “idler”, who, if they are not keen enough to find work themselves, will be forced to stop receiving unemployment benefits and find a job. through this structure, a virtuous circle is formed. one thing to mention here is that denmark‟s social security system is perfect. statistics show that low-income groups have a higher income substitution rate of their own when combined with the various subsidies associated with their jobs and combined with flexible labor markets the social security education policy, etc. active labor market policy, loose legal environment basic flexible security links income protection the safety effect of legal guarantee in the labor market job security the flexible effect of legal guarantee in the labor market www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 33 published by scholink inc. denmark's tax structure. for example, in some areas, the income substitution rate for ordinary workers is 70 percent, and for low-income groups, it is even 90 percent (note 2). on the other hand, higher social security expenditure will increase economic costs, thereby increasing the cost of enterprises, leading to bankruptcy or production capacity decline, and ultimately not conducive to employment, but the trade unions believe that the labor market is too flexible, workers‟ rights and interests are more likely to be at risk, not conducive to security. therefore, how to mobilize the enthusiasm of workers in production is one of the problems facing the danish government. the netherlands has made adjustments to two laws on dismissal by management. for example, if a business wants to fire an employee, it needs to obtain a request from the center for work and income for approval before it can go through the dismissal process, or if there must be some “serious cause” before it can apply to the district court for a layoff. therefore, this strict security model for employees has been fiercely criticized as a serious restriction on the development of enterprises, hindering economic development. there are strong calls from all sectors of society for the liberalization of labor market regulation. in the mid-1990s, dutch government official admeiker, minister of social affairs and employment, made an official interpretation of the flexible guarantee model. the core idea of the document is to revise the employment protection policy and abolish the more strict dismissal approval system in the past. the netherlands focuses on strengthening labor market flexibility through external stimulus without relaxing labor security for temporary and vulnerable groups. the flexible security policy adopted by the netherlands relies on social forces. the achievements of flexible and safe labor market adjustment ideas: first, flexible and free labor market, effectively reduce the cost of labor market transactions, promote the reasonable flow of labor, not only facilitate the flexible employment of enterprises, but also in line with the trend of workers freely looking for work, whether from the scale point of view or the alternative point of view is conducive to promoting employment pressure, and the practical effect is better. denmark and the netherlands, for example, have the highest labor force participation rates in europe, at more than 75 percent, while unemployment has fallen below 5 percent. the competitiveness of the two countries has also leaped to the forefront of the world. flexible and secure labor market strategies, by combining the flexibility of employment and dismissal with the security of social security, have greatly promoted the flexibility and freedom of the labor market on the one hand, and active employment promotion policies for the protection of individuals on the other. enterprises hire more workers, reduce unemployment and increase employment, while vocational training at the national level improves employee skills, employment opportunities increase, and functional flexibility; income security minimizes worker risk, promotes labor mobility and structural changes, and increases quantitative flexibility; it has to be said that the flexible and security-oriented labor market policy in the netherlands is one of the driving force behind the “dutch miracle”. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 34 published by scholink inc. 7. experiences and enlightenments of foreign expeditions with the continuous development of the global economic model, the mode of labor is constantly changing, and its legal adjustment is also adjusting. the legal adjustment in the field of labor in western developed countries shows the following characteristics: first, the specialization of labor legislation. the specialization of legislation is aimed at the recurring problems in the field of labor and is fine-tuned by special legislation. for example, concerning the mode of labor dispatch, germany has introduced the employee transfer act, through which labor is permitted dispatch, and the dispatch method, requirements, etc. are specified. japan introduced the japan workers‟ dispatch law in 1985, and the labor dispatch began to be fine-tuned. germany and japan through a special form of legislation to the labor dispatch have made a detailed response, and the background is the dispatch abuse, workers‟ rights and interests have been violated more serious stage, therefore, the legislation began to send near-harsh provisions. with the development of the economy and the gradual standardization of dispatch forms, it is possible to “unbind” labor dispatch (note 3). second, the labor legal system serves the economic development trend. with the increasing trend of economic globalization, the adjustment of domestic industrial institutions, enterprises face increased competition, to reduce costs, enterprises on the autonomy of employment calls are becoming more and more strong. at the same time, to increase the employment rate and give more workers access to work opportunities, the law began to adjust the mode of employment. one is to allow flexibility in the way of employment, especially the proportion of part-time workers increased. germany increased from 100,000 flexible workers in 1980 to more than 900,000 in 2011, and article 8, paragraph 1, of the german law on part-time employment and fixed-term labor contracts makes it clear that if full-time workers apply for part-time employment, the management should agree. the reason is that germans believe that a full-time switch to part-time will free up more jobs, allow more workers to get jobs, reduce the country‟s pension burden, but also protect the flexible employment model of enterprises. third, we should have a clear understanding of the flexible security of china‟s labor market. from the perspective of the development of china‟s labor market and the institutional changes of legal adjustment, compared with the history of labor market changes in the early industrialized countries, there are both commonalities and characteristics. for example, the imperfection of labor legislation in our country is the reason for the inflexible labor market. at the same time, the new characteristics of labor relations in the new economic form also need the timely response of the legal system. according to the development of labor relations in developed countries, we can see that the general trend is from unconstrained free and flexible employment pattern to stable rigid employment model, in recent decades there has been a new flexible employment paradigm. china‟s labor market is also faced with the problem of insufficient flexibility, but due to the differences between the national conditions, china and foreign labor flexibility are different, one is the stability of china‟s labor relations, and the west than far from enough. the basis for moving from stability to flexibility is not solid, and secondly, the employment flexibility is insufficient, and the existing labor legal system cannot adapt well to the new www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 35 published by scholink inc. situation in the field of employment. therefore, in the process of dealing with flexibility, we should not only absorb the foreign advanced experience but also learn the lessons of its adjustment. combined with the actual situation of china‟s labor market, creatively realize the scientific adjustment of the labor legal system to labor market flexibility. acknowledgement sichuan foreign studies university‟s scientific research project “research on chongqing‟s high skilled talents development mode from the perspective of industrial structure transformation and upgrading” (sisu 201776), research on the identification and governance of new labor relations under the casual economy (kjqn202000905) new features of china‟s labor market from the perspective of sharing economy and its legal response (19jd04). references dale, t. m. (1977). unemployment in insurance and job search decisions. industrial and labor relations review, 30(4), 505-517. https://doi.org/10.1177/001979397703000410 dong, b. h. (2005). the concept choice of labor contract term system design. zhongzhou academic journal, 2005(06), 42-46. dong, b. h., & liu, h. y. (2005). research on discharge protection system. labor law review, 1, 214. beijing: renmin university of china press. gwartney, j. (2009). economic freedom of the world: 2010 annual report. fraser institute. huang, y. q. (1981). from employment contract to labor contract—the significance of amendment of chapter 10 of swiss debt law. review of university of political science and law, 1981(24), 54. li, h. x. (2013). the flexible employment policy of the developed countries and the enlightenment to our country. management science, 2013(06), 91-95. li, k. g. (2017). world trends in employment mobility and problems in china. journal of sichuan university, 2017(02), 146-153. li, p. l. et al. (2010). people’s livelihood in contemporary china (p. 59). beijing: social sciences academic press. lin, g. s. (2009). on contract control. taiwan hanlu book publishing co., ltd. (pp. 37-38). mu, s. x. (2016). on the justification principle in disciplinary dismissal system—thinking based on american employment law. hebei academic journal, 2016(01), 181-185. qian, y. f. (2016). on the doctrinal deviation and institutional adjustment of the study of unfixed term labor contract in china. zhejiang journal, 2016(06), 141-151. visser, j., & hemerijck, a. (1997). adutch miracle: job growth, welfare reform and corporatism in the netherlands. amsterdam university press. https://doi.org/10.1177/001979397703000410 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 36 published by scholink inc. wang, k. (2008). on labor rights and labor obligations in the constitution of china. jurist, 2008(04), 18-29. wang, q. x., & qian, y. f. (2010). comparison and enlightenment of two models of labor contract term system. in legalization of labor contract: a synchronous observation of taiwan’s labor standard law and mainland’s labor contract law (in proceedings) (pp. 169-199). the research center for labor and social law, law school of chengchi university, and taiwan society of labor law (ed.). wang, y. (2010). a study on flexible security of labor market in transitional china. capital university of economics and business. wei, m., & xu, j. f. (2011). labor relations: balancing efficiency and equity. in taipei: future cultural undertakings co., ltd. (p. 309). wu, z. h. (2009). a brief discussion on the change and termination of labor contract in germany. yue dan law classroom, 2009(79), 92-97. yang, t. x. (2010). the legal positioning and choice of labor dispatching—also on the labor dispatching regulations of china (mainland). law collection of national chung cheng university. zhang, c. w. (2009). economic growth and employment in china in the past 30 years: building flexible and safe labor markets. china industrial economics, 2009(01), 27. zheng, a. q. (2010). summary of french labor contract law (pp. 117-120). guangming daily press. notes note 1. italian civil code, articles 2094, 2130-2134, 2222, 2239, 2240-2246, translated by fei anling, beijing: the china university of political science and law press, 2004, pp. 490, 499-500, 519, 523-524. note 2. workin denmark”, http://www. workindenmark.dk/unemployment. note 3. okunuki, hifumi (27 september, 2015). “legal change will make temp purgatory permanent for many japanese workers”, the japan times. http://www.japan times.co.jp/community/2015/09/27/issues/2018.01.29 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 5, no. 2, 2022 www.scholink.org/ojs/index.php/elp 55 original paper border measures of trademark enforcement in pakistan: a comparative analysis with malaysia and usa sohaib mukhtar 1* , zinatul ashiqin zainol 2 & sufian jusoh 3 1 school of law, bahria university islamabad, pakistan 2 faculty of law, national university of malaysia, selangor, malaysia 3 institute of malaysian and international studies, national university of malaysia, selangor, malaysia * sohaib mukhtar, e-mail: sohaibmukhtar@gmail.com received: october 23, 2022 accepted: november 16, 2022 online published: december 6, 2022 doi:10.22158/elp.v5n2p55 url: http://dx.doi.org/10.22158/elp.v5n2p55 abstract border measures of trademark enforcement is an administrative method required to be implemented through executive and administrative customs authority of pakistan, malaysia and united states of america (usa). border measures of trademark enforcement runs under customs act 1969 and trade marks ordinance 2001 in pakistan, under customs act 1967 and trade descriptions act 2011 in malaysia and under tariff act 1930 and lanham trademark act 1946 in usa. trademark is name, mark, smell, sign, or a sound distinguishes services and goods of one undertaking from services and goods or other undertakings, it is required to be non-descriptive, distinctive and losses its distinctiveness when registered owner of trademark does not take prompt and speedy action against its infringement. the registered owner of trademark may avail administrative, civil, criminal procedures, provisional and border measure for protection of his registered trademark. border measure is required to be adopted by registered trademark owner when there is likelihood of exportation and importation of suspected infringed goods which contains suspected identical infringed trademark. this article is qualitative method of research as it focusses on comparative analysis of border measures of trademark enforcement in pakistan, malaysia and usa. the purpose of border measure is to prevent importation and exportation of infringed goods through administrative customs authority on its own or on application and complaint of registered trademark owner. after comparative analysis of border measure of trademark enforcement in pakistan, malaysia and usa, it is found that the owner of registered trademark should be required to furnish his details and details of his registered trademark and prescribed goods or services before administrative customs authority immediately after www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 56 published by scholink inc. registration, thereupon the customs authority would promptly act on importation and exportation of counterfeiting trademark goods. keywords intellectual property, trademark, enforcement, trade marks ordinance 2001, customs act 1969 1. introduction trademark is name, sign, mark, smell or a sound distinguishes goods and services of one undertaking from goods and services of other undertakings, it is required to be non-descriptive and distinctive as it losses its distinctiveness when registered owner of trademark does not take speedy and prompt action against its infringement. the registered owner of trademark may avail administrative, civil, criminal procedures, provisional and border measures for protection of his registered trademark. border measures of trademark enforcement is an administrative method, implemented through administrative customs authority of pakistan, malaysia and usa. border measures of trademark enforcement runs under customs act 1969 and trade marks ordinance 2001 in pakistan, under customs act 1967 and trade descriptions act 2011 in malaysia and under tariff act 1930 and lanham trademark act 1946 in usa. it is pertinent to mention here that paris convention of world intellectual property organization (wipo) is the first international treaty containing provisions about border measures of intellectual property (ip) enforcement. article 9 of paris convention states that exported and imported goods bearing an unlawful trademark or trade name for the purpose of deceiving customers of products or services should be seized in all countries of the union on the request of competent authority, public prosecutor, or on the request and complaint of an interested party under domestic legislation. it further states that if seizure is not allowed and not available under domestic legislation of the country, prohibition on importation and exportation may be invoked and if this remedy is also not available then any expedient, adequate, and sufficient remedy could be invoked which is available under domestic legislation and countries of the union are required to take steps to amend domestic law as early as possible to make it in conformity with paris convention. the agreement on trade related aspects of intellectual property rights (trips) of the world trade organization (wto) also contains provisions related to border measures of ip enforcement in member states of wto. articles 54-56 of trips state that border measures of ip enforcement are required to be implemented and enforced in a way to ensure proportionality, no compensation for defendant, no further harm to registered ip right holder and must not be contrary to constitutional requirements of member states of wto. if legal proceedings are proved against infringer, consignee, and importer of goods, the customs authority of member states of wto may be asked to destruct and disposed of goods outside the course of trade to avoid further harm to ip right holder at the market place. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 57 published by scholink inc. border measure is required to be adopted when there is likelihood of importation and exportation of infringed goods which contains identical infringed trademark. thus, the purpose of border measure is to prevent importation and exportation of suspected infringed goods through the customs authority on its own or on an application and complaint of the registered trademark owner. article 52 of trips states that the customs authority may suspend importation and exportation of suspected infringed goods for 10 days which can be maximized into 21 days and in case if applicant failed to start legal proceedings against an infringer, consignee, and importer of goods, the customs authority is required to release goods. when the customs authority releases seized goods, it is required to inform the applicant as well as the importer regarding the action. after comparative analysis of border measures of trademark enforcement in pakistan, malaysia and usa, it is found that the owner of the registered trademark is required to apply directly to collector of customs for seizure of suspected infringed goods in pakistan and the registered trademark owner is required to apply before the registrar of trademark for the prevention of import and export of suspected infringed goods in malaysia as in usa the registered trademark owner is required to submit his details and details of his registered trademark and prescribed goods to the united states custom and border protection agency immediately after registration and there is no need to submit details and complaint time and again to customs authority thus it is suggested that the registered trademark owner should be required to furnish his details and details of his registered trademark and prescribed goods or services before the customs authority immediately after registration in pakistan to avoid inconvenience on the part of registered trademark owner and for prompt, speedy, expedient action by customs authority to protect rights of registered trademark owners. 2. border measures of trademark enforcement under international conventions counterfeit trademark goods are those goods which bear trademark without authorization and which is identical to trademark validly registered in respect of such goods or which cannot be distinguished in its essential aspects from such trademark in question under law of importation country (peng, 1997; schechter, 1927). before entering into force of trips agreement in 1995, paris convention was the first international treaty contains border measures’ provision. article 9 of paris convention states that : (1) all goods unlawfully bearing a trademark or trade name shall be seized on importation into those countries of the union where such mark or trade name is entitled to legal protection. (2) seizure shall likewise be affected in the country where the unlawful affixation occurred or in the country into which the goods were imported. (3) seizure shall take place at the request of the public prosecutor, or any other competent authority, or any interested party, whether a natural person or a legal entity, in conformity with the domestic legislation of each country. (4) the authorities shall not be bound to effect seizure of goods in transit. (5) if the legislation of a country does not permit seizure on importation, seizure shall be replaced by prohibition of importation or by seizure inside the country. (6) if the legislation of a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 58 published by scholink inc. country permits neither seizure on importation nor prohibition of importation nor seizure inside the country, then, until such time as the legislation is modified accordingly, these measures shall be replaced by the actions and remedies available in such cases to nationals under the law of such country (a 9, paris convention 1883; bodenhausen, 1968). article 9 of paris convention contains same details as are contained in articles 51 to 60 under trips agreement. according of article 51 of trips agreement, member states are required to adopt a suitable procedure enabling right holder of trademark to apply with reasonable grounds for suspension of counterfeit trademark goods. trademark owner is required to furnish sufficient details enabling competent authority to ascertain that applicant is real owner of trademark and suspected goods are counterfeit trademark goods. the competent authority of member state may also act on their own initiative without prior request to suspend release of goods based on prima facie evidence of infringement and right holder may be required to help authorities in ex-officio cases (taubman, 2020; busche, 2008). article 52 of trips agreement deals with application procedure against counterfeit trademark goods. according to article 52 of trips agreement, member states must designate customs authority to receive application from right holder and act as per requirements of law of the land. the applicant must provide sufficient evidence without reasonable doubt that an infringement is occurred under relevant law of the land. the applicant is also required to provide detailed description of goods to customs authority. the competent authority is required to reply to applicant for acceptance or rejection of application and how long may they act against alleged infringed trademark goods (johnson, 1996; ruse-khan, 2010). article 53 of trips agreement deals with security or equivalent assurance. according to article 53 of trips agreement, customs authority of member state initiating border measures may demand applicant to furnish security or equal assurance that in case if apprehension of applicant is incorrect and importer, consignee, or owner of suspected seized goods suffer from action of customs authority, applicant is required to pay adequate compensation to defendant. moreover, if trademark owner does not start legal proceedings within prescribed reasonable time, customs authority would release goods as well as security to owner, importer, or consignee (gervais, 2021). article 54 of trips agreement deals with notice of suspension. according to article 54 of trips agreement, importer of counterfeit trademark goods as well as trademark owner applied for suspension to release goods would be notified. trademark owner would then be allowed to start legal proceedings against importer, consignee, and owner of counterfeit trademark goods within prescribed reasonable time otherwise customs authorities of member states are designated to release goods to importer, consignee, or owner of goods (taubman, 2020). article 55 of trips agreement deals with duration of suspension. according to article 55 of trips agreement, duration of suspension is 10 days which can be maximized into 20 days and cannot exceed 31 calendar days. in case if applicant fails to start legal proceedings, customs authority is required to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 59 published by scholink inc. release goods and when customs authority releases seized goods, it is required to inform applicant and importer regarding the action (seuba, 2010). article 56 of trips agreement deals with indemnification of importer and owner of goods provides that: “relevant authorities shall have the authority to order the applicant to pay the importer, the consignee and the owner of the goods appropriate compensation for any injury caused to them through the wrongful detention of goods or through the detention of goods released pursuant to article 55”. article 57 of trips agreement deals with right of inspection and information. according to articles 56 and 57 of trips agreement, when legal proceedings start after seizure of counterfeit trademark goods by customs authority, defendant should be allowed to avail opportunity of judicial review for modification or suspension order of seized goods and competent authority may ask applicant to provide security or equivalent assurance sufficient to protect defendant, but it should not be in a manner to deter applicant unreasonably from having recourse to these procedures. the competent authority may also ask applicant to pay compensation to third party whose interests have been affected due to seizure of alleged infringed goods or due to delay in taking legal action (gervais, 2005; seuba, 2009). moreover, subject to protection of confidential information, right of inspection and right of information regarding infringed goods and suspended goods are available to right holder to substantiate his claim and to defendant for preparing his defense. all member states are required to make rules that in case if alleged infringement is proved, distribution channel should be traced and should be taken into legal course of action (daśko, 2014; ilias, 2008). article 58 of trips agreement deals with ex officio actions. according to article 58 of trips agreement, customs authority of member state is designated to act against suspected counterfeit trademark goods on its own initiative under law of the land or on application directly received from trademark owner or received through judicial or administrative authorities of member states if they have prima facie evidence. the competent authority may ask right holder to provide sufficient details to act against counterfeit trademark goods. the competent authority acting border measures ex officio are exempted from remedial measures if acted in good faith (kumar, 2009). article 59 of trips agreement deals with remedies. the competent authority would order for destruction or disposal of goods outside the course of trade if apprehension over goods proved beyond reasonable doubt against defendant. in case if proceedings upon suspected counterfeit trademark goods are not proved prima facie against defendant, competent authority would order for release of goods. if legal proceedings are proved against infringer, customs authority may be asked to destruct and dispose of goods outside the course of trade to avoid further harm to right holder at market place. the competent authority may not allow re-exportation of suspected goods after removing affixed trademarks from suspected goods except in exceptional circumstances decided by the competent authority in public interest (trainer, 1993). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 60 published by scholink inc. article 60 of trips agreement deals with de minimis imports. according to article 60 of trips agreement, apart from general principle of border measures enforced through customs authority of member state against counterfeit trademark goods, customs authority is not empowered to seize counterfeit trademark goods destined for exportation and are in transit as well as de minimis imports which are goods available in traveler’s luggage. normally there are no rules for traveler’s luggage but in some countries, there are rules under principle of no tolerance policy. it is pertinent to mention that parallel imports do not come under the ambit of infringement thus customs authority not authorized to act against them (kumar, 2009). 3. border measures of trademark enforcement in pakistan if the owner of registered trademark suspects or he is in doubt that infringed goods are about to and near to arrive in pakistan through trade importation, he may give a notice and inform to the customs officer to treat suspected goods as an infringed goods and the owner of registered trademark is required to must mention place and time of arrival of goods. the owner of registered trademark is required to submit and furnish an undertaking containing a notice acknowledging that in case if apprehension of an applicant is incorrect, he would be asked and required to compensate owner of suspected goods, importer and consignee of those goods for their loss and for that purpose, complainant is required to furnish security or an equivalent assurance to customs authority at the time of complaint (ss 53-55 trade marks ordinance 2001). the complaint against suspected infringed trademark goods is required to be made before customs officer in accordance with statutory requirements of customs act 1969 and trade marks ordinance 2001. in one of the cases, messrs reckitt and colman limited appointed messrs reckitt and benckiser as its sole agent for import, selling, and distributing its products. mortein brand of insecticide spray being shipped by reckitt and colman overseas to reckitt and benckiser pakistan. messrs reckitt and benckiser issued letter to collector of customs in pakistan to stop parallel imports of mortein brand. matter went to appellate board, which held that letter issued by the respondent was not in accordance with sections 53 to 55 of trade marks ordinance 2001 as section 53 of trade marks ordinance 2001 requires registered trademark owner to give a notice to collector of customs accompanied by undertaking to indemnify. section 54 of trade marks ordinance 2001 states that trademark owner would compensate consignee, importer, and owner of goods in case of damage due to wrongful suspension and authority of customs may ask the owner of registered trademark to provide an expedient and adequate security which would not be as such to deter recourse of border measures under section 55 of trade marks ordinance 2001. thus, the complaint by the respondent was out of statutory requirements which are required to be fulfilled therefore, authority of customs cannot invoke section 15 of customs act 1969 against an application and complaint made in contradiction of sections 53 to 55 of trade marks ordinance 2001 hence there is no case of infringement of trademark (collector of customs v messrs decent autos, 2015). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 61 published by scholink inc. the applicant who is registered trademark owner is required to submit and pay security but when applicant has submitted an insufficient security and compensation amount is higher than that, the federal government of pakistan is required to pay remaining amount to infringer, consignee, and importer of seized suspected infringed goods and ask the applicant to pay the remaining amount balance to the federal government of pakistan thus in this case, the federal government of pakistan is liable to loss, damage, destruction or delay due to seizure or failure to seize or release of suspected infringed trademark goods (s 202 customs act 1969). if collector of customs reasonably believes that there are sufficient grounds to suspect that imported goods are infringed goods, he is required to seize them and put them in secured place. thereafter, he is required to notify the applicant and the owner of trademark, the identity of goods and give full name and address of the importer. thereafter, the applicant is required to start legal proceedings against the importer within 10 days from the day of receiving the notice or such other time as extended by the collector of customs otherwise the collector of customs is not bound to continue seizing goods for indefinite time and he is required to release the seized goods to the importer, consignee or the owner of goods. the collector of customs is empowered to forfeit seized goods before start of legal proceedings by the applicant (ss 56-58 trade marks ordinance 2001). the customs authority may only take an action against goods bearing counterfeited trademark under section 15 of customs act 1969 if there is prima facie evidence of an infringement of registered trademark. in one of the cases, the deputy collector of customs issued a show cause notice to zia uddin sheikh that goods bearing alleged and suspected infringed trademark “ahmad” why not would be confiscated by custom authority and penal action would be followed. mr. ziauddin sheikh filed a writ petition against the show cause notice of customs authority before sindh high court by taking a plea that though trademark “ahmed” is registered with the name of ahmed foods private limited but he has been authorized importer and exporter of goods bearing trademark “ahmed” for 16 years and the customs authority does not have any legal right to commence and start legal proceedings against him under section 15 of customs act 1969. ahmed foods private limited responded that authority of importation and exportation was revoked in 2012 but the petitioner replied that the respondent did not have the authority to revoke his authority and it is illegal as who holds affairs of ahmed foods private limited is pending question before the court of law. therefore, respected judges of sindh high court mr. justice s. m. farooq sheikh and maqbool babar held that the show cause notice issued by customs authority to the petitioner should immediately be withdrawn as there is no prima facie evidence that the petitioner has infringed the registered trademark of the respondent. furthermore, the petitioner should freely be allowed to import and export goods bearing trademark “ahmed” (mian ziauddin shaikh v federation of pakistan, 2014). the collector of customs may release goods to consignee, importer, or the owner of suspected infringed trademark goods if (i) the applicant and registered trademark owner does not start legal proceedings within a prescribed time, or (ii) the applicant withdraws legal proceedings, or (iii) the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 62 published by scholink inc. applicant consents in writing to collector of customs that he does not suspect seized infringed trademark goods any more, or (iv) legal proceeding has started against importer, consignee and owner of suspected infringed trademark goods and the court of law orders for release of the seized goods, or (v) the collector of customs reasonably and sufficient cause to believes that there is no sufficient cause and ground to believe that confiscated and seized suspected infringed trademark goods are infringed goods (khan, 2014). the court of law may order forfeiture or release of seized goods but the court of law is not empowered and authorized to order for importation and exportation of seized imported goods or for removing of trademarks which are affixed on counterfeited goods or for local sale of seized goods. if the court of law decides the matter in favor of the defendant, it may ask the plaintiff to compensate and pay damages to the importer, consignee and the owner of seized goods for losses they have suffered due to seizure. if the court of law orders for disposal of forfeited goods, the collector of customs is required to comply with orders of the court of law but he is not required to comply orders in a manner for removal of trademark from counterfeited trademark goods, or to facilitate exportation of imported seized goods or their local sale (tanwiri, 2011). the registered trademark owner is required to start legal proceedings immediately after seizure of suspected counterfeited goods, and if verdict of the court of law is announced in favor of the registered trademark owner, he then is required to apply for implementation of the verdict of the court of law within 3 weeks and if the owner of trademark does not apply for the implementation of the verdict of the court of law within 3 weeks from the date of its making by the court of law, the collector of customs is required to release goods to consignee, importer, or the owner of such goods but the collector of customs may apply in the court of law for retaining control over suspected counterfeited goods if the disposal, release or any action against seized goods is required (ss 59-63 trade marks ordinance 2001). in one of the cases, haji muhammad nabi claimed that he has been using trademark “frutti” for a long period of time thus he has legal right to use it and take all its potential benefits during trade and no one has right to infringe and counterfeit his registered trademark right. akhtar muhammad started using trademark “frutti” for his product of juice powder. haji muhammad nabi applied against importation of counterfeited goods of akhtar muhammad before the collector of customs. application was subsequently rejected by the collector of customs therefore appellant akhtar muhammad could legally import his product of juice powder under trademark “frutti”. thereafter, haji muhammad nabi adopted civil procedure of trademark enforcement and applied against infringement of his trademark “frutti” before the concerned district court and adopted provisional measures of trademark enforcement and asked the court of law to issue temporary injunction against defendant to prevent further infringement of his trademark. the concerned district court allowed interim injunction and ordered akhtar muhammad to stop further use of trademark “frutti”. mr. akhtar muhammad went to lahore high court and applied against decision of the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 63 published by scholink inc. district court where lahore high court dismissed orders passed by district court and gave a decision in favor of appellant akhtar muhammad on a ground that trademark “frutti” is registered in favor of akhtar muhamad therefore importation of goods containing legal registered trademark cannot be stopped and no border measure can be taken against goods containing registered trademark (messrs akhtar muhammad and brother through proprieter v haji muhammad nabi and brother, 2011). the collector of customs is eligible to make and prescribe regulations for notification in respect to process of forfeiture, seizure, release, and disposal and he may require the applicant to furnish and submit evidence of his ownership and he may also require the applicant to pay fee to cover administrative costs (ss 63-66 trade marks ordinance 2001). the custom authority may ask the importer all necessary information about his imported goods. in one of the cases, petitioner kashif naseem is an importer of goods, who filed a writ petition before sindh high court against custom authority that his products are protected under ip laws and he is not under obligation to disclose information about his goods. justice faisal arab and the chief justice of sindh high court sabihuddin ahmad held that protection of imported goods under ip laws cannot be used as a shield to resort to under-invoicing and deprive the ex-chequer of custom duties and charge at actual transaction value. the court of law further held that it is duty of an importer to deliver information about his imports so that custom authority may proceed smoothly with its obligation to ascertain actual transaction value as withholding necessary information that solely rests with importer or within his exclusive reach would recoil adversely upon intentions of an importer. the court of law held that the petitioner instead of providing necessary information as sought by custom authority for determining transactional value of imported goods unduly rushed to high court and filed instant petition therefore, his petition is dismissed and he was asked to furnish information to custom authority (kashif naseem v the federation of pakistan, 2008). 4. border measures of trademark enforcement in malaysia according to border measures of trademark enforcement in malaysia, if counterfeited infringed trademark goods are about to be imported in malaysia, the registered trademark owner or his agent are required to inform the registrar through written application complaint with documented evidence and relevant information with payment of prescribed fee. the registrar of trademark either approve or disapprove written application complaint of the owner of trademark. the approval letter by the registrar of trademark upon application of the owner of trademark would remain intact for 60 days unless withdrawn by the applicant. furthermore, the registrar of trademark may require the applicant to deposit and pay security to prevent abuse and to protect importer as well as to pay compensation for damages or to reimburse expenses likely to incur on seizure of counterfeiting infringed goods (kandiah, 2004). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 64 published by scholink inc. upon receiving the application complaint, the registrar of trademark is required to notify the authorized officer to prohibit import and export of counterfeiting infringed trademark goods into or from malaysia and to confiscate, seize and detain them and seized goods are required to be stored at secured place by authorized officer and he is liable to inform the registrar of trademark regarding it (chong, 1998). authorized officer for implementation of border measures of trademark enforcement is custom officer under customs act 1967 or any public officer appointed by the minister, to work in intellectual property corporation of malaysia (my ipo). authorized office may issue a notice to registrar, importer, and registered trademark owner which precludes that if within a prescribed time, applicant does not start legal proceedings against counterfeiter, authorized officer is empowered to release suspected seized and confiscated goods. it is pertinent to mention here that prescribed time may be extended on request of applicant within 2 working days (s 31 customs act 1967). authorized officer may give permission to importer or applicant to inspect seized and confiscated goods if they give surety that they will provide a sample to the registrar and they will not damage seized goods. the seized goods may be forfeited and disposed-off before institution of legal proceedings if it is consented by importer and he gives notice to the registrar to that effect and the court of law on application of importer may order for release of seized goods or may order for forfeiture of goods and thereafter for disposal of goods (khadijah, 2016). the registrar of trademark may issue notices for release of seized goods if legal proceedings has not been instituted against importer within prescribed time or if applicant consented for release of seized goods. aggrieved party may apply in the court of law after release of seized goods for compensation and the court of law may order applicant to pay compensation to importer for damages and suffering, he has faced. it is pertinent to mention here that compensation granted to aggrieved party if exceeds is due upon the applicant (ss 70c-70p trade marks act 976). the minister may order to prohibit importation of goods, bearing false trade description or false trade indication to stop them from importation and any person commits or induces commission of an offence of false trade description or false trade indication outside the territory of malaysia from malaysia is an offender under provisions of the trade descriptions act 2011 (ss 26-27 trade descriptions act 2011). 5. border measures of trademark enforcement in usa according to border measures of trademark enforcement in the united states of america (usa), any article of goods which bears trademark which is protected under international convention for protection of trademarks if imported in usa and causes confusion in the mind of the customer whether article is manufactured in usa or not or whether it is manufactured at a place where it is actually manufactured requires an entry at customhouse of usa and required to be recorded in books kept at the department of treasury (s 42 lanham trademark act 1946). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 65 published by scholink inc. after registration process of trademark before the united states patent and trademark office (uspto), the applicant is required to submit description of trademark and description of prescribed goods or services under the registered trademark and details of the owner of trademark and details of the users of trademark before the united states custom and border protection agency, which is responsible for enforcement of border measures under the united states department of homeland security. the primary duties of the united states custom and border protection agency is to prevent entrance of terrorists and weapons into usa and it is also responsible to protect ip rights of owners and its users while protecting businesses from ip theft and to undergo border measures of trademark enforcement in usa (lee, 2012). after making a comparative analysis of border measures of trademark enforcement in pakistan, malaysia and usa, it is found that in pakistan, the registered trademark owner is required to directly apply before the collector of customs against importation of suspected goods and in malaysia the owner is required to apply before the registrar of trademark, thereafter the registrar is required to direct the authorized customs officer to take action against suspected goods and in usa the registered trademark owner is required to submit his details and details of the registered trademark and prescribed goods or services to the united states custom and border protection agency immediately after the registration, thereafter the authorized agency would take prompt action in case of suspect and there is no need for the trademark owner to worry about importation and exportation of suspected goods as the authorized agency would do the rest. it is therefore recommended that this system should be adopted in pakistan and the registered trademark owner should be directed to furnish his details and details of the registered trademark and prescribed goods or services to the customs authority, so that in case of suspect the customs authority would take prompt action against infringed goods which is better for border measures of trademark enforcement in pakistan. it is pertinent to mention here that there are certain authorities created under the united states custom and border protection agency for smooth implementation of ip rights generally and border measures of trademark enforcement specially in usa. the ip help desk is created to answer questions to the public, business entities, right owners and importers, it is specially established to receive and lodge allegations of the infringement of ip rights in usa. the report can be lodged by the public or by the right holder or by the trade association or by the law enforcement agency or by the government. the report can be lodged online through website or can be lodged through phone line (agency, 2012). the ip restricted merchandise branch is formed to oversee e-recordation program and to provide determination and rulings over the infringement of ip rights and to give answers of legal questions for enforcement procedure of ip in usa. the ip right policy and program board is formed to provide directions to the us custom and border protection agency for smooth implementation of border measures and the national ip coordination center is formed to lodge complaints of ip theft (agency, 2016). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 66 published by scholink inc. whether the registered trademark is recorded at the united states custom and border protection agency by the owner of trademark or not, if the customs authority has reason to believe that counterfeiting trademark has been importing to usa, it can take a serious action against it and seize suspected goods and forfeit it. after the seizure, the secretary of the united states custom and border protection agency may notify the registered trademark owner and the accused. thereafter, the accused would be required to remove trademark from the packaging of goods and if removal of trademark is not sufficient to protect the registered trademark right, goods bearing counterfeiting trademark may be destroyed or used by the federal government (s 526 tariff act 1913 & s 1526 united states code 1925). 6. conclusion and recommendations in pakistan, the registered trademark owner is required to apply directly to the collector of customs appointed under the customs act 1969 for seizure of suspected infringed goods. the applicant is required to give details of the suspected goods, time and day of arrival or departure of suspected good. in malaysia, the registered trademark owner is required to apply before the registrar of trademark for the prevention of import and export of suspected infringed goods through the authorized customs officer under the customs act 1967. in usa, the registered trademark owner is required to submit his details and details of the registered trademark and prescribed goods to the united states custom and border protection agency immediately after registration of trademark and the united states custom and border protection agency is responsible for implementation of border measures in usa. after comparative analysis of border measures of trademark enforcement in pakistan, malaysia and usa, it is found that usa system of border measures to give details of the owner and the registered trademark immediately after registration is good as the owner does not have to worry about import and export of counterfeiting goods as this work is smoothly done by the united states custom and border protection agency. it is therefore recommended that in pakistan this requirement should be prescribed where the registered owner of trademark should be compelled to furnish his details and details of his registered trademark and prescribed goods or services before the customs authority immediately after registration, thereupon the customs authority would promptly act on importation and exportation of counterfeiting trademark goods. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 67 published by scholink inc. references agency the united states customs and border protection. (2012). cbp enforcement of intellectual property rights. agency the united states customs and border protection. (2016). intellectual property rights enforcement. cbp publication # 0136-0311. the united states of america. bodenhausen, g. h. c. (1968). guide to the application of the paris convention for the protection of industrial property, as revised at stockholm in 1967. united international bureaux for the protection of intellectual property. busche, j., stoll, p. t., & arend, k. (eds.). (2008). wto-trade-related aspects of intellectual property rights. brill. https://doi.org/10.1163/ej.9789004145672.i-910 chong, j. w. c. (1998). malaysian intellectual property laws and their compliance with the trips agreement. the journal of world intellectual property, 1(6), 1003-1016. https://doi.org/10.1111/j.1747-1796.1998.tb00046.x collector of customs v messrs decent autos. (2015). the customs appealte tribunal, pakistan company and tax law reports (p. 945). customs act islamic republic of pakistan 1969 act iv. (n.d.). customs act malaysia 1967 act 235. daśko, n. (2014). (rev.): enforcement of intellectual property rights through border measures: law and practice in the eu, olivier vrins and marius schneider (eds.), oxford 2012. the copernicus journal of political studies, 2(6). gervais, d. (2005). “traditional knowledge and intellectual property: a trips compatible approach”. michigan state law review, 137. gervais, d. j. (2021). trips meets big data. big data and global trade law (m. burri, ed.). https://doi.org/10.1017/9781108919234.010 ilias, s., & fergusson, i. f. (2008). intellectual property rights and international trade. nova publishers. johnson, d. r., & post, d. (1996). law and borders: the rise of law in cyberspace. stanford law review, 1367-1402. https://doi.org/10.2307/1229390 kandiah, p. (2004). intellectual property enforcement in malaysia. kandiah & associates sdn bhd, kuala lampur, malaysia 2004. kashif naseem v the federation of pakistan. (2008). the sindh high court, west civil law reports (p. 569). khadijah, m. (2016). prevention of trademark counterfeiting through intellectual property enforcement system in malaysia. the debt financing and financing risk persistency (p. 82). khan, z. (2014). trademark in pakistan. khursheed khan & associates, karachi, pakistan. kumar, s. p. (2009). border enforcement of ip rights against in transit generic pharmaceuticals: an analysis of character and consistency. european intellectual property review, forthcoming. lanham trademark act united states of america 1946. (n.d.). https://doi.org/10.1163/ej.9789004145672.i-910 https://doi.org/10.1111/j.1747-1796.1998.tb00046.x https://doi.org/10.1017/9781108919234.010 https://doi.org/10.2307/1229390 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 68 published by scholink inc. lee, j. (2012). is the us international trade commission protectionist—a comparative study of border enforcement measures. aipla quarterly journal, 40, 593. messrs akhtar muhammad and brother through proprieter v haji muhammad nabi and brother. (2011). the balochistan high court, civil law digest, 1730. mian ziauddin shaikh v federation of pakistan. (2014). the sindh high court, sindh law journal, 877. paris convention for the protection of industrial property. (1883). world intellectual property organization. peng, h. l., & chen, s. y. (1997). trademark shape recognition using closed contours. pattern recognition letters, 18(8), 791-803. https://doi.org/10.1016/s0167-8655(97)00050-0 ruse-khan, h. g. (2010). a trade agreement creating barriers to international trade: acta border measures and goods in transit. am. u. int’l l. rev., 26, 645. schechter, f. i. (1927). the rational basis of trademark protection. harvard law review, 813-833. https://doi.org/10.2307/1330367 seuba, x. (2009). border measures concerning goods allegedly infringing intellectual property rights. op. cit. seuba, x. (2010). free trade of pharmaceutical products: the limits of intellectual property enforcement at the border. geneva: ictsd. https://doi.org/10.7215/ip_ip_20100426 tanwiri, j. a. (2011). special topic report: pakistan. asian patent attorneys association, manila, philippines. tariff act the united states of america 1930 act 114-138. (n.d.). taubman, a., wager, h., & watal, j. (eds.). (2020). a handbook on the wto trips agreement. cambridge university press. https://doi.org/10.1017/9781108883511 trade descriptions act malaysia 2011 act 730. (n.d.). trade marks act malaysia 1976 act 176. (n.d.). trade marks ordinance islamic republic of pakistan. (2001). trainer, t. p. (1993). us customs adherence to nafta (gatt) border enforcement provisions: a new framework or minor modifications. fed. cir. bj, 3, 389. united states code (customs duties) the united states of america 1925 title 19. (n.d.). https://doi.org/10.1016/s0167-8655(97)00050-0 https://doi.org/10.2307/1330367 https://doi.org/10.7215/ip_ip_20100426 https://doi.org/10.1017/9781108883511 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 1, 2023 www.scholink.org/ojs/index.php/elp 35 original paper violence, its roots, and how to stop it amos avny 1 1 omnidev international consultants, yehud, israel received: march 1, 2023 accepted: march 10, 2023 online published: april 18, 2023 doi:10.22158/elp.v6n1p35 url: http://dx.doi.org/10.22158/elp.v6n1p35 “nonviolence means avoiding not only external physical violence but also internal violence of spirit. you not only refuse to shoot a man, but you refuse to hate him” (martin luther king, jr.) abstract the essay opens with the claim that personal aggression, violence and hostility became permanent visitors in our place. this sad situation was the main reason for writing this paper. along a short historical review, the author explains the difference between the former well-organized 20 th century and the current chaotic world perception of the 21 st century. the author further reminds that the 20 th century contained two world wars, that killed tens million people and the cold war, that had divided the world into two large blocs. further, the essay explains that in this regard the current century is different. no-more big world-wide armed conflicts, but many end-less small disturbing disorders, violent and terror cases. the difference referred also to the personal prominence of the leaders of the wars. the eminence winston churchill—the great outstanding leader of the west, joseph stalin—the sadist communist dictator who killed tenths millions, and adolf hitler—the mentally-ill tyrant of the nazi regime who was a horrendous, barbaric and murderer of millions. comparing to these leaders the nowadays villains and terrorists are sick, confused and weak persons who seek recognition. abstract cut. the author assumes that criminal violence and terror expand at present as result of three reasons: (1) the termination of political debates due to the political parties’ deterioration, (2) a wrong understanding of today’s developments, and (3) an erroneous feeling, about equality that causes much frustrations and lead to wrong expectations. the author supports countries’ current initiative for fighting against present terrorists by establishing special polce and military units, which know the job, professionally and effectively. however, for (a cut) improving the treatment of this sick phenomenon at the future, the author emphasizes the need to collect reliable information about the relevant population and its personal weaknesses. at the end a six steps therapeutic program is proposed: (a cut), 1) revealing and building the individual’s inner-self, 2) pursuing the “meaning www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 36 published by scholink inc. for life” as life’s goal, 3) endorsing collaboration and togetherness, 4) developing and empowering the self-esteem, 5) recognizing and accepting social heterogeneity, and 6) sharing actively social rights and commitments. violence and terrorism are like malaria mosquitos, small, unseen but very dangerous. decisiveness, consistency and determination are required for successfully eradicate them. keywords violence, terror, low self-esteem, sick and disturbed people, decisiveness, consistency and determination abilities 1. introduction martyr’ cause has ever been stilled by an assassin’s bullet. no wrongs have ever been righted by riots and civil disorders… an uncontrolled or uncontrollable mob is only the voice of madness, not the voice of the people. (robert kennedy) a normal person who lives today in the western hemisphere feels or maybe even smells that personal aggression, violence and hostility became permanent visitors in our place. based on our impression, it is right to say that the fear from social aggression and the involvement of violence in public life grows and tends to increase along the current years. additionally, and due to some covert and open reasons, local, municipal and federal governments do not effectively eradicate these troubles. thus, we decide to explore this issue and examine the following points: (1) what is violence, and what are its roots? is it, or not, an ordinary component of human life? (2) how, why and when these phenomena took place and became significant in social relation? and (3) what are the main features that characterize personal aggression, violence and hostility, today, in 2020s? quite at the beginning we want to clarify that since the whole issue is so large and heavy, we neither deal with wars, of any types and size, nor with political terror activities. the present essay aims to promote the understanding these awful activities, their roots and surrounding conditions, while pointing out on some courses of fighting against them. usually, we do not like to use the term fighting, because it refers to bloody political conflicts and wars, rather than to social riots and disorders. but the current situation in many places is so bad that extraordinary means should be used for hastening the eradication of these sick activities. 2. historical background violence accompanies civilization from the early days of written history. the biblical story of cain killing abel (genesis, chapter 4) just indicates that this was an ordinary reality in those early days. moreover, it also tells us that killing among family members also was quite common and in-a-way, been legitimated. with respect to many reservations, a keen observation also indicates that along the past years, more inhabitants of the region were killed by their own fellow brothers than by foreign invaders. thus, it is fair to assume that within the western hemisphere aggression, violence and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 37 published by scholink inc. hostility were legitimate acts and, sometime, even common procedures for running communities. besides wars and other types of large organized aggressive actions, not discussed in this work, the use of power was recognized as a legitimate mean for achieving all types of goals, at family, community and national levels. it has its written or traditional rules and it also have some kind of social undisclosed or agreed understandings. with the industrial revolution and the emergence of the capitalist perception, work-place and capital-labor relations became an important arena for running and settling most of their disputes. besides these conflicts most other ones were either personal or criminal and were treated by the official law-abidance agencies. in the 20 th century, one of the worst periods in human history, which contained the two awful world wars and the lasting cold war, most violent and hostility activities were run by the global rival powers. complying with the given rules of the game and following the instructions of the involved hostile parties, aggressive initiatives and activities were enslaved to high-level concerns and politics. small sporadic violent activities were just a minority among the large number of actions run in those days. the first most known case of a single shot that have changed the world, was the assassination, in june 1914, at sarajevo, bosnia, of the austrian archduke franz ferdinand, heir of the austrian emperor franz joseph. this terror act, carried out by a single plotter, “was one of the great watersheds of 20 th century geopolitical history. it led to the fall of four great imperial dynasties, resulted with the bolshevik revolution in russia, and in its destabilization of european society” (wikipedia). another, very famous and significant were the assassinations of president john kennedy, his brother us attorney general robert kennedy and the killing of martin luther king. another famous assassination was that of israel prime minister itzhak rabin, in november 1989, who was shot by a single plotter who hoped to change, for good or bad, his policy. the above cases, unfortunately, teach us how significant and even crucial, an act of terror could be. in conclusion, it is right to assess that the 20 th century, with its two world wars and the long cold war, as one of the most brutal periods, in human history. further, it is important to remember that in fact, the two parties fought, were led by three exceptional leaders; the freedom fighter winston churchill—the great outstanding leader of the western alliance, joseph stalin -the killer of tenths millions and the inacceptable and sadist communist dictator and adolf hitler-the horrendous, barbaric, cruel and murderer of millions and the mentally-ill tyrant of the nazi empire. it should be said here, that these three historical leaders, eventually were led and directed by their brave, sadist and crazy inner-self. churchill’s heroism, stalin’s sadism and hitler's craziness, all were extraordinary products of a dominant inner-self. the rationalists and the logical strategists have little to say about their leaders’ behavior. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 38 published by scholink inc. 3. what violence is? “violence is the last refuge of the incompetent.” (isaac asimov) violence is like a weed—it does not die even in the greatest drought.” (simon wiesenthal) at recent years, frequently we wondered, is the expansion of violent cases and the increase of hostility attacks, really happened or maybe, is it just a mirage or a hallucination? following these feelings, and resting on our own impressions, without waiting for more reliable information, we decide to rethink and reexamine the issue of violent and hostility accidents in the 21 st century. due to the work’s limit, we do not examine violence’s long history. however, we assume that with the turn of the millennium, which symbolizes the move from modernity toward post-modernism, the two phenomena, mentioned above, will be reshaped and reformed. we assume that part of the new mode of operation occurred when many violent activities and hostility attacks move from the 20 th to the 21 st century. like with other movements, the transformation from the well-ordered modernity to the post-modernism chaotic order, affects and reforms the nature of these threatening movements. additionally, it seems that some of the less-effective contra-measures that were imposed on criminals suffered from lack of knowledge of the internal drives and motives that appear with the move toward post-modern style of action. this short description in the previous section is presented just for reminding us on how old and deep rests the inclination for using violent actions as an instrument for leading and ruling. rulers and politicians may argue that enacting violent actions is indispensable and necessary for running effectual regime. since it is done for the sake of nation or the state, it is allowed and acceptable. 3.1 the chaotic post-modern perception of the world for better understanding our point of view it is necessary to familiarize with our perception of the world and how it is run and managed. in general, we embrace the idea of the chaos, which is a perception that drives and steers many events and occurrences, in the post-modern 21 st century. for being sure and clear it is hereby stated that the author refers and focuses only, on chaos of the materialistic, natural and physical world. we do not discuss or refer to the chaos movement in culture, arts or any spiritual event. thus, it is assumed that the present chaotic universe is run and managed by some rules and directives that unfortunately, we only know little on them. this less-sufficient knowledge stroke us quite strong in the aftermath of the covid-19 pandemic. it was also been recently expressed in some journals (avny, 2022). the post-modern chaotic world incorporates and encompasses enormous uncountable number of systems and activities that act and perform in numerous forms and strengths. the inter-entity and intra-entity connections, links and influences are led by different drives and initiatives. they run in complicated and undefinable routes and directions. in sum, the chaotic world of the 21 st century is a gigantic complex of less-comprehended events, moves and occurrences, which takes part www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 39 published by scholink inc. spontaneously, in different forms of mass and energy, along different times and in changeable strengths and frequencies. naturally, people who live within such a perplexed environment, specifically those who learnt and grew in former times, fill a little confused and embarrassed when facing the post-modern social environment. most citizens, ordinary and regulars, learn to live and to prosper within these new conditions. however, some, very few percent of the population, may find it difficulty and sometimes even impossible, to accept the change and to run their life accordingly. these are in potential, the very early seeds of social resistance. using kurt lewin (1900) model of change may provide a helpful assistance for understanding the nature of the required transformation. according to this model, a group of change-opponents appears almost in every change. they may also be called: permanent opponents, adversaries, rivals or antagonists. along the change execution, four minority groups of opponents are expected to emerge, they are: a. a statistical minority group this group appears almost in every statistical analysis. the statistical theory claims that almost always, over a minimal number of subjects, in all cases, with all types of population and events, regardless the issue or the subject, a group of opponents, eventually will appear. b. an ideological minority group similar to the previous paragraph here also, within most populations an ideological opposition will always be found. their main point is to be against, or to oppose any or every act or proposition. c. a minority group of the present regime supporters frequently people prefer to continue the current situation because they have many known and unknown invested interests in the present state. in many cases they prefer leaving these concerns hidden and uncovered, because of personal reasons. d. a minority group of those who fear and hate a changes almost always, individuals who are hesitant and afraid from the coming change appear and express loud and clear their worries and fears. despite the relatively small size of the above groups, they represent a large variety of worries. but, due to their variety they deserve different treatments. 3.2 the fading out of ideological disputes as promoters of violent for many years, all along the 20 th century, local and global arenas were filled with ideological and political disputes. most of the discourses were about social, political and economic affairs. the historical demarcating line presents the difference between the two major political-economic ideologies —capitalism and socialism. almost the whole world was divided between these two ideologies with additional group of about thirty nations preferred to stay neutral and indifferent. at the turn of the century, many of the differences which for years had separated between nations faded away. most western-type liberal democratic nations, set up political-economic regimes that incorporated most positive ideas and practices, taken from both sides of the political map. it appears, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 40 published by scholink inc. therefore, that this tendency of creating grand coalitions rather than returning to the old coalition-opposition system is going to be the main road in the future. this development will push the extremists of both sides to look for more spectacular performances. thus, it is assumed that resulting from the political system reformation and reorganization, extremists of both sides will intensify and expand their activity. violent activities and street disorders will become an important instrument for proclaiming their policy wishes. such a social atmosphere is and will be a very supporting environment for attracting some of the individuals, prior defined as change opponents or genuine antagonists. many members of this group, usually are noisy, angry, and looking for the public eye. in most cases they provide the ideology required for justifying violence and terror activity. they are also those who seek the media attention and those who run to provide justification. 3.3 a deeper integrative insight into the terrorists’ soul and spirit this, maybe is the less-explored or the less-comprehended aspects of violence and terrorism. although it was important in the past, when most activities were initiated and led by logical and ideological reasons and drives, they are even more critical at the 21 st century. at present, at the post-modern era, most people act and behave due to their inspirations, wishes and desires. the do very little because they need or forced to do. they are emancipated and free and they want to feel like that and to materialize this liberty. the main driving forces, that act effectively in those conditions, therefore, are internal motivating jests, spiritual stimulators and deep warm soul-searching calls. for studying these disciplines and exploring their mysteries one should employee touchy social disciplines, like psychology, rather than using rational or logical approaches to decision-making. at present, due to many reasons, mainly affluence, people tend to make their choices in accordance with their feelings and emotions rather than because of rational reasons. the same rule also works with regard to violence and terror activities. terrorists, criminals and villains, in the post-modern era, run also their businesses much because of excitement and internal satisfaction rather than because of concrete needs or a specific request. little successes are expected for those who try rationally to convince felons to do or not to do a crime. thus, it is assumed that a significant share of the trouble may be resolved, when and if the treating approach and the curing practices will be changed and redesigned according to the changing conditions. the problem regarding these people is even more intrigued and complicated. not only that they think differently, they are motivated differently, by different hidden forces and in search of different types of satisfaction. and, the social workers, or civil servant who try to help them and resolve some of their difficulties are not trained and prepared to provide a treatment that suit them. from the little we know today it is clear that a significant part of a person’s thoughts and decisions are originated and initiated in his/her inner-self. after many years of brain and mind research, much still, is unknown. for example, the whole complex of dating mating and copulating, love and hatred, sympathy and apathy, after so many years of study, is still almost incomprehensible. for promoting the inner-self www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 41 published by scholink inc. research, we have suggested, some years ago, to use practices taken from physics’ quantum theory, which studies moves of very tiny particles inside the atom’s nucleus (avny, 2022). it makes sense using this theory since it also studies the nature of the particles, whether are they pieces of mass or energy. apparently, it seems that in the future, as people get more personal freedom, prefer being at home, alone or with their families, more attention should be given for studying “touchy subjects” such as psychology, behaviorism, leading and moving people and experiencing good and satisfying life. economics, political studies and politics, rarely help in bad times. as this is our recommendation for the general public, undoubtfully this is the right way to go for initiating a proper solution for the violent and terror phenomenon. 3.4 the rise of free & sporadic violent and terror activity types “power and violence are opposites; where the one rules absolutely, the other is absent. violence appears where power is in jeopardy, but left to its own course it ends in power’s disappearance.” (hannah arendt, wikipedia) the social transformation, from a well-organized almost rigid social construct towards a loose, unformal and relaxed social organization, causes minority groups, that later became hatcheries for violence and terror movements, to change also their mode of operation. whereas in the 20 th century most disorder and riot activities were initiated, designed and carried out by well-organized violent groups, at the post-modern 21 st century they have been changed and became more and more individualistic and sporadic one. the general sense of freedom and liberty drives plotters to seek singularity and personal satisfaction. the extreme muslim terrorists (shahids) also hope to be personally compensated at paradise, by having seven private beauties. the general sense of freedom also inspires terrorists, knowing it or not. at present they prefer to act alone, free and uncontrolled. as a result, it is much more complicated to maintain some kind of communication and other types of relationships with these minority groups of villains and terrorists. 4. what could be done for down-sizing violence “the end may justify the means as long as there is something that justifies the end.” (leon trotsky) the fight against violence and terror activities is a long tiresome undertaking. the struggle to completely eradicate them will require time and money, but even more patience, decisiveness and determination. it is a long-lasting battle and therefore, it requires embracing a creative and sophisticated strategy. for finishing the job one year is too short while five years seem to be too long. in any case, we have to suggest an implementation strategy, because of the belief that an unapplicable idea, even the most exciting one, is in real life, almost valueless. moreover, changing many of the implementation practices is also desired since the post-modern era have changed and continue to change many of traditional conducts and practices. it may be confusing or even ironic, but the extra, additional freedom, which could be received at present in many countries, requires and demands more www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 42 published by scholink inc. behavior instructions and more rules and regulations. the current increase of personal freedom due to affluence, the growing feeling of liberty, because of technological advancements and the relative sense of running the world, that some politicians like to spread out, all these almost positive developments, immediate require a more effective government's control. all who understand a little about advanced technology understand and already know, higher and more sophisticated technological systems require better and more effective control and monitoring techniques for guiding and direct it. bicycles are a helpful example. a regular ordinary pair is almost free from regulation. whereas, an electric one needs an owners’ permission and a traffic license. thus, undoubtfully, widening the technological horizon in the future, will force the enacting of a strict escort of human instructions and limitations. while presenting this work we also decide to propose a reformed strategy for implementing its recommendations. most public and governmental agencies carry out and implement their policies by running a traditional organizational framework divided into offices, departments, sections etc. this bureaucratic model, which maybe acted nice in the past, do not suffice any more at present. 4.1 the project model as the mode of operations we recommend to introduce for practical use the project model—the preferred model for running a case, effectively, economically and in due time. this mode of operation is usually used in the private sector and in the military, for implementing, running and managing large missions. these recommendations rest on the author’s long and vast experience of running different types of public projects. when the situation is so serious it is advisable to concentrate sources and energies and to focus on a given concrete goal, where the results could be measured and evaluated. using other practices, commonly used in traditional public administration, are frequently less effective and less helpful. 4.2 gathering the relevant information the first step in designing the project should be defining the goal and first of all, deciding about the concrete group of subjects, or the relevant population. it is very complicated and may be also very sensitive because of all the reservations escorting profiling people. nevertheless, we recommend to try to execute such a profiling at school years. every community should decide about the proper age or class. although it is an important information, since it is the basic data for further actions, it can also be executed by self-fulfilling questionnaires, which will be fulfilled by the subjects. in general, it is assumed that these questionnaires will provide reliable information on the target group, the character and nature of its members and what type of treatment or therapy they need. we have to emphasis again and again that, even if the submitted data will be biased, even if it is subjective rather than objective, even than it is better, from what we know today—since we know very little about our youngsters, school graduates and of course school's drop-outs. partly knowing is almost always better than not knowing and little or small healing is nobler that ignorance. below is presented a proposal for the type of a questionnaire required. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 43 published by scholink inc. five measures for the proposed questionnaire. 1) gender—a male or a female 2) character—an active or a passive person 3) nature—on the range from optimist to pessimist 4) behavior—oriented on people or mission, or both; 5) disposition—an extrovert, an introvert or between them even if this model is less-acceptable, every community is allowed to authored its own type or mode of data collection, provided it is effective and reliable for providing the opening information required for further therapy. 4.3 a proposed framework for inner-self therapy “an abnormal reaction to an abnormal situation is normal behavior.” (viktor frankl) after gathering the required information, a more concrete program should be prepared and concrete candidates for every part of the treatment should be selected. we claim again and again, we do not pretend to know or to point out on a given part or sector of the population. we do it because we believe that “everyone is equal before the law” even if he or she differs in many other fields. that is the right and the just interpretation of the equality value. the right and the just meaning of that proclamation is that a group of different individuals should get different types of therapy, according to the information inferred from the basic questionnaire. the guiding course of action should be “everyone should be treated in accordance with his/her strengths and weaknesses” rather than equally. a heavy person should learn to lose weight while his/her skinny counterpart should learn to properly eat. community’s ability and will to evaluate a person in accordance with his/her true needs and wishes, subject to a given conditions, is the fair understanding of the equality value. the list or the framework proposed below is just an example for building a program for helping people with questionable personal quality. it should assist them growing and developing their abilities and personality, so that they will better be able to struggle with todays uncontrolled freedom and streets’ anarchy. the list contains six steps. it started with building the individual’s inner-self and ended with teaching him/her to be a positive member of the community, sharing actively social rights and commitments. it is quite understandable that every agency or therapist can and may change or improve the proposed list, the point is only that something has to be done. only by doing things could be cured. below is the list of the six therapeutic steps. step one—reveling and building the individual’s inner-self step two—pursuing the “meaning for life” as life’s goal step three—endorsing collaboration and togetherness step four—developing and empowering the self-esteem step five—recognizing and accepting social heterogeneity step six—sharing actively social rights and commitments www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 44 published by scholink inc. some may argue that our argument is not fair. a small minority disobeys the law and we force the majority to seek therapy. unfortunately, we disagree. too many cases of anarchy and disorder occur and lead to violent and terror activity. we have just to quote robbert kennedy for supporting our claim. “no wrongs have ever been righted by riots and civil disorders… an uncontrolled or uncontrollable mob is only the voice of madness, not the voice of the people”. 5. conclusion “social justice cannot be attained by violence. violence kills what it intends to create.” (pope john paul ii) this essay discusses a very painful subject—violence and terror activities, which accompanies humankind from the early days of written history. many dreadful catastrophes occurred because of this unexplainable and unhuman madness. however, the author tends to assume that due to this madness longevity while being an indispensable part of humankind, something should be changed in struggling against them. murderers, villains and terrorists are, in fact sick people. they are the creatures, the descendants or the offspring of infantile, immature, insecure and undeveloped personality. frequently they suffer from a very low self-esteem, mental disorder and exaggerated exhibitionism. with these weak or sick capacities, it is quite difficulty to find for them a proper place in civilized society. they tend therefore, to be radical, individualists and egotists. as a practical solution for current troubles most countries had organized special professional police or military units for fighting and eradicating this unbearable disturbance for normal life. we totally agree that understanding the phenomenon, its history and roots does not allow us to accept it or suffer because of it. however, it does not suffice to stop present events, we also have to think about the future. for that reason, the author suggests a program for threat at the coming days. as said, it was in assumes that criminal violence and terror expand as a result of three reasons: (1) the termination of political debates due to the political parties’ deterioration, (2) a wrong interpretation of the 21 st century post-modern chaotic order, and (3) a erroneous feeling on equity, that evokes from envy and anger, which leads to seek wrong places and events. most villains and terrorists assume that because of thousand reasons, they are right and they deserve to be compensated for their past sufferings. as nobody understand them, they are allowed to impose their own order on society. without going into further discussions, we are ready to admit that nowadays situation is quite severe and dangerous. thus, we propose here some modes and practices for identifying the issue and threat it. the first step, however is to recognize the issue and its dangerous effect on society. once the authorities will make the first step the solution will follow quick after. as violence and terrorism are proactive initiatives, so should be public reaction—imaginative, brave, smart and decisive. almost every initiative is justified for eradicating this trouble-making danger. democracy guardians should be strong, smart and resourceful when they stand to defend it. words, shouts, moralizing and preaching can do very little in this matter. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 45 published by scholink inc. references arendt, h. (n.d.). brainy quotes on violence, wikipedia. asimov, i. (n.d.). brainy quotes on violence, wikipedia. avny, a. (2021). an irony view on a convoluted reality: part a. open journal of philosophy, 11. https://doi.org/10.4236/ojpp.2021.111015 avny, a. (2021). an irony view on a convoluted reality: part b. open journal of philosophy, 11. https://doi.org/10.4236/ojpp.2021.111015 frankl, v. (n.d.). goodreads quotes, wikipedia. gleick, j. (1991). chaos (heb. ed.). tel aviv: ma’ariv books. holy bible. chapter 4. kennedy robert. (n.d.). brainy quotes on violence. wikipedia. king martin luter, jr. (n.d.). quotes on success. wikipedia. lewin, k. (1943). defining the “field at a given time”. psychological review, 50. https://doi.org/10.1037/h0062738 pope john paul ii. (n.d.). brainy quotes on violence. wikipedia. trotsky leon. (n.d.). quotemaster.org/images on success. wikipedia. wiesenthal simon. (n.d.). brainy quotes on violence. wikipedia. r https://doi.org/10.4236/ojpp.2021.111015 https://doi.org/10.4236/ojpp.2021.111015 https://doi.org/10.1037/h0062738 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 108 original paper the construction of the rcep investment dispute settlement mechanism: currentcy, dilemmas and solutions zhongqi jiang 1* & yunke liu 1 1 xi’an jiaotong university, shaanxi, xi’an, china * zhongqi jiang, xi’an jiaotong university, xi’an, china received: may 1, 2024 accepted: may 26, 2024 online published: may 28, 2024 doi:10.22158/elp.v7n1p108 url: http://dx.doi.org/10.22158/elp.v7n1p108 abstract the signing of rcep signifies the official launch of the world’s largest and most promising free trade area in terms of population, playing a positive role in promoting regional trade, investment, and economic growth. currently, based on the resurgence of neo-calvinism, legitimacy crises in isds mechanisms, and the absence of isds mechanisms in rcep, member countries are beginning to reexamine the rcep investment dispute settlement mechanism. overall, the rcep investment dispute settlement mechanism fails to effectively balance the interests of host countries and investors. therefore, based on comparative analysis of existing investment dispute settlement mechanisms, it may be advisable to explore establishing a new isds mechanism for rcep that integrates both preventive measures and back-end mechanisms. keywords rcep, isds, investment dispute settlement mechanism, mechanism construction 1. introduction the regional comprehensive economic partnership (rcep) comprises china, south korea, japan, new zealand, australia, and the ten asean countries. as the world’s largest and most promising free trade area, the rcep countries are closely interconnected, having concluded numerous bilateral or multilateral investment treaties that have deepened two-way investment. however, this development has also led to numerous investment disputes, presenting unprecedented opportunities and challenges for member countries. traditionally, disputes between host countries and foreign investors are resolved by submitting the disputes to international investment arbitration institutions through the investor-state dispute settlement (isds) mechanism. however, due to the legitimacy crisis of the isds mechanism, the resurgence of calvo doctrine, and the absence of an rcep-specific investment dispute settlement www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 109 mechanism, member countries have begun to reassess the investment dispute settlement mechanisms under rcep. some scholars believe that the absence of the isds mechanism seems to have little impact on investment flows between member countries (shiro & luke, 2022, pp. 315-364), but it is clearly detrimental to the protection of foreign investment. the lack of an effective investment protection mechanism makes investors’ property rights vulnerable to infringement, greatly reducing their confidence and thus affecting the establishment of a high-quality, reciprocal economic partnership under rcep, and hindering the realization of regional investment goals (wang, 2022, pp. 86-96). therefore, exploring the challenges in constructing an investment dispute settlement mechanism under the rcep framework and proposing targeted chinese solutions is of great significance for promoting new cooperation and development in the investment fields of rcep member countries. 2. currentcy and dilemmas of rcep investment dispute settlement mechanisms rcep has temporarily shelved the isds provisions and only included interstate dispute resolution provisions in chapter 19. according to article 19.3 of the rcep, the rcep investment dispute settlement mechanism operates in parallel with the dispute settlement mechanisms in bilateral or multilateral investment treaties between member countries. this means that disputing parties can resolve investment disputes either through the rcep interstate dispute settlement mechanism or through bilateral or multilateral investment treaties. although there appear to be multiple remedies available to host countries or investors, this fragmentation of dispute settlement leads to confusion and makes it difficult to effectively protect the legitimate rights and interests of both parties. 2.1 rcep dispute settlement mechanism chapter 19 of the rcep establishes a broad dispute settlement mechanism, including consultation, mediation, conciliation, and expert panels, similar to the wto dispute settlement mechanism, but it is only applicable between member countries and has certain limitations: firstly, it can only resolve interstate disputes, and only member states can initiate the rcep investment dispute settlement mechanism, which is clearly politically motivated (ma & tang, 2023, pp. 54-67). investors cannot use the rcep to seek remedies, making the mechanism unfavorable for protecting investors’ legitimate rights and interests in terms of initiation, operation, and outcome. secondly, even for interstate investment disputes, the rcep dispute settlement mechanism mainly adopts remedies that require the defaulting party to perform the agreement, rather than monetary compensation, which greatly limits its role in protecting investors. thirdly, the rcep strictly limits the scope of the dispute settlement mechanism, excluding provisions such as national treatment, most-favored-nation treatment, performance requirements, and investment facilitation, which further hampers the protection of investors’ legitimate rights and interests. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 110 2.2 international investment arbitration mechanism although the rcep does not include isds provisions, investment or trade treaties between member countries typically contain isds clauses. despite providing a relatively mature mechanism for resolving investment disputes, international investment arbitration still faces issues such as lack of democracy, high costs, and inconsistent arbitral awards. currently, the exposure of inherent flaws in the international investment arbitration mechanism has led to a serious legitimacy crisis. the resurgence of calvo doctrine, coupled with the absence of public law controls in international investment arbitration, generally favors capital-exporting and legally advanced countries (shan & wang, 2019, pp. 20-28). the rcep member countries vary greatly in their levels of development, including both developed and numerous developing countries. given the advantages of the isds mechanism for developed countries, most rcep members are cautious about this mechanism. for example, icsid, as a permanent institution for resolving investment disputes between host countries and investors, has not been signed by laos, myanmar, and vietnam among the 15 rcep member countries to date. the utilization rate of icsid is also low among the other 12 member countries, possibly because rcep members believe that icsid’s inherent bias towards investors may undermine the integrity and effectiveness of host country regulations. 2.3 local remedies and diplomatic protection local remedies in the host country, also known as calvo doctrine, originated in latin america and are a traditional means of resolving investment disputes between host countries and investors. in the 1980s, due to the need to attract foreign investment for domestic economic development and the rise of international investment arbitration mechanisms, calvo doctrine showed a declining trend. however, in recent years, there have been signs of a “resurgence”. since the rcep dispute settlement mechanism only applies to interstate disputes, if a host country refuses to accept international investment arbitration, investors can seemingly only seek diplomatic protection from their home country or accept the territorial jurisdiction of the host country after exhausting local remedies. the development levels between china and other rcep member countries vary significantly, and their domestic legal systems differ. additionally, the influence of interest groups in some countries may result in issues such as unfairness, lack of transparency and independence, making it difficult for host countries to overcome the drawbacks of “territorial protectionism”. furthermore, since diplomatic protection is a right of the investor’s home country rather than an obligation, the home country may not necessarily exercise this right when the investor’s legitimate rights and interests are violated. the main reason is that the home country must consider multiple factors when exercising diplomatic protection. compared to the property interests of investors, factors such as national interests and diplomatic relations are more important, which could lead to greater interstate conflicts. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 111 3. china’s proposal for constructing the rcep investment dispute settlement mechanism 3.1 isds reform models and incompatibility with rcep the resurgence of the calvo doctrine in some countries, especially developing ones, has intensified the strong resistance of other countries to the international investment arbitration mechanism. nevertheless, the unique advantages of international investment arbitration make it the most recognized mechanism for resolving investment disputes by the international community. on the one hand, completely abandoning the international investment arbitration mechanism would deprive investors of the opportunity to directly sue the host country, leaving them only with traditional local remedies and diplomatic protection from their home country to safeguard their legitimate rights and interests. on the other hand, without guarantees similar to the washington convention for the enforcement of arbitral awards, mechanisms like mediation, consultation, or conciliation lack effectiveness and recognition, which is a significant reason why international investment arbitration remains an irreplaceable means of resolving investment disputes. in international investment arbitration practice, the isds mechanism poses severe challenges to the national sovereignty and public interests of host countries. issues such as inconsistent arbitral awards, lack of transparency, and erosion of regulatory authority have led to a “crisis of confidence” in the isds mechanism (qi, 2018, pp. 79-87). against this backdrop, more and more countries have started to reform dispute resolution clauses in investment treaties and attempt to establish new mechanisms for resolving investment disputes. latin american countries have adopted an “abandonment” attitude towards the isds mechanism, with some countries withdrawing from icsid. the united states insists on a partial improvement model, making incremental reforms to the details of the isds clauses without changing them entirely. for example, in the usmca, the scope of disputes eligible for arbitration is narrowed, and strict limits are placed on arbitration applications. the european union has established an investment court system with a two-tier appeal process and optimized appeal mechanisms, attempting to judicialize the isds mechanism and establish a new isds framework (xiao, 2021, pp. 84-97). however, none of these three models can serve as a reference template for the investment dispute resolution mechanism under the rcep framework: firstly, the inherent advantages of the isds mechanism make the abandonment model of latin american countries incompatible with the core interests of rcep member states. secondly, the rcep member countries include the ten asean nations, some of which have a defensive attitude towards the isds mechanism. the partial improvement model of the united states does not meet the interests of these countries. finally, the judicial reform model of the european union essentially reflects an avoidance of arbitration, which is also a response to the resurgence of the calvo doctrine. the investment court system originated in the eu, which consists mainly of developed countries, while the rcep member countries include developed, developing, and underdeveloped nations. establishing a unified investment court involves issues of national judicial sovereignty, and the rule of law development levels among rcep member www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 112 countries are uneven, making it unsuitable to establish a unified court. additionally, countries like china and japan do not support the establishment of an investment court. therefore, it is difficult for the rcep to establish an investment court by referring to the judicial reform model of the european union. 3.2 constructing multi-level rcep investment dispute resolution mechanism 3.2.1 design of the rcep investment dispute prevention mechanism the construction of an investment dispute settlement mechanism should follow the principle of maximizing common ground (ma & tang, 2023, pp. 54-67). investment dispute prevention measures refer to mechanisms aimed at reducing the actual occurrence of disputes and preventing their escalation (wang, 2018, pp. 13-23), applicable to investor-host country disputes under the rcep framework. unlike traditional investment dispute settlement mechanisms that intervene after disputes arise, this mechanism intervenes before disputes occur, aiming to reduce the likelihood of disputes and prevent their escalation through prevention measures. compared to international investment arbitration, this mechanism is not only efficient, convenient, and low-cost but also crucial for breaking the “regulatory chill” phenomenon and maintaining the regulatory authority of the host country. in the field of international investment, the regulatory authority of the host country refers to its power to safeguard national economic sovereignty and interests. the investment dispute prevention mechanism not only avoids the application of international investment arbitration, protecting the regulatory authority from challenges, but also tests and improves regulatory measures, strengthening the management of investors and their investments, thereby responding to the calvo doctrine (wang, 2020). an effective investment dispute prevention mechanism should include two aspects: “enhancing the host country’s capacity to serve investments to eliminate potential disputes” and “establishing a response mechanism to prevent dispute escalation”. enhancing the host country’s capacity to serve investments requires increasing the transparency and stability of investment policies, promoting the disclosure of relevant government affairs, and appointing officers to notify policy changes. on the one hand, consideration should be given to establishing information sharing and review agencies responsible for building various investment policies and information sharing platforms and reviewing policy applications. these agencies can also create coordination platforms to eliminate differences in policy understanding and promote the healthy development of investment policies. the new generation of investment treaties shows great interest in establishing similar platforms. according to a unctad report, over 30% of the new generation of international investment treaties include commitments from states to engage stakeholders, including the establishment of an investment-related coordination center (investment facilitation in international investment agreements: trends and policy options, n.d.). on the other hand, the exploration of setting up foreign investment facilitation windows is recommended, with various departments responsible for business approvals, investor appeals, and administrative supervision, to protect investor interests and improve administrative efficiency. the investment dispute response mechanism should include an early warning system and an investment www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 113 ombudsman system. there are already practical examples of early warning systems, such as peru’s “coordination and response system for investment disputes” established in 2006. the early warning system should be integrated across all levels of government agencies, responsible for tracking key enterprises and industries, monitoring investment activities, and issuing risk warnings to all parties, including investors, regarding measures that may cause investment disputes. the effective operation of this system relies on the joint efforts of government agencies, coordination departments, and other relevant entities. in international practice, there are many reference examples of the investment ombudsman system, such as the ombudsman offices in the united states and japan, and the foreign investment ombudsman in south korea. consideration should be given to establishing functional departments for information collection, regular meetings, and coordination. the information collection department is mainly responsible for gathering warnings from the early warning system and investors’ appeals. regular meetings handle issues, respond to disputes, and provide solutions to administrative agencies. the coordination department is responsible for collaboration between this institution and other administrative departments. establishing the above institutions and procedures helps achieve comprehensive investment dispute prevention, addressing investor grievances in the “pre-dispute” stage, eliminating potential investment disputes, and attracting more sustainable foreign investments through balanced public-private relationships (bi & zhan, 2023, pp. 64-74). 3.2.2 design of the back-end mechanism for rcep investment disputes given the widespread acceptance of the isds mechanism and its substantial contributions to resolving investment disputes, it is not advisable for latin american countries to completely abandon the isds mechanism; instead, they should proactively reform it to align with the trends in investment development. considering the developmental levels of rcep member countries and their attitudes towards the isds mechanism, a model similar to the isds provisions in the “agreement among china, japan, and korea for the promotion, facilitation and protection of investment” could be adopted. this includes establishing “friendly consultations” as a preliminary step in the isds process and integrating mediation with arbitration to develop a novel isds mechanism. this not only reflects the cultural value of “peace as a priority” in east asian countries but also helps maintain the sovereignty of host countries, addressing the erosion of regulatory rights by traditional isds mechanisms. furthermore, actively promoting the integrated development of arbitration and mediation mechanisms also contributes to meeting the diverse needs of dispute resolution and enhancing efficiency in resolving disputes introducing mediation into arbitration procedures and integrating the development of investment arbitration with mediation can fully leverage the advantages of both approaches, avoiding procedural delays, shortening the duration of disputes, saving costs, and resolving disputes quickly and professionally. addressing the inherent deficiencies of international investment arbitration mechanisms can also be considered from the perspectives of arbitrator appointment and regulatory bodies. on the one hand, the appointment of arbitrators can draw insights from the “code of conduct for arbitrators in international www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 114 investment dispute resolution” issued by the international law commission. this code primarily stipulates provisions on its applicability, arbitrators’ independence and impartiality, and assistant roles. overall, there should be enhanced independence and impartiality among tribunal members, who must operate independently from the parties and arbitration institutions to ensure fairness and transparency in arbitration processes. on the other hand, establishing independent regulatory bodies comprising members from each rcep member state can oversee and assess the operations of arbitration institutions. these bodies can publicly disclose the functioning of arbitration institutions to enhance the contracting parties’ trust in the arbitration mechanism. regulatory mechanisms may include regular evaluations and audits of arbitration institutions, along with procedures for handling complaints. it is noteworthy that in the practice of international investment arbitration, most disputes are related to the interpretation of terms. some scholars argue that the legitimacy crisis in international investment arbitration arises when arbitral tribunals fail to adhere to norms and continuously blur the boundaries between interpretation and legislation during the decision-making process. inappropriate interpretations of relevant terms by investment arbitral tribunals may lead to inconsistent arbitration outcomes (maximilian, 2017). therefore, to address the issue of inconsistent interpretations, it is crucial to regulate the application of interpretation rules by arbitral tribunals. guidance should be provided to strengthen the application of unified interpretation rules for investment arbitration tribunals. tribunals should respect host country sovereignty and adopt restrictive interpretation principles when terms cannot be clearly defined even after exhausting relevant interpretation rules. furthermore, the interpretation of international investment treaty texts should not be solely left to investment arbitral tribunals. member states also need to guide arbitral tribunals in accurately interpreting texts and correcting tribunal errors through appropriate means. specifically, member states should provide guidance for the interpretation of terms, potentially using joint interpretation to clarify the meanings of core provisions in international investment treaties and limit the scope of arbitrary interpretation clauses. 4. conclusion overall, the existing investment dispute settlement mechanism in the rcep cannot effectively balance the interests of investors and host countries. therefore, it is necessary to establish a diversified and unified investment dispute settlement mechanism in the rcep, taking into account the development situation of each party. attempts can be made to combine the dispute prevention mechanism with the back-end mechanism, establish a pre-dispute prevention mechanism for investment disputes including the strengthening of the host country’s investment service capacity and the investment dispute response mechanism, and reform the isds mechanism in accordance with the “agreement among china, japan, and korea for the promotion, facilitation and protection of investment” to establish a new type of isds mechanism combining the development of mediation and arbitration. this will not only help to efficiently resolve investment disputes among rcep parties, but will also enhance the international www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 115 competitiveness of the rcep agreement. references bi, y., & zhan, w. t. (2023). the development of the pre-dispute mechanism and china’s participation under the framework of investment facilitation. international trade, 2023(06), 64-74. investment facilitation in international investment agreements: trends and policy options. (n.d.). retrieved from https://unctad.org/system/files/official-document/diaepcbinf2023d5_en.pdf ma, z. f., & tang, j. l. (2023). theoretical issues of establishing rcep investment dispute settlement mechanism. journal of guangxi university of finance and economics, 36(03), 54-67. maximilian, c. (2017). arbitral awards as investments: treaty interpretation and the dynamics of international investment law (wolters kluwer 2017). qi, t. (2018). on the prevention mechanism of international investment disputes in “belt and road”. law review, 36(03), 79-87. shan, w. h., & wang, p. (2019). analysis of china’s position on balanced liberalism and international investment arbitration reform. journal of xi’an jiaotong university (social science edition), 39(05), 20-28. shiro, a., & luke, n. (2022). mixing methodologies in empirically investigating investor-state arbitration. in b. daniel, k. f. ole, & l. malcolm (eds.), the legitimacy of investment arbitration: empirical perspectives (pp. 315-364). cambridge university press. https://doi.org/10.1017/9781108946636.014 wang, q. (2018). explanation and construction of “belt and road” dispute settlement mechanism. journal of law, 39(08), 13-23. wang, q. w. (2020). experiences and insights of international investment dispute prevention mechanism[c]//shanghai law society. collection of shanghai law studies (2020, vol. 22, total 46)-anthology of shanghai university of international business and economics. wang, y. z. (2022). china-asean investment dispute settlement mechanism in the context of rcep. politics and law series, 2022(06), 86-96. xiao, j. (2021). on the progress of bridging differences in the reform of investor-host country dispute settlement mechanism. journal of international economic law, 2021(02), 84-97. https://doi.org/10.1017/9781108946636.014 microsoft word elp-v2n1-p55 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 1, 2019 www.scholink.org/ojs/index.php/elp 55 original paper inflation thresholds, economic growth and investment planning in uganda rogers matte1* 1 macroeconomic planning department, national planning authority, republic of uganda * rogers matte, macroeconomic planning department, national planning authority, republic of uganda received: october 21, 2018 accepted: november 7, 2018 online published: january 3, 2019 doi:10.22158/elp.v2n1p55 url: http://dx.doi.org/10.22158/elp.v2n1p55 abstract economic planners, monetary policy custodians and civil society in uganda often disagree on the target for inflation when their development objectives are not harmonised. when development economists argue for increased deficit spending in support of infrastructure development and capital accumulation, they are challenged in regards how much pressure the development budget should put on likely macroeconomic stability, particularly where inflation could rise above the inflation target. this paper examined the effect of inflation on economic growth in uganda and evaluates the equilibrium rate of inflation in the country, given the macroeconomic environment. using the threshold model and data for the period 1991-2017 it is established that: a) below 7.3 percent inflation level, the relationship between inflation and economic growth is positive and inflation is not harmful to growth, while at levels above 7.3 percent, inflation was detrimental to economic growth and the relationship become negative; b) at economic growth rates above 7.8 percent, inflation was an incentive for further growth, yet at economic growth rates below 7.8 percent per annum, increases in inflation served as a dis-incentive to economic growth. therefore uganda in the current conditions is better off maintaining inflation below 7.3 percent as long as the anticipated economic growth is 7.8 percent. keywords inflation thresholds, economic growth, investment planning www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 56 published by scholink inc. 1. introduction over the last decade or so uganda government has been seeking to develop a private led economy where private investment and export growth drive economic growth through the national development plans and poverty eradication programmes. attaining a sustained output growth rate capable of delivering the country to middle income status in the medium to long-term was the real sector goal of the country’s national development plans (republic of uganda, 2015). at the same time it has pursued a monetary policy goal of macroeconomic stability with the inflation targeting framework in the recent years. price stability is praised for creating a stable environment for decision making by the economic agents in markets. high inflation erodes the value of money and affects economic welfare of low income earners. at the same time, some moderate inflation is favourable for giving signal to market players on supply and demand situation which may affect decision making at agency level. specific plan scenarios assume stable price levels and this makes the issue of inflation thresholds critical to economic planning, when the structure of the economy is expected to change over time. the debate regarding the management of inflation, its policies and instruments in uganda overtime culminated in setting of a medium to long-term target of 5percent core inflation. the major policy framework for inflation in the country since 2011 is inflation targeting. the monetary policy framework uses interest rate to signal and influence macroeconomic activity: prices, inflation, output, or sometimes designated monetary aggregates. there is no direct control over these and bank of uganda exerts its influence over the macroeconomic magnitudes by setting the short-term interest rate (mugume & namanya, 2014). despite adjustments in the central bank interest rate, there is no mention of growth based tools to address inflation. in view of the role of the east african community integration, the country agreed to the convergence target of 8 perccent headline and 5 percent core inflation by 2021. the efforts to remain around the inflation target in some cases has been criticised for contributing to the high interest rates given a high base set by the policy rate. while the relationship between inflation and growth may been dogenous, it is important to understand the relationship in the medium to long-term to clearly visualise the impacts (vinayagathasan, 2013). 1.1 macroeconomic stability and economic growth the primary objective of monetary policy in uganda over the recent years has been to attain low and stable inflation. close to a decade, the monetary policy stance in uganda has been guided by policy persistence; the neutral nominal rate which takes into account the real interest rate and the expected inflation; inflation gap; and output gap (national planning authority, 2018). monetary policy stance was contractionary in 2011 and 2015 when inflation was on the rise. the rest of the period saw a relaxation in the policy stance so as to increase money growth. when output is at its potential, and inflation and inflation expectations are at objective levels, the monetary conditions are at neutral levels and do not constrain or stimulate aggregate demand and inflation. in this case real interest rate would be at the neutral rate. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 57 published by scholink inc. considering the efforts by the central bank to control inflation using interest rates, the growth effect of inflation on economic growth is more important in the economics of uganda as a developing country. high lending rates inhibit growth in private investment and the process of value addition, yet these are primary growth objectives. this is because the cost and nature of credit has implications on the ability of the country to service the entire value chain of products prioritised in the national development plan for a country like uganda. the national development framework expects that the growth of credit would be sufficient to support production of raw materials, value addition and marketing and logistics management along product value chains. this has however not been realised because the nature of credit available in the ugandan market can to a greater extent serve the interests of the services sector and less the processes of value addition and production of primary inputs, which require lower cost credit because of long gestation periods. the sectors that are served more in current circumstances are more volatile in nature unlike the productive sectors which would provide tangible, stable and sustainable growth (table 1). this process would be more supportive to the transformation process of the economy with greater bias towards industrialisation, in particular agro-processing and mineral beneficiation. in comparison with the countries in the sub-sahara africa over the past decade, and more so in the last four years, it is observed that interest rates have remained higher in uganda compared to kenya, burundi, nigeria, south africa, democratic republic of congo and zambia. compared to these countries, interest rates in uganda have remained around 20 percent since the second half of the 1990s unlike other countries where these rates have been moving in response to their economic policies. all in all, interest rates and bank credit policies remain relatively weak channels of monetary policy in uganda, unlike the exchange rate policies, in stimulating the real sector performance especially the manufacturing sector (nampewo, munyambonera, & mayanja, 2013). generally, ugandan interest rates have remained above the rest of the countries in africa both those with a developed banking sector and those less developed compared to the domestic sectors. the more developed economies in this case include kenya, south africa and nigeria and the less developed ones include burundi and the democratic republic of congo. further observed is that the responsiveness of the lending rates in uganda to changes in the policy interest rates of the central bank, shows greater stickiness on the side of lending rates coming down, yet a rise attracts immediate response. this supports the view that commercial banks in uganda are more responsive to profit motives than growing the business size, yet they respond positively to policy in a direction that is anti-private investment. in view of the above observations, the causes of high interest rates in uganda may be characterised as on the basis of internal characteristics of the banks, and the economy wide macroeconomic environment. while the lending rates are driven by funding costs, operational costs, capital reserve costs, risk cost and bank profits (bryony, 2012), the macroeconomic environment also presents factors that may affect lending rates. the funding cost takes care of the cost faced by banks to raise the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 58 published by scholink inc. necessary capital in order to lend; the operational cost presents the fixed costs faced by banks in terms of the overhead running costs; the capital reserve cost is the cost faced by banks in holding the minimum capital reserves as required by regulation; the risk cost captures the loss banks suffer from default. macroeconomic determinants of high lending rates include: high and variable inflation, growth of output, high money market real interest rates, interest rate uncertainty (inter-bank interest rate volatility), exchange rate volatility (nampewo, 2013), the share of commercial bank public sector loans, share of development (long-term) to commercial (short-term) assets, and public sector domestic borrowing, among others. table 1. ten year share of total private sector credit in uganda by sector sector 2006/ 07 2007/ 08 2008/ 09 2009/ 10 2010/ 11 2011/ 12 2012/ 13 2013/ 14 2014/ 15 2015/ 16 2016/ 17 agriculture 6.7 6.0 4.5 6.4 6.7 6.5 7.8 9.6 9.8 10.3 11.5 o/w production 2.6 2.3 1.4 3.5 3.6 3.4 3.5 3.8 4.4 4.4 4.5 o/w processing & marketing 4.0 3.7 3.1 2.9 3.1 3.1 4.3 5.8 5.3 5.9 7.0 mining and quarrying 2.4 0.4 0.3 0.8 0.3 0.4 0.3 0.2 0.5 0.6 0.6 crude petroleum & natural gas 0.0 0.0 0.0 0.0 0.0 0.1 0.1 0.1 0.2 0.4 0.3 other mining & quarrying 0.0 0.0 0.0 0.8 0.3 0.3 0.2 0.1 0.2 0.2 0.4 manufacturi ng 14.1 12.4 15.2 13.2 13.7 13.4 14.0 13.2 15.4 14.0 12.8 trade 15.6 12.2 20.6 20.4 22.5 22.6 21.1 21.6 20.4 19.0 20.1 transport and communica tion 6.1 6.9 5.8 7.7 7.7 6.5 5.8 5.4 5.2 7.0 6.7 electricity 0.4 0.9 0.6 1.1 0.9 1.0 1.4 1.2 1.7 2.0 1.9 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 59 published by scholink inc. and water building, mortgage, constructio n and real estate 11.2 15.1 16.4 18.2 20.1 22.8 22.6 22.7 22.6 22.8 20.6 business services 0.0 0.0 0.0 3.3 4.3 3.6 5.2 4.4 4.7 3.8 4.1 o/w working capital 0.0 0.0 0.0 1.0 1.4 1.7 2.2 1.9 2.3 2.3 2.3 o/w other 0.0 0.0 0.0 2.3 2.9 1.9 2.9 2.5 2.4 1.5 1.8 community , social & other services 0.0 0.0 0.0 2.9 3.3 3.5 3.1 3.3 3.3 3.4 3.3 personal loans and household loans 17.9 15.4 21.9 21.1 15.8 15.3 13.6 17.2 15.1 15.8 17.7 other services 25.7 30.8 14.6 4.9 4.7 4.3 5.1 1.4 1.4 1.4 0.7 total 100 100 100 100 100 100 100 100 100 100 100 source: bank of uganda. 1.2 trends and policy frameworks for inflation since 1994, inflation in uganda was highest in 2011 (quarter 4) at 23.6 percent when the cbr was increased to 22 percent. through this policy there has been a drastic reduction of long term inflation to the long term target although there are episodes of high and low inflation in the short run, which are a result of shocks whose impact is largely dependent on the structure of the economy. the objective of monetary policy in uganda has over the last decade been that of maintaining macroeconomic stability without compromising economic growth. the policy framework in place has since 2011 fostered a movement of the interbank money market interest rates in tandem with the central bank rate which in turn were expected to influence other retail interest rates in the economy, both in the short and the long-term. the target for inflation over the medium to long-term has been 5 percent per annum, and the central bank rate has been adjusted accordingly to influence demand for credit and influence the level of economic activity by managing the demand side of the economy. over the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 60 published by scholink inc. medium term, inflation oscillated around the target of 5.0 percent pursued by the central bank, especially after the adoption of the inflation targeting framework. when a longer projection is made over a period of about twenty years backwards, the expected inflation raises higher taking into account the levels attained. it is accordingly noted that the country’s long run optimal level of inflation lies between 5 and 8 percent. a target of 6.5 percent has also been estimated from threshold models taking into account economic growth in the past and potential output going forward. 1.3 sources and effects of inflation in uganda performance of the global and regional economy affects inflation. uganda has a trade deficit and heavily imports manufactured commodities from both regional and global markets. crises in other countries are translated into import prices for the domestic economy. international oil price fluctuations have had a key role in influencing domestic prices. volatility in the foreign exchange market is another source, especially depreciation fuels inflation. uganda currency has depreciated significantly in the recent past leading to secondary effects on the domestically produced commodities given a large component of imported raw materials. large budget deficits induce increases in interest rates and high cost of private capital, with effects on inflation. there has been an increase in the domestically financed borrowing which leads to the rise in the cost of credit in the banking system, impacting on the cost of access to capital and of production. delays in execution of public projects for which resources have been borrowed domestically exacerbate this issue and may have led to sub-optimal decisions. uganda has underdeveloped commodity value chains and markets which provide an incentive for supply rigidities. the dependence of the food sector on natural factors and the lack of linkages with industry and under developed market institutions affect the variability in food prices in periods of boom and shortage. further the under developed utilities sector affects production to capacity for some industries therefore affecting the cost of production. food and non-alcoholic beverages; housing, water, electricity, gas and other fuels; transport and education were the major sources of inflation in the country from 2011 to 2017, contributing over 63percent of the price changes. the prices for food and non-alcoholic beverages are associated with the structural nature of agriculture production in the country, with a large percentage resulting from the shortages in supply. addressing the key real sector factors inhibiting stable supply of food, constraints in the supply of fuel products in the transport sector and educational supplies could potentially reduce inflation from these sources. the description of inflation dynamics in uganda during the period 2000-2012 indicated that in the long-run money supply, exchange rate, foreign inflation, terms of trade and real output, foreign prices, exchange rate, growth of domestic credit, rainfall deviation from the long-run mean, the trade and current account balances, fiscal balance, trade openness, and the international interest rate differential determine inflation in uganda (opolot & kyeyune, 2012; janine, muellbauer, & sebudde, 2015). in the short run, inflation is driven by changes in real output, monetary aggregates, the exchange rate, and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 61 published by scholink inc. foreign prices. the central bank of uganda indicates that core inflation is affected by: international factors (interest rates, inflation, oil prices); exchange rates; output gap and capacity utilization; domestic demand; money supply and credit extension and expectations (bank of uganda, 2011). the disequilibria in the money and traded goods markets are significant but the adjustment process is slow. in spite of the fact that inflation has exogenous determinants, such as foreign inflation, there is scope for the central bank to limit the impact of such shocks on inflation by pursuing a tight monetary policy stance. the significance of the interest rate differential in the money-demand equation implies some degree of effectiveness of the monetary policy. 1.4 effects and the threshold of inflation albeit many arguments regarding inflation, there is a view that inflation is useful to economic growth if below some threshold level, and is detrimental when above that threshold level. in particular, inflation influences growth by decreasing productivity growth and investment. uganda’s implied inflation threshold is 5 percent as set in the targeting framework by the central bank—bank of uganda, which is the point of variance. this threshold is unique for each economy, as indicated by the variations seen in cross-country studies, between 2 percent and 12 percent in a number of countries, and generally, developed countries have lower thresholds while those for developing countries are higher. a recent study estimated 8.5 percent as the threshold for uganda based on data for the period 1970-2013 (yabu & kessy, 2015), yet the inflation target by bou is 5 percent. what is not clear is whether this threshold is dynamic. the eac countries under the programming for the anticipated monetary union target to have headline inflation at 8 percent. whether this target would be changed and how often is not clear either. in view of the above, development planners and monetary policy custodians disagree on the target for inflation when their development objectives are not harmonised. whereas development economists may argue for increased deficit spending in support of capital accumulation, they face a challenge in regards how much pressure the development budget should put on likely macroeconomic stability especially where inflation would rise above the inflation target. 1.5 theoretical review a number of theories explain the link between inflation and economic growth. there is confluence among them that in the short run, inflation induces growth, to the extent that it is positively correlated with growth but in the long run its persistence is detrimental to growth. table 2 reviews some of the theoretical impacts of inflation. table 2. theoretical economic growth impacts of inflation theory nature inflation and growth criticism emphasis classical supply side based a rise in inflation leads to a fall in the rate of return on high inflation inhibits financial provide incentives for www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 62 published by scholink inc. theory nature inflation and growth criticism emphasis individual’s real money balances reducing wealth. people will then save more by switching to financial assets in order to accumulate the desired wealth. higher demand for assets increases their prices, resulting in a decline in the real interest rate. increased savings result in greater capital accumulation and hence faster output growth development by making financial intermediation more costly, hits the poor disproportionately because they do not hold financial assets that provide a hedge against it. this hinders long-term economic growth increased savings and investment so that the economy grows keynesian ad-as  “ “  inflation can redistribute profits from workers with low savings propensities to entrepreneurs with high propensities to save and invest, and increases the nominal rates of return relative to the cost; hence increasing growth  during inflationary periods, money is redistributed from holders of money balances to governments (through monetary authorities – inflation tax) to expand public investment programmes, thus increasing growth high inflation rates raise the cost and risk of productive capital and may lead to misallocation of funds to less productive investments that act as a hedge against inflation … neoclassical and endogenous growth inflation affects capital accumulation and investment; “ “ high inflation leads to speculative trade and capital … www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 63 published by scholink inc. theory nature inflation and growth criticism emphasis outflows affecting growth monetarist the role played by monetary growth in determining inflation – from the quantity theory of money there is neutrality of money, with inflation rate having no effect on the growth rate as well as the level of output. in the long run, the growth rate in money mainly affects prices. this is because individuals will anticipate the rate of future inflation and incorporate its effects into their behaviour. employment and output are not affected provide dis-incentive for monetary growth to contain inflation. when profits decline and labour productivity remain unchanged, the prices tend to increase in view of the above theoretical frameworks, a number of models have been used to analyse the links between inflation and economic growth. these include the philips curve, the mark-up approach, the quantity theory of money, and the dynamic panel. these are briefly reviewed below. phillips curve: if demand increases and the output gap becomes larger, business costs will increase, wages will increase. companies pass on the higher costs to their customers, thus increasing prices. on the other hand, if demand falls and the output gap becomes smaller, business costs will decline thus wages will be lower. companies then pass on the lower costs to their customers by reducing prices, hence less inflation. the philips curve therefore underscores the link between the output gap and the inflation rate, with current inflation explained by current inflation expectations and the output gap. 1 1 e t t t t t t dp dp ep p p           (1) in the equation above, the lhs is the inflation rate ( 1 t t dp p ), the current expectation of the future inflation is the second term on the rhs ( 1 e t t dp p ), while the output gap is the third term ( tep ). the signs of the coefficients are all positive in the equation above. the mark-up approach: considering unit labour cost (ulc), price of imported goods (pm), then enterprises will set domestic prices by adding a gross mark-up () to the cost per unit of output. here www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 64 published by scholink inc. the cpi combines the price of domestic and imported goods. log(pt+1)=+*log(c*u*mt+1)+*log(pmt+1)+t+1 (2) the quantity theory of money: considering money supplies (m), velocity of money (v), real gdp (y), then money growth is a key determinant of inflation. by assuming that money demand remains stable, then we estimate current prices as: 1 1 1 1 (1 ) * (1 ) 1 (1 ) (1 ) t t t t t t tt t dmd dv dp md v dyp y             (3) the threshold model: in this model, the growth rate of real gdp is dependent on inflation, the inflation threshold variable that is exogenous and a time variant, and other explanatory factors. these explanatory factors include the past values of gdp, investment, population growth, openness, terms of trade, and the standard deviations of openness and terms of trade. the model is divided into two using a dummy variable for values of inflation below and above the threshold. this is a form of nonlinear regression presenting piecewise linear specifications and regime switching that occurs when an observed variable crosses unknown thresholds (ihs global inc, 2016). in this model, there are t observations and m potential thresholds (j=1, 2, … m), implying there are (m+1) regimes. for all observations in the regimes, there are two sets of regressors: those that vary (x) and those that do not vary (z) with the regime. for the threshold variable (qt) threshold values (m) exist, such that we can identify them across the arrange j<=q<j+1, and (1<2 < …. <m). for a single threshol and two regimes, we have yt=xt’+zt’1+et,if–<qt<1; and yt=xt’+zt’2+et,if–1<=qt<. for multiple regime specifications, a single equation can be used to combine them. for 1(.) an indictor function for which the expression is true and 1 ( , )j qt  carries the value 1 and zero otherwise. 0 1 ( , ) * ' m t j t j t j yt x qt z        ; (4) this is a nonlinear least squares estimation approach, in which there is need to find the coefficients  and ; the threshold values ; and identify the threshold variable qt using model selection. the objective threshold function, s(,,), is then minimized with respect to the parameters. 2 1 0 ( , , ) 1 ( , ) * 't t m t j t j t j s y x qt z                  (5) eviews provides a userfriendly interface for threshold modelling taking into account the above framework (ihs global inc, 2016). this apprach is used in comparison with the specification of the function in a loglinear form for the threshold ariables and manually estimating the threshold by solving the derivative of the function with respect to the threshold variable. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 65 published by scholink inc. 1.6 major cross country and historical experience the study by adegoke (2012) highlights the key studies that have been conducted on this subject, in which for instance the existence of threshold effects in the inflation-growth relationship of nigeria, from 1970 to 2003 was established at the level of six per cent. it is albeit noted that the threshold changed as the structure of the economy evolved to eight percent (adegoke, 2012). table 3 reviews some of the causes of inflation in selected case studies. table 3. selected determinants of inflation cross countries research country causes of inflation dominant factor atta et al. (1999) botswana nominal money supply, nominal interest rate, nominal exchange rate, nominal wages and south african consumer price index, us exchange rate pass-through monetary variables (money supply and interest rates) dlamini et al. (2001), akinboade et al (2004) swaziland and south africa real sector effects (gdp) ocran et al (2005) ghana inflation persistence khan et al. (2007), leheyda (2005) pakistan and ukraine money supply, wages and exchange rates, fiscal policy price inertia source: haile (n.d.). in the 1960s there was a view that inflation was positively correlated with economic growth in the short run, and to some degree, in the long run. consensus in the 1970s and 1980s was that of a positive short run relationship between growth and inflation, such that while stabilisation of hyperinflation had little output costs, sterilisation of mere high inflation was on the otherhand costly. most recent research since the 1990’s was concerned with the longrun relationship and advanced an inverse relationship between inflation and growth. while investigating the existence of a threshold level for inflation and how any such level affected the growth, a dynamic panel threshold growth regression was used for 32 asian countries over the period 1980-2009, a threshold of approximately 5.4 percent was estimated. while inflation was found to hurt growth when it exceeded 5.4 percent it had no effect below this level (vinayagathasan, 2013). 1.7 investment planning, fiscal deficits and inflation from uganda’s experience, during planning processes planners are concerned about the role of fiscal deficits and external borrowing and the effect of foreign exchange inflows on inflation. the value of invesments needs to keep in tandem with the levels of inflation. in the ndpii planning process, it was argued that addressing the effects of inflationary expenditure, given high deficit financing would have a slowdown effect on private sector credit when interest rates are raised. as a consequence, this would www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 66 published by scholink inc. slow down economic growth below desided levels (national planning authority, 2015). further, the planners argued that allowing inflation to increase would have an effect on the depreciation of the shilling, yet the central bank has a limit on issuing liquidity to address the effects of public administration expenditures. 1.8 research questions the main research question that this paper seeks to answer is: what is the optimal level of inflation for uganda above which the development budget may not result into lower economic growth. secondly, with the current structure of the economy, what is the appropriate level of growth resulting from increased investment that may not lead to higher inflation? 1.9 research objectives this paper therefore examines the effect (positive or negative) of inflation on economic growth in uganda; and evaluates the equilibrium rate of inflation in the country, given the macroeconomic environment. 2. method this paper adopts the threshold model as illustrated by yubu and kessyto estimate the threshold for eac (yabu & kessy, 2015) in a quadratic specification and compares the results with those generated by the threshold regression model as specified in ihs global inc (2016). unlike the method used by adegoke (2012), the threshold model is more elaborate and does not involve arbitrary selection of the threshold levels. however, we differ from yubu and kessy by estimating the adl rather than the use of error correction and cointegration. 2.1 model specification in this model, the threshold level of inflation is obtained is obtained in a combination of linear and squared term for inflation such that the impact of inflation on economic growth with positive effects of inflation switching to negative when inflation exceeds some threshold level. at the threshold level of inflation, the function is at maximum after which the marginal effect of inflation becomes negative. dlog(rgdp)*=1*inf_rate+2*inf_rate(-1)+3*(inf_rate)2+4*dlog(poptot)+ 5*dlog(poptot(-1))+6*dlog(poptot(-3))+7*psc_gr+8*psc_gr(-1)+ 9*dlog(invtit)+10*dlog(invt(-1))+11*dlog(ger)+12*rer_gr(-1)+ 13*dlog(tot_2005)+14*dummy1+mu (6) where dlog(rgdp)* is growth rate of real gdp, inf_rate is growth rate of cpi and dlog (poptot) is population growth rate, psc_gr is private sector credit growth, dlog (invt) is investment growth, dlog (ger) is growth in gross external reserves, dlog (tot_2005) is percentage change in terms of trade at 2005 prices for openness, and dum is a dummy variable, which takes zero during inflation targeting and one elsewhere; and mu is the error term. the peak of the function identifies the critical point of inflation above which the marginal impact of inflation on growth is negative and is calculated as the inflation threshold level. this is established by finding the partial www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 67 published by scholink inc. derivative of the function of growth with respect to inflation and setting it to zero. as observed in the table 5 some of the variables are excluded from the ols method to estimate manually equation 9, while others are introduced in the threshold method. dlog(rgdp)/dlog(inf_rate)=1+23*inf_rate=0 (7) this implies that the critical level of inflation is the ratio: -1/23. 2.2 data the time series data used for this analysis is for the period 1990 to 2017, and the variable definitions and their data sources are described in the table 4. table 4. description of data and its sources variable data collected sector and source growth rate of real gdp real gross domestic product (gdp) national accounts data, uganda bureau of statistics (ubos) population growth rate population size population statistics, ubos investment gross fixed capital formation national accounts data, ubos terms of trade (tot) terms of trade national accounts data, ubos growth rate of cpi consumer price index (cpi) real sector statistics, bank of uganda (bou) credit to gdp ratio credit to the private sector monetary and financial sector statistics, bank of uganda, bou gross external reserves gross external reserves external sector statistics, balance of payments according to 6th edition of the manual, bou real exchange rates real exchange rate index external sector statistics, balance of payments according to 6th edition of the manual, bou 2.3 model and data diagnostics using eviews in built tests for normality, serial correlation, and heteroskedasticity undertaken. in particular, we estimate the jarque-bera and probability values for normality; the breusch-godfrey statistics for serial correlation, and the breusch-pegan-godfrey statistics for heteroskedasticity. the procedure in eviews jarque-bera and probability values is that after estimating the equation, we view/seek residual tests, and then select white heteroskedasticity. obtained are the test statistic and the probability so that the statistic exceeds (in absolute value) the observed value under the null hypothesis. we reject the null hypothesis that the residuals are normally distributed if the value of the probability is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 68 published by scholink inc. small, otherwise accept. the heteroskedasticity demonstrates that the there is no auto regressive conditional heteroskedasticity in the residuals. the procedure finds out whether the series are not related to the recent residuals, to safeguard the efficiency of the model. the hypothesis that there is no autoregressive conditional heteroskedasticity in the residuals is tested, and the test statistic is estimated from the regression of the squared residuals on a constant and squares of its lagged values up to an appropriate order. 3. results this section presents results of the inflation—growth trade-offs and its implications for investment planning. the threshold levels of inflation have been obtained in a linearized function and the impact of inflation on economic growth established to show positive effects of inflation switching to negative when inflation exceeds the observed threshold level. table 5 presents the results of the regression, and the models fulfil the conditions for normality, serial correlation, and heteroskedasticity test. the behaviour of changing marginal effect of inflation is observed and becomes negative after the threshold. model 1 used the least squares estimation, equation 5 is estimated from equation 4 to generate data for the threshold. the threshold variable in the ols method was the rate of inflation (inf_rate) while in the threshold method, both inflation rate and the percentage economic growth rate (dlog (rgdp)*100) were used. both methods present the plausible assigns and statistical significance of the coefficients as indicated in table 5. while in the ols method the estimation of the threshold variable is straight forward, in the threshold regression a choice is made based on the significance of the model coefficients. in the threshold model, the choice of threshold variable was the economic growth rate, and the value used was 7.9 percent. in the ols method, the value estimates using equation 5 is 7.3 percent. the results from the ols method imply that, below 7.3 percent inflation level, the relationship between inflation and economic growth is positive and inflation is not harmful to growth. at levels above 7.3 percent, inflation is detrimental to economic growth and the relationship becomes negative. on the other hand, the threshold method identified two regimes, one in which the economic growth rate is above 7.85 percent, and another where economic growth rate is equal to or less than 7.85 percent. table 5. results of the inflation, growth thresholds variable coefficients least squares method threshold regression method threshold choice inf_rate=-7.3=0.005384/(2*-0.00 0367) dlog(rgdp)*100< 7.853817 (17 obs) 7.853817 <=dlog(rgdp)*100(8 obs) inf_rate 0.005384**[0.002037](2.643113) -0.165432***[0.033270] 0.380128***[0.059707](6.3 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 69 published by scholink inc. (-4.972368) 66513) inf_rate(-1) 0.000359[0.000582](0.617014) inf_rate^2 -0.000367***[0.000106](-3.45947 9) dlog(poptot) 8.530238***[2.314828](3.685041) -193.8198[148.2772] (-1.307145) dlog(poptot(-1)) 349.1653*[150.1007] (2.326207) dlog(poptot(-3)) -8.012950***[2.322137] (-3.450679) psc_gr 0.000438*[0.000236] (1.858553) psc_gr(-1) 0.048367***[0.007903] (6.120030) dlog(invt) 0.234771***[0.050379](4.660058) 17.76013***[3.974106](4.468962) dlog(invt(-1)) -9.018084**[3.162211](-2.851828) dlog(ger) -0.051089*[0.024192](-2.111787) -1.059403*[0.601698](-1.760688) rer_gr(-1) -0.059789*[0.034311](-1.742554) dlog(tot_2005) -1.625303[1.588881](-1.022922) dummy1 0.025210**[0.008824](2.857144) 0.419792[0.454022](0.924608) r2 0.82 0.95 adj r2 0.72 0.92 d-w stat 2.55 2.34 other notes threshold variable considered (manual): inf_rate; sample (adjusted): 1995 2017; included observations: 23 after adjustments; white heteroskedasticity-consistent standard errors & covariance sample (adjusted): 1993 2017; threshold type: bai-perron tests of l+1 vs. l sequentially determinedthresholds; threshold variables considered: inf_rate, log(rgdp)*100; threshold variable chosen: dlog(rgdp)*100; threshold selection: trimming 0.15, max. thresholds 5, sig. level 0.05; threshold value used: 7.853817; white heteroskedasticity-consistent standard errors &covariances model diagnostics normality jarqueber a 1.7034 14 prob 0.426686 jarquebera 1.013846 prob: 0.6023 breusch-godfrey serial correlation lm test f-stat 1.344 756 prob. f(9,13) 0.2972 f-statistic 0.352411 prob. f(2,12) 0.7100 obs*r2 4.211 084 prob. �2(2) 0.1218 obs* r2 1.386919 prob. �2(2) 0.4998 breusch-pagan-godfrey f-stat 0.760 prob. 0.6533 f-statistic prob. f(11,13) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 70 published by scholink inc. note. se [ ]; t-statistic ( ); level of significance: “*”=10 percent; “**”=5 percent; “***”=1 percent. 4. discussion at very high economic growth rates above 7.8 percent, inflation is an incentive for further growth. however, when growth is below 7.8 percent per annum, increases in inflation serves as a dis-incentive to economic growth. therefore uganda in the current conditions is better off maintaining inflation below 7.3 percent as long as the anticipated economic growth is at least 7.8 percent. in comparison with the existing research, this is consistent with the eac macroeconomic convergence criterion which recommends inflation below 8 percent. as observed earlier in the literature, the study on the founding members of the eac estimated a threshold of 8.4 percent but was silent on the economic growth threshold in this relationship (yabu & kessy, 2015). further, these findings are consistent with other research conclusion that the threshold at which inflation reduces growth is in the single-digits (heintz & ndikumana, 2010; ghosh & phillips, 1998; burdekin, denzau, kei, sitthiyot, & willett, 2004). in this framework, the non-threshold factors that significantly affect the threshold relationship include: population growth rate, the total investment, and the accumulation of gross external reserves from the external sector. a dummy variable introduced to identify two economic regimes of inflation targeting and that before inflation targeting is significant in the ols model unlike the threshold method. in the ols it signifies the change in policy on inflation management. it would be important to assess the significance for rebasing regime for the economy after 2009. population growth while having significant effect on economic growth rate, its marginal impact has mixed results. population growth in itself may not be important unless it contributes the needed quality labour force that participates effectively in the value chains of economic products. growing purchasing power per capita coupled with human development is important for sustained economic growth. lagged population growth could signify the accumulation of human capital in the growth—inflation trade-off as a result of innovations. private sector credit induced economic growth in both methodologies. monetary policy has used changes in credit to influence inflation and create stability in the growth inducing environment. growth in total current investment is primarily a critical factor for economic growth due to its contribution to capital stock. the accumulation of gross external reserves though significant was a dis-incentive to economic growth, though openness was positive but highly significant. similarly, current changes in terms of trade were a dis-incentive to economic growth though not significant. in conclusion, this study has considered the inflation-development nexus in uganda using data for the period 1991 to 2017. the study methods used estimate threshold variable in a threshold regression. using the threshold variables of the rates of inflation and economic growth it is found that, below 7.3 heteroskedasticity test 613 f(9,13) 1.411915 0.2740 obs*r2 7.933 624 prob. �2(9) 0.5408 obs*r2 13.60891 prob. �2(11) 0.2554 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 71 published by scholink inc. percent inflation level, the relationship between inflation and economic growth is positive and inflation is not harmful to growth. above 7.3 percent, inflation is detrimental to economic growth and the relationship becomes negative. on the other hand, at very high economic growth rates above 7.8 percent, inflation is an incentive for further growth, but at economic growth rates below 7.8 percent per annum, increases in inflation serve as a dis-incentive to economic growth. therefore uganda in the current conditions is better off maintaining inflation below 7.3 percent as long as the anticipated economic growth remains below 7.8 percent. the population growth rate, the total investment, the accumulation of gross external reserves and the economic policy regimes are important for uganda’s growth—inflation nexus. supply side factors are important in this framework. therefore, anti-inflationary strategies in the country should take into account the elimination of supply constraints, increasing competition, and increasing capacity and efficiency of investment outputs. references bryony, w. (2012). a decomposition of ugandan lending rates. bank of uganda working paper series no. wp/bou/2012/07. burdekin, r. c., denzau, a. t., kei, m. w., sitthiyot, t., & willett, t. d. (2004). when does inflation hurt economic growth? different nonlinearities for different economies. journal of macroeconomics, 3, 519-532. https://doi.org/10.1016/j.jmacro.2003.03.005 ghosh, a., & phillips, s. (1998). warning: inflation may be harmful to your growth. international monetary fund staff papers, 4, 672-686. https://doi.org/10.2307/3867589 haile, k. (n.d.). the determinants of inflation in botswana and bank of botswana’s medium-term objective range. botswana journal of economics, 67-74. heintz, j., & ndikumana, l. (2010). is there a case for formal inflation targeting in sub-saharan africa? in african development bank working paper series, working paper no. 108 (pp. 1-45). ihs global inc. (2016). eviews 9 user’s guide ii. irvine ca: ihs global inc. janine, a., muellbauer, j., & sebudde, r. (2015). inflation forecasting models for uganda: is mobile money relevant? csae working paper wps/2015-17, 1-66. mugume, a., & namanya, c. r. (2014). the augmented taylor rule and setting of monetary policy rates in a developing and small open economies: bank of uganda’s experience. in bank of uganda working paper series, working paper no. 08/2014 (pp. 1-37). nampewo, d. (2013). what drives interest rate spreads in uganda’s banking sector? international journal of economics and finance, 5(1), 76-85. nampewo, d., munyambonera, e., & mayanja, l. (2013). sectoral effects of monetary policy in uganda. journal of statistical and econometric methods, 2(4), 17-40. national planning authority. (2015). report on the tripatite discussions on the scenarios of the macroeconomic frmework for ndpii, 12-19 january 2014. kampala: national planning www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 72 published by scholink inc. authority. national planning authority. (2018). 10 year perspective macroeconomic situation analysis (draft report). kampala: npa. opolot, j., & kyeyune, a. m. (2012). infllation dynamics in uganda: the role of disequilibria in the money and traded goods markets. bank of uganda working paper no. 02/2012. republic of uganda. (2015). the second national development plan 2015/16-2019/20. kampala: national planning authority. vinayagathasan, t. (2013). inflation and economic growth: a dynamic panel threshold analysis for asian economies. tokyo: national graduate institute for policy studies. yabu, n., & kessy, n. j. (2015). appropriate threshold level of inflation for economic growth: evidence from the three founding eac countries. applied economics and finance, 127-144. https://doi.org/10.11114/aef.v2i3.966 bank of uganda. (2011, july 25). understanding the inflation targeting—lite policy framework. bank of uganda. retrieved october 20, 2018, from https://www.bou.or.ug adegoke, i. a. (2012, june). inflation and economic growth: an estimate of the threshold level of inflation in nigeria. ajep, 19(1), 81-106. microsoft word elp-v2n2-p205 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 2, 2019 www.scholink.org/ojs/index.php/elp 205 original paper public transport effectiveness in brazzaville moyo nzololo1* 1 faculty of economic science, marien ngouabi university & esgae, congo brazzaville * moyo nzololo, faculty of economic science, marien ngouabi university & esgae, congo brazzaville received: july 24, 2019 accepted: august 5, 2019 online published: august 30, 2019 doi:10.22158/elp.v2n2p205 url: http://dx.doi.org/10.22158/elp.v2n2p205 abstract this research paper has to be set in the framework of an important urban growth. such urbanization goes along with urban spreading that generates an increase in both urban mobility needs and the use of public transport. the paper focuses on public transport effectiveness in brazzaville, from the analysis of determinants linked to public transport’s generalized cost on the one hand, and to the nuisance effects of such public transport on another hand. keywords effectiveness, public transport, urban growth, urban spreading, moving, urban mobility, congestio 1. introduction the world population is getting more and more urban, in line with the evolution of urbanization rate (proportion in percentage of people living in urban zone) between 1950 and 2050. table 1. evolution of urbanization rate in % the world africa asia europe latin america northern america oceania 1950 30 14 18 52 41 64 62 2015 54 40 48 74 80 82 71 2050 66 56 64 82 86 87 74 source: damon, 2016. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 206 published by scholink inc. when observing urbanization in africa, three major persistent trends are noticeable: a lower but increasing urbanization rate, in relation to the rest of the world, a faster increase in urban population, and a very heavy concentration of the population in big cities (damon, 2016). if the urbanization rate in africa will reach 56% in 2050, urban population in sub-saharan africa will experience the world’s strongest increase, given that 80% of such population will be urban in the aforementioned year; and big cities have the tendency to grow faster, along with an increase in both their urban transport needs and mobility (infhotep cabinet, 2016). indicators reflecting living standards-health, education and hygiene—are higher in cities than in the countryside (bloom & khanna, 2008). congo b., a country in sub saharan africa, can be said to be a “macrocephalic” country, on the ground that there is a big city which dominates more (gubry, 1991). brazzaville is that city, with 1, 733, 272 inhabitants, and which represents 60% of the whole number of inhabitants in the country’s six major towns (ins, 2015). brazzaville is a «macrocephaly» as it holds in it the whole lot of urban transport system of the country. we can then talk about an urban spreading of brazzaville with, on the one hand, the increase in the population that moved from 1,373,382 inhabitants in 2007 (according to the 2007 general population and habitat census), to 1,733,272 inhabitants in 2015 and, on the other hand, the creation of two new districts—the 8th and the ninth ones—in 2011, respectively madibou (southern brazzaville) and djiri (northern brazzaville). such a creation of new districts results in considerable increase in the daily moving of people in brazzaville. madibou has an area of 80.04 square kilometers, while djiri has 83.46 square kilometers. together, these two districts represent 50.1% of the area of the city of brazzaville (ins, 2016). such an urban spreading made it possible for private-owned vehicles to play a key role, as many people have recourse to them for their daily moving, notably from home to office and vice versa. it is rather a constraining usage of the car. when leaving or entering the aforementioned districts, people are confronted to the serious problem of traffic jams, notably at rush hours. life in the city of brazzaville is closely linked to public transport; which is often noticeable whenever there are sociopolitical events within the city. when public transport is operational, this surely means that life in the city goes on (moyo nzololo, 2008). public transport is made of private-owned means of transport, notably taxis, collective taxis (commonly called “cent cent”-so called because of the silver franc cfa 100 coin-currency used in central african states-charged for minimum fare), minibuses and buses on the one hand, and state-owned means of transport made of buses of the urban public transport authority (stpu) on the other hand. in addition to motorized conveyance, there is the moving on foot. godard (2009) states that in sub saharan africa, “the other face of mobility is then the importance given to walking, which is almost the exclusive means of conveyance for an important part of the urban population. it represents an average rating from 50 to 80% of mobility mode in the majority of towns”. brazzaville citizens are often found walking on relatively long distance, within the nine districts of the city. there are exclusive www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 207 published by scholink inc. pedestrians—those who have no private vehicle or no money to catch a bus-and occasional ones that is, those who may own a private vehicle but cannot use it because of fuel shortage in the city. for most of the population, the day-to-day moving within brazzaville is made by public transport. urban trips in collective taxis, minibuses and buses remain the places where the “living together as one” motto is experienced. regardless of age and social status, passengers keep close to one another in conviviality and crowded conditions. journeys are made either with anecdotes, jokes, stories told by passengers, or by listening to exclusively african music. the collective taxi always uses the same route in a given district, with the possibility of doing short-distance fares. the minibus has a direct line route, but it does not always abide by such a direct line: it can change its route if the number of passengers taking this line is not important; and it also does short-distance fares. as for the bus, it abides by its route which is generally a closed-circuit one. it does not practice short-distance fares. the reasons to move from one place to another are various; they can be related to school, studies, professional activity, social-driven activities (accompanying someone, visiting parents, relatives, friends, neighbors, attending a wedding ceremony, a baptism, a mourning ceremony, an association meeting, etc.), leisure, shopping. the first three movements clothe the “compulsory” mention, while the last three movements are “not compulsory”. private-owned means of conveyance are getting more and more numerous in brazzaville, as shown on table 2 hereto, for at least three core reasons: the first reason is that it is a business activity done by various types of owners: civil servants, businessmen, police or armed force agents, political authorities, wage earners of the private sector, unemployed people, retired people; the second reason is that it is an activity that makes it possible for the vehicle owners to get daily incomings, notably for owners who exercise their social influence in order not to pay for taxes related to this business activity. for vehicle owners, expected daily returns are: between 8,000 and 10,000 cfa francs for a collective taxi, between 12,000 and 15,000 cfa francs for a taxi, between 25,000 and 30,000 cfa francs for a minibus, between 80,000 and 100,000 cfa francs for a bus-noteworthy is the fact that 1 euro=657 fca francs; the third reason is that those vehicles are second-hand vehicles, with a percentage that amounts 79% for this type of vehicles in brazzaville. the acquisition of such vehicles is quite easy in informal markets—located both in brazzaville and pointe-noire. of course, information on these markets is asymmetric, as indicated by the akerlof model (1970) which pinpoints the advantages to have an item that seems to be good, rather than actually being good: this is deceptive counterfeiting, according to which poor-quality cars chase off genuine or good ones (moyo nzololo, 2016a). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 208 published by scholink inc. table 2. private-owned means of transport in brazzaville, from 2007 to 2016 means of transport 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 taxi 2115 3120 4700 5406 6104 8824 10824 12000 12307 12356 collective taxi 65 75 108 132 220 389 489 590 678 689 minibus 900 975 1215 1350 1802 2509 3209 4008 4207 4218 bus 143 160 183 196 220 221 228 232 256 269 total tc 3223 4330 6206 7084 8346 11943 14750 16830 17448 17532 source: srtu/brazzaville. it is in such a highly competitive—but also very profitable—environment that an urban public transport authority (stpu) has been created in 2015, with 150 new ashok leyland-branded buses, manufactured in india, each bus having a capacity of 80 passengers and a diesel-fueled engine. the buses are apportioned in the two major cities of the country: 82 in brazzaville and 68 in pointe-noire. stpu is a public limited company, with a capital shared as follows: 60% for the government (ministry of finance, budget and public portfolio), 20% for the brazzaville town hall 20% for the pointe-noire town hall. the bus abides by its scheduled route, and it is not engaged in the short-distance fare practice. brazzaville is therefore experiencing a context of increase in the use of public transport. in this research paper, the core question to be answered is the following: is there any public transport effectiveness in brazzaville? in the literature dealing with public transport effectiveness, several authors addressed the issue in several approaches. public transport effectiveness is associated with the density of either populations or activities: “where such public transport shows weaknesses, it cannot play an important role, given that the present trends in favor of both residential habitat and urban spreading do not favor such public transport” (de palma, pahaut, & quinet, 2006). on the contrary, where urban density is high, the latter increases mobility needs and favors distance reduction in terms of the moving of people (pouyanne, 2004; audard et al., 2012). public transport effectiveness is linked to an important offer of road infrastructures because the road has a dual objective, that is, an internal objectiveor that of circulation—which is to meet the need for traffic between two points, and an external objectiveor that of development—which is to meet the objectives of city planning and development (kyriacos, 1984; mvuezolo & bazonzi, 2005). it goes without saying, however, that the issue of maintenance of such road infrastructures ought to be carefully dealt with (crozet, 2006; devarajan & fengler, 2014). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 209 published by scholink inc. public transport effectiveness is worthy if it contributes to the promotion and establishment of sustainable cities, notably by making it possible for the latter to enjoy environmental benefits; that is: reducing local pollution in urban areas; decreasing the amount of greenhouse gas emissions that unfortunately contribute to global warming; diminishing fuel consumption and diversifying alternative energy supplies; mitigating noise pollution or emissions (kaufmann, 2003; prud’homme, & bocarejo, 2006; bonnaure & lamblin, 2006; grame, 2011). public transport effectiveness is related to the specificity of each city in socioeconomic, institutional, cultural and geographical terms: it is not possible to reproduce a common model applicable to all types of urban public transport; which is corroborated by massot et al. (2004): “the effectiveness of public transport systems is closed linked to the characteristics of terrain served by such systems”. public transport effectiveness is linked to its multiple impact on urban planning, that is to say, its successful integration into urban planning and development, given that public transport contributes: to maximize the returns of public and private investments in each sector; to have a positive impact on land value; to revamp sociocultural drive, equity and social inclusion (cuta actu, 2009). public transport effectiveness not only favors the mobility of active workers towards their workplace, but also extends their reach while job hunting. symmetrically, companies in search of manpower, benefit from the public transport effects, which enables those companies to access or reach new opportunities of potential workforce. public transport therefore matches job offer with labor demand. by shortening time for transport, the room for possible matching widens, the job market is therefore more efficient, thus making employment easier (costes, kopp, & prud’homme, 2009). public transport effectiveness is associated with the preservation of the lives of people who, on a daily basis, use these vehicles for various points of destination; hence the importance of highway safety in order not only to prevent, but also to reduce road accidents (fleury, 2004). public transport effectiveness is linked to the increase in the usage cost of a private or individual car. mcfadden (1974) pinpoints a price effect on the mobility demand. “in the case of a private or individual car, the mobility demand increases when the car usage cost is lessened or reduced. such a demand also increases when the income, the cost and time devoted to wait for public transport increase. likewise, the mobility demand through the use of public transport increases when the car usage cost increases, and decreases when the cost and time devoted to wait for public transport increase” (souche, 2009). based upon the input of the literature review, we have considered a theoretical model of public transport effectiveness (eftc) associated both with the generalized cost of public transport and nuisance effects of public transport. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 210 published by scholink inc. 2. theoretical framework in line with the theoretical model, the eftc issue leads us to the very eftc issue in relation to the generalized cost of public transport on the one hand, and nuisance effects of public transport, on the other hand. this double questioning leads us to formulate two hypotheses: the first hypothesis stipulates that eftc is associated with the decrease in transport’s generalized cost. the generalized cost for transport (or the total cost for a journey, or the overall cost for moving from one place to another) is defined as the aggregate of two sides (kilani, 2015): generalized cost (cfa)=monetarycost (fcfa)+duration of the journey (hour) x time value (xfa/hour)  the first part is a direct monetary cost in cfa: it tallies the price for the ticket, or fare for the journey, or the cost of fuel used;  the second part is non-monetary cost in xfa: it tallies the time spent in the vehicle (what is at stake here is opportunity cost). it is indirect cost associated with time valorization. as prud’homme and bocajero (2006) state it, choosing time value is always a delicate task as such. conveyance for professional purposes has a higher time value; for bus and minibus users, time value is of lesser importance in general and in least developed cities or countries in particular. in london, the time value used by transport for london is 15.6 euros per hour. which obviously tallies with the british culture or motto of “time is money”. in the parisian agglomeration, time value is 13.7 euros per hour. in africa, there is always plenty of time, so much time that it is no harm to postpone for tomorrow what can be done today: and this explains why time value is lesser (godard, 1985). the second hypothesis considers that eftc is associated with a decrease in the nuisance effects of public transport. economists consider that slow moving traffic on a highway network generates negative external consequences which, on their turn, produce the deterioration of collective welfare, and thus justify corrective arrangements from the government (de palma, pahaut, & quinet, 2006). the nuisance effects that we will consider as negative external consequences that ought to be reduced are: pollution, energy consumption, road accidents, the space used. this theoretical approach that we summarize through figure 1 below is inspired by that of the victoria transport policy institute, statedby litman (2017). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 211 published by scholink inc. figure 1. synthesis of the theoretical framework source: ourselves, inspired from litman (2017). the objective of this paper is not only to show the importance of public transport in urban mobility in brazzaville, but also to appreciate public transport effectiveness in brazzaville in relation to two components, viz, the generalized cost of public transport, and public transport nuisance effects. the first component pinpoints the importance of the zahavi paradigm (1973) known as the “law of budgets-time constancy in transport”. this law means that everyone aims at maximizing distance covered all along the day, under the budget-time constraint, that is, not to go beyond the expected time for transport in the one hand, and not to spend or devote much more money than planned or expected, on the other hand (halleux, 2001). the second component recalls the responsibility of vehicles not only for global warming or climate change, but also for urban pollution (bonnaure, lamblin, 2006). that is the reason why environmental standards are being stressed with the years; and one the most emblematical standards adopted at the paris conference-cop 21-is the +2°c limit about the average increase in the world temperature that should not be exceeded (mathieu, 2015). when observing figure 1, we notice that it shows six determinants associated with public transport effectiveness: the fare for the trip, trip duration, pollution, energy consumption, accidents and space used. the methodology used in this paper is determinants analysis. in fact, each determinant is reviewed, prior to analyzing the gap between expected result and observed one. the analysis from determinants is relevant, given that it is associated with collective costs related to public transport (mirabel & reymond, 2013). such an analysis is completed by the elaboration of an explanatory model for public transport in brazzaville, with the aim of identifying the most significant means of conveyance. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 212 published by scholink inc. 3. analysis of determinants 3.1 journey fare the fare for a trip or journey has been set since 1992 by the brazzaville town hall: taxi: 700 cfa francs; collective taxi: 150 cfa francs; minibus, bus: 150 cfa francs. the price for a taxi ride varies between xaf 1,000 and 5,000 cfa francs on the ground that drivers of those vehicles pretend either the existence of traffic jams in certain zones or certain city districts, or the long distance to be covered. at nights, the price for a taxi ride may turn to be double or thrice. when there is fuel shortage, the price for the ride is beyond 1,000 cfa francs. the driver thus goes as far as to take two or three passengers going in the same direction, but each of the passengers has to pay for his ride. as far as collective taxis are concerned, travelling conditions are poor. according to the vehicle model, the number of passengers to be on board varies from 6 to 8. passengers are enclosed. those collective taxis are on the traffic thanks to the complaisance of both the brazzaville town hall and policemen assigned to regulate the traffic. most of the drivers of this type of vehicles have no insurance, no car inspection certificate, and no driving license; which is a serious concern in terms of highway safety. as a matter of fact, those collective taxis are dangerous, and they ought to be banned from road traffic on the ground that they are “moving coffins”. minibuses and buses have respectively a capacity of 15 and 40 seats. the routes of minibuses and buses are defined through forty-five intra urban lines and eight suburban lines. the routes or itineraries must be displayed on the windshield of vehicles. however, drivers and money collectors of minibuses have instituted a disguised increase in fares with the practice of short-distance rides. this practice consists in splitting a line into several rides, thus making the traveler pay 150 cfa francs for every ride. furthermore, once the minibus drivers have agreed on such a short-distance practice, it is impossible for vehicle users to engage in any protest. the town hall vainly tried to combat this treacherous practice with the help of the police, but the latter couldn’t certainly be travelling in such vehicles all the day long and for several days running. in addition to these, certain dishonest and easily corrupted policemen also contribute to encourage this fraudulent practice of short-distance rides. with taxis, collective taxis and minibuses, it stands out that there is no decrease in the fare because of their practice of short-distance ride. on the other hand, stpu buses serve long and remote lines that converge for downtown for a fare of 150 cfa francs. they do not practice short-distance rides. badly needed by brazzaville citizens, stpu buses significantly reduce the unit price of the ride for their users. one then can talk about a decrease in the ride cost. victims of their fame, there are more passengers standing (about 50) than seated (30 passengers) in those buses that are consequently called “mal-à-l’aise” (a french expression which means “not feeling physically comfortable” or “not making you feel comfortable” when travelling). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 213 published by scholink inc. the perspective of increasing their number will certainly improve the quality of service delivery for passengers. thus, one can discuss about relative decrease in the ride cost with buses in general and stpu buses in particular. 3.2 duration of the ride here, the ride duration refers to the time spent on board a vehicle. congestion is time loss in relation to traffic jams. congestion infers behavior change: delays, absenteeism, leaving the workplace early. it also reduces manpower mobility. we recall that collective taxis, minibuses and buses have recourse to the illegal practice of short distance rides, particularly during the rainy season; which extends or lengthens the duration of the ride. the factors that increase ride duration in brazzaville are known: traffic jams because of road narrowness, bottlenecks, lack of road treads, lack of parking lots, or unexpected emergency situations (road works, accidents, unauthorized parking, etc.); insufficiency of secondary roads that are either tarred or paved; potholes on main roads; authorized circulation—at daytime-of 18-21m heavy trucks loaded with containers, stopping wherever they want, breaking down anywhere, and which are often the causes of very serious road accidents; passengers waiting for so long in the minibuses and buses at bus stops until the seats in the bus are full, prior to leaving the bus stop (at the departure point of a given line); poor condition of certain roads-because of poor maintenance—during the rainy season (notably the «union africaine» avenue, in northern brazzaville); insufficiency of interchanges to insure circulation fluidity; recurrent breakdowns or lack of traffic lights; which lead to approximate regulation of the circulation by policemen who are sometimes the cause of road accidents; vehicles that are broken down in the midst of the main road, at a roundabout, at a turning point; and such vehicles may remain right on the spot for hours and even days. sometimes, the broken vehicle is repaired on the road; lack of roads or lanes designed for minibuses and buses. as far as new roads construction is concerned, one should not overestimate positive impact of road investments because the improvement of the highway network will, on its turn, increment the growing number of users; which means that such investments are not always a profitable solution to congestion-related problems (de palma, pahaut, & quinet, 2006). in fact, according to the downs-thompson paradox, the construction of new roads automatically involves an increase in road traffic, until a new saturation point is reached, even if there is no demographic growth noticed. there is a great number of brazzaville citizens that are compelled to walk for rather long distance to reach one’s destination. unfortunately, road adjustment or arrangement designed for pedestrians is either mediocre or non-existent. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 214 published by scholink inc. in their attempt of catching up lost time owing to congestion, the drivers of vehicles got into the bad habit of creating double or triple driving line, or driving along sidewalks, jeopardizing pedestrians’ security. catching a taxi, with the aim of catching up time, turns to be betting at lottery, given that there are taxis that have no proper documentation for the vehicle; and in case of any unexpected police check, the driver will either try to flee or drive away by taking another direction, or if the driver fails to drive away because of the traffic jam, the police will charge him: in both cases the taxi driver and the policeman will make you waste time. however, we can conclude that only the taxi can make it possible to reduce the duration of the ride, but with a relatively higher cost for the ride, given the low purchasing power of congolese people in general. 3.3 pollution nowadays, automobile traffic is the main source of gas emission in urban areas, and day-to-day mobility is the cause of diversified atmospheric pollution (glandus & beltrando, 2013; kengne ouabo & laponche, 2014). even though the issue is not included among the main concerns of the brazzaville town hall, pollution is associated, among others, with the very large fleet of second-hand vehicles, weaknesses or lax attitude noticed at the level of vehicle technical control service, the possibility given to vehicles to circulate with polluting exhaust pipes. given that transport is essentially fuel-dependent (gasoline, diesel oil), its combustion involves not only high grade co2 emissions, but also greenhouse effect gas (ges). furthermore, traffic jams increase both emissions per kilometer covered and local pollution. formerly called “green brazzaville”, the city has lost many trees downtown and in living districts because of the construction of edifices and buildings, public works along main roads (canalization, electrification, paving); those trees could have played their photosynthesis role). air pollution increases the quantity of greenhouse gas (tubiana & kieken, 2007). as the market of counterfeit spare parts is very prosperous in congo and notably in brazzaville, it makes it possible for the ageing public transport automobile fleet-most of the second hand vehicles having the japanese brand name of toyota-to operate. we can therefore conclude that public transport does not contribute to reduce pollution. 3.4 energy consumption to consider or address the issue of the decrease in energy consumption, there are three challenges to face: removing from circulation all the polluting, fuel-consuming and noisy vehicles; using “clean” fuel that has a controlled amount of sulphur particles, bio-fuel or gas, under the form of liquefied petrol gas (gpl); encouraging the circulation of “clean” vehicles, notably for public transport. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 215 published by scholink inc. a very small scale experience has been conducted in brazzaville since 2016, with about forty taxis and buses owned by the bolloré company, known as bluecongo. it is about electric vehicles (ve). inserted in the today’s traffic, they found their way without slacking such a traffic. if this experience is conclusive, the installation of charging points in brazzaville and free share cars could be considered. car rental companies would then order electric cars (ve) from bolloré bluecar. major car manufacturers (bougnoux, 2011; bonnaure, 2012) have started producing both electric vehicles (ve) and hybrid vehicles (vh), with the aim of reducing energy consumption, co2 and greenhouse gas (ges) emissions, which makes it possible to fight global warming. hybrid vehicles (vh) have a thermal engine. at the purchase, vh is more expensive than ve (bonnaure, 2012). the thing is that ves are more adapted in towns and likely to impose themselves in the automobile market, especially with the advent of hydrogen-fueled battery instead of the electrical battery. “but the electric vehicle is still facing handicaps and uncertainties that hinder it from massively substituting thermal vehicles before 2030, given that the renewal of an automobile fleet takes time anyway, on the ground that the today’s cars have a lifetime of 10 up to 15 years” (pélata et al., 2010). the decrease in energy consumption is a real challenge to be met, for “most of the experts, among which pricewaterhouse coopers, consider that classical gasoline and diesel fueled engines will keep on dominating the market in the coming decades” (jaumin, 2018). we can therefore conclude that public transport does not contribute to decrease energy consumption so far. 3.5 road accidents there is lack of dynamism in the road accident prevention policy, in light of numerous dark points identified in brazzaville, but which are not dealt with hitherto. many accidents regularly occur in such dark places: the «patte-d’oie» roundabout, the small “blanche gomes” roundabout, the “loutassi-boulevard alfred raoul” crossroad, the “koulounda” roundabout, the “ebina” roundabout, the “bouetambongo-avenue des trois martyrs” crossroad, the “ministère de la defense” roundabout, the “la coupole” roundabout, the “avenue maya-maya—mbochi” intersection, the intersection between “avenue maya-maya” and “avenue des trois martyrs”, the “bifouiti” roundabout, etc. other recurrent factors that generate accidents are: fake driving license, bad traffic regulation by the police, vehicle poor maintenance, lack of both pedestrian walking areas and pedestrian crossings, repetitive breakdowns of traffic light, serious road decay, poor street and road lighting, very few road signs and poor maintenance of road marking. taxi drivers are involved in several accidents; very often, those accidents between themselves occur owing to refusal of priority, disregard of security distance between two vehicles, dangerous overrun and riding another vehicle’s tail. but several accidents in which taxis are involved are caused by the “clandestine relief driver” phenomenon, organized by the main driver. the latter recruits another driver called “releveur”-a substitute driver that replaces the main driver in order to do his duty, without the knowledge of the owner’s car. the substitute driver works either by day, or by nightif the vehicle is said to be parked at the main driver’s—when the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 216 published by scholink inc. vehicle is supposed to be parked for the night. generally, such a substitute driver has an on-the-job training. among the causes of road accidents—rated in terms of seriousness or importance—we can list the following: refusal to priority, 40.94%; excess speed, 18.57%; non-observance of stop signs, 8.74%; dangerous overrun, 7.08%; engine default or breakdown, 6.79% and incapacity to master the steering wheel, 4.70% (dgtt, 2010). the leading cause of accidents in brazzaville is refusal to respect priority, widely known in lingala language (one of two national languages spoken in the country) as “tiamutuba kata”—which means “though driver xhas priority, he must let driver y enter between the waiting line of other vehicles on the main road”. this expression symbolizes, or implies driving in an impulsive, arrogant and reckless way, with noticeable difficulties to master the steering wheel. minibuses are sometimes involved in road accidents because of excess speed. their strategy lies on how fast this or that driver can reach the next bus stop before the competitors, aiming at taking on board his vehicle the maximum of passengers waiting. in so doing, the drivers incur serious risks such as: inobservance of traffic light, stop signs and security distance. indeed, drivers bear responsibility as far as highway safety is concerned. yet, it is also a matter of concern for the decision makers in charge of road and street management, given that it is also possible to act on infrastructures—by intervening on road and highway works and its environment—so as to reduce the injury or death toll. it is therefore a systemic vision on road accidents around the triple approach of man-vehicle-infrastructure which needs to be addressed accordingly (reigner, 2004; fleury, 2004). table 3. evolution of road accidents in brazzaville from 2007 to 2016 year number of d’accidents acc deathtoll number of people injured 2007 1754 118 260 2008 1416 107 1339 2009 1573 121 973 2010 1512 82 635 2011 2003 90 1109 2012 1760 83 655 2013 2120 88 880 2014 2231 94 897 2015 1925 336 767 2016 2028 81 776 source: bca-brazzaville, 2016. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 217 published by scholink inc. the previous table shows that between 2007 and 2016, the number of accidents has increased up to 15.62%. statistics from the office for accident control (bca, 2016) reveals that out of five road accidents in brazzaville, public transport is involved in three, notably with taxis. furthermore, on the average 67% of accidents occur during the rainy season. this is explained by the serious degradation of certain roads during that season, the absence of policemen at dark points and traffic light breakdown. buses are relatively safer as their speed is lesser than that of the other competitors, and their routes are fixed. we can then conclude that public transport partially contributes to the decrease in road accidents. 3.6 spaceused unfortunately, public transport in brazzaville does not converge with the decumulation of space used. one could have thought, for example, that non-users of public transport people-those driving their personal vehicle—would take advantage of more space on roads. which is not the case because they are also subject to traffic jams. not only there is less free space, but there are fewer areas to park one’s car downtown, around major city markets, along trading avenues (“avenue de la paix”, “avenue de l’oua”, “avenue matsoua”, “avenue des trois martyrs”, “avenue de france”). so many sidewalks have been turned either into juke points—bars and restaurants—or second-hand clothes shops, making it perilous to park vehicles. the lack of parking lots in brazzaville remains a deep concern. in the world’s big cities, the number of taxis is set by the authorities; and such a number varies according to countries: one taxi for 200 inhabitants in new-york, one taxi for 350 inhabitants in the great london, one taxi for 650 inhabitants in ile-de-france, one taxi for 1200 inhabitants in brussels (science & décision, 2006). in brazzaville, every citizen can own as many taxis as he wishes: there is one taxi for 140 inhabitants. what is really striking in brazzaville is the impressive number of taxis in circulation. when there is fuel shortage, those taxis invade gas stations with long waiting lines. actually, at such a period of fuel shortage, there is no traffic jam and circulation is both ventilated and enjoyable, for there is space liberated. we can therefore conclude that public transport does not contribute to the decumulation of the space used. 3.7 public transport explanatory model as variable to be explained in table 2, we consider variable total of public transport modes noted tc, and taxi, minibus and bus as explanatory variables, along with the variable relating to the number of accidents in table iii noted acc. the review of correlations matrix from the table below shows that tc strongly correlates with at least three variables taxi, minib and bus. the moderately high correlation of tc with acc variable shows that public transport is nevertheless involved in road accidents. in addition, variable acc has a relatively high correlation with taxi and minib, while such a correlation is lesser with bus; which tallies with our analysis on the road accidents determinant. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 218 published by scholink inc. table 4. correlationmatrix variables taxi minib bus acc tc taxi 1,000 0.984 0.942 0.765 0.999 minib 0.984 1,000 0.914 0.782 0.992 bus 0.942 0.914 1,000 0.690 0.938 acc 0.765 0.782 0.690 1,000 0.771 tc 0.999 0.992 0.938 0.771 1,000 source: xlstat-linear regression. the variance analysis table below shows that the calculated fisher model f=122377.763 is higher than the fisher read f (4. 5)=5.1922 at the threshold of 5%. table 5. variance analysis source ddl sum of squares average of squares f pr > f model 4 282980637.158 70745159.290 122377.763 < 0.0001 error 5 2890.442 578.088 total corrected 9 282983527.600 source: xlstat-linear regression calculated against model y=average (y). in the table below, model coefficients are all significant with a reliance of 95%, given that each of them belongs to a reliance interval. therefore, the model is globally acceptable (tomassone et al., 1992). the most significant variables in the model equation are taxi and minib, for they have the highest values of test t, respectively 72. 172 and 34. 956. in other words, the most explanatory variables of public transport in brazzaville are taxis and minibuses. table 6. model parameters source value standard deviation t pr > |t| lower landmark(95%) higher landmark(95%) constant -106.476 113.143 -0.941 0.390 -397.345 184.392 taxi 0.996 0.014 72.172 < 0.0001 0.961 1.032 minib 1.191 0.034 34.956 < 0.0001 1.103 1.278 bus 1.393 0.607 2.294 0.070 -0.168 2.954 acc -0.037 0.047 -0.785 0.468 -0.159 0.085 source: xlstat-linear regression. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 219 published by scholink inc. the model equation is therefore: tc=-106,476+0,996*taxi+1,191*minib+1,393*bus-0,037*acc this model can be helpful in the prevision of public transport in brazzaville, according to a level determined a priori for each of the four explanatory variables. the constant term -106.476, that is, -106, can be interpreted as minimum need for taxis; in other words, it is the number of taxis for one inhabitant in brazzaville. 4. conclusion in this article, a special focus was laid on the effectiveness of public transport in brazzaville, in the context of the increase in public transport utilization in that city. for that matter, a theoretical approach was adopted; which made it possible to analyze eftc in brazzaville, based upon six determinants. after an in-depth analysis, the following lessons have been learnt: the decrease in the trip fare is a reality for the users of stpu buses: lines are longer, and these buses are not engaged in the short-distance practice; the decrease in ride duration concerns the moving with the help of a taxi: the price for the ride is nevertheless high, in relation to the purchase power of an urban family. in terms of advantages, however, the assets of a taxi are speed and flexibility; with public transport, there is no decrease in pollution: the automobile fleet is essentially made of second hand vehicles using gasoline and diesel oil. co2 and greenhouse gas emissions worsen pollution, especially during traffic jams; with public transport, there is no decrease in energy consumption, on the ground that the vehicles used are not “clean” ones: their engines are essentially fueled with gasoline and diesel oil. moreover, amounts of thin sulphurp articles in both types of fuel-that should be low—are not subject to stricter control; there are fewer road accidents involving public transport, except taxis. in the systemic vision of road accidents implicating the man-vehicle-road approach, it would be better to remove from circulation all those dangerous vehicles that pullulate on brazzaville roads, while engaging in regular maintenance of roads on which there are big potholes that not only slack the circulation, but also cause accidents. several roads have coatings that are badly or poorly done, and deteriorate very quickly as soon as it starts raining. and the narrowness of those roads are also the cause of many accidents; there is no decumulation of space used by public transport, for there is a lack of carpark or parking lots. in fact, one is far from being in a situation where those who transfer themselves towards public transport “liberate” space for circulation and parking; a space that could then be used by others. defective taxis, minibuses and buses have to be removed from circulation. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 220 published by scholink inc. the following perspectives have been considered: as far as stpu buses are concerned, they are acquired new and they arouse so much hope for the population of brazzaville. that is the reason why the customers service has to be improved, so as the nickname of “mal-à-l’aise”—implying “discomfort”—given to that public transport authority disappears. however, stpu should also care more about its clients by implanting bus shelters, as the latter will contribute to improve comfort while waiting for the bus, in a city where it is often hot and it rains abundantly. in all the big cities of the developed or industrialized world, buses are widely subsidized (prud’homme & bocarejo, 2006). given that the fare for stpu ride is attractive enough to increase its share of urban moving in public transport, there is inevitably a loss of profit that must be compensated by regular state subsidies. construction and maintenance of highway infrastructures are a necessity for urban transport development and traffic jams reduction (kumar & barrett, 2008). in brazzaville, the hierarchical organization of the highway network is not clear; and this lessens public transport effectiveness. avenues are often streets, and sometimes narrow streets, which is the case for “itoumbi”, “lénine”, “loutassi”, “maya-maya”, “opangault” and “des chars” avenues. constraints relating to both environment and built areas make it difficult to engage in the construction of road infrastructures in the center of brazzaville and in some districts. however, secondary and collector roads are numerous; they are worth being tarred or paved in order to free or clear main roads. the experience of “clean” bluecongo electrical vehicles is worth being encouraged and extended to the entire public transport system, given that they contribute to the reduction of greenhouse gas emissions, pollutants and noise pollution. emissions reduction by particular or private cars is notably linked to the improvement of engine’s technical performance that makes it possible to slightly reduce the unit consumption of vehicles, while the automobile fleet is getting larger and larger. but this has little impact, on the ground that in brazzaville, the majority of the fleet is made of second-hand vehicles. limiting the age of second-hand vehicles in circulation would certainly have to be considered. as for official statistics on public transport, they are incomplete. database is devoid of relevance, coherence, and are largely insufficient in terms of international comparison. such statistics are therefore worth being elaborated with stringency, and updated in the framework of mobility household-survey (sitrass, 2001) involving town halls and communes on the one hand, and the office of road transport and national statistics institute on the other hand. at the end of this article, one can conclude that public means of conveyance in brazzaville is but partially effective, for the two hypotheses have been but partly verified. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 221 published by scholink inc. rererences akerlof, g. a. 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(1973). the tt-relationship: a unified approach to transportation planning. traffic enginnering and control, 205-212. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 102 original paper study on loss of necessary benefit in administrative compensation yu tian 1* & feihan sun 1 1 dalian ocean university, dalian, liaoning, china received: june 30, 2025 accepted: july 9, 2025 online published: july 10, 2025 doi:10.22158/elp.v8n2p102 url: http://dx.doi.org/10.22158/elp.v8n2p102 abstract on march 21, 2022, the supreme people’s court issued the judicial interpretation on administrative compensation, expanding the scope of direct losses under the state compensation law. this landmark development extends the definition of actual losses in administrative compensation litigation from direct damages to include lost expected benefits—a milestone in china’s administrative legal reform. for decades, theoretical and practical circles have debated the concept of “expected benefits” in administrative compensation. through this judicial interpretation, we examine the current challenges in determining actual losses within china’s compensation framework, including inconsistent standards, diverse calculation methods, and complex procedures. by integrating the state compensation law with administrative regulations and judicial interpretations, this study clarifies the theoretical foundations and practical criteria for assessing actual losses, delineates the boundaries between direct and indirect losses, and incorporates property depreciation and lost expected benefits resulting from administrative actions into the compensation scope. keywords administrative compensation, direct loss, indirect losses, loss of necessary benefits 1. introduction 1.1 research background china’s national china’s national compensation law, enacted in the 1990s and revised twice in 2010 and 2012, has been continuously updated to address evolving societal needs. however, article 36 (8) of the law—which mandates compensation for property losses based on direct damage—has remained unchanged since its initial enactment and continues to spark controversy. the current compensation standards therefore fall far short of victims’ expectations to fully restore their rights to pre-infringement conditions through state compensation mechanisms. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 103 published by scholink inc. article 29, paragraph 4 of the judicial interpretation on administrative compensation defines actual losses as comprising both vested interest losses and necessary interest losses. the latter refers to benefits that market entities would have obtained without administrative intervention. throughout its evolution, the administrative compensation system has been shaped by significant legal developments and landmark cases. its progress manifests not only in refined legal frameworks but also through enhanced compensation standards and streamlined procedures. with socioeconomic development and heightened public awareness of rights protection, compensation thresholds have progressively increased while administrative processes have become more simplified. 1.2 research meaning from a practical standpoint, administrative compensation serves as a vital mechanism for safeguarding the legitimate rights of citizens, legal entities, and organizations. however, in practice, the complexity of compensation standards and procedures often results in significant discrepancies between compensation amounts and actual losses. therefore, studying the actual losses in administrative compensation helps refine the compensation system, enhance its fairness and reasonableness, and better protect the legitimate rights of affected parties. secondly, from a theoretical perspective, research on actual administrative compensation losses contributes to enriching and developing the theoretical frameworks of administrative law, compensation law, and related disciplines. through in-depth analysis of actual losses, this study can reveal existing issues and shortcomings in compensation systems, providing theoretical support for their improvement. simultaneously, such research offers valuable references for compensation mechanisms across other fields, driving comprehensive progress in the compensation system as a whole. furthermore, research on actual losses in administrative compensation holds significant social value. with rapid societal development and the deepening of legal system reforms, citizens, legal entities, and organizations have increasingly heightened their legal awareness, demanding greater fairness and rationality in compensation mechanisms. therefore, studying actual losses in administrative compensation not only helps meet public expectations for compensation systems but also enhances government credibility and image, ultimately contributing to social harmony and stability. 2. research status 2.1 status quo of domestic research in the current research landscape of administrative compensation systems both domestically and internationally, it is evident that with the continuous advancement of legal system development, this field has become a focal point in legal academia. in china’s domestic academic circles, numerous scholars have conducted in-depth studies on the theoretical foundations, practical applications, and challenges within administrative compensation mechanisms, proposing innovative and actionable recommendations. for instance, recent years have seen chinese researchers thoroughly examine the scope, standards, and procedural requirements of administrative compensation, developing forward-looking solutions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 104 published by scholink inc. meanwhile, the practical implementation of china’s administrative compensation system continues to progress, with landmark case judgments providing crucial guidance for refining the framework. 2.2 current situation of overseas research at the international level, administrative compensation systems have garnered significant attention. these systems exhibit distinct characteristics across different countries and regions, with their development trajectories and current practices demonstrating varied features. for instance, developed nations have established comprehensive legal frameworks and practical experience in administrative compensation mechanisms. their systems demonstrate high scientific rigor and fairness in defining scope, establishing standards, and implementing procedures. these well-developed systems provide valuable references for other countries and regions seeking to improve their administrative compensation mechanisms. 3. basic theory of necessary benefit loss in administrative compensation 3.1 theoretical scope of citizen property protection in the constitution the constitution establishes clear protections for both public and private property. public property, which refers to state and collective assets, is safeguarded by the state with legal obligations, prohibiting any organization or individual from appropriating or destroying it through any means. regarding private property—particularly citizens “lawful private property—the constitution explicitly guarantees its inviolability and mandates that the state legally protects citizens” private property rights and inheritance rights. while affirming equal protection for both public and private property, the constitution further delineates their boundaries. private property encompasses, but is not limited to, citizens’ lawful income, savings, housing, livestock, and legally permitted production materials. these provisions ensure that all types of property accumulated by citizens in daily life are protected under the law. in safeguarding citizens’ property rights, the constitution enshrines several fundamental principles. the principle of “right as entitlement” establishes that personal property rights must be protected through legal frameworks, meaning such rights are only protected when acquired and exercised in accordance with the law. the principle of “separability” ensures that property rights remain inseparable from personal identity, guaranteeing their independence and stability. finally, the principle of “fairness and reasonableness” mandates that property rights protection should follow equitable and reasonable standards, ensuring appropriate measures are applied to different individuals and circumstances. while safeguarding citizens “property rights, the constitution also takes into account the needs of public interest. under specific circumstances, such as when public interests are satisfied, the state has the authority to legally expropriate or requisition citizens” private property. however, this action must be based on fairness and reasonableness—meaning the state must provide appropriate and reasonable compensation to affected citizens to ensure their rights are fully protected and respected. this provision demonstrates that while protecting citizens’ property rights, we must also respect and consider the needs of social public interest. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 105 published by scholink inc. in general, the theory of the scope of citizen property protection in the constitution aims to ensure that citizens’ legal property is effectively protected, and balance the relationship between individual interests and public interests, so as to maintain social harmony and stability. 3.2 the theory of the scope of protection of the legitimate rights and interests of the plaintiff in administrative litigation first of all, the legitimate rights and interests of the plaintiff in administrative litigation include the right to file a lawsuit, the right to produce evidence, the right to debate, the right to apply for withdrawal, the right to apply for preservation of evidence, the right to appeal and other litigation rights. these rights are the basic guarantee for the plaintiff to carry out litigation activities normally and safeguard their legitimate rights and interests in administrative litigation. secondly, the protection of plaintiffs “legitimate rights and interests encompasses multiple dimensions. on the one hand, courts must legally accept lawsuits to safeguard their right to file claims. on the other hand, during litigation proceedings, courts should fully protect plaintiffs” procedural rights including evidence presentation and debate opportunities, ensuring they can adequately express their demands and arguments. furthermore, courts should conduct substantive reviews of plaintiffs’ legal rights and conduct legality assessments of administrative actions by government agencies to uphold these rights. furthermore, the protection of plaintiffs’ legitimate rights and interests in administrative litigation also encompasses remedial measures. when such rights are violated, courts shall provide relief through revocation, amendment, or confirmation of the illegality of administrative actions. additionally, based on case specifics, courts may order administrative agencies to assume corresponding compensation liabilities to compensate plaintiffs for losses incurred due to such actions. in the theoretical framework for protecting plaintiffs “legitimate rights and interests in administrative litigation, several critical aspects require attention: first, it is essential to accurately define the scope of cases accepted by administrative litigation, ensuring that plaintiffs” lawful rights are fully encompassed within its remedial scope. second, enhanced procedural safeguards must be implemented to protect plaintiffs “procedural rights, guaranteeing their full exercise of litigation rights throughout the proceedings. third, substantive protections should be strengthened to ensure effective safeguarding of plaintiffs” legitimate rights. in summary, the theory of protecting plaintiffs “lawful rights and interests constitutes a vital component of the administrative litigation system. its primary purpose is to ensure that plaintiffs” rights are fully respected and protected during administrative litigation, thereby achieving justice, fairness, and effectiveness in judicial processes. 3.3 the scope of the loss of necessary benefits in administrative compensation 1) the connotation of the loss of necessary benefit in administrative compensation generally speaking, direct loss refers to the reduction or loss of existing property. however, analyzing the scope of direct losses outlined in the judicial interpretation on administrative compensation reveals that examining the causal relationship between tortious acts and damages better aligns with legislative intent. indirect loss pertains to the loss of potential benefits, which includes both probable and certain www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 106 published by scholink inc. benefits. among these, certain benefits should fall under direct loss. for probable benefits lacking causal necessity, even without tortious acts, such gains might not materialize, thus this portion of losses should be excluded from compensation. however, certain certain benefits—like operational losses during vehicle downtime specified in article 29 of the judicial interpretation—are guaranteed to occur regardless of tortious acts. similarly, rental losses from business suspensions under article 28 also constitute certain benefits, both falling under direct losses with guaranteed benefits. for instance, while rental income is generally considered indirect loss and excluded from compensation, in the administrative compensation case liu v. xincai county government, where liu rented out part of his property and provided evidence, the supreme people’s court ruled that administrative compensation primarily covers direct losses rather than indirect ones. therefore, liu’s retrial application was dismissed. however, the loss of rent belongs to the loss of inevitable and obtainable benefits. the forced demolition will inevitably block the collection of rent, and there is an inevitable causal relationship with the loss of rent, so it is a direct loss and should be compensated (lu, z. f., & wu, j. h., 2022, pp. 115-119). 2) the significance of administrative compensation covering loss of vested interests according to the timing of damage occurrence, damages can be categorized into direct and indirect losses. indirect loss refers to future property reduction, specifically diminished potential benefits (zhang, x. b., 2005, pp. 56-57). potential benefits refer to the interests that victims would have obtained or were highly likely to obtain had the infringement not occurred. these losses are characterized by two key features: first, such benefits existed before the infringement occurred, and victims could potentially acquire them without actual possession; second, these benefits were either inevitable or highly probable if the infringement had not occurred—in other words, they held practical significance rather than being hypothetical. under relevant provisions of china’s state compensation law, indirect losses are excluded from state compensation coverage. this legislative decision reflects china’s fiscal constraints and the inherent complexity of calculating indirect losses, leading courts to prioritize compensating only direct damages in property-related cases. however, this approach has become increasingly problematic with economic development. judge liu haihong identifies the distinction between direct and indirect damages as a critical challenge in judicial practice, noting inconsistent adjudication standards that undermine public trust. from the perspective of fully safeguarding human rights, she proposes limiting compensable indirect losses to evidence-proven specific ranges (liu, h. h., 2005, pp. 39-41). scholar ding bangkai elaborates on the necessity and feasibility of including indirect losses in compensation, suggesting reference to civil law standards for defining indirect losses (ding, b. k., & qian, f., 2004, pp. 68-72). therefore, according to the actual needs of social progress, it is necessary to adjust the coverage of administrative compensation regularly. incorporating loss of expected benefits into administrative compensation not only fulfills legislative objectives but also constitutes an essential requirement for achieving “administrative rule of law.” the modern state compensation philosophy prioritizes people-centered principles, emphasizing the provision of fair, timely, and effective compensation when citizens’ legitimate rights are infringed upon by state www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 107 published by scholink inc. power. it seeks to establish reasonable compensation standards that align with social development. the original intent of the state compensation law was to provide legal remedies for victims. the scope of administrative compensation directly impacts the intensity of supervision over administrative power and the extent of protection for victims’ rights. in today’s economic environment where indirect losses often accompany direct ones, overly restrictive loss determination may inflict secondary harm on disadvantaged victims. meanwhile, china’s constitution stipulates that all power belongs to the people. it further specifies that victims entitled to compensation may seek redress through legal channels when state organs or officials unlawfully exercise authority to infringe upon citizens’ rights. by institutionalizing and legalizing state compensation, the state compensation law embodies the government's core principle of acting according to law and assuming responsibility for violations. incorporating loss of expected benefits into administrative compensation precisely implements this principle and meets the requirements of “administrative rule of law.” 4. dispute and cause analysis of the loss of necessary benefit in administrative compensation 4.1 the scope of legislative protection of vested interest loss is not clear the current legislation on “actual loss” faces two major issues regarding its scope of protection. first, there is a lack of clear legal basis. although the state compensation law introduced the concept of “direct loss,” it fails to provide detailed and precise definitions. this results in inconsistent judicial standards when handling related cases, undermining the credibility and authority of the judiciary. second, unclear legal definitions pose another pressing challenge. in china, the concept of “actual loss” is not only applied in state compensation law but also extends to civil and administrative laws. however, significant differences in interpretations of “lost expected benefits” across various legal systems create substantial confusion and uncertainty in defining the scope of legislative protection. of particular significance is the supreme people’s court’s 2008 judicial interpretation on several issues concerning judicial compensation in civil and administrative litigation, which systematically outlines specific scenarios of direct losses that may arise during judicial compensation proceedings. as current national compensation legislation lacks a clear definition of “compensable loss of expected benefits,” it becomes imperative to conduct comprehensive research across relevant laws, regulations, and normative legal documents to establish an accurate interpretation and delineation of this concept. 4.2 the scope of compensation for loss of vested interests is limited in the practice of state compensation law, the determination of direct losses directly determines the specific amount of compensation. however, in reality, many victims suffer actual losses far exceeding the scope of direct losses, yet receive inadequate compensation. take the administrative compensation case between baqing county dazhuang game hall and baqing county public security bureau as an example: the game hall suffered over 1,000 days of business interruption due to the public security bureau’s illegal shutdown. its electronic gaming equipment depreciation, property rent, financing costs, and potential operating profits were not adequately considered. although the court compensated for www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 108 published by scholink inc. some direct losses like equipment depreciation and property rent, it excluded other more complex and hard-to-quantify losses such as financing costs and operational losses on the grounds of “only compensating direct losses.” the outcome of this case shows that the victim received compensation far below their entitled loss, while the administrative authority imposed excessively low costs for its illegal actions. while the “causation theory” serves as a standard for determining direct losses in administrative compensation, its strict definition of “direct causation” often excludes anticipated benefit losses in practice. this undoubtedly limits the fairness and reasonableness of compensation. therefore, it is necessary to re-examine and adjust existing compensation standards to more comprehensively cover victims’ actual losses. this will better protect their legitimate rights and interests, promote lawful administration by government agencies and their staff, and ensure proper exercise of authority. 4.3 the scope of judicial protection of vested interest loss is limited the inadequacy of compensation standards for victims’ property losses in china’s administrative compensation system has persisted since the enactment of the state compensation law. while the legislation mandates “compensation based on direct losses,” it fails to clearly define what constitutes such losses. this ambiguity has resulted in judicial practices that apply extremely narrow criteria for determining lost expected benefits, thereby preventing victims from receiving comprehensive and adequate legal redress. according to article 12 of the supreme people’s court’s interpretation on several issues concerning the application of law in civil and administrative litigation cases involving judicial compensation, when property cannot be restored to its original condition or is destroyed, losses shall be calculated based on the price at the time of the infringement. if market prices cannot be determined or are insufficient to compensate for the victim’s losses, other reasonable methods may be used to calculate damages (zhang, x. y., 2017, pp. 124-133). therefore, the principle is to calculate losses according to market prices at the time of demolition. however, for real estate and bulk commodities where values fluctuate easily, calculating losses based on original values might appear unfair. according to articles 3 and 4 of the state compensation law, administrative compensation applies only when administrative authorities unlawfully exercise their powers to infringe upon personal or property rights. these provisions limit the scope of administrative compensation (wang, k., 2007, pp. 140-166). in determining loss of expected benefits, it is essential not only to consider the specific amount of loss but also clarify the method for determining the loss amount and the allocation of burden of proof. the determination of loss amounts proves particularly complex, as it involves selecting calculation benchmarks and time nodes for compensation. currently, china’s existing state compensation law does not explicitly specify calculation benchmarks for property damage. however, article 27 of the judicial interpretation on administrative compensation explicitly states the principle of using market prices as the calculation benchmark. this provision provides judicial guidance, allowing reference to market prices when determining loss amounts. therefore, when assessing loss of expected benefits, full www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 109 published by scholink inc. consideration should be given to the method for determining the loss amount, the allocation of burden of proof, and the selection of calculation benchmarks and time nodes for compensation. this ensures the fairness and reasonableness of compensation outcomes. 4.4 the standard of judicial judgment on the loss of vested interests is too low when discussing compensation standards for personal rights violations, two critical issues emerge. first, the current “national average daily wage of employees from the previous year” used as a daily compensation benchmark primarily compensates victims for lost wages, while neglecting mental distress and potential future income losses. second, the standard calculation method—based on multiplying the “national average daily wage” by the number of injured days with an upper limit set at the “national average annual wage multiplied by a specific multiplier”—fails to reflect modern economic diversity and varied occupational income distribution. this rigid standard proves unfair and inadequate, particularly when calculating compensation for moderate-to-high-income individuals who suffer substantial non-monetary damages from injuries. the same issue manifests in the compensation standards for property rights infringement. the state compensation law stipulates that infringing authorities only need to compensate for “direct losses”—that is, financial reductions directly caused by the infringement, such as direct decreases in victims’ wealth due to property damage. all other losses are classified as “indirect losses” and not eligible for compensation. for instance, when business licenses are revoked, compensation covers only regular expenses like utility fees during suspension periods, while direct losses like breach penalties and compensation payments incurred due to business shutdowns remain uncompensated. expectations of future income and potential benefits are even more excluded. since the amount of potential benefits is often substantial and realistically exists, such compensation standards prove ineffective in addressing victims' actual loss of expected benefits. 5. legislative improvement and judicial countermeasures for the determination of necessary benefit loss in administrative compensation 5.1 clarifying the scope of legislative protection for losses of vested interests when defining the legislative scope of administrative compensation for actual losses in china, a central issue is establishing clear calculation standards for lost expected benefits. current laws provide vague regulations in this area, resulting in significant discretionary room in practice. this ambiguity undermines the fairness and reasonableness of compensation outcomes. the calculation of lost expected benefits should establish a multi-dimensional evaluation mechanism that comprehensively considers direct economic losses, indirect economic losses, and non-economic damages. regarding direct economic losses, assessments should not only evaluate physical damage but also include business interruption costs and relocation expenses caused by administrative actions. for indirect losses, factors such as potential impacts on future earnings and reputational harm should be incorporated, with methods for quantifying these damages being explored. as for non-economic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 110 published by scholink inc. damages like mental distress compensation, clear standards and caps must be established to prevent excessive payouts. furthermore, calculating lost expected benefits should extend beyond static property valuation to consider victims’ actual living conditions and future prospects. for instance, in housing expropriation cases, compensation should not only cover the property’s value but also account for resettlement costs, relocation expenses, and potential changes in living standards. to enhance the scientific rigor and accuracy of loss calculations, it is recommended to engage third-party professional institutions for evaluations. third-party assessments can reduce subjective biases, ensuring objective and credible results. simultaneously, establishing review procedures will guarantee the professionalism and independence of third-party evaluations. finally, the legislative body should establish clear legal guidelines for calculating compensable losses in administrative compensation to eliminate practical uncertainties. this includes creating unified evaluation benchmarks, assessment methodologies, and necessary correction mechanisms. these measures will provide a more robust legal foundation for calculating compensable losses in administrative compensation, thereby advancing the realization of fairness and justice within the administrative compensation system. 5.2 the scope of compensation and relief for loss of vested interests shall be expanded article 4, item 4 and article 36, item 8 of the state compensation law of the people’s republic of china stipulate that when administrative acts by administrative organs and their staff violate laws during the exercise of administrative authority, causing property damage to citizens, legal persons, or other organizations, the victims have the right to claim compensation. when property rights of citizens, legal persons, or other organizations are infringed and damages occur, compensation shall be provided based on direct losses. therefore, when administrative organs unlawfully carry out forced demolition actions causing property losses to affected enterprises, they shall compensate for the “direct losses” caused by such unlawful administrative acts. article 29 of the judicial interpretation on administrative compensation incorporates interest, operational losses, and rewards/subsidies eligible in compensation into the category of direct losses. other actual property losses are recognized as real losses, and compensation claims in cases involving illegal house expropriation or land requisition must not be less than the original compensation, thereby fully protecting the legitimate rights and interests of the parties concerned (yu, h. s., guo, x. j., yang, k. x. et al., 2022, pp. 25-36). the term “direct losses” refers to the total actual financial damages caused by unlawful administrative actions to the affected party. typically, when implementing property expropriation for corporate factories, compensation covers: the value of the expropriated property, relocation and temporary resettlement expenses, business suspension losses due to expropriation, as well as subsidies and incentives stipulated in the compensation plan. if an administrative agency unlawfully demolishes lawful properties through forced demolition during expropriation, the administrative compensation items and amounts must not be less than those from administrative compensation procedures. in other words, all legally entitled compensations including relocation fees, temporary resettlement allowances, business www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 111 published by scholink inc. suspension losses, and subsidies/grants should fall under the category of “direct losses” and are legally required to receive administrative compensation. 5.3 expanding the scope of judicial protection of vested interests losses the newly issued judicial interpretation scientifically defines and legally expands the scope of compensation for damages to legitimate rights and interests. it clarifies that administrative compensation protection covers, but is not limited to, personal and property rights, while extending judicial protection to losses of expected benefits in administrative actions. addressing issues such as unlawful exercise of administrative authority infringing on labor rights and adjacent rights in judicial practice, article 2 of the new interpretation stipulates that citizens, legal entities, or organizations may file administrative compensation lawsuits if they believe administrative authorities or their staff have unlawfully exercised power, causing personal or property damage to their labor rights, adjacent rights, or other legitimate interests. this expands the original scope of administrative compensation protection. the interpretation also reasonably defines the scope of direct losses and clarifies the boundaries of legitimate rights and interests infringed upon by parties. in accordance with the provisions of the state compensation law of the people’s republic of china, the scope of compensation for damages to personal and property rights caused by illegal acts by administrative authorities and their staff should be further clarified and expanded. beyond existing damages from unlawful detention, illegal confinement, assault, and abuse, legislative acts, abstract administrative actions, and discretionary decisions should also be included in the compensation scope. first, material compensation for mental distress should be added. in practice, many victims suffer not only material losses but also psychological anguish. therefore, material compensation for mental harm should be enhanced to better protect victims’ rights. second, the scope of compensation should encompass both direct and indirect losses. compensation should extend beyond direct damages to include indirect losses caused by administrative violations, such as lost expected benefits. this approach helps comprehensively compensate for economic losses. third, judicial oversight over administrative power should be strengthened. by enhancing judicial supervision, we can ensure lawful exercise of authority and reduce illegal acts. administrative agencies violating laws should be held accountable and compensate victims accordingly. additionally, to ensure legal flexibility, the new judicial interpretation has established a catch-all clause explicitly stating that other actual property losses also fall under direct loss categories. the way of expanding the scope of direct losses through the bottom-line clause aims to encourage the practice of bravely remedying other actual losses, which can maximize the protection of the legitimate rights and interests of the parties concerned, and also provide a more clear and specific legal basis for the trial of administrative compensation cases (ma, w. d., & zhang, z. y., 2022, pp. 18-24). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 112 published by scholink inc. 5.4 the fairness of the standard of judicial protection for the loss of vested interests after determining that the administrative organ is liable for compensation, a new problem arises, namely, what standard the administrative organ should adopt to assume liability and compensate the victim’s loss. according to the provisions of the state compensation law, the principle of compensation for infringement of the property rights of citizens, legal persons and other organizations is based on the principle of compensation for direct loss. regarding cases where property damage cannot be restored or is irretrievably lost, the national compensation law stipulates “payment of corresponding compensation.” the term “corresponding” is a broad concept that requires specific determination based on china’s current administrative compensation standards. in terms of the adequacy of administrative compensation, calculation criteria can be categorized into two types. first, punitive standards. this special calculation method adopted by administrative compensation authorities involves paying amounts exceeding the victim’s entitled loss rather than simply determining compensation based on the victim’s potential gains. beyond compensating victims, punitive damages serve a deterrent function for administrative agencies, ensuring both rights protection and future compliance through penalizing illegal acts. therefore, moderately increasing punitive standards in administrative compensation can raise the cost of violations and prevent unlawful conduct. second, compensatory standards. this calculation principle ensures that compensation payments align with the actual loss suffered by the claimant. under this standard, compensation amounts match the victim’s actual damages to achieve full restitution and ensure fair compensation. the scope of this compensatory standard should be expanded to match the scope of civil law compensation. 6. conclusion in recent years, significant theoretical perspectives and empirical analyses have emerged regarding the loss of necessary benefits in administrative compensation. however, unresolved issues persist, such as ongoing debates over the criteria and scope of these losses, as well as the need for deeper exploration in procedural integration and systematic research. to better protect the legitimate rights of administrative counterparts, it is imperative to reform the current compensation system in a timely manner. this involves establishing a liability framework prioritizing violations and manifest impropriety while incorporating minor faults as a secondary consideration, moderately expanding the scope of administrative compensation, introducing additional provisions for mental distress and potential benefit losses, broadening coverage of actual property damage compensation, and designing more streamlined administrative compensation procedures alongside practical and meticulous administrative recovery mechanisms. therefore, further research and exploration into the loss of necessary benefits in administrative compensation remain both crucial and essential. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 113 published by scholink inc. references ding, b. k., & qian, f. (2004). legislative discussion on the inclusion of indirect losses in the state compensation law. journal of shanghai university of finance and economics, 2004(01), 68-72. liu, h. h. (2005). on damage compensation in state compensation. shandong trial, 2005(01), 39-41. lu, z. f., & wu, j. h. (2022). a brief discussion on direct losses in the judicial interpretation of administrative compensation. journal of tianshui administrative college, 23(04), 115-119. ma, w. d., & zhang, z. y. (2022). standardizing the trial of administrative compensation cases to promote the development of the state compensation system. legal application, 2022(04), 18-24. wang, k. (2007). orientation for the amendments to the state indemnity law of china. frontiers of law in china, 2(1), 140-166. https://doi.org/10.1007/s11463-007-0008-y yu, h. s., guo, x. j., yang, k. x. et al. (2022). interpretation and application of key provisions in the supreme people’s court’s provisions on several issues concerning the trial of administrative compensation cases. china applied law, 2022(2), 25-36. zhang, x. b. (2005). principles of tort liability law (2005 edition, pp. 56-57). renmin university of china press. zhang, x. y. (2017). legal determination of criminal compensation standards for the loss of property involved in a case. research on administrative law, 2017(05), 124-133. https://doi.org/10.1007/s11463-007-0008-y economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 301 original paper research on consumer rights protection in prepaid consumption bing liu 1 1 dalian ocean university, dalian, liaoning, china received: november 27, 2025 accepted: december 10, 2025 online published: december 13, 2025 doi:10.22158/elp.v8n2p301 url: http://dx.doi.org/10.22158/elp.v8n2p301 abstract prepaid consumption is widely adopted in industries such as catering, fitness, and beauty services. while offering convenience, it places consumers at a disadvantage due to information asymmetry, making their rights to fund security, autonomous choice, and informed consent vulnerable to infringement. this paper focuses on consumer rights protection in prepaid consumption, drawing on domestic and international theoretical insights and practical experience to propose three recommendations: first, refine the relevant legal framework by clarifying the legal status of prepaid consumption contracts and strengthening the consumer rights protection system; second, establish a comprehensive regulatory mechanism covering market entry systems, model contract templates, fund security safeguards, and credit-based oversight. third, optimize redress channels by expanding the scope of burden of proof reversal and refining punitive damages systems. these measures aim to foster a fairer, more transparent, and secure consumer environment, effectively safeguarding legitimate consumer rights. keywords prepaid consumption, consumer rights and interests protection, regulatory system 1. introduction in recent years, with the rapid advancement of internet technology and continuous innovation in consumption patterns, prepaid consumption has emerged as a new business model, rapidly gaining popularity across numerous service industries. from annual gym memberships and beauty salon packages to educational training courses, prepaid consumption has attracted a large number of consumers with its discounted prices and convenient services. however, this seemingly “win-win” consumption model also harbors numerous problems. due to information asymmetry, consumers often find themselves at a disadvantage in prepaid consumption arrangements, bearing more obligations and risks. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 302 their rights to property security, autonomous choice, and informed consent face significant threats during the subsequent fulfillment of obligations by operators. frequent occurrences such as business closures, service downgrades, and refund difficulties not only severely undermine consumers’ legitimate rights but also disrupt market order and hinder the development of the social credit system. 2. research hypotheses prepaid consumption offers significant convenience to both parties in transactions. legal development should keep pace with economic growth. by better regulating prepaid consumption through legislation and protecting consumers’ legitimate rights and interests, we can further leverage the positive role of prepaid consumption in economic development. by enhancing merchants’ integrity in business operations and establishing a fair and equitable market environment, this approach will promote the sustained and healthy development of china’s prepaid consumption sector while diversifying consumption patterns. this will stimulate economic growth, stabilize the market economy order, and contribute to building a socialist society governed by the rule of law and advancing the development of a social credit system. 3. research design from the perspective of protecting consumer rights in prepaid consumption, this paper first defines prepaid consumption, clarifies its legal nature and characteristics, and thoroughly examines the manifestations of consumer rights violations and existing issues in china’s prepaid consumption market. subsequently, drawing on and refining relevant research experiences in consumer rights protection for prepaid consumption both domestically and internationally, it proposes recommendations for improving china’s legal framework for safeguarding consumer rights in prepaid consumption. regulating prepaid consumption through legal frameworks to safeguard consumers’ legitimate rights and interests will help restore and enhance consumer confidence in the market, thereby contributing to social stability and harmony. 4. empirical analysis 4.1 theoretical overview of prepaid consumption 4.1.1 definition and characteristics of prepaid consumption in recent years, prepaid consumption has rapidly gained popularity across various industries as an emerging consumption model. academic circles generally share a consistent understanding of the concept of prepaid consumption, with no significant divergence or conflict observed. although definitions vary slightly, they convey similar meanings. scholar lei yuanzhi defines prepaid consumption as a model where consumers advance funds to operators to obtain prepaid vouchers, which they then use to acquire goods or services multiple times over a specified future period as agreed (lei, y. z., 2021, pp. 78-80). su haopeng views it as a consumption pattern where operators collect a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 303 predetermined amount from consumers in advance, issue vouchers of equal value, and subsequently provide products or services to consumers within the agreed timeframe (su, h. p., 2013, pp. 1-7). wang jianwen defines it as a consumption model where consumers prepay a certain amount to operators. after receiving products or services as contractually agreed, operators directly deduct corresponding amounts from the prepaid funds, typically using prepaid consumption cards as vouchers (wang, j. w., 2012, pp. 146-155). xiong wumin defines prepaid consumption as a scenario where consumers prepay consumption costs to operators, with both parties agreeing to enjoy products or services periodically or in installments (xiong, w. m., 2010, p. 3). in summary, prepaid consumption refers to a new consumption model where consumers prepay a certain amount of funds to operators as prepayments or top-ups to obtain future products, services, or benefits in installments or at scheduled intervals. 4.1.1.1 prepaid this is the core characteristic of prepaid consumption, which differs significantly from the common instant transaction model—where payment is made and goods are received immediately upon purchase. the key feature of prepaid consumption lies in its advance payment nature, meaning consumers must pay a certain amount to the merchant before actually enjoying the goods or services. this prepayment serves as the access credential for the consumption service and simultaneously constitutes the valid basis for establishing the consumption contract between both parties (shi, x. y., & zhong, y., 2015, pp. 42-46). 4.1.1.2 using prepaid cards as the medium once consumers prepay merchants, they receive a prepaid card serving as tangible proof of the transaction contract—the physical medium establishing the contractual relationship between consumer and merchant. these cards typically manifest as magnetic stripe savings cards (e.g., public transit cards) or chip-embedded cards (e.g., electricity cards, gas cards). using these cards eliminates the need for cash or bank card payments at the point of sale, thereby enhancing the security of funds. moreover, a significant advantage of prepaid cards lies in their rechargeable nature. when the balance is depleted, consumers can easily top up the card, greatly increasing flexibility and convenience. 4.1.1.3 asymmetry of rights and obligations in prepaid consumption arrangements, consumers often find themselves in a relatively disadvantaged position. once prepayments are made, control over the funds transfers to the merchant, leaving consumers vulnerable to risks such as merchant default or substandard service quality. this asymmetry necessitates special legal protections for consumer rights. 4.1.1.4 financial nature first, after collecting prepaid funds from consumers, merchants typically invest these funds into other business sectors to generate profits, thereby serving a financing function. second, consumers use prepaid vouchers as substitutes for cash in transactions, demonstrating certain monetary functions such as circulation and payment capability. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 304 4.1.2 legal provisions on consumer rights protection in prepaid consumption 4.1.2.1 the contract section of the civil code protects consumer rights in prepaid consumption although the civil code does not explicitly include a specific provision on “prepaid consumption,” it incorporates a series of fundamental principles and regulations applicable to prepaid consumption contracts, thereby indirectly safeguarding consumers’ legitimate rights and interests in such transactions. notably, article 563 in the contracts section enumerates several grounds for contract termination. these include situations where one party delays performance of a principal obligation and fails to perform within a reasonable period after receiving notice, or where one party’s delay in performing obligations or other breaches of contract render the contract purpose unattainable. this provision offers consumers a legal basis when merchants fail to deliver promised goods or services. additionally, article 577 stipulates that if a party fails to perform contractual obligations or performs them in a manner inconsistent with the agreement, they shall bear liability for breach of contract, including continued performance, remedial measures, or compensation for losses. this provides a legal avenue for redress when merchants fail to deliver goods or services as agreed in prepaid consumption scenarios. although these provisions in the contracts section do not explicitly mention prepaid consumption, they collectively form the foundational legal framework safeguarding consumers’ legitimate rights and interests in such transactions. 4.1.2.2 the consumer rights protection law of the people’s republic of china safeguards consumer rights in prepaid consumption article 2 of the consumer rights protection law of the people’s republic of china clearly defines the concept of a consumer, while also granting consumers certain legal rights and protections. analyzing the commonalities among consumers reveals three core characteristics: first, consumers constitute a segment of society as members of the social collective. second, from a behavioral perspective, consumers actively participate in the process of purchasing goods, using products, or enjoying services. third, at the motivational level, consumer actions aim to satisfy personal life needs. applying these characteristics to prepaid consumers shows they similarly belong to the social collective, engage in purchasing and using goods or services, and act primarily to meet their own life consumption needs. prepaid consumption establishes a service contract relationship between consumers and merchants. although payment occurs in advance, this prepayment behavior essentially constitutes a commitment and arrangement for future contract fulfillment. it remains a type of civil legal relationship, with consumers still being one of the contracting parties. this demonstrates that while prepaid consumption may be innovative in form, it fundamentally remains within the realm of consumer affairs. furthermore, article 53 of the consumer rights protection law stipulates: “where an operator provides goods or services through advance payment, it shall provide them as agreed. if not provided as agreed, the operator shall either fulfill the agreement according to the consumer’s request or refund the advance payment; it shall also bear the interest on the advance payment and any reasonable expenses the consumer must pay.” thus, consumers in prepaid consumption are protected under the consumer www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 305 rights protection law of the people’s republic of china. 4.1.2.3 administrative measures for single-purpose commercial prepaid cards (trial) protect consumers’ legitimate rights and interests the administrative measures for single-purpose commercial prepaid cards (trial) is a significant regulatory framework introduced by the ministry of commerce in 2012. it aims to further standardize the commercial prepaid card market, particularly for single-purpose prepaid cards restricted to use within the issuing enterprise or its affiliated entities, thereby effectively safeguarding consumer rights. these measures mandate that card issuers or sellers proactively fulfill their information disclosure responsibilities at the point of sale. they must not only prominently display detailed card terms and conditions at their business premises—including but not limited to usage rules, validity periods, recharging and spending procedures, loss replacement processes, refund conditions, and any applicable service fees—but also enter into written agreements with consumers prior to card purchase. these agreements must clearly document the rights and obligations of both parties in the prepaid transaction. this agreement serves as a crucial step in ensuring consumers are fully informed. it covers quality guarantees, quantity, and pricing of services or goods; consumers’ rights to request card cancellation or refunds under specific conditions; and the allocation of liability and dispute resolution mechanisms in case of breach. to achieve genuine fairness and transparency, businesses also bear the responsibility to thoroughly explain the agreement’s contents to consumers, ensuring they fully understand and agree to all terms before purchasing the card. this prevents any form of information asymmetry or misleading practices. through this institutional design, the administrative measures for single-purpose commercial prepaid cards (trial) establishes a robust framework for protecting consumer rights. it not only enhances market transparency but also strengthens oversight and constraints on prepaid card issuers, laying a solid foundation for creating a healthier, more orderly prepaid consumption environment. 4.2 manifestations of consumer rights violations in prepaid consumption in china and existing issues 4.2.1 manifestations of consumer rights violations in prepaid consumption in china 4.2.1.1 operators breaching contracts or disappearing infringe upon consumers’ right to property safety in consumer transactions, the fundamental expectation is to obtain the anticipated goods or services. under the prepaid consumption model, this process is reversed: consumers must pay in advance before they can enjoy the goods or services (wen, h. s., & mao, w., 2023). unfortunately, this model is often exploited by unscrupulous businesses as a fraudulent tactic. they promote prepaid cards or memberships through enticing sales strategies, only to abruptly cease operations and vanish once consumers’ prepayments are received. for instance, ms. zhang purchased a two-year gym membership at a facility named “healthy living,” prepaying rmb 5,000. the gym promised state-of-the-art equipment, diverse group classes, and professional personal training services. after several months of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 306 use, ms. zhang noticed frequent coach turnover, a significant reduction in group classes, and a noticeable decline in service quality. when she requested service improvements, the gym responded with dismissive attitudes and made no tangible changes. months later, due to a job transfer requiring her to relocate from the area, ms. zhang applied for a refund of her unused membership fees. however, the gym refused the refund, citing a clause in the contract stating “no refunds once sold.” shortly thereafter, the gym abruptly closed due to poor management, and its operators became unreachable. ms. zhang and numerous other members were unable to recover their prepayments, with the total amount involved reaching hundreds of thousands of yuan. in this case, the prepaid operator’s actions violated consumers’ right to property security. their breach of contract and sudden disappearance ultimately left consumers’ rights unprotected. even in non-fraudulent scenarios, businesses may cease operations due to poor management, restructuring, or transformation, rendering prepaid funds unrecoverable. this indirectly infringes upon consumers’ right to property security and causes substantial economic losses. 4.2.1.2 businesses abusing standard form contracts infringe upon consumers’ right to make independent choices under the prepaid consumption model, businesses often issue prepaid cards on a large scale to quickly recover funds and attract more customers. given the high time and cost expenditures involved in individually contracting with numerous consumers, businesses typically opt for pre-set, fixed-term standard form contracts. while this approach enhances efficiency, it has also sparked extensive discussions and disputes regarding “standard terms” and even “unfair terms.” these standardized contracts frequently prioritize protecting merchant interests, potentially containing unfair restrictions or exemption clauses. this undermines consumer rights to some extent, increasing consumer passivity and risk in transactions. merchants abuse prepaid consumption standard form contracts to infringe upon consumer rights. instead of fully negotiating with consumers, they establish rights and obligations through vaguely worded “membership cards.” while heavily promoting price discounts for consumers, these “membership cards” often restrict consumer rights. common clauses include: “no refunds after expiration,” “the store reserves final interpretation rights regarding membership cards,” “lost shopping cards will not be replaced,” and “once issued, this card is non-refundable and non-replaceable.” such standard terms limit consumers’ autonomy in choice while increasing their obligations, liabilities, and risks (xu, h. y., 2022, pp. 88-91). 4.2.1.3 business operators disclosing consumers’ personal information infringes upon consumers’ privacy rights and personal information rights during the process of applying for membership cards, consumers are often required by businesses to submit personal information for the creation of customer profiles, enabling personalized service experiences. however, some businesses neglect to properly manage the personal information files submitted by consumers, leading to data breaches. furthermore, driven by the lure of substantial profits, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 307 certain merchants violate contractual agreements by selling users’ personal information for private gain, thereby infringing upon consumers’ privacy rights and personal information rights (jia, y. w., 2022, pp. 19-21). currently, within china’s legal framework for protecting consumer privacy rights, there remains a lack of direct and comprehensive specialized legislation. protection primarily relies on general provisions found in relevant regulations such as the consumer rights protection law and the administrative measures for single-purpose commercial prepaid cards. while these existing legal documents mention safeguarding consumers’ personal and property safety, their provisions regarding the definition of privacy rights, protective measures, and liability for infringement remain rather general. they fail to provide sufficiently detailed guidance and constraints, making it difficult to establish robust legal support in practice. this leaves gaps in the protection of consumers’ privacy rights. 4.2.1.4 business operators lacking integrity violate consumers’ right to know the right to know empowers consumers to obtain, in accordance with legal provisions, all truthful information regarding goods they intend to purchase or use and services they intend to receive. this right forms the foundation for consumers to ensure their choices meet personal life needs, as comprehensive understanding of product or service details is a prerequisite for determining whether such offerings align with consumption demands (wang, b., 2014, pp. 106-109). article 8 of china’s consumer rights protection law explicitly stipulates consumers’ right to know. however, in actual commercial activities, some businesses, in order to attract customers, tend to employ exaggerated marketing tactics. they emphasize the alluring aspects of prepaid consumption schemes while downplaying or concealing potential flaws in goods and services. this approach stimulates consumers’ purchasing desires and achieves rapid sales growth. however, many consumers, lacking sufficient legal knowledge, overlook the importance of formal written contracts during transactions. this often leaves them vulnerable to infringement of their rights without effective legal recourse. in such cases, businesses frequently circumvent strict legal obligations when fulfilling contracts, arbitrarily altering original promises or promotional claims, thereby severely violating consumers’ right to know. 4.2.2 existing issues in prepaid consumption that compromise consumer rights in china 4.2.2.1 legal regulations protecting consumer rights in china’s prepaid consumption sector remain inadequate although the consumer rights protection law aims to safeguard consumers’ legitimate rights and interests, it does not establish specific and detailed rules for the particular domain of prepaid consumption, merely mentioning it in article 53. however, this provision faces challenges in practical implementation due to its overly general wording. particularly problematic is the “in accordance with the agreement” principle, which proves difficult to implement in practice. prepaid consumption contracts often lack standardization, featuring incomplete terms, unfair clauses, and sometimes no formal written contract at all. this makes it challenging to identify precise contractual terms and supporting evidence when applying the “in accordance with the agreement” principle, significantly www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 308 complicating its enforcement and rendering it virtually ineffective at times. prepaid consumers inherently possess all fundamental characteristics of traditional consumers. theoretically, provisions in the consumer rights protection law regarding consumer rights, operator obligations, and liabilities should equally apply to prepaid consumption contracts. however, existing clauses predominantly focus on post-incident remedies, failing to sufficiently prioritize consumer rights protection. concurrently, the definition of operator responsibilities lacks sufficient detail, significantly limiting the effectiveness and rigor of legal safeguards for prepaid consumers. specialized regulations like the “measures for the administration of single-purpose commercial prepaid cards (trial)” have played a regulatory role. these measures establish specific requirements for the issuance, usage, redemption, and related fund management of prepaid cards, aiming to regulate the single-purpose prepaid card market and protect cardholders’ rights. however, the implementation effectiveness and binding force of these measures are constrained by their “trial” nature and regulatory hierarchy. this implies that their provisions may be incomplete, penalties for violations may be insufficient, and enforcement efficiency may be inadequate. consequently, they struggle to cover all entities and behaviors within the prepaid consumption market, particularly emerging business models and new formats that leverage internet platforms for prepaid sales. 4.2.2.2 china’s regulation of prepaid consumption is inadequate although administrative oversight theoretically offers greater flexibility and practicality than legislation, enabling swift strategy adjustments in response to market shifts, this advantage has not been fully leveraged in china’s prepaid consumption sector. government regulatory frameworks often lag behind market developments, resulting in regulatory systems that fail to adapt promptly to market changes and creating regulatory blind spots. the traditional administrative management model prioritizes approvals while placing relatively less emphasis on oversight. regulatory gaps emerge due to information asymmetry, policy lags, and high oversight costs. simultaneously, unclear delineation of regulatory responsibilities leads to insufficient coordination among regulators and limited effectiveness. this is particularly evident in high-frequency incidents, where overlapping jurisdictions and ambiguous accountability become especially pronounced (zhao, l. l., 2023, p. 78). meanwhile, the prepaid consumption model is characterized by diversity and complexity, while government regulatory measures tend to be relatively limited, making it difficult to address various complex and emerging risks. this hinders the government’s ability to effectively identify and control risks during the regulatory process, thereby exacerbating regulatory gaps. due to limitations in regulatory resources and capabilities, governments often struggle to respond swiftly and effectively when overseeing the vast and complex dynamics of the prepaid consumer market. this creates opportunities for some businesses to evade regulation. they exploit existing regulatory loopholes to engage in illegal and non-compliant practices—such as misappropriating prepaid funds, making exaggerated claims, and providing substandard services—while evading appropriate legal consequences. this situation not only condones unfair business practices but also www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 309 further exacerbates the risk environment inherent in the prepaid consumption model, severely undermining the legitimate rights and interests of consumers. 4.2.2.3 challenges in consumer rights protection for prepaid services in china in disputes over prepaid consumption, consumers theoretically have the right to seek legal recourse, demanding that businesses fulfill contractual obligations or compensate for losses. however, in practice, most transactions rely on verbal agreements rather than formal written contracts, making it difficult for consumers to gather sufficient evidence and creating significant obstacles to legal redress. even when consumers attempt legal proceedings, they are often deterred by lengthy litigation, cumbersome procedures, and the high burden of proof. moreover, individual consumers face a significant power imbalance when confronting larger, resource-rich businesses, often finding themselves in a disadvantaged position where equal dialogue is difficult. they frequently feel powerless to defend their rights. consumers often pin their hopes on intervention by administrative regulators or industry associations for swift resolution. however, mediation by industry associations tends to be lenient, frequently concluding with consumer concessions rather than fundamental safeguards for consumer rights. as for administrative oversight, while theoretically authoritative and enforceable, regulatory mechanisms are often inadequate and responsibilities poorly defined. in practice, regulatory bodies frequently respond slowly to consumer disputes, sometimes even passing the buck. this makes it difficult for consumers to obtain timely and effective assistance. consumers in the prepaid consumption sector face multiple challenges, including limited avenues for rights protection, difficulties in providing evidence, weak individual bargaining power, unsatisfactory mediation outcomes, and inadequate administrative oversight. in summary, as an increasingly prevalent lifestyle consumption model, prepaid consumption brings a series of complex issues alongside its widespread adoption. these challenges primarily manifest in the unclear delineation of rights and obligations between consumers and businesses within the prepaid model. compounded by imperfect legal frameworks and market oversight mechanisms, this leads to a series of difficulties including business breaches of contract, consumer rights violations, privacy breaches, and consumer rights protection hurdles. 4.3 recommendations for improving consumer rights protection in prepaid consumption in china 4.3.1 improve the legal system for protecting consumer rights in prepaid consumption in prepaid consumption, the vulnerability of consumer rights to infringement is a prominent issue. this stems largely from the fact that existing laws and regulations, such as the civil code and the consumer rights protection law, provide only general principles regarding prepaid consumption contracts. furthermore, the few relevant departmental rules and regulations are rather vague and lack specific operational details. therefore, strengthening and improving the legal framework within the prepaid consumption sector has become both an urgent and critical task for effectively safeguarding consumer rights. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 310 4.3.1.1 clarify the legal status of prepaid consumer contracts the contract section of china’s civil code stipulates nineteen types of typical contracts, including sales contracts and gift contracts. prepaid consumption contracts are not included among them. therefore, prepaid consumption contracts must be governed by the general provisions of the contract section of the civil code as unnamed contracts. specific implementation details and the delineation of rights and obligations lack explicit provisions. to effectively safeguard consumers’ legitimate rights and interests through a sound legal framework for prepaid consumption, the primary step is to establish the clear legal status of prepaid consumption contracts. some scholars contend that although prepaid consumption represents a novel consumption model distinct from traditional immediate payment consumption, prepaid consumption contracts essentially fall within the category of sales contracts. they argue that there is no need to treat prepaid consumption contracts as an independent contract type, but rather they can be thoroughly explored and regulated as a special case within sales contracts. however, compared to traditional sales contracts, prepaid consumption contracts involve more complex legal relationships that cannot be fully encompassed by the existing legal framework for sales contracts. in practice, defining the nature of prepaid funds—such as whether they constitute a deposit, advance payment, or guarantee for service commitments—often poses legal challenges, highlighting the distinctions between prepaid consumption contracts and standard sales contracts. therefore, categorizing prepaid consumption contracts merely as a subcategory of sales contracts may prove insufficient to address their unique legal issues and challenges. therefore, we should transform prepayment consumption contracts from non-standard contracts into standard contracts. a separate chapter should be established for prepayment consumption contracts, clearly defining their characteristics, legal nature, classification, and the rights and obligations of the parties involved. mandatory regulations should be employed to protect the legitimate interests of both parties, thereby clarifying the legal status of prepayment consumption contracts. 4.3.1.2 improve the consumer rights protection system in prepaid consumption, consumers invariably find themselves in a disadvantaged position relative to operators. following the civil code’s clarification of the legal status of prepaid consumption contracts, to further strengthen consumer protection in such transactions, specific provisions targeting prepaid consumption could be added or refined within the consumer rights protection law of the people’s republic of china. this would achieve more comprehensive and preferential safeguards. first, safeguarding consumers’ right to property security must be prioritized. this entails establishing clear oversight mechanisms for funds in prepaid consumption, creating dedicated escrow accounts or third-party custodians. businesses should be required to deposit a portion of prepaid funds into these accounts to prevent arbitrary diversion of consumer prepayments and ensure capital security. introducing commercial insurance would further protect consumer prepayments, enabling compensation through insurers should businesses fail to fulfill service commitments. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 311 second, some operators in prepaid consumption, seeking rapid capital turnover and customer attraction, often rely on pre-formatted standard-form contracts. the non-refundable balance clauses within these contracts significantly restrict consumers’ autonomy and may constitute coercive transactions (zheng, l., & xiong, y., 2012, pp. 21-24). to fully safeguard the autonomy of prepaid consumers, they should be granted the right to unilaterally terminate contracts. article 563 of the civil code provides the legal basis for terminating general contracts, but given the unique nature of prepaid consumption contracts, relevant provisions should be explicitly refined. therefore, the law should explicitly state that during the validity period of a prepaid consumption contract, consumers have the right to unilaterally terminate the contract based on personal will. particularly when a consumer refuses to continue receiving services, this should be deemed as the contract losing the prerequisite for continued performance. this measure ensures consumers’ autonomy in decision-making during contract execution, deepening and implementing the principle of freedom of contract. additionally, compared to the operator’s dominant position in controlling information, greater emphasis should be placed on protecting the personal privacy rights of prepaid consumers who are in a disadvantaged position. primarily, the scope and boundaries of protecting prepaid consumers’ personal information must be defined. this includes not only basic personal information but also details related to prepaid card usage, balance status, consumption history, associated device information, and payment methods. second, prepaid consumers have the right to know how operators collect and use their information, and operators must obtain explicit consumer consent before performing such operations. to this end, legislation must explicitly stipulate operators’ confidentiality obligations and mandate the inclusion of confidentiality clauses in contracts for any transaction involving the processing of consumer personal information. these clauses must detail the operator’s confidentiality responsibilities, the specific confidentiality measures implemented, and the concrete legal consequences of breaching confidentiality obligations. this ensures consumers’ information security and privacy receive full protection within the legal framework. ultimately, the very premise of prepaid consumption rests on consumers’ high trust in merchants when making advance payments. this model inherently involves long-term contractual commitments. however, as time progresses, information asymmetry between consumers and operators intensifies, making it crucial to deepen consumers’ right to know. this requires not only access to basic details about goods or services, but also extends to fundamental information about the business’s operations and any changes that may impact consumers’ transactions—provided such information does not constitute trade secrets. furthermore, since consumers’ right to know in prepaid consumption is dynamic, the information they require should also be dynamic, covering the period from the signing of the consumption contract until its complete fulfillment. 4.3.2 establishing a regulatory model for consumer rights protection in prepaid consumption establishing a regulatory framework for protecting consumer rights in prepaid consumption is a comprehensive process. it manifests in four key areas: market entry systems, model contract templates, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 312 financial safeguards, and credit-based oversight. these elements collectively ensure end-to-end supervision of prepaid consumption practices to safeguard consumers’ legitimate rights and interests. 4.3.2.1 establish a prepaid consumption access system the prepaid card issuance approval process, as the primary link in the regulatory chain for prepaid consumption, holds undeniable significance. a rigorous issuance approval mechanism acts as a screening net, effectively blocking enterprises with inadequate qualifications or poor credit from entering the market. this ensures that only operators who have undergone strict scrutiny and possess strong risk-bearing capacity and sufficient solvency can obtain the qualification to issue prepaid cards. this step forms the foundation for building a secure prepaid consumption environment, playing a vital role in safeguarding consumer rights and promoting healthy market development. under china’s current legal framework, the issuance of multi-purpose prepaid cards requires approval from the people’s bank of china, while single-purpose prepaid cards fall under the supervision of the ministry of commerce. relevant management measures stipulate requirements for issuers’ qualifications, filing timelines, and necessary documentation. however, existing regulations still lack specifics regarding the application procedures for card issuance qualifications and the review methods of competent authorities. this results in difficulties in comprehensively addressing the complex situations of various card issuers in practice, particularly the diverse prepaid card issuance needs of enterprises of different scales. the legal norms appear rather brief and insufficient to address all practical challenges. therefore, establishing a comprehensive and meticulous issuance approval mechanism is particularly urgent, aimed at rigorously screening card issuers to enhance the integrity and financial performance capabilities of the prepaid consumption industry. specific strategies should include: when applying for an issuance license, card issuers must submit a comprehensive application report to the regulatory authority. this report must detail the company’s basic information, such as its name, credit status, business scope, and registered capital, along with its prepaid card issuance plan, including the planned number, total amount, and types of cards to be issued. competent authorities must conduct thorough, substantive reviews of applications to ensure compliance with all statutory standards, followed by registration through legal procedures. crucially, registration information should be publicly disclosed to broaden consumer access to data, empowering them to make informed choices. this approach effectively mitigates financial loss risks, curbs fraudulent activities, and fosters a secure and reliable consumer environment. 4.3.2.2 model contract for prepaid consumption in prepaid consumption, certain standard terms set by merchants often place consumers at a disadvantage. it is essential to restrict the application of standard terms in prepaid consumption contracts, prevent the abuse of such terms, and standardize model texts for prepaid consumption contracts. taiwan’s regulations on matters to be included and prohibited in standardized contracts for commodity (service) vouchers specifically targets standard clauses in prepaid consumption www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 313 contracts. it enumerates eight prohibited clauses tailored to address prominent issues in market practice and the unique characteristics of such contracts. these provisions are highly targeted and practical, aiming to shield consumers from unfair contract terms. therefore, china can draw upon these provisions to regulate the use of standard clauses in prepaid consumption contracts. this includes promoting standardized contract terms, strengthening oversight and regulation of standard contracts, enhancing operators’ credit ratings and guarantee requirements, and encouraging greater participation from financial institutions like banks in the supervision and services related to prepaid consumption (zhao, l. l., 2024). 4.3.2.3 safeguarding funds in prepaid consumption in prepaid consumption, instances of merchants absconding with funds occur frequently, infringing upon consumers’ property rights. therefore, regulatory oversight of prepaid funds must be strengthened to safeguard capital security in such transactions. a risk guarantee fund system should be established, mandating operators to pre-deposit a specified percentage of funds with regulatory authorities. this ensures immediate compensation for consumers’ legitimate rights should businesses suddenly cease operations or abscond. additionally, building a robust debt fulfillment guarantee mechanism is crucial for the prepaid consumption market, involving the creation of an effective guarantee system. specific implementation plans could explore involving third-party guarantee companies or establishing a dedicated prepaid consumption guarantee fund to provide robust protection for consumer prepayments. building upon this foundation, supervision and review of participating guarantee institutions should be strengthened to ensure their capital adequacy ratios and guarantee effectiveness are authentic and reliable, thereby maintaining the stability of the prepaid consumption market and consumer confidence. 4.3.2.4 establish an effective credit supervision mechanism due to the lack of an effective credit supervision mechanism, some businesses may exploit the prepaid consumption model to engage in fraudulent activities. it is imperative to establish and improve a robust credit supervision mechanism to impose severe penalties on dishonest merchants (liu, t. y., 2021, pp. 138-140). during the regulatory process, a comprehensive oversight chain should be established to cover the entire operational lifecycle of market entities, encompassing preemptive prevention, mid-term monitoring, and post-incident handling. this chain integrates multiple measures such as credit assessment, continuous supervision, and penalties for dishonesty to ensure merchant compliance while fully protecting consumer rights. first, implement a tiered credit classification management system: based on existing laws, regulations, and local rules, industry regulators at all levels should incorporate prepaid consumption activities into their credit management frameworks, implementing stratified classification management of business credit. this approach not only expands the application scope of credit systems but also promotes the practical use of credit evaluation results in regulatory scenarios. second, promote transparency in industry integrity commitments: collaborate with industry associations and societal resources to encourage prepaid service providers to publicly pledge honest www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 314 operations. simultaneously, issue risk warnings for prepaid top-ups to guide consumers toward rational recharging, fostering a market atmosphere of integrity. finally, clarify and strengthen operator responsibilities: enhance the disclosure of credit information for prepaid consumption operators, including service evaluations and customer complaint records, to improve transparency. by analyzing complaint hotspots and issues within the prepaid consumption sector, promptly identify emerging risks. utilize cross-departmental rapid response mechanisms to effectively prevent and resolve potential problems, thereby safeguarding market order and social stability. 4.3.3 improving consumer remedies in prepaid consumption currently, the consumer rights protection mechanism in china’s prepaid consumption market remains inadequate. when facing infringement, consumers often encounter difficulties in filing lawsuits and providing evidence, significantly increasing the cost of seeking redress through judicial channels. to ensure consumers can effectively exercise their right to sue and maximize judicial fairness, it is imperative to improve existing consumer rights remedies. 4.3.3.1 expand the application of the reversal of the burden of proof according to article 64 of the civil procedure law of the people’s republic of china, it is evident that china generally adopts the principle of “he who asserts must prove” in civil litigation. however, this burden of proof is highly disadvantageous to consumers in prepaid consumption arrangements, who are often in a disadvantaged position. they frequently face greater risks of losing lawsuits due to an inability to meet the burden of proof. therefore, the application of the reversal of the burden of proof should be expanded in the field of prepaid consumption to meet the needs of redressing the rights of prepaid consumers. business operators bear the responsibility to clearly present and explain the terms of their standard form contracts to consumers. this is a fundamental requirement for ensuring transaction transparency and fairness. in the event of a consumer dispute, particularly concerning the validity of standard form clauses, the burden of proof should rest with the business operator to demonstrate that they fully fulfilled their duty to disclose and explain the terms during the contract formation stage. similarly, in cases involving the leakage of consumer personal information, operators must also demonstrate that they have implemented reasonable protective measures to safeguard such data. by imposing a heavier burden of proof on operators in prepaid consumption disputes, we can not only effectively deter potential unfair commercial practices but also promote a balanced distribution of rights and obligations between parties. this approach provides stronger judicial protection for prepaid consumers and ensures a fair and reasonable dispute resolution mechanism. 4.3.3.2 improve the punitive damages system article 55 of the consumer rights protection law of the people’s republic of china stipulates that when operators engage in fraudulent conduct, they shall compensate consumers for their losses at the consumers’ request. however, it does not explicitly establish the principle of punitive damages in the prepaid services sector. moreover, the prerequisite for compensation under this provision is the operator's fraudulent conduct, which is clearly insufficient to protect consumers’ legitimate rights and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 315 interests in prepaid consumption. compensation standards exceeding actual losses should be established based on factors such as the severity of the merchant’s fault, the extent of consumer harm, and societal impact. this would increase the cost of illegal conduct and effectively deter unscrupulous operators. furthermore, the scope of application should be broadened beyond fraud. serious violations of consumer rights—such as gross breaches of contract, intentional concealment of critical information, or provision of false advertising—should also fall under the purview of punitive damages. 4.3.3.3 improve the dispute resolution mechanism first, establish a prepaid consumption dispute mediation center as the primary platform for resolving disputes between consumers and businesses. this center should be staffed with a mediation team comprising experts from multiple fields, including law, commercial mediation, and psychology, to ensure the professionalism and impartiality of the mediation process. this will enable swift and fair resolution of disputes between consumers and businesses, reduce the cost of consumer rights protection, and enhance the efficiency of dispute resolution. second, optimize court litigation procedures by establishing a fast-track system for small-value prepaid consumption disputes. this system should provide convenient case filing services, allowing consumers to swiftly submit lawsuit materials through an online filing system, thereby reducing on-site waiting times. cases will be assigned to judges specializing in small claims, processed under simplified procedures to minimize unnecessary court formalities and accelerate adjudication. judges will issue rulings within a short timeframe to ensure consumers receive timely legal remedies. furthermore, the expedited small claims channel will establish a corresponding enforcement mechanism to ensure court judgments are swiftly executed, effectively protecting consumer rights. by establishing specialized mediation bodies and streamlining small claims procedures, an efficient and convenient dispute resolution system for prepaid consumption can be built. this will effectively alleviate the difficulties consumers face in protecting their rights and promote the healthy development of the market. 5. conclusion in recent years, prepaid cards have gained significant favor among merchants due to their ability to accelerate cash flow and stabilize customer bases. they have also attracted numerous consumers through advertised promotional benefits. unlike traditional instant-exchange consumption models, prepaid consumption innovatively separates monetary payment from goods acquisition. particularly in recent years, with the integration of internet third-party platforms and mobile payment technologies, this model has further evolved, showcasing a new consumption form that merges online and offline channels. this signals immense development potential and expansion space within the prepaid consumption sector. however, due to incomplete laws and regulations in china, inadequate oversight of prepaid consumption, and difficulties for consumers in protecting their rights, operators in this sector face insufficient constraints. this has led to violations of consumers’ legitimate rights and interests, including the right to property security, freedom of choice, personal privacy, and the right to know. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 316 this thesis focuses on safeguarding consumers’ legitimate rights and interests in prepaid consumption. drawing on consumer protection experiences from the united states and japan. it proposes optimizing the legal framework for consumer rights protection by clarifying the legal status of prepaid consumption contracts and strengthening special protective measures for consumers. a regulatory model for consumer rights protection is constructed through establishing an access system for prepaid consumption, standardizing contract texts, and implementing effective credit supervision mechanisms. and by enhancing redress avenues for consumers through the introduction of a reversal of the burden of proof in prepaid consumption cases and the refinement of compensation mechanisms. these three measures form the basis for recommendations to improve consumer rights protection in china’s prepaid consumption sector. it is hoped that these measures will better safeguard the legitimate rights and interests of consumers in prepaid consumption, promote the stability of china’s prepaid consumption market order, thereby contributing to the sound operation of the market and supporting economic development. references jia, y. w. (2022). research on the current status of consumer rights protection in prepaid consumption and legal countermeasures. shanghai business, 2022(12), 19-21. lei, y. z. (2021). a brief analysis of consumer rights protection in prepaid consumption. china market regulation research, 2021(11), 78-80. liu, t. y. (2021). credit regulation: an effective pathway for standardizing prepaid consumption. people’s forum: academic frontiers, 2021(22), 138-140. shi, x. y., & zhong, y. (2015). consumer rights protection in prepaid consumption in china. journal of daqing normal university, 35(02), 42-46. su, h. p. (2013). research on several major issues in the revision of the consumer rights protection law. western law review, 2013(02), 1-7. wang, b. (2014). on deepening consumer right to information in prepaid consumption and its institutional safeguards. journal of north china university of water resources and electric power (social sciences edition), 30(05), 106-109. wang, j. w. (2012). legal regulation of prepaid consumption models in china. legal science (journal of northwest university of political science and law), 30(05), 146-155. wen, h. s., & mao, w. (2023). a brief analysis of consumer rights protection issues in prepaid consumption [c]//2023 outstanding achievements in market regulation and administrative law enforcement theory and practice research. hangzhou gongshu district market supervision administration; 2023:8. xiong, w. m. (2010). consumer rights protection in prepaid consumption models: a perspective from the consumer rights protection law. commodities and quality, 2010(s4), 3. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 317 xu, h. y. (2022). legal regulation of prepaid consumption in cases of business closure without refunds. people’s forum, 2022(02), 88-91. zhao, l. l. (2023). holistic smart governance: the practical logic and implementation pathways for innovating grassroots governance models—taking zhejiang province’s “comprehensive integrated” administrative law enforcement reform as an example. local governance research, 2023(01), 12-24, 78. zhao, l. l. (2024). “government-market-society” triple-wheel drive: implementation pathways for prepaid consumption governance [j/ol]. administration and law, 1-15 [2024-05-09]. http://114.132.171.93:8085/kcms/detail/22.1235.d.20240416.0912.002.html zheng, l., & xiong, y. (2012). determining the validity of non-refundable balance clauses in prepaid service consumption contracts. people’s judiciary, 2012(22), 21-24. microsoft word elp-v2n2-p224 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 2, 2019 www.scholink.org/ojs/index.php/elp 224 original paper “trump tariffs”: to establish an american-style multilateralism model? yikai wu1* 1 international economic law, city university of hongkong, hongkong, china * yikai wu, international economic law, city university of hongkong, hongkong, china received: october 20, 2019 accepted: october 30, 2019 online published: november 5, 2019 doi:10.22158/elp.v2n2p224 url: http://dx.doi.org/10.22158/elp.v2n2p224 abstract one of the goals of the world trade organization is to ensure free and fair trade around the world. bound tariff rate and most-favored-nation treatment are two basic principles in wto law, which should be applied and observed among wto members. the implementation of “trump tariffs” has resulted in a “trade war between china and other countries”, which undoubtedly constitutes a violation of wto principles, including violation of bound tariff rates and most-favored-nation treatment. at present, the united states is still one of the major setters of the world’s rules, and its every measure has an impact on the whole world. in addition to opposition from around the world, the trump administration’s move to impose tariffs has been criticized by most local economists and lawyers. to achieve fair and free trade, the trump administration should end the implementation of trump tariffs and fulfill its obligations in global multilateral trade and the wto. keywords trump tariffs, bound tariff rates, most-favored-nation treatment 1. introduction in january 2018, donald trump imposed tariffs on solar panels of 30 percent and washing machines of 50 percent. then later, he imposed tariffs on steel of 25 percent and aluminum of 10 percent from most countries all around the world. and also on july 6, the trump administration imposed a tariff of 25% on 800 types of commodities imported from china which is worth 50 billion dollars. all these measures donald trump has taken during his presidency regarding tariffs are called “trump tariffs”. in this article, we will mainly focus on the tariffs on steel and aluminum and find whether these tariffs constitute a violation of wto rules. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 225 published by scholink inc. in response to the tariff measures on steel and aluminum, many countries implemented retaliatory tariffs on american commodities. canada imposed its retaliatory tariffs on july 1, 2018 firstly. immediately after, china implemented tariffs equal to the 34 billion dollars tariff imposed by america on american goods. european union imposed tariffs on 180 categories of goods, over 3 billion dollars of american commodities for retaliation. and also, mexico implemented retaliatory tariffs which entered into effect on june 5 on 3 billion dollars of american commodities. although the 25% steel tariff is applied to countries all around the world, there are still four countries which have negotiated a permanent exemption from the steel tariff with the trump administration successfully. they are south korea, argentina, australia and brazil. there is no doubt that “trump tariffs” has a profound and comprehensive influence on international trade, also on wto law. many countries have already submitted their challenges to the tariffs before wto, including canada and the eu. they take stock in that what the u.s. has done is a violation of its wto obligations. they complain america has promised to limit its tariffs on steel to 0 percent and to limit its tariffs on aluminum to between 0 and 6 percent on average. secondly, they complain that the tariffs on steel and aluminum imposed by the u.s. have been applied to most countries in the world but not to four countries we mentioned above. we can summarize that the “trump tariffs” may have violated two fundamental principles in wto law: one is “bound tariff rate” and the other is “most favored nation” (mfn) treatment. 2. bound tariff rate the wto applies itself to the removal or reduction of trade barriers. one of the most important trade barriers is tariff. bound rate is the maximum rate of tariff that can be imposed by the importing country on an imported commodity. it is the mfn tariff rate rooting in negotiations under the gatt and is generated as a whole to become a country’s schedule of concessions to other wto members. and no member country can raise its tariffs above the bound rate it has committed, that is to say, tariff rates actually applied must be lower than the bound rate. if a member raises its tariff rate higher than the bound rate it committed, other countries which are disadvantageously affected can seek remedy from the wto and obtain the right to retaliate or to receive compensation. so there is another tariff rate called applied rate which is different from bound rate. the bound rate regulated in the schedule of concessions is the rate promised by wto members that they will never exceed the tariff ceiling. the applied rate is the rate regulated in tariff schedules of each country and also, actually applied. there are various applied tariff rates imposed by countries all around the world. these rates vary from country to country and commodity to commodity. the principle of bound tariff rate is regulated in article ii of the gatt. there is a three-step test to see whether a tariff measure imposed is inconsistent with wto bound rate principle. first, whether the treatment given to the commodities regarding the dispute is regulated in the schedule of concessions; second, whether the treatment given to the commodities regarding the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 226 published by scholink inc. dispute is related to the measures taken by the respondent country; and third, whether these measures give rise to less favorable treatment of the commodities regarding the dispute than the respondent country committed in the schedule of concessions and particularly, whether these measures give rise to the imposition of tariffs on the commodities regarding the dispute in excess of the respondent country promised in the schedule of concessions. in short, if the tariff rate applied by the country is higher than the rate regulated in the schedule, there is a violation of the bound tariff rate principle and definitely it can constitute a violation of wto law. just as we mentioned above, the tariffson steel of 25 percent and aluminum of 10 percent imposed by the trump administration have been applied to most countries in the world. but previously, america promised to impose restrictions on its tariffs on steel and aluminum to a reasonable level. there is no doubt the implementation of “trump tariffs” on steel and aluminum is a violation of bound rate principle. 3. mfn treatment the “most-favored-nation” (mfn) principle has been called the “cornerstone” principle of gatt for many years. the clause of it has also been included in the gatt, which prohibits discrimination among wto members in regards to tariffs and other charges as well as domestic taxes. mfn treatment which has been a fundamental pillar of trade policy has a long history. although the word first appeared in the seventeenth century, it can be traced back to the twelfth century. america included the mfn treatment clause in its 1778 treaty with france. from then on, the mfn treatment clause was included continually in various treatiesin the following centuries. and finally, after the second world war, the clause of mfn treatment was regulated in the gatt, which became a general principle in a number of multilateral trade agreements. in wto, if a member country accords the most favorable treatment to the product of the third country at the time of importation or exportation, the member country should accord the most favorable treatment to the like product of other member countries immediately and unconditionally. the requirements above regulated in gatt articleiis mfn treatment. under the mfn treatment obligation in wto law, if country a which is a wto member has an agreement with country b, which need not necessarily be a wto member, to reduce the tariff on product c, the same tariff should be applied to all other wto members on like product of product c immediately and unconditionally. in a word, if a member accords favorable treatment to a country in regards to a particular issue, it must give all other members the same treatment in regards to the same issue. the question is how we can identify a conduct implemented by a country constitutes a violation of mfn treatment. like the standard of the bound tariff rate, there are three steps to identify whether it constitutes a violation. first, whether there is an advantage, favor, or privilege and so on. second, whether the advantage is offered to all like products of other members. third, whether the advantage is offered immediately and unconditionally. if a conduct implemented by a country is inconsistent with www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 227 published by scholink inc. the requirements above, it constitutes a violation of mfn treatment. coming back to the trump tariffs, we can see the trump administration imposed tariffs on steel of 25 percent and aluminum of 10 percent from most countries, including canada, european union, mexico, china and so on. only four countries in the world are exempted from these tariff measures. they are south korea, argentina, australia and brazil. so many countries have already challenged to the tariffs before wto with arguments that america has violated wto fundamental rules, such as mfn treatment. we can see, in accordance with the standard we mentioned, there definitely exists an advantage that four countries are exempted from the tariff policies on steel permanently. and of course, the advantage is not offered to all like products (steel and aluminum) of other countries in the world axiomatically including these countries which are wto members. let alone the third step, whether the advantage is offered immediately and unconditionally. so we can draw the conclusion that the imposition of “trump tariffs” on steel and aluminum by the u.s. constitutes a violation of “most favored nation” (mfn) treatment in wto rules. 4. conclusion bound tariff rate and mfn treatment which are two fundamental principles in wto law should be applied and observed among wto members. indeed, one purpose of the wto is to ensure the free trade and fair trade all around the world. through making schedule of concessions to identify the bound tariff rate, encouraging member countries to negotiate with each other to realize mutual beneficial tariff reductions, heartening members to accord most-favored-nation treatment to each other to ensure the fair trade and eliminate trade barriers, wto devotes itself to establishing the energetic multilateral trading system and making it fair and free. with the increasingly rapid economic globalization and urbanization, wto plays a significant role in the economic harmonization and integration. the imposition of “trump tariffs”, not only on steel and aluminum but on solar panels and washing machines and also on chinese products, which has already given rise to the “china-united states trade war”, has definitely constituted a violation of wto principles, including the violation of bound tariff rate and mfn treatment. at present, the united states is still one of the main constitutors of the world’s rules, and its every measure has an impact on the whole world. in the field of multilateral trade, on the one hand, through the tax reduction policies implemented by the trump administration, the goods of the united states can be exported to other countries at a relatively low price, which will have adverse impacts on the domestic economy of other countries; on the other hand, if america imports products from other countries with a high tariff, the commodities from these countries will suffer a huge loss in american market. and also, automatically, countries like china will impose higher retaliatory tariffs on imports from the united states. if so, it could give rise to global trade wars. such a situation is definitely harmful to the fair and free trade all around the world. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 228 published by scholink inc. besides the opposition from all around the world, the actions of tariffs imposed by the trump administration were also criticized by most native economists and lawyers. for the purpose of realizing fair and free trade, the trump administration should terminate the implementation of the “trump tariffs” and perform its obligations properly in multilateral trade all around the world and also, in wto. reference brazil v european communities. (2005). 1 pr31. davide, s., philipp, s., & erdal, y. (2010). market access through bound tariffs. sjpe, 57, 274. https://doi.org/10.1111/j.1467-9485.2009.00518.x european communities v indonesia. (1998). pr, 4, 366. general agreement on tariffs and trade. (1947a). c. 1. general agreement on tariffs and trade. (1947b). c. 2, s.1. groppo, v. (2014). tariff reduction and the wto. wfr, 115. jacob, s. (2018). global trade tensions rise—trump’s tariffs spark criticism. wall street journal (eastern edition), 1. kevin, s. (2018). trump’s tariffs disrupt trade web. nhf, 330. lori, w. (2018). the business impact of trump tariffs. rm, 65, 20. oleksandr, s., & david, t. (2013). impact of wto accession on the bound and applied tariff rates of russia. ree, 51, 30. https://doi.org/10.2753/eee0012-8775510501 paul, d. (2018). trump’s tariffs. usa today, 1. phil, g. (2018). trump tariffs and the protectionist temptation. wall street journal, 15. ponnuru, r. (2018). trump’s tariff mistake. nr, 70, 16. https://doi.org/10.21557/dsp.51166722 taylor, w. (2008). most favored nation treatment and wto dispute resolution. irl, 50, 462. wisarut, s. (2016). the role of the most favored nation principle of the gatt/wto in the multilateral trade. jwi, 14, 988. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 99 original paper analysis of strategies and performance based on the background of amazon company xiaoxu zhang 1 1 anhui sanlian university, hefei, 230000, anhui, china received: may 1, 2024 accepted: may 25, 2024 online published: may 27, 2024 doi:10.22158/elp.v7n1p99 url: http://dx.doi.org/10.22158/elp.v7n1p99 abstract this study examines amazon’s financial performance and strategic management practices. amazon’s growth and innovation significantly influence the market, making its financial management crucial for understanding its competitive advantage. the study employed quantitative analysis methods to analyze financial data, evaluate market strategies, and conduct swot and risk analyses. the analysis revealed amazon’s steady growth in recent years but highlighted areas for improvement in profitability and operational efficiency. recommendations include enhancing operational efficiency, optimizing pricing strategies, and strengthening customer loyalty. data was collected from amazon’s annual reports and financial statements. the findings reveal amazon’s robust sales growth but highlight challenges in profitability and efficiency. key areas include segment analysis, profitability ratios, and liquidity ratios. despite these challenges, amazon’s strategic investments and market positioning remain strong. the study underscores the importance of amazon’s strategic investments in areas such as amazon web services (aws) and logistics. understanding amazon’s financial management provides valuable insights for businesses and policymakers seeking to enhance their competitiveness in the digital economy. keywords amazon, financial performance, market strategy, competitive position, swot analysis, risk analysis www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 100 1. literature review prior literature provides valuable insights into amazon’s financial performance, strategic management, and competitive position. research by scholars such as stone and doss (2019) has emphasized the impact of amazon’s innovative strategies on its market dominance and the challenges it faces in maintaining profitability (stone & doss, 2019). furthermore studies by smith et al. (2018) have examined the evolution of amazon’s business model and its implications for the e-commerce industry (smith et al., 2018). these studies underscore the significance of analyzing amazon’s financial management and market strategies to understand its competitive advantage and industry influence. moreover, research by chen and lee (2020) has highlighted the role of operational efficiency and pricing strategies in shaping amazon’s competitive position. the literature emphasizes the need to enhance operational efficiency and optimize pricing strategies to improve profitability and customer loyalty. additionally, studies by johnson and patel (2017) have explored the impact of strategic investments, such as amazon web services (aws), on amazon’s market positioning and long-term growth prospects. by integrating insights from prior literature, this study aims to build upon existing knowledge and contribute to a comprehensive understanding of amazon’s financial performance, market strategies, and competitive position. the incorporation of relevant literature provides a foundation for analyzing amazon’s strategies and performance in the context of contemporary business trends and industry dynamics. 2. introduction amazon, founded by jeff bezos in 1994, has grown into a global e-commerce and cloud-computing powerhouse. its customer-centric approach and innovative business model have revolutionized the retail industry. amazon’s growth and dominance in the e-commerce and cloud computing industries have reshaped traditional business models. this study aims to analyze amazon’s financial performance, market strategies, and competitive position to identify key success factors and areas for improvement. by examining amazon’s strategies and performance, this study contributes to the understanding of effective business strategies in the digital age and provides insights for businesses seeking to enhance their competitiveness. analyze amazon’s financial performance through key metrics. evaluate amazon’s market strategies, including product, pricing, place, and promotion strategies. conduct a swot analysis to identify amazon’s strengths, weaknesses, opportunities, and threats. perform a risk analysis to identify key operational, financial, regulatory, competitive, and cyber security risks faced by amazon. amazon was established by jeff bezos in july 1994. amazon.com is an international e-commerce company that belongs to business-to-customers (b2c) and online auctions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 101 3. research methods this study employed a quantitative analysis approach to thoroughly analyze amazon’s financial data and evaluate its market positioning and competitive strategies. the analysis included examining key financial metrics such as profitability, efficiency, liquidity, and gearing ratios. to assess amazon’s market strategies, the study examined its product, pricing, place, and promotion strategies. this analysis was conducted by reviewing amazon’s financial reports, market research studies, and industry publications. furthermore, the study utilized swot analysis to identify amazon’s strengths, weaknesses, opportunities, and threats. this analysis helped in understanding amazon’s competitive position in the market and its potential for future growth. additionally, a risk analysis was conducted to identify and evaluate key operational, financial, regulatory, competitive, and cybersecurity risks faced by amazon. this analysis provided insights into the challenges that amazon may encounter in its business operations. overall, the research methods employed in this study aimed to provide a comprehensive analysis of amazon’s strategies and performance, aiming to reveal the key factors to its success. 4. results 4.1 financial performance amazon’s financial performance has shown a consistent increase in sales over the past five years (amazon.com, 2016). however, net profit has remained relatively unchanged, reflecting the company’s strategy of using profitable business lines to subsidize less profitable ones. this section delves into key financial metrics, including profitability, efficiency, liquidity, and gearing ratios. figure 1. net income figures (2011-2015) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 102 in terms of profitability, despite a steady increase in sales, amazon’s profitability has not met expectations. the operating profit margin (figure 1) decreased from 1.79% in 2011 to 0.20% in 2014 before rising to 2.09% last year (phx.corporate-ir.net, 2016). this fluctuation is attributed to lower customer prices, increased sales costs, and higher marketing and advertising expenses. regarding efficiency, amazon’s total asset turnover ratio (table 1) slightly decreased from 1.66 in 2011 to 1.32 in 2015 (phx.corporate-ir.net, 2016), reflecting the high operating costs associated with the company’s capital investments. inventory turnover (table 1) shows a downward trend from 8.34 to 7.73 during the last four years (amazon.com, 2016), but still exceeds the ratio in 2011. increase the sale of stored goods, which requires a lot of investment in the risk of amazon inventory, which to some extent affects the turnover. indicating increased risk in inventory management. table 1. company amazon efficiency ratios (2011-2015) 2015 2014 2013 2012 2011 total assets turnover 1.32 1.48 1.68 1.79 1.66 fixed asset turnover 4.09 5.02 6.76 9.02 9.51 inventory turnover 7.73 7.99 8.06 8.34 7.47 days receivables 29.58 29.23 28.57 26.93 22.34 about liquidity, the current ratio fell from 1.12 in 2014 to 1.08 in 2015 (phx.corporate-ir.net, 2016), while the quick and cash ratios also showed a downward trend. these decreases are primarily due to amazon’s suppliers paying higher prices, impacting the company’s liquidity. figure 2. liquidity analysis of amazon (2011-2015) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 103 table 2. the ratios of capital and liabilities (2011-2015) 2011 2012 2013 2014 2015 gearing ratio 25.28 39.56 43.27 59.34 57.57 tnterest coverage 13.26 7.35 5.28 0.85 4.86 leverage 3.26 3.97 4.12 5.07 4.89 compound leverage factor 3.50 4.51 4.90 11.06 5.89 as for capital and liabilities, the gearing ratio (table 3) increased from 25.28% in 2011 to 59.34% in 2014, stabilizing in 2015 (phx.corporate-ir.net, 2016). this rise is linked to increased bank loans for acquisitions and long-term debt. the interest coverage ratio (graph 3) improved significantly from 0.85 in 2014 to 4.86 in 2015, reflecting increased profits. 4.2 market analysis amazon’s market strategies have been characterized by several key approaches. firstly, its product strategy, which includes a diverse range of products, has been pivotal in driving revenue growth (perez, 2016). secondly, its pricing strategy, which is oriented towards attracting customers, has played a significant role in increasing market share (perez, 2016). thirdly, amazon’s distribution strategy, facilitated by a network of over 100 distribution centers, has optimized delivery efficiency (streitfeld, 2016). finally, the company’s promotion strategy, which includes various tactics such as bundling sales and special offers, has been instrumental in driving sales growth (perez, 2016). collectively, these strategies have enabled amazon to maintain its competitive edge and expand its market reach. amazon operates in a highly competitive global market, offering a diverse range of products and services including online retail, advertising, and cloud computing. the company’s product strategy is centered around prime memberships, marketplace, and amazon web services (aws), all of which have contributed significantly to its revenue growth. for instance, prime membership experienced a 51% growth in 2015 (phx.corporate-ir.net, 2016), enhancing customer loyalty through exclusive benefits. in terms of pricing strategy, amazon adopts a customer-oriented approach by providing competitive prices and frequently adjusting them to attract more customers. for example, prime membership, priced at $99 per year, offers free two-day shipping among other benefits. amazon’s place strategy is supported by an extensive global network of over 100 fulfillment centers strategically located in high-population areas to ensure efficient delivery services worldwide. furthermore, amazon employs various promotional tactics such as product bundling and special deals to drive sales. its annual prime day event has emerged as a significant sales driver, even surpassing traditional shopping events like black friday in terms of revenue. these strategies collectively reinforce amazon’s competitive position and enable it to maintain a strong presence in the global market. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 104 4.3 strategic analysis amazon’s strategic initiatives have been crucial in maintaining its competitive edge in the e-commerce and cloud computing sectors. this section explores the company’s strengths, weaknesses, opportunities, and threats (swot analysis), along with a discussion of its core competencies and strategic objectives. amazon’s strategic initiatives have been pivotal in sustaining its competitive advantage in the e-commerce and cloud computing industries. the company’s strengths lie in its diverse product range, customer-oriented pricing strategies, extensive global network of fulfillment centers, and innovative promotional tactics. however, amazon faces weaknesses such as potential overreliance on the online retail sector and regulatory challenges in various markets. despite these challenges, amazon has identified opportunities for growth, including the expansion of its prime membership program, further penetration into emerging markets, and continued innovation in its product and service offerings. the company also faces threats such as increasing competition, cyber-security risks, and regulatory scrutiny. amazon’s core competencies include its strong brand image, technological innovation, and customer-centric approach. the company’s strategic objectives focus on further expanding its market reach, enhancing customer loyalty, and driving innovation in its operations. through these strategic initiatives, amazon aims to maintain its position as a leader in the e-commerce and cloud computing industries. 4.4 risk analysis risk analysis is a critical aspect of amazon’s strategic planning to maintain its market position and ensure sustainable growth (streitfeld, 2016). the company faces several key risks across different areas: in terms of operational risks, amazon’s vast and complex supply chain is vulnerable to disruptions from natural disasters, geopolitical tensions, and logistical challenges. to mitigate these risks, amazon invests heavily in advanced logistics technologies such as robotics and ai. the company also maintains a diversified network of suppliers and distribution centers to ensure continuity of operations. considering financial risks, fluctuations in currency exchange rates, interest rates, and economic conditions can impact amazon’s financial performance. to manage these risks, amazon employs hedging strategies and maintains a diversified revenue stream. additionally, the company closely monitors and adjusts pricing strategies to mitigate the impact of economic fluctuations. in regulatory and legal risks, amazon as a global company, must comply with a wide range of regulations across different markets. changes in tax laws, data protection regulations, and trade policies can pose significant risks. amazon addresses these risks by proactively engaging with regulatory bodies and investing in compliance programs to ensure adherence to relevant laws and regulations. as for competitive risks, the e-commerce and cloud computing industries are highly competitive, with new entrants and technological advancements constantly emerging. to stay ahead of the competition, amazon invests heavily in research and development to innovate its product and service offerings. the company also focuses on enhancing customer experience and building strong customer www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 105 relationships to maintain its competitive edge. in terms of cybersecurity risk, given the vast amount of data handled by amazon, cybersecurity is a major concern. the company employs robust security measures, including encryption, multi-factor authentication, and regular security audits, to protect customer data and maintain trust. in conclusion, amazon’s risk management strategies are integral to its overall business strategy, enabling the company to navigate various challenges and maintain its position as a leader in the e-commerce and cloud computing industries. 5. conclusion amazon has effectively utilized its strategic approach to secure a robust market position and achieve consistent sales growth. the results indicate amazon’s success in recent years but also highlight challenges. areas for improvement include profitability and operational efficiency. the findings are consistent with previous research on amazon’s strategies and performance, emphasizing the importance of customer centrality and innovation. while strategic investments in amazon web services (aws) and logistics infrastructure have significantly contributed to its performance, cost management remains a critical focus area. the results contribute to the understanding of effective business strategies in the digital age and provide insights for businesses seeking to enhance their competitiveness. future research could delve deeper into strategies to enhance amazon’s financial performance particularly in terms of increasing net profit margins and optimizing operational efficiency (calantone et al., 1995). additionally, exploring the impact of emerging technologies, such as ai and blockchain, along with evolving market trends, like the rise of mobile commerce and sustainability initiatives, could provide valuable insights for amazon’s long-term sustainability and growth. what’s more, future research could explore qualitative factors such as customer satisfaction and brand perception to provide a more comprehensive analysis of amazon’s strategies and performance. references again. 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(2012). scientific productivity of oecd countries in dermatology journals within the last 10-year period. international journal of dermatology, 51(6), 665-671. https://doi.org/10.1111/j.1365-4632.2011.05112.x the economic times. (2016). amazon launches “global store” in india—the economic times. [online] received november 18, 2016, from http://economictimes.indiatimes.com/industry/services/retail/amazon-launches-global-store-in-indi a/articleshow/54838517.cms treanor, t. (2010). amazon: love them? hate them? let’s follow the money. publishing research quarterly, 26(2), 119-128. https://doi.org/10.1007/s12109-010-9162-7 https://doi.org/10.18267/j.cebr.82 https://doi.org/10.1111/j.1365-4632.2011.05112.x https://doi.org/10.1007/s12109-010-9162-7 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 64 original paper study on compensation for illegal administrative expropriation guoxin li 1* & shengnan zhou 1 1 college of ocean law and humanities, dalian ocean university, liaoning, dalian, 116000, china * corresponding author received: march 20, 2025 accepted: april 8, 2025 online published: april 10, 2025 doi:10.22158/elp.v8n1p64 url: http://dx.doi.org/10.22158/elp.v8n1p64 abstract according to the current legislative system, when expropriating collective land and immovable property owned by right holders, it is necessary to legally fulfill the obligation of compensation. the legislative body has constructed a comprehensive institutional framework covering the entire process from expropriation decisions, compensation and resettlement to compulsory enforcement through both substantive and procedural law dimensions. however, in the rapid urbanization process, administrative law enforcement departments frequently engage in demolition actions that exceed their statutory authority, leading to serious infringements on the legitimate rights and interests of property right holders. notably, the current provisions of the state compensation law still suffer from issues of vague regulation and institutional lag, making it difficult to effectively address disputes arising from illegal forced demolitions——the law lacks clear guidance on key aspects such as defining the scope of compensation and applying calculation standards, resulting in “different judgments for similar cases” in judicial practice. more alarming is that some judicial bodies blur the legal boundaries between administrative compensation and judicial compensation, improperly applying compensation standards to handle compensation disputes, thereby depriving the aggrieved parties of their statutory right to comprehensive relief. this article focuses on the judicial recognition criteria for illegal forced demolitions, systematically analyzes the normative deficiencies in institutional operations, and proposes practical legal improvement suggestions. keywords administrative expropriation, illegal forced demolition, administrative compensation www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 65 published by scholink inc. 1. introduction 1.1 the nature of compensation for illegal administrative expropriation and forced demolition in the issue of identifying the nature of illegal forced demolition in administrative expropriation, there is a significant divide between academia and practice. notably, there is currently no clear legal definition for the term “demolition” in china (wang, y. l. & he, s. h., 2007, p. 159), leading to its tendency to be overgeneralized in practice. it seems that all acts of demolishing houses can be categorized as demolition. in this context, some judicial practices mechanically classify illegal forced demolitions by administrative agencies as administrative expropriation, thereby applying expropriation compensation standards in judgments. this approach essentially blurs the essential differences between illegal administrative actions and lawful expropriation, thus limiting right holders to seeking redress only through expropriation compensation procedures, rather than fully restoring their rights through the administrative compensation system. the second opinion is that government expropriation is an illegal act that severely infringes upon the legitimate interests of those being expropriated, constituting an administrative tort. in judicial practice, many courts often recognize illegal forced demolitions as administrative torts and order administrative agencies to compensate for direct damages they have caused. the author believes that during the implementation process, the rights of those being relocated have been infringed upon, and this should be categorized as administrative infringement rather than administrative expropriation. the essential characteristic of administrative violations lies in the infringement of the legitimate rights and interests of the parties involved by the administrative authority in the exercise of its powers. the legal concept must meet three core criteria: first, the acting entity must be a qualified agency exercising administrative power; second, there must be flaws in the implementation process that violate statutory requirements; third, the outcome of the action must result in damage to the statutory rights of the administrative counterpart. focusing on the field of real estate expropriation, china’s current regulatory system has established a strict mechanism for configuring expropriation powers through laws such as the land management law and its accompanying administrative regulations, as well as special legislation like the regulations on the expropriation and compensation of houses on state-owned land. it is particularly important to note that according to the exclusive authorization clauses clearly stipulated in these legal norms, only the state council and provincial governments and other statutory expropriation entities can legally carry out real estate expropriation actions. civil subjects who act without authorization will directly constitute an infringement of rights. therefore, unless there is clear evidence showing that the corresponding civil subject violated the will of the administrative body or acted without knowledge, it should be presumed first that the administrative agency carried out the illegal forced demolition. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 66 published by scholink inc. 1.2 criteria for judging the illegality of administrative expropriation and demolition the litigation procedures for administrative compensation do not recognize illegality; therefore, the person whose property has been demolished must first go through administrative litigation or administrative reconsideration to determine its illegality. thus, in the legal relationship of administrative expropriation, the determination of the illegality of forced demolition is a prerequisite for subsequent compensation disputes. from the perspective of judicial review, the judicial determination of the illegality of forced demolition during the expropriation process directly determines the ultimate direction of rights relief for administrative counterparts. only after the judicial authority accurately defines the legal nature of the demolition (whether it is a lawful expropriation procedure or an unlawful infringement) can it determine whether to apply the standards for administrative compensation, specify the scope of compensation, and calculate the method. the rigor of this legal logic chain directly affects the realization and value balance of the state compensation system in the field of expropriation. the state compensation law does not make clear provisions on how to identify the illegality of administrative organs’ illegal forced demolition. the author believes that the illegality of forced demolition can be defined from the following three aspects: 1.2.1 whether the house has fulfilled the duty of reasonable duty of care the government bears the responsibility to manage and protect the lawful property of its counterparts. if the demolition of a house owned by the person is illegal, then the forced demolition does not violate its duties. under the current institutional framework, although administrative agencies’ unlawful forced demolitions are administratively illegal, they fail to trigger substantial public law liability due to the lack of punitive compensation mechanisms in the state compensation system. it is particularly noteworthy that this limitation in institutional design means that even if the administrative entity has procedural violations or substantive infringements, it can still rely on the compensatory compensation principle under the current state compensation law, bearing only the responsibility for directly compensating losses. this “asymmetry between the cost of illegality and legal liability” objectively reduces the procedural compliance motivation of administrative agencies, making it difficult to convert formal illegality into compensatory liability with punitive effect. 1.2.2 whether the duty of reasonable care has been fulfilled for the property in the house some cases involve houses that are illegal structures. however, for recyclable materials such as doors and windows, special steel frames, and indoor items, this does not prevent them from having legal ownership. for buildings that can be demolished or are scheduled to be demolished, if the demolishers fail to do so, government agencies still bear the responsibility of being cautious, protective, and not destroying these materials and items at will. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 67 published by scholink inc. 2. compensation issues caused by illegal administrative expropriation and forced demolition 2.1 the scope of compensable damages is not clearly defined in the administrative compensation legal system, defining the scope of compensable damages essentially responds to the question of “which types of damage qualify for legal redress”. this concept carries dual normative implications: first, it requires that the damage be objectively verifiable; second, it must be recognized by positive law as a type of right eligible for compensation. the current national compensation law uses the categories of direct and indirect losses as the normative basis for determining damages——the former corresponds to positive diminution of property rights (such as the physical destruction of a house), while the latter refers to negative loss of expected benefits (such as anticipated rental income). from a normative logic analysis, the legislature adopts a tiered relief model of "full compensation for positive damages, limited compensation for negative damages: “for property losses caused by unlawful expropriation, full compensation is provided under article 4, paragraph 4 of the law; for other forms of damage, a dual structure of "direct loss compensation + catch-all clause” established by article 36, paragraph 8 is required. although this legislative technique forms a closed normative loop, it has a critical institutional flaw: the legal text does not specify typified elements for “direct loss”, leading to an over-constrained compensation scope in cases of unlawful forced demolition, excluding a large number of indirect damages with significant causal relationships from the relief system. 2.2 the judgment results of compensable damages are different the legal definition of direct damage compensation in our country is vague, leading to a lack of compensation standards. there are dual disputes in expropriation compensation: the scope of direct losses and the identification of compensable damages. academically, compensation for illegal forced demolition is limited to direct physical losses such as the main structure of the house, ancillary facilities, and movable property (which is widely adopted in judicial practice). however, article 36, item 8 of the state compensation law excludes interest, business interruption losses, and resettlement fees from the category of “direct losses”, resulting in inconsistent determinations of compensation ranges in similar cases. 2.3 the compensation for property damage is single according to the provisions of china’s state compensation law, when administrative organs illegally cause property damage to administrative counterparts (article 33,34,35 and 36 of the state compensation law), there are three compensation methods applicable: payment of compensation, return of property, and restoration to the original condition. however, due to illegal forced demolition often leading to the destruction of the subject matter (such as the demolition of developed land), judicial practice only supports monetary compensation. this results in the legislative intent for multiple remedies being distorted into a single compensation model, highlighting the institutional dilemma of compensation for illegal forced demolition. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 68 published by scholink inc. 2.4 the standard of compensation calculation is not clear in terms of administrative compensation, although the “reassuring” benchmark has been theoretically confirmed, the lack of clear definition in the state compensation law regarding the calculation standards for compensation has made it difficult to determine “reassuring” in judicial practice. since china’s state compensation law adopts the principle of appropriate compensation and does not specify punitive damages, and given that there are no specific compensation calculation standards for illegal forced demolitions under current legislation, it is also challenging to establish a legal and reasonable compensation method. therefore, in judicial practice, courts determine the extent of damage to those affected by forced demolitions based on the standards for expropriation compensation, which is relatively fair. however, this approach still relies on the expropriation compensation standards as a reference point and lacks sufficient legal basis. moreover, the compensation for damages caused by illegal forced demolitions related to expropriation is a very complex issue. it is easy to confuse “compensation” with “damages”, leading to compensation amounts being lower than those in ordinary expropriation cases. this not only results in unfair compensation for those affected but also fails to effectively punish illegal forced demolitions. 3. we will optimize the compensation path for illegal administrative expropriation and forced demolition 3.1 expanding the scope of compensable damages from the perspective of applicable logic, determining the scope of damages is an inherent prerequisite (wang, l., 2019, p. 126) for providing specific relief to compensable harm. in the future, as laws develop and improve, the state compensation law should appropriately compensate for certain “indirect losses” resulting from unlawful expropriation and gradually expand its scope of application. specifically, to ensure that government agencies provide fair and reasonable compensation to administrative counterparts after forced demolition, future revisions to china’s state compensation system must be combined with relevant regulations and supporting measures, ensuring that administrative counterparts receive no less compensation than they would in ordinary administrative expropriation compensation processes. 3.2 unify the judgment results of compensable damages direct and indirect losses originally existed in the field of civil compensation, with various definitions found in civil law. the introduction of these concepts in the “state compensation law” has not been (guan, j., 2015, pp. 108-109) clearly defined, leading to a dominant scholarly interpretation that has suppressed judges’ creativity in judicial practice; to address legal application disputes, a collaborative mechanism of “pre-judgment screening-three-level analysis-specialized hearing” has been established. during the filing stage, element-based searches are conducted to connect with existing judicial views, and for new types of damages, specialized judges’ meetings are used for mandatory case searches. in conjunction with article 61 of the “administrative litigation law”, a professional evaluation hearing www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 69 published by scholink inc. procedure is introduced. ultimately, this forms a multi-dimensional adjudication standard system characterized by “written law framework guidance, exemplary case demonstration, regional guidance supplementation, and professional judgment support”, which not only continues china’s tradition of written law but also achieves the organic development of case rules. 3.3 increase the means of compensation for property damage a single compensation method not only fails to ensure that those whose property is demolished receive adequate compensation for their losses but also, in a sense, creates an “incentive” for the government to carry out illegal forced demolitions, making it difficult to ease the tension and conflicts between the government and the public caused by such actions. consider adding the following methods of property damage compensation: first, integrate with the land expropriation compensation system by introducing a property exchange model. in the process of forced demolition and resettlement, the government must first provide certain compensation to those whose property is demolished and bear the responsibility of compensating them economically and adjusting their property. second, appropriately expand the scope of apologies. in state compensation, an apology is one of the means to compensate for mental harm. however, the condition for a claimant to request compensation for mental damage is that only when the actions of state organs are illegal can they cause harm to the victim’s personality. if it is merely property loss, the court will refuse the claimant’s request for mental damage compensation on the grounds of lack of legal basis. in other words, if administrative agencies illegally infringe upon citizens’ property rights, then the apology-based compensation cannot be applied. it cannot be denied that mental harm is usually caused by violations of personal rights, but in reality, it does not automatically exclude the possibility of mental harm caused (jiang, m. a., 2015) by the illegal acts of state organs infringing upon property rights. 3.4 clarifying the standard of compensation calculation introducing punitive damages is the most direct and effective method to punish administrative agencies for illegal acts. however, given the varying financial burdens on governments and the different levels of law enforcement among administrative personnel, to prevent administrative agencies and staff from being deterred by the high costs of enforcement, which could hinder the smooth conduct of administrative law enforcement, we should not adopt a blanket punitive damages system for such administrative compensation cases. therefore, in addressing compensation disputes arising from illegal forced demolitions, it is necessary to promote the typification of liability, thereby achieving differentiated penalties for various types of illegal forced demolitions. in cases where the lawful interests of those affected by illegal forced demolition are damaged, economic compensation should be provided to ensure accountability for those responsible for unlawful administrative actions. during the process of administrative expropriation, punitive damages should be imposed on expropriation actions that violate statutory procedures. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 70 published by scholink inc. 4. conclusion this study systematically examines the judicial review standards for cases of illegal forced demolition, revealing the triple predicament existing within the current legal remedy system for real estate expropriation. firstly, at the level of the normative system, although laws such as the “land management law” and the “urban and rural planning law” have constructed a linear regulatory framework from the decision to expropriate to compensation and resettlement, the synergistic effect of substantive norms and procedural rules has failed to effectively curb the phenomenon of power transgression in administrative law enforcement. empirical research indicates that over 62% of illegal forced demolition cases stem from administrative entities' expansive interpretation of uncertain legal concepts such as “emergency avoidance” and “public interest needs”. secondly, in terms of legal remedies, the principle of direct loss compensation established by article 36 of the “state compensation law” creates significant tension with the multi-dimensional damage patterns of illegal forced demolition cases. judicial big data analysis shows that 83.6% of compensation disputes focus on the identification of indirect losses such as expected income loss, replacement cost differentials, and mental damage, while the current judicial interpretation has not established a graduated loss measurement rule. more notably, there is a judicial tendency to 前置 administrative compensation procedures as a prerequisite for compensation claims in trial practice, which essentially undermines the remedial function of the state compensation system. lastly, in terms of institutional convergence, the normative overlap between administrative compensation and judicial compensation leads to inconsistent legal application standards in 23.4% of sample cases. some judicial documents confuse the administrative discretion attribute of compensation standards with the judicial determination attribute of compensation standards, adopting a “compensation in lieu of compensation” approach, resulting in the property rights remedy for the infringed party remaining at a symbolic level. this institutional defect not only weakens the corrective function of judicial review but also externalizes the cost of illegal actions by public authorities. based on these findings, this article proposes three paths for regulatory optimization: first, construct a typified review mechanism for cases of illegal forced demolition, establishing judicial recognition standards for “major and obvious illegality” through guiding cases; second, introduce a dynamic compensation calculation model, incorporating parameters such as real estate market premiums and rights resettlement cycles into the loss assessment system; third, add a “compensation for expropriation” chapter in the revision of the “state compensation law”, clarifying the application order of compensation scope and compensation standards. these institutional innovations not only fill the normative gaps in existing research but also provide actionable normative guidance for substantially resolving the “expropriation-compensation” dual dilemma. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 71 published by scholink inc. references article 33,34, 35 and 36 of the state compensation law. guan, j. (2015). on “direct losses” in state compensation. journal of gansu university of political science and law, 2015(1), 108-109. jiang, m. a. (2015). administrative law and administrative procedure law (p. 575). peking university press and higher education press. wang, l. (2019). reflection and construction of the principle of full compensation and tort damage compensation. law science (journal of northwest university of political science and law), 2019(4), 126. wang, y. l., & he, s. h. (2007). how to compensate for illegal forced demolition of rural houses, in civil trial guidance and reference 2007, no.3, no.31, edited by the first civil trial division of the supreme people’s court of the people’s republic of china (p. 159). law press. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 4, no. 1, 2021 www.scholink.org/ojs/index.php/elp 37 original paper analysis on criminal governance of bitcoin-related corruption cases zhang zize 1 1 college for criminal law science, beijing normal university, beijing, 100875 china received: march 9, 2021 accepted: may 17, 2021 online published: may 28, 2021 doi:10.22158/elp.v4n1p37 url: http://dx.doi.org/10.22158/elp.v4n1p37 abstract bitcoin is extremely easy to be used in corruption cases due to its pseudonym, easy circulation, easy cross-border and other characteristics. as a decentralized electronic account book, the circulation of regulatory funds is jointly confirmed by each node in the bitcoin network, which can ensure the authenticity of the criminal evidence and is not easy to be lost or damaged. it provides great convenience for evidence collection in bitcoin corruption cases. however, there are also shackles in criminal governance, such as how to prove the subjective intent of the bribe takers, the impact of fluctuations in market value on the identification of the case and, most importantly, how to effectively recover stolen goods across borders. therefore, the difficulty of bitcoin-related cases does not lie in the “anonymity” that some scholars believe, but lies in the determination of subjective intent, the determination of the amount of the crime and the international judicial assistance in recovering the stolen money. keywords bitcoin, cross-border digital forensics, international judicial assistance 1. bitcoin can be used as the object of corruption cases although bitcoin was officially issued by satoshi nakamoto in 2009, its entry into the eyes of most chinese was a few years later. taking the results obtained by baidu search engine as an example, and taking cctv.com as a domain name to search for “bitcoin”, the earliest relevant web page appeared in 2013. in recent years, the wide application of block chain technology, which is the core of bitcoin, and the continuous fluctuation of the market value of bitcoin, make the name of bitcoin a household name. the financial action task force on money laundering defines virtual currency as “a digital representation of value that can be digitally traded and functions as, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 38 published by scholink inc. (1) a medium of exchange; and/or (2) a unit of account; and/or (3) a store of value, but does not have legal tender status (i.e., when tendered to a creditor, is a valid and legal offer of payment) in any jurisdiction”. bitcoin has the characteristics of decentralization (bitcoin is the first distributed virtual currency. the entire network consists of users, with no central bank. decentralization is the guarantee of bitcoin’s security and freedom), worldwide circulation (bitcoin can be managed on any computer connected to the internet. no matter where they are, anyone can mine, buy, sell or collect bitcoin), exclusive ownership (the manipulation of bitcoin requires a private key, which can be kept in isolation on any storage medium. no one can access it except the user himself), low transaction costs (bitcoin can be exported free of charge, but eventually a transaction fee of about 1 bit cents will be charged for each transaction to ensure faster execution), no hidden costs (as a means of payment from a to b, bitcoin has no onerous limits and formalities. payment can be made by knowing the other party’s bitcoin address), cross-platform mining (users can explore the computing power of different hardware on many platforms), etc. therefore, it now has a variety of bitcoin trading platforms and mining platforms. the number of criminal cases searched out by using “bitcoin” as the keyword on the “china judgements online” has been increasing year by year (through the search condition of “full text: bitcoin, cause of action: criminal case”, the number of cases as of december 31, 2020 was found to be 2020(425)2019(323), 2018(177), 2017(72), 2016(44), 2015(16) and 2014(5), respectively, thus increasing year by year). however, there are few judging documents concerning corruption cases, which may have various reasons, such as criminal implicit case, the standard’s varing from place to place whether the court’s judging documents for corruption cases are open to the public, and so on. however, from a purely theoretical point of view, the possibility that bitcoin is used in corruption cases exists. taking bribery cases as an example, the following types of bitcoin-related corruption cases can be drawn by distinguishing the briber and the briber using legal currency or bitcoin (all assume that a is the intended briber and b is the national staff): (1) the briber’s legal tender and the briber’s bitcoin: in this case, the transformation between legal tender and bitcoin must be involved. for example: a bought some bitcoins for b’s account on a bitcoin website; (2) the briber bitcoin, the briber bitcoin: a transfers some bitcoins directly or indirectly to b’s bitcoin account on the internet; a borrowed money from b to buy bitcoin. when borrowing money, 1 bitcoin could be exchanged for 2,000 yuan. after a had borrowed money from b, the market value of bitcoin soared and it was returned to b’s account in the form of bitcoin; (3) the briber’s legal tender, the briber’s legal tender & the briber’s bitcoin, the briber’s legal tender: in both cases, the forms of crime will become interesting and diverse. for example, b recommended bitcoin from a website to a at the wine bureau, so a paid b hundreds of thousands of dollars to help b fry the coins; a sold b the bitcoin products on its website, and b spent 50,000 yuan to buy 50 bitcoins. a few months later, the market value of these bitcoins was enough to quadruple the money b had www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 39 published by scholink inc. invested hundreds of times. there are countless corruption cases involving bitcoin. here are three considerations: first, it is used to prove that bitcoin can be used in corruption cases. bitcoin is not completely banned or classified as contraband in china. the people’s bank of china, the ministry of industry and information technology, the china banking regulatory commission, the china securities regulatory commission and the china insurance regulatory commission have issued the “notice on preventing bitcoin risks” and the people’s bank of china, the central internet information office and the ministry of industry and information technology have issued the “notice on preventing the financing risks of token issuance” on september 4, 2017, all of which do not prohibit the issuance of bitcoin. entering “bitcoin” into commonly used search engines can even search out bitcoin websites in china, which can be identified as property in corruption cases; second, in bitcoin-related cases, it is difficult to determine the value of bitcoin. we know that there is a corresponding amount standard for the conviction of corruption and bribery cases, such as the interpretation on several issues concerning the applicable law in handling criminal cases of corruption and bribery issued by the supreme people’s court and the supreme people’s procuratorate, etc. the market value of bitcoin fluctuates very fast. and corruption involving bitcoin and corruption involving equity trading are similar to some extent, but their supervision is far from the same. the fluctuation of shares is controlled by a certain extent and is subject to central supervision. however, the state does not have relevant laws and regulations to directly regulate the price fluctuation of bitcoin, which is a decentralized trading method. and if it wants to force intervention, according to the mechanism of bitcoin, there are only two ways to supervise the market of bitcoin: one way is to directly change the account book by controlling the computing power in the bitcoin network to more than half, and the second way is to directly deny access to the website of the bitcoin platform from the firewall or isp. however, no matter what measures are taken, it is undoubtedly rough and unfair to other netizens who have obtained bitcoin in good faith and legally. how to calculate the market value of bitcoin and how to incriminate it in corruption cases and how to prove the intent of the bribe takers are still in judicial practice. third, bitcoin, as a seemingly “emerging” item, will undoubtedly be favored by criminals because of its “anonymity”. in the search for articles about bitcoin and corruption on “https://www.pkulaw.com/” and “https://www.cnki.net/”, some authors, even the authors of articles published in domestic core journals and doctoral dissertations, believe that the “advantage” of bitcoin in corruption cases lies in its anonymity. the author believes that for a corrupt official who has fully read bitcoin founder satoshi nakamoto’s white paper on bitcoin and understood its meaning, anonymity is definitely not the reason for accepting bribes by using bitcoin. the reason for choosing bitcoin should lie in the volatility of the market value of bitcoin, in order to resist the convenience such as the identification of the amount involved in the investigation and trial as well as the proof of subjective intent, and the convenience of converting into french currency for cash withdrawal in some foreign countries. as for the anonymity www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 40 published by scholink inc. mentioned by these scholars, the author believes that from a theoretical point of view, bitcoin is just a sharp weapon against the anonymity of transactions and corruption. 2. bitcoin helps to extract evidence from corruption cases (1) bitcoin is “pseudonym” rather than “anonymous” the main argument that bitcoin is anonymous focuses on “what exists in the transaction record is a string of numbers”. some scholars even think that this string of numbers can be changed at will. “public and private keys can be generated randomly, and both parties to the transaction can regenerate a pair of keys during each transaction. the real identity can be hidden one at a time in a secret way, making the transaction difficult to track, control and lock”. these obviously did not fully understand the mechanism of bitcoin, but only completed the formal syllogism inference and reached the wrong conclusion. satoshi nakamoto defines “an electronic currency as a string of digital signatures in which each owner sends the electronic currency to the next owner by signing a random hash of the previous transaction and the next owner’s public key and appending the signature to the end of the electronic currency. and the payee is able to verify the owner of the chain by verifying the signature”. “as an additional precaution, users can have each transaction generate a new address to ensure that these transactions are not traced back to a common owner. however, due to the existence of parallel inputs, some degree of traceability is still inevitable, as parallel inputs indicate that these currencies all belong to the same owner. the risk here is that if one of a person’s public keys is confirmed to belong to him, many other transactions of that person can be traced back”. from the perspective of cryptography, the public key can be regarded as the receiving address to a certain extent, and the private key and the public key correspond one by one in the sense of calculation. if the private key is replaced, the public key must be inconsistent with the receiving account. therefore, replacing the private key is equivalent to replacing the account, and a transaction channel must be established between the original account and the new account in order to achieve its criminal intent such as money laundering. the so-called “one secret at a time” is practically impossible. judging from satoshi nakamoto’s statement, the “new address” he mentioned applies to money laundering activities, referring to the establishment of multiple collection accounts for “parallel input”, then these parallel inputs are reasonable for the regulatory system to believe that the collection accounts in this transaction belong to one owner. at this time, the economic common sense of “putting eggs in different baskets to reduce risks” is not applicable. as long as a public key address of a payer and a payee is confirmed as a bribe-giver or a bribe-taker, most of the series of bribery they conduct through bitcoin will surface. bitcoin’s privacy policy is shown in the figure. hide the identity information and make the transaction public. just like the recent reform of the covid-19 case flow report in beijing, shanghai and other places, only the track is mentioned and no one is mentioned. however, it can be expected that the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 41 published by scholink inc. communities where the cases live, the work units where the cases work, and how the children of the cases pick up and drop off can all correspond to the cases through these tracks. for bitcoin, the final flow of bitcoin to the account, the receiving address of online purchases and the ip address of purchases can all accurately locate or depict the owner. therefore, from the perspective of investigation, the so-called “anonymity” does not exist, but is based on the erroneous conclusion drawn through excessive “diversion”. the public key in bitcoin should be regarded as a kind of “pseudonym” for the owner’s identity information rather than “anonymity” or “one secret at a time” as many scholars believe. (2) the transaction records of bitcoin are stored in a decentralized way satoshi nakamoto proposed a “time stamp server”. the timestamp server adds a timestamp by randomly hashing a set of data in the form of a block and broadcasts the random hash. obviously, a timestamp can prove that specific data must indeed exist at a specific time, because the corresponding random hash value can only be obtained if it exists at that time. each timestamp should incorporate the previous timestamp into its random hash value, and each subsequent timestamp will follow the previous timestamp, forming a chain. this is the block chain technology that is now widely used to prove that the transaction does exist. the bitcoin transaction node always considers the longest chain as the correct chain and continues to work and expand. if two nodes simultaneously broadcast different versions of a new block, the other nodes will receive the block at different times. in this case, they will work on the basis of the first received block, but will also keep the other chain in case the latter becomes the longest chain. the deadlock will be broken until the next proof of work is found, and one of the chains is proved to be longer, then the nodes working on the other branch will switch camps and start working on the longer chain. the so-called “new transaction to broadcast” does not actually need to reach all nodes. as long as the transaction information reaches enough nodes, they are quickly integrated into one block. if a node does not receive a specific block, the node will find that it is missing a block and it can request to download the block itself. in short, the authenticity of transactions on the bitcoin network can be confirmed through several blocks, and the traders themselves can also confirm. however, there are both connections and differences with the so-called “de-centralization” of platforms such as weibo: for users in weibo, certain information can indeed be searched through a built-in search module, but this information cannot be guaranteed to be true. generally, only when the account number is more than the information released by the government media has certain credibility. and sometimes it will delete itself for some reasons. in the bitcoin network, the transaction records brought out by a public key address searched by www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 42 published by scholink inc. the built-in search module can be proved to be reliable by algorithms, and will never be deleted once it exists. as criminal evidence in corruption cases, it has natural advantages and availability. (3) the cost of altering the transaction records of bitcoin is too high satoshi nakamoto has made bitcoin’s algorithm open source in its white paper, so many fraud cases under the guise of fake bitcoin have been born in recent years. apart from the subjective malignity of these fraudsters, these fake bitcoins are also extremely vulnerable to attacks due to their cost and tamper with electronic account books, thus causing economic losses. judging from the aforementioned bitcoin transaction recording mechanism, as long as the network with 51% of the computing power of the whole network is controlled by any individual or organization, it can tamper with its transaction records, manipulate transactions and currency value at will. up to now, bitcoin has a net-wide computing power of 149.81 eh/s, and a mining machine with a computing power of 95th/s costs at least 20,000 yuan. the cost of tampering is definitely an astronomical figure. for a rational “criminal economic man”, it is not advisable to carry out such a large-scale operation in order to cover up the gains, either financially or in the wake of such an accident. based on the above three points, bitcoin can do: first, according to the matching mechanism of public key and private key, the public key can be depicted by the orientation of bitcoin in the transaction record and finally located to the specific identity information in the criminal lawsuit process of corruption cases; second, guarantee the authenticity and legality of transaction records. due to the distributed storage mechanism, the risk of illegal evidence collection can also be greatly reduced during the evidence collection process. however, it should be noted that in the judicial context of evidence adjudication, another piece of evidence that is generally considered to be the “king of lawsuits” today is relevance. to a certain extent, the transaction mechanism of bitcoin can accurately identify the bribery subject and the time of bribery, and can prove the relevance to bribery. however, for the bribery subject, the relevance to bribery cases still needs to be explored in the judicial practice, as the receipt of bitcoin does not need to be confirmed by the payee. 3. limitations and countermeasures of bitcoin’s application in recovering bribes in general, there are at least the following difficulties in bitcoin corruption cases: (1) the identification of the entity as mentioned above, how to define a state functionary’s intention of accepting bribes is a big difficulty. for example, when being investigated, he could not define whether he knew the increase of bitcoin in his account, whether he needed to report his bitcoin account, whether he needed to check his bitcoin account regularly, and declare truthfully, etc., and infer from the side whether he had intention to accept bribes. at present, some countries have explored the practice of reporting public officials’ bitcoin accounts. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 43 published by scholink inc. in the case of taking bribes in the form of “speculation of money”, due to the volatility of the market value of bitcoin and the absence of relevant laws and regulations to limit its volatility in the international community, the determination of the amount of bribes in the whole criminal process still needs theoretical and practical consideration if it is mechanically valued based on the market price of bitcoin at the time of the crime. (2) improvement of the recovery mechanism as for the circulation channels of bitcoin and french currency within a country, some countries have already established regulatory measures for encrypted currencies such as bitcoin. for example, the australian anti-money laundering and anti-terrorism finance act requires encrypted money transactions to be registered, identified and authenticated, suspicious transactions reported and recorded. malaysia’s anti-money laundering and anti-terrorism finance act requires encrypted money transactions to identify and verify customers and beneficiaries, monitor customer transactions, report suspicious transactions and keep records, and also to publish the price of encrypted money and the method of determining the price to improve transparency. exchanges are also required to report details to banks as reporting agencies. the estonian anti-money laundering law requires a license for the encrypted money exchange service provider and the encrypted money wallet service provider. belarus anti-money laundering law stipulates that operators of encrypted money platforms and exchange service providers are required to fulfill anti-money laundering obligations. the regulatory measures of various countries mainly focus on the connection between bitcoin and reality, such as the encrypted currency exchange, the encrypted currency exchange service provider and the encrypted currency wallet service provider, which are all intermediaries of encrypted currency activities. however, article 3 of china’s anti-money laundering law stipulates: “financial institutions established within the territory of the people’s republic of china and specific non-financial institutions that are required to fulfill their anti-money laundering obligations shall, in accordance with the law, take preventive and monitoring measures, establish and improve a customer identification system, a system for keeping customer identification information and transaction records, and a system for reporting large-value transactions and suspicious transactions to fulfill their anti-money laundering obligations”. article 35 stipulates: “the scope of specific non-financial institutions that should fulfill their anti-money laundering obligations, the specific measures for their performance of anti-money laundering obligations and their supervision and management shall be formulated by the anti-money laundering administrative department of the state council in conjunction with the relevant departments of the state council”. however, the “specific non-financial institutions” approved by the central people’s bank do not include internet websites that provide services such as bitcoin registration and trading. in other words, china still lacks effective legal supervision over the circulation between bitcoin and legal tender. therefore, it is necessary to carry out supervision and early warning measures in our country, at least for the institutions that exchange bitcoin for legal tender. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 44 published by scholink inc. in addition, the difficulty of china’s anti-corruption work lies in foreign enforcement. for example, some scholars pointed out that one of the key issues in cross-border recovery of stolen goods in china is the recognition of confiscation decisions. china generally implements “confiscation of all personal property”. however, some countries have different provisions on individual property rights. the laws of these countries have their own conditions, procedures and evidentiary standards for freezing, seizing and confiscating the assets of natural or legal persons. the existing international treaties all emphasize that relevant international cooperation should be carried out “to the extent permitted by the law” in the countries where the assets flow. can bitcoin be the object of the recovery? legally, the united nations convention against corruption states that “proceeds of crime” refers to any property that is directly or indirectly generated or acquired through the commission of a crime; “property” refers to all kinds of assets, whether material or immaterial, movable or immovable, tangible or intangible, and legal documents or instruments evidencing property rights or interests in such assets. however, there are still many disputes about whether bitcoin can be collected from the bitcoin-related crimes uncovered in foreign countries, such as how to auction the bitcoin involved, and whether it is legal to freeze the relevant accounts of the accounts involved. when bitcoin is involved in the recovery of stolen goods from abroad, it will inevitably involve the game and competition between cyberspace sovereignty and judicial sovereignty. (3) cross-border digital forensics and international judicial assistance the confirmation of the subject information of bitcoin inevitably involves the relevant subject converting bitcoin into french currency or using bitcoin to purchase physical objects. at present, due to the fact that most domestic bitcoin websites need real-name information such as identity card numbers and the strict supervision of domestic financial institutions, the criminal pattern of domestic corruption cases mostly involves the conversion of hard currency such as u.s. dollars abroad or the use of bitcoin by their children to purchase goods. the main way is to obtain evidence from relevant shopping websites and bitcoin exchange websites. at this time, cross-border evidence collection is involved, among which cross-border digital evidence collection is the most important. in the 1990s, the main use of the internet was for military exchanges in the united states. after that, due to the increase in demand for commercial networking, the internet began to advocate “internet sovereignty”, believing that the internet is a product of science and technology and should be independent of government control, and that the internet space is an independent space different from the physical space, with the characteristics of decentralization. however, the control of the underlying technology architecture of the internet is very centralized. the world’s top-level domain name resolution server is regulated by the u.s. government, which has been refusing to transfer icann’s management rights under the pretext of “security concerns”. the center’s unilateralist control of the internet. countries have also begun to notice the harmfulness of internet unilateralism. the european union has also changed its previous position and promoted the supervision model of the united nations network domain servers in order to speed up the internationalization of icann and iana and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 45 published by scholink inc. involve the government. the us department of commerce is under global pressure to unilaterally regulate icann and hand it over to the un. in the same year, the un expert group on information security reached an important document, confirming that the “un charter” and other norms and principles of international law are applicable to national activities in cyberspace. each country’s understanding of sovereignty gradually extends from territorial sovereignty to cyberspace, forming the current “warring states” pattern of internet space governance, i.e., two camps in the world: on the one hand is the principle of nato countries’ leading and preemption, i.e., in non-territorial space, the actors are first-in, thinking and matching first according to their own advantages and disadvantages, the interests of the weak do not need to be considered, and the formulation of international cyberspace rules should meet the best interests of the vested interests; on the other hand, developing countries tend to adhere to the principle of “common property of mankind” and emphasize that all countries should enjoy equal network sovereignty regardless of their advantages or disadvantages. even if they do not currently have the corresponding equipment and technology research and development capabilities, they should have the right to reserve by making relevant rules. in the field of evidence, these problems are represented as a game of international jurisdiction over data mastery, mainly from two perspectives: the “data storage location model” and the “principle of sovereignty over cyberspace”. since the criminal jurisdiction of a country has always been based on the regions within its sovereignty, the actual storage location of electronic data has become the basic consideration for the actual exercise of jurisdiction—the data storage location model. from the traditional and widely accepted point of view, the acquisition of electronic data stored in foreign countries can only be achieved through mutual legal assistance in criminal matters on the basis of mutual respect for national sovereignty. however, both the above-mentioned mutual legal assistance in criminal cases and the unilateral use of computer technology for cross-border electronic evidence collection have obvious defects. in order to fully tap and control the data resources of service providers operating across borders in the criminal justice and network supervision systems, there has been an increasingly significant trend of “data localization” in the world in recent years. under the condition that the local storage of data is mandated by law, the retrieval and application of data in criminal justice need not be carried out in a cross-border way, so that data sovereignty can be effectively implemented in criminal justice. the united states claims no sovereignty over cyberspace. since the mid-1990s, american academic circles have launched an in-depth discussion on whether cyberspace has sovereignty or not, and the official view based on safeguarding american interests has gradually become clear. on the other hand, the united states is facing an “unbalanced” dilemma in the area of criminal judicial assistance in cross-border electronic evidence collection. if we follow the traditional data storage model, the u.s. law enforcement agencies cannot smoothly access the vast amounts of data held by these enterprises. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 46 published by scholink inc. cross-border data collection of bitcoin-related corruption cases needs to be effectively explored in combination with the budapest convention on cybercrime, the gdpr, the u.s. cloud act and the second supplementary protocol to the budapest convention of the european union. only in this way can china effectively and timely detect bitcoin-related corruption cases and recover national assets. in addition, bitcoin, as a global circulation product, countries cannot interfere in its mechanism. however, it can be effectively monitored according to the flow characteristics of bitcoin, such as tracking suspicious bitcoin conversion into legal currency, and using artificial intelligence to predict and analyze the money laundering behavior of some accounts in a short period of time for effective early warning, etc. 4. conclusion and prospect bitcoin-related crimes are not untraceable due to their anonymity, as some scholars think. there are also many successful cases of tracking criminal behavior abroad. on the contrary, due to the decentralized block chain technology of bitcoin, evidence collection is more convenient than traditional corruption cases, reducing the risk of illegal evidence collection and lowering the technical threshold of evidence collection subjects. even some “network chivalrous men” full of romantic feelings can use social engineering and other methods to find out criminals hidden under the network. individuals can obtain evidence by themselves so that criminals can accept legal sanctions, and the authenticity of the evidence can be fully guaranteed. the space that needs to be improved may lie in whether the evidence obtained by individual “chivalrous men” can be used as the basis for deciding a case, how to confirm the effectiveness of the evidence in the cross-examination link of the court, and how to balance the privacy of the prover with the purpose of criminal proceedings. however, in specific practice, the entity aspect will involve the problem of subjective intent identification of the bribe taker and the problem of the amount involved in the case. in the aspect of recovering the stolen goods, a new path needs to be explored. how to accurately locate the bitcoin account involved in the case and auction it to recover the stolen money requires the exploration of relevant practice and the formulation of laws and regulations. strengthening supervision in the conversion link between bitcoin and the legal currency in reality and using artificial intelligence technology for anti-money laundering early warning can also effectively prevent corruption cases involving bitcoin. finally, due to the global circulation of bitcoin, cross-border digital forensics is bound to be involved in specific cases. at this time, countries need to work together to improve the relevant international judicial assistance mechanism. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 47 published by scholink inc. references bitcoin’s network computing power. (2021). retrieved january 19, 2021, from https://btc.com how the fbi disposes of the huge bitcoin seized from the silk road. (2021). retrieved january 18, 2021, from https://www.bitcoin86.com/news/1204.html huang, z. (2015) china’s current legal obstacles and solutions to pursue and flee overseas. china’s party and government forum, 2015(2). lei, y. (2019). china bitcoin channel capital flight research. central university of finance and economics in 2019 doctoral thesis. price of mining machines. (2021). retrieved january 19, 2021, from https://shop.bitmain.com.cn satoshi, n. (n.d.). bitcoin: a peer-to-peer electronic cash system. shi, y. a., & wang, y. j. (2019). criminal governance of bitcoin money laundering crime. journal of the state prosecutors college, 2019(2). south korea’s new initiative: the government promulgates a bill to require public officials to declare encrypted monetary investments. (2021). retrieved january 19, 2021, from http://www.shilian.com/m/view.php?aid=130637 the financial action task force (fatf), virtual curencies: key definitions and potential aml/cft risks. (n.d.). retrieved from http://www.fatf-gafi.org/media/fatf/documents/reports/virtual currency-key-definitions-and-potential-aml-cft-risks.pdf the founder of the silk road demands the fbi to return the bitcoin seized. (2021). retrieved january 18, 2021, from http://www.btc001.net/btc/1715.html the website of the national supervision committee of the central commission for discipline inspection, the full text of the un convention against corruption. (2021). retrieved january 18, 2021, from http://www.ccdi.gov.cn/special/lygz/flfg/201310/t20131008_11282.html xinhua. (2021). “only the track is mentioned but no one is mentioned”, the new report on the current situation is worth advocating. retrieved january 25, 2021, from http://www.xinhuanet.com/2021-01/24/c_1127019082.htm zeng, l. (2020). characteristics, difficulties and prospects of cross-border recovery of encrypted digital currency as a corrupt asset. journal of international economic law, 2020(1). economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 5, no. 1, 2022 www.scholink.org/ojs/index.php/elp 28 original paper research on the governance mechanism of information poverty in ethnic border areas from the perspective of relative poverty zhai haomiao 1 , gao fuxia 1* & xu xinpeng 1 1 college of finance and economics, sichuan international studies university, chongqing 400031, china * gao fuxia, e-mail: gaofuxia@sisu.edu.cn received: may 1, 2022 accepted: may 24, 2022 online published: june 8, 2022 doi:10.22158/elp.v5n1p28 url: http://dx.doi.org/10.22158/elp.v5n1p28 abstract the elimination of poverty as the primary goal has always been an important content that the governments of all countries pay great attention to. over the past few decades, china has made remarkable achievements in poverty alleviation. the targets of poverty alleviation in the new era have been fulfilled as scheduled. however, it should not be ignored that with the resolution of absolute poverty in china, poverty control in the new era has become more strategic and long-term. many problems have become the focus of poverty management in the “post-poverty era”, such as relative poor group replacing absolute poor group as the main body of poverty, preventing the group that has been lifted out of poverty from returning to poverty and preventing the occurrence of new poverty. this paper takes chongqing southeast “national long-term governance mechanism of the border region information poverty” as the research object, focusing on poverty after the crucial information poverty on “the new absolute poverty and has chinese out of poverty group”, the influence of the ultimate goal is to block chinese border region phenomenon caused by poor information, strengthen poverty crucial achievement, realize common prosperity. keywords relative poverty, southeast chongqing, information poverty, governance mechanism funds supporting: scientific research project of sichuan foreign studies university-“research on the development strategy of rural financial services in the process of urbanization in western china” (sisu 201773); study on long-term governance mechanism of information poverty in ethnic border areas from the perspective of relative poverty (kjqn202100904); “research on long-term governance mechanism of information poverty in southeast chongqing under the background of rural www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 29 published by scholink inc. revitalization” (2021py33). science and technology project of chongqing education commission “research on identification and governance of new labor relations under gig economy” (kjqn202000905)/(kjqn202100901); “research on the governance mechanism of new labor relations from the perspective of new business forms”, no.21skgh141; “innovative research on the precise governance mode of community led by party construction under the vision of co-construction, co-governance and sharing” (21skgh134). research on harmonious labor relations thought of socialism with chinese characteristics in the new era (2021ybcs39). research on the path of ideological and political construction of grass-roots party construction leading curriculum in colleges and universities from the perspective of great ideological and political construction (sisu202157). 1. introduction on the basis of the millennium development goals, the united nations adopted the 2015-2030 sustainable development agenda with 17 sustainable development goals as the core. poverty eradication as the primary goal has always been an important content of great concern to governments all over the world. over the past few decades, china’s achievements in poverty eradication have attracted worldwide attention. the goal and task of poverty alleviation in the new era were completed on schedule. under the current standards, all rural poor people were lifted out of poverty, all poverty-stricken counties were removed, and the task of poverty alleviation and relocation in other places was fully completed. absolute poverty and regional overall poverty were eliminated, which played an important role in promoting china’s economic development, political stability, national unity and social harmonious development. however, it can not be ignored that with the solution of the problem of absolute poverty in china, the poverty governance in the new period is more strategic and long-term. it is still facing many problems, such as the relative poor groups replacing the absolute poor groups as the main body of poverty, preventing the groups that have been lifted out of poverty from returning to poverty and preventing the occurrence of new poverty. it has become the focus of poverty governance in the “post poverty relief era”. at present, the material poverty in ethnic border areas has been effectively eliminated and alleviated, but the disadvantages such as lack of information and unimpeded information already exist. in this regard, the fourth plenary session of the 19th cpc central committee clearly proposed to “resolutely win the battle against poverty, consolidate the achievements of poverty eradication, and establish a long-term mechanism to solve relative poverty”. therefore, taking the southeast chongqing ethnic border region as the research sample, this paper studies how to consolidate the achievements of poverty alleviation and build a long-term governance mechanism to solve information poverty, which is of great significance to china’s anti-poverty strategy in the new era. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 30 published by scholink inc. 2. literature review 2.1 the concept of information poverty and its influencing factors poverty is usually divided into absolute poverty and relative poverty. relative poverty refers to a living state in which individuals are excluded from the normal level due to the lack of ability or resources to participate in social activities under specific social constraints, which makes it difficult for them to reach the living standard recognized by the society (townsend, 1962). according to townsend, in a society that eliminates absolute poverty, there will still be a gap between the rich and the poor, and the greater the gap between the rich and the poor, the more obvious the difference in relative poverty. oscar lewis put forward the concept of “poverty culture” in 1956. the theory holds that, compared with other social strata, the poor follow significantly different habits in family maintenance, living style and upgrading choice. although they lose their status in key social institutions, they still hold the consciousness of being willing to poverty and lack of resistance, and lose the motivation and willingness to struggle. information poverty includes two aspects: one is the state of absolute information poverty and shortage, and the possession, utilization, infrastructure construction and information-based services of information are in the state of absolute poverty; the second is relative information poverty, that is, the “digital divide” between urban and rural areas or regions, which mainly reflects the information differentiation between different classes or groups. since the 1970s, domestic scholars began to study “information differentiation” and “information poverty”. foreign scholars prefer to study the “digital divide”. while domestic scholars attach importance to the study of “digital divide”, they also did some research on “information differentiation”, “information inequality” and “information poverty” based on china’s national conditions (zhou wei et al., 2021; tang peiwen et al., 2020; fan xiaoyu, 2020). the influencing factors of individual falling into information poverty include not only internal factors such as the individual characteristics of poor families, but also external factors such as economic growth and regional environment. specifically: (1) internal cause perspective. from the perspective of human capital, some scholars have recognized that education level is the key influencing factor for the information poor to improve their information literacy (xie huichang, 2020); some scholars also analyze the causes of information poverty from the perspective of material capital: due to inconvenient transportation and backward infrastructure, information poverty such as information blocking, information failure, information lag and information distortion (feng xian et al., 2018; zhu qiubo et al., 2019). information poverty is coupled and interacted with local industrial development, public services, infrastructure construction and grass-roots governance, resulting in path dependence of economic and social development and poverty locking. at the same time, due to cross language and cross-cultural barriers, extremes and differences in information needs, weak self-development, lack of public policies and other factors, ethnic minorities lead to information poverty (sun jie et al., 2019; li gang et al., 2017). (2) external perspective. affected by their socio-economic status, farmers in poor areas are at a great disadvantage in information acquisition and application, resulting in the emergence, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 31 published by scholink inc. expansion, re emergence and re expansion of “information gap”, and information poverty is inevitable (p. j. tichenor, 1970; n. kazman, 1975); the economic conditions of the information poor, such as personal information assets and information purchasing power, also directly affect the information poverty (dong hongpeng, 2013; zhao ping, 2015). other scholars believe that information is shared. without policy intervention, people will obtain corresponding information according to their own needs and maintain the original ecological living conditions. if it is not artificially controlled, there will be “information island” and other phenomena. therefore, national institutions should ensure the production, transmission, sharing and opening of information resources in the form of law (shi wenxiang et al., 2019; zhou xuan, 2019). 2.2 identification and governance of information poverty the identification of information poverty is the premise of governance. wathmanel seneviratne (2004) investigated the information needs of farmers in sri lanka and concluded that farmers’ information needs are divided into two main aspects. in addition to providing farmers with information in time, farmers should also have a reliable official channel to upload information. may j d (2012) and others innovated the standard of digital poverty, considered it from multiple dimensions, and compared it with traditional economic poverty and asset poverty. according to different participants, the governance of information poverty can be divided into three categories: government governance, social organizations and farmers themselves. (1) government governance. ophuls (1973) believed that since poverty is a public affair, it should be governed by a mandatory government. the ideal form of government governance corresponds to the bureaucratic structure proposed by weber, which is manifested in the weak incentive of higher-level government to lower-level government. however, due to the information asymmetry between the superior and subordinate governments, problems such as “inspection and response” and “grass-roots collusion” may occur to delay the process of poverty governance (wang gang & bai haoran, 2018). the dissemination of information must require a certain carrier. the lack of rural information dissemination equipment and insufficient construction funds lead to the lack of information dissemination channels. in view of this, the government should give sufficient financial support to rural development and construction, focus on strengthening the construction of rural independent communication facilities and provide diversified information dissemination media (zhou wei & wang xinrui, 2021). (2) social organizations. ostrom (1990) put forward the theory of autonomous governance and polycentric governance, which is different from the traditional government governance and private governance. olson put forward the theory of collective action. sandel proposed communitarianism. (3) farmers’ self-governance. rural information dissemination should continue to increase investment in rural education, improve farmers’ sense of participation and acquisition in the process of information dissemination, and make them become practitioners of information dissemination (zhou wei, 2021). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 32 published by scholink inc. 3. evaluation of existing research in general, domestic and foreign literature provides a good theoretical reference and logical starting point for the research of this paper, and provides methodological reference for the paper. however, the research on poverty at home and abroad mainly focuses on the identification and governance of absolute poverty, while the identification and governance of information poverty do not touch much; from the perspective of research, scholars’ research on poverty mainly focuses on universal problems, while there are few studies on poverty governance in ethnic border areas; in terms of research methods, it mainly focuses on randomized controlled trials and field investigation, and there are few quantitative research methods by constructing evaluation system. based on this, the paper intends to break through the above limitations and propose a long-term governance mechanism for information poverty in relatively poor areas by using evaluation methods, which is of great practical significance for solving the “three rural” problems, promoting agricultural and rural modernization, strengthening grass-roots social governance, implementing the rural revitalization strategy and improving farmers’ income and living standards. 4. research design taking “the long-term governance mechanism of information poverty in ethnic border areas” as the research object, this paper focuses on the impact of information poverty on “the occurrence of new absolute poverty and the return of poverty-stricken groups” after poverty alleviation, mainly involving the following research contents: (1) current situation research: investigation and governance of information poverty in ethnic border areas from the perspective of relative poverty. ① investigation on the current situation of information poverty in ethnic border areas from the perspective of relative poverty. investigate the current situation of relative poverty in ethnic border areas, analyze the possible return to poverty and the risk of new poverty due to information poverty, and explore whether the cause of this phenomenon is accidental or structural poverty. ② field investigation, case analysis and comparative study on the current situation of information poverty governance in ethnic border areas from the perspective of relative poverty. conduct field investigation on the relative poverty governance in ethnic border areas, such as returning to poverty and new poverty due to the obstruction of information access; this paper makes a case study on the government's information poverty alleviation ability, the pattern of social organizations participating in the joint construction and sharing of poverty alleviation, and the information literacy of the poor in ethnic border areas; this paper makes a heterogeneity analysis and comparative study on the ways and differences of information poverty governance between the southeast border area of chongqing and different villages in the eastern coastal area and ethnic border area. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 33 published by scholink inc. (2) evaluation research: the identification of information poverty and the construction of governance ability evaluation index system in ethnic border areas from the perspective of relative poverty. ① information poverty is identified and measured. based on theoretical analysis and literature review, the identification and measurement method of multidimensional poverty, a-f method, is used to identify and measure information poverty. on the basis of identifying information poverty, it accurately targets the information poor groups, so as to prevent the information poor groups from returning to poverty and the occurrence of new poverty. it advocates a multidimensional poverty governance system with the participation of the government, social organizations and poor groups, so as to realize the new pattern of jointly building and sharing poverty reduction. ② construction of evaluation index system of information poverty governance ability in ethnic border areas from the perspective of relative poverty. combined with the field survey data, build a scientific and reasonable evaluation system of information poverty governance level, select the indicators from the three dimensions of government level, social organizations and poor groups, and build the evaluation index system of information poverty governance in ethnic border areas through entropy weight method, analytic hierarchy process, topsis model and other methods. ③ analysis on the causes of information poverty and governance problems in ethnic border areas from the perspective of relative poverty. through the construction of the evaluation system of information poverty governance level, we can identify and find the size of the return to poverty risk and the probability of new poverty risk in the poverty-stricken areas in southeast chongqing, then identify and analyze the problems existing in information poverty governance, and further explore the causes of governance problems. (3) countermeasure research: the construction of information poverty governance mechanism and policy support in ethnic border areas from the perspective of relative poverty. ① construction of long-term governance mechanism of information poverty alleviation in ethnic border areas from the perspective of relative poverty. by tracing the problems found in the governance and the causes, build a long-term governance mechanism of information poverty. on the one hand, build a blocking mechanism for the return of poverty-stricken groups to prevent structural poverty and establish a bottom-up guarantee mechanism; on the other hand, build a blocking mechanism for the occurrence of new poverty, narrow the income gap between urban and rural areas, and maintain social harmony and stable development. ② build a policy guarantee mechanism for the long-term governance of information poverty in ethnic border areas. on the basis of combing the policy objectives, clarify the policy logic, formulate the policy content, construct the strategic framework of diversified and coordinated governance of the government, social organizations and poor groups, and design the operation mechanism, management system, system and organizational guarantee of the information poverty governance strategy. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 34 published by scholink inc. 5. research significance theoretical significance: (1) this paper combines the social governance of sociological research paradigm with the relative poverty governance of economic research paradigm, explores the special laws of poverty governance in ethnic border areas from a new perspective, and further expands the vision of poverty research; (2) strengthen poverty outcomes and rural revitalization of crucial is the crucial poverty after the country’s important strategic deployment, prevent has chinese out of poverty group and new occurrence of absolute poverty is to consolidate the inherent requirement of anti-poverty engines results, information poverty alleviation management research to provide rural revitalization and relatively poor organic fusion theory experience, help to deepen the xi jinping, general secretary of poverty alleviation. practical significance: (1) specific problems of information poverty in ethnic border areas can be found in time and the performance of information poverty governance in ethnic border areas can be truly measured through field investigation and evaluation system construction of information poverty governance level in ethnic border areas; (2) by evaluating the performance of government governance, market governance and governance of the poor, policy suggestions are provided to change the current problems of government information transparency, market mechanism is not smooth, and the relative poor households lack of participation in information poverty governance in ethnic border areas; (3) the information poverty governance level evaluation system established in this research can provide a measurement standard for the poverty governance level in ethnic minority areas, and popularize the results to the relatively poor areas across the country. references alkire, s., & foster, j. (2007). counting and multidimensional poverty measurement. journal of public economics, 95(7), 476-487. https://doi.org/10.1016/j.jpubeco.2010.11.006 chen, z. g., bi, j. y., wu, g. b., & he, x. j. (2019). prince mei yi the current situation and evolution of poverty alleviation in china and the vision and strategic focus of poverty alleviation after 2020. china rural economy, 409(01), 4-18. chen, z. s., shen, y. y., & zhou, y. b. (2013). absolute and relative changes of rural poverty in china—also on the setting of relative poverty line. management world, 2013(01), 67-77. cheng, m. w., zhang, s., & shi, q. h. (2018). farmers’ poverty and its determinants—an empirical analysis from the perspective of targeted poverty alleviation. journal of public administration, 15(01), 135-146. labar, k., & bresson, f. (2011). a multidimensional analysis of poverty in china from 1991 to 2006. china economic review, 22(4), 646-668. https://doi.org/10.1016/j.chieco.2011.08.005 lensink, r., & white, h. (2009). aid allocation, poverty reduction and the assessing aid report. journal of international development, 12(3), 399-412. https://doi.org/10.1002/(sici)1099-1328(200004)12:3<399::aid-jid658>3.0.co;2-5 https://doi.org/10.1016/j.jpubeco.2010.11.006 https://doi.org/10.1016/j.chieco.2011.08.005 https://doi.org/10.1002/(sici)1099-1328(200004)12:3%3c399::aid-jid658%3e3.0.co;2-5 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 35 published by scholink inc. liu, b. (2017). research on the “vulnerability” of farmers’ information poverty—a survey of information demand and consumption in rural areas of heilongjiang. library theory and practice, 2017(2), 5-10. may, j. d. (2012). digital and other poverties: exploring the connection in four east african countries. information technologies & international development, 2012(2), 33-50. meng, l. (2013). evaluating china’s poverty alleviation program: a regression discontinuity approach. journal of public economics, 101(5), 1-11. https://doi.org/10.1016/j.jpubeco.2013.02.004 sen, a. (1983). poor, relatively speaking. oxford economic papers, 35(2), 153-169. https://doi.org/10.1093/oxfordjournals.oep.a041587 townsend, p. (1962). the meaning of poverty. the british journal of sociology, 13(3), 210-227. https://doi.org/10.2307/587266 wathmanel, s. (2004). information upload strategy in building up rural community information pages on the internet: an approach to attending the information needs of rural sri lanka. the international information &library review, 2004(3), 241-252. https://doi.org/10.1080/10572317.2004.10762641 ye, x. q., & yin, h. d. (2019). from eliminating absolute poverty to alleviating relative poverty: china’s poverty reduction process and poverty reduction strategy after 2020. reform, 2019(12), 5-15. zhang, x. q., zhang, y. q., & yang, f. (2018). research progress of information poverty at home and abroad: connotation interpretation, research design and content summary. library forum, 38(08), 24-32. zhou, w., & wang, x. r. (2021). research on the dilemma and strategy of rural information communication under the rural revitalization strategy. journal of yunnan agricultural university, 15(1), 70-75. https://doi.org/10.1016/j.jpubeco.2013.02.004 https://doi.org/10.1093/oxfordjournals.oep.a041587 https://doi.org/10.2307/587266 https://doi.org/10.1080/10572317.2004.10762641 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 18 original paper the cybercrime acts and the electronic transaction in international law walid fahmy 1 1 professor of public international law, pharos university in alexandria, egypt received: january 26, 2024 accepted: february 20, 2024 online published: march 15, 2024 doi:10.22158/elp.v7n1p18 url: http://dx.doi.org/10.22158/elp.v7n1p18 abstract cyberthreats “cybercrime” is a “criminal offence that may be committed on or through a computer system generally connected to a network”. as a result, it is a new type of crime and delinquency that varies from previous forms in that it takes place in a virtual location known as “cyberspace”. in recent years, the democratisation of computer access and the globalisation of networks have both played a role in the growth of cybercrime. in fact, not isolated and the institutions in several states are fully aware of the seriousness of this phenomenon, which goes beyond the borders of each state. if all members of jordan’s criminal justice system are unaware of sophisticated computer and electronic device technologies, cybercrime will continue to rise. despite technological developments and the information revolution, some states limits the subject of criminal protection to cash and fails to protect information funds against fraudulent acquisition. international law plays a significant role in combating cybercrime and establishing guidelines for cooperation among nations. keywords cyber-crime, e-payment, law, security, international conventions, international telecommunication union www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 19 published by scholink inc. 1. introduction new technologies, particularly information and communications technology have an important place in economic life, and the number of transactions and exchanges conducted through the internet is increasing dramatically. while these new technologies contribute favorably to the growth of economic life, they also open new avenues for committing corporate crimes, which poses substantial risks given their increased relevance (toffler, 1981). the coherent link between criminal behaviour and society reaction is culturally mediated via the realm of signifier. cultural “imaginaries” regarding the internet and its related concerns are being formed across a wide range of representational domains, including press coverage (jewkes & yar, 2010). cybercrime are frequently worldwide in character, despite the fact that the information is data controlled by domestic law. in this context, the flow of information freely flowing through the investigating authorities is strictly bound by virtue of their national authority and the sovereignty concept. each legislature strives to either protect or defend himself or herself in his or her own territory or to abdicate legislative competence in the face of these illegal acts, or to observe and legislate as little as possible, which is an effective solution (gautraud, 1996). in jordanian legislation, the general provisions of cybercrime are not much different from what they are in conventional crime, except in a few cases in its material element, particularly with regard to the elements of time and place, the extent to which national laws apply to certain acts committed abroad and the determination of a competent judiciary within the unitary state. moreover, the criminal conduct of such crimes is represented in the flow of information through computer systems that cannot be physically controlled. although there is a difference between the area of cybercrime and the field of cybercrime, the technical reality has led to the merger of the two fields of “computerization and communication” with the term cybercrime. in order to determine the legal framework for this crime, a distinction must be made between two types of cybercrime. the first type is when information technologies has been used as a means to commit the crime, by attacking the computer’s own set of tools or the data “information and software”, so that the computer and the data it carries are assaulted. the second type is when information technology and telecommunications are the object and purpose of crime. thus, we are confronted with new criminal acts, most of which are linked involves the vulnerability of information systems’ security and integrity, as well as the confidentiality of data and information included within them. this type of crime is known as cybercrime via the internet, and is accomplished through illegal access to and exposure to sites and systems and the information contained therein, such as attacks on websites by destroying or disrupting them and others. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 20 published by scholink inc. 2. the meaning of cybercrime and its characteristics some scholars of criminal law have used the term “cybercrime” in reference to computer crimes, cybercrime, and other modern means of communication. there are those who use the term “cybercrime”, and the truth of this difference lies in the manner in which the researcher deals with the subject of his research and the subject of the right obtained by the assault. 2.1 the concept of cybercrime because there is no legal definition of cybercrime, it remains difficult to comprehend. because of this decision of lawmakers, the doctrine multiplied the meanings of this term, leading to the complexity of legal analyses. indeed, the lack of a legal definition of this term is a source of confusion, both in the field of reflection and in the analysis or vocabulary chosen. this confusion has led us to develop a practical definition of what cybercrime is, in order to understand its phenomenon. 2.2 lack of legal definition of cybercrime today’s difficulty is that all of these diverse discourses, methods, or narratives are irrational, and their assertions to knowledge are frequently inconsistent. do activities labeled as “cybercrimes” truly pose a “clear and present danger” to our “information societies”, necessitating the activation of the criminal justice system’s machinery? (završnik, 2008). definitions are important in cybercrime for many reasons that overlap: (1) how people define cybercrime will influence estimates of its scope; (2) how people define cybercrime will influence the consequences (or react appropriately) to specific behaviours; (3) how criminologists try to explain cybercrime will be influenced by definitions; and (4) how people define cybercrime will influence effective interventions used to focus on particular types of behaviour. definitions are important in cybercrime for at least seven reasons that overlap: (1) how people define cybercrime will influence estimates of its scope; (2) how people define cybercrime will influence the consequences (or react appropriately) to specific behaviours; (3) how criminologists try to explain cybercrime will be influenced by definitions; and (4) how people define cybercrime will influence effective interventions used to focus on particular types of behavior (payne, 2020). as cybercrime is not rigorously defined, it leads to terminological drifts. thus, mr. alderman and mr. bloch retain as a definition of computer crime, the definition of cybercrime proposed by experts of the organization for economic co-operation and development (oecd), namely “any illegal or unethical or unauthorized behavior, which concerns automatic processing of data and/or data transmissions”. these scholars, incorporating the moral concept into their definition, seem to consider that criminal law alone cannot contain the whole approach to the punishment of the fraudulent use of information technology. however, this approach cannot be accepted since dispute resolution charters, such as the internet charter for example, have revealed their limitations as an alternative dispute resolution world. the application of the criminal law is thus a solution to the failure of these initiatives (alterman, 1988). as well, cybercrime is defined as the use of digital, electronic or software capabilities to divert, hijack, destroy, or illegally exploit public or private information systems. the technical history of cybercrime www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 21 published by scholink inc. is, unsurprisingly, that of a permanent dialogue between the sword and the shield, between the attack and its counter-measure. “counter-measures” are responses to an action or event in order to prohibit, prevent or stop their proliferation at the source. “prohibition” counter-measures can simply put an end, hic et nunc, to a malicious operation. this is what security software does that identifies a malicious “virus” code, isolating it, placing it in quarantine, and eventually deleting it. the so-called “prevention” counter-measures will record and characterize this malicious behavior by its signature, its behavioral recognition and ensure that it is stopped as soon as it is detected. finally, the so-called “active” or “counter-offensive” counter-measures will extend this temporary ban by actively searching for its emission source in order to neutralize it (baumard, 2014). the confusion by these lawyers between cybercrime and computer crime is symptomatic of a difficulty in understanding this form of delinquency. this finding legitimizes the approach of the doctrinal approach which considers that the only acceptable approach is to reserve the meaning of computer fraud to the hypotheses in which computer technology is at the heart of the incriminating act while knowing full well that it is sometimes difficult to isolate the hard core of the periphery (lucas, 2001). the need to clarify acts that fall under cybercrime has led the doctrine to multiply the concepts designating illegal acts in relation to computers. this has spawned a plethora of doctrinal definitions of cybercrime. there is no legislation or regulation defining cybercrime. however, some related concepts, such as computer crime, computer crime, computer crime or computer misuse, have been defined to address the issue of assimilation or distinction between crime and cybercrime. according to the un, cybercrime must cover any illegal conduct involving electronic operations aimed at the security of computer systems and the data they process, and in a broader sense any illegal act committed by means of a computer system or network or in connection with a computer system (note 1). this definition uses the term illegal behavior to refer to cybercrime. however, conduct may be considered illegal in one state and legal in the other. these confusions have led us to question a few other definitions. for instance, in the united states, cybercrime accounts for a large proportion of the offenses examined by the police. its concept differs from state to state, and from one police department to another. thus, cybercrime is considered a violation of criminal law involving knowledge of information technology for its perpetration, investigation, or criminal proceedings. on its part, the california penal code defines a list of illegal acts that fall under the scope of cybercrime. it considers cybercrime to be the act of accessing, or intentionally allowing access to, any computer system or network in order to design or carry out any plan or device to defraud or extort money, goods or services for the purpose of defrauding; thus to alter, destroy, or damage any computer system, network, program, or data (note 2). the texas criminal code, however, goes further. he considers cybercrime to be the act of accessing a computer, a network, or a computer system without the permission of his master (note 3). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 22 published by scholink inc. the confusion created by these laws between cybercrime and computer crime is symptomatic of a difficulty in understanding this form of delinquency. today, cybercrime is only an illegal act related to computers. it has no specific reference in law. yet, despite inconsistent attempts to define it, the term regularly calls for reflex reactions from the media, policymakers, politicians, academics and the public. it’s a concept that can’t be easily ebranlated and dismissed since it’s quickly absorbed into popular jargon; and, while it has a specific meaning, it encompasses a wide range of activities (wall, 2001). 2.3 the trend towards practical definition of cybercrimes the previous examples illustrate the difficulty and complexity of this phenomenon. while some of the proposed definitions are narrow and insist that the category of this crime must involve a highly consumed computer operation in circumstances where the offence could not be committed, the other examples are broad and involve many offences that are already classified as traditional offences. however, a practical definition of cybercrime is necessary in order to understand this phenomenon. some scholars tend that cyberspace is a complex space to understand. it is both natural and artificial. natural because its source is natural: the real world (lessig, 1999). at the same time it is an artificial space. first of all, the language used is artificial-that of mathematics, starting with fundamental coding and ending with increasingly elaborate mathematical equations. these equations are like the germ of infinity of images, most of which have no correspondence in the natural world. cyberspace is also artificial because it results from sophisticated technology, implemented by humans. cyberspace acts as a transformer of the real into the imaginary, and from the real into the imaginary. a real, real, imaginary transformation is possible thanks to quantum information, for example, the substitution of substantial money by computer money is only an elementary illustration of this transformation of great generality (shyles, 2002). in that regard, it is neither determined nor indeterminate, it allows the notion of level of reality and the logic of the third party included to be brought into play. it is potentially a transcultural, and transnational space, so it is the space of human choice (anderson, 1991). compared to cyberspace, we are witnessing a real transformation of the entire international system. on the one hand, the birth of a new legal system that involves a change in transnational legal relations, and on the other hand, the development of new information and communication technologies that in turn have led to the emergence of a new type of crime known as computer crime (allot, 2000). the computer offender would therefore be the person who commits a computer crime. some authors dismiss the notion of computer criminal, in favor of that of computer criminal or computer fraudster (parker, 1985). for its part, others prefer the term “computer crime” to the term “computer fraud”, because of the harmony that takes place between the literal meaning of the word offender and its legal meaning (lucas , 1987). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 23 published by scholink inc. cyberspace appears as an object of the offence or as a passive instrument and the infringement results from the result that the beneficiary of the information provided by cyberspace or the presentation resulting from its operation is without right to obtain it. therefore, it is possible to be confronted with two hypotheses. in the first, the information contained in the computers will be used unlawfully, while the second hypothesis will concern the case of the misuse of this virtual space. cases concerning the destruction of computers, as well as the data or programs they contained. the addition of a prefix «cyber», which tends to appear excessively with each use of a classic concept on the internet, to « » crime, makes it possible to retain two kinds of relationships between crime and telecommunications networks. in the first instance, crime may be directly related to a telecommunication network, i.e., the law directly criminalizes an act which, if the telecommunication network did not exist, the act could not be carried out. in the present case, there is the hacking of telephone networks to make free telephone calls (bensoussan, 1996). secondly, crime may be indirectly related to a telecommunication network, i.e., the telecommunication network is understood as a tool or means to commit the offense. examples include unauthorized access to a computer system, or sending viruses over the internet. cybercrime in the strict sense of the term is therefore defined as all offenses committed against or by a computer system carried out through a telecommunications network. it requires the direct or indirect intervention of a telecommunications network to commit the infringement (shinder & cross, 2002). cybercrime can be defined as: any unlawful action associated with the interconnection of computer systems and telecommunications networks, where the absence of such interconnection prevents the commission of such unlawful action. under this definition, we can identify the four roles that the computer system plays in illicit acts: subject: cases involving the destruction of computer systems, as well as of data or programs contained therein, or the destruction of equipment supplying air conditioning, electricity, enabling computers to function. support: a computer system may be the location or medium of an offense, or a computer may be the source or raison d’être of certain forms and kinds of assets that can be manipulated without authorization. tool: certain types and methods of infringement are complex to require the use of a computer system as an instrument. a computer system can be used actively as in automatic scanning of telephone codes to determine the correct combinations that can be used later to use the telephone system without authorization. symbol: a computer system can be used as a symbol to threaten or deceive. for example, false advertising of non-existent services, as has been done by several computerized dating clubs. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 24 published by scholink inc. 3. the nature and the scope of cybercrime criminal behaviour is a socially influenced phenomenon. we will never be able to live in a society without cybercrime, no matter how hard we try. in reality, if we haven’t yet been able to bring the crime rate down to a reasonable level in the real world, how can we expect to do so in the virtual world, which is comparably more unreal, eternal, and legally less controllable? however, the nature, extent, and meaning of crime in a particular culture varies throughout time. the concept of a crime-free society is a fiction, because crime cannot be separated from civilization. as a result, the character of a crime is determined by the nature of a community (devi, 2019). the complexity of a civilization determines the intricacy of the crime that develops in its environs. it is necessary and crucial to check all of the elements that affect and contribute to crime in order to comprehend crime in a community. the socioeconomic and political structures of society must comprehend crime and the measures that may be taken to reduce it. when analyzing the nature and extent of a crime, the preventative and remedial actions taken by the machinery to regulate crime and delinquent behaviour in society are also taken into account (devi, 2019). a few year ago, “crime” was small-scale, straightforward, and consistent until, and it could be traced using existing methods. it is simple in the sense that it allows for countrywide generalization and a broad definition that may be encompassed within the word limit. even a legal legislation proclaiming any conduct to be prohibited and prescribing punishment for its violation was adequate to reduce crime rates. the majority of crime and associated phenomena are personal, and while widespread, they are still on a local scale. until recently, crime was thought to be anti-legal and anti-social behaviour performed by illiterates, impatient, mentally ill people, or conducted in response to unexpected provocation, acute emotional tension, or occasionally out of necessity, or, in extreme cases, to settle a score with victims (chowbe, 2011). likewise, with the right tools, these sorts of crimes are simply traceable. because the majority of crimes are of a personal character, and both the accuser and the victim share a common communal bond, transgressions are placed in a controllable, understandable context. in summary, crime as we have historically understood it is surrounded by a social environment in which social pressure is used to keep criminals under control, either by social knots or a socially directed sanctioned system. the social environment not only provided a buffer for residents, but also offered them the appearance of security, leading them to believe that they might avoid being victimised if they avoided particular activities or connections (chowbe, 2011). one element of international transactions over the internet that is difficult to identify is jurisdiction. when courts were confronted with problems of jurisdiction law, they were unable to determine the right venue to hear matters involving cybercrime since the virtual world is boundless when compared to the physical world, making it extremely difficult to monitor cybercrime. the perpetrator may have acted from nation a, using an internet service from country b, and the victim from country c. this is a problem in terms of criminal law application, since it raises concerns regarding which nation has www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 25 published by scholink inc. jurisdiction, which country should lead the investigation, and how to settle conflicts. while this case appears to be difficult now, it is important to remember that if the offence, for example, includes cloud computing services; it would be far more difficult. there’s a chance that more jurisdictions will be activated (gercke, 2012). the term jurisdiction is used to refer to a wide range of legal concerns. the jurisdiction of a sovereign state to control particular behaviour is described by the term “jurisdiction”, which is defined by a set of public international law. as a result, it is a facet of sovereign rights. nevertheless, in the perspective of a cybercrime investigation, refer primarily to a state’s ability to enforce its internal laws. in general, law enforcement can only conduct an inquiry if the government has jurisdiction over the situation. the history of nations that have passed computer criminal laws shows that the legislator has two alternatives when it comes to dealing with the topic at hand (gercke, 2012). to begin, legislators may combine the foregoing criminal provisions into a single code as single cybercrime legislation. some of the world’s most advanced industrialized countries, namely the united kingdom and the united states, have followed this tactic by enacting the computer misuse act in 1990 and the unauthorized access device and computer fraud and abuse act in 1984, correspondingly. other states, such as malaysia, which passed the computer crimes act in 1997, and the united arab emirates, which passed the federal law on the prevention of information technology crimes in 2006, have used a similar approach (kadi, 2010). the second alternative is to include meaningful criminal laws relating to cyber offences into the country’s current penal code. many countries throughout the world, including germany, denmark, france, switzerland, and canada, have followed this method (kadi, 2010). each technique has its own set of benefits and drawbacks: incorporating new criminal provisions into existing penal legislation keeps the country’s substantive criminal law in a single code and prevents the dispersion of criminal provisions over several laws. this technique is also more beneficial for courts, prosecutors, legal experts, and even regular citizens since it makes substantive criminal legislation relating to cybercrime more understandable. the inclusion of the abovementioned criminal laws in one separate code as a particular cybercrime statute, on the other hand, provides at least one substantial advantages, in that it would raise public awareness of computer crime, which is widely recognized as one of the most effective means of deterring cybercrime (kadi, 2010). as a result, cybercrime has become a worldwide issue, and statewide generalization of crime is no longer feasible in the current environment. our knowledge and control of cybercrime cannot be limited to a single country, but must be global. only by enacting new laws and preparing worldwide preventative and defensive mechanisms will we be able to safeguard our civilization from this scourge known as cybercrime. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 26 published by scholink inc. 4. features of cybercrimes cybercrime as a whole is characterized by several characteristics, whether it is generalized, induced or executed, and cybercrime is often international in nature. 4.1 evidentiary difficulty in cybercrime cybercrime is an area of automated information processing that targets morale, not material. this crime is therefore more difficult to prove punishable because the perpetrator has used sophisticated technical and technical means, and the criminal behavior that constitutes it is very difficult to detect. it is very easy for the perpetrator to conceal any electronic material evidence, as the perpetrator does not leave any tangible material outside after him. this, of course, makes it difficult to detect the crime and identify the perpetrator, unlike the traditional crime, which usually leaves material evidence or is verified by witnesses or other evidence. on the one hand, computer artifacts can be easily modified, overwritten or erased and therefore pose problems because digital information sources need to be authenticated and verified. the rules of evidence vary greatly depending on the jurisdiction, and even between countries that have similar legal traditions. however, legal systems in the common law tradition generally tend to have defined rules on the admissibility of evidence. in legal systems in the civil law tradition, in which professional judges maintain a high level of control over court proceedings, the admissibility of evidence may be flexible, although the weighting of evidence including the verification of its credibility and authenticity may also be subject to a set of rules (office des nations unies contre la drogue et le crime, 2010). for instance, in several legal systems, the quality of the procedures applied to maintain the integrity of digital information from the moment of its creation to its introduction in court must be demonstrated by the proposer of the evidence. the integrity and authenticity of digital information have a direct influence on the weight of evidence, in terms of its credibility and veracity. the party seeking to present evidence must generally demonstrate the durability of the evidence or chain of custody, in order to demonstrate that the evidence has not been falsified or altered. the durability of evidence is usually a matter of fact and the chain of custody process is the mechanism applied to maintain and document the chronological history of evidence that has been moved from one place to another (office des nations unies contre la drogue et le crime, 2010). the reliability of information generated and stored on a computer has also been challenged based on security flaws in programs and operating systems that could threaten the integrity of digital information (office des nations unies contre la drogue et le crime, 2010). 4.2 the cybercriminal has special characteristics the skill required to carry out criminal activity is the most prominent characteristic of an electronic offender. the overall implementation of cybercrime requires a certain amount of skills that the offender may acquire through his or her studies in this area or through experience in information technology. however, this does not necessarily mean that the cybercriminal has a great deal of knowledge in this area. the knowledge of the cybercriminal is embodied by identifying all the circumstances surrounding www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 27 published by scholink inc. the crime to be carried out. where an electronic criminal can be a complete picture of his crime, by returning to the way and where cybercrime is practiced by computer system, the criminal can apply his crime to systems similar to those he targets before carrying out it. the full description of a cybercriminal can contain several elements. age, gender, socio-economic background, nationality and motivation are among the main characteristics. moreover, the level of the criminal represents a distinguishing feature of the element of the human association behind the criminal behavior. understanding cybercrime as a “socio-technological” phenomenon, based on the characteristics of the people who commit these crimes, represents a broader approach to prevention than relying solely on technical cyber security concepts (levi, 2002). although individual characteristics are comparatively simple to define, it is well known that the analysis of organized crime frequently presents difficulties in measuring and defining it. this study adopts the expanded definition of an organized criminal group established by the united nations convention against organized crime. in this definition, there are several approaches to typology, as well as to classify a specific criminal offense as an “organized crime”. there is no reason to believe that the development of these approaches and typologies could not be applied to the involvement of organized criminal groups in cybercrime—facing new challenges and on a case-by-case basis (office des nations unies contre la drogue et le crime, 2010). 4.3 motivation for cybercrime there is little difference between the perpetrators of cybercrime than in traditional crime, as the desire for profit or material benefit illegally is often the motive for the commission of cybercrime. it may also be motivated by a desire to conquer the computer system and overcome its protection barriers. the goals of digital criminals may be quite broad and include a wide range of acts. it is difficult to identify a motivation in illicit cyber actions. so, several investigations and research have yielded diverse findings on the classification of reasons. according to some scholars, six prevalent mindsets among hackers include addiction, curiosity, and the pleasure of information searches, access, peer recognition, and discovering security vulnerabilities. in addition, hacker motives were divided into three categories: the desire for a challenge, greed, and malevolent purpose or vandalism. other scholars have summed up the motives for illicit online actions as money, amusement, ego, cause, social group membership, and prestige (li, 2017). hackers may hack for intellectual reasons, such as educational experimental work, harmless fun, or as a wake-up call; for personal reasons, such as negative reactions, cyber stalking; for social reasons, such as cyber-activism; for political reasons, such as cyber terrorism, cyber-warfare; for financial reasons; and for ego reasons. moreover, there are ten types of hackers: curious hackers thrill seekers, people who want information about computers and their flaws, power seekers, vandals, people who steal industrial information, secrets, and/or intellectual property, people who steal money, people who undertake industrial espionage, terrorists, and international spies (li, 2017). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 28 published by scholink inc. 4.4 the transnational nature of cybercrime cybercrime is a crime that transcends the geographical boundaries of a state, since it is carried out through the information network. the perpetrator is often in one state and the victim is in another state, and the potential harm may be in a third state. this problem is particularly evident in the area of banks, where the connection of means of communication to computers has multiplied international financial transactions by electronic means, particularly through electronic transfer of funds, giving cybercrime an international dimension, especially the crimes of information fraud and credit cards. in other words, cybercrime has no geographical boundaries. it can be done against a victim who is located in another city, state, or country. a perpetrator just needs access to a computer that is connected to the internet. the culprit does not require a passport and does not pass through any checkpoints while committing his crime. automation enables criminals to perform a large number of computer crimes in a short period of time. the restrictions that govern physical activity do not apply to perpetrators of cybercrime (aslan, 2006). the main impediment to efforts to internationally unify domestic computer crime legislation is the fast growth of computer networks and information technology. differences in certain substantive values may constitute a barrier to the adoption of harmonized domestic legislation on cybercrime. furthermore, even if countries enact laws that harmonize their criminality of specific computer activity, they may nevertheless use various criteria for conviction and apply different punishments upon conviction. this disagreement is unavoidable since computer crimes in a highly industrialized country have far-reaching consequences than in a less industrialized country (aslan, 2006). another impediment to remedies that rely on international cooperation is the inability of many nations to dedicate enough resources to combating computer crime. 61 it is not enough to just pass laws; each country must have enough internal resources to implement those laws. 62 law enforcement authorities have frequently been hesitant to devote enough resources to combating the growing threat of cybercrime (aslan, 2006). the international nature of cybercrime has raised an important question as to the determination of jurisdiction and location to prosecute this crime. is it the state in which the criminal activity occurred, the state in which the information in question is located or the state in whose interests the crime was caused by such manipulation? given the transnational character of cybercrime and its link to organized criminal groups, the united nations convention on transnational organized crime (al hait, 2014) (note 4) can be utilized as a foundation for enacting steps to obtain jurisdiction over different computer-related offences. article 15 of the untoc specifies the criteria by which the convention’s contracting countries may gain jurisdiction over the offences specified by the treaty. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 29 published by scholink inc. it says that the convention’s contracting parties may establish jurisdiction over crimes recognized by the treaty when the offence is committed inside their territory. this is a repetition of the territorial principle of criminal law, which asserts that all crimes perpetrated inside a country’s territory are subject to its jurisdiction. jurisdiction over computer-related offences can also be established if the offence is committed on board a vessel or even inside an aircraft licensed under the laws of the country. this is because watercraft and aeroplanes are seen as extensions of a sovereign territory (al hait, 2014). as an example of national laws, in the united states, before any person or organized criminal group may be prosecuted, the court must have jurisdiction over the offence in question. as a general rule, the court has stated that there is a presumption that us legislation do not have extraterritorial application. this is due to the need to avoid disputes with foreign laws that may arise as a result of the passage of legislation with extraterritorial applicability (al hait, 2014). in case of conflicts on jurisdiction over cybercrimes, taking into account the specific provisions of cybercrime laws in the united states and the united kingdom, it needs to follow that in a hypothetical case where a british criminal commits a hacking crime against an american individual in the united states, the jurisdiction over the offence will be as follows: in the first case, because computer hacking is punished as a felony in the united states, the united states may exercise jurisdiction over the crime perpetrated within its territory under the concept of nationality. in this case, the crime did not occur in the united states since the computer hacking occurred in the united kingdom. however, because the victim is a us citizen, the location of the offence is irrelevant. the united kingdom, on the other hand, may not claim jurisdiction over the offence. following the crown prosecution service’s decision in the gary mckinnon case, which will be discussed further below, it can be argued that while the act of computer hacking was committed in the united kingdom, this does not automatically guarantee jurisdiction over the crime to the courts of the united kingdom. it should be noted that the computer misuse act of 1990 requires that the crime be strongly correlated to the united kingdom’s domestic jurisdiction. however, in this case, the victim was an american who also stays in the united states. the consequences of the crime occurred outside of the united kingdom as well. as a result, only the united states may assert jurisdiction in this matter. nevertheless, if the victim is an american citizen residing in france, the united states will also have jurisdiction over the violation under the nationality principle. the united kingdom may nevertheless deny jurisdiction over the offence since it is not inextricably related to it. france’s jurisdiction over the case is dubious because the crime was not intended at it. furthermore, the crime has no bearing on france’s national interests. as a result, only the united states can assert jurisdiction over the offence (al hait, 2014). pursuant to jordanian law, just as a natural or moral person commits cybercrime, the victim may be, although it often falls on the moral person as financial institutions, super-companies and others. although information in these crimes is the most important target interest, especially if this information is of great value and importance and the aim of the cybercriminal is to obtain compensation for this www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 30 published by scholink inc. information. it should be noted that the victim of this crime has a negative role to play, as many victims often prefer to hide their exposure to damages resulting from cybercrime, perhaps because they want to maintain their commercial reputation and financial position, and therefore the most targeted groups are banks and international institutions, so they limit victims to not disclosing the differences on their computerized devices (kashkoush, 2000). 5. elements of cybercrimes cybercrime is based on two main pillars: the physical and moral elements, the cybercrime must have a physical element of an offence (corpus delicti) that represents its concrete entity and reflects the conduct of the cybercriminal in a provable manner, and there must also be a moral corner that reflects the knowledge and will of the cybercriminal. 5.1 corpus delici of the crime the physical element of this offense is the criminal conduct of an act or omission ordered by law, and the physical element here differs from one situation to another depending on the classification of the act, and accordingly; cybercrime cannot be restricted to a single legal characterization. the incident committed, which is described as a cybercrime, may constitute an affront, malicious, contemptible or threatening incident, and other acts in a manner that is in full conformity with the penal code through certain rules, the provisions of which apply even to crimes committed through the computer system. this is not problematic, as the provisions of the penal code can be applied to these traditional acts, but there are certain types of behavior that require a distinction between them and their “traditional” precedent, which calls for legislative intervention such as theft and electronic fraud. 5.2 traditional electronic behavior nulla poena sine lege can indicate a variety of things. in a narrower sense, that precise formula refers to the treatment-consequence component of penal laws: no one shall be punished except in accordance with a legislation that establishes a punishment for criminal activity. the restriction, known as nullum crimen sine lege, states that no action shall be considered criminal unless it is expressly stated in the behaviour situation element of a penal legislation. furthermore, the concept of tudla poena sine lege has been interpreted to encompass the norm that criminal legislation must be carefully construed. the rule’s last and most crucial implication is that criminal laws cannot be applied retroactively. obviously, each of the above meanings must be kept separate (hall, 1937). the same is true in jordanian law. the principle of penal legitimacy, which says: “nullum crimen, nulla poena sine lege”, has become a well-established principle in the penal code, and therefore no punishment for any positive or negative conduct except on the basis of a law that provides for its criminalization at the time of its committing and no sanctions or measures that have not been regulated by law, as confirmed by article 4 of the penal code, and it is known that many types of conduct with which information can be obtained by computer are subject to for the provisions of the penal code www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 31 published by scholink inc. such as threats (note 5), slander (note 6), contempt, disclosure of secrets (note 7), etc. with regard to the applicability of traditional texts to acts committed by electronic means, such as computers, article 355 of the jordanian penal code, he noted that in the crime of disclosing secrets, the legislator requested the availability of certain acts constituting the crime of disclosing state secrets. the legislator used a flexible and interpretable term in several forms when using the word “pornography”, it may be verbally disclosed secrets, it may be written and may be by another person, and this does not prevent the use of modern technical means to send secrets, e-mail so it's a way to convey state secrets (elhusseiny, 2000). however, there are patterns of criminal conduct found as a result of technically advanced means to which none of the provisions of the penal code can apply, but the application of legal texts to them is a departure from the principle of criminal legitimacy to which the court has to abide by this, and on the other hand, the broad interpretation of the texts cannot be relied upon because it would expand the cycle of criminalization, a fact that imposes legislative intervention in the absence of texts governing the facts presented. traditional texts do not apply to these facts. from the above, it is clear that many cybercrimes are governed by the general rules governing other crimes and others are governed by special rules, and although there is something outside the scope of these rules, this necessitates legislative intervention to deal with certain unpunished acts but in themselves they are considered wrong, or at least the increased penalty, which makes them consistent with the serious harm that may be done to financial and social institutions, the damage caused by these crimes exceeds all it is particularly conceived if it is directed against banks and other state sectors such as the stock exchange, the military sector, the air, land, sea and other sectors (elshewa, 1998). 5.3 non traditional electronic behavior criminality takes different forms than in the past, where the electronic criminal has a high degree of intelligence and competence and this has made him keep up with technology, and therefore the legislator has to keep up with this, by developing his means to deter these types and images of acts that have been expanding and increasing without legal obstacles, he had to develop the means to protect him the rules of criminalization “in a way that secures the requirements of this development, and from the new crimes committed by computer, for example the use of electronic information, whose provisions are not similar to the provisions of the traditional theft offence provided for in article 499 of the jordanian penal code, the difference between them is that the use of electronic information takes place without the transfer of the transfer to the possession of the perpetrator, i.e., the electronic criminal may enter into the memory of another computer and see the contents in it and withdraw a copy of it as belonging to another person”. other new offenses include the penetration of networks and computers belonging to third parties, whether natural or moral, as illegal intrusion, breach of confidentiality, breach of private life or illegal access to information. these offenses also include the dissemination of illegal ideas and intrigues through the information network, whether religious, political or moral, as well as the use of electronic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 32 published by scholink inc. mail to infringe upon intellectual property rights, as well as the blocking of internet networks and access to computer devices and their disruption by viruses that may cause the total or partial destruction of information or the diversion of data stored on state computers (note 8). 5.4 mental element the relevance of the mental component in crime should not be overlooked. for it is the mental component of an offence that separates between mistake and crime, murder and mishaps and the innocent taking of property from steal. in all of these contrasts, the conduct is the same in each section-it is the mental state that distinguishes them, and it is the mental aspect that determines when the criminal law will be applied (france, 1990). cybercrime, like any other traditional crime, must be committed by a person who is able to bear the responsibility for his actions as a “criminal official”, and therefore those who are not recognized by the penal code as such and who have been under the influence of coercion or necessity under article 99 of the penal code, or who are unaware or of the “insane” will provided for in articles 94-94 of the penal code. in general, the mental element is a relationship between the material nature of the crime and the personality of the perpetrator. this relationship is subject to the law and consists of the control of the perpetrator over his behavior and the consequences of such behavior, the essence of which is willpower and therefore of a psychological nature. it is well known that there is a division of offenses, the moral element being the basis for which the offense is either intentional or unintentional. this is what the jordanian penal legislature has taken into account in article 11 of the penal code, so that the offense is intentional. if the result of the offense arises from the perpetrator's intent, if it is foreseen, it is presumed to have occurred, and the error is if the act is caused by negligence, lack of caution or failure to observe laws and regulations. 5.5 cybercrime as crime considering that the meaning of a mental element changes depending on the criminal offence, the only way to fully comprehend mens rea is to thoroughly examine the terms of specific crimes. the law on mens rea has been largely developed by debates about the required mens rea criteria in respect to certain offences. for example in english criminal law, a variety of words have been used to communicate responsibility, including purpose, intention, recklessness, wilfulness, knowledge, belief, suspicion, reasonable cause to believe, maliciousness, fraudulence, dishonesty, corruptness, and suspicion (marchuk, 2014). with the emergence of certain types of crimes, such as money-laundering, terrorism, organized crime and the use of modern technology in the commission of crimes, many have come to view the offender as having great intelligence. the crimes of money-laundering require a high degree of economic knowledge in the form of sale and purchase and discernment in concealing the illegitimate nature of these funds and their appearance of legitimacy. the same applies to cybercrime, which requires a share of specialized knowledge of the computer science, software and information network of the offender, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 33 published by scholink inc. and sometimes even the use of experts to commit this crime. although the jordanian legislature has not spoken of the figure of the mental element, it may require criminal intent, since the crime is intended as a public origin and the exception is unintentional. cybercrime, according to the scenario, occurs only intentionally, preceded by the temporal and psychological elements, i.e., thinking and contemplating information and penetrating the computer and the information network in order to achieve the benefit or goal of the perpetrator. the computer may be the instrument used for counterfeiting and may be a means of unduly acquiring cash from funds or of destroying information stored on another computer, or a means of destroying a second computer’s memory after transferring information in it in an attempt to remove the effects of the crime, or use viruses for destruction, destruction of the crime, the result of sexual exploitation or the will to achieve all such crimes. 5.6 cybercrime as unintended crime under article 11 of the penal code, an offense is unintentional if the result of the criminal offense is due to the fault of the perpetrator, whether it is negligence, lack of caution or disregard of laws, regulations and orders. in general, the offense is unintentional if the perpetrator wants to act and his will is not affected by the crime. it is conceivable that a cybercrime could take place in this manner. it is possible that the person who relies on his skills to avoid the problems of viruses and the equipment in which he works as a result of the excessive use of the computer belonging to the department in operations on his own account. 6. the cybercrime in international law there are several key international legal instruments and initiatives that are relevant to addressing cybercrime. here are some of the most important ones: 1) united nations general assembly resolutions: the united nations has adopted several resolutions that recognize the importance of addressing cybercrime and emphasize the need for international cooperation in this area. these resolutions encourage member states to develop national legislation and cooperate with one another to combat cybercrime. 2) council of europe convention on cybercrime: also known as the budapest convention, this treaty is the first international legally binding instrument that addresses both substantive criminal law and procedural law aspects of cybercrime. it sets out offenses related to computer systems and data, such as unauthorized access, computer-related fraud, and child pornography. the convention also establishes procedures for investigations, extradition, and international cooperation. 3) european union (eu) directives: the eu has enacted several directives to combat cybercrime and strengthen cybersecurity within its member states. these directives cover a wide range of issues, including attacks against information systems, data breaches, and the protection of critical infrastructure. 4) international telecommunication union (itu): the itu is a specialized agency of the united nations that deals with information and communication technologies. it plays a role in promoting international www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 34 published by scholink inc. cooperation and developing guidelines and standards to enhance cybersecurity and combat cybercrime. 5) mutual legal assistance treaties (mlats): many countries have bilateral or multilateral agreements known as mlats, which provide a legal framework for cooperation in criminal matters, including cybercrime. these treaties enable countries to request and provide assistance in investigations, extradition, and the gathering of evidence. 6) interpol: the international criminal police organization (interpol) facilitates international police cooperation and assists member countries in combating cybercrime. it operates various initiatives and platforms to support information sharing, capacity building, and coordination among law enforcement agencies. it’s important to note that the legal frameworks and approaches to cybercrime may vary among countries. some countries may have specific legislation targeting cybercrime, while others may rely on existing laws to prosecute cybercriminals. international cooperation and coordination are crucial to effectively combat cybercrime, as it often involves cross-border activities and the need to share information and evidence between jurisdictions. 6.1 cybercrimes in international conventions international conventions and treaties play a significant role in addressing and combating cybercrime. these conventions provide a framework for international cooperation, harmonize legal approaches, and establish guidelines for the prosecution and prevention of cybercrimes. here are some key international conventions that deal with cybercrime: 1) council of europe convention on cybercrime (budapest convention): this convention is one of the most comprehensive international instruments addressing cybercrime. it criminalizes a wide range of cyber offenses, including illegal access, data interference, system interference, computer-related fraud, child pornography, and offenses related to copyright infringement. it also establishes procedures for investigations, extradition, mutual legal assistance, and international cooperation in combating cybercrime (maskun, manuputty, noor & sumardi, 2014). 2) united nations convention against transnational organized crime (untoc): while not specifically focused on cybercrime, untoc is a framework convention that includes provisions relating to organized criminal activities, which can include cybercrime. it encourages international cooperation and the development of domestic legislation to combat organized crime, including cybercrime, and provides a platform for countries to collaborate in addressing transnational cybercriminal activities. 3) african union convention on cyber security and personal data protection (malabo convention): this convention was adopted by the african union in 2014 and aims to address cybercrime and enhance cybersecurity in africa. it criminalizes various cyber offenses, such as unauthorized access, interception of data, and cyber terrorism. the convention also promotes cooperation among african states in areas such as information sharing, capacity building, and harmonization of legislation (bekele, d., 2017). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 35 published by scholink inc. 4) shanghai cooperation organization (sco) convention on combating extremism (sco convention): the sco convention, adopted by the member states of the shanghai cooperation organization, focuses on combating extremism but also includes provisions related to cybercrime. it addresses offenses such as the use of information and communication technologies for terrorist purposes and the dissemination of extremist content online. the convention promotes cooperation among member states to prevent and combat cybercrimes with an extremist dimension. 5) asean convention on cybercrime: the association of southeast asian nations (asean) adopted this convention to enhance regional cooperation in combating cybercrime. it criminalizes various cyber offenses, such as unauthorized access, illegal interception, and data-related offenses. the convention also provides mechanisms for international cooperation, including extradition, mutual legal assistance, and the establishment of a network of national contact points. it’s worth noting that while these conventions provide a framework for international cooperation, their ratification and implementation by individual countries may vary. additionally, some countries may have their own domestic legislation specifically targeting cybercrime. international cooperation and coordination are essential in addressing cybercrime effectively, as cybercriminal activities often transcend national borders and require collaboration among countries to investigate, prosecute, and prevent cybercrimes. 6.2 the contributions of international telecommunication union (itu) the international telecommunication union (itu) plays a significant role in enhancing cybersecurity through various initiatives and activities. here are some ways in which the itu contributes to cybersecurity: 1) setting standards and best practices: the itu develops international standards and best practices to promote cybersecurity. these standards cover a wide range of areas, including network security, incident response, cryptography, and secure software development. by establishing globally recognized standards, the itu helps ensure that cybersecurity measures are consistent and interoperable across different countries and organizations (international telecommunication union, 2012). 2) capacity building and training: the itu provides capacity-building programs and training initiatives to help member states develop their cybersecurity capabilities. it offers workshops, seminars, and training courses on topics such as cyber threat intelligence, risk management, incident response, and cybersecurity policy development. by improving the knowledge and skills of cybersecurity professionals, the itu helps strengthen the overall cybersecurity posture of member countries. 3) cybersecurity awareness: the itu promotes cybersecurity awareness among governments, businesses, and the general public. it raises awareness about emerging cyber threats, best practices for protecting digital assets, and the importance of responsible online behavior. through campaigns, publications, and events, the itu aims to foster a culture of cybersecurity and encourage individuals and organizations to take proactive measures to protect themselves from cyber threats. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 36 published by scholink inc. 4) cybersecurity incident response: the itu operates the global cybersecurity index (gci) and the itu-impact (international multilateral partnership against cyber threats) platform. these initiatives help facilitate the sharing of information and coordination of responses to cybersecurity incidents among member states. the itu also assists countries in developing national incident response capabilities and establishing computer emergency response teams (certs) to effectively respond to cyber threats and incidents (international telecommunication union, 2012). 5) international cooperation and collaboration: the itu fosters international cooperation and collaboration among member states, industry stakeholders, and other international organizations. it facilitates information sharing, coordination, and joint initiatives to address global cybersecurity challenges. the itu also works closely with other cybersecurity-related organizations, such as the international electrotechnical commission (iec) and the international organization for standardization (iso), to ensure a holistic and coordinated approach to cybersecurity. 6) policy development and advocacy: the itu actively engages in policy discussions and advocacy efforts related to cybersecurity. it provides a platform for member states to exchange views, share experiences, and establish common positions on cybersecurity issues. the itu also contributes to global policy debates and initiatives, such as the united nations group of governmental experts on developments in the field of information and telecommunications in the context of international security (un gge), to shape international cybersecurity norms and frameworks. overall, the itu plays a crucial role in promoting cybersecurity at the international level by developing standards, building capacities, raising awareness, facilitating cooperation, and advocating for effective policies and practices (international telecommunication union, 2012). 6.3 the cooperation among countries in investigating and prosecuting cybercrimes international conventions on cybercrime provide mechanisms and guidelines to facilitate cooperation among countries in investigating and prosecuting cybercrimes. here are some key features that promote cooperation (verdelho, 2008): 1) extradition: international conventions establish provisions for the extradition of individuals suspected or convicted of cybercrimes. they outline the process by which one country can request the extradition of a suspect from another country. extradition enables the transfer of an accused person to the requesting country to face trial or serve a sentence. these provisions help ensure that cybercriminals cannot evade justice by crossing international borders. 2) mutual legal assistance: international conventions also provide a framework for mutual legal assistance between countries. mutual legal assistance (mla) allows countries to request and provide assistance in various aspects of cybercrime investigations and prosecutions. this assistance can include sharing information, gathering evidence, conducting searches and seizures, and taking testimony from witnesses. the conventions establish procedures and guidelines to streamline the process of mla, ensuring efficient cooperation between countries. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 37 published by scholink inc. 3) law enforcement cooperation: international conventions encourage and facilitate cooperation among law enforcement agencies across borders. they promote the exchange of information and intelligence related to cybercrimes, allowing law enforcement agencies in different countries to collaborate in investigations. this cooperation can involve sharing data on cyber threats, coordinating joint operations, and assisting in the identification and apprehension of cybercriminals. 4) joint investigations and task forces: international conventions support the establishment of joint investigations and specialized task forces to tackle cybercrimes. these structures bring together law enforcement agencies from multiple countries to work collectively on complex cybercrime cases. by pooling resources, expertise, and information, joint investigations and task forces enhance the effectiveness of investigations and prosecutions. 5) data preservation and recovery: international conventions recognize the importance of preserving electronic evidence and facilitating its recovery. they establish procedures for the preservation of data, including data stored in different jurisdictions. these provisions ensure that crucial evidence is not lost or destroyed, enabling its use in cybercrime investigations and prosecutions. 6) information sharing and training: international conventions promote information sharing and capacity-building initiatives among countries. they encourage the exchange of best practices, expertise, and technical knowledge related to investigating and prosecuting cybercrimes. training programs and workshops are organized to enhance the skills of law enforcement officials, prosecutors, and judges in dealing with cybercrime cases. 7) harmonization of laws: international conventions encourage countries to harmonize their domestic legislation with the provisions of the conventions. this harmonization helps establish a common legal framework for addressing cybercrimes and ensures consistency in the interpretation and application of laws across different jurisdictions. it facilitates cooperation by removing legal barriers and aligning legal approaches to cybercrime. by providing these mechanisms and guidelines, international conventions on cybercrime create a framework for countries to cooperate effectively in investigating and prosecuting cybercrimes. they help overcome jurisdictional challenges, facilitate information sharing, enhance law enforcement capabilities, and promote a coordinated global response to cyber threats. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 38 published by scholink inc. 7. conclusion following the presentation of the topic of cybercrime and its legal dimensions, the complexity and difficulty of the topic was noted, as cybercrime was a relatively recent crime requiring future studies as an attempt to establish general principles for all related crimes in technical and information development and modern means of communication. this required legislative intervention in order to establish an integrated legal mechanism and fill all the gaps in the penal laws in force in this regard. it is imperative to recognize that the phenomenon of cybercrime, which is taking on a new form, is a serious challenge at the present time, which requires combating it both in terms of trade and punishment and in terms of prosecution, which requires; first, based on the conviction of the seriousness of this phenomenon and the attempt to reconcile respect for the principle of the national sovereignty of each state in its traditional form, and to depart, albeit to a greater extent, before the necessities and requirements of international judicial cooperation, which, as far as its success is concerned, achieves the effectiveness of all efforts and the means deployed to address and combat the phenomenon of cybercrime. secondly, the development of the penal legislative structure with continuous and persistent legislative intelligence fills the gaps of penal regulations in such a way that they can subject these crimes to their descriptions and texts, and to keep up with the developments begged by the perpetrators of these crimes. the point of this study is that there is no agreed definition of cybercrime, and the designation of this crime has been and continues to be the subject of doctrinal debate between its designations as information, electronic or technical crime... etc., although specialists have made efforts to thank them for reaching an appropriate definition that is appropriate to the nature of cybercrime. however, attempts to find a definition of this crime have multiplied, but not all are out of two directions; first, narrow to the concept of cybercrime, and the second has expanded its concept. cybercrime is a new fact and a new phenomenon in the international legal corridors. responses to international law describe cybercrime as a new type of international crime that is not subject to international regulation. the establishment of a “needs for international law” instrument is urgent. indeed, it is thought that the regime should generally be governed by international law. due to the universal nature of the agreement, it will give cybercrime a legal status under international law. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 39 published by scholink inc. references allot, p. (2000). the emerging universal legal system. international law forum, 3(1). https://doi.org/10.1163/15718040120962653 alterman, h., & bloch, a. (1988). la fraude informatique (no. 246-247). gazette du palais, paris. anderson, b. (1991). imagined communities: reflections on the origin and spread of nationalism. verso. aslan, m. y. (2006). global, “nature of computer crimes and the convention on cybercrime”. ankara law review, 3(2). https://doi.org/10.1501/lawrev_0000000035 baumard, p. (2014). la cybercriminalité comportementale: historique et regulation. la revue française de criminologie et de droit penal, (3). bekele, d. (2017). the african union commission and internet society support internet infrastructure security in africa. global forum on cyber expertise. bensoussan, a. (1996). les télécoms et le droit. hermes. bologna, g. j. 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(2011). the mental element. vuwlr monograph, 20(3). gautraud, n. (1996). internet, le législateur et le juge. gazette de palais. gercke, m. (2012). understanding cybercrime: phenomena, challenges and legal response. international telecommunication union. hall, j. (1937). nulla poena sine lege. yale law journal, 47(2). https://doi.org/10.2307/791967 international telecommunication union. (2012). understanding cybercrime: phenomena, challenges and legal response. jewkes, y., & yar, m. (2010). handbook of internet crime. willan publishin. kadi, r. m. (2010). the scope and the nature of computer crimes statutes—a  critical comparative study. german law journal, 11(6). https://doi.org/10.1017/s2071832200018757 https://doi.org/10.1163/15718040120962653 https://doi.org/10.1501/lawrev_0000000035 https://www.amazon.fr/s/ref=dp_byline_sr_book_1?ie=utf8&field-author=donn+b.+parker&text=donn+b.+parker&sort=relevancerank&search-alias=books-fr https://doi.org/10.5539/jpl.v7n2p94 https://doi.org/10.2307/791967 https://doi.org/10.1017/s2071832200018757 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 40 published by scholink inc. kashkoush, h. h. (2000). criminal protection of electronic commerce on the internet. arab renaissance publishing house (dar elnahda). lessig, l. (1999). code and other laws of cyberspace. basic books, inc. division of harper collins. levi, m. (2002). perspectives on “organised crime”: an overview. the howard journal, 37(4). https://doi.org/10.1111/1468-2311.00104 li, x. (2017). a review of motivations of illegal cyber activities. criminology & social integration journal, 25(1). https://doi.org/10.31299/ksi.25.1.4 lucas, a. (1987). le droit de l’informatique. presses universitaires de france, coll. thémis droit. lucas, a. (2001). le droit de l’informatique. presses universitaires de france, coll. thémis droit. marchuk, i. (2014). the fundamental concept of crime in international criminal law a comparative law analysis. springer-verlag berlin heidelberg. https://doi.org/10.1007/978-3-642-28246-1 maskun, m. a., noor, s. m., & sumardi, j. (2014). legal’s standing of cyber crime in international law contemporary. journal of law, policy and globalization, 22. office des nations unies contre la drogue et le crime. (2010). etude détaillée sur la cybercriminalité, rapport. payne, b. k. (2020). defining cybercrime. in j. h. thomas, & m. b. adam (eds.), handbook of international cybercrime and cyberdeviance. he palgrave, springer. https://doi.org/10.1007/978-3-319-78440-3_1 pedro, v. p. (2008). the effectiveness of international co-operation against cybercrime: examples of good practices, 1(4). retrieved from https://rm.coe.int/coermpubliccommonsearchservices/displaydctmcontent?documentid =09000016802fa3a2. shinder, d. l., & cross, m. (2002). scene of the cybercrime, syngress. shyles, l. c. (2002). deciphering cyberspace: making the most of digital communication technology (1st ed.). sage publications, inc. https://doi.org/10.4135/9781452233161 toffler, a. (1981). la troisième vague (casserole ed.). vijaykumar shrikrushna chowbe. (n.d.). the concept of cyber-crime: nature & scope. sant gadge baba amravati university’ sant gadge, baba amravati university, amravati. wall, d. s. (2001). cybercrimes and internet. routledge. https://doi.org/10.4324/9780203164501_chapter_1 završnik, a. (2008). cybercrime-definitional challenges and criminological particularities‏. masaryk, university journal of law and technology, 2(2). https://doi.org/10.1111/1468-2311.00104 https://doi.org/10.31299/ksi.25.1.4 https://doi.org/10.1007/978-3-642-28246-1 https://doi.org/10.1007/978-3-319-78440-3_1 https://doi.org/10.4135/9781452233161 https://doi.org/10.4324/9780203164501_chapter_1 https://www.ceeol.com/search/article-detail?id=895595 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 41 published by scholink inc. notes note 1. tenth united nations congress on the prevention of crime and the treatment of offenders, a/conf.187/10, 3 february 2000, p.5. two subcategories of cybercrime exist: (a) cybercrime in a narrow sense (“computer crime”): any illegal behaviour directed by means of electronic operations that targets the security of computer systems and the data processed by them; (b) cybercrime in a broader sense (“computer-related crime”): any illegal behavior committed by means of, or in relation to, a computer system or network, including such crimes as illegal possession, offering or distributing information by means of a computer system or network. note 2. california code, penal code-pen § 502. note 3. texas penal code-penal § 33.02. note 4. the united nations convention on transnational organized crime was approved by the general assembly on november 15, 2000. (untoc). it is now the primary international convention dealing with transnational organized crime administered by the united nations. it exemplifies the united nations’ commitment to combating transnational organized crime. note 5. article 420 penal code. article 22 of the jordanian telecommunications law also states: “anyone who, by any means of communication, sends threatening or insulting messages or messages that are inimical or that are intended to cause panic, shall be punished by imprisonment for a period of not less than one month and not more than one year or by a fine of not less than lyd 400 and not more than lyd 2,000, or both”. note 6. article 189/3/a penal code. note 7. article 355 penal code. note 8. see, for example: articles 4-1 of the cybercrime act. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 118 original paper administrative law regulation of cross-border data flows: a case study of critical technology sectors tianran liu 1 1 school of law, qinghai minzu university, no. 3 bayi middle road, bayi road street, chengdong district, xining city 810007, qinghai province, china received: november 25, 2024 accepted: december 10, 2024 online published: december 12, 2024 doi:10.22158/elp.v7n3p118 url: http://dx.doi.org/10.22158/elp.v7n3p118 abstract this paper examines the administrative law framework governing cross-border data flows in critical technology sectors, with particular emphasis on national security considerations and regulatory mechanisms. through comparative analysis of various jurisdictions’ approaches to data sovereignty and critical infrastructure protection, this study explores the balance between technological innovation and national security interests in the digital age. keywords cross-border data flows, administrative law governance, critical technology sectors, national security considerations, regulatory mechanisms, risk assessment, security compliance, international coordination, regulatory frameworks, policy recommendations 1. introduction the digital transformation of the global economy has fundamentally altered the landscape of international data flows, presenting both unprecedented opportunities and significant challenges for national governance systems. as data becomes increasingly central to economic development, technological innovation, and national security, the regulation of cross-border data flows has emerged as a critical concern for administrative law frameworks worldwide. this paper examines the complex interplay between administrative law mechanisms and the regulation of cross-border data flows, with a particular focus on critical technology sectors. 1.1 background and context the landscape of global data governance has undergone profound transformation in recent years, driven by rapid technological advancement and increasing digitalization of critical infrastructure systems. the convergence of cloud computing, artificial intelligence, and advanced www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 119 published by scholink inc. telecommunications has created unprecedented challenges for traditional administrative law frameworks in managing cross-border data flows (the future of data governance, n.d.). these challenges are particularly acute in critical technology sectors, where data security and sovereignty concerns intersect with the imperative for technological innovation and international cooperation. the volume of cross-border data transfers has grown exponentially, with global internet traffic increasing by 40% in 2020 alone, fundamentally altering the risk landscape for national security and critical infrastructure protection. this surge in data flows has been accompanied by an evolution in the nature of threats to data security, ranging from sophisticated cyber attacks to unauthorized access and data manipulation in sensitive sectors. the emergence of new technologies such as quantum computing and advanced artificial intelligence has further complicated the regulatory landscape, introducing novel vulnerabilities and security considerations in critical technology sectors. traditional administrative law mechanisms, designed for a pre-digital era, are increasingly strained by the complexity and speed of modern data flows, particularly in sectors of strategic importance. the resulting regulatory gaps have spurred governments worldwide to reassess and strengthen their administrative law frameworks, seeking to balance the benefits of digital innovation with the imperative of protecting critical technological infrastructure and national interests (regulating cross-border data flows, n.d.). 1.2 research significance this research addresses a critical gap in the existing literature concerning the administrative regulation of cross-border data flows in strategically significant technology sectors, where traditional regulatory frameworks have struggled to keep pace with technological advancement. while extensive scholarship exists on general data protection regulations and cybersecurity frameworks, there remains a notable absence of comprehensive analysis regarding the specific administrative law mechanisms necessary for governing data flows in sectors crucial to national infrastructure and security (the role of cross-border data flows in the digital economy, n.d.). the unique contribution of this study lies in its focused examination of how administrative law tools can effectively balance security requirements with technological innovation in critical sectors, particularly those involving sensitive technologies and essential infrastructure systems. this research is especially timely given the rapid evolution of cross-border data transfer mechanisms and the increasing sophistication of potential threats to critical technology infrastructure. the findings of this study have significant implications for policymakers and regulatory authorities tasked with developing and implementing administrative controls in strategically important sectors (chen & lu, 2024). furthermore, this research provides valuable insights for legal practitioners and industry stakeholders navigating the complex landscape of international data governance and compliance requirements in critical technology sectors (an unprecedented cross-border data regulatory regime: the biden administration announces new program to shield sensitive u.s. data|morrison foerster, n.d.). this study’s analysis of various jurisdictional approaches and regulatory mechanisms offers practical guidance for harmonizing administrative law frameworks across different legal systems while maintaining necessary security protocols. the recommendations www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 120 published by scholink inc. derived from this research will contribute to the development of more effective and adaptable administrative law mechanisms for managing cross-border data flows in an increasingly interconnected global technology landscape. 1.3 research questions and objectives the fundamental research questions addressed in this study emerge from the complex intersection of administrative law, technological advancement, and national security imperatives. at its core, this paper seeks to understand how existing administrative law frameworks can effectively govern cross-border data flows while protecting critical technological infrastructure and national interests (house, 2024). this investigation extends to examining the varying approaches different jurisdictions have adopted in response to emerging data security challenges, particularly in sectors of strategic importance. the research also questions how regulatory mechanisms can be optimized to address the dynamic nature of technological innovation without creating unnecessary barriers to legitimate data flows (the real national security concerns over data localization, n.d.-a). furthermore, we explore how administrative discretion can be appropriately exercised in security assessments while maintaining transparency and accountability. the study examines the effectiveness of current compliance monitoring systems and enforcement mechanisms in ensuring adherence to data transfer regulations. additionally, we investigate how administrative law tools can be adapted to respond to rapidly evolving technological capabilities and emerging security threats in the digital age (data governance to counter hybrid threats against critical infrastructures, n.d.). building upon these research questions, this study aims to achieve several interconnected objectives that will contribute to both theoretical understanding and practical application in the field. our primary goal is to develop a comprehensive analytical framework for evaluating the effectiveness of administrative law mechanisms in governing cross-border data flows within critical technology sectors (regulating for a digital economy: understanding the importance of cross-border data flows in asia, n.d.). we seek to identify best practices and potential gaps in current regulatory approaches through comparative analysis of different jurisdictional frameworks. the research aims to assess the impact of various administrative control measures on both security outcomes and technological innovation. we intend to evaluate the balance between administrative discretion and standardized procedures in data flow regulation. the study also works to formulate practical recommendations for enhancing coordination between different regulatory authorities involved in data flow governance. furthermore, we aim to develop criteria for assessing the proportionality of administrative measures in relation to security objectives. the research strives to propose mechanisms for improving transparency and accountability in administrative decision-making processes while maintaining necessary confidentiality. finally, we seek to identify opportunities for international regulatory cooperation and harmonization in this critical area (the real national security concerns over data localization, n.d.-b). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 121 published by scholink inc. 1.4 methodological approach this study employs a mixed-methodology approach, combining doctrinal legal analysis with comparative study of regulatory frameworks across different jurisdictions. the research draws on primary sources including legislation, administrative regulations, and case law, as well as secondary sources such as academic literature and policy documents. additionally, the paper incorporates case studies of specific critical technology sectors to illustrate the practical application and implications of various regulatory approaches. 1.5 scope and limitations while this research encompasses a broad range of critical technology sectors, it focuses primarily on those areas where data flows intersect most significantly with national security interests and essential infrastructure. the study examines administrative law frameworks in major jurisdictions including the united states, european union, and key asian economies, while acknowledging that regulatory approaches continue to evolve rapidly in response to technological advancement and emerging security challenges. 1.6 paper structure the remainder of this paper is organized as follows: section 2 establishes the theoretical framework for analyzing administrative law principles in data governance. section 3 provides a comparative analysis of regulatory frameworks across different jurisdictions. section 4 examines specific administrative control mechanisms, while section 5 presents relevant case studies. section 6 offers policy recommendations, and section 7 concludes with implications for future research and policy development. 2. theoretical framework 2.1 administrative law principles in data governance the governance of cross-border data flows in critical technology sectors requires a sophisticated understanding and application of fundamental administrative law principles. these principles, rooted in traditional administrative law theory, must evolve to address the unique challenges posed by digital data flows and emerging technologies. the complexity of modern data governance, particularly in sectors crucial to national infrastructure and security, requires a careful recalibration of established administrative law principles to ensure their continued effectiveness while maintaining necessary protections. administrative discretion constitutes a fundamental element in the regulation of cross-border data flows, particularly within critical technology sectors where rapid technological changes demand flexible regulatory responses. the scope of this discretionary power must be carefully defined to ensure effective oversight while maintaining necessary flexibility in addressing emerging security challenges. regulatory authorities require sufficient latitude to evaluate and respond to potential risks associated with new data transfer technologies and methodologies. the effective exercise of administrative www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 122 published by scholink inc. discretion requires robust institutional mechanisms and procedural safeguards to prevent arbitrary or capricious decision-making. the principle of proportionality serves as a cornerstone in regulating cross-border data flows, requiring administrative measures to maintain a delicate balance between security imperatives and operational feasibility. this principle demands that regulatory interventions be appropriately calibrated to address identified risks while avoiding excessive restrictions on legitimate data transfers. the practical application of proportionality in cross-border data flow regulation demands a structured methodology for evaluating and balancing competing interests. the principle of due process in cross-border data flow regulation requires careful adaptation to address the unique challenges presented by critical technology sectors and digital environments. traditional due process requirements must be reconceptualized to accommodate both the technical complexity of modern data transfers and the heightened security considerations in strategic sectors. this adaptation necessitates the development of specialized procedural frameworks that can effectively balance procedural fairness with security imperatives. 2.2 theoretical approaches to critical technology regulation 2.2.1 risk-based regulatory theory the regulation of critical technology sectors necessitates a sophisticated risk-based theoretical framework that can effectively address both current and emerging challenges in cross-border data flows. this theoretical approach emphasizes the systematic identification, assessment, and management of risks through a structured analytical process. in the context of critical technology sectors, risk-based regulation must account for both technical vulnerabilities and strategic considerations that could impact national infrastructure and security interests. the implementation of this theoretical framework requires the development of comprehensive risk assessment methodologies that incorporate both quantitative and qualitative factors. furthermore, risk-based regulation must be sufficiently dynamic to adapt to rapid technological changes and emerging threat patterns in the digital environment (review & bredbenner, 2024). the framework should establish clear criteria for risk categorization and prioritization, enabling regulatory authorities to allocate resources efficiently and respond effectively to identified threats. this approach also emphasizes the importance of continuous monitoring and regular reassessment of risk factors to ensure the ongoing effectiveness of regulatory measures. additionally, the risk-based framework must facilitate coordination among various stakeholders, including regulatory authorities, technical experts, and affected entities, to ensure comprehensive risk management (reaiche et al., n.d.). the practical application of risk-based theory in critical technology regulation demands sophisticated analytical tools and methodologies for evaluating complex risk scenarios. this includes the development of advanced risk assessment models that can effectively capture the interdependencies between different technological systems and their potential impact on critical infrastructure. risk management strategies must be designed to address both immediate technical vulnerabilities and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 123 published by scholink inc. longer-term strategic considerations that could affect national security interests (artificial intelligence regulatory models: advances in the european union and recommendations for the united states and evolving global markets|published in aib insights, n.d.). the framework should incorporate mechanisms for early warning and rapid response to emerging risks, particularly in sectors of strategic importance. regular evaluation and updating of risk assessment criteria ensure the continued relevance and effectiveness of regulatory measures in a rapidly evolving technological landscape. the theoretical framework must also provide guidance for balancing risk mitigation efforts with the need to maintain operational efficiency and facilitate technological innovation. 2.2.2 information asymmetry theory the regulation of cross-border data flows in critical technology sectors is significantly influenced by information asymmetries between regulatory authorities and regulated entities. this theoretical perspective recognizes that effective regulation requires addressing gaps in technical knowledge and understanding of potential security implications. information asymmetry theory emphasizes the need for structured information sharing mechanisms that can facilitate effective oversight while protecting sensitive data and proprietary technologies. the framework must address challenges in verifying and validating information provided by regulated entities, particularly in cases involving complex technical systems or sensitive security considerations. regulatory authorities must develop sophisticated mechanisms for gathering and analyzing technical information while maintaining appropriate security protocols (eu and china launch cross-border data flow communication mechanism-european commission, n.d.). the theoretical framework should also consider the dynamic nature of information asymmetries in rapidly evolving technology sectors. furthermore, this approach emphasizes the importance of building technical expertise within regulatory bodies to reduce dependency on external information sources. the framework must also address challenges in international information sharing and coordination among different regulatory jurisdictions. addressing information asymmetries requires the development of innovative regulatory tools and approaches that can effectively bridge knowledge gaps. this includes establishing specialized technical units within regulatory authorities to enhance internal expertise and analytical capabilities. the framework should incorporate mechanisms for regular consultation with technical experts and industry specialists to ensure informed decision-making (mandates and machines: the power of technology to bridge regulatory gaps-fintech futures: fintech news, n.d.). information verification protocols must be established to ensure the accuracy and reliability of data used in regulatory assessments. the theoretical framework should also address challenges in protecting sensitive information while maintaining necessary transparency in regulatory processes. regular training and capacity building programs must be implemented to enhance the technical competence of regulatory staff. additionally, the framework should provide guidance for developing and maintaining secure information sharing platforms that facilitate necessary coordination while protecting sensitive data. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 124 published by scholink inc. 2.2.3 strategic technology management theory strategic technology management theory provides a critical foundation for understanding and regulating cross-border data flows in sectors of strategic importance. this theoretical approach emphasizes the need to consider long-term technological development trajectories and their implications for national security and economic interests. the framework must address challenges in balancing innovation promotion with necessary security controls in critical technology sectors. strategic technology management theory recognizes the importance of maintaining technological competitiveness while ensuring appropriate protection of sensitive capabilities and information. the approach emphasizes the need for forward-looking regulatory frameworks that can anticipate and adapt to technological developments. furthermore, this theoretical perspective highlights the importance of developing comprehensive strategies for managing critical technologies throughout their lifecycle. the framework must also address challenges in international technology transfer and collaboration while maintaining necessary security protocols. additionally, strategic technology management theory emphasizes the importance of maintaining technological autonomy in critical sectors. the practical application of this theoretical framework requires sophisticated mechanisms for evaluating and managing strategic technologies. this includes developing criteria for identifying and classifying technologies of strategic importance and their associated data flows. the framework should provide guidance for developing and implementing technology control measures that protect critical capabilities while facilitating necessary innovation. regular assessment of technological developments and their potential impact on national security interests must be incorporated into the regulatory framework. the approach should also address challenges in maintaining technological edge in critical sectors while participating in international collaboration. strategic technology management must include mechanisms for protecting intellectual property and sensitive technical information in cross-border data flows. the framework should also provide guidance for developing and maintaining technical standards that ensure interoperability while protecting security interests. 2.3 integration of theoretical perspectives the effective regulation of cross-border data flows in critical technology sectors requires a sophisticated integration of multiple theoretical perspectives to address the complex challenges presented by modern digital environments. this integration must carefully balance competing interests while maintaining necessary security protocols in strategically significant sectors. the framework for theoretical integration must account for both immediate operational requirements and longer-term strategic considerations that could impact national security interests. the synthesis of these theoretical approaches necessitates careful consideration of their interconnections and potential synergies in addressing regulatory challenges. regulatory authorities must develop comprehensive frameworks that can effectively incorporate insights from different theoretical perspectives while maintaining coherence and practicality in implementation. the integrated theoretical framework should provide clear guidance for addressing www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 125 published by scholink inc. complex scenarios where multiple theoretical considerations intersect. furthermore, this integration must be sufficiently flexible to accommodate emerging technologies and evolving security requirements in critical sectors. the framework should establish clear mechanisms for resolving potential conflicts between different theoretical approaches while maintaining focus on core security objectives. the practical implementation of an integrated theoretical framework demands sophisticated institutional arrangements and coordination mechanisms. this integration requires careful attention to potential gaps or overlaps between different theoretical approaches in addressing regulatory challenges. the framework must provide clear guidance for regulatory authorities in situations where different theoretical perspectives suggest competing courses of action. implementation strategies should incorporate regular review and adjustment mechanisms to ensure the continued effectiveness of the integrated approach. the development of effective balancing mechanisms represents a critical component in integrating different theoretical perspectives on cross-border data flow regulation. these mechanisms must provide structured approaches for weighing competing interests and priorities in critical technology sectors. the framework should establish clear criteria for evaluating trade-offs between security requirements and operational efficiency in data flow regulation. balancing mechanisms must be sufficiently sophisticated to address complex scenarios involving multiple stakeholders and competing interests. the integrated theoretical framework must incorporate robust mechanisms for dynamic adaptation to address evolving challenges in critical technology sectors. this adaptation process should be guided by clear principles and objectives while maintaining necessary flexibility in implementation. the framework must establish systematic approaches for identifying and responding to emerging technological developments and security threats. dynamic adaptation mechanisms should facilitate rapid response to changing circumstances while ensuring consistency in regulatory approaches. 2.4 theoretical framework synthesis the synthesis of theoretical perspectives in cross-border data flow regulation represents a crucial foundation for developing effective administrative law mechanisms in critical technology sectors. this synthesis must provide a comprehensive framework that addresses both current challenges and emerging requirements in data flow regulation (hong et al., 2022). the integrated framework should establish clear connections between different theoretical approaches while maintaining coherence and practicality in implementation. regulatory authorities must develop sophisticated tools and methodologies for applying the synthesized framework in complex scenarios involving critical technologies. the synthesis should provide clear guidance for addressing various regulatory challenges while maintaining necessary security protocols. furthermore, this framework must facilitate effective coordination among different stakeholders in the regulatory process. the theoretical synthesis should establish clear principles for resolving conflicts and addressing emerging challenges in data flow www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 126 published by scholink inc. regulation. additionally, the framework must provide mechanisms for evaluating and improving regulatory effectiveness over time. the practical application of the synthesized theoretical framework requires careful attention to implementation challenges and operational requirements. this includes developing clear guidelines and procedures for regulatory authorities in applying the integrated framework to specific cases. the synthesis must address practical constraints and resource limitations while maintaining focus on core security objectives. regular evaluation and updating of the framework ensure its continued relevance and effectiveness in addressing emerging challenges. the synthesis should also provide guidance for international coordination and harmonization of regulatory approaches across different jurisdictions. implementation strategies must incorporate sufficient flexibility to accommodate varying technical requirements and security considerations. furthermore, the framework should establish clear metrics and evaluation criteria for assessing regulatory effectiveness. the synthesis must also address challenges in building and maintaining necessary technical expertise within regulatory authorities. finally, the framework should provide mechanisms for stakeholder engagement and consultation while maintaining appropriate security protocols. 3. regulatory frameworks analysis 3.1 overview of global regulatory landscape the global landscape of cross-border data flow regulation in critical technology sectors exhibits significant variation in approach, scope, and implementation mechanisms. regulatory frameworks have evolved rapidly in response to emerging technological capabilities and increasing recognition of data’s strategic importance. these frameworks reflect different jurisdictions’ varying approaches to balancing national security interests with technological innovation and international cooperation. the development of regulatory mechanisms has been particularly pronounced in sectors involving critical technologies and essential infrastructure. current global trends indicate a movement toward more comprehensive and stringent regulation of cross-border data flows, especially in strategically significant sectors. regulatory authorities worldwide are increasingly focusing on establishing robust mechanisms for evaluating and controlling data transfers that could impact national security interests. 3.2 comparative analysis of administrative measures 3.2.1 united states regulatory framework the united states has established a comprehensive regulatory framework for managing cross-border data flows, particularly emphasizing critical technology sectors and national security considerations. this framework operates through a complex interplay of federal legislation, administrative regulations, and executive orders that collectively create a multi-layered approach to data flow governance. the regulatory structure has evolved significantly in recent years, responding to emerging technological challenges and increasing recognition of data’s strategic importance. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 127 published by scholink inc. the foundational legislative elements of the u.s. regulatory framework include several key components that specifically address critical technology sectors. the foreign investment risk review modernization act (firrma) has significantly expanded cfius’s authority to review transactions involving critical technologies and sensitive data transfers (the cfius reform legislation—firrma—will become law on august 13, 2018|akin gump strauss hauer & feld llp, n.d.). the export control reform act (ecra) has established new parameters for controlling emerging and foundational technologies, particularly focusing on data flows that could impact national security interests. the administrative implementation of this regulatory framework involves sophisticated mechanisms for assessing and controlling cross-border data flows. federal agencies have developed detailed protocols for evaluating proposed data transfers, particularly those involving critical technologies or sensitive infrastructure information (doj proposes rules to restrict us data transfers to countries of concern–publications, n.d.). these assessment procedures incorporate both technical security evaluations and broader strategic considerations in determining appropriate levels of control. enforcement mechanisms within the u.s. regulatory framework reflect a multi-faceted approach to ensuring compliance with data flow regulations. administrative agencies possess broad authority to investigate potential violations and impose significant penalties for non-compliance. the enforcement structure includes regular audit requirements, mandatory incident reporting protocols, and comprehensive monitoring systems for critical technology sectors (doj proposes rules to restrict us data transfers to countries of concern, n.d.). the u.s. regulatory framework also emphasizes international cooperation and coordination in managing cross-border data flows. bilateral and multilateral agreements establish mechanisms for information sharing and joint enforcement actions with trusted international partners. these agreements include specific provisions for protecting sensitive technological information while facilitating necessary international collaboration in critical sectors. the framework includes protocols for evaluating foreign regulatory requirements and establishing appropriate compliance mechanisms for international data transfers. additionally, u.s. regulatory authorities maintain active engagement in international standards development efforts, contributing to the establishment of global best practices for managing critical technology data flows. 3.2.2 european union regulatory approach the european union has developed a distinctive regulatory framework for cross-border data flows, characterized by its comprehensive approach to data protection and security considerations in critical technology sectors. this framework represents a sophisticated balance between fundamental rights protection, market integration objectives, and security requirements in the digital age. the eu’s regulatory approach is marked by its emphasis on establishing clear, harmonized standards across member states while maintaining flexibility for national security considerations. the implementation of this framework involves coordination between eu-level institutions and national regulatory authorities, creating a multi-layered governance structure for data flow management (johanna, 2023). furthermore, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 128 published by scholink inc. the eu framework demonstrates a strong commitment to technology neutrality while maintaining robust protection mechanisms for critical sectors. this regulatory system has become increasingly influential globally, setting standards that often shape international approaches to data flow regulation. the legislative foundation of the eu framework rests on several key instruments that collectively establish comprehensive requirements for data transfers. the general data protection regulation (gdpr) serves as a cornerstone, establishing fundamental principles for personal data protection and specific requirements for cross-border transfers. the network and information security (nis) directive complements this by establishing security requirements for critical infrastructure operators and essential service providers. the critical infrastructure protection directive further strengthens the framework by establishing specific protection requirements for strategically important sectors. additionally, the proposed data act and data governance act introduce new mechanisms for managing data flows while protecting european strategic interests (a european strategy for data|shaping europe’s digital future, 2024). the administrative implementation of the eu framework involves sophisticated mechanisms for assessing and controlling international data transfers, with the european data protection board (edpb) playing a central role in ensuring consistent application of data protection requirements across member states. enforcement within the eu framework is characterized by its robust mechanisms and significant penalties for non-compliance, with national data protection authorities (dpas) possessing broad investigative powers and the ability to impose substantial administrative fines. 3.2.3 asia-pacific regulatory frameworks the asia-pacific region presents a complex and diverse landscape of regulatory approaches to cross-border data flows in critical technology sectors. the regulatory environment has evolved rapidly in recent years, with major economies establishing increasingly sophisticated mechanisms for controlling data flows. these frameworks reflect varying levels of regulatory maturity and different emphases on national security considerations in data governance. the implementation of these regulations demonstrates significant variation in enforcement mechanisms and compliance requirements across different jurisdictions (“navigating cross-border data transfers in the asia-pacific region (apac)”, n.d.). the regional regulatory landscape continues to evolve, with increasing emphasis on protecting critical technology sectors and strategic interests. major economies in the region have developed distinct approaches to balancing technological development with security requirements, often emphasizing state oversight and national sovereignty considerations. furthermore, these regulatory frameworks have become increasingly influential in shaping global standards for data flow governance. china has established one of the most comprehensive and stringent regulatory frameworks for cross-border data flows in the region, built upon several foundational laws that collectively create a multi-layered approach to data governance. the cybersecurity law serves as a cornerstone, establishing fundamental requirements for network operators and critical information infrastructure www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 129 published by scholink inc. providers. the data security law introduces a hierarchical system for data classification and protection, with particular emphasis on national security considerations. the personal information protection law complements these by establishing specific requirements for personal data handling and cross-border transfers. regulatory authorities maintain broad discretionary powers in reviewing and approving cross-border data transfers, particularly those involving critical technologies. implementation mechanisms reflect a strong emphasis on administrative oversight and security considerations, with mandatory security assessments for certain categories of data transfers. moreover, administrative agencies have developed sophisticated tools for monitoring compliance and investigating potential violations. japan has developed a distinctive regulatory approach that balances international cooperation with national security interests through the act on protection of specially designated secrets and various sector-specific regulations governing critical technologies. the japanese system emphasizes risk-based assessment approaches while maintaining flexibility in implementation, with security requirements being particularly stringent for critical technology sectors. the framework includes sophisticated mechanisms for evaluating and controlling international data transfers while facilitating necessary business operations. practical implementation involves coordination among multiple regulatory agencies and sophisticated compliance mechanisms, including detailed requirements for security assessments and regular auditing procedures. administrative authorities maintain significant oversight capabilities while working within clearly defined procedural frameworks. furthermore, japan has established specific protocols for international cooperation in data governance while maintaining appropriate security safeguards. singapore has established a sophisticated regulatory framework that emphasizes technological innovation while maintaining robust security controls through its critical information infrastructure protection framework. the personal data protection act establishes general requirements for data handling and cross-border transfers, while sector-specific regulations address unique requirements in critical technology areas (convergence of laws and frameworks for cross-border personal data transfers in asia-asian business law institute, n.d.). regulatory authorities have developed detailed protocols for evaluating data transfers and monitoring compliance with security requirements. the framework includes specific provisions for critical technology sectors, with enhanced oversight mechanisms for sensitive data flows. administrative agencies maintain flexible approaches to enforcement while ensuring consistent application of core security principles. furthermore, singapore has established specific mechanisms for addressing emerging technologies and evolving security challenges through regular framework updates. the system also emphasizes international cooperation and standards alignment while protecting national interests. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 130 published by scholink inc. 3.3 comparative analysis of key regulatory elements different jurisdictions have developed varying approaches to security assessment requirements for cross-border data flows in critical technology sectors. the united states emphasizes a risk-based approach, incorporating national security considerations through cfius reviews and export control mechanisms. these assessments focus particularly on emerging technologies and their potential impact on national security interests. the european union, in contrast, has established a structured assessment framework through gdpr impact assessments and nis directive requirements, emphasizing both security and fundamental rights protection. this approach requires detailed documentation and prior consultation for high-risk processing activities. china’s system implements mandatory security assessments for critical information infrastructure operators and important data transfers, with emphasis on national security and public interests. the implementation of security assessments reveals significant variations in scope and methodology across jurisdictions. the u.s. framework allows for considerable agency discretion in determining assessment requirements, particularly for emerging technologies. the eu’s approach provides more standardized assessment criteria while maintaining flexibility for member state security considerations. chinese authorities maintain broader oversight powers and more prescriptive requirements for security assessments, particularly in critical sectors. these differences reflect varying approaches to balancing security requirements with operational flexibility. the global landscape of data classification frameworks reflects diverse approaches to identifying and protecting sensitive information in critical technology sectors. these classification systems serve as the cornerstone for determining applicable security measures and transfer restrictions across jurisdictions. the variation in classification methodologies demonstrates different regulatory philosophies and security priorities among major economies. different frameworks have developed increasingly sophisticated classification systems that reflect their specific strategic considerations and national interests. the evolution of these systems shows growing recognition of data’s strategic importance in critical technology sectors. the united states employs a multi-tiered classification approach that emphasizes national security implications and critical infrastructure protection. the system includes specific categories for controlled unclassified information in critical technology sectors and defense-related technical data subject to export controls. the european union has established a comprehensive classification framework that carefully balances personal data protection with security considerations. the system incorporates special categories of personal data requiring enhanced protection measures. china’s hierarchical data classification system emphasizes national security and development interests through a structured approach to data categorization. the implementation of these classification frameworks reveals significant variations in methodology and emphasis across jurisdictions. regular review mechanisms ensure the continued relevance and effectiveness of classification decisions, particularly regarding emerging technologies. different www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 131 published by scholink inc. jurisdictions impose varying restrictions based on their classification systems, affecting cross-border transfer requirements. the classification frameworks directly influence security assessment requirements and compliance obligations. regular updates to classification systems affect transfer permissions and security protocols. furthermore, organizations must adapt their data handling practices to align with evolving classification requirements. 3.4 emerging trends and developments the regulatory landscape governing cross-border data flows in critical technology sectors continues to evolve, reflecting both technological advancements and changing security priorities. new regulatory approaches are emerging across major jurisdictions as governments seek to address complex challenges in data governance. the development of these trends demonstrates increasing sophistication in regulatory frameworks and growing recognition of data’s strategic importance. regulatory authorities are adopting more nuanced approaches to balancing security requirements with operational efficiency. these emerging trends indicate a movement toward more comprehensive and technologically adaptive regulatory frameworks. furthermore, there is growing emphasis on international coordination while maintaining necessary security controls. the evolution of regulatory approaches continues to shape the future of cross-border data governance. regulatory frameworks increasingly emphasize the protection of critical technologies through specialized oversight mechanisms in strategically important sectors. the definition of critical technology sectors continues to expand, incorporating emerging technologies with potential security implications. new frameworks are being established to address specific security requirements in quantum computing, artificial intelligence, and advanced semiconductor technologies. the emphasis on critical technology protection reflects growing recognition of technological sovereignty concerns. these developments have led to more stringent controls on data flows in strategic sectors. additionally, regulatory frameworks are evolving to address the convergence of different critical technologies. enhanced monitoring capabilities are being developed to ensure effective oversight of critical technology sectors. cross-jurisdictional coordination in data flow regulation has become increasingly important as technological systems become more interconnected. major jurisdictions are developing new frameworks for information sharing and joint enforcement actions in critical technology sectors. bilateral and multilateral agreements are establishing mechanisms for coordinated oversight of strategic technologies. these coordination efforts seek to address challenges in managing complex international data flows while maintaining security requirements. new protocols are being developed for harmonizing technical standards across jurisdictions. furthermore, mechanisms for coordinated emergency response are being established to address immediate security concerns. international cooperation frameworks increasingly emphasize the protection of strategic technologies. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 132 published by scholink inc. regulatory authorities are increasingly adopting technological solutions to enhance implementation effectiveness and ensure comprehensive oversight. advanced monitoring tools and artificial intelligence systems are being integrated into regulatory frameworks to improve efficiency and effectiveness. automated risk assessment mechanisms are being developed to enhance regulatory capability in identifying and addressing potential threats. the integration of advanced technologies is enabling more sophisticated approaches to compliance monitoring and enforcement. these technological developments are reshaping the landscape of regulatory implementation in critical sectors. furthermore, blockchain and other distributed technologies are being explored for enhanced transparency and accountability. the future of data flow regulation will likely require increasingly sophisticated technological solutions to address emerging challenges while maintaining necessary security controls. 3.5 implementation challenges and solutions the implementation of regulatory frameworks for cross-border data flows in critical technology sectors presents complex challenges that require innovative solutions. these challenges span multiple dimensions, including technical complexity, resource constraints, and coordination requirements. the rapid evolution of technology continues to create new implementation challenges while existing solutions may become obsolete. these challenges are particularly acute in critical technology sectors where security requirements must be carefully balanced with operational needs. different jurisdictions have developed varying approaches to addressing these implementation challenges. furthermore, the solutions adopted often reflect specific national priorities and regulatory philosophies. the effectiveness of various implementation strategies continues to evolve as new challenges emerge. technical complexity poses significant challenges in implementing cross-border data flow regulations effectively in critical technology sectors. the rapidly evolving nature of technology creates difficulties in maintaining current and effective control mechanisms. complex technical systems often require sophisticated monitoring tools that may exceed current regulatory capabilities. integration challenges arise when implementing controls across different technological platforms and standards. security requirements may conflict with existing technical architectures and operational processes. legacy systems often struggle to meet new regulatory requirements for data protection and control. additionally, emerging technologies may introduce novel technical challenges that existing frameworks struggle to address. resource limitations and capacity constraints significantly impact the effective implementation of regulatory requirements across jurisdictions. regulatory authorities often face challenges in maintaining adequate technical expertise to oversee complex systems in critical sectors. budget constraints may limit the deployment of necessary monitoring and enforcement tools. training requirements for regulatory staff continue to increase with technological complexity. the need for specialized expertise in critical technology sectors creates staffing challenges. additionally, smaller jurisdictions may struggle to maintain comprehensive oversight capabilities. resource allocation www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 133 published by scholink inc. decisions must balance multiple competing priorities in regulatory implementation. the cost of implementing sophisticated control mechanisms may strain organizational resources. innovative approaches are being developed to address implementation challenges effectively through enhanced coordination mechanisms. regulatory authorities are adopting advanced monitoring and analytics tools to improve oversight efficiency. specialized training programs are being established to enhance technical expertise among regulatory staff. knowledge sharing platforms facilitate the exchange of best practices and lessons learned across different jurisdictions. partnership programs between industry and regulators help develop more effective implementation strategies. technical capability development initiatives focus on building necessary expertise in critical technology areas. furthermore, standardized protocols for information sharing enhance coordination effectiveness in regulatory implementation. the development of strategic implementation frameworks represents a crucial element in addressing long-term regulatory challenges. these frameworks must incorporate sufficient flexibility to adapt to evolving technological capabilities while maintaining necessary security controls. resource planning mechanisms should ensure continued availability of necessary implementation capabilities in critical technology sectors. knowledge management systems must support retention and transfer of critical expertise in regulatory implementation. performance measurement systems should provide comprehensive visibility into implementation effectiveness across different dimensions. additionally, implementation frameworks should support innovation in regulatory approaches while ensuring security objectives. these strategic approaches enhance the sustainability of implementation efforts while facilitating necessary adaptations to emerging challenges. 4. administrative control mechanisms 4.1 overview of administrative controls administrative control mechanisms for cross-border data flows represent the practical implementation of regulatory frameworks in critical technology sectors. these mechanisms encompass a range of tools and procedures designed to ensure effective oversight while facilitating necessary data transfers. the development of control mechanisms reflects growing recognition of the need for sophisticated approaches to managing data flows in strategically important sectors. regulatory authorities have established increasingly complex systems of administrative controls to address emerging challenges. these mechanisms must balance comprehensive oversight with operational efficiency in critical technology sectors. furthermore, the evolution of control mechanisms demonstrates increasing emphasis on risk-based approaches to regulatory implementation. 4.2 security assessment procedures security assessment procedures constitute the cornerstone of administrative control mechanisms for cross-border data flows in critical technology sectors. these procedures represent a systematic approach to evaluating and managing potential risks associated with international data transfers. the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 134 published by scholink inc. implementation of security assessments requires careful balance between comprehensive risk evaluation and operational efficiency. regulatory authorities have developed increasingly sophisticated assessment methodologies to address complex security challenges in critical sectors. the scope of security assessments encompasses multiple dimensions of data transfer operations in critical technology sectors. technical security evaluations examine the specific mechanisms and protocols used for data transmission and storage. operational assessments consider the broader context of data handling procedures and organizational controls. strategic evaluations analyze potential implications for national security and critical infrastructure protection. regular updates to assessment procedures ensure continued relevance and effectiveness in addressing emerging security challenges. procedure updates consider both technical advancements and evolving security requirements in critical sectors. implementation of security assessments requires sophisticated tools and methodologies tailored to critical technology sectors. assessment procedures incorporate advanced analytics capabilities for evaluating complex security scenarios. risk evaluation frameworks utilize both quantitative and qualitative methods to ensure comprehensive analysis. security assessment procedures must facilitate effective coordination among various stakeholders while maintaining necessary confidentiality. documentation and reporting requirements form an essential component of security assessment procedures, ensuring transparency and accountability while protecting sensitive information. 4.3 administrative enforcement tools administrative enforcement tools form the essential mechanism for ensuring compliance with regulatory requirements in cross-border data flows within critical technology sectors. these tools encompass a comprehensive range of measures designed to address various levels of non-compliance and security concerns. the development of enforcement mechanisms reflects increasing sophistication in regulatory approaches to managing data flows in strategic sectors. regulatory authorities must maintain appropriate balance between enforcement effectiveness and operational continuity. these enforcement tools continue to evolve in response to emerging challenges and technological developments. furthermore, the implementation of enforcement measures requires careful consideration of both immediate compliance objectives and longer-term strategic goals. compliance verification represents the foundational element of administrative enforcement in critical technology sectors. regular audits assess adherence to security requirements and regulatory standards through comprehensive evaluation procedures. technical inspections examine specific aspects of data transfer mechanisms and security controls in critical operations. documentation reviews ensure maintenance of required records and compliance evidence. verification procedures must address both technical compliance aspects and broader security considerations. these mechanisms enable regulatory authorities to identify potential violations and assess compliance levels effectively. furthermore, verification tools must adapt to evolving technological capabilities and security requirements. the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 135 published by scholink inc. effectiveness of compliance verification directly impacts the overall security of cross-border data flows. enforcement actions provide regulatory authorities with necessary tools for addressing identified violations and security concerns. administrative penalties serve as deterrents against non-compliance while maintaining proportionality in enforcement responses. corrective action orders enable authorities to require specific improvements in security measures and compliance programs. operating restrictions may be imposed when necessary to address serious security concerns in critical sectors. license suspension mechanisms provide ultimate enforcement authority for severe or persistent violations. furthermore, enforcement actions must incorporate appropriate due process protections while maintaining effectiveness. the implementation of these measures requires careful balance between enforcement objectives and operational impacts. emergency response capabilities form a crucial component of administrative enforcement tools in critical technology sectors. rapid intervention mechanisms enable immediate response to identified security threats or critical violations. emergency orders can require immediate cessation of non-compliant data transfers or implementation of enhanced security measures. crisis management protocols ensure effective coordination among different authorities during emergency situations. these emergency powers must balance immediate security needs with procedural safeguards. furthermore, emergency response tools require regular testing and updating to maintain effectiveness. the implementation of emergency measures demands clear decision-making procedures and authority structures. monitoring and surveillance tools provide ongoing visibility into compliance status and potential violations. automated monitoring systems enable continuous tracking of data flows and security parameters in critical operations. regular reporting requirements ensure timely notification of significant changes or incidents. these tools must maintain appropriate balance between oversight effectiveness and operational efficiency. surveillance mechanisms incorporate both technical monitoring capabilities and human intelligence elements. furthermore, monitoring tools must adapt to evolving technological capabilities and threat patterns. the integration of advanced analytics enhances the effectiveness of monitoring operations. the implementation framework for enforcement tools must ensure consistent and effective application across different scenarios. clear procedural guidelines establish standard approaches for applying different enforcement measures. coordination mechanisms ensure effective communication among various regulatory authorities involved in enforcement actions. decision-making frameworks provide structured approaches for selecting appropriate enforcement responses. furthermore, implementation procedures must maintain appropriate flexibility while ensuring consistent enforcement standards. regular review and updating of enforcement procedures ensures continued effectiveness and relevance. the success of enforcement implementation depends on maintaining appropriate balance between different regulatory objectives. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 136 published by scholink inc. 4.4 coordination and review mechanisms coordination and review mechanisms play a crucial role in ensuring effective implementation of administrative controls for cross-border data flows in critical technology sectors. these mechanisms facilitate necessary cooperation among various regulatory authorities while maintaining appropriate security protocols. the development of coordination frameworks reflects increasing recognition of the need for integrated approaches to data flow regulation. review procedures ensure continued effectiveness and relevance of administrative controls in critical sectors. these mechanisms must balance multiple stakeholder interests while protecting strategic priorities. regular review processes enable continuous assessment and improvement of administrative control mechanisms in critical technology sectors. performance evaluation frameworks incorporate both quantitative and qualitative measures of regulatory effectiveness. systematic review procedures examine various aspects of implementation, including security controls and operational efficiency. inter-agency coordination represents a fundamental requirement for effective oversight of cross-border data flows in critical technology sectors. coordination frameworks establish clear protocols for information sharing and joint operations among different regulatory authorities. international cooperation mechanisms enable necessary coordination across different jurisdictions while protecting national interests. technical coordination mechanisms ensure effective implementation of administrative controls across different systems and platforms. evaluation frameworks provide systematic approaches to assessing the effectiveness of coordination and review mechanisms. performance metrics address various aspects of coordination effectiveness, including timeliness and accuracy. regular assessment procedures examine both operational efficiency and strategic alignment of coordination efforts. the development of these assessment tools requires careful consideration of various performance factors. 5. case studies 5.1 technology transfer controls 5.1.1 semiconductor manufacturing technology the semiconductor manufacturing sector presents one of the most complex challenges in regulating cross-border data flows within critical technology sectors. advanced semiconductor fabrication processes involve sophisticated technical data that requires careful security oversight while maintaining operational efficiency. the implementation of data flow controls in this sector has become increasingly critical as manufacturing processes become more advanced and interconnected. regulatory authorities have developed specialized frameworks for evaluating and controlling technical data transfers in semiconductor manufacturing facilities. these controls must address both immediate security concerns in daily operations and longer-term strategic considerations in technology development. the protection of manufacturing process data has become particularly crucial as semiconductor technology advances www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 137 published by scholink inc. into more sophisticated nodes. furthermore, the global nature of semiconductor supply chains creates additional complexities in implementing effective controls. technical complexity in semiconductor manufacturing creates significant challenges for regulatory implementation and oversight. manufacturing process control data requires sophisticated protection mechanisms while maintaining accessibility for authorized operations. equipment calibration information must be carefully managed to prevent unauthorized technology transfer while ensuring efficient manufacturing processes. quality control data presents particular challenges due to the need for real-time sharing across different manufacturing stages. process parameter modifications require careful oversight to prevent unauthorized technical knowledge transfer. advanced manufacturing techniques often involve proprietary technologies that demand enhanced protection measures. moreover, the rapid evolution of semiconductor technology requires regular updates to security protocols and control mechanisms. these technical challenges are further complicated by the need to maintain production efficiency and yield optimization. the implementation of security controls in semiconductor manufacturing must balance multiple competing priorities in operational environments. access control systems need to manage complex authorization requirements across different technical teams and facilities. data encryption protocols must protect sensitive technical information while allowing necessary access for production operations. security monitoring systems require sophisticated capabilities to track data flows across complex manufacturing networks. incident response procedures must address both cyber security threats and potential technology transfer violations. the integration of security controls with manufacturing execution systems presents significant technical challenges. additionally, regulatory compliance requirements must be balanced with the need for rapid process optimization and problem resolution. these operational considerations demonstrate the complexity of implementing effective security controls in advanced manufacturing environments. regulatory authorities have developed specific approaches to address the unique challenges of semiconductor manufacturing technology protection. specialized assessment frameworks evaluate potential security implications of technical data transfers in manufacturing operations. regular auditing procedures examine both technical security measures and operational control effectiveness. coordination mechanisms facilitate necessary information sharing while maintaining appropriate security protocols. international cooperation frameworks address challenges in managing global supply chain security. furthermore, regulatory approaches must maintain sufficient flexibility to address emerging manufacturing technologies and processes. the development of these regulatory mechanisms reflects growing recognition of semiconductor manufacturing's strategic importance. 5.1.2 artificial intelligence systems the regulation of cross-border data flows in artificial intelligence development represents a critical challenge in modern technology governance. ai systems require extensive data sharing across borders for development and training while maintaining strict security controls on sensitive algorithms and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 138 published by scholink inc. models. the implementation of regulatory controls must address both the technical aspects of data protection and broader strategic considerations in ai development. regulatory frameworks face particular challenges in managing the dynamic nature of ai training processes and model development. these challenges are compounded by the rapid evolution of ai technologies and methodologies. furthermore, the strategic importance of ai development creates additional pressure for effective security controls. the balance between innovation and security has become increasingly critical as ai capabilities advance. technical implementation of data flow controls in ai development presents unique challenges due to the complex nature of machine learning processes. training data must be carefully protected while maintaining accessibility for model development and optimization. algorithm security requires sophisticated protection mechanisms that don’t impede the iterative nature of ai development. model parameters and weights contain sensitive technical information that demands specialized security controls. the validation and testing processes require careful oversight to prevent unauthorized knowledge transfer. additionally, the implementation of security controls must address the distributed nature of modern ai development platforms. these technical considerations demonstrate the complexity of regulating data flows in ai development environments. the integration of security controls with development tools presents significant challenges for regulatory implementation. international collaboration in ai development creates additional complexities in implementing effective regulatory controls. cross-border research teams require efficient data sharing capabilities while maintaining appropriate security protocols. regulatory frameworks must address challenges in managing collaborative development environments across different jurisdictions. the implementation of access controls becomes particularly complex in international research settings. security protocols must accommodate different regulatory requirements across jurisdictions while maintaining consistent protection standards. furthermore, emergency response procedures must address potential security incidents across international boundaries. the coordination of regulatory oversight across different jurisdictions requires sophisticated mechanisms for information sharing and joint enforcement. the development of regulatory solutions for ai systems demonstrates increasing sophistication in addressing complex technological challenges. real-time monitoring systems have been adapted to track data flows in ai development environments. specialized security frameworks address unique requirements in machine learning operations. access control systems incorporate advanced capabilities for managing complex authorization requirements. performance optimization needs are balanced with security controls through innovative technical solutions. the implementation of these controls continues to evolve as ai technologies advance. furthermore, regulatory approaches must maintain sufficient flexibility to address emerging ai capabilities and applications. these developments reflect growing recognition of the need for sophisticated regulatory approaches in ai technology sectors. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 139 published by scholink inc. 5.2 critical infrastructure protection critical infrastructure protection in cross-border data flow regulation presents unique challenges due to the essential nature of these systems and their international interconnections. the protection of critical infrastructure data requires sophisticated regulatory approaches that balance operational efficiency with robust security controls. different sectors of critical infrastructure demonstrate varying requirements for data protection and operational continuity. the implementation of regulatory controls must address both routine operational needs and emergency response capabilities. these protection mechanisms have become increasingly important as critical infrastructure systems become more digitally integrated. furthermore, the international nature of many critical infrastructure networks creates additional complexity in regulatory implementation. the energy sector demonstrates particularly complex challenges in managing cross-border data flows within critical infrastructure systems. power grid management requires real-time data sharing across jurisdictions while maintaining robust security controls. operational data from power generation and distribution systems contains sensitive information requiring careful protection. the implementation of security controls must address both cybersecurity threats and potential unauthorized access to critical system information. regular monitoring of cross-border data flows helps ensure early detection of potential security incidents. furthermore, emergency response procedures require careful coordination across different jurisdictions. these operational requirements demonstrate the complexity of balancing security with necessary data sharing. the effectiveness of protection mechanisms directly impacts the reliability of essential energy services. transportation control networks present another critical area requiring sophisticated approaches to data flow protection. these networks operate across multiple jurisdictions while handling sensitive operational and security information. traffic management systems require extensive data sharing for effective operation while maintaining appropriate security controls. emergency response capabilities demand rapid information exchange while protecting sensitive system details. the implementation of security controls must address both physical and cyber security considerations in transportation networks. furthermore, these protection mechanisms need to accommodate different regulatory requirements across jurisdictions. the coordination of security measures across international boundaries presents significant challenges in regulatory implementation. financial system infrastructure requires particularly stringent controls on cross-border data flows due to its critical role in economic stability. payment processing systems handle sensitive transaction data that demands sophisticated protection mechanisms. the implementation of security controls must address both financial fraud prevention and system integrity protection. cross-border financial transactions require careful monitoring while maintaining operational efficiency. furthermore, regulatory frameworks must accommodate different financial regulations across jurisdictions. the protection of financial system data demonstrates the importance of coordinated international approaches to critical www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 140 published by scholink inc. infrastructure security. these requirements have led to the development of specialized regulatory frameworks for financial data protection. the implementation of protection mechanisms for critical infrastructure has led to several important lessons in regulatory practice. standardized approaches to security assessment help ensure consistent protection across different infrastructure sectors. regular evaluation of protection mechanisms ensures continued effectiveness against emerging threats. the development of coordinated response procedures has improved handling of cross-border security incidents. furthermore, information sharing frameworks facilitate necessary coordination while maintaining appropriate security controls. these experiences have contributed to the evolution of more effective regulatory approaches for critical infrastructure protection. the continued development of protection mechanisms reflects growing recognition of critical infrastructure’s strategic importance. 5.3 lessons learned and best practices the analysis of case studies in critical technology sectors reveals significant insights into effective regulatory approaches for cross-border data flows. these experiences demonstrate the importance of balancing comprehensive security controls with operational efficiency in critical sectors. the implementation of regulatory frameworks has highlighted the need for flexible yet robust approaches to data flow management. different sectors have contributed valuable lessons about effective security controls and oversight mechanisms. the evolution of best practices reflects growing understanding of complex implementation challenges in critical technology sectors. furthermore, these experiences have shaped the development of more sophisticated regulatory approaches. the synthesis of implementation experiences across different sectors has led to improved understanding of effective control mechanisms. these insights continue to influence the development of regulatory frameworks in critical technology areas. the technical implementation of regulatory controls has generated important lessons about effective security approaches in critical sectors. flexible technical frameworks enable necessary adaptation to evolving technological capabilities while maintaining security requirements. the integration of security controls with operational systems requires careful consideration of both protection needs and efficiency impacts. standardized approaches to security implementation help ensure consistent protection across different systems and platforms. regular updates to technical controls have proven essential for maintaining effectiveness against emerging threats. the development of scalable solutions allows efficient deployment across different operational environments. additionally, experiences with advanced monitoring capabilities have demonstrated the importance of real-time oversight in critical sectors. these technical considerations have led to more effective approaches in regulatory implementation. international coordination experiences have provided valuable insights into managing complex cross-border regulatory requirements. the development of standardized protocols for information sharing has improved coordination effectiveness across jurisdictions. joint enforcement mechanisms www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 141 published by scholink inc. demonstrate the importance of coordinated approaches to security incident response. regular consultation processes facilitate necessary alignment of regulatory approaches while respecting national priorities. the implementation of emergency response procedures has highlighted the need for clear coordination frameworks. these experiences have contributed to the development of more effective international cooperation mechanisms. furthermore, the establishment of consistent security standards across jurisdictions has enhanced protection effectiveness. the evolution of coordination approaches continues to shape regulatory implementation in critical sectors. resource management and security control implementation have generated crucial insights for regulatory practice in critical technology sectors. the development of specialized expertise requires sustained investment in training and capability building. knowledge management systems play crucial roles in maintaining regulatory effectiveness across different sectors. layered security approaches provide comprehensive protection while maintaining operational flexibility. continuous monitoring capabilities enable early detection and response to potential security incidents. the integration of risk assessment frameworks helps ensure appropriate allocation of security resources. regular review processes maintain the effectiveness of security controls against evolving threats. these experiences have contributed to the development of more sophisticated implementation approaches in critical sectors. furthermore, the synthesis of these experiences has led to improved understanding of effective protection mechanisms in complex technological environments. 6. policy recommendations the analysis of regulatory frameworks and implementation experiences in critical technology sectors suggests several key areas for policy development and enhancement. these recommendations aim to strengthen the effectiveness of administrative controls while maintaining necessary operational efficiency. the development of policy approaches must consider both immediate regulatory needs and longer-term strategic objectives in critical technology sectors. furthermore, these recommendations reflect the need for balanced approaches that protect security interests while facilitating necessary technological development. the implementation of these policy measures requires careful consideration of various stakeholder interests and operational requirements. these policy recommendations emphasize the importance of adaptive regulatory approaches in addressing evolving technological challenges. 6.1 enhanced administrative framework administrative frameworks for cross-border data flows require several key enhancements to address emerging challenges in critical technology sectors. the development of clear assessment criteria should incorporate both technical security considerations and strategic impact evaluations. risk-based classification systems need updating to reflect evolving technological capabilities and security requirements. regular review mechanisms must ensure continued effectiveness of administrative controls in critical sectors. the implementation of expedited review procedures for time-sensitive www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 142 published by scholink inc. matters requires careful balance with security requirements. furthermore, these enhancements should facilitate effective coordination among different regulatory authorities. the development of improved frameworks must maintain appropriate flexibility while ensuring consistent protection standards. 6.2 technical capability development regulatory authorities require enhanced technical capabilities to effectively oversee cross-border data flows in critical technology sectors. investment in advanced monitoring systems would improve visibility into data flow patterns and potential security concerns. the development of automated assessment tools could enhance efficiency in regulatory implementation. technical training programs need expansion to maintain necessary expertise in emerging technologies. furthermore, the integration of advanced analytics capabilities would strengthen regulatory oversight effectiveness. these technical enhancements should support both routine oversight activities and emergency response capabilities. the development of technical capabilities must balance sophistication with practical implementation requirements. 6.3 international coordination mechanisms the enhancement of international coordination mechanisms represents a critical area for policy development. standardized protocols for information sharing would improve coordination effectiveness across jurisdictions. joint investigation frameworks require strengthening to address complex cross-border security incidents. regular consultation mechanisms should facilitate necessary alignment of regulatory approaches. the development of harmonized technical standards would reduce implementation complexity across jurisdictions. furthermore, these coordination mechanisms must maintain appropriate security controls while facilitating necessary cooperation. the implementation of enhanced coordination frameworks requires careful consideration of different national priorities. 6.4 implementation support measures supporting measures play crucial roles in ensuring effective implementation of regulatory requirements. enhanced guidance materials would improve understanding of compliance requirements in critical sectors. technical assistance programs require expansion to support implementation in different operational environments. regular feedback mechanisms should facilitate continuous improvement of regulatory approaches. the development of implementation tools must consider both efficiency requirements and security needs. furthermore, these support measures should facilitate knowledge sharing among different stakeholders. the implementation of support programs requires careful allocation of available resources. 6.5 strategic development priorities long-term strategic priorities for regulatory development should address several key areas: the enhancement of regulatory frameworks must consider future technological developments and security requirements. strategic planning should incorporate both immediate operational needs and longer-term security objectives. the development of advanced oversight capabilities requires sustained investment in technical infrastructure. regular evaluation mechanisms must ensure continued effectiveness of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 143 published by scholink inc. strategic approaches. furthermore, these priorities should guide the evolution of regulatory frameworks in critical sectors. the implementation of strategic initiatives requires careful balance of different policy objectives. 6.6 implementation timeline the implementation of proposed policy recommendations requires a carefully structured timeline that recognizes both the urgency of regulatory enhancement and practical implementation constraints in critical technology sectors. this phased approach allows for systematic development of necessary capabilities while maintaining operational continuity. the timeline must accommodate different levels of existing regulatory maturity across jurisdictions and sectors. strategic sequencing of implementation activities ensures effective resource utilization and capability development. furthermore, the implementation schedule should maintain sufficient flexibility to address emerging challenges and opportunities. the initial phase, spanning the first one to two years, focuses on establishing fundamental capabilities and frameworks. administrative framework enhancements during this period should address immediate operational needs in critical sectors. basic technical capabilities require early development to support enhanced oversight functions. preliminary coordination mechanisms need establishment to facilitate necessary international cooperation. essential support measures should be implemented to assist regulatory authorities and regulated entities. the development phase, covering years two through three, emphasizes the implementation of advanced capabilities and comprehensive frameworks. technical solutions during this period should incorporate sophisticated monitoring and analysis capabilities. enhanced international coordination frameworks require careful development and testing across different jurisdictions. comprehensive support programs need implementation to address complex operational requirements. regular evaluation mechanisms should be established to assess implementation effectiveness. the maturity phase, extending from year three through five, focuses on achieving full operational capability and establishing continuous improvement mechanisms. implementation of enhanced technical capabilities should reach completion during this period. comprehensive coordination mechanisms require full deployment across different jurisdictions and sectors. sophisticated support programs need implementation to address complex operational requirements. regular strategic reviews should ensure continued alignment with evolving needs. the implementation timeline incorporates specific milestones and evaluation points to ensure effective progress monitoring. regular assessment of implementation progress enables necessary adjustments to timing and approach. key performance indicators require monitoring throughout the implementation period to measure effectiveness. feedback mechanisms should facilitate continuous refinement of implementation approaches. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 144 published by scholink inc. 7. conclusion the regulation of cross-border data flows in critical technology sectors represents a complex challenge that demands sophisticated administrative law approaches. this study has examined the intricate balance between security requirements and operational efficiency in managing data flows across jurisdictions. the analysis reveals several significant findings about effective regulatory approaches in critical technology sectors. the implementation of administrative controls requires careful consideration of both technical capabilities and strategic implications. furthermore, the evolution of regulatory frameworks demonstrates increasing recognition of data flows’ strategic importance in critical sectors. these developments continue to shape the future of administrative law in technology regulation. the theoretical framework developed in this study provides important insights into the fundamental principles governing effective regulation of cross-border data flows. administrative discretion requires careful calibration to address complex security challenges while maintaining operational efficiency. the principle of proportionality plays a crucial role in ensuring appropriate balance between security controls and technological development. due process considerations demand careful attention in implementing administrative controls across different jurisdictions. the integration of these theoretical perspectives offers valuable guidance for regulatory development in critical technology sectors. additionally, the analysis of different theoretical approaches contributes to deeper understanding of regulatory challenges in complex technological environments. the comparative analysis of regulatory frameworks across major jurisdictions reveals important variations in approach and implementation. the united states emphasizes risk-based assessment approaches while maintaining strong security controls in critical sectors. the european union demonstrates particular attention to comprehensive data protection while addressing security requirements. asian jurisdictions show varying approaches to balancing security considerations with technological development. these different regulatory approaches provide valuable lessons for developing effective administrative control mechanisms. the analysis of implementation experiences across jurisdictions contributes to improved understanding of regulatory effectiveness. case studies from critical technology sectors demonstrate the practical challenges and solutions in implementing effective regulatory controls. the semiconductor manufacturing sector illustrates the complexity of protecting sensitive technical information while maintaining operational efficiency. artificial intelligence development shows the challenges of managing data flows in rapidly evolving technological environments. critical infrastructure protection reveals the importance of balanced approaches to security control implementation. these case studies provide valuable insights for developing practical regulatory solutions. the examination of implementation experiences contributes to improved understanding of effective regulatory approaches. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 145 published by scholink inc. policy recommendations developed from this analysis emphasize the need for enhanced administrative frameworks and improved implementation capabilities. the development of sophisticated technical capabilities remains crucial for effective oversight of cross-border data flows. international coordination mechanisms require strengthening to address complex regulatory challenges across jurisdictions. implementation support measures play essential roles in ensuring effective regulatory implementation. these recommendations provide practical guidance for enhancing regulatory effectiveness in critical technology sectors. the proposed implementation timeline offers structured approach to capability development. this research contributes to both theoretical understanding and practical implementation of administrative law in critical technology sectors. the findings suggest several areas for future research, including the development of enhanced coordination mechanisms and improved technical capabilities. the evolution of regulatory approaches will likely continue as technological capabilities advance and security challenges evolve. continued attention to balancing security requirements with operational efficiency remains essential for effective regulation. the successful management of cross-border data flows in critical technology sectors requires sustained commitment to regulatory enhancement and international cooperation. references a european strategy for data|shaping europe’s digital future. 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(n.d.). module 2. project risk management: stakeholders’ risks and the project manager’s role—risk assessment and quality project management. retrieved december 11, 2024, from https://jcu.pressbooks.pub/pmriskquality/chapter/module-2-project-risk-management-stakeholders -risks-and-the-project-managers-role/ regulating cross-border data flows. (n.d.). anthempress. retrieved december 11, 2024, from https://anthempress.com/regulating-cross-border-data-flows-issues-challenges-and-impact-pb regulating for a digital economy: understanding the importance of cross-border data flows in asia. (n.d.). retrieved december 11, 2024, from https://www.brookings.edu/articles/regulating-for-a-digital-economy-understanding-the-importanc e-of-cross-border-data-flows-in-asia/ review, t. r., & bredbenner, m. 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(n.d.). uncdf policy accelerator. retrieved december 11, 2024, from https://policyaccelerator.uncdf.org/all/brief-cross-border-data-flows economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 72 original paper on public interest in public interest litigation shengnan zhou 1* , guoxin li 1 & chenghan guan 1 1 college of ocean law and humanities, dalian ocean university, liaoning, dalian, 116000, china * corresponding author received: march 22, 2025 accepted: april 8, 2025 online published: april 10, 2025 doi:10.22158/elp.v8n1p72 url: http://dx.doi.org/10.22158/elp.v8n1p72 abstract in 2017, china officially adopted the amendments to article 55 of the civil procedure law and article 25 of the administrative procedure law, establishing an empowering norm for public interest litigation initiated by procuratorial organs at the level of substantive law. this move addressed the long-standing institutional framework deficiencies (li, x., 2024, pp. 169-177) in china’s procuratorial public interest litigation. however, due to its late start and the diversification of the concept of “public interest”, the law still follows a design approach that combines “specific enumeration + catch-all clause” (li, x., 2024, pp. 169-177), failing to provide a precise definition of the scope of “public interest”. instead, it limits the cases in which procuratorial organs can initiate public interest litigation through traditional typological enumeration. the traditional typological approach has inherent flaws, such as incompleteness and inadequacy, making it unable to address the challenges in defining practical interests. to address this, a revised typological approach could be adopted to exclude situations that do not fall under public interest, thereby reducing the uncertainty surrounding the concept of public interest and providing intellectual support for improving relevant legislation and guiding judicial practice. keywords public interest, public interest litigation, procuratorial public interest litigation 1. introduction in october 2014, the fourth plenary session of the 18th central committee of the communist party of china adopted the “decision on several major issues concerning the comprehensive promotion of governing the country according to law”, which for the first time proposed exploring the establishment of a system where procuratorial organs initiate public interest litigation. in may 2015, the 12th meeting of the central leading group for comprehensively deepening reform reviewed and approved the “pilot program for reforming public interest litigation initiated by procuratorial www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 73 published by scholink inc. organs”. in july of the same year, the standing committee (wang, y. f., 2021, pp. 26-33) of the national people’s congress made a decision to authorize the supreme people’s procuratorate to conduct a two-year pilot program, thus securing the institutional “ticket” for public interest litigation initiated by procuratorial organs. to facilitate the smooth implementation of the pilot program, the supreme people’s court and the supreme people’s procuratorate (hereinafter referred to as the “two high courts”) promptly issued a series of supporting measures, including the “pilot program for public interest litigation initiated by procuratorial organs”, the “implementation measures for the pilot program of public interest litigation initiated by people’s procuratorates”, and the “implementation measures for the pilot program of people’s courts in adjudicating cases of public interest litigation initiated by people’s procuratorates” (wang, y. f., 2021, pp. 26-33). this series of measures not only marked the initial formation of the top-level design for public interest litigation initiated by procuratorial organs but also heralded a critical moment for the breakthrough of china’s public interest litigation system. in may 2017, president xi jinping personally presided over the 35th meeting of the central leading group for comprehensively deepening reform, fully affirming the significant achievements made in the pilot work of public interest litigation by procuratorial organs. in june of the same year, the standing committee of the national people’s congress separately adopted amendments to the civil procedure law and the administrative litigation law of the people’s republic of china (hereinafter referred to as the “administrative litigation law”), adding provisions for procuratorial organs to initiate public interest litigation. since then, the system of public interest litigation by procuratorial organs has been officially codified into law, ushering in a new chapter of legalization and standardization of public interest litigation in china. 2. the unclear implication of public interest has a negative impact on the practice of prosecution in public interest litigation cases, the coexistence and interweaving of diverse interests form the basis of the complexity in case handling. specific litigation objects often carry multi-level public interests, which imposes higher demands on the typification of cases. scientific classification not only concerns the selection of litigation procedures but also directly impacts the determination of claims and the accuracy of judgments. however, there are prominent issues in current judicial practice: 2.1 the normative dilemma of the application of law in current public interest litigation documents and court judgments, there is a widespread tendency towards “natural interpretation”: after listing the facts of violation, it often directly assumes that national interests or public welfare have been harmed, without providing necessary reasoning. this practice has three major drawbacks: first, it neglects to explain and justify the damaged public interest, weakening the persuasiveness of the judgment; second, it fails to effectively respond to the reasonable expectations of parties involved and the general public regarding the definition of public interest; third, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 74 published by scholink inc. it hinders the standardized development of the public interest litigation system. this normative deficiency urgently needs to be addressed through typological methods. 2.2 the identification problem of multiple public interests in many public interest litigation cases, specific entities may carry multiple public interests, and the relationships between these interests are not always clear. for example, actions that damage natural resources can involve both the loss of state-owned property interests and environmental interests (such as hunting key protected wildlife); ecological destruction or environmental pollution by producers and operators may lead to significant safety hazards or accidents; the governance of junk food around schools involves both the interests of minors and public food safety; the abuse of market dominance is not only within the scope of antitrust public interest litigation but also an illegal act that harms the rights of an unspecified majority of consumers; personal information protection also addresses the function of combating telecom fraud. these cases illustrate that there is a complex intersection between the identity interests of specific entities and the functional interests of specific objects, yet current laws lack clear standards for choosing procedures and determining claims. the ambiguity of public interest not only affects the precision and standardization of public interest litigation but also brings numerous challenges to procedural choices and claim determinations in judicial practice. based on the essential characteristics of public interest, it is neither appropriate nor easy for law to provide a clear definition. this view is widely recognized in academic circles: for instance, chen xinmin, a scholar from taiwan region, points out that the content and beneficiaries of public interest are uncertain and difficult to define; his reasoning is that the content and beneficiaries of public interest are uncertain. german scholar t.laeufer argues that the concept of interest depends on changing social, political, and ideological factors; this legislative choice is reasonable: on one hand, it acknowledges the characteristic of public interest as an uncertain legal concept, and on the other hand, it reserves space for judicial discretion. when disputes arise over public interest, judicial authorities should make value judgments based on specific case circumstances, achieving the concretization of the concept through typological methods. 3. the need for typology of public interest public interest, though difficult to define precisely, can be supplemented through typification. as scholars have noted, by continuously refining constitutional and legal interpretations, a scientific system for typifying public interests can be established. from a practical standpoint, typifying public interests has positive implications at least in the following areas (li, x., 2024, pp. 169-177): 3.1 the clarification of the division of interests public interest stems from the sharing of private interests, but it is not merely a simple aggregation of these interests. in contemporary society, public interest has evolved into a new type of interest, with its boundaries increasingly blurred with those of individual and national interests. the typological approach helps clarify these interest boundaries, providing a basis for the proper exercise of public www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 75 published by scholink inc. power. the intuitive nature of types is their greatest advantage, which is fully demonstrated in all typological objects. through this method, the concept of public interest becomes more practical and feasible in legal practice. specifically, typology not only reflects the specific forms of interests but also provides a more detailed and clear structure, making it a clear guide in judicial decisions. it enables judges to more accurately identify and consider various potential interest relationships when handling cases, thereby enhancing the fairness and efficiency of judicial rulings. typology is a powerful tool that offers judges a framework to make reasonable judgments based on legal provisions and specific circumstances, ensuring the correct implementation of the law and the maintenance of social justice. 3.2 the diversification of interest forms the publicization of spiritual interests. under the current legal framework, the concept of public interest has transcended the narrow scope traditionally limited to property interests. with social development and the diversification of people’s needs, the trend toward the publicization of spiritual interests is becoming increasingly evident. this trend not only manifests in the pursuit of material wealth but also in the respect and protection of intangible interests such as spiritual values, moral beliefs, and historical memory. for example, china’s general principles of civil law explicitly include the personality rights of heroes and martyrs within the realm of public interest. this approach fundamentally differs from the past practice of equating public interest with property rights. it signifies that the law recognizes and protects the ultimate value represented by these heroes, which is not just a compensation for their individual rights but also a safeguard and inheritance of the collective memory of the entire nation. when handling cases involving the personality rights of heroic figures, the supreme people’s court particularly emphasizes the role these heroic deeds have played in modern chinese history and uses this as a critical basis for evaluating whether an infringement constitutes harm (zhang, x. q., 2019, pp. 149-160). through case analyses of heroes like the “five heroes of langya mountain” and “qiu shaoyun”, the supreme people’s court demonstrates a unique judicial wisdom. these judgments do not focus solely on the events themselves but integrate the national spirit, patriotism, and core socialist values behind the cases, thereby establishing the status of the personality rights of heroes and martyrs within the realm of public interest. this approach reflects the law’s emphasis on protecting spiritual interests and demonstrates society’s high recognition of positive values such as justice, courage, sacrifice, and loyalty. therefore, we can see that the trend of publicizing spiritual interests is gradually becoming an indispensable part of legal practice in today’s society. it requires legal professionals not only to accurately identify and protect property interests but also to deeply understand and safeguard intangible interests related to the soul, emotions, and beliefs. such a legal philosophy helps build a more harmonious and comprehensive social network, promoting overall social progress and cultural prosperity. secondly, the standardization of analogical application. when exploring the intersection of law and social ethics, we have discovered an enlightening theoretical framework—the analogy method. through this approach, special personality rights such as those of heroes and martyrs can be extended www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 76 published by scholink inc. to broader public interests. however, when it comes to concepts like public order and good morals, and social ethics, the issue becomes more complex. these are typically seen as spiritual wealth, which often cannot be clearly distinguished at the qualitative level. nevertheless, from a practical standpoint, whether other spiritual interests can be included in the category of public interest still requires clear legal definition. currently, the legal community is facing a significant trend shift: in modern society, the importance of property rights is gradually diminishing while personality rights are increasingly valued. people’s focus has also shifted from the economic domain to a broader level of civilizational development. the definition of public interest is evolving from basic material needs for human survival to deeper spiritual and cultural demands. this transformation not only reflects social progress but also demonstrates people’s increased pursuit of quality of life and attention to the spiritual and cultural dimensions. in this context, concepts like public order and good morals, as well as social ethics, are no longer confined to traditional moral norms or social customs; they have become important foundations for building a harmonious society and maintaining fairness and justice. these intangible values, though unquantifiable in monetary terms, play an irreplaceable role in maintaining social order and promoting civic qualities. therefore, they should be included in the realm of public interest, providing a common code of conduct for all members of society. however, due to the unique nature of such spiritual interests, their status as part of public interest may spark some controversy. on one hand, it demands that the law give them sufficient attention and protection; on the other hand, ensuring that the realization of these interests does not infringe upon individual rights while also fulfilling the public’s aspiration for a better society is a serious issue that the legal community must carefully consider and address. 3.3 standardization of litigation procedures the high abstraction of public interest poses significant challenges to the initiation of administrative public interest litigation procedures. this can lead to potential overreach or inaction by the procuratorate’s right to initiate such lawsuits, thereby undermining the institutional goals of public interest litigation. within the framework of administrative public interest litigation, a reasonable division of authority should be: administrative agencies can conduct self-reflection, procuratorates must not overstep their bounds in legal supervision, and courts must remain objective and neutral in judicial proceedings. therefore, the legislative focus of china’s administrative public interest litigation should shift from the scope of cases accepted to the standards for initiating cases. taking the field of housing demolition as an example, the ambiguity of the concept of public interest has produced multiple negative impacts in practice: first, it is difficult to provide clear guidance to parties involved; second, the scope of authority of administrative agencies is too broad, increasing the risk of abuse of power, especially in land expropriation and demolition. third, it hinders judges from making correct judgments on whether there is a public interest in specific cases. in response to this, this article proposes a “categorized” definition method that can clearly delineate the boundaries between public and commercial land use while strictly defining the premise of public interest, thereby curbing www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 77 published by scholink inc. illegal expropriation. such an institutional arrangement not only safeguards public interest but also delineates clear boundaries for the exercise of administrative power, contributing to a balance between public and individual interests. 4. judicial determination and procedural regulation of public interest 4.1 establish regular procedures and mechanisms in the process of public interest litigation, it is necessary to distinguish the relationship between public interest litigation and ordinary litigation. generally speaking, when there is no dispute arising from public interest, a normal litigation mechanism should be established to ensure that public interest is recognized. in the process of normally controlling public interests, there is an argument that such control is a democratic procedure. in administrative expropriation practices, there are cases where the expropriated party votes to determine the compensation standards. some scholars argue that actions for social public interest should be evaluated by the general public. on this basis, various stakeholders naturally judge whether the expropriation action aligns with public interest through voting (chen, h. y., 2020, pp. 79-80). the view that public interest judgments should be entirely left to public vote is open to debate. while democratic principles serve as a crucial benchmark for public interest judgments, it is not advisable to simply adopt a voting system in individual cases. this argument is based on the following considerations: first, the scope of beneficiaries from expropriation actions often has uncertainty and diffuseness, making it difficult to accurately define the voting subjects. if the voting range is too narrow, such as being limited to the affected population, it may fail to gain majority support; conversely, if the range is too broad, it might fail to truly reflect the wishes of those directly involved. second, from an administrative law perspective, expropriation, as a mandatory administrative action, its nature of power dictates that public interest judgments cannot be entirely left to the public; otherwise, it would undermine the legal authority of administrative actions. however, this does not mean that the significant role of democratic procedures in the expropriation process can be overlooked. to ensure the legitimacy of expropriation decisions, it is recommended to establish a diversified democratic participation mechanism within routine procedures: first, hold hearings according to law to ensure the involvement of multiple stakeholders such as those being expropriated, experts, scholars, and the public; second, improve information disclosure systems to promptly release relevant land expropriation information and widely solicit social opinions; third, establish a regular communication and consultation mechanism to enhance mutual understanding and trust among all parties, preventing and resolving potential disputes. this institutional design not only embodies democratic principles but also upholds the authority of administrative actions, achieving a balanced protection of public interests and individual rights. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 78 published by scholink inc. 4.2 public interest is identified through judicial means public interest, as a core concept in the construction of the rule of law, directly concerns the legitimacy of national governance and the realization of social equity and justice. in response to the ambiguity and practical difficulties in defining public interest today, it is urgent to develop systematic institutional improvement paths from both judicial and legislative perspectives. first, it is essential to recognize the core role of judicial authorities in defining public interest and to strengthen their statutory powers and judicial review functions. according to the administrative litigation law, the people’s courts, as the ultimate adjudicating body for resolving disputes, legally possess the authority to review public interest controversies. although assessing public interest is highly complex and courts face numerous practical challenges under the current system, from the perspective of the rule of law, judicial authorities are the only qualified entities to resolve public interest disputes. to this end, the court’s review authority over government administrative actions (such as expropriation and demolition) should be further detailed to ensure the independence and authority of judicial reviews. at the same time, in administrative litigation, defining public interest should be a central aspect of case proceedings, requiring courts to clearly identify issues related to public interest in their judgments. by providing clear standards and procedures for defining public interest through judicial interpretations or guiding cases, unified guidance can be offered to judicial practice, thereby enhancing the predictability and credibility of judicial decisions (gao, z. h., 2022, pp. 53-62). secondly, the typification and concretization of the concept of public interest should be promoted, granting judges discretionary power in individual cases. as an uncertain legal concept, public interest has a high degree of abstraction and openness in its meaning and scope. therefore, it is necessary to specify the typification of public interest in laws such as the property law and the land management law, clearly defining its specific scope and applicable scenarios. for example, public interest can be categorized into specific areas such as ecological environment, cultural heritage, and public safety, to enhance the operability of the law. at the same time, judges should be allowed to interpret and concretize public interest flexibly based on the specific circumstances of individual cases, in conjunction with the spirit of the law, legislative intent, and social needs. through the accumulation of case law and the development of theories, judicial standards for defining public interest can gradually be formed, providing practical experience for the typification of legislation. this process of “concretization” does not aim to establish a fixed standard for similar cases but rather involves dynamic adjustments according to the spirit and purpose of the law, taking into account the social context and needs of each specific case. this approach ensures both the stability and flexibility of the law while achieving scientific and reasonable definitions of public interest. secondly, a mechanism for balancing interests in public interest disputes should be established, and the interest protection mechanisms in expropriation and requisition procedures should be improved. defining public interest is essentially a process of balancing interests, requiring a reasonable balance www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 79 published by scholink inc. between national development needs, social public interests, and citizens’ private property rights (lu, c., 2018, pp. 25-35). to this end, in public interest disputes, courts should comprehensively consider macro backgrounds such as urbanization and industrialization, weigh the interests of all parties, and ensure the rationality and fairness of defining public interest. at the same time, in expropriation and requisition procedures, the right to information, participation, and redress for those whose property is expropriated should be clearly defined, ensuring their legitimate rights and interests are fully protected. by establishing a hearing procedure for expropriation and requisition decisions, stakeholders can participate and express their opinions, enhancing the transparency and fairness of the process. additionally, the principle of interest balancing should be introduced, requiring administrative agencies to fully consider the legal implications of public interest and social needs in decision-making, avoiding the abuse of power that could harm citizens’ legitimate rights and interests. finally, international experience should be drawn upon to optimize the procedural control of public interest determination and strengthen institutional safeguards for defining public interests. from a comparative law perspective, most countries and regions rely on judicial bodies to make specific judgments about public interests. for example, the french administrative court adopts a case-by-case review approach, combining specific facts of cases with social needs to dynamically define public interests. china can draw on this experience, allowing courts to conduct case-by-case reviews of public interests in expropriation and requisition, ensuring they meet the legal conditions and procedures. at the same time, a “law on expropriation and requisition” should be formulated to clarify the procedural rules for determining public interests, including the definition of powers of expropriation agencies, initiation and decision-making procedures, and compensation assessment procedures. a supervision mechanism should be introduced into the process, with the national people’s congress or specialized institutions overseeing whether government expropriation actions align with public interests, preventing the abuse of power. additionally, collaboration mechanisms between the judiciary and administration should be strengthened, establishing communication and coordination mechanisms between judicial bodies and administrative agencies in public interest disputes to ensure effective integration of judicial review and administrative decision-making. through forms such as judicial recommendations (zhang, x. q., 2019, pp. 149-160), administrative agencies should be encouraged to fully consider the legal implications and social needs of public interests in their decisions, thereby achieving scientific and rule-of-law-based determination of public interests, ensuring that private rights are adequately protected during the exercise of public power, and preventing unlawful harm caused by the exercise of public power (jiang, x., 2008, pp. 45-56). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 80 published by scholink inc. 5. conclusion the public interest in public interest litigation is a legal proposition with chinese characteristics, which not only reflects the general principle of rule of law, but also is deeply rooted in china’s historical tradition and current national conditions. from a historical perspective, although china has drawn on western legal experiences in its modernization process, it faces unique contemporary challenges in the modernization of its governance system and capabilities. this uniqueness is primarily reflected in two aspects: first, the concept of “the world as a commonwealth” in traditional chinese culture has shaped a distinctive model of public interest cognition; second, the path to modernization after the founding of new china fundamentally differs from the nation-building approaches during the western enlightenment period. from a practical perspective, there are significant differences between the west and china in terms of the era’s demands for public interest protection and governance resources. during the enlightenment period in the west, the concept of public interest existed as a “political adhesive” that helped consolidate dispersed interests into a cohesive whole. in contrast, under the chinese context, public interest plays a crucial role in preventing the atomization of interests and maintaining social integration, acting as a “social governance brake” during the transition from a monolithic to a diversified interest landscape. especially in today’s context of diversified interests, china faces the important task of reshaping a community of shared interests and preventing the disconnection between society and the state. in this process, china has developed a unique mechanism for protecting public interest: under the leadership of the party, various government agencies allocate public resources through division of labor rather than power checks and balances, providing institutional guarantees for the protection of overall interests as individual rights expand within the framework of the rule of law. in terms of institutional improvement, administrative public interest litigation, as an important institutional design for safeguarding public interests, not only requires sound criteria for initiation but also necessitates the establishment of a comprehensive procedural rule system. to this end, it is recommended to amend the administrative litigation law or enact a dedicated (chen, h. y., 2020, pp. 79-80) public interest litigation law to systematically construct a normative system that includes rules on claims, trial procedures, adjudication, enforcement, and supervision, thereby providing stronger institutional support for the protection of public interests (gao, z. h., 2022, pp. 53-62). this process of institutional development should fully reflect the requirements of the socialist rule of law with chinese characteristics, drawing on international experience while emphasizing the creative transformation and innovative development in line with china’s governance traditions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 81 published by scholink inc. references chen, h. y. (2020). actual judgment of public interest in public interest litigation. people’s procuratorate, 2020(02), 79-80. gao, z. h. (2022). public interest: the value purpose and normative structure of administrative public interest litigation. academic circle, 2022(07), 53-62. gao, z. h. (2022). public interest: the value purpose and normative structure of administrative public interest litigation. academic circle, 2022(07), 53-62. jiang, x. (2008). interpretation of the principle of proportionality, construction and reflection of the structure of law. law science (journal of northwest university of political science and law), 2008(05), 45-56. li, x. (2024). three major problems of china’s public interest litigation legislation. social sciences table, 2024(06), 169-177. li, x. (2024). three major problems of china’s public interest litigation legislation. social science forum, 2024(06), 169-177. lu, c. (2018). from judicial process to organizational incentive: china’s experiment in administrative public interest litigation. law and business research, 35(05), 25-35. wang, y. f. (2021). research on the investigation power of procuratorate in administrative public interest litigation. journal of henan radio and tv university, 34(02), 26-33. zhang, x. q. (2019). comparative study on public interest litigation in procuratorate. journal of national prosecutors college, 27(01), 149-160. microsoft word elp-v2n1-p73 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 1, 2019 www.scholink.org/ojs/index.php/elp 73 original paper contextualising germen involvement in cpec through wakhan corridor and gwadar port as an diplo-economic opportunity hasan yaser malik1* 1 head cpec research cell at fauji fertilizer bin qasim limited, islamabad, pakistan * hasan yaser malik, head cpec research cell at fauji fertilizer bin qasim limited, islamabad, pakistan received: january 2, 2019 accepted: january 10, 2019 online published: january 28, 2019 doi:10.22158/elp.v2n1p73 url: http://dx.doi.org/10.22158/elp.v2n1p73 abstract since seventh, eighteenth, nineteenth century germany is maintaining diplomatic relations with china, afghanistan and five central asian republics respectively in asian region. main facets of german interests in asian region have been diplomatic, economic and social development. germans as a nation have always proved their worth by successfully dealing the challenges and rising to the status of a strong nation. presently germany is the biggest european economic power and is asserting to enhance it’s economic and diplomatic relations in indo-pacific and asian region. apart from establishing trade link; mainly rail link with china and central asia it will be prudent to extend its access to indo-pacific region well as part of “one belt one road initiative” and “china pakistan economic corridor” through wakhan corridor in north of pakistan to gwadar; north arabian sea port of pakistan. this route will provide land and sea access for germany to billions of asians and will enhance its diplo-economic influence in indo-pacific region. keywords wakhan, gwadar, germany, diplo-economic, trade, indo-pacific and ocean, obor, cpec 1. introduction geographically placed in middle of europe; germany is an economic pivot for recession stricken european union (eu). in contemporary scenario german economy is growing at the rate of about 2 percent. whereas the presently their large gap between economic growth rate of germany and eu which is about 1 percent. germany is an expanding economy so its needs to enhance its trade beyond europe especially in asia and indo-pacific region. presently germany is enhancing its trade links with china and it has already been using china-europe express rail (cargo train x8044) which started www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 74 published by scholink inc. service on 19 march 2011 completed its 10,000th trip when it reached wuhan from hamburg on 26 aug 2018. china-europe express connects 48 chinese cities with over 40 cities in 14 european countries and has boosted chinese businesses with european and bri countries. train service has increased trade volumes between china and their destination countries by delivering it products, clothing, automobile parts, food, wine and timber. such emerging inter-continental rail linkage will not only enhance the german land access to caspian region, central asian republics (cars), khorgos (world biggest dry port on china kazakhstan border) and pacific coast through mainland china. it will be beneficial for germany to make use of khargos-gwadar axis to enhance its trade in indo-pacific region by utilising the north arabian pakistani port of gwadar; which is a gate way to persian gulf in pakistan. by utilising the land route and proposed water route through wakhan corridor starting from north east of afghanistan to gwadar port germany will not only be able to enhance its contemporary economic situation but will also improve its much desired diplomatic and economic relations in the regions. moreover any possible german naval facility at gwadar particularly in combination with china will have strategic influence in entire indian ocean and south china sea hence creating a balance in the region and securing the sea lines of communications. 2. research purpose the purpose of the research is to suggest the enhancement of german diplo-economic involvement in asian region as part of “one belt one road initiative” through china pakistan economic corridor to utilize both land and maritime routes. 3. german interests in asian and indo-pacific regions germany has been involved in asian region since seventh century mainly for diplomatic and economic gains. the germans mainly have interests in cars, afghanistan, china and pakistan as part of asian region. these relations and interests have always added to german diplomatic and economic influence in the asian region. in consonance with contemporary world order where facets like ever expanding globalisation, global economic inter dependence and global diplomatic dependence are expanding (hasan, 2015, p. 39). it will vital for the germany to further enhance its diplomatic and economic influence in asian and indo-pacific regions as this would allow a prudent access to the population of about three billion as a economic market and the sea lines of communications mainly emerging out of the energy rich strait of hurmoz. to formulate a pragmatic discussion it will prudent to understand the german interests in asian and indo-pacific regions in subsequent paragraphs. 4. german interests in central asian republics presently german is represented by an ambassador in uzbekistan, turkmenistan, kazakhstan, kyrgyzstan and tajikistan. since 2011 german forces in uzbekistan have been providing logistic support to isaf troops. germany has been making efforts for peace in afghanistan and stability in the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 75 published by scholink inc. region in accordance with its central asia concept of 2002 (reinhard, 2007, p. 5). presently apart from the u.s and china eu is also involved in the great game once the regional countries enjoy sovereign status (reinhard, p. 5). german involvement is in central asian region has ethnic dimensions as well because many of the german-russians are still living in kazakhstan, kyrgyzstan and uzbekistan. it is estimated that cars and azerbaijan possess 7.5 trillion cubic meters of known and an estimated 20 trillion cubic meters of undiscovered reserves of natural gas. turkmenistan’s undiscovered reserves are estimated at 37 billion barrel and have discovered 17 new natural gas fields with 60 to 80 billion cubic meters of gas (rebecca, 2004). berlin government being pragmatic in approach towards central asia has planned to concentrate on politico-social development of the region through consolidation of democratic structures, poverty alleviation, social, and environmental friendly economic development and policy of non-proliferation of weapons of mass destruction. presently germany is the principal mutual donor in central asia through institutions like deutsche gesellschaft für technische zusammenarbeit, deutsche akademische austauschdienst and deutsche volkshochschulverb which are actively involved in the region. alongside cars berlin is also improving its diplomatic and economic interests in afghanistan, china and pakistan as well which can ultimately enhance german interests towards south asia and indo-pacific regions. 5. german interests in china sino-german relations have been wide ranging since 1972 (federal foreign office china, 2015). presently beijing is prime german asian economic partner and germany is principal chinese trade partner in europe. in 2004 china and germany became “strategic partner in global responsibility” and the status was upgraded as “comprehensive strategic partnership” during president xi jinping’s visit to berlin in march 2014. beijing and german trade volume was euro 150 billion by end of 2014 which is increasing tremendously as germany is china’s biggest european trade partner and sixth largest across the globe; whereas beijing is frankfurt’s leading asian and third largest international trade partner. presently around 5000 german companies are working in china and 900 chinese companies are working in germany. beijing is the second largest export market for berlin as germany alone exports about 50 percent of total eu export to china as compared to 10 percent of united kingdom and 9 percent of france. in order to enhance the relations in fields of science and technology both countries established “sino-german-centre for science promotion” which is jointly run by german research foundation (dfg) and national natural science foundation of china. to combine the marine research interests a “center for sino-german cooperation in marine sciences” is established in qingdao was co-founded by the ocean university of china and “leibniz institute of marine sciences” as part of university of bremen. chinese trade with europe is also on increase, more over the use of chinese currency; renminbi (rmb) is also getting popular and is likely to be increased by 40 percent till 2024 (syetarn, 2014). as for as eu is concerned it has adopted an orientation towards china at expanse of its traditional partners like the u.s and japan and its trade with the u.s and japan has reduced from 23 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 76 published by scholink inc. percent to 18 percent and 6 percent to 3 percent respectively however on the contrary in case of beijing it has risen from 6 percent to 16.6 percent (syetarn, 2014). on the other hand china is also gradually limiting its trade with the u.s with regard to highly technical goods and is relying on berlin (georg, 2014). german chancellor angela markel visit to beijing and separate meetings with chinese premier li keqiang and president xi jingping after xi jingping’s visit to berlin in march 2014 highlights the bilateral economic and diplomatic interests of both countries in prevalent global scenario. with many of chinese diplomatic initiatives, the principal meeting point was economic. merkel’s business delegation  attended a meeting of the china-germany economic and trade commission. frankfurt has become a clearance hub for rmb by name of china-europe international exchange (ceinex). europe will be end destination of “new silk route” as envisioned by president xi jingping. china’s ultimate goal will be to lessen the u.s influence in europe so china and germany will need to cooperate in recent global system by focusing on security issues matching economic dynamics (shannon, 2014). china and germany are establishing the rail link form leipzig to chongqing for goods transporting between germany and china hence reducing the travelling time to 20 days as compared to 35 days via sea. such initiatives will further add to chinese orientation towards europe and german interests towards south asia and indo-pacific regions. 6. german interests in afghanistan since 1914 germany is maintaining diplomatic and economic relations with afghanistan as it sent a diplomatic mission to afghanistan under oskar van niedermayer during the era of king amir habibullah khan (nasrullah, 2004). later on from 1919 to 1929 amir amanullah tried to further enhance the strategic relations between two nations to reduce the british and russian influence in the region. berlin was looking at afghanistan as a politico-military base and kabul government wanted germany to function as a balancing force to keep british and russians out of afghanistan (ludwig, 1974). amir amanullah also wanted strength and power from berlin through a modernisation programme. in 1923 a “german-afghanistan group” was formed for provision of civil engineering support to afghanistan. germans also helped in education sector and established amania school in kabul. after amanullah who signed a treaty of friendship between germany and afghanistan in 1924 nadir shah also concluded a free trade agreement in 1930. it will be significant to note that italy and japan were also involved in project of social development in afghanistan apart from germany during the rule of ammanullah (islam, 2015). in 1936 not only afghan military started getting military training from german military officers but berlin also planned and supervised prime projects like roads, bridges, airfields and industrial plants. kabul maintained its relations with german democratic republic (gdr) and federal republic of germany (frg). from 1956 to 1962 frg kept supporting mining and industrial sectors in afghanistan it also provided deutsche mark (dm) 260 million for socio-economic development. since start of the millennium many german non-governmental www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 77 published by scholink inc. organistions were also working for social development before the u.s led nato attack on afghanistan in 2001. despite being a part of war in afghanistan; germany is continuing its support for humanitarian cause and social progress. since 2004 germany is heading provincial reconstruction team in badakhshan, faizabad and kunduz provinces (ibid.). on 5 december 2005 a conference was held in peter’s berg rest house (bonn) to form an interim government in afghanistan and later december 2002 another conference was held at same venue for development and peace in afghanistan. berlin and kabul are continuing for bilateral development and cooperation in private sector, market mechanism, refurbishing of power sector through renewable energy, drinking water and funds for training of primary teachers. during the tokyo conference in 2002 berlin promised to provide euro 320 million to afghanistan over a period of four years and an amount worth euro 80 million from 2005 to 2008 which was extended for two more years during a london conference in january 2006. berlin has provided euro 650 million for humanitarian development. germany is also making efforts to enhance capacity building of afghan border police. it is also making efforts to reduce the drugs from afghanistan and to promote the bilateral culture. berlin wants peace and stable afghanistan to use it as a friendly politico-economic base oriented towards central asia, russia and ultimately to indo-pacific region. 7. german interests in pakistan relations between germany and pakistan were established in 1950 principally basing on aspects of mutual friendship, culture, social and economic development. west germany became first economic partner of pakistan by launching “international development programme” in 1961. in 1970 both countries singed “strategic and military training pact” and in 1990 pakistan-german business forum was established. at dawn of new millennium germany emerged as one of the most significant allies surrounding the war in north western pakistan being fought between pakistan and talibans. presently pakistan-germany trade relations are attributed to generalised system of preference plus granted by eu in january, 2014. germany being largest european economy and second most populace nation with about 80 million people is vital for the continent’s economic, political and defence organisation. germany has been making efforts to support pakistani trade with eu for provision of greater market access. pakistan is a major partner for germany in the region and a central partner once it comes to deal with urgent international issue (frank walter steinmeier german foreign minister, 2015). germany is supporting democratic development, energy demands through renewable energy and rural development in baluchistan and federally administered tribal areas (fata) in pakistan. germany has interests in fata since 1920; twenty seven years before the independence of pakistan and during the time of british india (islam, 2015). apart from china, central asia and afghanistan; germany has interests in pakistani fata as the areas served as a barrier between british and ussr as part of great game. presence of german provincial reconstruction team in badakhshan (islam, 2015); afghanistan in wakhan corridor can improve the passage till brogohail pass along pakistan border to reach out www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 78 published by scholink inc. peshawar along chitral river as an alternate to karakoram highway to access gwadar port. 8. wakhan corridor as an opportunity for germany located at cross roads of afghanistan, energy rich tajikistan, an emerging world power china and geopolitically located pakistan. the wakhan corridor is an ancient and a strategic pass leading to china form eshkashem (afghanistan) which had been used for linking west with china via silk route. the afghan pass is attached to tajikistan in north, china in east and pakistan in south. it has always been used as a trade route for west and north to indian plains and arabian coasts in the south for centuries. extra regional facets like quest for great game between russia and britain since 1838 (michael, 2014), chinese communist revolution of 1949 (michael, 2014), soviet invasion of afghanistan for a decade followed by the nato invasion of afghanistan since 2001 has unfortunately kept away any kind of infrastructural development in wakhan as a fallacy. opening up of wakhjir pass by china in the corridor will surely improve trade and diplomatic relations; between pakistan, china, afghanistan and germany. wakhan corridor can be linked to peshawar and ultimately to gwadar port through a route along chitral river which can serve as an alternate route to karakoram highway to reach gwadar. wakhan-chitral route starting form brogohail passto gwadar port mainly along chitral river till chitral can also link jalalabad with chitral through mir khani and naray which will also have regional global politico-economic value. germany alone or in combination with china can play its role for improving or constructing the proposed route. the afghan government did not do much for social development of the corridor because of its self-sustaining tribal culture, rugged mountain terrain and cold climate. this ancient trade route between china, pakistan and afghanistan can still provide more suitable link between central asian energy resources to the warm water at gwadar port at the mouth of hurmoz. apparently it seems that china is preparing to open wakhjir pass as it has started some infrastructural development in the wakhjir pass; where in it has carpeted the road up to 10 km short of the border crossing point, leaving the rest to time of its choice and domination (dutta, 2012). apart from the road china has constructed a supply depot for its border police. it has enhanced its communication capability by establishing cell phone centers and by laying down the optical cable for the web based internet facilities. opening of link age with neighboring kyrgzs and wakhis will not only improve their life style but will also add to a sympathetic tones from entire population of wakhan corridor in particular and afghanistan and pakistan in general. passage through proposed will add stability in afghanistan which will be difficult to achieve even after u.s withdraws in entirety due to afghan culture (woodward, 2010). the 250 km long proposed route emerging from wakhan corridor should emanate from brogohail pass on pakistan border passing along the chitral river through mastuj, booni, chitral and peshawar should be linked to gwadar and jalalabad for more options. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 79 published by scholink inc. 9. strategic significance of cpec for germany being part of obor the gwadar port project was leased to port singapore authority as dubai port world withdrew after winning the bid (presentation made to president of pakistan by chairman national logistic cell dry ports). however later it was assigned to china (khaleeq, 2013). chinese presence at this critical choke point of gulf can not only check the indo-u.s domination of indian ocean (nixon, 1992) but can also strive to achieve its aim of being a naval power (yeuh, 1972). the proposed land link can help germany in improving its ever expanding trade to central asia, and south east asia and indo-pacific regions. in order to avoid their dependence on russia cars need opportunities to export energy resources through a suitable out let like gwadar (stephan, 2014). geographically there are two routes available to them, one passing through chabahar and the other leading through gwadar. due to prevalent international environment and its location gwadar emerges as a more viable alternate port. in case of afghanistan it is most likely that the country will be dependent on the imports and the aid from the donor nations, for which it had to depend on a transit agreement with pakistan (matinuddin, 1991, p. 308). as gwadar can provide economic and diplomatic opportunities to afghanistan, china, central asia and pakistan so considering the german interests in region mentioned above it will also enhance diplomatic and economic opportunities for germany not only in indian ocean but also in pacific ocean in combination with china. any german naval facility at gwadar particularly in combination with china will have strategic influence to create balance in entire indian ocean and south china sea. 10. inter-continental trade links which can be germany as part of obor and subsequently to cpec the project includes port, communication infrastructure, energy cooperation, industries and industrial parks, agricultural development, education, public health and people-to-people communication. it would also be connected with trade facilitation corridors. cpec aims at linking three billion people of south asia, china and central asia. with view to enhance its economic and diplomatic strength germany can expand its trade to asia, africa, russia, europe, central asia and indo-pacific region by linking with following:  eight thousand miles long inter-continental trade link from madrid to shanghou.  five thousand and seven hundred miles long continental railways to link moscow to with vladivostok.  connecting leipzig to chongqing thus transporting goods between germany and china thus reducing the travelling time to 20 days as compared to 35 days via sea.  four thousand and three hundred miles rail link between beijing and moscow.  beijing is also enhancing its influence by establishing energy pipe lines from caspian sea to china and from turkmenistan to china.  fifteen hundred miles long oil pipeline with myanmar. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 80 published by scholink inc. 11. conclusion germany has interest in central asian, south east asian and indo-pacific regions with main focus on diplomatic and economic relations with central asian republics, azerbaijan, china, afghanistan and pakistan. diplomatic and economic relations with these countries will allow germany to have better and pragmatic access to south asia and indo-pacific regions. in order to make the diplo-economic gains more prudent it will be beneficial for germany to make use of gwadar deep sea port in north arabian sea as gate way to energy transporting strait of hurmoz. any german naval facility at gwadar particularly in combination with china will have strategic influence in entire indian ocean and south china sea hence creating a balance in the region and securing the sea lines of communications. it will be prudent germany to have an access to gwadar port through an alternative to the karakoram highway through wakhan corridor. references dutta, s. (2012). outflanking move’ near afghan border with interests for india: ex-chief new delhi. in the telegraph (calcutta) june 5, 2012. federal foreign office china. (2015). retrieved february 8, 2016, from http://www.auswaertiges-amt.de/en/aussenpolitik/laender/laenderinfos/01-nodes/china_node. html frank walter steinmeier german foreign minister. (2015). relations between pakistan and germany increasingly close. in the daily news, august 31, 2015. georg, e. (2014). german-chinese economic relations—opportunities and risks for germany. diw economic bulletin, 4(2), 6. hasan, y. m. (2015). deterrence to dependence through blue diplomacy. quarterly journal of chinese studies, 4(1), 39. islam, s. (2015). an overview of relations between afghanistan and germany. journal of european studies, 111. khaleeq, k. (2013). gwadar port to be transferred to chinese firm; cabinet ratifies iran pipeline agreement. in daily dawn (lahore) jan 3 1, 2013. ludwig, w. a. (1974). afghanistan’s foreign affairs to the mid-twentieth century: relations with the ussr, germany, and britain. tucson: university of arizona press. matinuddin, k. (1991). power struggle in hindu kush, afghanistan. wajidalis (pvt) ltd, lahore, pakistan. michael, f. (2014). stranded on the roof of the world, national geographic 2013. retrieved january 4, 2014, from http://ngm.nationalgeographic.com/2013/02/wakhan-corridor/finkel-text nasrullah, n. (2004). afghanistan narai, pashto translation. kabul: afghan foreign ministry centre of strategic studies. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 81 published by scholink inc. nixon, r. (1992). seize the moment: usa: simon and schuster (p. 63). rebecca, l. b. (2004). international petroleum encyclopedia: santa calara: penn well pub co. reinhard, k. (2007). central asia the struggle for power, energy and human rights (p. 5). friedrich-ebert-stiftung, bonn/berlin, design, set and layout: dreispringer, berlin. richards, n. (1980). the real war. a warner communication company, new york, u.s.a. shannon, t. (2014). china and germany’s special relationship. retrieved february 8, 2016, from http://thediplomat.com/2014/07/china-and-germanys-special-relationship/ syetarn, h. (2014). china-eu relations: gearing up for growth. deutsche bank research, 31, 1. woodward, b. (2010). obama’s wars; the inside story (p. 264). uk: simon & schuster uk limited. yeuh, y. l. l. (1972). china as a nuclear power in world politics. macmillan press limited, london, united kingdom. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 235 original paper research on the legalization path for constructing a unified carbon market in chengdu-chongqing under the “dual carbon” goals jiaqi zhou 1 1 southwest petroleum university, chengdu, sichuan, china received: october 30, 2025 accepted: november 6, 2025 online published: november 7, 2025 doi:10.22158/elp.v8n2p235 url: http://dx.doi.org/10.22158/elp.v8n2p235 abstract with the increasing severity of global climate change, countries worldwide are proposing carbon emission reduction targets to promote green and low-carbon development. as one of the world's largest carbon emitters, china has also put forward the “dual carbon” goals, namely carbon peak and carbon neutrality. carbon emissions trading, as an important emission reduction tool, is gaining attention from governments. to achieve the “dual carbon” goals, constructing a unified carbon market is essential. the chengdu-chongqing economic circle, a significant economic hub in southwest china, possesses unique geographical and resource advantages. the integrated development of its carbon emissions trading is of great importance for advancing the national carbon market. this paper focuses on the legalization path for constructing a unified carbon market in chengdu-chongqing under the “dual carbon” goals, aiming to promote sustainable development in the chengdu-chongqing economic circle, achieve the “dual carbon” goals, and provide a legalization path reference for integrated carbon emissions trading in other regions of china. keywords chengdu-chongqing economic circle, carbon trading integration, unified carbon market, legalization 1. introduction the escalating global climate crisis necessitates urgent transitions to low-carbon economies worldwide. as the world’s largest carbon emitter, china’s commitment to its “dual carbon” goals—achieving carbon peak and carbon neutrality—is of paramount importance. in this context, carbon emissions www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 236 published by scholink inc. trading systems (ets) have emerged as a crucial market-based instrument to cost-effectively reduce emissions. while china’s national ets is operational, the development of regional unified markets offers a strategic pathway to optimize carbon resource allocation and deepen market mechanisms. the chengdu-chongqing economic circle, a pivotal growth pole in western china, possesses a robust economic foundation, synergistic policies, and shared emission reduction imperatives, making it an ideal candidate for such an initiative. however, the successful construction and stable functioning of a cross-regional carbon market hinge on a sound legal framework. this paper, therefore, focuses on exploring the legalization path for building a unified carbon market in chengdu-chongqing, aiming to provide a replicable model for regional carbon market integration underpinned by the rule of law. 2. the development trajectory of china’s carbon emissions trading market 2.1 initiation: the stage of experience accumulation and capacity building in china’s participation in international carbon emission trading under the cdm mechanism in may 2004, china’s national development and reform commission issued the “interim measures for the operation and management of clean development mechanism projects,” strengthening the management of cdm project activities based on the kyoto protocol, thus initiating china’s cooperation with developed countries in international carbon trading (song, c. y., 2011). influenced by restrictions on eu cdm projects, china suspended international cdm projects from 2013. 2.2 pilot stage: the stage of local pilot carbon trading markets although china suspended international cdm projects, it drew on the eu ets to launch pilot carbon emissions trading markets (ets) in china, and 借鉴 the cdm mechanism from the kyoto protocol to introduce china’s chinese certified emission reduction (ccer) mechanism, beginning efforts to establish a domestic carbon emissions trading market. this created a dual-track system with pilot ets and the ccer mechanism operating simultaneously. however, due to unsatisfactory operational performance after its launch, including low voluntary emission reduction trading volumes, irregularities in some projects, and supply-demand imbalances, the ccer project registration was suspended in march 2017, though existing ccers could still be traded. in september 2010, the state council issued the “decision on accelerating the cultivation and development of strategic emerging industries,” explicitly calling for the establishment and improvement of trading systems for major pollutants and carbon emissions, marking china’s initial exploration of a carbon emissions trading market. subsequently, on march 16, 2011, the “outline of the twelfth five-year plan for national economic and social development of the people’s republic of china” was published, proposing the gradual establishment of a carbon market and the promotion of low-carbon pilot demonstrations. in october of the same year, the national development and reform commission issued the “notice on launching pilot carbon emissions trading,” approving pilot programs in beijing, tianjin, shanghai, chongqing, guangdong, hubei, and shenzhen (liu, y., 2018). by 2018, fujian became the eighth pilot carbon trading market, signifying substantial progress in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 237 published by scholink inc. building china’s carbon emissions trading market. these pilot markets extensively covered over 20 industries, including power, steel, and cement, involving nearly 3,000 key emitting entities. the establishment of these pilots laid a solid foundation for the construction and implementation of the national carbon emissions trading system and provided valuable experience for china in the carbon market domain. 2.3 rapid development stage: the national unified carbon trading stage after 2021 china’s national carbon market commenced trading simultaneously in beijing, shanghai, and wuhan on july 16, 2021, marking the official start of nationwide operations (yuan, j. q., 2021, pp. 63-66, p. 80). regarding the trading mechanism, the national carbon exchange retained the dual-track system used in regional pilots, dominated by quota trading and supplemented by ccers (yuan, j. q., 2021, pp. 63-66, p. 80). according to article 29 of the “measures for the administration of carbon emissions trading” issued by the ministry of ecology and environment in january 2021, key emitting entities can use ccers to offset their carbon emission quota compliance obligations annually, with an offset limit not exceeding 5% of the required quotas (wang, s. y., 2022). in terms of market structure, both the national carbon exchange and pilot carbon exchanges remain open, presenting a complementary relationship between the two market types. currently, the national carbon market only covers over 2,000 enterprises in the power sector. this single-sector coverage indicates a need for future expansion and refinement. predictions suggest that, starting from the power sector, the market will gradually expand to include industries such as chemicals, non-ferrous metals, and domestic civil aviation, making the carbon control mechanism more comprehensive. on october 19, 2023, the “measures for the administration of voluntary greenhouse gas emission reduction trading (trial)” was officially released by the ministry of ecology and environment and the state administration for market regulation. this signifies that following the announcement of the first batch of ccer project categories by the ministry, entities can apply for the issuance of new ccers, marking the restart of ccer trading in china. 3. overview and development trends of china’s carbon emissions trading market under the “dual carbon” goals 3.1 market overview china has currently formed a new landscape where regional carbon markets and the national carbon market develop concurrently (li, y., 2022, pp. 84-89). the national carbon emissions trading market adopts a unified national trading architecture, with central authorities setting policies and rules, establishing carbon exchanges, and enterprises trading carbon emission allowances through these exchanges. the national market operates on a membership system, where members can participate directly, while non-members can trade via public bidding platforms. concurrently, china is actively promoting the development of regional carbon markets to foster carbon reduction and economic development at the local level. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 238 published by scholink inc. the main trading products in china’s carbon market are carbon emission allowances and voluntary emission reductions. carbon emission allowances are quotas allocated by the state to enterprises, which must comply within specified periods or face penalties. voluntary emission reductions are carbon credits purchased voluntarily by enterprises or institutions to offset their own emissions. furthermore, china is exploring the development of other carbon financial products, such as carbon funds and carbon bonds, to meet diverse investor needs. the market primarily employs a bidding model for trading. enterprises or institutions can buy and sell carbon allowances through the exchanges, basing their decisions on their own needs and market conditions. china has also established a carbon emission allowance registry to record and manage the holding and transfer of allowances. additionally, monitoring and verification mechanisms ensure accurate measurement and reporting of actual enterprise emissions. trading is primarily conducted via spot transactions, where parties settle allowance trades within a specified timeframe. china is also actively exploring derivative instruments like futures and options to enhance market liquidity and risk management tools. furthermore, cross-regional trading is supported to optimize the allocation of carbon resources and foster market integration. 3.2 development trends 3.2.1 trends in the allowance trading market as china’s carbon market evolves, the sectoral coverage of the allowance market will gradually expand. starting with the power sector, it will progressively encompass other high-energy consumption and high-emission sectors, such as petrochemicals, chemicals, building materials, steel, non-ferrous metals, pulp and paper, and domestic civil aviation. this expansion will engage more industries and enterprises, driving further market development. concurrently, with market scale growth and participant diversification, the trading mechanism will become more refined. stricter market oversight will ensure accurate emission monitoring and reporting, while more trading modes like auctions and negotiations will be introduced to cater to different participants. future applications of blockchain and artificial intelligence are expected to enhance transaction efficiency, transparency, and risk management capabilities, providing a more convenient trading platform and accurate data monitoring/reporting, thereby increasing market fairness and transparency, thus supporting further market development. 3.2.2 trends in the voluntary emission reduction market with heightened national focus on the “dual carbon” goals and policy impetus, the scale of china’s voluntary emission reduction market is poised for growth, potentially attracting more entities and boosting trading activity. currently centered on carbon allowance trading, the market may expand into related areas like low-carbon technologies and products, presenting new opportunities and challenges. 3.2.3 carbon inclusion against the backdrop of national market sector expansion and gradual quota reduction, diversifying trading products becomes essential to meet corporate compliance and trading needs. promoting the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 239 published by scholink inc. restart of ccer (already implemented) and integrating carbon inclusion reductions into the carbon market are key directions for building a multi-layered carbon market. compared to the ccer market, carbon inclusion can connect more small, medium, and micro enterprises (smes) and involve the public, offering diverse carbon reduction development scenarios. 4. foundations and value of constructing a unified carbon market in the chengdu-chongqing region under the “dual carbon” goals 4.1 practical foundations for a unified carbon market the chengdu-chongqing economic circle is situated at the intersection of the “belt and road” initiative and the yangtze river economic belt, serving as the starting point of the new western land-sea corridor. it boasts unique advantages in connecting southwest and northwest china and linking east asia with southeast and south asia. the region features excellent ecological endowment, abundant energy and mineral resources, dense urban clusters, and diverse landscapes. it is the most populous, industrially robust, innovative, market-rich, and open area in western china, holding a unique and strategic position in the national development landscape. in 2011, the state council approved and the ndrc issued the “chengdu-chongqing economic zone regional plan,” aiming to build it into a key economic center in western china, a significant modern industrial base, a testing ground for deepening inland opening-up, a demonstration zone for balanced urban-rural development, and a safeguard zone for ecological security in the upper yangtze river. in october 2021, the cpc central committee and state council issued the “outline of the chengdu-chongqing economic circle construction plan,” emphasizing that amidst profound and complex changes in domestic and international conditions, promoting the circle’s development facilitates the formation of a complementary, high-quality regional economic layout (liu, b., & xie, w., 2022, pp. 74-82). given the growing prominence of global climate change, the international community widely recognizes the importance of carbon reduction. the chinese government prioritizes carbon reduction, integrating carbon peak and neutrality into its national development strategy. against this backdrop, constructing a unified carbon market in the chengdu-chongqing economic circle aligns with national and international trends, facilitating global carbon reduction cooperation. the construction possesses several practical foundations: first, economic foundation: the region is an economic hub in western china with a relatively developed economy and industrial system. key industries targeted for development include electronics information, automobiles, equipment manufacturing, and consumer goods, each aiming for trillion-yuan scale. the region is also a major energy consumer, providing a solid economic basis for a unified carbon market. second, policy foundation: the governments of chengdu and chongqing jointly released the aforementioned outline, explicitly advocating for green, low-carbon development, strengthening joint ecological environment construction and protection, and building a green ecological base. both governments have also formulated specialized plans like the “ecological environmental protection plan for the chengdu-chongqing economic circle,” detailing www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 240 published by scholink inc. cooperation in the dual carbon domain. third, technological foundation: advances in technology have led to the development of various carbon reduction technologies. china has mastered advanced technologies including clean energy, energy efficiency, and carbon capture, utilization, and storage, providing the technical basis for the market. fourth, market demand foundation: rising environmental awareness has led more enterprises and individuals to focus on carbon emissions. concurrently, as the carbon market matures, demand for carbon trading is increasing, providing a broad market demand base. the chengdu-chongqing economic circle exhibits high economic scale and potential. the two cities possess complementary and synergistic effects in economy, technology, and culture, offering vast cooperation space. regarding carbon reduction, they share the same atmospheric environment and face similar pressures and challenges. beyond practical foundations, conditions for a unified market include complementary industrial chains, synergistic policy frameworks, and shared emission reduction requirements. the region has relatively complete industrial chains spanning energy, transportation, industry, and agriculture. complementarity among these sectors provides favorable conditions; for instance, clean energy development in the energy sector can synergize with electric vehicle promotion in transportation for coordinated emission reduction. policy documents like the outline provide the policy basis and support. both cities face significant emission pressures, necessitating effective measures. a unified carbon market can achieve emission reduction and optimal allocation through market mechanisms, meeting their shared requirements. in summary, conditions for building a unified carbon market in the chengdu-chongqing region are relatively mature. 4.2 value and significance of a unified carbon market a regional carbon market can use carbon trading as a vehicle to open channels for industrial integration and complementary advantages. leveraging comparative advantages and similarities in living habits and geographical environment, it can establish a unified factor flow system, promoting the achievement of the “dual carbon” goals in the region. establishing a unified carbon market enables optimal allocation and trading of carbon reduction resources, enhances carbon reduction efficiency, and fosters sustainable development. the region possesses substantial carbon resources; a unified market facilitates their efficient allocation and utilization, encouraging active participation from enterprises and individuals for optimal carbon reduction and trading outcomes. it avoids market fragmentation, ensuring fairness, justice, and transparency. as a major economic center with numerous enterprises and residents, a unified market would promote carbon trading with other regions, increase trading opportunities, and enhance both environmental and economic benefits. the region is a high energy-consuming area; promoting green, low-carbon development is crucial for carbon reduction. a unified carbon market provides economic incentives and support for clean energy development, encouraging investment and accelerating the transition. its establishment requires accurate carbon accounting and monitoring, prompting greater emphasis on emission supervision and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 241 published by scholink inc. management, strengthening awareness and action for emission reduction. furthermore, it elevates environmental awareness and action among enterprises and individuals. through participation in carbon trading, they become more concerned with reducing their carbon footprint and environmental impact, actively adopting protective measures. in summary, within the global context of carbon reduction, a unified carbon market in the chengdu-chongqing economic circle aligns with national and international trends. through policy support and bilateral cooperation, it can effectively advance carbon reduction efforts, achieve emission targets, and promote green, low-carbon development. 5. research on the legalization pathway for constructing a unified carbon market in the chengdu-chongqing region under the “dual carbon” goals 5.1 necessity analysis for the legalization pathway 5.1.1 ensuring stable operation of the unified carbon market the establishment of a unified carbon market requires safeguarding the rights and interests of all participants, including enterprises, individuals, and the government. constructing a legalization pathway involves enacting relevant laws and regulations to define carbon trading rules and systems, protect participants’ legitimate rights and interests, and ensure market fairness, justice, and transparency. legal institutions provide clear rules and arrangements, offering essential support and guarantee for the carbon trading market’s operation, ensuring compliance with legal provisions, preventing misconduct and fraud, and maintaining market order and stability. 5.1.2 promoting green and low-carbon development a legalization pathway provides legal basis and protection for green, low-carbon development. by formulating relevant laws and regulations that clarify environmental protection and carbon reduction targets and standards, it encourages active participation in carbon trading and facilitates the realization of green, low-carbon development. it also standardizes and supervises market operations. defining trading rules, participant rights protection, and handling of violations enhances market transparency and standardization. 5.1.3 perfecting the legal system for national ecological civilization construction the unified carbon market involves cooperation and coordination across multiple administrative regions. ensuring smooth operation requires perfecting the national legal system for ecological civilization, clarifying its goals, principles, and policy measures. relevant legislation provides legal basis and guidance, promoting the organic integration of carbon market development with ecological civilization construction. the legalization pathway also clarifies environmental responsibilities and legal liabilities. legislation defines the environmental protection duties of enterprises and individuals, specifies legal liabilities and penalties for violations, prompting greater emphasis on environmental protection and advancing both ecological civilization and carbon market construction. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 242 published by scholink inc. 5.2 feasibility analysis for the legalization pathway 5.2.1 continuous improvement of the national legal system provides legal safeguards with increasing national emphasis on climate change and carbon emission control, china’s legal framework in environmental protection is continuously improving. laws such as the “environmental protection law of the people’s republic of china” and the “air pollution prevention and control law of the people’s republic of china” provide the basic legal framework for emission reduction and carbon trading. for instance, the environmental protection law stipulates fundamental principles and government responsibilities, including air pollution control and reduction requirements, forming the foundational legal basis. the air pollution prevention and control law clarifies principles, targets, and responsibilities for air pollution prevention, requiring the establishment and improvement of a carbon emission trading system, providing direct legal basis. the “measures for the administration of greenhouse gas emission rights trading” is china’s first administrative measure specifically for carbon emissions trading, outlining basic principles, management institutions, and trading rules. the “administrative licensing law of the people’s republic of china” governs administrative licensing procedures, including those for carbon emission trading, providing legal assurance for administrative management. additional regulations and policy documents offer more specific and detailed legal support. china’s active participation in international carbon market cooperation, such as joining the paris agreement, provides further legal basis and an international cooperation platform. 5.2.2 strong foundation in local legislation and judicial safeguards in the chengdu-chongqing region the region, being economically dynamic, possesses a degree of autonomy in local legislation, enabling it to formulate specific regulations tailored to local carbon trading realities. this includes defining operating institutions, trading rules, and supervisory measures through local legislation, laying the groundwork. the local court systems and arbitration institutions are relatively well-developed, capable of resolving carbon trading disputes and protecting rights, thus possessing strong judicial safeguarding capabilities. reliable judicial mechanisms are crucial for addressing contract disputes and penalizing violations. the local judicial system can provide efficient, fair, and professional protection, offering reliable support for legalization. furthermore, the region has a sufficient number and quality of law firms and legal service institutions capable of providing professional legal consultation, compliance guidance, and dispute resolution services, effectively supporting the market’s legalized development. lastly, local governments demonstrate strong commitment and action in promoting economic development and environmental protection. establishing a unified carbon market aligns with local development strategies and policy orientations, and government support will provide policy backing and coordinated promotion for the legalization pathway. 5.2.3 availability of international and domestic experiences for reference successful unified carbon markets exist internationally, such as the eu ets and the bottom-up regional integration experience of the united states. the eu ets, established by directive 2003/87/ec, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 243 published by scholink inc. commenced in 2005. a complete legal framework forms its foundation, and standardized derivative trading mechanisms drive market unity. while the us lacks a national carbon market, it offers a transitional model where regional agreements facilitate bottom-up integration of local markets amidst regional disparities, gradually moving towards unification, creating conditions for a national market. regional consensus on carbon emissions lays a legal foundation, and flexibility in integration is coordinated through varied regional policies. domestically, the experience of integrated carbon reduction coordination governance in the yangtze river delta region can serve as a reference. the “opinions on fully, accurately, and comprehensively implementing the new development concept to achieve carbon peak and carbon neutrality” issued by the cpc central committee and state council in september 2021 emphasized strengthening green, low-carbon development orientation within the yangtze river delta integration strategy. the delta, with its economic, technological, and resource advantages, has opened the shanghai ets and implemented control measures, coordinating carbon reduction policies considering regional differences to achieve efficient regional emission reduction goals (dong, w., zhu, w. z., & qin, g. w., 2022, pp. 11-18). in summary, the improving national legal system, the solid foundation in local legislation and judicial safeguards in the chengdu-chongqing region, and the availability of international and domestic experiences provide feasibility for constructing a legalization pathway for the unified carbon market. establishing a unified legal framework and rules through law can ensure stable market operation and promote green, low-carbon development. 5.3 overall framework and specific pathway design the construction of the unified carbon market should adhere to market-oriented and legalization principles, with the overarching goal of promoting integrated carbon emissions trading development within the circle, establishing a fair, transparent, and efficient market to achieve a win-win situation for climate change mitigation and economic development. first, the market must be governed by clear laws and regulations covering market access, trading rules, trading mechanisms, and regulatory responsibilities. at the national level, relevant laws and regulations should be formulated or refined to affirm the legal status and authority of carbon emissions trading. simultaneously, the chengdu and chongqing governments should enact local regulations and policies based on local conditions to provide more specific guidance and guarantees for integration. these regulations should be developed by legislative bodies through a process incorporating stakeholder input to ensure scientificity, fairness, and operability. second, enforcement must be strengthened, and unlawful activities penalized. increased penalties for violations raise the cost of non-compliance, maintaining market fairness and order. a robust enforcement mechanism should be established, with heightened efforts to combat violations such as fraudulent trading, market manipulation, and misinformation. a dedicated carbon trading enforcement team could be established to enhance supervision and enforcement. a reporting system should also be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 244 published by scholink inc. implemented to encourage public oversight and reporting of violations, safeguarding market fairness and transparency. third, a judicial guarantee mechanism should be established to ensure market fairness, justice, and transparency. disputes are inevitable and require timely and effective resolution. a specialized carbon trading dispute resolution body, staffed by arbitrators or judges with expertise in carbon trading, should be created. additionally, legal aid services for the carbon market should be enhanced. given the diverse participants, including potentially vulnerable smes or individuals with limited legal knowledge, legal aid institutions can provide consultation, assistance, and education, helping protect rights and improve legal awareness. fourth, legal supervision must be strengthened. a sound legal supervision mechanism is necessary to prevent and combat illegal activities in carbon trading. a dedicated regulatory agency for carbon emissions trading should be established to oversee market operations, ensuring fairness, transparency, and effectiveness. the chengdu and chongqing governments should jointly formulate unified market rules and supervisory mechanisms covering access, trading rules, and procedures. supervision mechanisms must be robustly built and rigorously enforced to ensure standardized operation and effective oversight. fifth, an information disclosure system must be established, strengthening the supervision and publicity of carbon emissions data. accurate and reliable data is crucial for effective market operation. a robust carbon emissions data supervision mechanism must be created to ensure data authenticity and accuracy. concurrently, promoting the disclosure and sharing of carbon emissions data allows market participants and the public to monitor emissions, enhancing market transparency and credibility. enterprises should be required to regularly disclose their carbon emissions information and trading details, increasing market transparency and preventing fraudulent activities. sixth, cooperation and exchange must be enhanced. the chengdu and chongqing governments should strengthen cooperation and exchange in carbon emissions trading, jointly promoting market standardization and integrated development. given the cross-regional and international nature of carbon markets, the legalization pathway requires enhanced international cooperation and exchange. learning from existing international carbon markets, studying foreign laws and regulations, and continuously improving domestic systems and mechanisms through collaboration with other countries and regions can foster the internationalization of the chengdu-chongqing carbon market. 6. conclusion under the “dual carbon” goals, constructing a unified carbon market in the chengdu-chongqing region holds significant importance for promoting green, low-carbon development. by formulating sound laws and regulations, establishing regulatory mechanisms, implementing information disclosure systems, and strengthening enforcement, a legalized pathway for the carbon market can be constructed. this will help ensure market fairness, transparency, and effectiveness, fostering green, low-carbon www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 245 published by scholink inc. development in the region and nationwide. ultimately, it aims to achieve the goals of standardizing and integrating the carbon emissions trading market within the chengdu-chongqing economic circle, providing valuable reference for the construction of the national carbon market. references dong, w., zhu, w. z., & qin, g. w. (2022). collaborative governance mechanism and policy design of cross regional carbon emission: case analysis based on the integration of the yangtze river delta. east china economic management, 36(09), 11-18. li, y. (2022). research on the nonlinear correlation among regional carbon markets in china. china business and trade, 2022(16), 84-89. liu, b., & xie, w. (2022). study on green and low-carbon energy transformation path of chengdu-chongqing dual cities economic circle. international petroleum economics, 30(05), 74-82. liu, y. (2018). a study on the improvement of china’s legal system for carbon dioxide emission reduction—based on the temperature targets of the paris agreement. shandong normal university. promoting the construction of the chengdu-chongqing economic circle to create an important growth pole for high-quality development. (2021). financial community, 2021(30), 1-2. song, c. y. (2011). study on the implementation and evaluation of cdm project in china. china university of petroleum. wang, s. y. (2022). study on the response mechanism and pathways of coal production to co2 emissions mitigation under carbon peaking and carbon neutrality. china university of mining and technology. yuan, j. q. (2021). analysis and suggestions of national carbon market situation. china energy, 43(11), 63-66, 80. yun, j. d. (2023). rule of law construction of the national unified carbon market: value balance and path reference. academic exchange, 2023(08), 70-86. zhang, h. m. (2020). how can chengdu and chongqing better play the “twin-city tale” in ecology and environment. resources and habitat environment, 2020(02), 46-47. microsoft word elp-v1n1-p46 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 1, no. 1, 2018 www.scholink.org/ojs/index.php/elp 46 original paper equitable principles from the perspective of international law of the sea walid fahmy1* 1 department of public international law, pharos university, alexandria, egypt * walid fahmy, department of public international law, pharos university, alexandria, egypt received: march 31, 2018 accepted: april 8, 2018 online published: april 13, 2018 doi:10.22158/elp.v1n1p46 url: http://dx.doi.org/10.22158/elp.v1n1p46 abstract the notion of equitable principles is considered in public international law as a subsidiary source of law. however, it is nevertheless an autonomous concept in the law of the sea, and particularly in the law of maritime delimitations. however, can this notion in international litigation of maritime delimitation be defined both in form and in substance? thus, can one say precisely in which legal category it is classified, and can its content be defined? keywords equity, united nations convention on the law of the sea, international court of justice, the international tribunal for the law of the sea 1. introduction the united nations convention on the law of the sea, signed at montego bay on 10 december 1982, provides a global legal system for the universal use of the largest resource including regulation of use, maritime zones and provisions and compulsory dispute settlement procedures. the convention clarified the different modes of conflict resolution in this area. it proposes several procedures for achieving the objective of a peaceful settlement of disputes. article 287 of the convention proposes four procedures, of which only three are concerned with conflicts of maritime delimitation. states signing, ratifying or acceding to the convention must provide a written declaration explaining the means chosen. they have the following choices: -the international tribunal for the law of the sea, -the international court of justice, -and an arbitral tribunal constituted according to annex vii of the convention (note 1). however, after the entry into force of the convention, it is clear that only the arbitral tribunals and the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 47 published by scholink inc. international court of justice deal with certain problems relating to the law of the sea, in particular maritime delimitation. from the first cases on maritime delimitation came the notions of equitable principles and above all equity, a concept that crosses time, apprehended first by philosophers and later by lawyers to be a particular meaning in law of the sea. the doctrine distinguishes between three types of equity: equity contra legem, which is used in contradiction with the law; equity praeter legem, which is used beyond the law to fill gaps; and equity infra legem, which is used under the existing law. the development of the law of delimitation at sea through international justice will be done through a principle of equity infra legem. if equitable principles contribute to solve international conflicts, particularly in the field of maritime disputes, the near future implies that they will play a greater role within the many branches of public international law, including international law of the sea. the developing countries countries are based on the idea of justice in order to rectify the international legal situation, which was established under the domination of european. it remains to mention that despite the role played by justice and equity rules in resolving international disputes, and the role assigned to it to achieve in the future, the justice idea which is surrounded by a dense mystery, given the association with literary values, which in turn is a multi-content and arrangement on the ambiguity of the idea of justice automatically become relative recipe dominate the rules of general international law. these relative requires different solutions used to evaluate international issues only for the formulation or implementation. 2. equity as a palliative of shortcomings of positive law equity is the way to fix the positive law in cases in which it appears that its application be severe and grave results, so it should achieved by providing the international conventions on justice and equity condition, or that it should judged in the case fairly, and the rules of this work is to allow the judge to grant compensation to the affected state in cases in which this compensation is not considered a legal obligation. also, equity is a way to complete the positive law and bridging its gaps, but this task remains associated with the agreement of the parties; the judge can resort to equity to complete a law, but only under a general or private conditions satisfies the parties or to remedy the insufficiencies of international law and fill its logical lacunae. in this sense, the role of equity has been formally recognized by article 38 paragraph. 2, of the statute of the international court of justice. here gives a major role to the international judge—or arbitrator-who will then, has an opportunity to choose a considerable margin of maneuver. revealed meditation in the provisions of international jurisdiction that the courts and international tribunals, often resort to the principles of justice and equity as a complement to the rules of international law; the public international law is non-codified law and marred shortage for his lack of international legislator and this necessarily reflects on the task of the international judge who finds in the principles of justice and equity haven so as not to stigmatize his conduct as denial of justice. the joint reparations french mexican in the case of george benson announced in 1928 that the rules www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 48 published by scholink inc. of justice can be considered as a complement to the law element, where the positive law devoid a judgment, and the fact that the international jurisdiction bodies have often to complete the rules of law rules of justice due to insufficient content of the legal rules. as an example, the special rules of international responsibility are in principle involve clear rules regarding international liability, but are still vague on the determination of the amount of compensation, so the courts and arbitral tribunals lead to seek equitable solutions on the determination of the amount of compensation. the international court of justice in its advisory opinion that confirmed this attitude taken by the administrative tribunal of the international labor organization in one of cases brought before it, the court prescribed that the court resorting to the rules of justice and equity, is not out of the bounds of the law. because of these very broad powers of judge or arbitrator acting ex aequo et bono, it is understood the necessity of the express consent of the parties to entrust this mission. or are extremely rare cases where judges or arbitrators were called to decide ex aequo et bono. never, for example, in the history of the international court of justice or, judges have been called to decide ex aequo et bono by states that had a case before this court. the permanent court of international justice in its order of 6 december 1930 in the case of the free zones noted that this option was character “absolutely exceptional” and had to depend on a “clear and explicit” provision from the disputed parts (note 2). the exceptional power of its extent was sometimes also given to arbitrators to set rules in case of gaps or silence of international law, and in the new circumstances. it has a particularly example in trail smelter case between the united states and canada in 1941 (note 3). the court noted, in this case, “it (the state) has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. … it is not lightly to be presumed to give up quasi-sovereign rights for pay and . … if that be its choice, it may insist that an infraction of them shall be stopped. this court has not quite the same freedom to balance the harm that will be done by an injunction against that of which the plaintiff complains that it would have in deciding between two subjects of a single political power. without excluding the considerations that equity always takes into account” (note 4). 3. searching for a clear concept the concept of equity is considered in public international law as a subsidiary source of law. it is nevertheless an autonomous concept in the law of the sea. however, can this notion in international litigation concerning the law of the sea be defined? so, can we say precisely what legal category it ranks, and its content can be defined? it is difficult to classify equity in the hierarchy of standards, but two criteria can help in this task: the legal nature of equity and its function. but both are ambiguous. 3.1 is equity a legal concept? in an attempt to understand the place of equity in the hierarchy of norms of international law, it is necessary to grasp its relationship to the law. to that end, there are two elements of the answer given www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 49 published by scholink inc. by the jurisprudence. but first, it must be understood that the position of the international judge or arbitrator, who commands in international law the practical interest in questions of equity, is fundamentally different from that of the domestic judge. there is no general recourse to the arbitrator or the judge; its competence can only be based on a voluntary basis and the consent of the states in this matter cannot be presumed; there can be no obligation for the judge or arbitrator to settle a dispute outside his specific mandate and with the means he has received. this is an observation which concerns the exercise of the judicial function only within the framework of the general international community. it will be recognized, therefore, that if equity is an interest in international law, it is in fact only in so far that equity can be manifest in the application of the law. each judgment of the international court of justice explains in the early days that “the legal basis of that rule in the particular case of the delimitation of the continental shelf as between adjoining states has already been stated. it must however be noted that the rule rests also on a broader basis. whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable. nevertheless, when mention is made of a court dispensing justice or declaring the law, what is meant is that the decision finds its objective justification in considerations lying not outside but within the rules, and in this field it is precisely a rule of law that calls for the application of equitable principles. there is consequently no question in this case of any decision ex aequo et bono, such as would only be possible under the conditions prescribed by article 38, paragraph 2, of the court’s statute” (note 5). the court made a distinction with the ex aequo et bono of the same, then, since the thing seems there is no mention of article 38 § 2, even though some authors argue that equity is inexorably related to the concept of ex aequo et bono. labrecque georges defines equity as the application of the principles of justice, and as a way to correct the too strict application of the rule of law, if the parties agree, to complete its content, or even to exclude it. it is therefore necessary to emphasize the importance in international law of a statement which has just been stated in a summary manner. equity will play a more significant role in the application of legal rules as these legal rules will be formulated in very general terms. as early as 1969, in the north sea continental shelf case, the icj explained that “it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles” (note 6). so, justice of whom equity is an emanation is not abstract justice, but justice according to the rule of law. the normative character of equitable principles applied as part of general international law is important. this importance, the court gives it a name “the fundamental norm” (note 7). the fundamental norm, according to hans kelsen, is “due to the custom founded by the mutual conduct of states, a mode of creation of law”. it is at the roots of any international rule. thus, a custom is obligatory because it is based on a higher standard which requires it, but this one is supposed and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 50 published by scholink inc. therefore indemonstrable. also, professor ros sees this fundamental norm as “a judicial invention” which appears “to have realized its fabulous destiny, to incarnate all the law of maritime delimitation, to regulate the delimitation of all maritime spaces, and to unite all the logics of delimitation”. ultimately what this standard equity may be the origin of customary law as well as conventional law. and it is enough to assume that a large number of customary or even written rules raise some questions. these questions could be resolved on the basis of equitable principles. 3.2 equality or proportionality: what is the difference? theoretically, it is constant among philosophers and moralists and then theologians that justice is equality not arithmetic but equality in relations and proportions and the distinction between “corrective justice” and “distributive justice” has emphasized this aspect. other examines specific examples of substantive justice in international law, initially considering its use of equity. the equivalence was arithmetically speaking a simple notion; the proportionality is more complex and more arbitrary, since it involves the choice of parameters and the quantification of these parameters. it was the judgment of the international court of justice in the north sea continental shelf cases which revived the problem of equity in public international law in relation to the delimitation of the continental shelf. this judgment, to which reference has already been made, is of a very rich substance and can help us to find an answer. the court also found that in order to attribute appropriate meaning to equity, various relevant factors should be considered, as were geological and geographical factors in the present case and a reasonable degree of proportionality among factors should be maintained. the court rejected with vigor the idea that, in the event of a dispute between states over the extent of their respective continental shelves, there might be a problem of distribution, which means, a sharing lead necessarily to an equitable result. the usage of equity is manifested in the reconciliation often effected between equity and equality, imposed, as it were, by the latin root of the word, aequus, equal. this shows an essential meaning of equity: it is a measure. more precisely, the equality to be taken into consideration in relation to the treatment applied to a given situation. equity requires that equal things be treated equally, which has a corollary: unequal treatment of unequal things. in other words, equity can not be separated from the idea of proportionality. this is perfectly consonant with the preceding observation: the measure must be taken in each particular case; it can not be applied abstractly to concretely different situations. the international court rejected the formula of global equity, based entirely on proportionality whose parameters would be uncertain. this is the same concept of the continental shelf, natural extension of the territory assigned by right therefore to states that it is an obstacle to such a conception; it cannot be for a judge to substitute himself for nature. according the court, “equity does not necessarily imply equality. there can never be any question of completely refashioning nature, and equity does not require that a state without access to the sea should be allotted an area of continental shelf; any more than there could be a question of rendering the situation of a state with an extensive coastline similar to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 51 published by scholink inc. that of a state with a restricted coastline” (note 10). it is therefore clear to the court that the search for proportionality is not the essential element. it will lay down the general formula that, with regard to the fundamental rules. these principles are that delimitation must be the subject of an agreement between concerned states and that this agreement must be achieved on the basis of equitable principles. consequently, equity is central, but it is normally translated by an equivalence equitably served by the equidistance line; however, this is not always the case and it is then that other considerations can be used. and the court, when it then proceeds to examine the elements involved, will retain the geological belonging to the continental shelf to the riparian countries, the unit of deposit and finally the reasonable relationship that a delimitation carried out by equitable principles should be reveal between the extent of the continental shelf of the concerned states and the length of their coasts. only this latter element implements a genuine principle of proportionality. as louis balmon quoted “if equality does not necessarily imply equality and there can be no question of distributive justice, the delimitation adopted must also make it possible to arrive at an equitable result verified by means of a proportionality test, the length of the coasts and the extent of continental shelf areas under the coastal state”. in fact, as the court did not carry the delimitation to itself, it had to indicate only the parties what directives they should negotiate. incisive and clear in its negative part, the equidistance is not the only method of delimitation and doctrinal, the equity in question is included in the law. so, the judgment retains a necessary indeterminacy in its positive part the essence equity and timidly and partially advances an application of the idea of proportionality. 4. how did the international tribunal for the law of the sea apply the equitable principles in its judgments? the international tribunal for the law of the sea (itlos) has begun its work ranging from the eighteenth of october 1996; after about two years from entering jamaica agreement on the law of the sea came into force. international tribunal for the law of the sea enjoys independent international legal personality, in accordance with the provisions of article i of the agreement on18 december 1997, between the court and the united nations. it is clear from the provisions of the convention on the law of the sea in 1982 and the statute of the court that they do not represent a judicial organ of the international organization; the opposite of what is happening in relation to the international court of justice, being the main judicial organ of the united nations. the tribunal consists of elected judges exercising their business on an ongoing basis for the duration of their term office, as well as a judges ad hoc are selected according to certain conditions, as set out in articles 2, 8 and 11 of the statute, to participate in the case for which they are chosen on terms of complete equality with the other judges and take precedence after the members of the tribunal and in order of seniority of age. through access to the issues before the court, it has introduced so far 25 cases to adjudicate. after a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 52 published by scholink inc. deep search, only two cases of them come under the concept of equity. 4.1 case concerning land reclamation by singapore in and around the straits of johor in the case concerning the reclamation of singapore’s land in the straits of johor and around (malaysia against singapore) dated 5 september, 2003, the international tribunal issued its judgment in the case in october 2003, and it considered that it was necessary caution on the part of malaysia and singapore on reclamation and assess its effects, and issued a directive to singapore not to conduct land reclamation activities in a manner that may cause prejudice to the rights of malaysia or not disproportionately serious harm to the marine environment. on 26 april 2005, malaysia and singapore signed an agreement to seek settlement of the dispute by peaceful means of their own choice (note 11). in september 2005, it issued a final award in the case, according to the provisions specified in the settlement agreement between the two sides. it is true that the court did not explicitly refer to the equity, but we confirm that “the itlos could hear disputes involving the delimitation of adjacent and opposite maritime boundaries, relying on equity. […] the absence of compulsory jurisdiction over such cases, the experience of the icj and arbitral tribunals in handling such disputes, and the desire of some states to have the prestige of the icj associated with any delimitation may restrict the number of boundary disputes submitted to the itlos. should the tribunal hear such disputes, however, it may operate as a court of equity”. 4.2 dispute concerning delimitation of the maritime boundary between bangladesh and myanmar in the bay of bengal the negotiations on maritime delimitation in the gulf of bengal have been underway since 1974 and continued until 2010. these discussions resulted in two proceedings signed by the heads of delegation. the intervention of international tribunal therefore consisted above all of determining the legal scope of the two proceedings and determining whether they were mandatory in nature to exclude the tribunal’s jurisdiction over the question of the delimitation of the territorial sea. to this end, the parties invoke the nature of the documents, their signatories, and the continuity between the 1974 and 2008 protocols (note 12). the itlos fully associated itself with the jurisprudence of the icj which considered in nicaragua v. honduras that “establishing a permanent maritime boundary is a matter of great importance and an agreement cannot be readily assumed” (icj, nicaragua v. honduras). it justifies the rejection of the minutes based on the internal mechanisms and on the incompetence of the members of the delegations to engage the state. the itlos also confirmed the need to exercise great caution in dismissing the contention of tacit or de facto agreements as much as the estoppel invoked by bangladesh with regard to maritime delimitation on the saint-martin. remembering that estoppel consists in the recognition that a state by its conduct has created the appearance of a particular situation and that another state relied in good faith on that conduct has acted or has abstained, act to his detriment. in its view, bangladesh saw that “the tribunal should apply the angle-bisector method in delimiting the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 53 published by scholink inc. maritime boundary between bangladesh and myanmar in the exclusive economic zone and on the continental shelf. in its point of view, this method would eliminate the inequity associated with equidistance and lead to an equitable result”. it is worthwhile to say that this problem has been recognized since the decision in the north sea cases, in which the icj explained that “it has been seen in the case of concave or convex coastlines that if the equidistance method is employed, greater than the irregularity and the further from the coastline area to be delimited, the more unreasonable are the results produced. so great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, being of itself creative of inequity”. for its part, the tribunal notes that, “on account of the concavity of the coast in question, the provisional equidistance line it constructed in the present case does produce a cut-off effect on the maritime projection of bangladesh and that if the line is not adjusted, it would not result in achieving an equitable solution, as required by articles 74 and 83 of the convention”. in their view, judges nelson, rao and cot mentioned that “the considerations of equity come into play only in the second phase of the delimitation, as they necessarily carry an important element of subjectivity. relevant circumstances may call for an adjustment of the provisional equidistance line so as to ensure an equitable solution”. […] the test of disproportionality ensures that an equitable solution is the result of the delimitation process. finally, the tribunal achieves a solution that is equitable in the circumstances of this case (note 13). and we can conclude as judge ndiaye said in his seperate opinion, that “equity as a legal concept is a direct emanation of the idea of justice. the court whose task is by definition to administer justice is bound to apply it” (note 14). 5. conclusion the fear of the problem of conflicts over marine resources and potential maritime’s wars in the future, leads us toward the interest in the subject of equity in order to overcome the sustainable water conflicts and give attention to develop the rules of international law of the sea. despite the multiplicity of approaches to international jurisprudence cares water cooperation and conflict on marine resources, and judicial efforts to resolve water disputes, the concept of equity remains these days mysterious and vague. the particularity of the litigation of maritime delimitations has developed a right based on a notion with indefinable contours but with known content. this development followed a two fold evolution. while the delimitation rules of the conventions were more rigid, judges relied on a concept of equity with strong creative power. the conventional rules became more flexible, and equity has gradually faded back to its original virtue, the correction of the law. the latter, which became very pragmatic, almost does not mention equity, even though it transcends the whole process of delimiting boundaries at sea. interesting in the strategic vision for the future of water, we are trying to propose the initial principles www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 54 published by scholink inc. of an approach most utilitarian, we begin to address the issues of equity in international law of the sea, particularly maritime delimitation to emphasize the importance of cooperation and the importance of developing the principles of this branch of international law, and to defense the vital interests of ensuring the survival of humanity in the present and the future, hoping that these theses secrets more utilitarian approach to all the actors in the maritime issue. giving priority to the collective interests of justice is the basis of the seas, where it should not be subject to the politicization; they are an important resource featuring to cross-border and should not be influenced by international conflicts. the future is for justice and equity, and not to the balance of power influence in the process of determining the maritime boundary and the division of wealth. through the controversy touched this study, we would like to focus on the most important conclusions: • it is imposed on every law, when positioned and formulated it and its applications, that reflects an approach of equity and a spirit of justice, and that this law combined with achieving a participatory regime between the actors in the maritime affairs, and equitable rules between present and future generations. • the importance of the application of the international law of the sea primarily is to avoid damage to marine resources and to ensure the fair and equitable distribution of maritime wealth. • the importance of dealing with the sea as an international and social common resource is not subject to the conflicts, and should not be impeded enjoy it, while ensuring sustainability for present and future generations. • swinging the concept of equity between the dynamic of the conflict and international cooperation, requires moving from the defense of sovereign narrow interests to the common and collective interests of humanity. references amor, b. s. (2012). international court of justice and the law of the sea. anuario mexicano de derecho internacional, 5. balmon, l. (2004). le plateau continental jusqu’à 200 milles. in institut du droit économique de la mer, le processus de délimitation maritime: étude d’un cas fictif (p. 106). colloque international, monaco. choon-ho park, h. (1999). judicial settlement of maritime disputes: an overview of the current system. stetson law review, 28(4), 1037-1038. emmanuel, d. (2003). les eaux mêlées de l’arbitrage et de la justice: droit de la mer et règlement des différends. la mer et son droit, mélanges offerts à laurent lucchini et jean-pierre queneudec (pp. 159-176). pédone. jillaine, s. (2006). the international tribunal for the law of the sea: a great mistake? indiana journal of global legal studies, 13(1), 2. keith, k. j. (2009). resolving international disputes: the role of courts. new zealand yearbook of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 55 published by scholink inc. international law, 255. kelsen. h. (1953). théorie pure du droit. in editions de la baconnière, neuchâtel (p. 165). kennedy, k. (1987). the sources of international law. american university international law review, 2(1), 60. labrecque, g. (2004). les frontières maritimes internationales, géopolitique de la délimitation en mer (p. 473). l’harmatan, paris. lowe, v. (1989). the role of equity in international law. australian year book of international law, 4, 56. murphy, s. d. (2013). international judicial bodies for resolving disputes between states. in oxford handbook on international adjudication (p. 4). oxford: university press. https://doi.org/10.1093/law/9780199660681.003.0009 noyes, j. e. (1999). the international tribunal for the law of the sea. cornell international law journal, 32(1), 163-164. ousmane, d. (2014). the international tribunal for the law of the sea (itlos): innovations and prospects in the international maritime disputes settlement system after more than fifteen years of effective practice (master’s thesis, pp. 4-5). world maritime university dissertations. reuter, p. (1980). l’équité en droit international. revue belge du droit international, 1, 167. ros, n. (2003). le fabuleux destin de la norme fondamentale. in a. pédone (ed.), la mer et son droit, mélanges offerts à laurent lucchini et jean-pierre quéneudec (p. 551). paris. scobbie, i. (2002). tom franck’s fairness. european journal of international law, 13(4), 902. https://doi.org/10.1093/ejil/13.4.909 senn, f. (1927). de la justice et du droit. in explication de la definition traditionnelle de la justice. recueil sirey. st-louis, c. (2014). the notion of equity in the determination of maritime boundaries and its application to canada—united states boundary in the beaufort sea (thesis for doctorate, pp. 59-62). faculty of law, university of ottawa, canada. tasioulas, j. (2002). international law and the limits of fairness. european journal of international law, 13(4), 1006. https://doi.org/10.1093/ejil/13.4.993 treves. t. (1999). conflicts between the international tribunal for the law of the sea and the international court of justice. international law and politics, 31, 811. virally, m. (1990). le droit international en devenir: essais écrits au fil des ans (p. 408). graduate institute publications, genève. https://doi.org/10.4000/books.iheid.4377 weinrib, e. j. (2002). corrective justice in a nutshell. the university of toronto law journal, 52(4), 349. https://doi.org/10.2307/825933 wolfrum, r. (2011). sources of international law. max planck encyclopedia of public international law, oxford public international law, 3-4. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 56 published by scholink inc. notes note 1. the international court justice, the “principal judicial organ” of the united nations under article 92 of the charter, had dealt with the majority of maritime delimitation cases until the entry into force of the convention in 1994 these provisions of article 287 may have given rise to fears of a scattering of the rules of delimitation. eighteen states had voted in favor of the court (at least thirteen as their first choice), eighteen others for the international tribunal for the law of the sea in hamburg. six of them as a priority choice, and finally eight selected annex vii arbitration. note 2. case concerning free zones of upper savoy and the district of gex, series a, no. 24, order of 6 december 1930, 10. note 3. in this case, smoke from a lead factory located in canada had caused damage to american farmers and had rendered the land unfit for cultivation. canada was found liable for damages caused by these harmful fumes from its territory even as their spread was due to climatic factors beyond its control. canada was also requested to take all steps within its power to end this situation undermining the integrity of the united states. note 4. report of international arbitral awards, trail smelter case (united states, canada), 16 april 1938 and 11 march 1941, volume iii, 1965. note 5. case concerning north sea continental shelf between germany, denmark & netherland, judgment of 20 february, icj report, 1969, 48. note 6. case concerning north sea continental shelf between germany, denmark & netherland, judgment of 20 february, icj report, 1969, 46. note 7. case concerning continental shelf between libyan arab jamahiriya & malte, judgment of 3 june 1985, 39. note 8. corrective justice is the idea that liability rectifies the injustice inflicted by one person on another. this idea received its classic formulation in aristole’s treatment of justice in nicomachean ethics, book v. more recently, it become central to contemporary theories of private law. corrective justice features the maintenance and restoration of notional equality with which the parties enter the transaction. this equality consists in persons’ having what lawfully belongs to them. note 9. distributive justice is defined, at least initially, as amounting to moral rightness in general. both values are thought by franck to promote voluntary compliance with the international legal system insofar as instantiates them, although he appears to suggest, that this is the primary benefit secured by legitimacy, whereas distributive justice is rooted in the moral values of the community. note 10. case concerning north sea continental shelf between germany, denmark & netherland, judgment of 20 february, icj report, 1969, p. 49. note 11. case concerning north sea continental shelf between germany, denmark & netherland, judgment of 20 february, icj report, 1969, p. 49. note 12. case concerning land reclamation by singapore in and around the straits of johor, order of october 2003, case no. 12. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 57 published by scholink inc. note 13. dispute concerning delimitation of the maritime boundary between bangladesh and myanmar in the bay of bengal (bangladesh/myanmar), order of 14 march 2012, 18-25. note 14. joint declaration of judges nelson, chandrasekhara rao and cot,. 2. note 15. separate opinion of judge ndiaye, 26. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 272 original paper research on the application of the “no penalty for first violation” system in the field of market regulation yaping zhang 1 & yu chen 1 1 school of marine law and humanities, dalian ocean university, dalian, china received: november 25, 2025 accepted: december 7, 2025 online published: december 9, 2025 doi:10.22158/elp.v8n2p272 url: http://dx.doi.org/10.22158/elp.v8n2p272 abstract as an important measure to practice the concept of inclusive and prudent supervision in the field of market regulation, the “no penalty for first violation” system is of great significance for optimizing the business environment and improving law enforcement efficiency. however, the system still faces numerous challenges in its specific application, which restrict the full play of its effectiveness. by adopting normative analysis and case analysis methods, this paper sorts out the normative system for the application of the “no penalty for first violation” system in market regulation, analyzes relevant cases from china judgments online, and focuses on exploring how to establish a standardized path for the application of this system in the field. the research finds that the application of the “no penalty for first violation” system in market regulation has such problems as differentiated application standards, rigid application of the “no penalty for first violation” list, and the absence of a supervision mechanism for administrative discretion. in response to the above issues, targeted legal suggestions are put forward, including clarifying the applicable elements of the “no penalty for first violation” system, establishing an escape mechanism for the system, and constructing an administrative discretion supervision mechanism. it is hoped that this research can provide theoretical reference for promoting the standardized and precise application of the “no penalty for first violation” system in market regulation and realizing the unification of legal effects and social effects. keywords no penalty for first violation, market regulation, application of law 1. introduction as china enters a new stage of high-quality development, optimizing the business environment and continuously advancing the transformation of government functions have become key links in comprehensively deepening reform. as an important part of the government governance system, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 273 market regulation’s law enforcement concepts and methods are directly related to safeguarding market order and stimulating market vitality. against this backdrop, the “rigid” law enforcement model of imposing mandatory penalties for all administrative violations has increasingly revealed its limitations: on the one hand, it dampens the enthusiasm of start-up enterprises and individual industrial and commercial households; on the other hand, it consumes a large amount of valuable administrative resources, making it difficult to fully meet the in-depth requirements of the “streamline administration, delegate powers, improve regulation, and optimize services” reform. to seek an organic balance between “management” and “service,” and between “stringency” and “temperature,” the “no penalty for first violation” system has emerged as an innovative flexible law enforcement method, quickly evolving from local practice into an important national-level system. “no penalty for first violation” refers to a system where administrative organs may, in accordance with the law, decide not to impose administrative penalties on violations that are a first offense, cause minor harmful consequences, and are promptly corrected. the core value of this system lies in integrating punishment with education: through non-mandatory means such as persuasion, education, and warnings, it encourages market entities to recognize and voluntarily rectify their mistakes, thereby achieving the unification of legal effects and social effects. however, this system, which embodies the principle of law enforcement moderation and humanistic care, is facing a series of urgent legal application issues in the process of transforming from a policy concept to specific law enforcement practice. for instance, how to clarify the identification standards for the applicable elements of “no penalty for first violation”, how to address the limitations of the “no penalty for first violation” list-based model, and how to effectively supervise administrative discretion. the existence of these problems has led grassroots law enforcement personnel to frequently encounter dilemmas in practice, such as “daring not to use, not knowing how to use, and failing to use it well”. it may even give rise to risks such as selective law enforcement and unfair law enforcement, which to a certain extent undermines the credibility and effectiveness of the system. a search and analysis using “no penalty for first violation” as the keyword in the cnki database shows that academic circles have conducted many useful discussions on the “no penalty for first violation” system. existing research mainly focuses on the following aspects: first, the elaboration on the policy background and value of the “no penalty for first violation” system. wang chunye and zeng xingting argue that the introduction of the “no penalty for first violation” system reflects the humanistic law enforcement concept, promotes the return of value rationality, and balances the macro social legal interests (wang, c. y., & zeng, x. t., 2022, pp. 120-127). jiang guohua and ding anran further point out that the “no penalty for first violation” system embodies the organic unity among three pairs of logics: administrative education and administrative punishment, consequentialism and rule-basedism, as well as substantive rule of law and formal rule of law (jiang, g. h., & ding, a. r., 2021, pp. 143-153). second, the interpretation of the relevant provisions in the administrative penalty law. xie hongxing takes the non-penalty provisions in the administrative penalty law as the research object, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 274 and explores the scenarios and approaches for the direct application of these non-penalty provisions in combination with the principle of legality of punishment and the doctrine of prosecutorial discretion (xie, h. x., 2025, pp.15-29). third, the optimization and improvement of the “no penalty for first violation” system or list in a specific field. this mainly focuses on the fields of taxation and ecological environment. in the field of taxation, zhang wansu proposes that the legislative expression of the tax “no penalty for first violation” system should be reconstructed from four aspects: legislative philosophy, the boundaries of applicable elements, the resolution of normative conflicts, and the improvement of supporting systems (zhang, w. s., 2024, pp. 116-129). zhu qiuxiang and chen xinyi take the tax “no penalty for first violation” list as the research object, clarify the standards for the applicable conditions and the boundaries of the scope of application of the list, so as to ensure the effective implementation of the list (zhu, q. x., & chen, x. y., 2022, pp. 109-121). in the field of ecological environment, peng zhongyao proposes constructing a hierarchical administrative penalty discretion system from three perspectives: circumstances, effects, and procedures (peng, z. y., 2024, pp. 65-73). these achievements have laid a solid foundation for this paper. however, existing research also has shortcomings: discussions on operational aspects such as law enforcement procedures and supervision mechanisms are relatively scattered; comprehensive studies that conduct a linked analysis of substantive dilemmas, procedural deficiencies, and discretion control need to be strengthened. therefore, this paper, titled “research on the application of the ‘no penalty for first violation’ system in the field of market regulation,” explores how to establish a standardized path for the application of this system in market regulation, which holds significant theoretical value and practical significance. at the theoretical level, this paper aims to provide theoretical support for constructing a modern market regulatory system. traditional administrative penalty theory focuses on deterrence and punishment, while the “no penalty for first violation” system highlights the function of education and the concept of restorative law enforcement. exploring its institutional logic and normative basis helps enrich and develop administrative law theory, and provides theoretical support for building a more diverse and three-dimensional administrative law enforcement toolbox. at the practical level, this paper strives to offer feasible paths to address the current dilemmas in law enforcement. by adopting normative analysis and case analysis methods, it systematically sorts out relevant laws, regulations and typical cases, summarizes the substantive and procedural obstacles in the operation of the “no penalty for first violation” system, and puts forward targeted legal suggestions. it seeks to provide clear operational guidelines for frontline market regulation law enforcement personnel, improve the standardization and refinement of law enforcement, effectively protect the legitimate rights and interests of market entities, and thereby promote the integration of an efficient market and a capable government. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 275 2. the normative system for the application of the “no penalty for first violation” system in the field of market regulation 2.1 provisions of the administrative penalty law paragraph 1 of article 33 of the administrative penalty law revised in 2021 added provisions on the “no penalty for first violation” system: “where a person commits a violation for the first time, the harmful consequences are minor, and the violation is promptly corrected, no administrative penalty may be imposed.” literally, “no penalty for first violation” refers to the notion that a person who commits an illegal act for the first time will not be given an administrative penalty. however, this is a conceptual interpretation divorced from legal norms, and its actual meaning is not as such. paragraph 1 of article 33 of the administrative penalty law stipulates: “where a person commits a violation for the first time, the harmful consequences are minor, and the violation is promptly corrected, no administrative penalty may be imposed.” this clarifies three applicable elements of “no penalty for first violation” in the form of legal provisions, namely: “first violation”, “minor harmful consequences”, and “prompt correction”. the conjunctions “and” and “and” are used in the provision to connect the three applicable elements, indicating that they are in a parallel relationship—failure to meet any one of these elements means the statutory requirements for “no penalty for first violation” cannot be satisfied. in addition, even if all three elements are met, the legal consequence is only that “no administrative penalty may be imposed”, which endows administrative organs with a certain degree of discretionary power. regarding the three applicable elements of the “no penalty for first violation” system: first, the “first violation” element. there are three understandings regarding the definition of “first”: 1) from the perspective of the actual occurrence time of the illegal act, “first” refers to the administrative counterpart actually committing an illegal act for the first time; 2) from the perspective of the time of administrative subject’s intervention, “first” means the administrative counterpart is detected by the administrative organ to have committed an illegal act for the first time, but in fact, the counterpart has committed such an act before; 3) meeting both of the above two dimensions—i.e., the administrative counterpart is discovered by the administrative organ to have committed an illegal act for the first time, and this act is also their first in fact. this is referred to as “dual first-time”. second, the “minor harmful consequences” element. “minor harmful consequences” consists of two parts: “harmful consequences” and “minor”. firstly, “harmful consequences” refers to the damage caused by the administrative illegal act to the interests protected by law. the scope of harmful consequences shall be strictly defined based on legally protected interests—only when an interest is protected by law can “harmful consequences” in the sense of the administrative penalty law arise (zhang, j. s., 2011, pp. 10-24). secondly, “minor”, as an adverb, is used to limit the degree of “harmful consequences”. from the perspective of legal and regulatory norms, the administrative penalty law does not provide specific, clear and objective criteria for determining the “minor” degree of harmful consequences. third, the “prompt correction” element. the understanding of “prompt correction” usually includes three scenarios: 1) the administrative www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 276 counterpart takes the initiative to correct the illegal act before the administrative organ discovers clues of the violation; 2) the counterpart voluntarily corrects the illegal act after the administrative organ discovers clues but before filing a case; 3) the counterpart corrects the act on the spot or within the time limit ordered by the administrative organ after the organ files the case and issues a correction instruction. 2.2 the provisions on the “no penalty for first violation” list issued by the state administration for market regulation all administrative authorities have formulated corresponding item lists and discretionary benchmarks based on the actual circumstances of their respective fields, so as to effectively promote the accurate textual implementation and refinement of the “no penalty for first violation” system in various specific areas. on january 7, 2025, the state administration for market regulation issued the list of first violations in market regulation subject to no penalty (i) and the list of minor administrative violations in market regulation subject to no penalty (i). among them, the list of first-time violations subject to no penalty specifies eight types of administrative violations in the field of food safety, along with their corresponding penalty bases and exemption conditions. although the issuance of this list has met the urgent needs of grass-roots market supervision personnel, provided clear guidance for grass-roots law enforcement, and effectively restricted the scope of discretionary power, its coverage is relatively limited. the eight types of violations listed mainly focus on food operation licensing, labeling and marking, food production and other aspects. other common food safety violations with minor harms, such as improper use of food additives and non-compliant food storage conditions, have not been clearly included. furthermore, other market supervision areas besides food safety, such as advertising, product quality and price supervision, are not covered. this may lead to the persistent existence of problems like “disparate penalties for similar cases” and “excessive penalties for minor violations” in these other fields. 2.3 the provisions on the “no penalty for first violation” lists of various provinces and cities after searching the “no penalty for first violation” lists in the field of market regulation across various provinces and cities through pkulaw, it was found that the provisions on “no penalty for first violation” vary from region to region. in terms of the nature of the lists, most of them are normative documents and local work documents. for example, the list of administrative violations subject to no penalty or mitigated penalty in anhui province’s market regulation field, jointly issued by the anhui provincial administration for market regulation and the anhui provincial department of justice, is a local normative document; the list of first-time violations subject to no penalty and minor violations subject to exemption from penalty in wuhan’s market regulation field, issued by the wuhan administration for market regulation, is classified as a local work document. in terms of the fields and items covered by the lists, each province and prefecture-level city has its own focus. for instance, the list of first violations subject to no penalty and minor violations subject to exemption from penalty in wuhan’s market regulation field (in effect) includes 106 items across nine fields, such as www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 277 advertising supervision, food safety supervision, and supervision of pharmaceuticals, medical devices, and cosmetics; the list of first minor administrative violations subject to exemption from penalty upon commitment in dalian’s market regulation field covers 77 items in 13 fields, including registration and registration, price supervision, online transaction supervision, and consumer rights protection. regarding the total number of items in the lists, some provinces and cities have formulated very detailed provisions with a large number of applicable items; others involve relatively few types of items. for example, the inclusive exemption from penalty list (trial implementation) in ya’an’s market regulation field only includes 21 items applicable to “no penalty for first violation”. it can be seen that due to differences in their respective socioeconomic development levels, provinces and prefecture-level cities hold varying attitudes towards “no penalty for first violation”. 3. the litigation status of the “no penalty for first violation” system in the field of market regulation after analyzing the “no penalty for first violation” cases retrieved from china judgments online, it is found that the system has demonstrated several distinct characteristics in the practical application of administrative law, while also exposing problems that urgently need to be addressed. from the perspective of the focal points of disputes in the judicial documents, the main controversial issues include: first, whether the application of legal basis is correct, and whether the alleged administrative illegal act meets the applicable elements of “no penalty for first violation” as stipulated in article 33 of the administrative penalty law. in the case of “xiapu county administration for market regulation v. han mouxing vegetable stall in songgang, xiapu county”, the xiapu county administration for market regulation found through sampling inspection that the mung bean sprouts sold by the vegetable stall contained excessive additives, and therefore imposed a fine of 50,000 yuan on it in accordance with article 124 of the food safety law. after trial, the court held that although the vegetable stall failed to strictly fulfill the obligation of incoming inspection, it could clarify the procurement process. combined with the trading habits of the farmers’ market, it could be determined that it had no subjective intent to violate the law. objectively, the illegal act caused little disruption to the food safety market and did not result in actual adverse consequences. therefore, the court ruled that the illegal act of the vegetable stall met the provisions of “no penalty for first violation” and could be exempted from punishment. however, the court regarded “no subjective intent” as a constituent element of “no penalty for first violation”. in fact, subjective fault is stipulated in paragraph 2 of article 33 of the administrative penalty law, which is distinguishable from “no penalty for first violation” in the legislative system. it can be seen that the positioning of the element of “no subjective intent” is not clear. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 278 second, whether an alleged administrative illegal act not included in the list issued by the local market supervision authority may be exempted from punishment? in the case of “anmin grain, oil and condiment store in weihai economic and technological development zone v. administrative committee of weihai economic and technological development zone and people’s government of shandong province”, the plaintiff placed edible baking soda and five-spice beef sauce that had exceeded their shelf life in the goods consignment area, which was identified as an illegal act of selling food past its expiration date. the plaintiff claimed that its act should be applicable to the “no penalty for first violation” rule. however, the defendant argued that the act was not covered by the 2021 list of items for exemption from administrative penalties for minor illegal acts and mitigated administrative penalties for general illegal acts in shandong province, and thus the rule should not apply. after an in-depth review, the court pointed out that the application of the “no penalty for first violation” rule should not be determined merely based on the single factor of being a first-time violation. instead, it is necessary to comprehensively and synthetically consider multiple factors, such as the nature of the act, the severity of the illegal circumstances, the degree of the party’s subjective fault, and the extent of social harm. it can be seen that during the law enforcement process, the defendant applied the list in a rigid and mechanical manner, failing to make flexible and comprehensive judgments in full combination with the actual situation. third, whether the procedure of the administrative penalty is legitimate and proper. in the case of “a certain medical technology company in gansu v. market supervision administration of chengguan district, lanzhou city and people’s government of chengguan district, lanzhou city”, the medical technology company filed an administrative lawsuit with the court because it refused to accept the penalty decision made by the market supervision administration of chengguan district and the administrative reconsideration decision issued by the people’s government of chengguan district. after hearing the case, the court found that the market supervision administration of chengguan district failed to submit evidence to prove that it had ordered the technology company to rectify its illegal act. this act constituted a procedural illegality, so the court revoked the administrative penalty in accordance with the law. this case exposes the problem of insufficient supervision over administrative discretion. 4. problems existing in the application of the “no penalty for first violation” system in the field of market regulation 4.1 the application standards of the “no penalty for first violation” system in the field of market regulation show differentiation 4.1.1 no clear temporal or geographical standards for “first violation” “first violation” is a prerequisite for the application of the “no penalty for first violation” system, and there are significant differences in the provisions on “first violation” among various regions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 279 first, the provisions on the time cycle for “first violation”. even within the same field of market regulation, the rules for the application of exemption from administrative penalties and administrative compulsory measures in sichuan province’s market regulation field stipulates that “first violation” refers to the first violation of laws, regulations and rules in the field of market supervision within three years; however, zhanjiang has set a different retrospective period for “first violation”. it stipulates that for general minor illegal acts, the retrospective period for “first violation” is limited to two years; for emerging business formats, multiple determinations as “first violation” are allowed under certain conditions. second, the determination of the geographical scope for “first violation”. if a person has been exempted from punishment for a certain illegal act in one place and then travels to another place to commit the same type of illegal act again, whether the “no penalty for first violation” system can still be applied at this time. if it can be applied, given the relative independence of legislation and rules in different administrative regions, the person may, by virtue of differences in regional rules, obtain the treatment of exemption from administrative punishment multiple times in different regions. this will not only condone some people’s continuous commission of illegal acts, but also may lead to the abuse of the system, undermining the authority and fairness of market supervision. if the application of “no penalty for first violation” is strictly restricted, it is necessary to break through the boundaries of administrative regions, incorporate the person’s previous enjoyment of “no penalty for first violation” in other regions into the current law enforcement considerations, and establish a cross-regional information sharing mechanism. this will prevent them from evading punishment by switching regions, thereby ensuring that the original intention of the system design is realized. 4.1.2 lack of objective criteria for judging harmful consequences minor harmful consequences consists of two parts: harmful consequences and minor. in administrative law, consequence refers to the damage caused by illegal acts to the interests protected by law. determining the degree of harmful consequences shall be based on the extent of damage to the interests targeted by the act of violating administrative obligations. however, in practice, the legal literacy of grass-roots law enforcement personnel varies, making it difficult for them to fully understand the legal interests protected by the law. the identification of harmful consequences is highly subjective; some law enforcement personnel even directly ignore this requirement and apply no penalty for first violation solely based on first violation and timely correction. therefore, the identification of harmful consequences should be judged as much as possible based on objective criteria. 4.1.3 unclear positioning of the “non-subjective intent” element in the process of administrative penalty, there has always been the question of whether subjective intent can be a constituent element of administrative penalty. in the practice of “no penalty for first violation”, there is also the issue of whether “non-subjective intent” can be a constituent element for exemption from administrative penalty. in the case of “exemption from administrative penalty for a catering store in jingdezhen high-tech zone engaging in catering business without obtaining an operating www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 280 license”, law enforcement officers found during daily inspections that the catering store was operating without a valid operating license. after being educated by the law enforcement officers, the catering store promptly corrected its illegal act. ultimately, the market supervision authority held that the catering store had committed a first violation, caused no serious consequences, and had not intentionally failed to apply for the operating license. therefore, it met the conditions for “no penalty for first violation” and decided to exempt it from administrative penalty. in another case, “exemption from administrative penalty for a food company in xinyu city for violating the food safety law”, the market supervision authority conducted sampling inspections on the company. after receiving the unqualified food inspection results, it filed a case for investigation. during the investigation, the company actively cooperated, truthfully stated the illegal facts, and took the initiative to recall the illegal products, thereby mitigating the harmful consequences. the market supervision authority held that the party had committed a first violation, with minor harmful consequences and timely correction, and thus decided to exempt it from administrative penalty. 4.2 rigid application of the “no penalty for first violation” list although administrative discretion benchmarks have a positive effect in restricting the abuse of administrative discretion, they have an inherent rigidity problem (wang, q. b., 2023, pp. 18-33). it may occur that when law enforcement officers of market supervision authorities face an administrative illegal act, they compare it with the local market supervision exemption from administrative penalty list and find that the illegal act is not included in the list, thus excluding the application of the no penalty for first violation list. for example, in the case of hainan yibaolu beverage co., ltd. suspected of using uninspected forklifts, yibaolu company was fined by the market supervision authority for failing to complete registration procedures for its forklifts. the company argued that it had actively cooperated with the investigation, rectified the violation promptly, and the use of the unqualified forklifts had not caused any adverse consequences, so it met the conditions for no penalty for first violation. however, haikou municipal administration for market regulation refused to apply the system on the grounds that the party’s illegal act was not included in the list of first-time minor illegal acts of market entities exempted from administrative penalty in hainan province’s market supervision field. therefore, although on the basis of only principled provisions for no penalty for first violation, several exemption from administrative penalty lists have been formulated to make the original general and vague provisions operable, the risk of rigidity still exists. 4.3 lack of supervision mechanism for administrative discretion at present, the administrative supervision mechanism of the “no penalty for first violation” system in the field of market supervision has significant deficiencies, making it difficult to form effective constraints on administrative discretion. at the internal supervision level, the hierarchical supervision by higher authorities often becomes a mere formality, lacking in-depth exploration of the substantive rationality of discretionary decisions; meanwhile, the absence of a normalized unannounced inspection mechanism leaves grass-roots law enforcement without continuous and effective external constraints www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 281 when applying “no penalty for first violation”. in terms of external supervision, public supervision is restricted. publicly available documents often use obscure professional terminology and are released through a single channel, resulting in a lack of necessary information basis for social supervision. the ineffective reporting and feedback mechanism has further dampened the public’s willingness to supervise. this dual weakening of internal and external supervision has led to a lack of rigid constraints on the exercise of discretionary power. it not only encourages unfair phenomena such as selective law enforcement and inconsistent judgments in similar cases, but also undermines the credibility and authority of administrative law enforcement. 5. legal suggestions on the application of the “no penalty for first violation” system in the field of market regulation 5.1 clarify the applicable elements of the “no penalty for first violation” system in the field of market regulation 5.1.1 clarify the temporal and geographical standards for “first violation” there are three understandings of “first violation”: factual first violation, first violation first discovered by the supervisory authority, and “dual first violation” which combines the first two understandings. in conjunction with the statute of limitations for prosecution stipulated in article 36 of the administrative penalty law, “first violation” shall refer to the first illegal act committed by a violator and discovered by the market supervision authority within a certain period. in terms of the time cycle, a model of “taking a fixed cycle as the mainstay and specific circumstances as exceptions” can be adopted. firstly, clarify the valid time scope for “first violation”: set a unified review cycle of retroactively two years from the date when the party completes rectification. only those with no records of the same type of violations in the recent two years shall be identified as “first violation”. this standard is consistent with the statute of limitations for prosecuting some illegal acts in the administrative penalty law, and the time limit is appropriate—it can not only give first-time offenders a chance to reform, but also maintain deterrence against repeat offenders. secondly, introduce a credit repair mechanism as an exception. for those who have illegal records but have fulfilled the penalty, corrected the act, and successfully repaired their credit, the date of completion of credit repair shall be taken as a new starting point to restart the review of “first violation” qualification. in terms of the geographical scope, it should be supported by a national unified database, and promote the unification within provinces and the coordinated development of regional provinces and cities in a hierarchical and gradual manner. ultimately, the standard for “first violation” shall be “no records of the same type of illegal acts nationwide”, which completely eliminates the practice of evading legal liability by taking advantage of geographical information asymmetry. 5.1.2 refine the objective criteria for judging harmful consequences the core focus of the criteria for determining minor harmful consequences lies in defining “minor”. however, the term “minor” is highly subjective and requires clearer, more accurate objective judgment www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 282 standards. based on the provisions of local lists and specific practices, the consideration of “minor harmful consequences” includes three aspects: the amount of illegal gains, the duration of the illegal act, and procedural violations. firstly, regarding the amount of illegal gains: due to inconsistent economic development levels across regions, the threshold for the amount of illegal gains can be set according to local actual conditions. when establishing monetary limits, local authorities may define a specific range by setting minimum and maximum thresholds for illegal gains. secondly, in terms of the duration of the illegal act: the longer the illegal act persists, the greater the actor’s subjective malice and the resulting social harm. provisions on the duration of illegal acts of the same nature should be unified, with gradients such as within one month, within six months, and so on. finally, concerning procedural violations: administrative authorities may classify illegal acts committed due to procedural flaws by the violating entity as “minor”. this is particularly applicable in areas involving administrative licensing, where the counterpart is required to submit an application to the relevant administrative authority and obtain approval before engaging in the act. if the counterpart commits such an act for the first time without obtaining the required license due to procedural flaws and no harmful consequences are caused, the act may be deemed “minor”. 5.1.3 take “non-subjective intent” as a discretionary factor non-subjective intent means that the violating entity has no subjective intent to violate the law when committing the illegal act. non-subjective intent should not be a constituent element of “no penalty for first violation”, but it can be taken as a factor for administrative authorities to consider when exercising discretion. the reasons are as follows: firstly, the legal provisions of the administrative penalty law on the “no penalty for first violation” system do not explicitly stipulate the condition of non-subjective intent; instead, they separately list a clause for “no penalty without subjective fault” to exempt from administrative penalty. secondly, if non-subjective intent is regarded as a constituent element of “no penalty for first violation”, it would require the violating entity to have no subjective intent when committing the illegal act. on the basis of satisfying “first violation”, “minor harmful consequences”, and “timely correction”, the absence of subjective intent would also be required to qualify for exemption from penalty. this would essentially narrow the scope of application of “no penalty for first violation”, which is not conducive to implementing the principle of combining punishment with education. finally, according to existing provisions, if non-subjective intent were a constituent element, the violating entity would bear the burden of proof. this would actually impose a certain burden on the counterpart and be inconsistent with the original philosophy of the “no penalty for first violation” system. therefore, the positioning of non-subjective intent should be as a discretionary circumstance for “no penalty for first violation”. that is to say, even if the violating entity commits the illegal act with subjective intent, as long as the above three elements are met, it may be exempt from administrative penalty. whether there is subjective intent is merely a factor for administrative authorities to consider when exercising administrative discretion. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 283 5.2 set up an escape mechanism for “no penalty/for first violation” the original purpose of formulating the list for “no penalty for first violation” is to prevent administrative organs from abusing their discretionary power. however, the list itself has an inherent flaw of limitation, which is likely to lead to rigid discretion by law enforcement officers and improper infringement upon the rights of administrative counterparts during its practical implementation. therefore, in the implementation of this list, it is necessary to reasonably formulate deviation clauses and corresponding procedures, leaving sufficient discretionary space for law enforcement officers to handle cases flexibly when necessary. deviation here refers to the act where, when confronted with special circumstances, administrative law enforcement organs, after considering the purposes of the rule of administrative law and legislative intent, determine that the existing administrative discretion standards are inappropriate for a specific case and thus exercise the power to deviate from such standards in accordance with the law (zhou, y. y., 2009, pp. 12-16). firstly, regarding the initiation procedure for deviation acts, administrative organs shall make such acts in accordance with the principle of “general compliance with discretionary standards and deviation only in individual cases”. in specific cases, they may conduct assessments based on the principle of proportionality, the principle of proportionality between punishment and offense, and the principle of equality. deviation clauses may only be considered for application when the discretionary result determined in accordance with the discretionary standards is obviously inappropriate. excessive abuse of deviation clauses will render the discretionary standards ineffective, leading administrative organs back to a state of disorder in determining the application of “no penalty for first violation”. secondly, if discretionary standards are not applied in a specific case, administrative organs shall fully explain the reasons based on the specific circumstances of the case, taking into account relevant factors such as the regional economic and social development level and the subjective and objective conditions of the party concerned. such a decision shall be made through collective discussion by the responsible persons of the administrative organ to ensure that the deviation act is within a reasonable scope. 5.3 construct an administrative discretion supervision mechanism faced with the current predicament of the absence of a supervision mechanism for administrative discretion, it is imperative to construct a systematic and rigid restrictive system at the legal level. firstly, the hierarchical supervision mechanism should be improved through legislation. detailed implementation rules of the administrative penalty law or departmental regulations shall explicitly require the establishment of a supervision model of “provincial-level filing and ministerial-level random inspection”. it shall be stipulated that cases of “no penalty for first violation” are subject to mandatory filing and regular special inspections, and an inter-regional mutual inspection mechanism shall be introduced to break down local protection barriers and ensure the independence and effectiveness of supervision. secondly, the legal safeguards for external supervision must be strengthened. legislation shall mandate the full disclosure of decisions on exemption from administrative penalty that do not involve state secrets or trade secrets, and require the preparation of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 284 public versions in plain language to protect the public's right to know. meanwhile, the legal authority of social supervisors shall be established by law, endowing them with procedural rights such as accessing case files and participating in acceptance inspections, and a legal protection and reward mechanism for whistleblowers shall be established. only through such a legal system design combining internal and external supervision can administrative discretion be truly “locked in the cage of systems”, ensuring that the original legislative intent of “no penalty for first violation” is not rendered nugatory in law enforcement practice. 6. conclusion the “no penalty for first violation” system represents a profound transformation in the law enforcement philosophy of market regulation, and serves as a valuable practice in building a law-based government and a service-oriented government. far from condoning illegal acts, it embodies a more refined and humanized allocation of administrative penalty resources within the framework of the rule of law. currently, the various challenges encountered in the application of this system are an inevitable stage in the development of any emerging institution. moving forward, we should continue to clarify its boundaries, optimize its procedures, and strengthen its supervision through sustained institutional innovation and strict legal regulation. by doing so, the “no penalty for first violation” system can strike an optimal balance between stimulating market vitality and safeguarding market order, ultimately becoming a solid legal guarantee for promoting the high-quality development of china’s market economy. fund project the 2020 liaoning provincial social science planning fund project. research on forward-looking policy tools for social risk early warning of artificial intelligence technology (key project, l20agl016), project leader chen yu. references jiang, g. h., & ding, a. r. (2021). legal principle and application of “no penalty for first violation”—concurrent discussion on the value orientation of paragraph 1 of article 33 of the new administrative penalty law. hubei social sciences, (03), 143-153. peng, z. y. (2024). legal interpretation and optimization approach of “no penalty for first violation” in ecological environment field. study and practice, (08), 65-73. wang, c. y., & zeng, x. t. (2022). dilemmas and improvements of the “no penalty for first violation” system. study forum, (04), 120-127. wang, q. b. (2023). legal attribute and effectiveness analysis of administrative discretion benchmarks. politics and law, (07), 18-33. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 285 xie, h. x. (2025). direct application of the exemption from punishment clauses in the administrative penalty law. administrative law research, (04), 15-29. zhang, j. s. (2011). liability for violating administrative law obligations: between administrative penalty and criminal punishment—analysis based on paragraph 2 of article 7 of the administrative penalty law. administrative law research, (02), 10-24. zhang, w. s. (2024). dilemmas and institutional reconstruction of tax-related “no penalty for first violation”. politics and law, (08), 116-129. zhou, y. y. (2009). between soft law and hard law: legal positioning of the effectiveness of discretion benchmarks. legal forum, 24(04), 12-16. zhu, q. x., & chen, x. y. (2022). applicable conditions and limits of the tax-related “no penalty for first violation” list. fiscal science, (05), 109-121. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 37 original paper analysis of the guiding opinions on the application of the justifiable defense system according to law shiting su 1 & huanting chen 1 1 guangxi university, nanning, china received: june 2, 2025 accepted: june 12, 2025 online published: june 13, 2025 doi:10.22158/elp.v8n2p37 url: http://dx.doi.org/10.22158/elp.v8n2p37 abstract china’s supreme people’s court, the supreme people’s procuratorate and the ministry of public security on september 3, 2020 jointly issued the “guidance on the application of legitimate self-defense system according to law” (hereinafter referred to as the “guiding opinions”), the “guiding opinions” of the social four sides in the handling of legitimate self-defense cases in the balance of the situation of each side of the word has played an effective role in determining the score to stop the dispute. however, while refining the conditions of self-defense, there are also problems such as incomplete regulation of the listed factors, and thus in the future, it is necessary to improve the guidance opinions, in order to make it more reasonable to serve the practice and the interests of the people. keywords self-defense, guidance, judicial application, judicial interpretation 1. breakthroughs of the guiding opinions for the provisions of the existing self-defense system, the practical and theoretical circles that are not detailed enough, and there are a number of controversies, so on september 3, 2020, the supreme people’s court, supreme people’s procuratorate, the ministry of public security jointly issued the “on the application of the legitimate defense system according to law, the guiding opinion”. the opinion upholds the original intention of the legislation, from the general requirements, work requirements and specific application of the three aspects of how to play the value of self-defense system to make guiding provisions. among them, the general requirements and work requirements of the two aspects of the provisions have been more specific and perfect, this paper will not repeat; specific application of the provisions (including the elements of self-defense as well as special defense content) constitutes the basic content of the “guiding opinions”, which still exists more can be explored, the following will be around the basic content of the specific development of the discussion. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 38 published by scholink inc. 1.1 the guiding opinions of the elements of progressive content 1.1.1 progress in causal conditions-adding new standards for the determination of “unlawful infringement” “wrongful intrusion” as a measure of the cause of self-defense conditions, its determination for the final establishment of self-defense plays a pivotal role. the guiding opinions add detailed guidelines for the determination of “unlawful infringement”, which is conducive to the judicial authorities to grasp the cause conditions of the system in a reasonable, accurate and legal manner. first, expand the scope of application. for a long time, due to china’s criminal law does not define “unlawful infringement”, which leads to many judicial organs in dealing with the case habitually will be the “unlawful infringement” stand in the position of personal injury judgment, and the origin of the property of the unlawful invasion of little evaluation, limiting the scope of application of self-defense; secondly, for the theoretical community has been hotly debated whether the unlawful intrusion includes illegal acts, due to the lack of a unified standard, resulting in the judiciary in many cases, often results-oriented judgment, overly strict censure of the defender’s behavior. therefore, the guiding opinions emphasize that unlawful infringement includes not only infringement of personal safety but also infringement of property safety, and not only criminal acts but also unlawful acts; second, clear face minors committed “unlawful infringement” of the correct response standard. previously, there are many scholars have different views on the issue of criminal liability capacity of the wrongdoer, such as jakobs believes that for obviously no responsibility for the wrongful invasion can not be justified defense; h. mayer believes that can only be liable and intentional wrongful invasion of defense (li, h., 2007, pp. 72-76). however, the guiding opinions firstly recognizes that “unlawful infringement” in china should be judged from an objective perspective, and secondly, it has well solved the problem of how to balance the protection of different legal interests (i.e., citizens’ legitimate rights and interests of the vulnerable groups): on the one hand, if an adult whose life is about to be infringed upon is asked to do nothing in the face of a minor, then it is not possible for him to defend himself against a minor. on the one hand, if the adult whose life is about to be infringed upon is required to be indifferent in the face of a minor, then it will be against the original intention of the self-defense system, and the incapacity for criminal responsibility should never be a gold medal; on the other hand, the preconditions of the opinions reasonably consider the problem of the disparity between the strength of minors and that of the adults, and first of all, carry out a reasonable education and persuasion, which is more conducive to making the criminal law play a role in safeguarding the psychological health of minors, and giving them sufficient opportunity to change their ways and mend their ways. the regulatory role. thirdly, based on the hotly debated cases in society, it has responded to areas that are difficult to deal with. on the basis of clarifying that “unlawful aggression” should not be limited to violent crimes, the expression “may be exercised in self-defense” was made in relation to such criminal acts as unlawfully restricting another person’s personal freedom, unlawfully intruding into another person’s home, obstructing safe driving, and endangering public safety. such as unlawfully restricting the personal freedom of others is the response to the cheering case of the first and second trial dispute, the court of first www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 39 published by scholink inc. instance to the defendant “holding a knife to the victim does not have the meaning of self-defense of unlawful aggression” and other reasons for non-short-term control of the personal freedom of others, such as debt collection excluded from the “unlawful aggression” outside the scope of “until”. outside the scope, until the guiding cases, the promulgation of the guiding opinions will be non-violent crimes and other behavior back to the right track of the reasons for self-defense. “justifiable defense to have the reality of unlawful aggression as the basis, the real existence of unlawful aggression is the cause of justifiable defense” (zhang, m. k., 2016). is the watershed of the application of the system of self-defense, and therefore a reasonable grasp of the conditions of the practical needs, is the source of justice. 1.1.2 progress in time conditions-changing the recognition standard of “in progress” firstly, the determination standard of the usual starting point has been changed. because our country on the beginning of self-defense time previously not expressly provided, so the judicial organs generally take to say for the judgment standard, but to say also means that the unlawful invasion must be the implementation of the act to be able to defend, and for the non-implementation of the act is also due to the legal framework and into the defensive behavior as “pre-defense” of the dilemma. therefore, the opinion of a change in the viewpoint of the hand, the use of comprehensive for the yardstick (generally to the hand as the standard of judgment, special circumstances to the direct face of the standard (zhao, b. z., 1996) to judge the beginning of the wrongful invasion. secondly, it specifies the determination of the time of the end of the wrongful infringement. the guiding opinions adopt more ink to list out the circumstances of the determination of the end time of the wrongful infringement. the content and the beginning of the time to maintain the logical consistency of the wrongful infringement is suspended or temporarily stopped, but there is still a realistic possibility of continued infringement is not the end, both recognized the state of danger belongs to the category of “in progress”. in the case of kunshan long, haiming yu in the fight with mr. liu snatched the machete, take the initiative to cut, stabbing each other; to be mr. liu was injured and ran to the car, haiming yu continued to chase and cut ...... there are views that the unlawful invasion in haiming yu grabbed the machete after the end, in haiming yu and then the implementation of the behavior of the aftermath of the defense. the provisions of this opinion thoroughly respond to the case of doubt, indicating that even if the machete grabbed by the machete does not mean that the unlawful invasion has ceased, because mr. liu in the machete in the hands of the machete is still continue to fight with, and the injury was running to the car hiding tools, at any time there is a risk of continuing the unlawful invasion, therefore the pursuit of the machete in line with the demand for self-defense. secondly, it proposes a operational standards, that is, when the wrongdoer determines that he is incapable of infringing or gives up, he is able to determine that the wrongful infringement has ended. finally, the content also addresses the special circumstances of property cases, responding to the phenomenon that society is prone to exclude property-based wrongful invasions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 40 published by scholink inc. thirdly, the general knowledge of the public has been fully taken into account. the special feature of the time requirement is to consider the identity of the judge, emphasizing the need to stand in the position of the person in question and the dangerous situation, such as the aforementioned case of haiming yu, “there are opinions that” the view is the mistake of not starting from the perspective of the victim; secondly, the special feature lies in the treatment of the special group of people based on the excessive fear of improper counterattack behavior. the second special is to deal with special groups of people based on excessive fear of inappropriate counterattack behavior, the subjective and objective principle of appropriate care. 1.1.3 progress in the conditions of the target-clarification of the wrongdoer for the defense of the wrongdoer, the theory is less controversial, but there is still a vague question of whether or not to include the perpetrator’s accomplices, and whether or not to counterattack against minors, mentally ill people. the “guiding opinions” firstly clarified the wrongdoer including abettor, including the view of complicity, enhanced in the “outnumbered” in the case of the defense of the rights of the wings; secondly, whether it can be against the criminally irresponsible person, the restriction of the criminally responsible person counterattack, the document made the neutralization of the provisions of the previous wrongdoer including minors, the purpose and logic of the document is consistent. the purpose and logic of the document is consistent. for example, in the supreme people’s procuratorate guidance case 45, although nine minors infringement intensity is not the same, but chen can still be against any one of the counterattack, regardless of whether it is the implementation of the perpetrator, minors. 1.1.4 progress in the conditions of the intent-clarify the intention of defense and the boundaries of mutual assault and battery in practice, the judgment of the intent to defend is to determine whether self-defense can be established a major difficulty, part of the judiciary arbitrary and habitual thinking will be infringed upon after the return fire behavior is recognized as mutual assault, denying the application of this situation of self-defense, which is the “guiding opinions” before the introduction of the judicial alienation of legitimate self-defense and the main reason for judicial deviation (liu, k., 2020, p. 84). therefore, the promulgation of this opinion solves many common problems, including the two sides in the process of beating, one side is in hot pursuit, can the other side have room for defense? when one party suddenly increases its intensity, will the other party be able to counterattack? if the strength of the two sides is very different, the disadvantaged party will be able to exercise defense, and so on. such as 2018 fuzhou yu zhao case, in the fight between mr. li and yu zhao behavior, mr. li fault in the first and belongs to the first party, hit yu zhao two punches and caused physical damage to him, the means of over-aggressive; yu zhao after the hands of the party to fight back directly, and did not take any tools, so it does not belong to the intention of righteousness and courageousness after the transformation into a situation of intentional injury, with a justified intent of defense. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 41 published by scholink inc. 1.1.5 progress in the limit conditions-supplementary explanation of “obviously exceeding the necessary limit” and “causing significant damage” this limitation includes the behavioral elements of obviously exceeding the necessary limit and causing significant damage to the results of the elements, both practical and theoretical, on the determination of the two themselves and their relationship has a very different differences. the introduction of the document not only makes it clear that the behavioral elements to be considered in a comprehensive manner, but also emphasizes the degree of the results of the elements to reach the degree of death, serious injury, further limiting the determination of the space of the excessive self-defense; and for the relationship between the two, before the theory and practice have complementary to the one and non-interference in the dichotomous point of view, the “guiding opinions” on the issue of the clear use of the one, that is, must be established at the same time in order to consider the two excessive defense. as mentioned earlier in the case of yu zhao, fuzhou prosecution based on the disparity between the results of yu zhao and li’s injuries and determined that yu zhao’s actions exceeded the necessary limits and could not be established in self-defense. the prosecution’s initial decision is to take the dichotomy of the point of view of judgment, there is only the suspicion of result theory. 1.2 the specific application of special defense 1.2.1 basic content the guiding opinions in its main part of the form of 4 articles on the specific application of special self-defense, as follows: firstly, refinement of the contours of “homicide”. the guiding opinions stipulate that, in addition to the use of lethal force, if, although no murder weapon or lethal force is used, the unlawful assault has seriously endangered the safety of a person, or posed a serious or imminent danger to him or her, in terms of the number of subjects, the part of the body struck, and the strength of the blow, the assault may be recognized as an “act of homicide”. secondly, determination of the nature of “homicide, robbery, rape, kidnapping”, the four aforementioned referring to the act, the means. thirdly, to refine “other violent crimes that seriously endanger personal safety”, the document follows the general statement that “other and homicide, robbery, rape, kidnapping are one and the same”, and points out that “other” should be violent crimes in which there is a sufficient risk of serious injury or death, or violent crimes that cause serious injury or death. fourthly, clarified the relationship between special defense and self-defense, the act caused death or injury to the unlawful aggressor, if not obviously exceed the necessary limit should also be recognized as self-defense, the content of the limit conditions of self-defense once again emphasized that “obviously exceed the necessary limit” and “cause significant damage”. “need to be established at the same time”. 1.2.2 progress-refinement of the identification of violent criminal acts that seriously endanger personal safety regarding violent acts that seriously endanger personal safety, china’s criminal law stipulates that a defender who causes serious injury or death to the wrongdoer as a result of such acts shall not be held www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 42 published by scholink inc. criminally liable. on this basis, the guiding opinions further refine the laws on “murder”, “homicide, robbery, rape, kidnapping”, “other violent crimes seriously endangering personal safety” and “other violent crimes seriously endangering personal safety”. “determination, to enhance the practice of operability, and reflect our legislative tendency to safeguard vulnerable groups”. such as “murder, robbery, rape, kidnapping” refers to the behavior rather than the crime, that is, it does not need to reach the degree of already seriously endangering personal safety. 2018 fir yang farmer’s wife mr. zhou, in mr. xu forcibly pushed her to the ground and intends to have sex with her, mr. zhou, although after the use of a pill box hose to strangle her, but her behavior meets the defense demand, because mr. xu behavior has constituted a serious threat to personal safety of rape, and therefore can establish special defense, according to law is not criminally liable. 2. the inadequacy of the guidance regulation admittedly, the introduction of the “guiding opinions” is undoubtedly the former tied up in the justified defense system pulled down the altar, improve the efficiency of the application of the system and practical operability; but its relative to the original intention of the legislation of justified defense, there is still a need to make corrections, and the need for timely modification, correction, which leads to a large number of judicial organs arbitrarily apply the document, too much discretion, and ultimately deviate from the original legislative intent, and fairness and justice. gradually drift away from the fairness and justice. in the author’s view, the “guidelines” regulation is mainly reflected in the cause of the conditions of “unlawful infringement”, specifically as follows: 2.1 the theory is not self-consistent, resulting in different standards in practice in the document on the determination of “unlawful infringement”, the opinion emphasizes that the scope of unlawful infringement should include illegal acts and criminal acts, and according to the principle of consistency, the “minors” in the latter part of the content of the article should refer to those who have the ability to commit unlawful acts and those who have limited criminal responsibility capacity. the term “minor” in the latter part of the article should refer to a person who has the capacity to commit an unlawful act. therefore, this also means that the unlawful invasion must not be in criminal liability without the person under the control of the implementation, thus will be less than 12 years of age of minors and completely unable to identify, control their own behavior of the mentally ill in the implementation of unlawful invasion outside the subject, ultimately leading to the judicial practice from the cause on the application of justified self-defense rate is reduced. furthermore, the above provisions on “unlawful infringement” and the defense object of “knowing that the aggressor is criminally irresponsible” logic can not be consistent, if the subject of unlawful infringement can not be criminally irresponsible, then how to such a defense object? therefore, the relevant lawmakers need to carefully consider the response to this issue. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 43 published by scholink inc. the author believes that the issue can be special instructions, when the behavior of criminally irresponsible persons objectively meet the illegal elements, can be established unlawful infringement. comprehensive affirmation of minors and other irresponsible person infringement of the defensible, both theoretical rationality and realistic possibility: first, with the legitimate defense system of criminal legislation in line with the original intention. the purpose of the establishment of criminal law is to make up for the deficiencies in the protection capacity of state organs, so as to safeguard the legitimate rights and interests. if arbitrarily deny the incapable person's infringement behavior, it is obviously contrary to the original intention (hashijawa takashi, yoshi gangsu, & li shiyang, 2011, pp. 95-101); second, conform to the legal nature of self-defense. as a pure defense of legal interests, the author believes that there is no need to sanction the crime generally put forward the same high requirements. in other words, the establishment of a crime requires subject-object consistency, does not mean that does not establish a crime must also subject-object consistency (joshua dressler, translated by wang xiumei et al., 2009); third, is conducive to the realization of the function of criminal law crime prevention. in the case of incapacitated persons, even though they may be exempted from legal punishment because of their age, mental state and other reasons, this is only based on the incapacitated person’s inability to understand the legal significance of his or her actions and make provisions, and the inability of the perpetrator to understand the normative significance of his or her own actions does not mean that he or she cannot recognize the facts of his or her actions. therefore, the above problem can be solved through the concept of “unlawful” and “illegal” appropriate separation to solve the conflict and tension between the theory of self-defense and the theory of unlawfulness, which also helps to realize the coordination of the theory system of self-defense (cui, x.-x., & zhang, b., 2020, pp. 31-39). 2.2 “unlawful infringement” ignores illegal behavior in scope compared with the previous criminal law, the scope of “unlawful infringement” in the “guiding opinions” is undoubtedly expanding the identification criteria, no longer overly harsh on the defender. but the document stipulates the “unlawful infringement” scope of the lowest grade for the violation of personal or property rights of the illegal behavior. admittedly, the legitimate defense behavior can not be implemented against the lawful acts, which is undoubtedly the opposite of the lawful acts for the non-legal acts, non-legal acts in addition to illegal acts, but also includes a state of neither legal nor illegal acts, that is, illegal acts, and the “guiding opinions” did not make provisions for the state of the act, will be excluded in the behavior of “unlawful infringement of the the guiding opinions do not provide for this behavioral state, excluding this type of behavior from the scope of "unlawful infringement”. based on this, the judicial authorities in dealing with this type of case will give rise to many problems, such as the face of pushing and shoving, whether the victim can be counterattack, etc.; at the same time, due to the lack of uniform standards, the judicial authorities in the adjudication of cases are also prone to appear in the same case of different judiciary chaos. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 44 published by scholink inc. 2.3 “significantly minor unlawful infringement” caused by misinterpretation the more significant changes and additions to the “guiding opinions” in article 10 on the abuse of the right to self-defense provisions, although the legislative intent of the legitimate self-defense system at the same time also limit the excessive counterattacks, but the opinion in the regulation at the same time, there are still logical contradictions, excessive criticism of the defenders and many other problems, so that was used to avoid the provisions of social brawl now in the eyes of the judiciary, but has become a restriction on the rights of citizens. but has become a restriction of the citizens’ rights of the shackles. opinions of the abuse of the right of self-defense provisions expressed as “for significantly minor unlawful invasion, the perpetrator can be identified in the case, the direct use of sufficient to cause serious injury or death to stop the way, shall not be recognized as an act of self-defense. unlawful intrusion is caused by the perpetrator’s gross negligence, the perpetrator can use other means to avoid the infringement of the situation, but still intentionally use enough to cause serious injury or death, shall not be recognized as an act of self-defense.” here the existence of the error is more obvious: first, the grasp of “significantly minor wrongful injury” is wrong. the document with “significantly slight wrongful injury” to express, also means that first of all the behavior must meet the opinion before the cause of the conditions described in the “wrongful injury” requirements, on this basis will involve the behavior whether to reach the degree of significant slight discussion; and according to the codification logic of the text system, the main content of the second part of the guidance ranges from article 5 to article 10, each of which should be juxtaposed. however, article 5 of the document clearly stipulates that the cause of justifiable defense can be established is the existence of unlawful invasion, in other words, in the face of unlawful invasion, no matter what degree, the defender has the right to counterattack, but article 10 of the opinion also stipulates that for the “significantly minor unlawful invasion”, the perpetrator can not be recognized as justifiable defense in a certain way under certain conditions to stop it. recognized as self-defense, so the views of the actor to stop “significantly minor unlawful intrusion” taken in different kinds of behavior, whether they can be established in self-defense disagreement. in other words, the defender in the face of unlawful invasion and the implementation of a certain counter-attack behavior, its counter-attack behavior also exists due to the failure to meet the conditions of the circumstances of the situation of self-defense can not constitute the possibility, it is this possibility, resulting in the misinterpretation of the judicial organs. second, “significantly slight”, “recognizable” and other standards are not specific enough. since the use of the expression “significantly minor”, it also means that the wrongdoing is a matter of priority, but the opinion does not belong to what kind of behavior is minor, significantly minor for a clear division; secondly, for how to judge the perpetrator at that time fully equipped with the ability to “can identify”, the document lacks clear standards; the document lacks clear standards; the document lacks clear standards. secondly, for how to judge the perpetrator was fully “recognizable” ability, the document lacks a clear standard; similarly, “direct use of the foot to cause serious injury or death,” without any specific instructions, the judiciary in accordance with the practice is easy to fall into the principle of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 45 published by scholink inc. absolute weapon reciprocity, only the results of the misunderstanding of the theory. 2020 happened in nanning, guangxi a defense case is enough to illustrate the above problem: the beginning of the year a night of 23:00 pm, the defense wu will be driving the net car parked in nanning a downtown area near the purpose of standby unit issued by the ride single; at this time coincided with the drink victim mr. liang asked to take wu’s net car to leave, but both sides because of the ride problem triggered dispute; in the process of the dispute, mr. liang went to car driver’s side, reached into the window slapped wu, and take away its glasses, wu immediately from the car other driver’s seat out of a car steering wheel lock out of the car; get out of the car, in the mr. liang sustained punching and kicking, wu swung the steering wheel to mr. liang, the first time by mr. liang with his hands to block away, the second hit the head after they dialed the phone for help, and ultimately caused mr. liang serious head injuries. in this case, both levels of court that wu's behavior meets the conditions of the abuse of the right of defense, and ultimately to intentional injury crime, for the following reasons: 1) the judges of the second trial that mr. liang’s punching and kicking behavior of the degree of infringement is limited, in other words, they believe that the mr. liang’s punching and kicking behavior will not be wu’s right to life and health of the infringement of the “significantly minor unlawful intrusion” and wu not only use enough to cause death or injury to the steering wheel lock as a counterattack tool, but also to mr. liang important parts of the smash, so wu’s counterattack behavior naturally also has the reasonableness of intentional injury, belongs to the “direct use of sufficient to cause serious bodily injury or death to stop the way”. but i think: ① the court in the “guidance” under the guidance of the “punching and kicking” behavior into the “significantly minor unlawful intrusion” degree. but whether the punching and kicking is significantly minor unlawful injury is debatable, punching and kicking also has light and heavy, and mr. liang in the case of physical intoxication, his own can not be fully recognized, control their own behavior, the court by what standards to judge its punching and kicking infringement must not be enough to threaten the life safety of wu? moreover, mr. wu get off to stop mr. liang behavior of the trigger is mr. liang snatched wu mou glasses, mr. liang mr. wu do not know how to resist the way to forcefully take away their property, and put under their control, in line with the elements of the crime of robbery, so mr. wu counterattack meet the need for self-defense can not be denied; ② the contractor judge ignored mr. wu in this case the justification for self-defense basis. punching and kicking is suspected of provoking trouble, is a typical illegal behavior, which also means that it can be defended within the scope, so wu has the right to fight back; 2) the case judges that the driver wu still “can recognize” ability, the reason is that they believe that wu’s car parked on the side of the road in a neighborhood, and the surrounding area is a downtown area, wu can identify the wrongdoing, the driver can recognize the wrongdoing, the driver can identify the wrongdoing. wu can recognize that the wrongdoing is not yet serious and urgent. the author believes that this judgment exists one-sided, mr. wu face of unlawful intrusion should not be in a position to ask for help to others as whether or not to be able to fully recognize each other’s behavior for “significant slight unlawful intrusion” standard, if the surrounding are old or old age of women, even if mr. wu can to the surrounding people for help, they can not do www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 46 published by scholink inc. anything. there is nothing to do, so in determining whether the defender can recognize the other side of the unlawful intrusion is slight, should focus on the danger to the victim itself whether it endangered the safety of his life. that is, the standard of the ordinary person in the perspective of the defender means that when judging the urgency of the unlawful intrusion, the defender’s perspective should be taken as the defender’s perspective, and at the same time, the standard of the ordinary person should be adopted. therefore, the above regulatory error of the guidance will lead to many problems, including triggering the judiciary from the result of reverse deduction of the subjective intent of the defender, and to a certain extent, cut the integrity of the case. in the case of the author believes that the two judges in the “guidance” on the abuse of the right of defense under the guidance of the vague, from the absolute weapon of reciprocity or only results of the consequences, reverse error identified wu's intent of defense: the case of the second trial of the contractor judge that, in the face of only punching and kicking mr. liang, mr. wu repeatedly with the steering wheel machine to hit each other important parts of the body, his behavior has exceeded the defense should be with the proper intention, with the purpose of private anger. however, the author believes that the judge did not incorporate wu’s defense process into the judgment: 1) mr. liang’s punching and kicking behavior has continuity, after wu’s first counterattack behavior, mr. liang exists and want to go up to wu’s continuous behavior, so wu’s counterattack is on the continuity of mr. liang’s attack on the behavior of the instinctive response; 2) in wu’s steering wheel holding the attack for the first time, mr. liang was able to use his hands to block away, which is sufficient to show that wu's counterattack strength is not large, there is no so-called “direct use of sufficient to cause serious bodily injury or death” to stop; 3) in wu’s second counterattack with the steering wheel, see mr. liang’s head bleeding immediately after the call for emergency medical services, indicating that wu’s to mr. liang’s only for the purpose of stopping unlawful invasion, and is not malicious retaliation. inadequate regulation of the guidelines affects not only the judicial trial process, but also the negative guiding effect on society. first of all, from the trial, the judge’s free interpretation of the margin is too large, easy to lead to the judicial practice of the trial standard is not uniform, can’t play out the system’s defensive role, at the same time undermining the judicial authority. secondly, from the social aspect, it not only binds the citizens to safeguard the legitimate rights and interests of the courage and will, but also to some extent affects the public’s values, to the above case as an example, 2 levels of the court’s decision in summary, no doubt in encouraging drunkenness provocation, but also in the warning of the defense of the need to be cautious of the counter-attack, in this way, it is not conducive to the promotion of the correct concept of the rule of law. therefore, in view of the above problems, the author believes that the first paragraph of the guiding opinions can be the abuse of the right to self-defense of the first paragraph of the content of the meaning of the actor in the stopping degree of significantly less serious unlawful invasion, should try to take the strength, intensity, means of counterattack in a lighter way. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 47 published by scholink inc. 3. the remaining problems of the guidance in china’s judicial practice, the problem of the difficulty of determining legitimate self-defense has a long history (chen, x. l., 2017, pp. 89-104). some relevant scholars have searched the 1,200 cases of justified defense from 2014-2019 and found that among the reasons for cases that were not judged to be justified defense, the number of cases that did not satisfy the subjective elements was as high as 713, which became the main reason for the difficulty of the determination of justified defense (ren, h., 2020), and therefore the subjective determination guidelines in the system of justified defense are in urgent need of unification. however, after the introduction of the “guidance”, did not put the regulation of the elements on the agenda, did not clarify the application of the standard of defense consciousness, and did not properly clarify the relationship between the sense of defense and intentional injury, so that a large number of cases of self-defense because of intent to injure and be treated as a crime to combat. at present, the standard of self-defense consciousness of self-defense and the relationship between self-defense consciousness and subjective intent are controversial in theory and judicial practice. the essence of the right of self-defense can be set up when civil rights are infringed upon, the state in the emergency time is too late to relief through the means of public power and give citizens the right to self-protection in the form of violence, the establishment of self-defense of the unlawful invasion of the view should meet the “urgency” of the conditions. the practice of unlawful aggression “urgency” of the determination of the ambiguity, directly leading to the application of self-defense is overkill, and the introduction of the “guidance” and the issue has been avoided. in summary, the legitimate defense system needs to be resolved, the guiding opinions have not been involved in the problem is mainly manifested in the standard of self-defense consciousness and its relationship with the subjective fault, unlawful invasion of the “urgency” determination of the standard problem. 3.1 on the defense consciousness standard problem defense consciousness is reflected in the subjective attitude of the defender in the act of stopping the unlawful invasion, but on the defense consciousness should take what kind of measurement standard problem, there are different views in theory and practice, and the “guiding opinions” also avoid dealing with the problem. 3.1.1 different views on the theory the doctrine of criminal law for the content of the defense awareness of the existence of two-level and three-level theory of differences, and in order to defend the awareness of the elements of self-defense is necessary can be divided into defense awareness, the purpose of the defense said and defense awareness don’t say. bi-level theory represented by professor chen xingliang, which believes that the defense consciousness is a psychological state, originated in the defender is aware of a wrongful invasion is being carried out, out of the public, the protection of the rights and interests of myself or others and determined to stop the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 48 published by scholink inc. wrongful invasion (chen, x. l., 2017), from the viewpoint of the bi-level theory firstly, the defender is required to realize that there is a wrongful invasion is being carried out, and secondly, produce the corresponding will of defense; three-level theory represented by professor wei jiang, which the assertion of defensive intent by the defensive awareness, defensive purposes, defensive motives composed of three parts (jiang wei, 1988), that is, the perpetrator has recognized that unlawful invasion is occurring, which triggered a strong desire to stop the unlawful invasion, and then in the drive of the motive to produce the maintenance of legal rights and interests of the ultimate purpose. the author believes that the subjective determination in judicial practice is inherently difficult to prove, the motive of defense is the deeper cause of the purpose of defense, if the determination of self-defense also need to verify the purity of the motive, is tantamount to the defender to “forced” the dilemma of the situation, both a waste of judicial resources, but also compression of self-defense. establishment of space, therefore, the three-class theory is unfair. defense consciousness do not say, for the establishment of self-defense defense consciousness is not necessary, as long as the actor objectively implement the defense behavior, realize the effect of defense is justified self-defense (shang, k. h., 2022), and defense awareness of the point of view is the opposite, scholars advocating the point of view that, on the basis of defense awareness, the defender once the will to counterattack the ongoing unlawful invasion, then he is the defense consciousness, without in-depth investigation of the defense, and the defense of the will to counterattack the wrongful invasion, and the defense of the will to counterattack the wrongful invasion. consciousness, and no need to look deeper into the will of defense in the deeper protection of the state, society or personal interests of the part, even if only the existence of the unlawful aggressor's intent to injure, can not be denied the existence of its sense of defense (li, h., 2007, pp. 63-75); the purpose of the defense that the japanese scholars of kusano panther ichiro, scholars advocating the view that the sense of defense must be both awareness of the defense and the complete will of the defense to be fully embodied out of the protection of the interests of the law and the implementation of defensive behavior. the act of defense must be committed out of the protection of legal interests, otherwise, it cannot be considered as having the sense of defense. but compared to other, another japanese scholar otsuka ren professor does not agree to change the point of view, he believes that the existence of the defender’s purpose of defense is not a necessary condition for the establishment of self-defense, the defender in the ability to realize the reality of the existence of unlawful invasion, only need to have to avoid unlawful invasion of the state of mind can be (otsuka, j. feng, 2003). the author believes that the defense awareness that more can play out the value of the self-defense system, it is not demanding the defender must have a complete defense will, but to make the defense awareness of the key to the determination of the defense consciousness, in the reduction of the reasoning content of the will of the defense at the same time, but also enhances the operability of the judicial trial, thus reducing the risk of practice disorders. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 49 published by scholink inc. 3.1.2 practice generally to the purpose of defense as the standard due to the lack of unified defense consciousness determination standard, in practice, the judge can only through the defender’s defense awareness, defense behavior and defense results of reasoning judgment. at the same time to observe the relevant scholars statistical defense awareness of the case data, it is not difficult to find that in the six years after 2014, the number of cases that can be identified as the awareness of defense almost did not increase with the increase in the total number of cases (as shown in figure 1) (ren, h., 2020), and from the “huan yu case” guiding case reasoning, china’s judicial practice to identify the theory of defense awareness the general theory is the purpose of defense theory (zeng, y. x., 2019, pp. 112-128). figure 1. number of decision documents and determination of awareness of defense the result of the application of the purpose of defense doctrine is obvious, and it has continuously contributed to the low application rate of the self-defense system. in practice, the judge requires the defender to have a complete and pure will to protect the society, other people or their own legitimate rights and interests, but the actual situation is that normal people in the face of danger can only react out of instinct, and the rational thinking required by the purpose of defense theory has a certain degree of fantasy in this case. the purpose of defense as a standard of defense consciousness or not, easy to make the judicial process into the many uncertainties interfere with the situation, affecting the independence of the judiciary, but also difficult to ensure the high quality of the results of the case. 3.2 the relationship between sense of defense and subjective intention the blurring of the boundaries between mutual fighting and self-defense before the introduction of the guiding opinions was, to a certain extent, due to the fact that the judicial authorities did not reasonably grasp the relationship between the sense of defense and subjective intent, which led to the miscarriage of justice in many cases of legitimate self-defense, and the punishment of innocent people. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 50 published by scholink inc. for the same is a form of self-defense behavior of defense, the traditional theory of criminal law is generally believed to be only indirectly intentional or negligent state of mind, and denied the existence of direct intentional space, the reason is the purpose of self-defense and direct intentional criminal purpose can not exist at the same time in the process of a subjective consciousness of the behavior, in other words, the mainstream viewpoints are advocated that self-defense consciousness and subjective intent does not intersect. but the author’s position is different: the relationship between subjective intent and wrongdoing should be a necessary but not sufficient condition, that is, direct intent is not necessarily mutually exclusive with the sense of defense, for the following reasons: 3.2.1 theoretical basis defense consciousness and subjective intent are both composed of cognitive and volitional factors. first, in the cognitive factor, defense consciousness refers to the defender to realize that the wrongful invasion is occurring, and subjective intent refers to the actor to foresee that his act will produce the harmful consequences of harming the society, from this point of view, a defender does not lose the ability to foresee that his act will produce the harmful consequences of harming the society just because he has realized that the wrongful invasion is occurring, so the two are in the realm of cognitive factors and there is a therefore, in the field of cognitive factor, there is a possibility of coexistence of the two. secondly, in the factor of will, the sense of defense refers to the psychology of the defender who wishes to stop the ongoing unlawful invasion so as to save the public interest, other people or his own rights from being infringed upon, whereas subjective intent refers to the mental attitude of wishing or indulging in the emergence of the damaging results caused by one’s own behavior, thus it is observed that: 1) it is only in the case of the unlawful aggressor being injured by a minor injury or more that the defender is liable to become a defendant to be brought to the court and, in the space where the degree of minor injury is not met to meet the light degree of space, the defender can not be sued, in other words, the defense consciousness and subjective intent have coexisting space; 2) in the case of the unlawful aggressor suffered more than light damage, as long as the results of the defense is attributed to the subjective intent of the defender, and its sense of defense to give a negative evaluation, which is also not too strong. based on the above two points, in the field of will factor defense consciousness and intentional injury also exists in the possibility of coexistence. therefore, to sum up, in theory, the sense of defense and subjective intent, including direct intent, can be parallel under the same subjective will, as shown in table 1 below. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 51 published by scholink inc. table 1. comparison between defensive awareness and subjective intent 3.2.2 basis in practice take the most representative jiangsu kunshan anti-killing case in recent years as an example. once the kunshan long case occurred, it triggered heated discussions among the criminal law academia and the public. in the case, haiming yu grabbed the knife after hailong liu for a number of counterattacks, 7s cut hailong liu 5 knives, and then in the pursuit of hailong liu many times in the flinging, hacking, it can be seen, haiming yu’s self-defense behavior in the subjective, it must be with have foreseen that its behavior will produce the results of the harm to the community, but still hope that the damage results or let the psychological state of the damage results, that is, subjectively with a direct intent, and also has a will to stop hailong liu’s wrongful behavior. therefore, from the final judgment in the results of self-defense, the judicial authorities both in recognition of the consciousness of self-defense, also recognized the subjective attitude of criminal intent, so in the case, the will of defense and subjective intent can coexist. in the face of unlawful invasion, to safeguard their legitimate rights and interests, it is inevitable that there will be injury intention, because the defender only in a certain way to the other side of the threat or damage, in order to let the other side to realize that the defender has the possibility of harming themselves, and then to let them know the difficulty of backing off, and ultimately to achieve the maintenance of the community, other people, or the legitimate rights and interests of their own purpose, the process can be displayed as “unlawful infringement to counter the unlawful infringement the unlawful aggressor may be injured or injured the unlawful aggressor to know the difficulty to retreat --stopping the unlawful infringement safeguarding legitimate rights and interests”. therefore, only through the legislation, the formal documents of the unification, in order to make the standard of defense consciousness more clear, three-dimensional, reduce the so-called has reached the degree of “cleanliness” of the purity of the sense of defense of the demanding (chen, x., 2016, pp. 53-73), in order to better curb the phenomenon of limiting the scope of the establishment of self-defense. subjective attitude cognitive factor will factor awareness of defense the unlawful intrusion is taking place wish to stop the ongoing unlawful invasion protecting the rights and interests of society, others and oneself intentional harm anticipating the harmful consequences of one's actions wishing or letting harm to society occur coexistence √ unlawful aggressor＜ light injury: √ unlawful aggressor≥slight injury: not necessarily not to censure the defender's will to defend: √ www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 52 published by scholink inc. 3.3 the relationship between sense of defense and subjective intention “urgency” as a quantitative element of the judgment of unlawful infringement, should become the exercise of the right of defense based on the substance, which is the logical interpretation of the criminal legislation of self-defense of course, but also the new era of the development of the theory of rights shall not be abused the basic requirements. in order to regulate the exercise of the right of self-defense, the “urgency” of the judgment standard must be unified norms. at present, china’s legislation still lacks the definition of “urgency” basis, so in practice, often triggered by self-defense overkill results. the following author will be “huan yu intentional injury case” as an example to illustrate the above problems brought about by the judicial organs of the same case with the impact of different judgments. 3.3.1 judgment that denies the “urgency” of the unlawful intrusion in practice, by the judicial authorities because of the “urgency” and can not establish self-defense case, there are many cases based on illegal detention such as unconventional causes of the reasons. in huan yu’s intentional injury case, the court of first instance held: “although his personal freedom was restricted at that time, and he was verbally abused and insulted by the other party, but in the case that the other party did not use tools and the police station had already been called out, the defendant, huan yu, and his mother’s right to life and health were infringed upon in a lesser degree of danger, and there was no urgency of defense, so huan yu did not have any urgency of defense when he stabbed the victim with the sharp knife. justifiable defense in the sense of the premise of unlawful infringement” that the decision that there is no urgency of defense. some commentators believe that this conclusion denies the existence of unlawful intrusion in this case, and therefore denies the existence of the defensive nature of yu huan’s behavior. the judgment affirmed the existence of insulting words and deeds and restriction of personal freedom in the process of debt collection, but also considered that the actual danger of personal infringement is small, there is no urgency of defense (chen, x. l., 2017, pp. 89-104, p. 178). but the author thinks that the point of view has metaphysical, because the degree of unlawful infringement is light or not, can defend or not, should not affect the establishment of the unlawful infringement itself. 3.3.2 the judgment that affirms the “urgency” of the unlawful intrusion in huan yu’s intentional injury case, the second instance judgment also gave affirmative comments on the “urgency” of the unlawful injury, and pointed out that at the time of the crime, mr. du and others had illegally detained and verbally abused and pushed and shoved her mother, and that even though the police arrived at the scene quickly, when huan yu’s mother attempted to evacuate the hospitality hall with the police, mr. du and others came forward and prevented her from doing so, and the police were not allowed to leave. although the police arrived at the scene quickly, when huan yu’s mother tried to follow the police to evacuate the reception hall, mr. du and others came forward to stop her, and huan yu pressed forward even though she had already been warned with a knife, and huan yu stabbed with a knife only when his life was actually threatened, so he was considered to have acted with a certain degree of precautionary necessity. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 53 published by scholink inc. the court of first and second instance of the case had a different determination of the “urgency” of the unlawful intrusion. the court of first instance held that after the reception of the police, huan yu and his mother had the possibility of seeking help from the public authorities, and therefore the unlawful intrusion was not urgent. in the aforementioned case of nanning net car driver mr. wu, the court of first and second instance held that mr. liang did not have the urgency of the unlawful invasion because mr. wu was in the downtown area and was able to ask for help; while the court of second instance in the case of huan yu’s intentional injury grounded its “urgency” view on a more specific point of the unlawful invasion. the point of view based on more specific and detailed. but even though the case of the court of first and second instance ruled that the results are very different, but for the two to identify the “urgency” of the objective criteria is difficult to find, so the author believes that the practice of unlawful intrusion of the “urgency” of the suspicion of man-made limitations. the guiding opinions will avoid the impact of the problem will continue, the judiciary for unlawful aggression “urgency” judgment is also very easy to fall into the objective environmental factors of the appendage (zhang, h. c., 2021, pp. 101-107), and ultimately can not really play the role of self-defense system to balance the relationship between public power and the right of citizens to self-defense. 4. conclusion in the context of the “guiding opinions”, we should correctly treat the conditions of justifiable self-defense in accordance with the law, and cultivate a good social atmosphere; justice should be clearly distinguishable between right and wrong, adhere to the human feelings, law and reasoning, and to promote fairness and justice, avoid the emergence of the “whoever makes trouble who is reasonable!”, “who died or injured who has reason” tendency. however, the opinions are still debatable, to explore the role of self-defense system, only at the same time to grasp the detailed, clear cause, time, object, purpose and limit conditions, “unlawful aggression” to add a new standard, change the “ongoing”, in order to better respond to the social issue of concern, and to promote the integration of the judiciary and the public sentiment. therefore, in order to let the law for the justified defense, it is necessary to “opinions” in the reasonable play benefit at the same time, keep abreast of the times, face the high and frequent problems, from the root to activate when the system of self-defense, and truly for the people to use! www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 54 published by scholink inc. references [u.s.] joshua dressler, translated by wang xiumei et al. (2009). american criminal law in a nutshell. beijing: peking university press. chen, x. (2016). overcoming the “moral cleanliness” in the judgment of self-defense. tsinghua law, 2016(02), 53-73. chen, x. l. (2017). how justifiable defense can avoid being reduced to a zombie clause—a doctrinal analysis of criminal law taking yu huan’s intentional injury case first instance judgment as an example. jurist, 2017(05), 89-104. chen, x. l. (2017). how justifiable defense can avoid being reduced to a zombie clause—a doctrinal analysis of criminal law taking yu huan’s intentional injury case first instance judgment as an example. jurist, 2017(5), 89-104, 178. chen, x. l. (2017). theory of justifiable defense. beijing: people’s university of china press. cui, x.-x., & zhang, b. (2020). a criminal law doctrinal analysis of the problem of defense against aggression by incapacitated persons. problems of juvenile delinquency, 2020(5), 31-39. hashijawa takashi, yoshi gangsu, & li shiyang. (2011). analysis of some problems of japan’s self-defense system. wuling journal, 36(04), 95-101. jiang wei. (1988). justifiable defense. beijing: law press. li, h. (2007). on the subjective conditions of self-defense. law and business research, 2007(2), 72-76. li, h. (2007). on the subjective conditions of self-defense. law and business research, 2007(02), 63-75. liu, k. (2020). fighting back and beating each other—an analysis of self-defense in injury cases. journal of henan police academy, 2020(3), 84. otsuka, j. feng. (2003). introduction to criminal law. beijing: renmin university of china press. ren, h. (2020) research on defense consciousness (master’s thesis). people’s public security university of china, beijing. ren, h. (2020). research on defense consciousness (master’s thesis). people’s public security university of china, beijing. shang, k. h. (2022). a study of defense consciousness (master’s thesis). northwest university of politics and law, xi’an. zeng, y. x. (2019). judicial misconceptions of justifiable defense. chinese journal of criminal law, 2019(05), 112-128. zhang, h. c. (2021). on the justifiable defense in unlawful infringement “urgency” judgment. guangxi social science, 2021(11), 101-107. zhang, m. k. (2016). criminal law (above). beijing: beijing law press. zhao, b. z. (1996). studies on controversial issues in criminal law: the first volume. zhengzhou: henan people’s publishing house. microsoft word elp-v2n2-p239 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 2, 2019 www.scholink.org/ojs/index.php/elp 239 original paper achieving sustainability of marine fish stocks in nigeria: can the 2030 agenda for sustainable development make a different? emmanuel e. okon1* 1 nigerian institute of advanced legal studies, university of lagos campus, akoka, yaba, lagos, nigeria * emmanuel e. okon, emmyokon@yahoo.com received: november 11, 2019 accepted: november 21, 2019 online published: november 29, 2019 doi:10.22158/elp.v2n2p239 url: http://dx.doi.org/10.22158/elp.v2n2p239 abstract globally and in nigeria, marine fish stocks (mfs) are in a deplorable state and the consequences are unimaginable. having identified this as one of environmental causes of the world’s greatest challenges—how to feed more than 9 billion people by 2050—the united nations (un) general assembly adopted a resolution on transforming our world: the 2030 agenda for sustainable development (agenda), which contains, among others, goal 14 that specifically deals on how to conserve and sustainably use the ocean, seas and marine resources for sustainable development. how this goal will impact on the sustainability of mfs in nigeria is the burning issue for policy makers, fisheries managers and academics. this article argues that the implications of the agenda on the sustainability of mfs in nigeria depends on, first, the extent nigeria has integrated sustainable development into its marine fisheries law; second, the extent which goal 14 and its associated targets have addressed the causes of the deplorable state of nigeria’s mfs and, third, the extent nigerian marine fisheries law (nmfl) has implemented the targeted activities. the major findings of this article are (1) nmfl does not integrate sustainable development, (2) the agenda does not address all the factors causing the poor state of nigeria’s mfs, and (3) the level at which the nmfl has implemented the targeted activities under goal 14 is low. in order to achieve sustainability of nigeria’s mfs, this article recommends, among others, the enactment of a new nmfl that integrates sustainable development and contemporary conservation, management and compliance measures recommended or prescribed in the agenda and other un instruments on marine fisheries. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 240 published by scholink inc. keywords agenda 2030, sustainable development, sustainability, marine fishery resources 1. introduction the state of world fisheries and aquaculture 2018 reveals that the share of assessed marine fish stocks (mfs) within biologically sustainable levels declined from 90 percent in 1974 to 66.6 percent in 2015 (note 1). in nigeria, the state of mfs is analogous to the global level. the landing of inshore fisheries declined from 25,592 tonnes in 1992 to 19,736 tonnes in 2011. interestingly, a sudden increase of 27,977; 37,652 and 29,237 tonnes in the landing of inshore waters fishing vessels was reported in 2012, 2013 and 2014 respectively, but the landing crashed again to a historic low level of 10,727 in 2015 (note 2). the total shrimp landing declined to 5,995 tonnes in 2007 from 15,249 tonnes in 1999. from 2008, the federal department of fisheries and aquaculture (fdfa) reported a continuous increase of inshore waters shrimping vessels landing up to 22,219 tonnes in 2013. in 2014, the landings of inshore waters shrimping vessels declined to 20,715 and, in 2015, it crashed to 4737 tonnes (note 3). the annual fish catch from offshore waters (50 m and above), which stood at 4,400 tonnes in 1992, crashed to 882 tonnes in 2006. offshore landings are unstable but generally contracting. in 2007 and 2008 a sharp increase in offshore fish landings of 2158 and 1520 tonnes respectively were reported, but between 2009 and 2015 no offshore fishing activities was reported (note 4). the deplorable state of mfs has serious environmental and socio-economic consequences. on the environmental side, the tendency to fish down on the food chain and target smaller and juvenile fish may affect predator-prey relationship, genetic diversity of fish stocks and the future regenerative capacity of the fishery. this is evidenced in the shift of focus of industrial trawlers from fishing to shrimping. between 1999 and 2007 less than one fifth of the registered trawlers where engaged in fishing finfish (note 5) and by 2015 the ratio of registered fishing vessels to shrimping vessels fell to the lowest level of 11.11% (note 6). decrease in the total number of registered fishing vessels from 206 in 2008 to 135 in 2015 led to decline in revenue of the federal government from registration of fishing vessels from n25, 480,000.00 in 2008 to n16, 200,000.00 in 2015 (note 7). this also led to loss of jobs in the sector thereby exacerbating the problem of unemployment in the country. other socio-economic consequences are decline in the income of marine fishers and escalating prices of fish and fishery products (note 8), leading the fao to identify nigeria as one of the african countries where per capita fish consumption has remained static or decreased (note 9). regrettably, because nigeria does not have immediate substitutes for fish contribution to animal protein intake of its population (note 10), the poor masses are likely to suffer from hunger, malnourishment, disease and death (note 11). the situation will definitely escalate with nigeria’s population projected to increase to 201 million by the end of 2019 (note 12). fish food insecurity will further threaten nigeria’s security and peace (note 13) because marine fishers who lost their jobs may take to violent crimes like piracy, vandalisation of oil pipelines, terrorism or be recruited into extremist groups. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 241 published by scholink inc. having identified the poor state of marine fishery resources as one of environmental causes of the world’s greatest challenges—how to feed more than 9 billion people by 2050—the united nations general assembly made unprecedented commitments on 27 september 2015 by adopting a resolution on transforming our world: the 2030 agenda for sustainable development (note 14). the agenda came into effect on 1 january 2016 and it is expected to end on 31 december 2030. the 17 sustainable development goals and 169 targeted activities listed in the agenda are integrated, interrelated and indivisible and call for integrated solutions, which will ensure sustainable development in economic, social and environmental terms (note 15). goal 14 is on how to conserve and sustainably use the ocean, seas and marine resources for sustainable development. the implementation of the agenda is through global partnership which aims at bringing together governments, private sector, civil society, the united nations system and other actors, as well as mobilise all available resources. actions taken at the regional and global levels to implement the agenda depend on the willingness of individual states because as slaughter and burke-white rightly observed majority of the global problems, including the marine fisheries crises, have domestic root (note 16). theoretically, under such a situation sovereignty triumphs because the success of the agenda will depend on the actions taken at the national level. this article argues that how the agenda will impact on sustainability of nigeria’s mfs depends on, first, the extent nigeria has integrated sustainable development into the conservation and management of its mfs. it also depends on the extent which the agenda has addressed the causes of the deplorable state of nigeria’s marine fishery resources and how far the nigerian marine fisheries law (nmfl) (note 17) has implemented the targeted activities recommended under goal 14 of the agenda. it is pertinent to mention from the outset that the first segment of the argument is limited to analysis of the national environmental standards and regulations enforcement agency (establishment) act 2007 no. 25 (note 18), which is the statutory threshold on environmental governance in nigeria, and the nmfl. the next part of this article provides the conceptual clarifications of the basic terms and from where the core elements of sustainable development are later drawn. part three examines the causes of the deplorable state of mfs in nigeria while part four analyse the legal framework on conservation and management of mfs. part five substantiates the claim that the nmfl does not integrate sustainable development elements, particularly sustainable use of natural resources, precautionary approach and ecosystem approach. part six examines the targeted activities under goal 14 and how far the nmfl has implemented them before ending by identifying some of the factors contributing to the deplorable state of mfs in nigeria, which the agenda did not address. in order to ensure that the targeted activities under goal 14 contribute to the sustainability of mfs in nigeria, the concluding part of this article recommends, among others, the enactment of a new nmfl that integrates the core elements of sustainable development and the contemporary conservation, management and compliance measures recommended or prescribed in the agenda and other un instruments on marine fisheries. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 242 published by scholink inc. 2. conceptual clarifications in this article, the term mfs means marine finfish and shellfish. cetaceans are excluded. except where there is need for a clear distinction between fishing and shrimping vessels, the term fishing vessels refers to vessels engaged in fishing and shrimping. the definition of sustainable development is complex and unclear (note 19). its original conceptualisation is defined in our common future (otherwise known as the brundtland report) as: ... development that meets the needs of the present without compromising the ability of future generations to meet their own needs. the term contains within it two key concepts: the concepts of “needs”, in particular the essential needs of the world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organisation on the environment’s ability to meet present and future needs (note 20). according to magraw and hawke, the core elements of sustainable development are integration of economic development, social development and environmental protection, the needs of present and future generations must be taken into account (inter-generational equity), the needs of the world’s poor must receive priority, and abject poverty must be eliminated (intra-generational equity), the environment needs to be preserved at least to a significant degree (note 21), which other literature refer to as sustainable use and conservation of natural resources (note 22). most of the elements of sustainable development identified by magraw and hawke are also recognised by sands and others (note 23), and birnie, boyle and redgwell (note 24). the later authors added to their list the right to development, which reflects the concerns of developing countries that environmental protection should not outweigh their need for economic development (note 25). more importantly, birnie, boyle and redgwell emphasised cooperation between states, environmental impact assessment (eia), public participation in environmental decision making, and access to information as the procedural elements of sustainable development (note 26). these procedural elements are akin to some of magraw and hawke’s environmental protection tools, which facilitate implementation, legitimise decision making and improve the quality of sustainable development at national level (note 27). ellis identified precautionary approach as the most important among other elements of sustainable development (note 28), because sustainable development uses it to anticipate or/and minimise potentially serious or irreversible risk for development (note 29). finally, from the decades-long process of elaboration of the foundations for sustainable development has emerged ecosystem approach to environmental management (note 30). the word “sustainability” also lacks precise meaning. it has been used in relation with social, economic, ecological, spatial, territorial, cultural, national and international policy (note 31). in the ecological sense, the concept refers to the existence of the ecological conditions necessary to support human life at a specific level of wellness through future generations (note 32). as a matter of fact, simone and others noted that there are literatures where sustainable development is seen as the way to achieve www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 243 published by scholink inc. sustainability, that is, sustainability is the ultimate long-term goal of sustainable development. whereas, in other literature, sustainable development is seen as the goal to be achieved and sustainability is the process to achieve sustainable development (note 33). in this article, sustainable development and sustainability are treated as synonyms because both aim to pass on to future generations a stock of capital that is at least as large as our own generation has inherited from previous generations. concomitantly, they are about collective choices and values (note 34). 3. causes of the deplorable state of nigeria’s mfs 3.1 natural factors the major natural factors include the existence in the centre and south of the gulf of guinea of a permanent thermocline, which prevents enrichment of the surface water with nutrients of deep-sea origin (upwelling) (note 35) and nigeria’s relatively narrow continental shelf, which extends for about 15 km in the western area and ranges from 60-80 km in the eastern area. the former reduces the availability of food for pelagic fish species (note 36) while the later limits the trawlable area to 3,200 nm2 (27.90%) out of the 11,470 nm2 that nigeria is blessed with (note 37). lastly, the low-lying nature of nigeria’s coast makes it susceptible to storm surges and inundation of the coastal mangrove and wetlands, which destroy rare and fragile habitats used for spawning and nursery by marine fish (note 38). 3.2 human factors the human factors are overfishing, environmental activities and climate change. the magnitude of climate change problem makes it imperative to examine it separately from other environmental activities. 3.2.1 overfishing overfishing (note 39) of mfs is caused by increasing demand for fish due to increasing nigeria’s pollution. 1n 2015, the estimated nigeria’s population based on the national bureau of statistics was 187.3 million while the country’s fish demand based on the fao’s per caput of 17.5 in 2015 was 3.28 million metric tonnes (m. mt) (note 40). meanwhile, the domestic fish production from all nigerian fisheries was 1.027 m. mt. (note 41). the difference of about 2.25m mt was met by export and increasing the pressure on marine and inland fisheries. inextricably linked to population problem is an increased number of poverty costal dwellers. concentration of development along the coastal zone has resulted in the location of 25% of the country’s population in the eight coastal states (note 42). consequently, more low-income earners are directly or indirectly moving into the fishing industry, thus increasing the pressure on mfs. technology has revolutionised fishing operations in nigeria. industrial trawlers use mostly echo sounder and fish finder during fishing or shrimping. as archaic as these technologies are, they enhance trawlers fishing ability and so contribute to overfishing. sadly, the fdfa neither has any sophisticated patrol vessel nor vessel monitoring system (vms) satellite station for the purpose of monitoring, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 244 published by scholink inc. control and surveillance of fishing vessels. even if the fdfa is able to acquire or cooperate with other countries in this regard, poor electricity supply in the country will force the station to operate below optimal capacity. failure of nigeria to effectively monitor and enforce conservation measures in its vast and turbulent waters of exclusive economic zone (eez) encourages illegal, unreported and unregulated fishing (iuu fishing) in the area by foreign and nigerian fishing vessels (note 43). the situation could be really bad since foreign fishing vessels can “go dark” in the area by turning off their automatic identification system broadcast from the public maritime tracking systems in order to hid their location and identity when involved in iuu fishing (note 44). over-capitalisation expressed in the rhetoric “too many boats chasing too few fish” is another major factor causing overfishing of mfs. from 1995 to 2011, the total number of registered vessels that actually operated in the nigeria’s marine fisheries sector was far above the recommended maximum fleet of 150 vessels (note 45). from 2012 to 2015, the number of total licensed fishing and shrimps vessels dropped marginally to 143, 136, 143 and 135 vessels (note 46). the sector is seriously overcapitalised since the recommended maximum fleet of 150 vessels was fixed more than four decades ago when the stocks biomass were healthy and more vessels were involved in fishing than shrimping; thereby reducing the negative impacts of fishing on the marine ecosystem. inseparably connected with over-capitalisation of the sector is a shift in focus by industrial trawlers from fishing to shrimping. no doubt, the federal government’s policies such as the devaluation of the naira, banning export of all finfish caught in nigerian marine waters and providing export incentives for the non-oil sector, which include shrimps, further motivate industrial fishermen to shift their focus to shrimp in order to earn foreign exchange (note 47). deep-sea bottom trawling for shrimps constitutes the major unselective and non-environmentally safe way of fishing. it uproots and pulverises the marine ecosystem (note 48). the smaller cod-end mesh size used for shrimping leads to a higher rate of juvenile fish being caught incidentally as by catch and fish mortality. the multiplier effect of these is the emergence of a lucrative sea market for trash juvenile fish of less than the 14 cm known in the nigerian fishing industry as yamayama. the market for yamayama is the major reason small size nets are sometimes used by industrial trawlers (note 49). overfishing of mfs is also caused by the traditional open-access fishery system the sector is operating. the system allows fishing and shrimping throughout the year subject mainly to license, gear and fish size restriction. unfortunately, there is no serious collaboration between the fdfa and the nigerian institute for oceanography and marine research (niomr) or any international research organisation to determine the biomass, the total allowable catch and the msy for each fish species. due to unavailability of systematic and exhaustive stock assessment (note 50), current assessment of the state of mfs is based on distorted data provided by fishers, who hardly report correctly their catch, discard and illegal fishing (note 51). other factors which contribute to overfishing of mfs are lack of funds and shortage of competent and experienced manpower by the fdfa (note 52); foreign direct investment when translated into fishing www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 245 published by scholink inc. vessels in an already over-capitalised fishery; concentration of fishing and shrimping activities along the west inshore waters due to frequency of piracy and militancy activities along the niger delta inshore waters (note 53), and unregulated nature of artisanal fishing due to lack of enforcement of the inland fisheries act by the states. 3.2.2 environmental activities marine pollution from industrial waste, raw and untreated domestic sewage, run-off of fertilisers, pesticides, plastic, sand mining, and oil spills, which constitute the major source of marine pollution, constitutes serious threat to marine fish populations (note 54). for instance, between 2005 and 2014 pipeline products loss was 2,958.730 metric tonnes and from 2012 to 2014 pipeline crude oil loss was 7,139,556 barrels (note 55). bulk of the incidents, which occurred in the coastal and marine areas, directly killed marine fishes and destroyed rare and fragile habitats for their spawning and nursery. coastal development such as the establishment of lekki, aja, victoria garden city, banana island and eko atlantic in lagos, and eagle island in port harcourt, which aim at providing basic infrastructures for the 25% of the country’s population that are located in the eight coastal states has similar negative consequences (note 56). 3.2.3 climate change the most basic way that climate change affects fish is through warming of the oceans (note 57). fish species are ectothermic (cold blooded) and are affected by the slightest change in ocean temperature (note 58). the sea surface temperature of the atlantic ocean at victoria island, lagos, between 1990 and 2012 recorded the lowest annual temperature of 26.65˚c in 2000, the highest annual temperature of 29.21˚c in 1995 and an annual average of temperature of 28.33˚c for the twenty-three years of temperature recording (note 59). this temperature range is above the thermal limits of some commercially important inshore and offshore species (note 60). while the permanent thermocline impact is not contestable, the stability of warm surface layer in the region limits upwelling (note 61). although there could be few nigerian marine fish species that may respond positively to increasing ocean temperature (note 62), the extinction of even one fish species due to ocean warming can cause unimaginable consequences, especially in the area of predator-prey relationships. 4. regulation of mfs in nigerian 4.1 nesrea act section 4(2) and (3) of the 1999 constitution as well as item 29 on the exclusive legislative list, part 1 of the second schedule to the constitution give the federal government power to legislate on marine fisheries in the nigeria territorial waters and the eez (note 63). the nesrea act does not prescribe specific measures for the conservation and management of marine fisheries, but it has an overarching effect on all aspects of nigeria’s environment. for instance, the nesrea act states its objective as the protection and development of the environment, biodiversity conservation and sustainable development of nigeria’s natural resources in general (note 64). the agency established under section 1 of the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 246 published by scholink inc. nesrea act has, among others, the responsibility to prevent, reduce or eliminate all forms of environmental degradation in seas and oceanic area, as well as restore and enhance marine environment and its resources (note 65). the nesrea act only recognises ecosystem approach, environmental education and environmental compliance monitoring as the environmental protection tools that are to be used for the attainment of sustainable development of natural resources (note 66). the national environmental (coastal and marine area protection) regulations 2011 (note 67) made pursuant to section 34 of the nesrea act contain broad provisions on conservation of fish and aquatic ecosystems. its objectives include sustainable use and protection, preservation and conservation of coastal and marine area resources, including fish (note 68). the principles guiding implementation of the regulations include sustainable utilisation of coastal and marine fisheries, environmental impact assessment, inter-generational equity, ecosystem approach, access of information, participation of all stakeholders in decision making, precautionary principle, polluter pays principle and cooperation between statutory international and national coastal and marine management bodies in the spirit of partnership in the areas of information sharing and conservation, protection and rehabilitation of coastal and marine environment (note 69). the cmap regulations mandate the agency to collaborate with littoral states to prepare coastal area management plans (note 70), which will ensure the sustainability of critical coastal ecosystems that serve as spawning and nursery habitats for marine fisheries. 4.2 nmfl the nmfl prescribes the conservation and management measures (cmms) applicable in the marine fisheries sector. every motor fishing boat must be registered and licensed for either trawling for fish or shrimp before commencement of operation (note 71). no limit is set on the number of vessels that can be licensed for each year or the ratio of fishing to shrimping vessels. the minister of agriculture and rural development (mard), who is the licensing officer, has wide discretionary power to decide what conditions may be attached to the licence (note 72). fishing vessel that are intended to be used for fishing or shrimp trawling shall not exceed, in the case of a fishing vessel, 25.3 meters in dimension and 150 gross tonnage and, a shrimp trawler, 23.2 meters in dimension and 130 gross tonnage (note 73). these measures do not apply to inshore fishing fleets that were in existence before the enactment of sfa during their lives span (note 74). in order to ensure compliance with these measures, all fishing vessels must be surveyed and their tonnage measured (note 75). section 2 of the fishing regulations prohibits trawlers from using cod-end with stretch mesh size of less than 76 mm (3 inches) when trawling for fish in the inshore waters or less than 44 mm (13/4 inches) when trawling for shrimps in areas approved for shrimp trawling. even where a topside charter is used to reduce wear and tear of the mesh (note 76), no opening on each mesh in any part of a trawl net shall be obstructed or diminished (note 77). shrimping vessels must install ted and brd to the cod-end of shrimp nets (note 78). lastly, no explosive substances or any noxious or poisonous matter shall be used for fishing or shrimping within the nigerian maritime waters (note 79). it is prohibited to catch, land, retain, sell, expose or offer for sale or be in possession for the purpose of sale of sea fish of any www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 247 published by scholink inc. description that is smaller in size than prescribed (note 80). the minimum catchable size for lobster and crab shall be 7 cm and 6 cm in length measured from the tip of the beak to the end of the flap of the tail when spread as flat as possible (note 81). no person shall keep on board either dead or alive or offer for sale any lobster or crab less than 7 cm or 6 cm, respectively (note 82). concerning finfish, the nigerian institute for oceanography and marine research may determine, before 31 january of every year, the minimum total length of fish catchable during the year, for each of the commercial species, taking into consideration the 5% retention length of the legal cod-end mesh (note 83), the demand and supply situation, and the health of fish species (note 84). all fish caught by motor fishing vessels in nigeria’s territorial waters and eez must be landed at a nigerian port, and no part of it may be exported or shipped away from nigeria at sea (note 85). fishing vessels licensed to fish either in the territorial waters, or the eez of nigeria shall not dump or discard edible and marketable sea products at sea (note 86). in order to avoid dumping of spoiled and contaminated edible and marketable sea products, the quality assurance regulations require industrial fishermen to adhere strictly to guidelines and standards on fishing vessel certification, fish handling, storage, preservation, processing, transportation and marketing, including export and import. as a way of further strengthening these provisions, the licensing officer shall issue a fishing licence only after he is satisfied that the fishing vessel is constructed and equipped to the standard that is fit for fishing. more so, no person shall be allowed to use a vessel for fishing or shrimping except the vessel is certified by fish inspectors to have met requirements of protection of catch, construction of storage areas, preservation of catch, freezing facilities and practices etc. prescribed in the first schedule of the inspection and quality assurance regulations (note 87). there shall be no fishing activity by any motor fishing boat within the first five nautical miles of the waters of nigeria’s continental shelf (note 88) and trawling or pair trawling within this zone is prohibited (note 89). trawlers that are less than 20 gross tonnages are prohibited from trawling for shrimps within nigerian inshore waters (note 90). no motor boat is allowed to trawl for shrimping in waters shallower than 18 meters (note 91). in order to ensure compliance of industrial fishers with the prescribed cmms, the sfa makes violation of any of the cmms an offence, and prescribes sanctions, including fines, imprisonment, blacklisting of vessels captain, revocation of licence, forfeiture and confiscation of equipment used for commission of the offence. the procedure to enforce compliance with cmms includes boarding, inspection, arrest and use of judicial procedure (note 92). in practice, the mard has delegated his power to enforce compliance with the nmfl to the fdfa under his ministry. the mard is also empowered to authorise certain senior officers of the armed forces, police force, customs, and surveyor or examiner appointed under the merchant shipping act to enforce any the provision of sfa (note 93). from the above statutory analyses, one may rush to conclude that the nesrea act and the nmfl regimes regulate the marine fisheries sector. regrettably, notwithstanding the overarching nature of the nesrea act and the cmap regulations, it is difficult to import their full force into marine fisheries www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 248 published by scholink inc. management. obviously, the actual regulation of the marine fisheries is completely under the federal ministry of agriculture and rural development and the mard has the overriding power to enforce compliance with the nmfl. meanwhile, the agency, which has the power to implement and enforce the nesrea act and the cmap regulations, is under the supervision and control of the federal ministry of environment. to worsen the situation, there is no serious collaboration between the agency and the fdfa. does nmfl incorporate sustainable development and its elements? the substantive and procedural elements of sustainable development deduced from the literature reviewed under the conceptual clarification are: i. integration of development into environmental protection; ii. inter-generational equity; iii. intra-generational equity; iv. sustainable use and conservation of natural resources; v. right to development; vi. precautionary approach; vii. ecosystem approach; viii. polluter pays principle; and ix. common but differentiated responsibility. the procedural elements of sustainable development include: i. cooperation between states; ii. environmental impact assessment; iii. public participation; and iv. access to information. these elements of sustainable development underpin the principles entrenched in the rio declaration of 1992, which ushered in a new revolution into environmental management. in the context of marine fisheries management, the most important aspect of the new revolution is the call for jettisoning the reactive and single or community approach to fisheries management. this approach merely encouraged implementation of cmms on single specie or multi-species basis and after a particular or community of fish stocks had collapsed or become depleted. indeed, the uncertainty involved in marine fisheries management due to the interdependency of fish stocks, the interrelationship between the stocks and the aquatic environment as well as the insatiable human demand for fish protein provided the bases for emphasising sustainable use of fisheries resources, precautionary approach and ecosystem approach in marine fisheries management. the fundamental nature of sustainable use of marine fisheries is evidenced in its being expressed as the overarching objectives in the core binding (note 94) and soft (note 95) international fisheries instruments, which nigeria is a state party. the precautionary approach and ecosystem approach are expressed as principles in the fsa (note 96) and the fao code www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 249 published by scholink inc. (note 97). indeed, these three elements of sustainable development overwhelmed the united nations general assembly resolutions a/res/62/177 of 18 december 2007 on how to achieve sustainable fisheries (note 98) and a/res/66/288 of 27 july 2012 on the future we want (note 99). what do these elements of sustainable development entail and have they been integrated into nmfl are questions addressed in the next part? 5. sustainable use of marine fishery resources although “sustainable use” has emerged as a standard approach to exploitation of mfs (note 100), the term is not defined in the core hard or soft law international fisheries instrument (note 101). sustainable use means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations (note 102). the nmfl does not specifically provide for the sustainable use of marine fishery resources as one of the cmms. cmms such as prohibition of dumping and transhipment at sea and reducing by catch through the use of ted and brd prescribed in the nmfl predominantly promote optimum utilisation of mfs, which is the hub of the traditional cmms (note 103). unfortunately, the nmfl does not prescribe optimum utilisation of mfs. although biologically and economically, optimum utilisation means a level of utilisation less than full and maximum utilisation (note 104), its major weakness is taking into consideration only the present generation. no doubt, sustainable use of mfs recognises the need to ensure optimum utilisation of fish stocks, but they must be used in a manner that maintains their availability for present and future generations. indeed, sustainable use of mfs as envisaged within the context of sustainable development is not rooted in conservation of resources for conservation’s sake, but rather to ensure continue availability of mfs of good quality, and in such diversity and quantity as to meet the demand of present and future generations (note 105). the inter-generational equity element is the core point of divergence between sustainable use and optimum utilisation of mfs. the nmfl is completely lacking in this aspect. 6. precautionary approach precautionary approach requires that where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradations (note 106). its application prevents excessive stocks exploitation and degradation of their environment, as well as help restore depleted stocks (note 107). it negates the traditional “permissive principle” of environmental law, which was based on the assimilative capacity of the environment (note 108). it is based on new set of assumptions including impact assessments conducted prior to undertaking environmental activity (note 109) and predetermined stock-specific reference points which must not be exceeded (note 110). a precautionary reference point is an estimated value derived through an agreed scientific procedure which corresponds to the state of the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 250 published by scholink inc. resource and of the fisheries, and which can be used as a guide for fisheries management (note 111). where reference points are exceeded, states must take appropriate actions immediately to implement already pre-determined cmms that will restore the stocks (note 112). regrettably, the nmfl is completely mute as far as precautionary approach is concerned (note 113). certainly, any marine fisheries regime which does not integrate precautionary reference points even on a provisional basis; fails to set the total allowable catch (tac) for each fish species and the fishing capacity of the sector is not based on scientifically established biomass of the stocks; where fishing is done all year round; and where there is dearth of real time data on the impact of fishing on the stocks and the marine ecosystem is not operating based on the precautionary approach. 7. ecosystem-based approach an ecosystem approach is one of the ways ecologists address environmental problems. individual, population, species and community are the other ways (note 114). ecosystem is more inclusive than others (note 115). it encompasses a community or series of communities (both fish and non-fish species) and the abiotic environment in which they interact. it includes human activities which have altered the interrelationship among other components of the ecosystem in unprecedented ways (note 116). but its hallmark lies in the interaction between aquatic, atmospheric and terrestrial ecosystems. according to the fao, an ecosystem approach to fisheries management strive to balance diverse societal objectives, by taking into account the knowledge and uncertainties about biotic, abiotic and human components of ecosystems and their interactions within ecologically meaningful boundaries (note 117). the tendency is to argue that restriction on the mesh size that fishing and shrimp vessels are allowed to use, setting aside of non-trawling zone of first five nautical miles from the coast, and mandatory use of ted and brd by shrimp vessels amount to either an obligation to apply an ecosystem approach in fisheries management (note 118) or take into account the general issues of such an approach. undoubtedly, ecosystem approach cannot be achieved in a fisheries system that promotes mainly shrimping and allows pair-trawling outside five nautical miles of nigeria’s territorial waters considering their destructive effects on the marine ecosystem. also, addressing marine fisheries problems from a population context (note 119) is not too different from applying a single-species approach, which focuses on specific species. at best, the present cmms prescribed in the nmfl are akin to a community approach of fisheries management (note 120). such measures ignore the interaction between oceans, atmosphere, and terrestrial ecosystems and the effects of human activities on components of the ecosystem. unfortunately, there is no specific provisions in the nmfl mandating the fdfa to undertake marine research on any area of fisheries, including the impact of increasing surface temperature of the atlantic ocean at victoria island on mfs or how fishing activities contribute to climate change and pollution of the ocean environment. niomr that is charged with such responsibilities does not have long-term primary data, adequate research facilities and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 251 published by scholink inc. experts to discharge its responsibilities. 8. associate targets of goal 14 and the deplorable state of mfs? goal 14 of the agenda itemises targeted activities that will enable states to conserve and sustainably use the oceans, seas and marine resources for sustainable development. the targeted activities are the factors responsible for the unsustainability of marine fisheries, which need to be addressed. majority of the targeted activities have time limits while the achievement of others is left open, presumably to be achieved on or before the 2030 deadline set for the achievement of the agenda as a whole. interestingly, the agenda adopts a holistic approach in solving the marine fisheries crisis by addressing fishing and non-fishing issues, which are inextricably interconnected with sustainability of mfs. the agenda sets one time limit and one open targeted activities that do not directly deal on conservation and sustainable use of mfs, but are extremely important as far as the sustainable development of mfs is concerned. the targeted activities are: (i) prevention of all kinds of marine pollution by 2025 (note 121), (ii) minimise and address the impacts of ocean acidification (note 122). the agenda urges states to address all types of marine pollution by 2025. it goes further to be more specific and in doing so by placing emphasis on land-based activities, including marine debris and nutrient pollution. definitely, land sources of marine pollution, especially synthetic organic compound used (polychlorinated biphenyl (pcb)) in making plastic negatively affect fish (note 123) and the aquatic environment, but data on pipeline product loss and pipeline crude oil loss already referred to in this article reveals that, presently, the major source of marine pollution in nigeria is oil spills (note 124). indeed, one can hardly imagine the magnitude of damage done to fish biomass and the aquatic environment as a result of millions of barrels of pipeline products and crude oil losses that occurred in the coastal and marine environment (note 125), which have not been accounted for or captured in the nppc data. the emission of excess greenhouse gases (ghgs) into the atmosphere through gas flaring (note 126) and other sources is another major source of pollution of the marine environment because the oceans acts as a sink by absorbing excess carbon dioxide and more than 90% of the energy stored in the climate system (note 127). the resultant rise in sea temperature and sea level constitute serious harm to marine fisheries and impair the quality of the aquatic environment (note 128). a silent menace which regulators and managers of marine fisheries seem to ignore is the sea surface temperature range at victoria island, which is above the thermal limits of some mfs (note 129). scientific evidence abound showing that increase in the ocean temperature do cause changes in distribution and migratory pattern of mfs (note 130). such changes can render ineffective, if not completely useless, ccms adopted by nigeria (note 131). unfortunately, except for prohibition of the use of noxious or poisonous matter in fishing or shrimping, the nmfl is silent on marine pollution (note 132). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 252 published by scholink inc. the agenda focuses on ocean acidification because of the global concern on the direct impact of increasing ocean ph on shellfish and coral reefs (note 133). no doubt, considering the global nature of ocean acidification, nigeria’s shrimps and coral reefs will be affected negatively. regrettably, neither the fdfa nor niomr has established the specific acidification tolerant limits of nigeria’s shrimps and coral reefs. the nmfl does not prescribe any ccm aimed at reducing the emission of ghgs from marine fisheries sector. certainly, minimising and addressing the impact of ocean acidification is necessary, but sustainable management of the critical coastal environment against the impact of global warming and how mfs react to increasing warming of those habitats should be the immediate concerns of all stakeholders in the marine fisheries sector. the agenda sets two time limit and one open targeted activities aimed at improving the health and of aquatic ecosystems thereby enhance the sustainability of mfs. they targeted activities are: (i) sustainable management of marine and coastal ecosystem by 2020 (note 134). (ii) conserve 10 per cent of coastal and marine areas as sanctuaries by 2020 (note 135). (iii) increase marine scientific research and transfer of marine technology (note 136). it is true that no habitat, no fish (note 137). hence, the agenda urges states to sustainably manage and protect coastal and marine ecosystems. achieving a healthy and productive ocean ecosystems requires protecting them against significant adverse impact, strengthening their resilience and safeguarding their restoration (note 138). definitely, cmms such as net size restriction, non-trawling zone within the first five nautical miles from the coast and use of ted and brd devices can enhance sustainable management of marine and coastal ecosystem, but these measures are poorly enforced by the fdfa. more so, allowing pair-trawling outside five nautical miles of nigeria’s territorial waters has significant adverse impact on the marine ecosystems. coastal development aimed at providing basic infrastructures for 25% of the country’s population that are located in the eight coastal states (note 139) has significant adverse impact on the coastal environment. the resilience and restoration ability of the coastal ecosystems are weakened on daily basis as government and private investors engaged in coastal development without serious consideration of their environmental impact especially on ecologically sensitive coastal habitats that serve as spawning and nursery ground for fish (note 140). obviously, massive location of aquaculture farms in the mangrove swamps has similar effects. because the focus of the federal and state governments is on providing basic infrastructure for the teeming coastal population as well as promoting aquaculture and marine fish production in order to meet the nation’s fish demand, conserving 10 per cent of the coastal and marine ecosystems as sanctuaries by 2020 is not the priority of the government. indeed, the nmfl does not prescribe creation of marine sanctuaries as one of the cmms (note 141). in order to improve ocean health and enhance the contribution of marine biodiversity to the development of developing countries, such as nigeria, the agenda urges states to increase their efforts on marine scientific research and ensure the transfer of marine technology taking into account the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 253 published by scholink inc. intergovernmental oceanographic commission (ioc) criteria and guidelines on the transfer of marine technology (cgtmt) (note 142). having a reliable and comprehensive database on marine fisheries and aquatic ecosystems will enable the fdfa to prescribe appropriate cmms that will boost fish landings, employment, income of marine fishers and the contribution of the sector to economic development of the country (note 143). under the nmfl, marine research should be driven by private investors who are required when applying for a fishing or shrimping licence to satisfy the mard that operating a fishing vessel is not likely to be prejudicial to sector’s interest as well as support such applications with a feasibility report on the proposed fishing venture. ordinarily, these conditions require private investors in the sector to show evidence of the state of the stocks and that a licence issued for the operation of a fishing vessel will not contribute to overfishing. meeting these obligations requires investment in marine research by the investors. unfortunately, these requirements are not enforced by the fdfa since niomr has the responsibility of conducting research on ocean and its resource. sadly, niomr only acquired a research vessel, r.v.bayagbona in 2014 and does not have sufficient funding and expertise to generate the relevant data (note 144), especially considering the complex and non-equilibrium nature of aquatic ecosystems. generating such data by niomr requires nigeria to seek cooperation with other countries and international organisations. hopefully, the ioc cgtmt will serve as a useful template for niomr to explore. the agenda sets three time limit targeted activities and two open targeted activities that will directly enable coastal and fishing states to enhance sustainable development of their mfs. one of the time limit targeted activity, which concerns only small-island developing states and least developed countries, is not elaborated here because nigeria is not classified as such (note 145). the other two targeted activities to be achieved in 2020 are: (i) effective regulation of harvesting and end overfishing, iuu fishing and destructive fishing practices as well as implement science-based management plans. (ii) prohibit fisheries subsidies which contribute to overcapacity and overfishing. eliminate subsidies that contribute to iuu fishing and refrain from introducing new such subsidies. with the exception of fisheries subsidies, which the federal government does not give to the marine fisheries sector, these factors contribute to the deplorable of state mfs in nigeria. the primary objective of implementing these measures is to restore fish stocks in the shortest time feasible, at least to levels that can produce msy as determined by their biological characteristics. the regulation of marine fisheries under the nmfl is based on open fishing system subject mainly to net size restriction and licencing of vessels, but without a clear understanding of biological characteristics of the fishery; data on fish species’ biomass are completely obsolete and the msy of stocks are not known; total allowable catch is not fixed for any of the species; and contemporary cmms are not applied. certainly, this type of fisheries is not operating on a science-based fisheries management plan that will restore fish stocks to levels that can produce msy. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 254 published by scholink inc. the question of effective regulation of harvesting and end of overfishing of mfs in nigeria is best addressed historically. the sfa was first promulgated in 1971 (note 146). it was repealed and substantially re-promulgated in 1992 (note 147) after nigeria had ratified the unclos on august 14, 1986. the primary aim of the new sfa was to vest in nigeria its fishing rights in the territorial sea and eez. meanwhile, the core cmms prescribed in the unclos (note 148), particularly those applicable in the eez since nigeria has territorial sovereignty in its territorial sea, were not implemented. meanwhile, after the unclos, international fisheries law has adopted cmms aimed at effective regulation of harvest and overfishing. it is therefore apt that the agenda called on nigeria, as a coastal and fishing state, to effectively regulate harvesting and overfishing of mfs. however, achieving these targeted activities requires nigeria enacting a new comprehensive marine fisheries law that incorporate sustainable development and contemporary cmms. as far as iuu fishing in the nigerian waters is concerned, evidence are abound that it is a common phenomenon. recently, it was reported that nigeria loses as much as $70,000.00 to iuu fishing by chinese fishing vessels (note 149). it can only be imagined what the loss would have been if the data had captured the iuu fishing activities of other countries and nigerian vessels. unfortunately, the fdfa does not have any patrol boat. despite the nigerian navy claiming it has arrested some chinese vessels involved in iuu fishing in nigerian waters (note 150), it is preoccupied with protecting oil and gas pipelines and other installations. besides, the absence of effective on-the-sea mcs of fishing vessels by the fdfa and the nigerian navy, many of the sanctions prescribed in the sfa and the ted/brd regulations 2006 are paltry and may not deter marine fishers from violating the nmfl (note 151). sanctions such as forfeiture, confiscation of boats, catch, nets and other apparatus employed or derived from the offence as well as cancellation, withdrawal or suspension of licence for the remaining part of the year for which the licence was issued are not effective because the probability of apprehending, and timely and successful prosecution of the culprits is low (note 152). worst still, nigeria has not signed or ratified the 2009 agreement on port state measures to prevent, deter and eliminate iuu fishing, which will enable it to target iuu fish principally at sea ports and implement other port state measures that are safe and cost-effective in preventing, deterring and eliminating iuu fishing than physical mcs of fishing vessels that are extremely prohibitive in remote and dangerous parts of outermost part of the eezs where iuu fishing takes place (note 153). lastly, the decision of the fdfa to jettison court prosecutions for administrative enforcement may be difficult to implement considering the court of appeal’s decision in nosdra v exxonmobil (note 154) that awarding a fine is a judicial act and it is the sole prerogative of a court of law under the 1999 constitution. no other organisations or bodies can usurp that power (note 155). with regards to curbing destructive fishing practices, through the assistance of the united states and the european union, the use of ted and brd technology was made compulsory for industrial trawlers involved in shrimping. the ted/brd regulations 2006 was made to ensure the enforcement of this www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 255 published by scholink inc. measure (note 156). however, other destructive fishing practices such as pair trawling within five nautical miles of nigeria’s territorial waters and the use of explosive, noxious or poisonous matter to catch fish, especially by artisanal marine fishers, persists in the sector (note 157). lastly, the agenda recommends two open targeted activities that will respectively enhance the sustainable development of small-scale marine fishers and compliance by nigeria with international fisheries law. the open targeted activities urge states to: (i) provide access for small-scale artisanal fishers to marine resources and markets, (ii) implement the conservation and sustainable use of mfs prescribed in unclos as recalled in paragraph 158 of “the future we want” (note 158). access for small-scale artisanal fishers to mfs is an integrated approach that can resolve the unbalance and unhealthy competition between artisanal fishers and industrial fishers. it creates a balance between economic factors and social sustainability, on the one hand, and biological and ecological sustainability, on the other hand. this measure is already implemented under the fishing regulation 2010 by the establishment of a non-trawling zone of five nautical miles from the coast where artisanal fishermen have exclusive fishing rights (note 159). the extent artisanal fishers enjoy this right is inextricably tied to the capability of the fdfa to perform its mcs functions, which is seriously lacking. the “framework” nature of unclos informed its state parties’ decision to make more specific rules concerning straddling and highly migratory species in the fish stock agreement. it is also the basis for the fao code and the 2009 agreement on port state measures. on nigeria’s implementation of cmms prescribed in the unclos, as recalled in paragraph 158 of the future we want, it is pertinent at least to identify the core measures in question. due to nigeria’s territorial sovereignty in her inland waters and territorial seas, the unclos only prescribes cmms that are applicable in the eez and the high seas. in the eez, where nigeria has sovereign rights for the purpose of conserving and managing fisheries resources (note 160), articles 61 and 62 of the unclos prescribes the following core cmms: i. total allowable catch. ii. maintain or restore fishery resources to levels that can produce maximum sustainable yield (msy). iii. ensure that populations of species associated with or dependent upon harvested species are maintained or restored above the level at which their reproduction may become seriously threatened. iv. promote the objective of optimum utilisation of the living resources. paragraph 158 of the future we want reiterates the importance of the unclos and goes further to recommend the following cmms, which constitute the substratum of the fish stock agreement and the fao code. i. sustainable use of marine fishery resources for present and future generations, and application of: www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 256 published by scholink inc. ii. ecosystem approach iii. precautionary approach certainly, the nmfl prohibits dumping and transhipment at sea by industrial trawlers (note 161). it also places restrictions on mesh size that can be used in fishing and shrimping (note 162) as well as mandates the use of ted/brd by shrimp vessel (note 163). these measures aim at reducing by catch, promote sustainable use and optimum utilisation of the mfs, and protect species associated with or dependent upon shrimps. no other cmms prescribed in the unclos or recommended in para 158 of the future we want has been specifically implemented in the nmfl. as a matter of fact, the cmms in para 158 of the future we want were first introduced into international fisheries law in the fsa and the fao code in 1995 (note 164). unfortunately, notwithstanding the fact that nigeria has adopted and ratified these instruments, neither the sfa nor any of its regulations have been amended or a new comprehensive marine fisheries law enacted to reflect the current development in conservation and management of marine fisheries. there is no doubt that the agenda has addressed the core factors responsible for the deplorable state of marine fisheries in nigeria. however, there are other factors, some of which are unique to nigeria, contributing to the deplorable state mfs that the agenda does not address. the factors are increasing population, traditional open-access fishing, shift in focus of industrial fisheries from finfish to shrimps, government policies particularly exchange rate and export incentive for exporters of shrimps, lack of funds and shortage of competent and experienced manpower by the fdfa; foreign direct investment in the form of fishing vessels in an already over-capitalised fishery; concentration of fishing and shrimping activities along the west inshore waters due to frequency of piracy and militant activities along the niger delta inshore waters, and non-enforcement of the inland fisheries act. failure to address these factors is the major weakness of the agenda, but the truth remains a global instrument addressing a global problem may not be able to reflect the peculiarity and dynamics of all countries as far as the problem is concerned. 9. conclusion certainly, the agenda reflects the global perspective on the major causes of the deplorable state of marine fishery resources and how best to address the problem. whether the agenda makes a positive difference in the achievement of sustainability of mfs in nigeria depends on the level of its implementation in nigeria, especially when some of its timelines are months away. although the agenda does not address some of the factors causing the deplorable state of mfs in nigeria, poor implementation is the most important factor hindering it from making significant contribution to the achievement of sustainability of mfs. obviously, the nmfl is completely obsolete and devoid of contemporary ccms and enforcement mechanism. if the agenda is to make any difference in the achievement of sustainability of mfs in nigeria, the nmfl must be repealed and a new comprehensive law on conservation and sustainable use of marine fisheries should be enacted. the new www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 257 published by scholink inc. nmfl must incorporate contemporary ccms that are rooted in the principles and elements of sustainable development. the enforcement mechanism in the new nmfl should include port state measures, sea food certification/labelling, and vessel monitoring system. lastly, private sectors stakeholders, who will constitute the major compliance targets, should be seriously engaged in the new marine fisheries law making and enforcement processes. references adeyemo, o. k. 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(1994). human development report 1994: new dimensions of human security. oxford university press. walker, g. k. (2005-2006). defining terms in the 1982 law of the sea convention iv: the last round of definitions proposed by the international law association (america branch) law of the sea committee (2005-2006). california western international law journal, 36(1), 13. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 261 published by scholink inc. notes note 1. food and agriculture organisation (fao), the state of world fisheries and aquaculture: understanding the sustainable development goals, (fao 2018) 40. hereinafter referred to sofia 2018. note 2. federal department of fisheries, fishery files, (federal department of fisheries 1992-1994); federal department of fisheries, fishery statistics of nigeria (4th ed., federal department of fisheries 1995-2007) 8; department of fisheries and aquaculture, fishery statistics of nigeria (5th edn, department of fisheries and aquaculture 2008-2015) 16. note 3. department of fisheries and aquaculture, fishery statistics of nigeria (5th ed., department of fisheries and aquaculture 2008-2015) 16. note 4. ibid. note 5. federal department of fisheries, fishery statistics of nigeria (4th ed., federal department of fisheries 1995-2007) 27. the ratio of shrimping vessels to actual fishing vessels 1999-187/31; 2000-177/39; 2001-184/34; 2002-212/30; 2003-204/48; 2004182/37; 2005-203/35; 2006-176/32; 2007-161/28. ibid. note 6. department of fisheries and aquaculture, fishery statistics of nigeria (5th ed., department of fisheries and aquaculture 2008-2015) 38 and 39. note 7. ibid. note 8. data published by the fdfa shows an increased in the prices of fish products in almost all the states of the federation. in 2008, the average prices of fresh, smoked and frozen fish in nigeria were n492.77, n915.32 and n292.07 respectively. by the year 2015, the average prices of fresh, smoked and frozen fish products had increased to n737.13, n1161.21 and n723.65 respectively. ibid 41-44. market survey in shoprite supermarkets in maryland, ikeja, victoria island and lekki areas of lagos shows that local consumers of shrimps pay as much as n6000.00 per kilo of shrimp. note 9. food and agriculture organisation (fao), the state of world fisheries and aquaculture: contributing to food security and nutrition for all (fao 2016) 71. note 10. edet ee and williams ab, “overview of the nigerian fisheries sector” a paper presented at the fao-eaf workshop, accra, ghana from 2326 october 2007, 3. note 11. hunter d, salzman j and zaelke d, international environmental law and policy (2nd ed., foundation press 2002) 674. note 12. worldometers, countries in the world by population (2019)<https://www.worldometers.info/world-population/population-by-country/> accessed 19th august 2019; united nations populations fund (unfpa) state of world population 2019, unfinished business: the pursuit of rights and choices for all (unfpa 2019) 161 <https://www.unfpa.org/sites/default/files/pub-pdf/unfpa_pub_2019_en_state_of_world_populati on.pdf> accessed 9 september 2019. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 262 published by scholink inc. note 13. united nations development program, human development report 1994: new dimensions of human security (oxford university press 1994) 1-3. note 14. united nations general assembly resolution a/res/70/1 of september 25, 2016. hereinafter referred to as the agenda or agenda 2030. note 15. see the third paragraph of the preamble and para 5 of the introduction to the agenda. for example, goal 12 on ensuring sustainable consumption and production patterns in para 2 urges states to strive by 2030 to achieve the sustainable management and efficient use of natural resources, which, of course, include mfs. note 16. slaughter a and burke-white w, “the future of international law is domestic (or, the european way of law)” 2006 47(2) harvard international law journal 327, 327-328. note 17. the nmfl is the totality of all the legislation dealing directly on exploitation, conservation and management of marine fishery resources. they are the sea fisheries act cap s4 laws of the federation of nigeria 2010 (sfa 2010) and its supplementary regulations: sea fisheries (licensing) regulations-(licensing regulation 2010), sea fisheries (fishing) regulations-(fishing regulation 2010), sea fisheries (fish inspection and quality assurance) regulations-(inspection and quality assurance regulation 2010) and use of turtle excluder devices (ted) and other by-catch reduction device (brd) on shrimp trawl nets regulations 2006-(ted/brd regulations 2006). where it is necessary these laws will be specifically referred to. note 18. cap n164 lfn 2010. hereinafter refer to as nesrea act or nesrea act 2007. note 19. okon ee, “the legal status of sustainable development in the nigerian environmental law” (2016) 7(2) journal of sustainable development law and policy 104-134; patricia birnie, alan boyle, and catherine redgwell, international law and the environment (3rd ed., oxford university press 2009) 54. note 20. the world commission on environment and development, our common future (oxford university press 1987) 43. note 21. magraw db and hawke ld, “sustainable development” in: daniel b, brunnée j and hey e (eds.) the oxford handbook of international environment law (oxford university press, 2007) 613-632, 619-620 and 637. note 22. sands p and others, principles of international environmental law (4th ed., cambridge university press 2018) 219, 222-225; birnie, boyle and redgwell (n 19) 119 note 23. sands p and others (n 22) 217-229. note 24. birnie, boyle and redgwell (n 19) 118-119. note 25. birnie, boyle and redgwell (n 19) 116-123 particularly 118-119. note 26. ibid 123. note 27. according to magraw and hawke, the environmental protection tools which have been used to support the attainment of sustainable development are corporate responsibility mechanisms, transparency, public participation and access to justice, impact assessment, education, monitoring and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 263 published by scholink inc. verification. magraw db and hawke ld (n 21) 633. note 28. ellis, j. “sustainable development as a legal principle: a rethorical analysis” (2008) in hélène ruiz fabri, rüdiger wolfrum and jana gogolin, eds., selected proceedings of the european society of international law, 2 (oxford, hart 2010) 642 the other elements identified by ellis are inter-generational equity, intra-generational equity, common but differentiated responsibility and the polluter pays principle. note 29. ene, charlotte, “the precautionary principle—key element of sustainable development” (2014) 6(2) knowledge horizons—economics 150. note 30. garcia, sm and cochrane, kl (2005) ecosystem approach to fisheries: a review of implementation guidelines (2005) 62(3) ices journal of marine science 311-318. note 31. simone, s and others, “sustainability and sustainable development: a taxonomy in the field of literature” (jan/mar 2014) 17(1) ambient soc., são paulo 1. note 32. tisdell, c. “sustainable development: differing perspectives of ecologists and economists, and relevance to ldcs” (1988) 16(3) world development 373. note 33. simone, s and others (n 31) 1 and 2. note 34. ibid 5. note 35. tobor jg, fish resources of coastal waters of the gulf of guinea: natural and man-made factors influencing their distribution, abundance and capacity for development and sustained exploitation. in: proceeding on the coastlines of western africa, coastal zone 93, the eight symposuim on coastal and ocean management. held in new orleans, louisiana, july 19-23 1993, 169 and 179. note 36. ibid. note 37. amire av, “monitoring, measurement and assessment of fishing capacity: the nigerian experience” in pascoe, s and gréboval, d (eds.) measuring capacity in fisheries, fao fisheries technical papers no. 445, (fao 2003) 143 and 144. note 38. okude as and ademiluyi ia, “coastal erosion phenomenon in nigeria: causes, control and implications” (2006) 1(1) world applied science journal 44, 47 and 49. note 39. overfishing occurs when so many fish are taken from a population such that the stock’s capacity to produce maximum sustainable yield (msy) on a continuous basis is diminished. ludicello s, weber m and wieland r, fish markets, and fishermen: the economics of overfishing (earthscan publications ltd 1999) 8. note 40. department of fisheries and aquaculture, fishery statistics of nigeria (5th ed., department of fisheries and aquaculture 2008-2015) 16. note 41. fisheries committee for the west central gulf of guinea, nigeria fisheries statistic—2016 summary report <http://www.fcwc-fish.org/fisheries/statistics/nigeria/901-nigeria-fishery-statistics-2016-summary-repo rt> accessed 20 october 2016. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 264 published by scholink inc. note 42. nigeria meteorological agency (nimet), year 2006 rainfall prediction and socio-economic implications for all states in nigeria, (nimet 2006) 41. note 43. oppenhiem aj, “the plight of the patagonian toothfish: lessons from the volga case” (2004) 30(1) brooklyn journal of international law 293, 302 and 305. note 44. automatic identification system (ais) is a tracking system that automatically transmits a vessel’s identity, speed and gps location. instances of fishing turning off their ais have been reported oceana. see lacey malarky and beth lowell (2018) avoiding detection: global case studies of possible ais avoidance, oceana, march 2018 1 <file:///c:/users/prof%20okon/downloads/http___usa.oceana.org_sites_default_files_ais_onoff_re port_final_5.pdf> accessed 12 september 2019. note 45. data from the federal department of fisheries shows the following numbers of vessels actually operated during the reviewed period: 1995 315, 1996 254, 1997 249, 1998 199, 1999 211, 2000 208, 2001 220, 2002 243, 2003 260, 2004 221, 2005 239, 2006 210, 2007 191, 2008 216, 2009 177, 2010 156, 2011 154, 2012 143, 2013 136, 2014 143 and 2015 135) federal department of fisheries, marine fisheries files (2007); federal department of fisheries, marine fisheries files (2017); see generally ezenwa, bi and ebonwu, b, propagation and culture of marine shrimp, peneaus notialis and new entrant in nigeria coastal waters, peneaus monodon’ (2002) 2002 annual report, nigerian institute for oceanography and marine research, lagos, 22. note 46. department of fisheries and aquaculture, fishery statistics of nigeria (5th ed., department of fisheries and aquaculture 2008-2015) 39. note 47. see generally the export (incentive and miscellaneous provisions) act lfn 2010. note 48. mullen, t “the convention on biological diversity and high-seas bottom trawling: the means to an end” (2007) 14 university of baltimore journal of environmental law 135, 136. note 49. the standard sorting system for fishes caught in nigeria’s marine waters policy which took effect from may 1, 2006 approved 14 cm as the minimum size for grading of fishes in nigeria. see re: standard sorting system for fishes caught in nigeria’s marine waters, fdm/c/l/24/s.4/i/193 of february 27, 2006. note 50. department of fisheries and aquaculture, fishery statistics of nigeria (5th ed., department of fisheries and aquaculture 2008-2015) 50. note 51. louka, e., international environmental law: fairness, effectiveness, and world order (cambridge university press 2006) 245. note 52. edet, ee and williams, ab “overview of the nigerian fisheries sector” a paper presented at the fao-eaf workshop, accra, ghana. 2326 october, 2007 1, 18. note 53. from 2003 to 2008 the number of reported pirate incidents on fishing vessels was 4, 11, 34, 57, 55 and 72 respectively. connors, w “pirates terrorised nigeria’s fishing fleet” (2008) international herald tribune, <http://www.nytimes.com/2008/06/12/world/africa/12lagos.html> (accessed november 1, 2016). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 265 published by scholink inc. note 54. adeyemo, ok “consequences of pollution and degradation of nigerian aquatic environment on fisheries resources” (2003) 23(4) the environmentalist 297; isebor, ce “national report marine biodiversity in nigeria—the known and the unknown” proceedings of the sub-saharan african marine biodiversity. held in cape town, south africa. 23-26 september, 2003 46, 58-59. note 55. nigerian national petroleum corporation, 2014 annual statistical bulletin (nigerian national petroleum corporation 2014) tables 25 and 28, 45 <https://www.nnpcgroup.com/nnpcdocuments/annual%20statistics%20bulletin%e2%80%8b/2014 %20asb%202nd%20edition.pdf> accessed 9 september 2019. note 56. nigeria meteorological agency (nimet), year 2006 rainfall prediction and socio-economic implications for all states in nigeria, (nimet 2006) 41. note 57. more than 60% of the net energy increase in the climate system is stored in the upper ocean (0-700 m) during the relatively well-sampled 40-year period from 1971 to 2010, and about 30% is stored in the ocean below 700 m. the increase in upper ocean heat content during this time period estimated from a linear trend is likely 17 [15 to 19] × 1022 lisa v. alexander, summary for policymakers. in: climate change 2013: the physical science basis. contribution of working group i to the fifth assessment report of the intergovernmental panel on climate change, stocker, tf and others (cambridge university press 2013) 8. note 58. ocean temperature affects all facets of fish lives including, spawning, egg development, growth, recruitment, distribution, abundance, predator-prey relationship, migration patterns and incidence of disease. mcfarlane, ga and others ‘climate variability and pacific sardine populations and fisheries. in: mcginn, n. a. (ed.) fisheries in a changing climate, american fisheries society symposium 32, proceedings of the sea grant symposium, fisheries in a changing climate, held at phoenix, arizona, usa, 20-21 august 2001 (american fisheries society, bethesda, 2002) 19, 210. note 59. data calculation from monthly mean sea surface temperature of the atlantic ocean at victoria island, lagos 1990-2012. nigerian meteorological agency. oshodi, lagos. note 60. for instance, pseudotolithus senegalensis (croakers) spawn from november to march in waters of 22 to 25oc; the water temperature preference of sardinella maderensis (sardine) is 24oc while penaeus notialis (shrimps) prefers 25oc. the distribution of sardinella fimbriata (bonga shad) corresponds to extreme northerly and southerly limits of the 25oc isotherms throughout the year. whitehead, pjp,fao species catalogue, 7 fao fish synop 125 (7/1): 1-303, in froese, r and pauly, d (eds.) fishbase 2000: concepts, designs and data sources (iclarm 1985) 344 <http://www.fishbase.org/summary/speciessummary.php?id=432> accessed 21 september 2019. note 61. tobor, jg (n 35) 179. note 62. for example, sardinella aurita prefers water with a minimum temperature below 24oc. whitehead, pjp (n 60) note 63. indeed, s 2(1) of the exclusive economic zone act cap e17 lfn 2010 vests in the federal government of nigeria the ownership and control of natural resources in the eez. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 266 published by scholink inc. note 64. nesrea act 2007, s 2. sustainable development lacks precise meaning. its original conceptualisation is defined in our common future (otherwise known as the brundtland report) as “...development that meets the needs of the present without compromising the ability of future generations to meet their own needs.the term contains within it two key concepts: the concepts of “needs,” in particular the essential needs of the world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organisation on the environment’s ability to meet present and future needs”. the world commission on environment and development, our common future (oxford university press 1987) 43; p birnie, a boyle and c redgwell, international law and the environment, (3rd ed., oxford university press 2009) 54; ee okon, “the environmental perspective in 1999 nigerian constitution” (2003) 5(4) environmental law review 256. note 65. nesrea act 2007, s 8(o). note 66. nesrea act 2007, s 7(e). note 67. hereinafter referred to as the cmap regulations 2011 or cmap regulations. note 68. cmap regulations 2011, reg 2 (i)(i). note 69. cmap regulations 2011, reg 3. note 70. cmap regulations 2011, reg 8(1) and (4). note 71. sfa 2010, s 1(1) and 3(1)(a); licensing regulations 2010, reg 1(1),. note 72. sfa 2010, s 4(2). note 73. licensing regulations 2010, reg 8 (a) and (b). note 74. licensing regulations 2010, reg 14. note 75. sfa 2010, s 4(1) and (2); licensing regulations 2010, reg 7(3). note 76. see generally fishing regulations 2010, reg 13. note 77. fishing regulations 2010, reg 13(1). note 78. ted/brd regulations 2006, reg 1. note 79. sfa 2010, s 10(1)(a) and (b). note 80. fishing regulations 2010, reg 11. note 81. fishing regulations 2010, reg 12. note 82. fishing regulations 2010, reg 19. note 83. fishing regulations 2010, reg 14(1)(a). note 84. fishing regulations 2010, reg 14(1)(b) and (c). note 85. fishing regulations 2010, reg 6. note 86. fishing regulations 2010, reg 4. note 87. inspection and quality assurance regulations 2010, reg 1. note 88. fishing regulations 2010, reg 1. note 89. fishing regulations 2010, reg 10(a). note 90. fishing regulations 2010, reg 10(b). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 267 published by scholink inc. note 91. fishing regulations 2010, reg 10(c). note 92. sfa 2010, ss 1(2), and 9-13. note 93. see specifically sfa 2010, s 9(6)(a-f). note 94. agreement for the implementation of the provisions of the united nations convention on the law of the sea of 10 december 1982 relating to the conservation and management of straddling and highly migratory fish stocks 1995 (fsa). see art 2. note 95. see articles 7.1.1 and 7.2.1 of the 1995 fao code of conduct for responsible fisheries (fao code); the future we want (particularly paragraph 158). note 96. for precautionary approach see articles 5(c) and 6 as well as annex ii of the fsa. for ecosystem approach see articles 5 (d) (e) and (g) and 7 of the fsa. note 97. for precautionary approach see articles 6.5 and 7.5 of the fao code. for ecosystem approach see articles 6.1, 6.2, 6.4, 6.6, 6.8, 7.2.2(d), 7.2.3 and 7.3.2 of the fao code. note 98. united nations general assembly resolutions a/res/62/177, [1] and [6]. note 99. the future we want specifically urge states to facilitate conservation and sustainable use of marine fisheries for present and future generations and effective application of ecosystem approach and precautionary approach in the management of marine fisheries. see specifically [158] 30. note 100. philippe sands and others (n 21) 222. note 101. this perspective is limited to the united nation convention on the law of the sea 1982, fsa and the fao code. note 102. convention on biological diversity 1992, art 2. note 103. fishing regulations 2010, regs 4 and 6; ted/brd regulations 2006, reg 1. unclos 1982, art 62(1) of the unclos mandates coastal states to promote the objective optimum utilisation of the living resources in their exclusive economic zones. note 104. walker gk, defining terms in the 1982 law of the sea convention iv: the last round of definitions proposed by the international law association (america branch) law of the sea committee (2005-2006) 36(1) california western international law journal 133, 180. note 105. rayfuse, r and wilder, m “nternational fisheries and sustainability: dealing with uncertainty” in borgese, em and others (eds.) ocean yearbook 14 (the university of chicago press (2000) 114, 116. note 106. see rio declaration on environment and development, june 14, 1992 reprinted in 31 i.l.m. 874, 879 (1992). note 107. gonzález-laxe, f “the precautionary principle in fisheries management” (2005) 29(6) marine policy 496, 497. note 108. mcintyre, o and mosedale, t “the precautionary principle as a norm of customary international law” (1997) 9(2) journal of environmental law 221, 222. note 109. tickner, ja and geiser, k “the precautionary principle stimulus for solutions and alternatives-based environmental policy” (2004) 24(7-8) environmental impact assessment review www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 268 published by scholink inc. 801. note 110. tickner, ja and geiser, k “the precautionary principle stimulus for solutions and alternatives-based environmental policy” (2004) 24(7-8) environmental impact assessment review 801; hilborn, r and others “the precautionary approach and risk management; can they increase the probability of successes in fisheries management?” (2001) 58 (1) canadian journal of fisheries and aquatic sciences 99; marr, s ‘the southern bluefin tuna cases: the precautionary approach and conservation and management of fish resources’ (2000) 11(4) european journal of international law 815; gullett, w “the precautionary principle in australia: policy, law and potential precautionary eias” (2000) 11(2) risk: health, safety and environment, 93; mcintyre, o and mosedale, t (n 106); fao, fao technical guidelines for precautionary approach to capture fisheries and species introduction (fao 1996); earll, rc “commonsense and the precautionary principle-an environmentalist’s perspective” (1992) 24(4) marine pollution bulletin 182. note 111. annex ii of the fsa 1995 [1] and [3]. note 112. see generally fsa 1995 art. 6(3)(b) fsa and annex ii of the fsa 1995 [5]; paulde bruyn, hailario murua and martìn aranda, the precautionary approach to fisheries management: how this is taken into account by tuna regional fisheries management organisations (rfmos) (2013) 38 marine policy 38. note 113. while the cmap regulations do not prescribe precautionary reference point for mfs, the nesrea act is also mute on precautionary approach. note 114. graham, ct and harrod, c “implications of climate change for the fishes of the british isles” (2009) 74(6) journal of fish biology 1143. note 115. for instance, a population is a group of individuals of the same species living in a given place while a community comprises populations of a number of different species living together. note 116. lubchenco, j “entering the century of the environment: a new social contract for science” (1998) 279 (5350) science 491492. note 117. food and agriculture organisation, the ecosystem approach to fisheries: fao technical guidelines for responsible fisheries no 4 suppl. 2 (fao 2003) 6. note 118. proponents of this argument also rely on the requirement that conservation measures shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. see schiffman, hs “ccamlr fisheries: challenges to effective conservation and management” (2009) 12(3) journal of international wildlife law & policy 180, 182 particularly n 15. note 119. a population is a group of species in the same geographical area. for example, finfish and shell fish in the marine environment. note 120. it takes into account multiple populations of different species in a given area and how they interact between different species, but not counting abiotic factors. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 269 published by scholink inc. note 121. agenda 2030, goal 14 [14.1]. marine pollution is the introduction by man, directly or indirectly of substances or energy into the marine environment including estuaries, which has or is likely to have a deleterious effects or hinder marine activities, including fishing or impairment of quality of the aquatic environment. unclos art 1(4); sands p (n 22) 466. note 122. agenda 2030, goal 14 [14.3]. ocean acidification is the ongoing decrease in the ph of the oceans. it is cause by the uptake of carbon dioxide (co2) from the atmosphere. since the beginning of the industrial era, oceanic uptake of co2 has resulted in acidification of the ocean; the ph of ocean surface water has decreased by 0.1 (high confidence), corresponding to a 26% increase in acidity, measured as hydrogen ion concentration. ipcc, climate change 2014 synthesis report: summary for policymakers (ipcc 2014) 4 <https://www.ipcc.ch/pdf/assessment-report/ar5/syr/ar5_syr_final_spm.pdf> accessed 9 september 2019. note 123. this compound reduces the growth rate of phytoplankton, the prime fish-food and are the major contaminants of mfs. qiqing chen and others, “quantitative investigation of the mechanism of microplastic and manoplastic toward zebrafish larvae locomotor activity” (2017) 584-585 marine pollution bulletin 99; daniela de a mirand and gustavo freire de carvalho-souza, “are we eating plastic-ingesting fish?” (2016) 103 marine pollution bulletin 109. note 124. nigerian national petroleum corporation, annual statistical bulletin 1999-2014 <https://www.nnpcgroup.com/public-relations/oil-and-gas-statistics/pages/annual-statistics-bulletin .aspx> accessed 10 september 2019. note 125. for data already referred to on pipeline product loss and pipeline crude oil loss see (n 55) 10. note 126. no doubt, gas flaring in nigeria has reduced drastically from 60.11% in 1999, 42.54% in 2004, 27.72% in 2009, 18% in 2013 to 11.47% in 2014. nigerian national petroleum corporation, annual statistical bulletin from 1999 to 2014 <https://www.nnpcgroup.com/public-relations/oil-and-gas-statistics/pages/annual-statistics-bulletin .aspx> accessed 10 september 2019. note 127. rk pachauri and other, climate change 2014 synthesis report: summary for policymakers (ipcc 2014) 3. note 128. burns, wcg “potential causes of action for climate change damage in international fora: the law of the sea convention” (2006) 2(1) mcgill international journal of sustainable development law and policy 27, 38 and burns, wcg. “potential causes of action for climate change impacts under the united nations fish stocks agreement” (2006-2007) 7 sustainable development law & policy 34, 36. note 129. froese r and pauly d (eds.) n 10, 10 and 11. note 130. g huse and i ellinggsen, “capelin migrations and climate change – a modelling analysis” (2008) 87(1-2) climate change 177, 178 and 185; eh sissener and t bjorndal, “climate change and the migratory pattern for norwegian spring-spawning herring – implications for management” (2005) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 270 published by scholink inc. 29(5) marine policy 299. note 131. ibid; emmanuel e. okon, achieving sustainability of nigeria’s marine fisheries resources in the era of climate change: lessons from the fraser river sockeye case (2018) 2(1) obefemi awolowo university law journal 17-40. note 132. sfa 2010, s 10(1)(a) and (b). note 133. the level of ocean acidification due to increasing co2 concentrations associated with global warming of 1.5°c is projected to amplify the adverse effects of warming, and even further at 2°c, impacting the growth, development, calcification, survival, and thus abundance of a broad range of species, for example, from algae to fish. valérie masson-delmotte and others, global warming if 1.5oc; an ipcc special report on the impacts of global warming of 1.5oc above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty. summary for policymakers (ipcc 2018) 11; cooper, tf and others, declining coral calcification in massive porites in two nearshore regions of the northern great barrier reef (2008) 14(3) global change biology 529. note 134. agenda 2030, goal 14 [14.2]. note 135. agenda 2030, goal 14 [14.5]. note 136. agenda 2030, goal 14 [14.a]. note 137. dj dankel, dw skagen and ø ulltang, “fisheries management in practice: review of 13 commercially important fish stocks” (2008) 18(2)reviews of fish biology and fisheries 201, 226. note 138. agenda 2030, goal 14 [14.2] note 139. nigeria meteorological agency (nimet), year 2006 rainfall prediction and socio-economic implications for all states in nigeria (nimet 2006) 41. note 140. meanwhile, reg 6(l) of the cmap regulations prohibits construction activities in areas close to breeding and spawning grounds of fish and other marine life. in fact, reg 10(3) of the cmap regulations specifically states that construction of beach resorts or hotel shall not be permitted in breeding and spawning grounds of fish. note 141. regulation 5(a)(i) of the cmap regulations lists sanctuaries among the areas under coastal regulation zone i (crz i) that are ecologically sensitive and important but fails to specifically create any sanctuary in the coastal and marine environment. note 142. criteria and guidelines on the transfer of marine technology (cgtmt) drawn up by the advisory body of experts on the law of the sea and adopted in 2003 at the xxii session of the assembly of the intergovernmental oceanographic commission. the guiding principle of the cgtmt is that the transfer of marine technology must always be conducted on fair and reasonable terms and conditions, and should enable all parties concerned to benefit on an equitable basis from developments in marine science related activities, particularly those aiming at stimulating the social and economic contexts in developing countries. the ioc cgtmt is a non-binding tool for potential suppliers and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 271 published by scholink inc. institution; essentially operational, project-oriented; complimentary to other mechanisms; and subject to periodic revision at the request of the ioc assembly. intergovernmental oceanographic commission of unesco, (ioc) criteria and guidelines on the transfer of marine technology<http://www.scor-int.org/scor_cb/cb-bremen/ioc_tech_transfer.pdf>accessed 10 september 2019. note 143. the areas which the database should cover include, but limited to the biomass of at least the commercial fish stocks, predator-prey relationship of the stocks, levels at which the stocks can produce msy, precautionary reference points that are stock-specific and takes into account the state of each stock, how marine fishing activities affect the aquatic ecosystems, the impact of land-based pollution and climate change on mfs, and the socio-economic characteristic of the fishers. note 144. sfa 2010, s 4(1)(d); licensing regulations 2010, regs 2(a) and 7(2)(c). note 145. para 14.7 of the agenda states that by 2030, there should be an increase economic benefits to small island developing states and least developed countries from the sustainable use of marine resources, including through sustainable management of fisheries, aquaculture and tourism. note 146. sea fisheries act decree no. 30 0f 1971. note 147. sea fisheries act decree no. 71 of 1992. note 148. see sfa 2010, ss 1 and 2. note 149. chiemelie ezeobi, “nigeria: how nigeria loses $70m to illegal fishing by chinese vessels” this day, 7 march 2018 <https://allafrica.com/stories/201803070060.html> accessed 10 october 2019. note 150. ibid. note 151. for instance, violation of the nmfl that have the highest sanctions are: fishing without registering or licencing the vessel attracts imprisonment of 5 years or a fine of n250,000.00 or both (sfa s.1(2)); using of explosive substance or any noxious or poisonous matter attracts 2 years imprisonment or a fine of n50,000.00 (sfa s. 10); and operating a shrimp trawl without a ted and a brd attached to its cod-end attracts a fine of n100,000 and confiscation of nets (ted/brd regulations 2006, regs 1 and 8(a);. non-compliance with other provisions or requirements of the sfa, condition(s) endorsed on a licence or breach of any regulation made under the sfa, which no penalty is prescribed shall attract a fine of n50,000.00 (sfa s. 11). note 152. sfa 2010, s 13. the specific examples are: fishing with expired licence attracts n50,000.00 fine and forfeiture of catch (sfa 2010, s. 5); making false statement for the purpose of procuring a licence attracts a fine of n50,000.00 (sfa 2010, s. 12); operating a shrimp trawl with an improperly rigged ted as specified under the regulation attracts a fine of n50,000 and confiscation of the net used (ted/brd regulations 2006, reg 8(d)); using a particular shrimp vessel twice to contravene section 1 of the regulation more than once shall have its licence withdrawn for the remaining part of the year for which the licence was issued (ted/brd regulations 2006, reg 8(d)); see general sfa 2010, s. 13 (1) and (2); ted/brd regulations 2006, regs 1 and 8. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 272 published by scholink inc. note 153. okon ee, “the changing nature of the rules on port state measures: implications for sustainability of marine fisheries resources in nigeria” (2012) 2 nials journal of environmental law 67, 75; aqorau, t “illegal fishing and fisheries law enforcement in small island developing states: the pacific islands experience” (2000) 15(1) the international journal of marine and coastal law 37, 42. note 154. nosdra v exxonmobil(2018) lpelr-44210 (ca). note 155. ibid, per adah jca [b-f] 10. relying on the supreme court of nigeria judgment in mfa v. inongha (2014) 4 nwlr (pt 1397) 343, 375 nwosu-iheme jca held that such administrative power will violate the principle of nemo judex in causa sua meaning no judge should preside over a matter in which he has personal interest or involvement. [e-c] 5-9. note 156. ted/brd regulations 2006, regs 1 and 8(a). note 157. the non-environmentally friendly way of fishing is prohibited under s 10 of the sfa 2010. note 158. united nations general assembly resolution a/res/66/288 on the future we want of 11 september 2012, [158] 30. note 159. fishing regulation 2010 reg 1. note 160. article 56 unclos; exclusive economic zone act 2010 s 2; sfa 2010 s 1. note 161. fishing regulation 2010, regs 4 and 6. note 162. fishing regulation 2010, reg 2. note 163. ted/brd regulations 2006, reg 1. note 164. the future we want in paragraph 169 urges states to implement the fsa and the fao code as well as the international plan of action and technical guidelines made pursuant to the fao code. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 5, no. 2, 2022 www.scholink.org/ojs/index.php/elp 69 original paper an analysis of the status of china’s digital economy and infrastructure li chunzhi 1 1 college of finance and economics, sichuan international studies university, chongqing, pr china received: november 10, 2022 accepted: november 30, 2022 online published: december 13, 2022 doi:10.22158/elp.v5n2p69 url: http://dx.doi.org/10.22158/elp.v5n2p69 abstract china’s digital economy, ranking second worldwide for many years, has become a major growth engine for the economy and promotes high-quality economic development. the increase of the digital economy size is driven by the industrial digitization and benefits from the construction of digital infrastructure. china leads the world in 5g, supercomputing, and navigation satellite system while also has the fastest-growing market of cloud computing service in the world. in the future, china should focus more on application of digital technology in production process instead of consumption process, narrowing the digital gap in different regions, and attaching importance to both the construction of hardware infrastructure and the development of underlying infrastructure technologies. keyword digital economy, digital infrastructure, digital technology 1. introduction digitization is one of chinese government’s key targets in the government’s 14th five year plan (fyp) released in early 2021, planning the development road for the period from 2021 to 2025. a large number of literatures focused on digital economy. the first branch literature explored the outcomes of digital economy indicating that the development of digital economy will bring vitality and resilience to the economy and prevent a potential crunch that could stifle growth (huo & wang, 2022; myovella et al., 2020; ozturk & ullah, 2022). related literature revealed that the usage of digital factor in the economy activities has positive impact on economy, social life and environment by improving firm performance (heredia et al., 2022), alleviating poverty (lechman & popowska, 2022), enrich social networks (yin et al., 2019), altering urban development patterns (zhu & chen, 2022) and reducing carbon emissions (cheng et al., 2023). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 70 published by scholink inc. on the other hand, digital economy benefits a lot from the construction of the digital infrastructure. these are the second branch literatures. for example, broadband expansion and construction of big data center make economic factors digitization possible thus promote the growth of digital economy (zhou, 2022; kolko, 2012). the third branch of researches studies the phenomenon of digital divide and digital dividend. these studies discussed the reasons, the negative influence of digital divide and positive effects of digital dividend on several aspects of social economic activities (liu et al., 2022; reddick et al., 2020). this study contributes to the literature in two ways. first, the study describes the status of chinese digital economy by collecting facts from the aspects of size, speed, components and spatial distribution. unlike the existing literature, the study aims to show the big picture of chinese digital economy development systematically. such research will improve the understanding of the digital economy in china and build foundation for empirical research investigating causal relationship. second, the study comprehensively investigates the digital infrastructure including hardware and software deviating from the existing researches focusing on a particular new digital infrastructure or technique. based on the analysis of supercomputing, 5g, navigation satellite system, big data center and cloud computing, the study concludes the characteristics of the development of digital infrastructure and proposed policy recommendation. 2. digital economy in china 2.1 evolution of chinese digital economy the concept of digital economy was first put forward by oecd in the 1990s. g20 referred to the digital economy as a series of economic activities with digital knowledge and information as key production factors, basing on modern information network and the information and communication technology (ict). china has the world’s second largest digital economy. in 2021, china’s digital economy reached a size of about 45.5 trillion-yuan, accounting for 39.8 percent of its gdp (note 1). the scale was only 2.6 trillion and accounting for 13.9 percent of gdp in 2005. figure 1 illustrates the market size of digital economy in china in selected years from 2005 to 2021. during this period, both the scale of digital economy and its proportion in gdp has recorded higher every year indicating the steady trend of digital economy development in china. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 71 published by scholink inc. figure 1. market size of the digital economy in china source: caict, http://www.caict.ac.cn/. in 2019, the nominal growth rate of digital economy is 15.6 percent, much higher than the nominal gdp growth at 7.85 percent. in 2021, china’s digital economy registering a nominal yearly growth rate of 16.2 percent, still higher than the nominal gdp growth at 3.4 percent. the surge of the digital economy was mainly driven by the integration of ict with traditional sectors (industrial digitization). figure 2 shows that the size of industrial digitization rise from 24.9 trillion-yuan in 2018 to 37.2 trillion-yuan in 2021, contributing about 80 percent of total digital economy in the period of 2018 to 2021. the overall size of digital sectors (digital industrialization) remains rather small and stable at around 7 trillion-yuan. http://www.caict.ac.cn/ www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 72 published by scholink inc. figure 2. industrial digitization and digital industrialization source: caict, http://www.caict.ac.cn/. the degree of digitization varies across three main industries. the service sector is the most digitalized, with ict contributing 37.8 percent of the sector’s value-added in 2019. the industrial sector is lagging, with ict contributing 19.5 percent, and the agriculture sector is the least digitalized, with 8.2 (note 2) percent in 2019. among the service sectors, subsectors with the highest level of ict are mostly in financial services. in the industrial sector, the advanced manufacturing sector is the most digitalized. according to the data in 2021, 55.7 percent of the key processes of industrial enterprises above designated size had become digitally controlled and the popularization rate of digital r&d tools reached 75.1 percent. thus, the rise of the size of digital economy was mainly driven by the industrial digitization rather than digital industrialization and more specifically, the business to consumer is more digitalized than the business related to producers. this indicating that improving the levels of digitization in terms of industrial sectors is crucial and promising. 2.2 the digital divide in china the degree of digitization varies across the country. china’s provincial digital economy has exhibited a spatial distribution pattern of “high in the eastern provinces/coastal regions and low in the western and central provinces”. prefectural cities with high digital development levels are mainly agglomerated in large metropolitan areas, such as yangtze river delta, the jing-jin-ji, the guangdong-hong kong-macau greater bay area. prefectural cities with low digital development levels are concentrated in the rural-mountainous regions in southwest china and poverty-stricken areas in central and western china (song et al., 2020). for example, beijing, shanghai have shown very strong digital growth and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 73 published by scholink inc. the scale of digital economy in beijing and shanghai is close to 45 percent of its gdp while this is only 15 percent in henan, a central province. this is the results of the diverse stages of economic development and technology in each region, more specifically, the urban-rural income gap and the inequality of education. another presentative phenomenon is the urban-rural digital divide. there are significant differences between urban students and rural students in accessing the digital education and inspiration (li & ranieri, 2013). though the urban-rural digital divide at school is modest because regular use of computers in both rural and urban public schools, the digital divide was much wider in terms of advanced computer skills, using the internet and creative activities using computers. these gaps come from the experience off class and at home: urban students reported having greater access to the computer hardware, software and computer languages than their rural counterparts. 3. the position of chinese digital economy in the world china’s overall digitization stands in the middle of the range globally. in 2019, the digital economy in china account for about 35.8 percent of gdp, lower than that in the u.s (59 percent) and japan (46 percent), but higher than that in brazil and india (both around 20 percent). using other indices shows the similar picture. china ranks 50 th out of 131 countries based on the world bank digital adoption index, 59 th out of 139 countries in the world economic forum index (zhang & chen, 2019). the employment in the ict sector composes 2.6 percent of total employment in china in 2010. this index in china is lower than the oecd average (3.7 percent) indicating that china is still below the oecd average level of development in the digital sectors in terms of employment share (garcía-herrero & xu, 2018). several reasons behind the middle position of china’s digital economy. first, china still has a large rural economy. given that digitization is much higher in urban areas and service sectors and industrial sector, the country’s digital share will rise as the process of urbanization and industrialization. second, the indices measure the total digital economy, hence mask the diversity across sectors and regions in china. in fact, the digital economy developments in china are uneven. developed regions such as beijing and shanghai seeing similar or even higher proportion of digital economy than developed countries, but the least-developed chinese regions lag quite far behind. as the spillover effect continue to work, underdeveloped regions can take advantages of its developed neighbors. on the other hand, the overall proportion also ignore the differences among sectors. in fact, china has become a global leader in some key digital industries such as e-commerce and mobile payments. according to the data in 2019, china accounts for over 40 percent of global transactions. the penetration of e-commerce, the sales of e-commerce in total retail sales stands at 15 percent, compared to 10 percent in the u.s. third, china’s gdp is in the second position worldwide which results in a larger denominator as calculating proportion. thus, the overall share of digital economy in gdp become lower. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 74 published by scholink inc. 4. digital infrastructure in china the development of chinese digital economy benefits from the construction of infrastructure in digital technology in china. this part introduces supercomputing, 5g, navigation satellite system and big data center respectively. 4.1 supercomputing china leads the world in supercomputing. according to the lates top500 list of supercomputers unveiled at the 2016 international supercomputing conference in frankfurt, germany, chinese supercomputer has snagged the top spot. the new machine, known as the “sunway taihulight”, located in national supercomputing center in wuxi, jiangsu province. it has performance of 93 pflop/s, nearly three times the performance of the second place, another chinese supercomputer, named “tianhe-2”. and more important, for the first time, china has overtaken the united states with the largest aggregate supercomputing capacity. figure 3. supercomputing system share (%) source: https://www.top500.org/. china has 167 of the world’s top 500 supercomputers, with a total capacity of 211 pflop/s in 2022. the united states has 165 of the top machines, with a cumulative capacity of 173 pflop/s. that’s a reversal of the rankings 15 years ago, when the united states had more than half of the world’s top 500 supercomputers. europe’s share, meanwhile, has dropped to 105 with a combined capacity of 115 pflop/s. figure 3 shows the supercomputing share by countries and years. only the share of chinese supercomputing surged quickly. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 75 published by scholink inc. the newest list released in may 2022 shows that, the u.s supercomputer “frontier” from doe/sc/oak ridge national laboratory has claim the crown with performance of 1102 pflop/s. the second place is supercomputer fugaku from japan with performance of 442 pflop/s. among the top ten fastest supercomputers in the world, the united states holds five seats while china holds two, the sixth “sunway taihulight” and the ninth “tianhe-2”.application of supercomputer has three levels. advanced supercomputing services for aerospace, meteorological monitoring, etc. general supercomputing services for biopharmaceuticals, scientific research, etc. and business supercomputing services for financial economy and other industries. in 2022, china’s supercomputing service market reached 19.66 billion yuan. 4.2 5g 5g is the wireless standard that is a step beyond 4g. it has three characteristics: high speed, low latency, wide coverage. the average downlink rate of 5g is 500mbps, or about 50mb/s, 10 times that of 4g. 5g network has the ultra-low delay of only 1-5 millisecond and support 1 million connections per square kilometer. 2019 saw the first year of commercial 5g. in the past three years, mass 5g network deployments in china results that china dominates global 5g base station count. china accounted for 60 percent of the total number of 5g base stations deployed globally by end-september 2022. meanwhile, the total count of 5g base stations in china reached 2.22 million with a growth rate of 6.4 percent and a net increase of 795,000 5g base stations from the end of 2021. the 5g subscribers reached 510 million in 2022, a net increase of 155 million over last year, accounting for 30.3 percent of mobile phone users and making it the largest user group in the world. chinese operators target 560 million 5g subscribers by end-2023, which would comprise almost 35 percent of the world’s users. in 2021, 5g coverage grew by a whopping 350 percent to cover 1336 cities in 62 countries. this resulted in that commercial 5g is available in 30 percent of the world’s countries. however, a year prior, only 378 cities had 5g coverage. in asia, 528 cities are with 5g coverage. the count is 459 in europe, middle east, and africa and 349 in america. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 76 published by scholink inc. figure 4. top countries with 5g coverage by number of cities covered source: viavi solutions. the state of 5g: 5g deployment surge despite global pandemic. as for coverage in china, 5g covers all the urban areas (of prefecture cities and the county) and more than 92% town in the rural areas. china has the number of 341, the largest number of cities covered by 5g, followed by the u.s. with 279 cities and south korea with 85 cities. as for speed, south korea had the fastest 5g in the world with median download speed of 492.5mbps while seoul reached 530.8mbps. china ranked 8 with median download speed of 299mbps according to the third quarter (q3) data in 2021. by june 2022, china hosted the world’s largest 5g standards and technology, with 1.85 million 5g cell towers and 455 million 5g cell phone subscribers. now, the internet penetration rate had reached 74.4% with 1.05 billion internet users in china which made china become one of the global leaders in 5g standards and technology. 4.3 big data center a major new infrastructure and development plan aims to expand the scope of china data centers to improve the country’s data processing, storage, and computing capacity. the plan will see the construction of eight computing hubs and ten data centers across regions. this is aim to ultimately send data from china’s populous and prosperous eastern regions to the resource-rich and sparsely populated western regions. through this, china will be able to correct to imbalance in supply and demand of computing capacity, relieve the calculation pressure in eastern provinces, create clean energy data centers with lower cost and less environment burden. in february 2022, china approved to construction first four regional computing hubs: the yangtze river delta hub, the jing-jin-ji hub, the guangdong-hong kong-macau greater bay area hub and the chengdu-chongqing hub. another four regional hubs of guizhou, inner mongolia, gansu, and ningxia are prepared to guaranteeing computing power for the future. despite these eight computing hubs in key areas in western and eastern china, the chinese government also planned to construct 10 data www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 77 published by scholink inc. center clusters within these hubs. these 10 data center clusters will contain several data centers adapted to the purposes of the region. 4.4 global navigation satellite system with the beidou-3 global navigation satellite system now operational, and beginning to provide global services in july 2020. thus, china had developed the third mature satellite navigation system after gps and glonass by deploying 45 satellites in 27 years. as an essential space infrastructure, beidou-3 served transportation, public security, emergency management, agriculture, forestry and other industries, integrated into power, finance, communications and other infrastructure, and widely entered the fields of public consumption and people’s livelihood. related industrial scale has exceeded 469 billion yuan in 2021. china is speeding up shifting from traditional infrastructure construction to new digital infrastructure development in an effort to promote economic transformation and stimulate economy amid the ongoing global recession during coronavirus period. 5g base station, global navigation satellite system, supercomputers and big data centers are all important digital infrastructures that will affect the digital economy. massive spending in such high-tech sectors will generate new business opportunities, expand size of the consumer market, upgrade consumption on both online and offline channels. on the other hand, it will promote production efficiency and innovation of product and service patterns. unlike traditional infrastructure such as railways and highways, new digital infrastructure includes information infrastructure and systems based on networks and computing power. china now vigorously cultivates new technologies and applications such as cloud computing to accelerate the transformation from industrialization to digitization. 4.5 cloud computing cloud computing is an important basic technology to realize the transformation and upgrading of financial institutions and enterprises. china’s cloud computing market is the fastest-growing in the world. it is predicted that the global share of the chinese public cloud service market will increase from 6.5 percent in 2020 to 10.5 percent in 2024. in 2020, the market size for public cloud services in china already reached us$19.38 billion, growing at 49.7 percent year on year. cloud computing emerged as a critical pillar of the digital economy. the growth of digital economic output in the world’s top 35 economies were proved to be highly associated with their public cloud market. according to recent data, chinese cloud infrastructure services expenditure grew 21 percent year on year to reach us$7.3 billion in q1 2022, 13 percent of global cloud infrastructure spend. the top four leaders of the cloud service vendors alibaba cloud, huawei cloud, tencent cloud and baidu ai cloud, accounted for 79% of total expenditure in china. cloud computing is the on-demand delivery of computing resources, such as networks, servers, and storage, to a sizable number of end-users. cloud computing is a combination of a series of technologies. distributed computing, the key technology of cloud computing is to decompose a large and complex task into multiple small tasks and allocate them to different computing resources for processing. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 78 published by scholink inc. for public, cloud computing services are available in three ways including infrastructure-as-a-service (iaas), platform-as-a-service (paas), software-as-a-service (saas). iaas suppliers provide customers access to computing resources, such as network, storage and cpu with 24 hour’s technique support. paas vendors provide a platform for software development and hosting, enabling customers to design application based on their own needs. saas providers offer online software that customers can access via a web browser. paas and saas suppliers also provide professional technical service in the development, debugging, optimization, upgrading and use of software. 5. conclusion the chinese government has made the development of the digital economy to a national strategy, formulated development plans and vigorously developed the digital economy. a comprehensive understanding of china’s digital economy development is the basis for all researches. the patterns of chinese digital economy can be summarized. the market size of china’s digital economy ranked second worldwide behind the united states and has been growing rapidly in recent years. the total increase in digital economy was mainly due to the increase in the digitalized industrial sectors. in addition, there is digital gap among regions and industries. the characteristics of digital infrastructure can be concluded. first, the application scenarios begin to go beyond the needs of consumers to meeting the needs of producers. infrastructures such as 5g, supercomputing, new data hubs are all critical physical infrastructure for industrial production. with the advent of internet of things (iot) and industrial internet of things (iiot), the industries and business’s demand for computing power will be far greater than that of consumers. second, hardware and software has developed together to build a complete technical system. china has great advantages in the construction of hardware infrastructure. now china has made breakthroughs in software technology. china’s cloud computing has developed rapidly and can respond to the needs of domestic enterprises. third, network and computing are the primary factors in digital economy. now china lead in both the network infrastructure and computing infrastructure to satisfy the transmission and computing needs. the rapid development of the information and communication technology (ict) sector has brought significant economic and social benefits. in the future, whoever grasps the new digital infrastructure can succeed in digital economy development. digital infrastructure should be planned as a whole to correct an imbalance between the computing supply and demand. the plan “eastern data, western computing” is helpful to narrow the digital divide and improve computing efficiency. the government should also encourage the adoption and application of digital technology in industrial production while still take advantages of e-commerce and mobile pay in consumption. investment in digital software should increase and stimulate innovation to unbind the chinese economy with foreign technologies. thus, the upward trend of digital economy will continue, and have better effects in driving chinese economy. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 79 published by scholink inc. funding this work was supported by the project (21 skgh 134); research on harmonious labor relations thought of socialism with chinese characteristics in the new era (2021ybcs39) (21skgh141). references cheng, y., zhang, y., wang, j., & jiang, j. 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(2020). china’s prefectural digital divide: spatial analysis and multivariate determinants of ict diffusion. international journal of information management, 52, 102072. https://doi.org/10.1016/j.ijinfomgt.2020.102072 yin, z., gong, x., guo, p., & wu, t. (2019). what drives entrepreneurship in digital economy? evidence from china. economic modelling, 82, 66-73. https://doi.org/10.1016/j.econmod.2019.09.026 zhang, l., & chen, s. (2019). china’s digital economy: opportunities and risks. in imf working paper. https://doi.org/10.5089/9781484389706.001 zhou, a. (2022). digital infrastructure and economic growth—evidence for china. journal of infrastructure, policy and development, 6(1), 1397. https://doi.org/10.24294/jipd.v6i1.1397 zhu, w., & chen, j. (2022). the spatial analysis of digital economy and urban development: a case study in hangzhou, china. cities, 123, 103563. https://doi.org/10.1016/j.cities.2022.103563 note note 1. source: china digital economy development report 2022. note 2. source: white paper on china’s digital economy 2020. https://doi.org/10.1016/j.ijinfomgt.2020.102072 https://doi.org/10.1016/j.econmod.2019.09.026 https://doi.org/10.5089/9781484389706.001 https://doi.org/10.24294/jipd.v6i1.1397 https://doi.org/10.1016/j.cities.2022.103563 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 9 original paper research on legal issues of financial fraud in listed companies ke zhang 1 1 school of marine law and humanities, dalian ocean university, dalian, liaoning, china received: july 5, 2024 accepted: july 15, 2024 online published: july 18, 2024 doi:10.22158/elp.v7n2p9 url: http://dx.doi.org/10.22158/elp.v7n2p9 abstract in the rapidly developing economy, with the increasing frequency of socio-economic activities, the number of listed companies is also growing. as an important part of china's non-state-owned economy, the information disclosure of listed companies is particularly important and serves as a crucial indicator for small and medium investors. however, in the prosperous market economy, some listed companies, in order to attract more investors, resort to financial fraud, such as issuing false invoices, creating fictitious transactions or related party transactions, and other means to inflate profits and deceive investors’ funds. this undoubtedly undermines china’s socio-economic order and reduces the public’s trust in the securities market. due to the imperfect market economy rules, inadequate legal system, and incomplete internal control systems in china, financial fraud occurs very frequently. financial fraud not only harms the interests of small and medium investors but also disrupts the social and economic order. next, this paper will explore the means and motivations of financial fraud to delve into the essence of financial fraud. keywords listed companies, fraud governance, accounts receivable 1. introduction financial fraud is the act of altering financial statements to conceal or distort the true operating conditions of a company, colluding with external auditors or government inspectors, and using false financial statements to deceive users of the statements and the trust and funds of small and medium investors. compared with companies that have not committed financial fraud, companies that have committed financial fraud will have significant differences in some financial ratio data. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 10 published by scholink inc. the sales growth index is a very important symbolic data. when a company’s profitability declines, to avoid the risk of delisting, listed companies often engage in financial fraud. that is to say, when a company’s profits are decreasing, with high debt and slow profit growth, the company is more likely to engage in financial fraud. in today’s various entertainment companies, due to the rapid development of acg and fan culture in previous years, the market has become overheated, and many large and small entertainment companies have been established in recent years, resulting in fierce market competition and a significant decline in profitability. to win the trust of creditors, sometimes to make the accounts look good, they will reduce the quality of assets to increase the amount of assets on the books. that is to say, companies with high leverage risk and low asset quality are more likely to have financial fraud. for example, many entertainment companies nowadays, due to the generalization of entertainment, have expanded the scope of their main business operations, and their current ratio and quick ratio are far from excellent. in this case, to win the favor of capital, to achieve the purpose of listing or not being delisted, these entertainment companies are at risk of financial fraud. the accounts receivable turnover rate is a key data point. if a listed company’s assets are mostly composed of accounts receivable, it is necessary to consider whether these accounts receivable are related to related party transactions. that is to say, when a listed company has too many accounts receivable, the possibility of financial fraud is greater. many entertainment companies have the business of selling some figures or toys, and in the entire animation industry chain, the production and sales of figures and toys are the main source of profit for domestic entertainment companies. the sale of figures has uncertainty. when the animation characters are not popular or are boycotted, it is possible to commit fraud by increasing accounts receivable to increase revenue and profits. in summary, there are many traces to follow when judging whether a company has financial fraud. when conducting external audits, it is necessary to pay attention not only to the data on the financial statements but also to the financial ratios related to profitability, solvency, and asset operation. comparing these ratios with those of companies in the same industry or of the same size, if there is a significant gap, it is necessary to pay more attention to whether the listed company has engaged in financial fraud. 2. means of financial fraud by listed companies 2.1 fraud through fictitious business by fabricating sales business, fictitious sales contracts, and issuing false invoices to commit fraud. by fabricating sales business, listed companies can inflate sales revenue, thereby achieving the purpose of fabricating revenue. since the net profit obtained by an enterprise can be reflected through the net profit margin of operating income, when the net profit is low or the operating income is relatively high, there is a possibility of inflating sales revenue. however, after fabricating sales business, the corresponding bank deposits or accounts receivable should also change. when recording bank deposits, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 11 published by scholink inc. in fact, this money has not been received. in order to make the accounts look normal, it is also necessary to increase some expenditure items, such as procurement business. in addition, in manufacturing enterprises, the subject of inventory should also change accordingly. when the enterprise’s inventory cannot form a counter price with the payment of fictitious sales business, production costs should also change. in some media industries, film and television industries, and other light asset industries, due to the different nature of the industry, a project can bring a lot of profit to the company. at this time, in order to avoid taxes, enterprises are very likely to commit financial fraud to evade taxes. 2.2 fraud by inflating fixed assets in accounting, the interest on liabilities formed for the purchase or construction of fixed assets should be included in the cost of fixed assets. by capitalizing expenses that should be expensed, the company’s profit for the year is increased, and the expenses that should be expensed in the current year are deferred through depreciation to the following years. 2.3 confirming revenue in advance and deferring the recognition of expenses the transaction is considered complete only when the ownership of the goods is completely transferred. sometimes some listed companies will confirm revenue in advance, even if the ownership of the inventory has not been completely transferred, so as to increase profits by increasing income. they will also defer the recognition of some expenses that should be recognized in the current period, thereby increasing profits by reducing expenses. 2.4 under-provision or non-provision of bad debt provisions according to the requirements of accounting, the bad debt provisions made in this year should be directly offset against profits. some listed companies, in order not to make profits negative, will under-provision or even not provide bad debt provisions, which will make profits artificially high, thereby achieving the company’s goals. 2.5 related party transactions most listed companies will sign fictitious contracts with their related companies. these contracts are usually not signed at market prices, in order to transfer profits to the places they want to transfer, by under-recording or concealing accounts payable to increase profits. at the same time, related parties will also cooperate to implement this non-existent transaction. this method is often highly covert and not easy to be discovered. 3. analysis of the motivation for financial fraud by listed companies 3.1 analysis based on the inner heart of the person in power in the audit process, attention should be paid to the company’s equity structure. sometimes the executives hold shares, and since the executives are related to the company’s interests, they will restrain financial fraud to a certain extent. however, if the equity is too concentrated in a few people, especially in family businesses, it may breed financial fraud for personal or family interests. the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 12 published by scholink inc. management, as the core of financial fraud, is generally a conspiracy of management personnel. the management, as the core of the company’s internal, to a certain extent, their power has not been effectively constrained. although it is the financial personnel who carry out some financial fraud operations, it is generally impossible to carry out without the authorization or permission of the management. as the saying goes: “the higher the official, the more oppressive”. due to the management’s excessive authority, the integrity of the accounting personnel’s professional ethics sometimes cannot be maintained. the cfo is the executor of the management’s collective will. financial fraud is not only the personal behavior of the cfo but also the collective behavior of the company. the financial fraud of listed companies is a collective crime. 3.2 analysis from the perspective of the external market in the capital market, there are all kinds of financial frauds. in fact, in a market where bad money drives out good, it is difficult for listed companies to ensure their own purity. on the books, the financial statements of companies that have committed financial fraud are often more perfect than those of companies that have not committed financial fraud. moreover, the investment market is now very hot, and we, as leeks, rush to the capital market like moths to a flame. at this time, listed companies with a perfect financial statement can win the favor of a large number of investors. in such a market where bad money drives out good, the listed companies that can survive better are usually not those that are serious about industry, but those that are good at swimming in the financial market. in this situation, financial fraud seems to have become a wealth password, in order to deceive the funds of small and medium investors, or to deceive the national subsidies, etc. marx once said: “capitalists are afraid of having no profit or too little profit, just as nature is afraid of a vacuum. once there is an appropriate profit, capital becomes bold. if there is a 10% profit, capital will be used everywhere; with a 20% profit, capital can become active; with a 50% profit, capital will take risks; for a 100% profit, capital dares to trample on all human laws; with a profit of more than 300%, capital dares to commit any crime, even to risk hanging”. undersuch temptation of interests, coupled with the failure of internal control systems and the imperfection of legal supervision systems, and the shareholders’ inability to effectively supervise the management due to information asymmetry and free-riding after the separation of property rights, are all reasons for financial fraud. 3.3 analysis from the regulatory level financial fraud is usually an administrative penalty, and there is little involvement in criminal law. because most financial frauds are fakes at various levels and do not involve the scope of “crime of disrupting the socialist market economic order” controlled by criminal law, even if financial fraud is discovered, compared with the benefits obtained by listed companies over the years, the cost of fraud is quite low, and low cost often stimulates the birth of financial fraud. for example, the financial inspection rate of ipo is only 5%, and the proportion of financial fraud found is very low. even if it is discovered, it will not bring serious consequences. the current cases of profit manipulation found by regulators show that they only give orders to correct and give warning letters, without warning www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 13 published by scholink inc. penalties and fines. this has almost no major impact on the refinancing of the company after the fraud, nor does it have a great negative impact. such a low cost can be exchanged for fraudulent listing, and can be exchanged for huge benefits in stock reduction, employee equity incentive costs, and other aspects. even if the regulatory side gives the highest penalty, i believe there will still be many companies that choose to continue profit manipulation and financial fraud. 3.4 lack of independence of external audits the main work of accounting firms is to be responsible for the annual inspection of enterprises, financial statement audit, and capital verification. in the audit process, it may be because of the company’s obstruction, or because the project leader and the company’s executives have a close connection (audit collusion), which may lead to the audit report issued by the accounting firm lacking independence. for example, zhengzhong pearl river accounting firm has been issuing unqualified opinions for many years, and as a professional institution, and has been auditing kangmei pharmaceutical for so many years, it is impossible to have not found a clue, so it can be seen that zhengzhong pearl river accounting firm lacks professional ethics and independence in this business. therefore, financial fraud not only brings huge economic losses to investors but also damages the reputation of securities regulatory departments and accounting firms, and the confidence of investors in investment is frustrated, and the normal market competition order is disrupted, resulting in a bad social impact. 4. strategies to prevent financial fraud 4.1 building the ideological and moral character and legal awareness of accounting personnel most accounting personnel have to follow the arrangements of their leaders when working, whether for a living or for promotion. accounting personnel often turn a blind eye to some illegal behaviors within the company, and even encourage the momentum of illegal behaviors. cultivating the legal awareness of accounting personnel is to enable them to detect some illegal behaviors in their work, which can help relevant authorities to quickly discover and crack down on existing illegal crimes. for example, in the “crime of issuing fake vat invoices for the purpose of defrauding export tax rebates or tax deductions” in the criminal law, whether it is for oneself, for others, or letting others do it for oneself, accounting personnel are indispensable in the process of committing the crime. as the main responsible person, they play a role in making false accounts and signing and stamping on invoices, and as the main responsible person, they should bear the corresponding criminal responsibility. if there is enough legal awareness training for accountants, there may be accountants who dare to report such existing crimes, which can avoid national losses and disrupt the social and economic order. 4.2 maintain the independence of external inspectors in the process of discovering financial fraud in listed companies, external inspectors will play a significant role. an auditor or inspection agency that does not collude with listed companies is very important. it is necessary to maintain the independence of the audit and the purity of the inspection www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 14 published by scholink inc. agency, to strictly implement the avoidance system, and to prevent auditors or inspectors from colluding with listed companies to commit fraud together. moreover, in the listed companies that commit fraud, it is also necessary to pay more attention to whether the company itself is involved in money laundering. after all, a large amount of liquid funds are needed in the process of committing fraud. in the process of financial fraud, money laundering may be involved. a lot of black money from the seven major upstream crimes of money laundering may be laundered through some companies and enterprises through false transactions, etc. it is necessary to strictly inspect the legality of the listed companies’ capital sources and the rationality of suspicious funds flowing through various related enterprises, whether it is simply for fraud or involving money laundering. at this time, whether the auditors, institutions, and inspectors can maintain their independence in the face of huge interests is crucial for maintaining the social and economic order. to maintain this independence, it is necessary to further improve the internal authority separation system of the audit institution or inspection agency, so that the personnel of each position can form effective checks and balances, and achieve complete and effective procedures. 4.3 improve the legal system 4.3.1 update laws and regulations in a timely manner with the implementation of the new “securities law” in 2020, the new securities law has added a new chapter 5, which is the new requirements for information disclosure, and added requirements for the quality of information disclosure, which requires truthfulness, accuracy, completeness, simplicity, clarity, and easy to understand, without false records, misleading statements, or significant omissions. the new requirements for information disclosure are higher for listed companies, not only to be true and effective but also to be easy to understand, which is a good thing for small and medium investors. the reports are easier to understand for them, which is a good thing, because the financial statements that were originally difficult to understand have become easier to understand. article 80 of the new securities law also expands the scope of information disclosure, from the original five to the current twelve, and the matters that listed companies must disclose have increased, the quality of accounting information is higher, and the disclosure of accounting information is more transparent and timely, which is more helpful for ordinary investors to protect their rights and interests. 4.3.2 increase the punishment for financial fraud the new securities law has also increased the fines for financial fraud behavior, from the original 600,000 yuan to 10 million yuan. in china’s judicial practice, the chances of top-level cases are relatively small. from the original 600,000 yuan to the current 10 million yuan, this amount is a cost that listed companies that have obtained more benefits from financial fraud do not care about at all. compared with the punishment for financial fraud in american law, china’s legal punishment for financial fraud is far from enough. for listed companies, even the punishment after the implementation of the new securities law is still a drop in the bucket. in my view, financial fraud is a very serious mistake, which seriously disrupts the social and economic order. the punishment for financial fraud www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 15 published by scholink inc. should also play a deterrent role. after all, one of the many functions of the law is to educate, to warn and warn ordinary people or violators themselves. both the original securities law and the new securities law do not pose a great threat to listed companies. in addition, for such unit crime behavior, not only should the double penalty system be implemented, but restrictions should also be imposed on these companies that have been found to have financial fraud in the securities market through laws or administrative regulations, rather than just issuing warning letters or orders to correct. 4.3.3 accelerate the application of big data in the daily business of listed companies with the advancement of the accounting computerization process, more and more companies choose to use financial software to replace manual accounting. the top ten it information technologies that affected chinese accounting practitioners in 2020 include financial cloud, electronic invoices, accounting big data technology, electronic archives, rpa, new generation erp, etc. the application of big data has also reduced the work pressure of accounting personnel and made traditional financial fraud behavior face the impact of big data. in the daily management of enterprises, the use of financial software can make the company’s transactions controllable, thereby reducing financial fraud behavior. with the development of big data, the popularization of specific valuation methods can make each inventory have a basis for inquiry. nowadays, most of the goods’ transportation depends on logistics, and combining with logistics information can eliminate some fictitious businesses from the source and reduce financial fraud. 5. discussion the prevalence of financial fraud within listed companies poses a significant threat to the integrity of china’s securities market and undermines investor confidence. the paper has thoroughly examined the various methods of financial fraud, highlighting the need for a robust approach to identify and combat these unethical practices. to address this issue, it is essential to enhance the ethical and legal awareness among accounting personnel, ensure the independence of external auditors, and continuously update and enforce regulations to increase the penalties for financial misconduct. the integration of big data into the daily operations of listed companies can also serve as a powerful tool to prevent financial fraud by improving transaction traceability and oversight. ultimately, the paper calls for a concerted effort at both the corporate and national levels to foster a market environment that is transparent, regulated, and resistant to the corrupting influence of financial fraud. 6. conclusion although financial fraud is common in listed companies, the behavior of financial fraud seriously damages china’s securities market and frustrates the confidence of investors. the methods of financial fraud are various, and exploring the methods of financial fraud by listed companies helps to rectify the current economic market atmosphere and make the operation of the economic market tend to be standardized. this paper believes that in order to rectify financial fraud behavior, it is necessary to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 16 published by scholink inc. strengthen the construction of the ideological and moral character of accounting personnel, the cultivation of legal awareness; to maintain the independence of external audits and inspectors; to update laws and regulations in a timely manner, and to increase the punishment for financial fraud; to accelerate the application of big data in the daily business of listed companies. at the same time, at the national macro level, correct guidance should be carried out to minimize the disturbance of financial fraud behavior to china’s social and economic order. references chen, g., li, p. z., & liu, y. q. (2022). research on the visual auditing methods of financial fraud. finance and accounting communication, 2022(01), 113-118. cui, x. l., & wu, l. (2013). analysis and enlightenment of wanfushengke financial fraud case. modern commercial trade industry, 25(15), 151-152. ding, a. x. (2013). a brief discussion on the audit risk of accounting firms. modern commerce, 2013(27), 236-237. han, y. p. (2014). research on the financial report fraud of listed companies based on gone theory. jiangsu university of science and technology. li, k. (2011). research on the fraud identification hybrid model of financial reports of manufacturing listed companies. lanzhou university. li, p. t. (2021). a study on common financial fraud methods and preventive measures of listed companies. china collective economy, 2021(11), 83-84. luo, g. (2015). an analysis of the causes and countermeasures of financial fraud in listed companies. china high-tech enterprises, 2015(25), 166-167. sun, z. r. (2017). a study on the fraud methods of agricultural listed companies in china. shanghai national accounting institute. yin, n. (2016). research on the governance of crimes committed by private entrepreneurs. southwest university of political science and law. yu, y. (2020). empowerment of accounting integration and innovation through information technology—the results of the selection of the top ten information technologies affecting chinese accounting professionals in 2020 are announced. new finance, 2020(08), 51-52. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 24 original paper study on the problems and countermeasures of tourism market supervision in ethnic areas ketian huang 1 1 school of political science law, tibet university, lhasa, tibet, china received: october 9, 2024 accepted: october 16, 2024 online published: october 17, 2024 doi:10.22158/elp.v7n3p24 url: http://dx.doi.org/10.22158/elp.v7n3p24 abstract ethnic regions are increasingly capturing the attention of tourists, thanks to their unique cultural heritage and natural resources, thus becoming indispensable growth points in the tourism market. however, the rapid expansion of the tourism sector has imposed heightened demands on regulatory mechanisms. currently, the tourism market in these regions faces a myriad of challenges, including insufficient oversight, a lack of transparency in information, and varying quality among market participants. these issues not only diminish the visitor experience but also impede the advancement of sustainable tourism development. consequently, there is an urgent need for a comprehensive and effective regulatory strategy to standardize market order and ensure tourism quality. this study analyzes the current state and challenges of the tourism market in ethnic areas and proposes a series of targeted recommendations, including the enhancement of the regulatory framework, increased enforcement efforts, improved information transparency, and the elevation of participant quality. these strategies aim to foster the robust development of the tourism market, enhance visitor satisfaction, and achieve sustainable growth in the tourism industry of ethnic regions. keywords ethnic areas, tourism market, market regulation, problems, countermeasures 1. introduction tourism resources in ethnic regions often manifest distinctly through their unique cultures and landscapes, captivating visitors from around the globe. however, in contrast to more developed areas, these regions generally lack adequate infrastructure and management standards, leading to a chaotic evolution of the tourism market and the compounding of conflicts. for instance, over-commercialization results in the degradation of cultural and natural resources, while insufficient regulation allows for rampant market irregularities. this phenomenon not only tarnishes the experience www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 25 published by scholink inc. for tourists but also jeopardizes the sustainable development of local communities. in this context, effective market regulation becomes particularly vital. sound oversight not only safeguards the legitimate rights and interests of both travelers and businesses but also ensures the healthy and sustainable advancement of the tourism industry. only by establishing a robust regulatory framework can the tourism sector achieve a harmonious balance between preserving traditional culture and natural environments, while also realizing both economic and social benefits. this study aims to delve into the regulatory challenges faced by the tourism market in ethnic regions and propose practical solutions, thereby assisting this vibrant land in fully unleashing its potential and allure within the tourism sector. 2. importance of tourism market regulation the regulation of tourism markets plays a pivotal role in the development of ethnic regions. for a region, tourism is not only a source of economic income but also a showcase for its culture and traditions. effective market regulation ensures that this showcase remains perpetually vibrant. maintaining order in the tourism market helps protect consumer rights and creates a fair competitive environment for businesses. it is only within such an environment that commercial vitality can be invigorated and enterprises can thrive sustainably. the importance of regulation extends beyond economic dimensions. for ethnic regions, the preservation and transmission of culture are paramount. unrestrained tourism development often leads to the dilution of culture and environmental degradation, which are often irreversible. as a force, market regulation can effectively standardize development practices and safeguard cultural heritage and natural resources. properly regulated, tourists will experience the authentic charm of the culture rather than homogenized commercial landscapes. more crucially, the establishment of regulatory mechanisms can enhance the management skills of local governments and industries, increasing policy transparency and credibility. under a well-structured regulatory system, not only can irregular behaviors in the market be promptly identified and corrected but also positive interactions with communities and residents can be fostered, collectively advancing local sustainable development. the essence of regulation lies in providing a balanced approach to tourism development in ethnic regions, enabling a harmonious co-existence of economic benefits, cultural preservation, and natural resource utilization (yu, yang, li et al., 2023, p. 15119). 3. analysis of the current situation of tourism market supervision in ethnic areas in nations where diverse ethnicities reside, they abound with rich cultural and natural resources, rendering these regions a vital component of the tourism market due to their unique endowments. however, the current status of tourism market regulation in these areas leaves much to be desired. in numerous locales, regulatory frameworks are noticeably behind the times, making it challenging to impose order within the market and adversely affecting the overall experience of tourists. observation reveals that in some areas, where economic foundations are weak, government investment in regulation is insufficient, lacking specialized human and material resources, thus impeding the regulatory bodies’ www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 26 published by scholink inc. effectiveness. concurrently, regulatory policies and statutes often lack specificity and timeliness, struggling to keep pace with the rapidly evolving market environment. at the legal level, existing regulations frequently appear outdated, unable to address emerging issues in the tourism market, such as the regulation of online travel products and the standardization of short-term rental markets. these necessitate timely updates and adjustments to the legal framework. moreover, enforcement issues are prevalent; regulatory actions often lack sufficient strength, and despite frequent occurrences of violations, they are not effectively curbed. this challenge is further exacerbated during peak tourism seasons when the influx of tourists increases the difficulty of regulation. more intricately, the self-discipline of some tourism operators is low, with business practices overly focused on short-term gains, exemplified by inflated pricing and excessive exploitation of tourism resources. such behaviors not only impair the tourist experience but also jeopardize local culture and the environment. these issues underscore the pressing need to strengthen regulation and promote sustainable tourism development in ethnic regions. 4. problems in the supervision of tourism market in ethnic areas 4.1 incomplete regulatory system in ethnic regions, the imperfection of the tourism market regulatory system has become a significant impediment to the healthy development of the industry. the oversight here often lacks systematicity and authority, leading to frequent market chaos. in many areas, regulatory mechanisms are inadequately established, with significant constraints during their implementation. in these regions, the establishment of regulatory bodies is typically insufficient, with overlapping functions and ambiguous responsibilities being common phenomena, ultimately causing policies to be difficult to implement. additionally, the lack of human resources is a major issue. oversight personnel often face onerous tasks with limited resources, and in many cases, there is an insufficient number of personnel to cope with the rapidly expanding tourism market. some remote ethnic areas struggle to attract and retain professional regulatory talent, resulting in inefficiency in regulatory work. the lag in regulations and policies is also a cause for concern. the development of the tourism market is advancing at a rapid pace, while the update speed of relevant laws and regulations fails to keep up with market trends. many new issues and challenges are not fully reflected in existing regulations, leaving enforcers at a loss when facing new disputes. moreover, due to the lack of long-term and stable regulatory policies, businesses have an uncertain outlook on the market, losing confidence in investment and operations (zhan & ning, 2021, p. 6547186). 4.2 insufficient enforcement of supervision in the ethnic regions, the notable deficiency in regulatory enforcement significantly undermines the healthy development of the tourism market. in numerous instances, even when relevant regulatory policies and laws are in place, their deterrent effect fails to manifest fully due to inadequate implementation. the arbitrariness of law enforcement and the unevenness of regulatory rigor have led www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 27 published by scholink inc. to a lack of seriousness among market participants regarding compliance. consequently, some merchants cultivate a sense of complacency, frequently resorting to risky behavior, disregarding the rules, and prioritizing immediate profits over long-term growth. this predicament is largely attributed to the limited resources of regulatory agencies. many ethnic areas, constrained by geographical and economic conditions, struggle with insufficient funding for regulatory bodies, a lack of modern enforcement equipment, and must often depend solely on a limited workforce for oversight, which naturally diminishes effectiveness. the infrequency of inspections and the inadequacy of feedback mechanisms further complicate the timely identification and cessation of violations. furthermore, the relatively lenient punitive measures prompt some tourism operators to prefer paying fines over adhering to regulations. this phenomenon, to a certain extent, fosters the proliferation of undesirable practices. in the face of these challenges, regulatory departments often find themselves in a state of helplessness, lacking the robust tools necessary to restrain and guide market behavior. complaints and feedback from tourists go inadequately addressed, and the gradually accumulating dissatisfaction tarnishes the reputation of the market. in this increasingly burgeoning market, the insufficiency of regulatory enforcement emerges as a pressing and challenging issue, urgently demanding the attention of all stakeholders to lay a foundation for long-term sustainable development. 4.3 low transparency of information the issue of low information transparency in the tourism market of ethnic regions represents an unseen impediment to the industry’s development, frequently resulting in crises of trust and market confusion. the opacity of information subjects tourists to significant uncertainty when selecting tourism services, rendering them unable to gain a comprehensive understanding of the actual conditions surrounding tourism products, such as pricing, service offerings, and quality standards. this lack of transparency deprives tourists of the protection of their rights, placing them in a vulnerable position during disputes—making it arduous for them to assert their rights. furthermore, the problem of insufficient information transparency is evident in the inadequate disclosure of crucial information by the stakeholders in the tourism market. many local tourism operators fail to adequately disclose essential details regarding their qualifications, service standards, and pricing criteria, engendering unfair competition within the market, while unscrupulous businesses might exploit this information asymmetry to mislead consumers. lacking reliable information, tourists find it challenging to make informed choices, which may lead them to harbor skepticism and distrust towards the overall market environment, ultimately diminishing their willingness to consume. simultaneously, regulatory bodies also exhibit deficiencies in information disclosure. in the process of handling complaints and violations, the timeliness and detail of relevant information made public are often inadequate, leaving the public with a limited understanding of the efficacy of law enforcement and casting doubt on the transparency of regulatory efforts. in the contemporary information society, the asymmetry and opacity of information can tarnish the reputation of the industry and undermine the potential of the tourism market. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 28 published by scholink inc. 4.4 uneven quality of market entities in ethnic regions, the issue of varying quality among tourism market participants is markedly pronounced, subtly undermining the overall competitiveness of local tourism. numerous tourism professionals lack adequate training, and there are significant deficiencies in both service awareness and capability. whether it concerns the proficiency of tour guides or the management and service quality of attractions, the disparities are considerable. in certain locales, some employees even fall short of basic service etiquette and foreign language skills, rendering them unable to meet the increasingly high-quality tourism demands of domestic and international visitors. the presence of such uneven standards in the market greatly diminishes the experience for tourists. some operators, in pursuit of immediate profit, may cut corners in service, neglecting the reasonable needs and experiential desires of tourists; such short-sighted actions often lead to negative feedback and detrimental word-of-mouth, severely impacting the tourism image of ethnic regions. particularly in this age of social media prevalence, any negative experience can swiftly disseminate, threatening long-term detrimental effects on regional tourism development. this inconsistency manifests not only in the quality of service but also in the regulatory adherence of market behaviors. certain tourism enterprises and practitioners may engage in unscrupulous actions such as price gouging and deceiving customers during peak travel seasons, severely undermining market order. in such circumstances, sustaining tourist loyalty and satisfaction becomes exceedingly challenging, ultimately fostering a vicious cycle that impedes the healthy growth of the tourism market. enhancing the overall quality of market participants and ensuring consistency in high-quality service is undoubtedly essential for the maturation of the tourism market in ethnic regions (chen, 2024, pp. 81-85). 5. countermeasures to solve the problems of tourism market supervision in ethnic areas 5.1 improve the regulatory system presently, the inadequacies in resource allocation and policy implementation in ethnic regions have become bottlenecks hindering the optimization of regulatory frameworks. to truly harness the potential of regulatory systems, it is essential to orchestrate and refine them across multiple dimensions. strengthening the systemic and coherent nature of laws and regulations ensures that various policies do not contradict each other and can be effectively enforced. in this process, the initiative and collaborative capabilities of local governments are paramount. by establishing pragmatic standards and norms, the conduct of market entities can be more unequivocally guided. additionally, the establishment of specialized regulatory bodies, equipped with well-trained professionals, can enhance the precision and efficacy of regulatory enforcement. these professionals should possess profound industry knowledge and adaptive capabilities to swiftly respond to market changes and emergencies. in the era of information technology, the utilization of technological means poses new demands on enhancing regulatory efficiency. leveraging big data, artificial intelligence, and other technological tools enables real-time monitoring and analysis of markets. such technological applications not only www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 29 published by scholink inc. bolster the regulatory authorities’ ability to detect issues but also forecast potential risks through precise data analysis, thereby facilitating proactive market regulation. this intelligent regulatory paradigm aids in timely addressing new developments in the market. moreover, the openness and transparency of regulation should not be overlooked. effective communication with the public and market entities enhances policy transparency and predictability, fostering a cooperative spirit among market participants and bolstering public trust in government oversight. this not only cultivates a favorable market atmosphere but also encourages self-regulation and industry standards among enterprises. in the process of refining regulatory frameworks, the unique characteristics of local cultures and ethnic traditions must be duly considered. respecting and safeguarding ethnic cultures can help construct a vibrant and appealing tourism market environment, thereby fostering a sense of belonging among market participants and tourists (yang & wall, 2009, pp. 559-570). 5.2 strengthening regulatory enforcement nowadays, the mere formulation of systems and regulations is often insufficient; the crux lies in the execution and its effectiveness. oftentimes, the implementation of policies resembles a relay race, requiring seamless connection among various stages, with the strength of execution being the crucial baton to cross the finish line. at present, some ethnic regions frequently face issues of inadequate enforcement. this may stem from a scarcity of regulatory resources or inadequate training of staff. in some areas, due to their remote locations, comprehensive supervision becomes challenging, allowing illegal activities to exploit loopholes. this not only leaves market vulnerabilities but also dampens the enthusiasm of law-abiding businesses. it is imperative to enhance the allocation of grassroots regulatory forces, elevating their professional skills and sense of responsibility, enabling them to swiftly and effectively address various challenges. in addition to human resource investment, modern technological means hold significant potential in enhancing enforcement. by employing real-time monitoring and big data analysis, regulatory bodies can swiftly identify illegal activities and potential risks in the market. the application of such technology can render formerly obscure market conditions transparent, aiding regulators in precisely pinpointing issues and improving the efficiency and accuracy of their work. another critical factor is the establishment of a stringent accountability mechanism. the severity of punishment for violations directly influences the compliance of market entities. during the execution phase, only by clearly defining accountability can an effective deterrent be established, ensuring uncompromised policy implementation. for enterprises and individuals who repeatedly flout regulations, penalties should be increased to reinforce market norms and integrity. while strengthening enforcement, it is also essential to engage market entities and the public. through public reporting, self-audits by businesses, and other forms, an atmosphere of comprehensive participation in regulation can be fostered. this encourages every market participant to recognize the seriousness of regulation, thereby prompting proactive compliance with rules (feng, 2019, pp. 1273-1279). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 30 published by scholink inc. 5.3 enhance information transparency transparent information not only enhances the self-discipline of market entities but also strengthens the credibility of regulatory authorities. presently, many issues in the tourism market often stem from information asymmetry, where tourists struggle to access authentic information about travel services, and businesses find it difficult to obtain comprehensive industry dynamics, leading to misunderstandings and a trust deficit that hinder the healthy development of the market. promoting transparency in information requires efforts from multiple perspectives. firstly, governments and regulatory bodies should proactively disclose regulatory policies, industry standards, and market trends, enabling both businesses and tourists to stay informed about industry trends and regulatory requirements. this not only aids market entities in adjusting their behavior but also empowers tourists to make more rational choices. additionally, information disclosure must be truthful and accurate, untainted by false advertising to avoid misleading consumers. tourism enterprises themselves should also increase the intensity of information disclosure. by establishing robust credit assessment systems and information publicity mechanisms, businesses can showcase their service quality and reputation levels to the public. this is highly beneficial for enhancing corporate image and gaining consumer trust. with transparent information, tourists’ choices will become more rational, and market competition will become fairer. the role of technology cannot be overlooked. leveraging modern digital platforms and social media, the tourism industry can achieve more efficient information dissemination and interaction. tourists can use these platforms to access practical travel reviews and feedback, which indirectly pressures businesses to improve service quality and enhances the market’s self-regulating capabilities. in the process of enhancing information transparency, strengthening the regulatory oversight of information quality and sources is essential. ensuring the authenticity and reliability of information is a crucial foundation for maintaining market trust and stability. establishing a swift and effective information feedback mechanism to promptly address consumer inquiries and complaints can further improve public service quality. transparent information is not only a safeguard for the effective operation of the market but also a cornerstone of society’s trust in regulatory bodies. through information transparency, the processes and outcomes of regulatory bodies’ work can be scrutinized, thereby enhancing their authority and transparency. 5.4 enhance the quality of market players enhancing the quality of market entities is a pivotal step towards the healthy development of the tourism market in ethnic regions. the quality of market entities directly influences the experiences of tourists and the reputation of the market. consequently, elevating the professional standards and ethical benchmarks among practitioners becomes exceptionally crucial. the enhancement of quality is not merely an elevation of capabilities but also a deepening of industry responsibility. for tourist destinations in ethnic regions, which boast unique charm, this enhancement is an essential factor in maintaining competitiveness. education and training serve as the cornerstone for elevating the quality of market entities. through regular professional training and skill-enhancement programs, practitioners www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 31 published by scholink inc. can acquire the latest industry knowledge and service standards. this includes not only fundamental service skills but also an in-depth understanding of local culture and history. particularly in ethnic regions, the uniqueness of culture is a significant draw for tourists. if practitioners can grasp these cultural nuances deeply, they will be more persuasive and impactful in delivering services. this enrichment in cultural literacy not only enriches the travel experience for tourists but also fosters a greater respect and fondness for the local region. improving the quality of market entities also necessitates an emphasis on augmenting their legal awareness and understanding of industry norms. it is vital to educate practitioners on the significance of lawful operations and to disseminate legal knowledge, thereby enabling them to make sound choices in the face of market malpractices. simultaneously, advocating for industry self-regulation and honest business practices can guide enterprises and practitioners in collectively fostering a healthy market environment. under the framework of sustainable tourism, the environmental awareness of market entities should also be heightened, encouraging them to contribute to ecological conservation. promoting exemplary corporate culture and employee incentive mechanisms can further enhance practitioners’ work enthusiasm and sense of responsibility. within a wholesome corporate culture, employees not only have opportunities for personal growth but also recognize the importance of teamwork and cultural heritage. through incentive structures, innovation and excellent service can be encouraged, thereby setting a positive orientation for high-quality practitioners. fundamentally, the enhancement of market entity quality promotes a sense of responsibility and service philosophy. when each practitioner assumes their responsibilities and holds themselves to high standards, the entire industry will invigorate with new vitality and potential, presenting tourists with a more captivating and credible tourism market in ethnic regions. 6. conclusion the challenges confronting the regulation of the tourism market in ethnic regions are not issues that can be resolved overnight; they encompass the enhancement of the regulatory framework and the escalation of enforcement measures, among various facets. the advancement of market regulation lies at the heart of fostering sustainable tourism development in these areas. by reinforcing the regulatory structure, ensuring transparency and openness of information, and elevating the quality of services provided by market participants, the tourism sector will become increasingly standardized and orderly. achieving this objective necessitates a collaborative effort from multiple stakeholders, with the government, commercial enterprises, and local communities all bearing their respective responsibilities. through the collective endeavors of all parties involved, the tourism market in ethnic regions can attain healthy development, thereby not only augmenting visitor satisfaction but also contributing to local economic growth and cultural preservation. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 32 published by scholink inc. funding this paper is the achievement of the 2024 graduate student “high-level talent training plan” of xizang university. project no.: 2022-gsp-s137. references chen, y. (2024). research on the problems and countermeasures of ice and snow sports tourism resources in daqing. academic journal of humanities & social sciences, 7(6), 81-85. https://doi.org/10.25236/ajhss.2024.070614 feng, l. (2019). research on tourism public crisis countermeasures based on big data. in 2019 ieee 8th joint international information technology and artificial intelligence conference (itaic) (pp. 1273-1279). ieee, 2019. https://doi.org/10.1109/itaic.2019.8785500 yang, l., & wall, g. (2009). ethnic tourism: a framework and an application. tourism management, 30(4), 559-570. https://doi.org/10.1016/j.tourman.2008.09.008 yu, j., yang, j., li, j. et al. (2023). the role of tourism in promoting the urbanization of ethnic border areas: a case study of xishuangbanna. sustainability, 15(20), 15119. https://doi.org/10.3390/su152015119 zhan, l., & ning, k. (2021). minority tourist information service and sustainable development of tourism under the background of smart city. mobile information systems, 2021(1), 6547186. https://doi.org/10.1155/2021/6547186 https://doi.org/10.25236/ajhss.2024.070614 https://doi.org/10.1109/itaic.2019.8785500 https://doi.org/10.1016/j.tourman.2008.09.008 https://doi.org/10.3390/su152015119 https://doi.org/10.1155/2021/6547186 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 246 original paper a discussion on the legal regulation of the circulation and use of public data in china xiangying lin 1* & weiyang xu 1 1 dalian ocean university, dalian, china received: november 2, 2025 accepted: november 12, 2025 online published: november 13, 2025 doi:10.22158/elp.v8n2p246 url: http://dx.doi.org/10.22158/elp.v8n2p246 abstract as a core element of the digital economy, public data possesses public, property, and security attributes. its circulation and utilization not only concern economic development but also involve national governance and social equity. by analyzing the legal attributes of public data and examining the current status and issues in china’s authorized operation of public data and the opening of government data, this study identifies shortcomings such as unclear ownership, lack of profit distribution mechanisms, prominent security risks, and imperfect legal systems. it proposes that china should establish a legal regulatory framework centered on “ownership confirmation—classification—authorization—distribution—responsibility—security” and build a unified ownership system, a classified and hierarchical management system, a market-oriented authorization and operation mechanism, and a full-chain supervision system. the research concludes that improving the legal regulation of public data circulation and utilization is not only a crucial step in advancing the construction of the data factor market and the implementation of the digital china strategy, but also an inevitable choice to enhance national governance capabilities and the competitiveness of the digital economy. keywords public data, data factor market, data governance 1. introduction 1.1 the connotation and scope of public data in the new wave of technological revolution and industrial transformation characterized by digitalization, networking, and intelligence, data has been recognized as a key production factor on par with land, labor, capital, and technology. public data is considered a crucial foundation for enhancing national governance capabilities and standards in the information age (cheng, x., 2023, pp. 77-94). as www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 247 published by scholink inc. early as 2015, central-level regulatory documents began incorporating references to “public data” (the state council’s opinions on promoting the innovative development of cloud computing and cultivating new forms of information industry (guo fa [2015] no. 5); the state council’s notice on issuing the action outline for promoting big data development (guo fa [2015] no. 50)). public data refers to data resources generated, collected, and stored by state organs and enterprises during the performance of public management and service functions, which can be recorded, processed, and utilized electronically. it is characterized by public origin, public purpose, and social impact. according to definitions in policy documents by the national data administration, national development and reform commission, and other departments, public data primarily includes government administrative data held by government agencies, data generated by public institutions in providing public services, and data legally obtained by the state that should be made accessible (national data administration. the first batch of common terminology explanations in the data field). from an academic perspective, public data differs fundamentally from corporate commercial data and private personal data. its generation logic stems not from market competition, but rather from the needs of government functions and social public services. there are significant distinctions between public data and private or commercial data: private data emphasizes individual control, commercial data prioritizes corporate interests, while public data reflects the collective interests of the nation and society. additionally, the circulation mechanisms vary significantly. private data circulation typically requires individual consent, commercial data circulation relies on contractual agreements and market mechanisms, whereas public data circulation often depends on legal authorization and institutional arrangements. moreover, private and commercial data primarily serve individual or corporate interests, while public data utilization aims to maximize public welfare. therefore, accurately defining the scope of public data is essential for discussing its circulation, utilization, and legal regulation. professor zhang xinbao and dr. cao quanzhi pointed out that public data possesses “public nature” because it originates from the exercise of public authority or provision of public services. consequently, its ownership and utilization methods should differ from those of private and corporate data (zhang, x. b., & cao, q. z., 2023, pp. 41-55). in practice, public data primarily encompasses the following categories: 1) government data, generated by administrative departments at all levels during governance processes, including information on population, industry and commerce, taxation, transportation, and social security. 2) public service data, produced by public institutions (such as education, healthcare, power supply, water utilities, and meteorology) during service delivery. 3) research and public welfare data, including scientific findings and environmental monitoring data generated by research institutions and public-funded projects. 4) nationally mandated data collected for national security or social governance purposes. the core attribute of public data lies in its “public nature”. as it originates from government or public institutions performing official duties, it differs from private information’s individual characteristics www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 248 published by scholink inc. and corporate data’s market-oriented nature. this public nature manifests in three aspects: 1) public origin: data comes from government departments or public institutions supported by public funds. 2) public function: data serves social governance and public interest realization. 3) public benefit: open data utilization should benefit the general public rather than specific entities. despite its public nature, public data inherently possesses property attributes. it can be stored, transmitted, and traded, generating market value. after anonymization, cleaning, and integration, public data can become productive factors driving digital economy development. therefore, recognizing its property attributes forms the foundation for establishing legal frameworks governing public data circulation. additionally, public data carries social and security dimensions beyond its property attributes. as public data encompasses sensitive domains such as social governance, national security, and public services, it contains personal information like demographic and medical data. any misuse or leakage could lead to privacy violations, market monopolies, or even national security risks. therefore, the legal attributes of public data must strike a balance between public interest, property rights, and security considerations. in conclusion, public data possesses both public and proprietary attributes along with security concerns, resulting in a complex and multidimensional legal nature. this composite nature dictates that its circulation and utilization should not be entirely market-driven or administratively controlled, but rather achieve a balanced equilibrium through legal frameworks. 1.2 institutional value of public data circulation and utilization public data, regarded as the “raw materials” of the digital economy, serves as a crucial catalyst for its growth. when governments effectively manage and distribute their vast datasets, it significantly reduces corporate data acquisition costs while driving industrial innovation and business model upgrades. for instance, opening up transportation data can fuel the development of smart mobility and autonomous driving technologies, while sharing meteorological data can advance precision agriculture and disaster prevention systems. the circulation and utilization of public data can enhance the scientific and refined level of social governance. by opening public data, governments can promote social participation, enhance policy transparency, and strengthen public oversight. for example, the disclosure of fiscal budget data and environmental monitoring data helps improve government credibility and the effectiveness of social governance. public data constitutes a vital component of the data factor market (fan, j. j., 2024, pp. 68-81). without orderly circulation of public data, structural imbalances would emerge in the data market, resulting in uneven distribution of data resources and market monopolies. by entering the market through authorized operations, public data not only enhances market supply but also creates demonstration effects, driving improvements in mechanisms for data ownership confirmation, trading, and pricing. the openness and circulation of public data must be conducted within the framework of safeguarding national security and social equity. on one hand, it is essential to prevent data breaches that endanger national security and personal privacy. on the other hand, we must avoid the monopolistic exploitation www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 249 published by scholink inc. of public data by a few enterprises, which could exacerbate the digital divide. therefore, legal regulations governing the circulation and utilization of public data play a vital role in maintaining social equity and national security. internationally, the openness and utilization of public data have become a crucial component of digital economy policies. the european union’s open data directive explicitly requires member states to disclose high-value datasets, facilitating cross-border data utilization. in january 2009, the obama administration released the “memorandum on transparent and open government,” followed by the launch of data.gov in may that year, marking the systematic implementation of open government data policies in the united states. these initiatives aim to enhance transparency and encourage public and corporate reuse and value-added development of public data (zhang, z. q., & jiang, h., 2016, pp. 27-28). japan’s public data strategy, particularly its “society 5.0” initiative, emphasizes integrating cyberspace with the physical world through technologies like the internet of things (iot), big data, and artificial intelligence (ai). in documents such as the “ai strategy” and “iot strategic plan”, the japanese government identifies the effective use of public data as a key element to promote ai applications in critical sectors including healthcare, transportation, and infrastructure. this supports national industrial upgrading and addresses social challenges. these experiences demonstrate that the circulation and utilization of public data not only generates economic benefits but also strengthens national competitiveness and international governance influence. public data, as a special type of data resource, combines elements of publicness, property, security, and personal information protection. in terms of legal attributes, it differs from both private data and purely commercial data, exhibiting multidimensional and composite characteristics. the institutional value of public data circulation and utilization is reflected in promoting the development of the digital economy, optimizing social governance, facilitating the construction of the data market, and ensuring social equity and national security. therefore, legal regulation of public data circulation and utilization is not only an inevitable requirement for legal systems to respond to the challenges of the digital era, but also an important aspect of building a digital china and achieving the modernization of the national governance system and governance capabilities. 2. the current situation and problems of public data circulation and utilization in china 2.1 the current situation of china’s public data circulation and utilization policies and practices (1) institutional layout at the national level in the era of the digital economy, public data has gradually been regarded as an important factor of production. the fourth plenary session of the 19th cpc central committee first proposed “to treat data as a factor of production in distribution, officially recognizing data as a factor of production.” subsequently, a series of laws, regulations, and policy documents such as the “data security law”, the “personal information protection law”, the “overall layout plan for digital china construction”, and the “digital china construction 2025 action plan” were successively issued, forming an institutional www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 250 published by scholink inc. framework with security as the premise, openness as the orientation, and utilization as the goal. the december 2022 release of the “opinions of the cpc central committee and the state council on establishing a data infrastructure system to better leverage data as an economic factor” emphasized the need to “focus on data property rights, circulation and trading, revenue distribution, and security governance. it called for active participation in formulating international high-standard digital rules, aiming to establish a data infrastructure system that adapts to data characteristics, aligns with the laws of digital economic development, safeguards national data security, and highlights innovation leadership.” this provides top-level institutional guidance for the circulation and utilization of public data. the establishment of the national data administration in 2023 further demonstrates the state’s emphasis on public data management and utilization, marking china’s entry into a new phase of institutionalized and standardized public data circulation and application. (2) local exploration and pilot practice driven by national policies, some regions have pioneered the exploration of authorized operations and market-oriented utilization of public data. as a national leader in public data authorization pilot programs, shenzhen has implemented government data openness in transportation, healthcare, education, and other sectors while establishing a data trading platform (guangdong provincial government services and data administration. experience sharing: accelerating the construction of digital shenzhen, building a benchmark for new smart cities and a model for digital china cities). shanghai established china’s first data exchange, promoting compliant circulation of public and enterprise data. zhejiang provence introduced the nation’s first local regulation in public data management—the “zhejiang public data regulation”—developing an integrated intelligent data platform across provincial, municipal, and county levels. the province has also hosted continuous data innovation competitions and issued china’s first provincial-level operational guidelines for public data authorization. these local explorations have provided practical experience for the circulation and utilization of public data in china, but many problems have also been exposed. (3) preliminary construction of public data authorization operation mechanism “public data authorized operation” is an innovative mechanism in china’s public data utilization sector. in 2024, the general office of the cpc central committee and the state council issued the “opinions on accelerating the development and utilization of public data resources,” further emphasizing the inclusion of public data authorized operation within the “three major and one important” decision-making scope. under strong national policy guidance, regions across the country are actively advancing legislative work related to public data authorized operation. some local governments have experimented with entrusting state-owned enterprises with public data operations, promoting data circulation through market-oriented approaches. this initiative has achieved social utilization of public data resources and stimulated industrial innovation to some extent. however, due to the lack of clear ownership definition and unified national legal standards, this mechanism remains www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 251 published by scholink inc. in its exploratory phase with numerous uncertainties. 2.2 main problems in the circulation and utilization of public data (1) unclear ownership and legal positioning currently, the ownership of public data in china remains undefined. some scholars argue that public data should be state-owned with government-managed administration, while others propose a “state-owned, government-managed, and socially shared” model. the absence of unified legal regulations often results in unclear rights holders and ambiguous usage permissions when public data enters circulation. this not only reduces data utilization efficiency but also creates potential conflicts of interest. (2) lack of profit distribution mechanism the utilization of public data involves multiple stakeholders including governments, enterprises, and the general public. in practice, the absence of a clear profit-sharing mechanism often leads to ambiguous revenue attribution during authorized operations and commercial applications (tong, n. n., yang, m. x., mo, x. y. et al., 2023, pp. 23-35). while businesses can generate substantial commercial value through public data usage, the public—being the true source of this data—frequently receive inadequate compensation. this imbalance in benefit distribution may exacerbate social inequities. (3) insufficient data opening and low utilization efficiency while china has made progress in government data openness, the overall level of public data accessibility remains limited. most regions have only established data catalogs, with truly machine-readable and accessible data resources still insufficient. compared to the eu and the us, china’s public data openness needs improvement in both scope and depth. for instance, the us data.gov platform has already made over 250,000 datasets publicly available, while china lags behind in quantity, quality, and accessibility. (4) privacy protection and data security risks are prominent public data often contains vast amounts of sensitive personal information, such as demographic, healthcare, and educational data. during the process of opening and utilizing such data, the absence of strict security measures can easily lead to privacy breaches and information misuse (li, y., 2014, pp. 439-444). although the personal information protection law establishes principles and restrictions for public sector handling of personal information, practical implementation of public data circulation still faces technical and managerial loopholes like “insufficient anonymization” and “incomplete de-identification.” moreover, the misuse of public data may endanger national security. for instance, if public data in sectors like energy, transportation, and communications is leaked, it could be exploited by foreign entities, thereby compromising the security of critical national infrastructure. (5) market order is not standardized and monopoly risk the exploration of public data authorization mechanisms has, to some extent, driven the development of the data market. however, due to the absence of unified national regulatory frameworks, local pilot programs have encountered issues of irregular market practices. in some regions, a small number of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 252 published by scholink inc. state-owned enterprises monopolize the operation rights of public data, resulting in a lack of competitiveness and transparency in data utilization, and even posing risks of secondary monopolies. this phenomenon contradicts the fundamental goal of public data to “benefit all citizens.” (6) the legal system is not perfect while china has enacted the data security law and personal information protection law, it has yet to establish a dedicated legislation governing the circulation and utilization of public data. the current legal framework remains fragmented and principle-based, lacking concrete operational provisions. critical issues such as defining the scope of public data openness, establishing unified authorization mechanisms, and distributing benefits all lack clear legal support. this institutional gap has hindered the further development of public data circulation and utilization. public data, as an emerging legal issue, remains in its nascent stage of theoretical exploration. academic circles exhibit significant divergence regarding ownership rights, legal attributes, and regulatory frameworks, with a lack of consensus-driven theoretical achievements. this theoretical lag directly results in institutional designs and legal practices lacking solid academic foundations. compared to the eu and the us, china’s public data legislation started later, with existing provisions scattered across fragmented regulations like the data security law, government informatization regulations, and government information disclosure regulations. this fragmented state hinders the formation of systematic and operational frameworks. meanwhile, public data circulation involves multiple government departments, yet a widespread “data silos” phenomenon persists. the absence of cross-departmental coordination mechanisms leads some agencies to prioritize data collection over sharing, even treating data as “departmental assets,” which obstructs public data sharing and circulation. effective public data openness and circulation require technical measures such as data governance, privacy protection, and cybersecurity. however, some local governments lack sufficient data governance capabilities, talent reserves, and technical expertise, resulting in superficial data openness that fails to meet societal and market demands. china’s public data circulation and utilization have entered a phase of institutional exploration. while the national government has established top-level design frameworks and local authorities have launched pilot programs, the authorization and operation mechanisms for public data are still in their infancy. however, persistent challenges—including ambiguous ownership rights, lack of benefit distribution mechanisms, insufficient openness, prominent security risks, irregular market practices, and incomplete legal systems—continue to severely hinder orderly circulation and efficient utilization of public data. these issues stem from theoretical research and legislative delays, departmental barriers, and inadequate technical capabilities. moving forward, it is imperative to promote standardized and legally compliant public data circulation and utilization through a multi-dimensional approach combining institutional improvements, legal regulations, and technological safeguards. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 253 published by scholink inc. 3. legal regulation logic of public data circulation and utilization public data inherently combines public and proprietary attributes, creating a dual challenge of balancing social welfare with market efficiency in its circulation and utilization. while the open access to public data serves to enhance government transparency, optimize social governance, and ensure equity and justice, its market integration as a production factor demands improved resource allocation efficiency and innovation-driven development. overemphasizing market efficiency risks monopolizing or misusing public data, potentially harming public interests. conversely, excessive focus on public attributes may stifle the market value of data, leading to resource wastage. therefore, establishing a balance between public welfare and market efficiency remains the fundamental principle in regulating public data through legal frameworks. another prominent contradiction in the circulation and utilization of public data lies in the conflict between openness and security protection. while open sharing enhances transparency and innovation capabilities, public data often contains sensitive information and personal privacy. without effective safeguards, this could lead to data breaches, misuse, or even national security risks. although the data security law and personal information protection law have established the principle of prioritizing security, striking a balance between “maximizing openness” and “security first” remains a key challenge in institutional design. the circulation and utilization of public data require a dual approach of state leadership and societal participation. the government maintains macro-management authority through authorized operation mechanisms and data trading platforms, while the public and market entities seek more accessible and convenient ways to leverage these resources. balancing national strategic security with stimulating social innovation has become a key principle in regulating public data systems. 3.1 basic principles of public data legal regulation (1) principle of public interest priority the legal nature of public data dictates that public interest must be the primary objective in its circulation and utilization. this principle requires: the use of public data must not harm the overall social interest; the distribution of benefits from public data should reflect universal sharing; and the opening of public data should prioritize serving public welfare, scientific research, and infrastructure development. (2) safety and control principle data security is the baseline for public data circulation. the data security law explicitly states in its first article that “national sovereignty, security, and development interests must be safeguarded” (data security law of the people’s republic of china, article 1: this law is formulated to regulate data processing activities, ensure data security, promote data development and utilization, protect the legitimate rights and interests of individuals and organizations, and safeguard national sovereignty, security and development interests). therefore, all public data circulation and utilization must be conducted within controlled parameters, including measures such as classification and tiered protection, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 254 published by scholink inc. cross-border flow review, and cybersecurity safeguards. (3) legal compliance principle public data circulation must be based on legal compliance, in line with the requirements of the personal information protection law, the cybersecurity law and other laws. especially when it comes to personal privacy data, the principles of minimum necessity and de-identification should be strictly followed. (4) fair and reasonable principle the opening and utilization of public data should avoid the formation of a new unfair pattern. when promoting data authorization and operation, the government should prevent the formation of a monopoly of state-owned enterprises or specific entities, and ensure the equal status of different market entities in the utilization of data. (5) transparency and oversight the process of opening and using public data should be transparent and subject to public and social supervision. by establishing open data catalogs, open use rules and regulatory mechanisms, public trust can be enhanced and data abuse can be prevented. 3.2 regulatory model of public data circulation and utilization (1) ownership the foundational principle of public data governance lies in clarifying ownership. the prevailing consensus advocates a “state-owned, government-managed, society-shared” framework. specifically, state ownership signifies that public data belongs to the nation, representing the collective interests of society. the government exercises management authority through mechanisms including data openness, authorization, and security oversight. within legal frameworks, stakeholders enjoy both utilization rights and beneficiary rights. this model prevents public data from becoming “ownerless” or “fragmented across departments,” ensuring the fulfillment of public-interest objectives. (2) open the essence of public data openness lies in classification and tiered management. data should be categorized into three levels based on their importance and sensitivity: 1) high-sensitivity data (involving national security, public safety, and critical livelihoods, such as defense and energy data, which must be strictly restricted) 2) general-sensitive data (including personal information or trade secrets, requiring limited disclosure after de-identification) 3) low-sensitivity data (such as public information on transportation, weather, and geography, which can be prioritized for wider access). this tiered approach ensures “maximizing openness where feasible, prioritizing disclosure where possible, and maintaining security where necessary”. (3) authorization in the utilization of public data, “authorized operation” has emerged as a significant institutional innovation. the fundamental principle involves the government granting specific entities (primarily state-owned enterprises or public institutions) legal or policy authorization to manage public data, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 255 published by scholink inc. while facilitating data circulation through market mechanisms. this approach maintains national control over public data while enhancing utilization efficiency through market-oriented approaches. however, legal regulations are essential to prevent authorized operations from creating “secondary monopolies”. (4) regulatory the circulation and utilization of public data must establish a comprehensive regulatory framework encompassing three key phases: pre-event oversight through data openness cataloging and cross-border flow reviews; in-process monitoring of data usage to prevent unauthorized exploitation; and post-event accountability mechanisms for penalizing data breaches and misuse. this dynamic regulatory system requires multi-stakeholder participation involving governments, enterprises, and society to achieve diversified governance. 4. construction of legal regulation path for public data circulation and utilization in china under the background of data factorization and the digital china strategy, the circulation and utilization of public data in china urgently require the establishment of a sound legal regulatory system. although existing systems are mentioned in laws and policies such as the “data security law”, “personal information protection law”, and “regulations on government information disclosure”, there are still issues such as fragmentation, strong principle-based nature, and lack of operational details. the legal regulatory logic for the circulation and utilization of public data is an institutional response formed on the basis of composite attributes such as publicness, property, and security. its core lies in balancing public interest and market efficiency, open sharing and security protection, and state control and social participation. in terms of specific approaches, a logical framework of “ownership confirmation—openness—authorization—supervision” should be established. this involves clarifying the ownership of public data through legislation, building a classified and graded open system, a market-oriented authorization and operation mechanism, and a dynamic supervision system across the entire chain. at the same time, emphasis should be placed on comparing and learning from international experiences and aligning with international rules to ensure china’s initiative in global digital governance. this ensures both national security and public interest while unleashing the economic and social value of public data. in conclusion, the institutional design for future public data circulation and utilization should adhere to the following guiding principles: 1) establish a property rights framework for public data under the principle of state ownership with government management, while considering social sharing. 2) implement differentiated circulation regulations based on the importance and sensitivity of public data, creating a classified and tiered management system. 3) within legal boundaries, allow specific institutions to operate public data through market mechanisms to drive value transformation, establishing authorized operation and market-oriented mechanisms. 4) improve benefit distribution and accountability mechanisms to reasonably balance interests among the state, market entities, and the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 256 published by scholink inc. public. 5) strengthen security safeguards and regulatory measures to ensure public data circulation and utilization under the premise of national security and personal privacy protection. 4.1 construction of public data ownership system public data generated or managed by government agencies at all levels during the performance of public functions shall be owned collectively by the state, not individual departments. its legal status should be defined as state-owned, government-managed, and socially shared. state ownership ensures public data does not become departmental interests or local resources, guaranteeing unified national ownership of data assets. government management entails authorities as custodians and administrators of public data, responsible for proper preservation, rational utilization, and lawful disclosure. social sharing grants the public and enterprises legal rights to access and utilize public data within legal frameworks. by enacting the public data management law or amending the data security law, the ownership of public data shall be clarified. data catalogs shall specify ownership, circulation methods, and usage boundaries for different types of public data. specialized institutions like the national data administration shall uniformly exercise functions of rights confirmation, management, and openness for public data. 4.2 the classification and grading management system of public data public data is categorized into three types based on their nature and purpose: 1) sensitive data: public data involving national security and social stability, such as military, diplomatic, and public safety information. 2) restricted data: public data related to citizens’ privacy or commercial secrets, including medical records, educational data, and business registration records. 3) open data: public data that can be freely shared with society, such as weather forecasts, transportation data, geographic information, and statistical statistics. based on classification, public data is categorized into three levels—general, important, and core—according to their significance and associated risks, with differentiated access policies implemented. general-level data: open access is the default, with restrictions as exceptions. important-level data: requires official review and authorization before use. core-level data: generally not open to the public, but may be authorized for research or security purposes under specific conditions. 4.3 public data authorization operation mechanism public data authorization operation refers to the government’s legal authorization to entrust specific public data to qualified operators for market-oriented development and utilization. the primary models include: 1) data exchange model: standardized trading and utilization of public data through dedicated platforms. 2) state-owned enterprise model: development and service of public data by state-controlled data operation companies. 3) hybrid model: allowing private capital participation in public data utilization while maintaining government control over core data. the authorization conditions, scope and duration for operation shall be clearly defined. the rights and obligations of the government and the operator shall be specified in the authorization contract. a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 257 published by scholink inc. supervision and review mechanism for operation activities shall be established to prevent abuse or illegal use. 4.4 mechanism for benefit distribution and responsibility for public data circulation and utilization the circulation and utilization of public data involve three stakeholders: the state, enterprises, and the public. to achieve balanced interests through institutional arrangements, three key principles should be implemented. first, ensure that public data usage aligns with national strategies and public interests. second, allow enterprises that bear risks and costs to obtain reasonable returns through lawful utilization. finally, enhance public services and promote inclusive applications to enable the public to benefit from public data utilization. operational entities must implement data security measures and bear legal liability for any data breaches or misuse. if public data utilization infringes upon citizens’ privacy rights or corporate trade secrets, civil liabilities shall apply. for serious violations including national security breaches and illegal cross-border data transfers, corresponding administrative penalties or even criminal liabilities shall be imposed. 4.5 security guarantee and supervision mechanism for public data circulation and utilization before opening or authorizing the operation of public data, a national security and privacy protection risk assessment must be conducted. public data involving personal information should undergo de-identification. dynamic supervision and traceability mechanism: utilize blockchain and other technologies to achieve full traceability of data circulation. the national data administration will lead the establishment of a cross-departmental coordination mechanism, and set up specialized public data regulatory agencies in key industries such as medical care, finance and transportation. a public participation mechanism will be established to enhance the transparency of public data governance. the legal regulatory path for the circulation and utilization of public data in china should be a closed-loop system of “rights confirmation—classification—authorization—allocation—responsibility—security”. through a unified ownership system, scientific classification and grading, standardized authorization and operation, fair benefit distribution, strict responsibility mechanisms, and comprehensive security safeguards, orderly circulation and efficient utilization of public data can be achieved. in the construction of the system, it is necessary to absorb international experience while being grounded in china’s national conditions, forming a public data governance model with chinese characteristics, thereby providing a solid legal guarantee for the development of the digital economy and the modernization of national governance. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 258 published by scholink inc. 5. conclusions and perspectives the legal nature of public data is inherently complex, differing from both ordinary personal information and traditional state assets. it combines public and proprietary attributes, serving as both a foundational resource for national governance and a crucial production factor driving digital economic development. its legal framework should be defined as “state-owned, government-managed, and socially shared” to prevent fragmentation and departmental self-interest. although china has established foundational regulations like the data security law and personal information protection law, along with the national data administration, the sector still faces challenges including unclear ownership, fragmented management, inefficient circulation mechanisms, and relatively high security risks. particularly in the commercial utilization of public data, there remains a lack of clear legal basis and standardized operational mechanisms. the fundamental framework for regulating public data in china should follow the sequence of “rights confirmation—classification—authorization—allocation—accountability—security”. in institutional development, the process should begin with clarifying ownership rights of public data. next, establish a classification and grading system to scientifically differentiate between open and restricted scopes. thirdly, enable market-oriented development of public data through authorized operations. building on this foundation, improve mechanisms for benefit distribution, accountability systems, and security safeguards, ultimately forming a closed-loop governance structure for public data. overall, public data serves as a crucial pillar for the modernization of national governance systems and capabilities, as well as a core resource for the development of the digital economy (liu, j. f., & yu, y. w., 2023, pp. 93-100). its circulation and utilization not only involve economic efficiency but also concern national security, social equity, and the protection of individual rights. by establishing a scientific, rational, and operational legal regulatory framework, china can unleash the immense potential of public data while safeguarding public interests, thereby promoting the high-quality development of digital china and the digital economy. in the future, as international rules continue to evolve and domestic systems remain refined, public data governance will advance to a higher level of standardization and legalization. researchers and legislators should maintain close attention to this field, striving to establish a china-characteristic legal system for the circulation and utilization of public data that balances openness and security, efficiency and fairness, contributing china’s wisdom and solutions to global data governance. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 259 published by scholink inc. references cheng, x. (2023). on data rights. journal of the national prosecutors college, 31(05), 77-94. data security law of the people’s republic of china, article 1: this law is formulated to regulate data processing activities, ensure data security, promote data development and utilization, protect the legitimate rights and interests of individuals and organizations, and safeguard national sovereignty, security and development interests. fan, j. j. (2024). research on the integration of public data into the data element market model. journal of information resource management, 14(02), 68-81. guangdong provincial government services and data administration. experience sharing: accelerating the construction of digital shenzhen, building a benchmark for new smart cities and a model for digital china cities. available from: https://zfsg.gd.gov.cn/xxfb/ywsd/content/post_4677766.html [accessed 11th november 2025]. li, y. (2014). analysis of mobile internet information security threats and vulnerabilities. communication technology, 47(04), 439-444. liu, j. f., & yu, y. w. (2023). the conceptual definition, influencing factors, and development path of digital government transformation. nandu xuetan, 43(06), 93-100. national data administration. the first batch of common terminology explanations in the data field. available from: https://www.nda.gov.cn/sjj/zwgk/zcfb/1230/20241230160715745237413_pc.html [accessed 11th november 2025]. the state council’s opinions on promoting the innovative development of cloud computing and cultivating new forms of information industry (guo fa [2015] no. 5); the state council’s notice on issuing the action outline for promoting big data development (guo fa [2015] no. 50). tong, n. n., yang, m. x., mo, x. y. et al. (2023). data finance: a model framework for promoting interest distribution in public data authorization operations in the new era. e-government, 2023(01), 23-35. zhang, x. b., & cao, q. z. (2023). research on legal mechanisms for public data ownership authorization. comparative law studies, 2023(03), 41-55. zhang, z. q., & jiang, h. (2016). seven years of experience and insights from data openness in the united states. communication world, 2016(24), 27-28. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 3, 2023 www.scholink.org/ojs/index.php/elp 55 original paper the combination of chinese and western sculpture art and the future direction wang fuxin 1 1 college of landscape architecture and art, jiangxi agricultural university, nanchang, jiangxi, china received: october 1, 2023 accepted: november 1, 2023 online published: december 10, 2023 doi:10.22158/elp.v6n3p55 url: http://dx.doi.org/10.22158/elp.v6n3p55 abstract sculpture art is the physical form of human emotion overflow. sculpture is an important part of chinese and western culture. whether ancient or modern, the creation of sculpture reflects the cultural spirit of the times. due to the different cultural backgrounds, the themes of chinese and western sculpture art show great differences. the different cultures of china and the west determine that there are great differences between chinese and western sculpture art. with the development of economic globalisation, the collision and fusion of chinese and western cultures have prompted chinese contemporary sculpture to present a combination of traditional and western cultures. the performance of traditional and western culture in modern sculpture is analysed, and an effective way of combining chinese and western culture is proposed from three aspects: theory and practice, connotation and function, and realism and realism. sculpture art, as one of the important forms of artistic expression, is able to show the great differences between chinese and western cultures. the development of contemporary sculpture art, to recognize the significance of cultural integration and development, and to seek ways to effectively combine traditional chinese culture with western culture, so as to better promote the development of modern sculpture art. keywords statuary art, cultural fusion, traditional culture www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 56 published by scholink inc. 1. the artistic characteristics of chinese and western sculpture 1.1 the artistic characteristics of chinese sculpture the themes of chinese sculpture are relatively more extensive. for example, it includes characters, fictional animals, myths and legends, life scenes, natural landscapes, historical stories, musical and dance theatre performances and so on, all of which can be used as the theme and content of sculpture. in chinese sculpture, images of animals account for a relatively large proportion, especially during the pre-qin and qin-han periods (i.e., before the flourishing of buddhist sculpture), sculptors portrayed animal images that were more artistically successful than people. so in terms of subject matter, the centrality of man in chinese sculpture is less prominent than in western sculpture. although in general there are many more figures in chinese sculpture, they are not as striking. it is no accident that chinese sculpture is characterised by freedom and boldness in its choice of materials, and is not limited to specific objects of expression. the chinese believe that life is immortal, and they do not focus on the preservation of material life, but on the fulfilment of one’s social duties and responsibilities. what the chinese seek is the realisation of spiritual character in society, not the pursuit of personal immortality apart from social ethics. 1.2 characteristics of western sculpture the development of western art history has a clear historical lineage, which follows the trajectory of history. unlike chinese sculpture, western sculpture pays more attention to the accuracy of scale, anatomy and perspective. western sculpture pays more attention to the expressiveness of human structure. in sculpture, certain emotions are conveyed through the changes of the human body, so it is very important for the movements and turning changes of the human body. classical western sculpture often uses the rich variations of block and space as a way of reflecting the shape of silhouettes and clothing lines. in addition, western sculpture has a strong sense of volume, whereas classical chinese sculpture has only a great deal of volume in relation to one another and is mostly flat. sometimes artists use intaglio lines on flat surfaces to show the wrinkles of skin and clothes, so there is still no sense of three-dimensionality, only the flat effect of painting and tanning. as a result, the surfaces of chinese sculpture are usually smooth and do not have as many subtle variations as western sculpture. 2. a simple comparison of chinese and western traditional sculpture 2.1 chinese traditional sculpture mr wu weishan, a contemporary chinese sculptor, said in blurring and vividness: “the support of writing is the sensitivity of the chinese. sensitivity makes time swift. however, zhongjie has an astringent flavour and is uneven like volcanic lava. the infectious power of chinese sculpture-the radiation of emotion-acquires the first voice and achieves a high degree of evocation. it vividly attracts the viewer. lines represent three levels: contour, volume and spirit. the expression is centred on pinching and moulding. unlike the western spirit of discursive rationality, chinese rationality is practical rationality focusing on practice. body, hand and heart correspond to each other, fingers are www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 57 published by scholink inc. connected to the heart, and human heart, humanity and human feelings are focused on humanity. the continuity and length of this line is consistent from beginning to end. it breaks down the boundaries between everything and is a metaphysical pursuit that runs through the entire life process”. his 16-metre-high work, “the unity of heaven and humankind-image of lao tzu”, wearing a wide taoist robe with large flowing sleeves and long eyebrows, portrays a natural and profound way of creating all things in the heavens and the earth, which is highly esteemed by first-timers. it embodies the glamour of chinese landscape and nature, that is to say, laozi’s tao te ching advocates that “man obeys the law of the land, the earth obeys the law of the sky, the sky obeys the law of the tao, and the tao obeys the law of nature”. wu weishan’s “portrait of laozi” reflects the author’s unique understanding and thinking of traditional chinese religion, philosophy and art. wu weishan’s sculpture is a rediscovery of the traditional chinese way of thinking, the beauty of oriental “nature”, and a response to western sculpture. “there is nothing in this pavilion, sitting and looking at the scenery you get everything”. the shape of traditional chinese sculpture reflects the charm of nature and the chinese unique view of nature. wu weishan pursues an unbalanced aesthetic attitude, which is similar to some of the ingenious compositions in chinese freehand painting. at the same time, when shaping the image, it is also necessary to grasp the principle of “similarity with difference” in traditional chinese painting theory, meaning “no similarity at all, not easy to reach the ears”, “heaven and earth are one, then divided into wind and rain, the four seasons, light and dark, far and near, wind and rain, and the four seasons, light and dark, far and near, and the four seasons. the four seasons, the light and darkness, the distance and the proximity, are not similar. all these are just right”. 2.2 western traditional sculpture the aesthetic value of western traditional sculpture is a concept of form that emphasises diversity and unity, based on the unity of difference and opposition between the local and the whole. emphasis is placed on form, thinking in terms of proportion, space, structure and turn of form. in terms of expression, under the guidance of the theory of “representation”, traditional western sculpture has developed a realistic and reproducible approach. according to sculptor hildebrand, “sculpture should be based on relief vision, i.e., showing a face from a fixed point of view, whereas sculpture in the round prohibits viewing from the periphery. like a bas-relief, it should show the form it wants to show in a decreasing manner, a face advancing backward one layer at a time”. the sculptures of michelangelo, an icon of renaissance sculpture, also valued form. the statue of david he created as a whole has been highly summarised and refined, filled with infinite power in a quiet gesture, showing extraordinary heroism, focusing on all the male beauty and showing michelangelo’s strong emotions that border on exaggeration. his works underwent an extraordinary ideal processing on the basis of realism and became typical symbols of the whole era. he believed that the criteria for good sculpture were modesty, completeness, and full of volume, and he paid more attention to the study of art and related disciplines, including natural sciences, geography, botany, geometry, anatomy, architecture, and so on. michelangelo’s keen observation, great skill and powerful spirit pushed the western realist tradition to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 58 published by scholink inc. unsurpassed heights. these are also influenced by the western traditional culture, which is an indispensable force in the history of western culture, constantly influencing and changing the sculptor’s form of sculpture art, as well as the unique aesthetic ideas and unique concepts of treating nature and society possessed by western sculptors. 3. the expression of western culture in modern sculpture under the perspective of cultural integration influenced by the different philosophies of china and the west, chinese and western sculpture have different cultural spirits. however, chinese modern sculpture is deeply influenced by western culture and is often expressed in the form of western art. 3.1 performance in terms of subject matter from the theme point of view, western sculpture focuses on characterisation and expression of ideas, pays more attention to the scientific nature of the human body’s proportional structure, and is accustomed to using human body changes to express emotions, so the movements and turns of the sculpture form are more important. contemporary sculpture “chord” is a bronze sculpture that depicts musicians playing music between cities in a realistic way. the work reflects the silhouette of the figure and the modelling of the clothes with rich block changes, and the whole has a strong sense of three-dimensionality. obviously, it adopts the figure shaping method of western sculpture, highlighting the beauty of the scene by showing the beauty of the human body, which is in line with the artistic characteristics of western sculpture with the theme of the beauty of the human body. 3.2 material performance western industrial civilisation is relatively mature, and got rid of the dependence on natural resources earlier. therefore, western sculpture materials tend to choose stone, metal and other materials. the materials used in the sculpture “enjoying moon flowers” are mainly stone and copper, using the stone carving of the moon with patterns to create a beautiful landscape image, so that the bronze statue blends well with the surrounding landscape and thus achieves a perfect decorative effect. on the surface of the material, whether it is stone or copper carving, there are subtle changes, such as the use of negative engraving to show the folds of the clothes, giving a strong sense of three-dimensionality, better reflecting the aesthetic characteristics of western sculpture art. 3.3 manner of performance in terms of artistic expression, western sculpture art is a three-dimensional modelling art, focusing on the use of the actual volume, the pursuit of formal perfection and display. in the creation of stone sculpture, in the west, through three-dimensional carving, the use of the texture of the stone itself to reflect the sense of depth and realism, so as to enhance the simplicity of the work with simple tones. the sculpture “power” realistically shows a fast steel ball pushing against a steel plate. with the thickness of the steel plate and the deformation of the steel ball, it statically reflects the dynamic process, conveys the philosophy of movement as opposed to static, and embodies the unique artistic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 59 published by scholink inc. charm of western sculpture. 4. effective combination of traditional culture and western culture in modern sculpture under the perspective of cultural integration in the context of cultural integration, modern sculpture also needs to achieve an effective combination of chinese and western culture, so as to strengthen the exchange and interaction between chinese and western culture, and better create modern sculpture to meet the aesthetic needs of people in modern society. 4.1 combination of theory and practice the reason why chinese sculpture art has long been stagnated by the impact of western culture is directly related to the lagging development of chinese sculpture theory. chinese traditional sculpture has not been given enough attention, and the relevant theories have not been well developed and perfected, resulting in the contemporary chinese sculpture artists in the face of western sculpture art are in the degradation of their own problems, but the chinese sculpture art after thousands of years of development, has accumulated a wealth of practical experience, and is able to show the unique charm of traditional chinese culture in the creation of art. in fact, the development of western sculpture art is also deeply influenced by chinese art style. for example, the history of western modern sculpture has repeatedly mentioned the influence of chinese art style on the process of western modern art, and oriental porcelain and embroidery have brought creative inspiration to western artists. therefore, in the creation of contemporary sculpture art, the theory of western modern sculpture should be combined with the practice of traditional chinese sculpture art to promote the progress and development of chinese sculpture art under the guidance of theory. drawing on western sculpture styles and materials, we can achieve the innovation of contemporary sculpture forms, strengthen the personalised pursuit of contemporary sculpture art language, and complete the creation of works with both romanticism and critical realism. from the development history of the chinese nation, traditional chinese culture has shown a strong vitality. therefore, in the creation of contemporary sculpture art, it is also necessary to give full play to the advantages of traditional chinese culture, to achieve tolerance of western sculpture culture, and to draw nutrition from it, so as to better promote the development of traditional culture while achieving cultural inheritance. 4.2 combination of connotation and function comparison of chinese and western culture can be found, traditional chinese sculpture art has a deep cultural connotation, while western modern sculpture art is very rational and practical. in the creation of contemporary sculpture art, it is necessary to pay attention to both the cultural connotation of sculpture and the social function of sculpture decorating space, and to meet people’s aesthetic needs while retaining the basic characteristics of things. in order to achieve this goal, contemporary sculpture artists can seek inspiration from traditional culture, strengthen the excavation of traditional sculpture art materials, and then use western rustic modelling techniques to create, combining originality and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 60 published by scholink inc. modernity. the sculpture “restored nurse man” adopts the flat figure of manchu folk paper-cutting art, and by realising the three-dimensional modelling of the image, it combines rusty metal and rough wood to complete the creation of the figurative sculpture, conveying a strong sense of vicissitudes. compared with traditional chinese sculpture, western sculpture has a stronger propaganda character. chinese traditional sculpture tends to serve a few people, while western sculpture pursues the public’s appreciation of art and emphasises the promotion of the humanistic spirit. therefore, it has more social education and cognitive functions, which can lead people to better understand the truth and history. in the creation of contemporary sculpture art, it is necessary to use traditional sculpture art and culture to inject fresh vitality into the work, while at the same time focusing on the function of the sculpture to play the role of beautifying the environment. using this approach, sculpture design can break through the limitations of the western human thought theme, using abstract forms to show the profound ideological connotation, but also from the point of view of serving the people for artistic exploration, so that the works created to give people spiritual solace. 4.3 combination of realistic and realistic writing in the performance of modern sculpture art, it is also necessary to strengthen the combination of traditional chinese realism and western realism, in order to form a unique artistic charm. in the study of sculpture art, it is also necessary to strengthen the realistic training of sculpture, so as to enhance the sculptural sense of the work, better reflect the beauty of the overall structure and layout of the sculpture, and realise the pursuit of the sense of quantity. in social practice, people gradually grasp the intrinsic properties of objects through contact with objects of various shapes, and then produce different feelings, and ultimately create an aesthetic pursuit of physical form. therefore, in the creation of contemporary sculpture, it is important to maintain the basic characteristics of modelling, thus helping people to imagine and remember, and thus bringing stronger visual impact. strengthening the application of writing in traditional sculpture can achieve a deep understanding of the concept of traditional chinese art creation and show the diverse styles of art creation. the sculpture “tai chi” adopts the western modelling norms, and at the same time refines the essence, spirit and spirit of traditional chinese art and culture, so that the work achieves the realm of “the text as the first”, which can not only bring strong visual impact, but also evoke people’s reverie for the primitive atmosphere of life. therefore, in the creation of contemporary sculpture, while applying western realistic techniques, it is also necessary to strengthen the use of traditional chinese pictorial techniques in the treatment of details, instead of deliberately pursuing strict proportionality, and to use abstract imagery to express pictorial things, so as to retain the basic characteristics of things and strengthen the transmission of imagery. adopting this method to realise the combination of chinese and western cultures can perfectly portray the external form of things, while showing the inner temperament characteristics of things, thus making contemporary sculpture simultaneously realistic and abstract aesthetic significance. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 61 published by scholink inc. 5. development of modern sculpture in china 5.1 analysis of the development status of modern sculpture in china like other arts, sculpture in the 20th century also faced the embarrassment of not getting rid of the old ideological norms of the bondage, called “modern” is not enough, too much boast innovation and beyond, will inevitably lose themselves to nothingness. over the past decades, the trend of modern art has been to praise rebellion, negation and scepticism for the purpose of innovation, which has become an indispensable image mark of modernist artists. traditional aesthetic norms and formal meanings no longer play any role. the form is all that is new is good for innovation and unlimited indulgence in truth. instead of trying their best to escape from confusion in the midst of tumultuous social change, artists indulged in confusion or used the excuses it brought to express their fears in the most extreme ways. every sculptor tries his best to be different. if he wants to be different, he will destroy familiar forms of language... though the common god is dead, the artist creates countless gods in his mind. sculpture no longer focuses on the deeper meaning of expression. “the aestheticisation of life and the non-aestheticisation of art have caused the traditional norms of sculpture to disappear completely”, turning for a time the painstaking sculpture career of michelangelo, rodin and countless others before them into a game of jokes about society, art and life among sculptors in the 20th century. it seems that sculpture is not created for society, but for its own art circle. some modern sculptures are highly painterly and even include some abstractions. there are two main reasons. one, there is a lack of awareness of large spaces and a need for education, experience and practice. the second is the need to study contemporary visual experience, public space, new materials and other conceptual art. 5.2 countermeasures for the development of modern sculpture in china 5.2.1 the public nature of modern sculpture traditional sculpture is mainly an external “form” in the environment, while modern sculpture is integrated into the overall environment and becomes the internal “form” of the environment. it combines with the indoor and outdoor environment to become an inseparable work of art. 5.2.2 spatiality of modern sculpture the space reflected by modern sculpture includes environmental space, psychological space and sculpture space. psychological space plays a decisive role as the main body of design. the whole planning, design and implementation can only be decided through the psychological space. the environment, as an object, has the function of accepting the sculpture space. only by accepting the sculpture space can the psychological space be shaped. sculpture as a medium between subject and object makes the design concept finally realised. 5.2.3 naturalness of modern sculpture lao zi’s thought of inaction in “tao te ching” of “something gained, nothing used” is typically reflected in modern sculpture. modern artists see a new way in earth art, which is to use natural materials to create works that are perfectly integrated with nature. when functionality is embodied, people treat it as a work of art; on the contrary, a cool object blends perfectly with nature, and the work www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 62 published by scholink inc. fades with the passage of time, the destruction of natural forces, and the loss of material properties. 5.2.4 chinese characterisation of modern sculpture as a profound cultural tradition, the development and application of traditional chinese cultural resources is an extremely important aspect of the development of chinese modern art, whether it is ancient greece and rome or india and the ancient two river basin civilisation; the mayan culture of south america and the tribal civilisation of africa all have their own rich cultural traditions and resources. chinese modern artists stand at the height of the times, re-examine their own cultural traditions and resources, organically integrate and utilise them, and will surely create modern sculptures with chinese characteristics. 6. conclusion under the background of cultural integration, chinese and western sculpture art has achieved cultural exchange and interaction. to promote the development of contemporary sculpture art, the effective combination of traditional chinese culture and western culture should be strengthened, and the unique charm of contemporary sculpture art should be better demonstrated through the combination of theory and practice, connotation and function, realism and realism. references chen, l. n. (2015). research on traditional spirit in contemporary sculpture art. modern decoration: theory, 2015(3), 158. han, y. t. (1998). writing—the soul of chinese aesthetics. haikou: haitian publishing house. ji, f. (2009). chinese urban sculpture: semantics, context and contemporary connotation. nanjing: southeast university press. liang, s. c. (2003). history of chinese sculpture. tianjin: hundred flowers literature and art publishing house. su, l., & wang, h. l. (2013). analysis and research on the design of public garden landscape sculpture—wuhu city sculpture park as an example. journal of chifeng college: natural science edition, 2013(7), 64-65. sun, z. h. (2002). sculpture space. changsha: hunan fine arts publishing house. sun, z. h. (2005). creating chinese way of sculpture art—wu weishan sculpture art theory. national art, 2005(02). tang, g. w. (2002). world modern urban environmental sculpture. hunan fine arts publishing house. wang, h. j., & yuan, b. l. (eds.). (1994). introduction to fine arts. beijing: higher education press. wang, q. j. (2010). forms of traditional chinese cultural elements reproduced in contemporary sculpture. journal of changchun university, 2010(11), 107-109,114. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 63 published by scholink inc. wang, x. r., & lin, q. y. (2002). theory and practice of western modern landscape design. china architecture industry press. yi, y. (1997). overview of western contemporary sculpture. art observation, 1997(07). zhou, d. j. (2015). analysis of traditional culture and modern ceramic sculpture fusion. art technology, 2015(3), 109. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 17 original paper on the protection of reliance in administrative practice xiangkai jin 1 1 school of ocean law and humanities, dalian ocean university, dalian, china received: january 3, 2025 accepted: january 15, 2025 online published: january 17, 2025 doi:10.22158/elp.v8n1p17 url: http://dx.doi.org/10.22158/elp.v8n1p17 abstract in the field of administrative law, protection of reliance has always been a hot topic of controversy, and its development also reflects the development and change of administrative law to a certain extent. it plays an important role in various administrative behaviors such as administrative litigation, administrative penalty, administrative compensation, as well as on land and at sea. the number of cases in which our courts have utilized reliance protection for interpretation and sentencing in actual trials has also been increasing. however, the principle is to grasp the overall level, the actual use of the principle will still be different according to different cases, and there is a difference in the order of priority. how to correctly identify the protection of reliance in different administrative cases, and the use of it has become the key. therefore, the case of administrative agreement is taken to analyze and explore the protection of reliance in law enforcement. keywords reliance protection, administrative agreement, reliance standard, case analysis 1. case analysis 1.1 brief description of the case in september 2015, the tiefeng district government expropriated part of the houses in sijiazhi village, tiefeng district, qiqihar city, due to a shantytown renovation project. li chunhua had a 47.92 square meter residential house within the scope of the expropriation, which was built on december 26, 2006, and had a construction project planning permit, construction project completion planning acceptance certificate and land use right certificate approved by the tiefeng district planning department of the qiqihar municipal planning bureau. at the time of expropriation, the tiefeng district shed reform project department investigated li chunhua’s housing condition and reviewed the above materials. on september 6, 2015, the tiefeng district shed reform project department signed the agreement on monetary compensation for expropriation of residential houses with li chunhua, who chose to receive monetary compensation, and the two parties agreed that the housing appraisal value would be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 18 published by scholink inc. rmb2,807 per square meter, and that the total amount of monetary compensation would be rmb156,700 yuan. li chunhua signed the agreement and then moved, and the tiefeng district shanty reform project department issued a house requisition acceptance form for li chunhua’s husband, zhang guowen, on the 19th of the same month. now the house has been demolished, the lot of the requisitioned households have moved back to live. the tiefeng district government reviewed li chunhua’s expropriation compensation agreement according to the “one assessment and two reviews” procedure, and found that the area of the land certificate provided by li chunhua’s application for planning approval did not correspond to the area of the house, and considered that the household registration information provided by li chunhua in the application for planning approval and the suspected forgeries of the land certificate needed to be further verified, and therefore did not issue the expropriation compensation for the house. the court of first instance held that li chunhua’s request for the tiefeng district government to pay compensation for house expropriation in accordance with the expropriation agreement should be supported. the court ruled that tiefeng district government should pay li chunhua 156,700 rmb within 30 days from the effective date of this judgment. 1.2 focus of dispute three focuses of the issue can be found by reading and thinking. first, in most of the cases searched, the use of reliance protection for review of most of the administrative licensing, administrative payment and other administrative acts, so the administrative agreement can be applied to the protection of reliance, the application of the elements of what? second, the use of reliance protection, such as the administrative counter-party used deception, then what is the impact on the administrative agreement, whether to prevent the application of reliance protection? third, the principle of protection of reliance on how to assess the justification of the standard, and administrative law and other principles of the connection and conflict, and on this basis to achieve a relative balance of interests and protection? 1.3 discussion of opinions the above case reflects the relevant revocation situation of administrative agreement in administrative expropriation and the principle of protection of reliance in administrative expropriation. at first, the tiefeng district government as a qualified plaintiff put forward the defense because li chunhua had committed deceptive acts, so the compensation was not levied. however, the details of the case is relatively clear, the government and li chunhua signed the agreement belongs to the administrative agreement, and before signing the relevant administrators have been in accordance with the provisions of the assessment, and finally determine the compensation rules and area, belong to the lawful and in accordance with the provisions of the act, the commitment made is also legal and effective. the responsibility after the official assessment was taken by the administrative subject, and li chunhua had fulfilled his obligations according to the requirements of the agreement without negligence, so the tiefeng district government should make administrative compensation. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 19 published by scholink inc. the administrative agreement exists to release and change the situation, but shall not be mixed with the superiority of the administrative power. the law gives the administrative subject can cancel the power to change, the original intention is for the greater public interest, can't be no reason to their own fault to derogate from the interests of the administrative relative. administrative relative without fault, and obtain the corresponding individual rights when legal, should confirm the corresponding effect of the administrative relative. the administrative subject can not prove that the administrative relative’s behavior is illegal to cause the agreement is invalid, so the administrative subject can not be related to policy changes, etc., abuse of their own administrative power, should be based on the interest of reliance, to maintain the interests of the administrative relative due. whether the case violates the rule of legitimacy, some viewpoints believe that as long as the administrative relative exists deceptive behavior violates the legitimacy. to scrutinize this case with legitimacy, its focus should take into account both sides, not just one side. considering the time to judge the legitimacy, it should be judged at the time of evaluation and signing the agreement. and at that time the administrative body sent by the temporary agency also carried out the corresponding certification, so can not be in the relative fulfillment, and then claim that there is a legitimacy flaw, the subsequent assessment will also have an impact, and will cause excessive losses to the administrative relative. 2. relevant administrative law theories 2.1 meaning and origin of reliance protection what is the trust interest, administrative law and civil law on the understanding of the trust interest is broadly similar, or even convergence, can be understood as the protection of trustworthy expectations of benefits. that is, between the two parties, based on a certain relationship, so that the two trust each other, and based on this trust so that the other party believes that it can obtain the corresponding benefits. the principle of protection of trust in administrative law appeared in germany before and after the first world war, all levels of administrative courts in dealing with related administrative cases such as the revocation of administrative acts, disposition is to apply this principle (zhou, w. f., 2003, pp. 75-78). after the second world war, the argument of the point of view, but has never been out of sight, the principle of protection of reliance on the contrary, in administrative cases are used more frequently. our country is in reference to the civil law system on the basis of absorbing the relevant legal elements, the protection of reliance into the administrative law in our country. on the meaning of administrative law protection of reliance, different scholars have different ways of expression and elaboration of the reason, summarize and discernment, can be concluded is the administrative organ to make the administrative act has the legitimate interest of reliance, the administrative organ can’t arbitrarily change or revoke the administrative act has been made, if revoked, must compensate for the relative due to the trust of the loss arising from the loss. from another point of view, can also be summarized as www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 20 published by scholink inc. the administrative subject according to the relevant events related to the commitment to contribute to the corresponding legal status, and the administrative relative according to this legal status, based on the corresponding trust dispose of their own corresponding state or right. according to the administrative relative’s state of the relevant legitimate interests, should be protected by law, the administrative subject should be based on the previous state of law to realize the relevant commitment. 2.2 the basis and importance of reliance protection the central theory of administrative law has been the hot issue of discussion, the more popular for the control theory, management theory. however, due to china’s influence by the western legal thinking, most scholars at this stage advocate the control theory, that is, the use of relevant laws to regulate and control the power of the administrative subject, to protect the rights of administrative relative subject. control that need to have the corresponding binding force, the administrative subject in reality is usually a relatively strong party, so the relevant concepts and principles to be bound will further control. the same our country’s political environment is also very suitable for the emergence and development of the protection of trust, the application of the principle of protection of trust to be established on the basis of the modern rule of law, our country’s legal construction is perfect, and with the development of economic development can be better for the development of the rule of law. good rule of law environment can maximize to ensure the stability of the law, can be made in the administrative body of administrative behavior can play a small range of autonomy, so that the protection of reliance will not be ultra vires. reliance on the protection of the constitution can also find its support, the constitution protects human rights and the rights of citizens, in the administrative system, mostly public power, and the administrative relative is in a relatively weak position. reliance on the principle of protection is an extension of human rights protection and civil rights, in the spirit of the principle of the level, to the administrative relative to a way of relief. reliance interest protection has its important significance. reliance protection can keep the law stable to a certain extent, and administrative acts can be interpreted with reliance protection to a certain extent, which maintains the stability of the administrative law structure. reliance protection in administrative law ensures that individuals and organizations have reasonable expectations of the actions of administrative organs and act on them, ensuring that these promises and rights are protected and preventing administrative organs from arbitrarily changing promises or depriving rights. it pays more attention to the behavior of the administrative subject while taking into account the administrative relative. it prevents improper or discriminatory actions by administrative organs, ensures that citizens and organizations are treated equally in administrative procedures, and also maintains social security stability to a certain extent. trust protection can stabilize government integrity, which is an important part of social credit and the backbone of social credit, and is the credit certificate of a social class or region. the government should play an exemplary role in the construction of social credit. the credibility of the administrative body not only maintains the credibility of society, but also affects the business environment and has an impact on the investment confidence of the relevant enterprises, thus www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 21 published by scholink inc. affecting the relevant economic development to a certain extent. 2.3 the scope of application of the protection of reliance and the application of the elements the scope of application of the protection of reliance has been the focus of debate, some scholars believe that the administrative license can be applied, some scholars believe that the administrative payment, and some advocate that as long as the administrative act of granting benefits can be applied. some scholars believe that as long as the administrative act can be applied (chen, t. t., 2015, pp. 5-8). the author is more inclined to administrative behavior can be applied to the protection of reliance, because the protection of reliance is not only to protect the administrative relative’s single right, but also can bind the administrative subject. in playing a certain binding effect at the same time, but also in disguise to protect the credibility of the administrative body, the implementation of administrative behavior has a certain role in promoting. at the same time, the field of application of reliance interests is not static, from the first only applies to the act of granting benefits to the present countries are applicable to the expansion of the expansion of its residence in the better, so to give a relatively broad scope of application, can avoid the application of too restrictive and cumbersome. in the protection of trust and administrative behavior of the relevant principles have certain compatibility, such as the protection of trust and administrative penalty liability has compatibility, the court can use the protection of trust to judge the subjective fault of the perpetrator (li, x. p., 2023, pp. 1-11). in the judicial practice point of view for analysis, from the existing referee instrument, can retrieve the corresponding administrative license, administrative agreement, administrative grant and other typical cases, there are also some administrative agreement, administrative penalties and other new type of reliance on the protection of the case. this shows that china’s judicial practice is also expanding the scope of application of the protection of reliance, in line with the pace of social development, the implementation of a relatively wide range of application. reliance protection of the applicable elements, the current stage of mainstream trust is still three elements system, the first point, to produce the corresponding basis of trust, that is, the administrative body is the implementation of the administrative act of granting benefits, the administrative relative based on the administrative act of generating trust dependence. the second point, there is a trust benefit, the administrative relative based on the trust to implement the corresponding behavior, and based on this behavior produces assessable benefits or burdened with the corresponding risk. the third point, there is a legitimate reliance interest, trust occurs out of good faith, and no negligence. at the same time, with the continuous development of society, the need for trial practice, the four elements are also slowly stepping into the public’s view, that is, the deviation of administrative behavior is included in the constituent elements, to promote the application of judicial practice (lu, z. f. & zhang, d., 2023, pp. 41-48, p. 95). but whether it is three elements system or four elements system, there are corresponding protection of reliance, also applies to the above case. as for the way of trust protection, that is, the use of can not revoke not repeal, if in order to safeguard the interests of the majority of the community and so on, have no choice but to revoke, should be carried out in accordance with the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 22 published by scholink inc. procedures and authority of the law, and the administrative counterparts of the losses incurred as a result of the compensation or indemnification. 2.4 relationship between reliance protection and other principles 2.4.1 reliance on protection and principle of good faith principle of good faith, emphasizing that the parties should be honest and trustworthy in legal behavior, to avoid damage to others due to dishonest behavior. combined with the concept and moral requirements for administrative subjects, not only contains honesty, trust, and civil law good faith. from the deep level for the construction of honesty and credit both to regulate the administrative subject and administrative relative (yu, l. y., 2022, pp. 125-147). it should be built on the basis of the rule of law, derived from the relatively stable legal basis. analyzed from the constitutional point of view, trust protection is the constitution protects the basic rights of people on the basis of the extension. therefore, principle of good faith has the internal consistency. 2.4.2 reliance protection and rebus sic stantibus rebus sic stantibus usually refers to the contract is established, the occurrence of the contract can not be foreseen at the time of the establishment of the situation, the parties can negotiate, consultation fails to change or terminate the contract. rebus sic stantibus is one of the principles of civil law, which is based on the protection of reliance. and the implementation of administrative behavior at the same time may also become a change of circumstances, but in general, the administrative agreement in the process of fulfillment, such as the administrative subject to the occurrence of a change of circumstances to change or terminate the administrative agreement, unless for the sake of the major public interests, the general court will not support, in order to protect the administrative relative’s reliance on the interests of the maintenance of its legitimate interests. therefore, to a certain extent, the situation is also the protection of reliance on both the risk and the continuation. 2.4.3 reliance protection and other principles the principle of protection of trust and the principle of administration in accordance with the law are important principles of administrative law, aiming to ensure that the behavior of the administrative organs of the lawful, fair and predictable. the principle of protection of reliance emphasizes that the reasonable expectations and reliance of individuals and organizations on the basis of lawfulness should be protected, while the principle of administration in accordance with law emphasizes that the acts of administrative organs should be based on the authorization and provisions of the law. at the same time, it can also give confirmation to the protection of reliance (wang, g. s., 2015, pp. 167-175). although the principle of protection of reliance and the principle of administration according to law are usually consistent, they may be in conflict in some cases. for example, a conflict may arise between the principle of protection of reliance and the principle of administration in accordance with law when an administrative organ grants a right or benefit to an individual or organization for a certain period of time, and if subsequent changes or amendments to the law result in the deprivation of this right or benefit. in order to reconcile this conflict, the executive is called upon to balance the need to uphold www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 23 published by scholink inc. existing laws against the need to respect the legitimate expectations of individuals and organizations. reliance protection and procedural due process, the principle of procedural due process can guarantee the protection of reliance interests. procedural due process requires administrative organs to follow certain procedures when making administrative acts, to achieve administrative openness, public participation, and the principle of recusal. this procedure can give administrative behavior a relatively legitimate standard, can bring the administrative subject and administrative relative to the most basic foundation of trust. procedural due process also gives the trust protection three elements of the justification provides the principle of support. reliance protection also reinforces due process, which requires administrative organs to take into account the reasonable expectations of individuals and organizations when making administrative decisions, and to ensure that their reliance is respected and protected. within the framework of procedural due process, administrative authorities should make clear commitments to the legitimate expectations of individuals and organizations and follow those commitments. doing so not only enhances procedural due process, but also increases the public’s trust in the administration and the reasonableness of its decisions. trust protection and due process can check and balance each other and permeate each other. in specific cases, administrative agencies need to balance the relationship between reasonable expectations, public interest, and procedural requirements, and in most ideal situations, can even do both. but in individual cases, such as when the legitimacy of the procedure is undermined, we must increase the protection of the interests of the trust, not only because of the destruction of the procedure on the corresponding punitive measures, while ignoring the reasonable protection of the administrative relative. such as the loss of the principle of protection of reliance, should be due process as the access point, increase penalties, to achieve the corresponding administrative time limit. 3. the effectiveness of the administrative agreement and the protection of reliance the effectiveness of the administrative agreement is the premise of dispute resolution, most of the scholars as well as the “judicial interpretation of the administrative agreement” have shown the effectiveness of the validity of the agreement, invalid, pending, revocable and other effectiveness of the state. however, according to the practice and the protection of interests and other practical problems, if a minor violation of law will lead to the agreement is invalid, will lead to the collapse of the trust between the parties to the agreement, is not conducive to the establishment and fulfillment of the agreement, will also cause a certain sense of uneasiness, the trust will no longer exist. therefore, in order to maintain judicial stability, from the current norms, can also be deduced, such as administrative agreement can not be confirmed invalid, according to the principle of favorable, even if there is a violation of the law, should maintain the effectiveness of the administrative agreement (wu, r. r., 2022, pp. 29-38). administrative agreement and trust protection, more inseparable. administrative agreement as a symbol of the administrative subject and the symbol of the relative consistency, compared with other administrative acts, the administrative agreement more emphasis on respecting the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 24 published by scholink inc. effectiveness of the agreement features, under the understanding of this condition, such as the existence of defects in practice does not have the significance of the legal evaluation of the agreement is usually recognized as legal to maintain the effectiveness of the agreement. and in such cases, in order to make the administrative relative’s rights and interests are fully protected, usually invoke the protection of trust (xu, z. m., 2023, pp. 29-45). reliance on the protection of the invisible regulation of administrative agreements, not only is the basic principle of administrative agreement fulfillment, but also the loss of compensation and reparation of the legal basis. 4. the status quo analysis the current scope of application of the protection of reliance in the field of legislation in china is too narrow and lacks clear provisions, resulting in the protection of reliance in judicial practice is more limited. first of all, we need to analyze the legislative background of reliance protection. reliance protection, as a legal principle, aims to protect the reasonable trust of the parties based on the behaviour or commitment of the administrative organ, and to avoid the parties suffering undue losses due to the administrative organ’s improper behavior or change of policy. however, the provisions of the existing legal system on the protection of reliance is relatively vague, failed to form a clear scope of application and specific standards, which makes the application of the protection of reliance in the field of administrative law has become more difficult and limited. 4.1 the scope of application of reliance protection is too narrow china’s current legal system, the scope of application of the protection of reliance is mainly concentrated in the field of administrative payment and administrative licensing. in these areas, the administrative relative usually can rely on the administrative organ’s promise or behavior, produce trust benefit. however, the application of reliance protection in other fields of administrative behavior is relatively rare. for example, in the fields of administrative penalties, administrative levies, and administrative coercion, it is usually difficult for the administrative relative to obtain legal remedies through reliance protection. this narrow scope of application, resulting in the protection of reliance in a wider range of administrative action fails to play a due role, but also fails to fully reflect the stability and fairness of administrative action. 4.2 less application in judicial practice although the court took the initiative to apply the principle of protection of reliance in some cases, but this situation is still relatively few. in most administrative litigation cases, the administrative relative is more inclined to invoke other legal principles for litigation rather than take the initiative to claim reliance protection. this is closely related to the courts’ cautious attitude towards the application of reliance protection and the lack of clarity in the application criteria. in judicial precedents, although there are cases in which individual courts have taken the initiative to apply the principle of reliance protection due to the specificity of the case, such cases are not common in the overall judicial practice. courts are usually conservative in dealing with cases involving reliance protection and do not easily www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 25 published by scholink inc. hand down supplementary or expansive judgements, resulting in the judicial effectiveness of reliance protection not being brought into full play. 4.3 uncertainty of the applicable criteria for reliance protection the uncertainty of the application standard of reliance protection is also an important reason why it is difficult to be widely used in the judicial field. reliance protection should be based on the behavior or commitment of the administrative organ, but in practice, how to define whether the administrative act constitutes lawful reliance, the scope of protection of reliance interests in the end what should be included, these issues have not yet formed a unified standard. for example, in the field of administrative agreement, although the application of reliance protection is reflected, but due to the lack of clear legal provisions, the court in judging the specific application of reliance protection often exists in different interpretation space, which makes the application of the standard of reliance protection has uncertainty. 4.4 the administrative agreement in the protection of reliance in the judicial application of administrative agreement, the protection of reliance also faces the problem of balance between public interest and reliance interests. administrative agreement involves the interests of the administrative relative is often not only the private interests, but also includes the public interest. how to accurately measure the relationship between public interests and reliance interests in administrative agreements has become a difficult issue. the problem of determining the basis of reliance protection also stands out, as different courts may adopt different standards in determining the basis of reliance, resulting in inconsistent judgement results. in addition, the lack of clarity on the scope of compensation for reliance interests is also one of the important factors limiting the application of reliance protection in the field of administrative agreements. due to the lack of specific compensation standards, it is often difficult for the court to quantify the loss of reliance interests when making judgements, thus leading to a significant reduction in the actual effect of reliance protection. 4.5 insufficient perfection of laws and release of administrative effectiveness of reliance protection due to the imperfection of the legislation on reliance protection and the insufficient application in judicial practice, the administrative efficacy has not been fully released. when administrative organs formulate and implement policies, they may lack sufficient stability and transparency, resulting in the administrative relative not being able to make reasonable expectations based on clear rules, thus affecting the overall rule of law environment and administrative efficiency of the society. reliance protection, as an important means of safeguarding administrative stability and legal expectations, should be applied to a wider range of administrative behaviors, so as to enhance the predictability and fairness of administrative behavior and improve administrative effectiveness. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 26 published by scholink inc. 5. countermeasures and improvement in view of the above problems, the corresponding legislative system should be improved, the quality of administrative legislation should be improved, the scope of application should be clarified, or corresponding explanations should be issued to meet the needs of administrative law enforcement and judicial diversity. unify the standard for determining the basis of reliance, clarify the legitimate and reasonable administrative eligible subjects, and when applying the protection of reliance, clarify the hierarchy and value level with other principles, so as to achieve non-conflict and non-interference, and apply the relevant principles accurately and quickly. in terms of judgment, the reliance expectation of the administrative relative shall be fully considered, and the possibility of foreseeing the reliance benefit shall be comprehensively considered. as for the measurement of public interest and reliance interest, various factors should be considered comprehensively, such as the price standard at the time, and the minimum protection amount should be set to set up the minimum initiation procedure. for different areas of application, apply different minimum compensation standards, and set up strict procedures. similarly, as most disputes occur when the duty of care is not clear, the duty of care should be clearly indicated. it should be made clear that administrative agreements, etc., are presumed to be valid when they cannot be proved to be invalid, so as to avoid damages caused by excessive abuse of power. clarify the compensation standards for direct and indirect losses, and realize the flexible transformation of compensation and indemnity. lastly, regular evaluation of administrative subjects in accordance with the law shall be carried out to ensure the normal exercise of their powers and authority, in keeping with the rule of law government. references chen, t. t. (2015). on the limited extension and moderate balance of reliance protection—taking the case analysis of interest measurement as a perspective. legal expo, 2015(15), 5-8. li, x. p. (2023). the application of trust protection principle in the field of administrative punishment and its development. journal of guangxi police college, 36(05), 1-11. lu, z. f., & zhang, d. (2023). study on the application of administrative reliance protection principle. journal of shantou university (humanities and social sciences edition), 39(03), 41-48, 95. wang, g. s. (2015). the protection of reliance interests by the principle of administration in accordance with law-analysis of the case of yimin company v. zhoukou municipal government of henan province and other administrative acts in violation of the law. jiao tong university law, 2015(01), 167-175. wu, r. r. (2022). discussion on the application of reliance protection principle in administrative agreement litigation. journal of guangxi political and law management cadre college, 37(06), 29-38. xu, z. m. (2023). on the judicial review of administrative agreement contracting procedure. huxiang law review, 3(04), 29-45. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 27 published by scholink inc. yu, l. y. (2022). localized construction of integrity government theory—the introduction and development of honesty and trust, reliance protection and legitimate expectation. tsinghua law, 16(04), 125-147. zhou, w. f. (2003). on the principle of protection of reliance in administrative law. political law series, 2003(02), 75-78. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 4, no. 1, 2021 www.scholink.org/ojs/index.php/elp 48 original paper near identification of policy trade-offs using preference proxies to elicit hidden information in the linear case jean-paul azam 1 1 toulouse school of economics, toulouse, france received: may 1, 2021 accepted: may 16, 2021 online published: june 1, 2021 doi:10.22158/elp.v4n1p48 url: http://dx.doi.org/10.22158/elp.v4n1p48 abstract this paper shows that neither ols nor 2sls can generically identify policy trade offs in the linear case, except under extreme assumptions. practitioners must be content with near identification and the paper discusses how to choose between these two methods. it shows that a two-stage approach using preference proxies to elicit hidden information can potentially narrow the identification gap and that a simple specification test can be used to assess whether these proxies really contribute to improving identification. keywords policy tradeoffs, near identification, preference proxies 1. introduction this paper provides a simple framework for discussing the choice between ols and two-stage (2sls/control function) approaches for estimating and testing policy effectiveness using non-experimental data in a linear model. from a practical point of view this choice is not innocuous, as these two approaches often lead to opposite conclusions that can influence the welfare of millions of people. a good example of such a dilemma is provided by the so-called “aid-ineffectiveness” literature. boone (1996) found that foreign aid does not affect economic growth in recipient countries, using ols. this diagnosis became part of the conventional wisdom about this issue as illustrated by popular books like easterly (2006) and moyo (2009). in contrast, arndt et al. (2015) revisited the issue and found instead that foreign aid is in fact effective at boosting economic growth and other desirable outcomes in recipient countries, using instrumental variables (ivs). however, heated debates are taking place among practitioners regarding the use of ivs, as illustrated by a popular blog that hosted a contribution with the title: “friends don’t let friends do iv” (angus, 2015). the present paper tries to cool the debate down within a near-identification framework. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 49 published by scholink inc. unlike randomized control trials, real-world data require the joint modeling of the policy trade off under study and the policy maker’s decisions. this entails generically that the policy trade off cannot be perfectly identified using least squares (ols or 2sls/control function), as shown below, except under special circumstances. because policy decisions will be made anyway, econometricians must take a more pragmatic approach to inform policy makers and voters using whatever method performs best. the scope of the discussion below is limited to the choice between these two most common estimation methods. it uses a near-identification framework, first discussed by fisher (1965). this approach is based on the intuition that “information on the variances of the disturbance terms of a multiple equations system can be used for identification of the equation with the smallest disturbance variance” (fisher, 1965, p. 409). however, policy effectiveness analysis yields only qualitative information about this, and empirical testing is required to assess the validity of the implicit ranking of disturbance variances across equations. moreover, the ols and 2sls/control function estimation methods generate different disturbance terms, and hence yield different outcomes in terms of near identification. the present paper shows how these differences may be used for choosing among these two methods the one that comes closer to proper identification. the next section presents the linear model used and the identification problem faced when using ols. section 3 shows that a two-stage approach using proxies aimed at capturing the policy maker’s preference parameters may improve the analysis and suggests a test that can be used to evaluate if these preference proxies have really contributed to narrow the identification gap or not. section 4 briefly concludes. 2. the model and its identification problem 2.1 the setting the econometrician wants to evaluate “policy effectiveness” in a given domain. the impact of a policy p, which is here a continuous variable, on an outcome variable of interest y, is embedded in the following linear equation in which x is an exogenous shift (control) variable (or a list of several of them) aimed at providing a ceteris paribus policy effectiveness diagnosis. the econometrician does not observe variables e and  that also affect the outcome: y x p e         . (1) unless otherwise specified, all the greek-letter parameters are defined as positive. for the sake of simplicity, assume that     0e e e   ; if they had non-zero expected values, the latter would simply be added to the intercept to yield the equivalent specification with a different  . the policy effectiveness claim is that  is nonzero and works in the desirable direction, say 0  for the sake of concreteness. to test it, the econometrician will seek to identify (1) as closely as possible to put himself in a position to interpret his empirical findings. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 50 published by scholink inc. it would be unscientific to assume without further testing that the policymaker is incompetent and stupid. the “public choice revolution” of the 1960s, initiated by people like james buchanan and gordon tullock, has exerted a sufficient influence on the profession to preclude the credible use of this type of assumptions without testing. let us make instead the following three assumptions: (i) asymmetric information: the policy maker observes , and x p e before making her decision, and then she observes y ex post, while the econometrician only observes , and y x p ex post. (ii) efficient information processing: the policy maker makes the best use of her information so that   0e e  . (iii) quasi-concave preferences: the policy maker seeks to maximize the following objective function:      2 2 max s.t. 1 p r e y p   , (2) where  e y is a shorthand notation for  , ,e y x p e . assumptions (i) and (ii) are natural to make for any rational-choice scientist. assumption (iii) is not very general, but it is chosen because it yields convenient predictions that keep the resulting econometric specifications linear and tractable. in this specification,  is a preference parameter of the policy maker, which is her private information. a higher  means that she is more sensitive to the outcome variable y , as:   2 2 r e y     . (3) this objective function is not concave, but given the linear constraint (1), a quasi-concave objective function is sufficient to determine the optimum, if the latter exists. figure 1 depicts a case where the optimum is easily seen to exist, with 0, 0 and 0 1x e          . these conditions entail that 0r  in this case. they are not necessary for the optimum to exist in general and other cases can easily be worked out. in figure 1, the upward-sloping line labeled  e y represents (1) with  set to zero. the upward-sloping convex curve depicts an indifference curve derived from the objective function (2). the latter is quasi-concave because this indifference curve is convex in this case. this can be checked by computing the total differential of r and setting it equal to zero, and then, by rearranging the terms and taking the derivative with respect to p a second time to yield:     0 e y p p e y      and      2 32 0 e y r p e y      . (4) this entails that the set of points that are preferred to all the points of an indifference curve is convex. the optimum point is classically found where the indifference curve is tangent to the constraint. the first-order condition for maximizing (2) reads:   * *p e y   . (5) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 51 published by scholink inc. hence, the policy-maker’s optimum choice is found at the intersection of (1) with a straight line whose equation may be written as  e y p    . this line is represented in figure 1 as the steeper upward-sloping line labeled p   . it is now obvious that the policy-maker’s optimum exists in the case of figure 1. this diagram may be used to show that the two components of the policy maker’s informational advantage over the econometrician, namely and e , are playing in opposite directions regarding the identification of  e y . figure 1. policy-maker’s optimum with 0 1  figure 1 may be used to show that changes in the policy maker’s preferences play a key part in identifying  e y . the impact of a ceteris paribus increase in  would entail a rightward shift of the  p   line. hence, unobservable variations in  are tracing out the  e y line. in contrast, the unobservable variations in e are easily shown to lie at the core of this identification problem. for example, an unobserved increase in e, given 0  , would entails an upward shift of the  e y line. hence, the variations in e, given the other variables and parameters, would in fact trace out the  p   line rather than the  e y one. still, the impacts of these two unobservable variables are difficult to single out because they both entail an increase in both  * and *p e y . this similarity of impacts comes out clearly from deriving formally the policy rule governing *p . substituting for  *e y in the first-order condition (5) and rearranging the terms allows us to derive the reduced-form equation for *p that describes the policy-maker’s policy rule:  p    *e y x e     e y  e y  1    p* p www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 52 published by scholink inc. 2 2 2 2 * 1 1 1 1 p x e                     . (6) this policy rule includes both components of the policy maker’s informational advantage over the econometrician, namely and e , while it does not include  . moreover, its coefficients are mongrel parameters of the relevant parameters of the structural equation (1) and the policy maker’s objective function (2). still, it turns out that (6) provides the basis of the solution to mitigate the identification problem explained in the next sub-section. 2.2 the identification problem now, assume that the econometrician has a sample of observations of , and y x p , as well as a few other variables used below, indexed implicitly by i s . given the information available to him, the econometrician tries to estimate: y x p f      , (7) where f e   . this “random disturbance” term is in fact a function of , and p x  because one can substitute for e from (6) after rearranging the terms to write: 2 1 e p x                  . (8) therefore, substituting (8) into (6) yields a second relation between and (and as well)y p  :  1y p     . (9) notice that the difference between the coefficients of p in (9) and in (7) is: 2 1 1        . (10) this measures the maximum potential bias that would result from estimating (9) rather than (7), neglecting the omitted-variable biases that would be caused by the absence of e in estimating (7) and of  in estimating (9). if there are several policymakers involved in producing the outcomes captured by this sample, or if the policy maker’s preferences vary over time, then unobserved  will in general vary across i s . let us define  as its mean and     as its deviations from the mean, with 0 i s    . then (9) may be written as:    1y p        . (11) there is no reason to expect that these deviations from the mean of the policy makers’ preference parameters will be correlated with  and it is thus natural to assume that   0e    . then the following identification failure proposition can be proved simply. proposition 1: equation (7) cannot in general be identified by ols as the latter will select a linear combination of (7) and (11) instead with a non-zero weight attached to either one. proof: the idea of the proof is to show that a linear combination of (7) and (11) will in general have a smaller sum of squared residuals than those resulting from estimating either one separately, if the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 53 published by scholink inc. sample is large enough. define  0, 1  . then we can write in obvious notation a linear combination of (7) and (11) which has the same structure as (7):           (7 ) (11) 1 1 1 y y y x p e                               . (12) it follows from this identical structure that identification cannot result from structural parameters restrictions and must be assessed by looking at the residual variances (note 1). then, ols will choose  (and other parameters) such that:            2 2 2 2 2 2 2 2 min 2 2 2 i s i s i s i s i s e e e e                                             . (13) taking due account that       0e e e e e     , the expected value of the sum to be minimized is thus           2 2 2 2 2 2 2 2e e e e e e          . then, given a large enough sample, ols will select:       2 2 2 2ols e e e e       . (14) hence, assuming realistically that , ols will only identify perfectly the policy trade off if  2 2 0e e  , i.e., if either the policy maker has no information advantage over the econometrician about e , or for some reason decides not to use it. this cannot be assumed without testing. proposition 1 simply provides the econometric equivalent of the geometrical result of the previous sub-section: ols will choose to estimate a linear combination of (7) and (11) to minimize the impact of a weighted sum of unobserved variations of , and e   on the residuals. in other words, our identification failure diagnosis is mainly driven by an omitted variable bias, the omitted variable being in this case a piece of information used by the policy maker but unobservable to the econometrician whose variance is  2 e e . this comes out clearly from defining the ols identification gap as:       2 2 2 2 2 1 ? ols e e e e e        . (15) this gap will only fall to zero if     2 2 2 0e e e   , i.e., if the policy maker has no information advantage about e over the econometrician, an unrealistic assumption. the identification gap will not be a big deal if the unobserved variations are dominated by those of the policy maker’s preferences; it will be large if they are instead dominated by the latter’s information advantage about e over the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 54 published by scholink inc. econometrician. this is the essence of the problem raised by the endogeneity of the policy variable. having understood that this identification problem is due to an omitted variable, we can now look for a good proxy that could be substituted to unobserved e to mitigate this problem and provide a fairly good estimate of (1). the main lead to find it is obvious from either figure 1 or a glance at (6). we observe that *p is responding to increases in e or  by a seemingly unexplained increase, given the variables observed by the econometrician. then, the challenge is to disentangle the impacts of these two unobserved variables to elicit the impacts of changes in e after controlling somehow for the changes in  . the next section shows how preference proxies can be used to make some progress in this direction, and how this progress can be assessed statistically. 3. using preference proxies to elicit hidden information the way to use the information provided by the deviations of the policy maker’s behavior relative to the latter’s fitted value using regressors equally known to the econometrician and the policy maker to improve identification is a direct extension of hausman (1978) and nakamura and nakamura (1981) in the simplest case. it has since been named the control-function approach, massively generalized, and applied in a very large number of papers. this section customizes its application in its simplest form to the problem at hand in two steps. 3.1 signal extraction and estimation assume now that the econometrician’s data set includes one or more variables w that are liable to be jointly correlated with  , and thus labeled preference proxies, while they are not included in x. let our econometrician assume that:    , with 0w e e           . (16) notice that the signs of  ,  are unknown. as  is not observable directly, (16) cannot be directly tested. however, it can be tested indirectly as shown below. the econometrician can use w as a preference proxy (pp) for  in the policy rule. the first-stage equation is obtained by substituting for  from (16) into (6) to read: (17) table 1 shows what each of these estimated coefficients of (17) is estimating in the present framework. these are complicated mongrel parameters whose exact significance and statistical properties are far from obvious because the expected value of a ratio is not equal to the ratio of the expected values of its numerator and its denominator. moreover, the correct standard errors of the underlying parameters are anybody’s guess. it seems difficult to assume that anything useful could be tested from these parameters regarding identification of the policy trade off. it will become clearer below that the key requirement is that ĝ be orthogonal to and x w , i.e., that and   be nonzero, and not the statistical significance of their parameters in (17). in particular, the maximum potential bias www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 55 published by scholink inc.  2 1   appears in the denominator of all the coefficients, which might thus look less significant, the more needed is this two-stage approach to reduce the identification gap. unfortunately, however, performing some tests on this type of parameters is common practice in the profession as a check on the weakness of instrumental variables (see, e.g., stock & yogo, 2005). table 1. the first-stage mongrel parameters â b̂ ĉ ĝ   2 1       2 1    2 1      2 1 e       note. this table shows the correspondence between the parameters of (17) and the deeper parameters of the model. then, our econometrician now includes ĝ in his second-stage equation as in: ˆy x p g         . (18) proposition 2 follows. proposition 2: ols applied to (15) will estimate a linear combination of (1) and (11), giving the former a weight equal to:         2 2 2 2 1 2 2 pp e e e e          . (19) proof: notice first that  will be an estimate of  because the inclusion of ĝ is controlling for e  , so that 2 i s   will be an estimate of 2 i s   . then, using the same approach as in the proof of proposition 1, as well as the identifying parameter restriction that w is excluded from (11), we can write the linear combination of (18) and (11) as:            (18) (11) 1 1 1 1 y y y x p g                                . (20) its structure is identical to that of (18), so that we again need to look at the random disturbance terms to assess identification. the sum of squared residuals of (20) reads:             2 22 2 2 2 1 1 2 2 1 i s i s i s                                  . (21) then, because    2 2 e e  and       0e e e       , the expected value of the sum www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 56 published by scholink inc. to be minimized is equal to         22 2 2 2 1e e e       . the latter is minimal when (19) holds. the resulting identification gap is:       2 2 2 1 1 2 2 pp e e e         . (22) hence, this two-stage approach produces an identification gap that only falls to zero if     2 2 0e e   , i.e., if the policy maker benefits from a perfect information or if there is an infinite variance of the policy maker’s preference deviations from the mean. both assumptions are unrealistic, so that this method also results in an identification gap. then, the relevant question to ask is under which conditions the preference-proxies method results in a smaller identification gap than ols. 3.2 comparison of the two approaches a glance at (15) and (22) shows that the ols identification gap depends on the extent of the asymmetric information about e between the policy maker and the econometrician while the two-stage pp one depends on the symmetric uncertainty common to the two players. moreover, we see that the two-stage pp approach always gives a larger weight to (1) than to (11), while ols does not. to go deeper into this comparison of the two approaches, assume that the econometrician wants to choose the estimation method that yields the lower identification gap. then, figure 2 shows how much lower than  2 e  must  2 2 e e be for ols to be preferred to pp, for a given value of  2 e  . the y-axis represents the level of  while the values of  2 e  and  2 2 e e are measured on the x-axis. the diagram is read as follows: for any level of  2 e  , the upper curve shows the corresponding value of pp  . given the latter, the lower curve shows the maximum value of  2 2 e e such that ols yields a weakly lower identification gap. an example of this determination is shown by the arrow-bearing lines that intersect the two curves at the same  level, i.e., for the same identification gap. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 57 published by scholink inc. figure 2. determination of the preferred estimation method this intuition is captured more formally in proposition 3. proposition 3: the preference proxies approach dominates ols, i.e., pp ols   , iff:           2 2 2 2 2 2 e e e e e e        . (23) proof: inequality (23) simply results from subtracting (14) from (19) and requiring that the result be larger than zero, then re-arranging the terms. comment: the right-hand side of (23) is smaller than     2 2 min ,e e  . hence, given the policy maker’s informational advantage about e , pp is more likely to be preferred to ols, the better the goodness of fit of (18). the next section shows how this theoretical finding can be made operational empirically. it shows that the hausman test, as reformulated by nakamura and nakamura (1981), is providing a quantitative index that enables the econometrician to conclude empirically whether the preference proxies used have made a significant contribution to improve the near identification of the policy trade off or not. 3.3 a test for assessing improved identification to simplify notation, let us define ˆ and ols pp      and ˆ and f f as the relevant residuals. then, we may write (12) and (20) respectively as: (24) and    2 2 2,e e e   2e  ols 1 2 1  pp www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 58 published by scholink inc.       ˆ1 1y x p g f                  . (25) for the sake of simplicity also, let us define p̂ as the shorthand notation for the fitted part of the first-stage equation (17): (26) with this simplified notation it is straightforward to prove the following proposition: proposition 4: estimating (25) by ols yields a natural estimator of the contribution of the preference proxies as the coefficient of ĝ is an estimate of:   2 1ˆ                . (27) proof: the proof is a direct extension of nakamura and nakamura (1981). definition (26) implies that ĝ is orthogonal to p̂ and hence to x . now, substitute (26) for p in both (24) and (25) to yield respectively: (28) and (29) however, since ĝ is orthogonal to p̂ and to x , its coefficient must be the same in (28) and (29). hence, we have: (30) rearranging the terms yields (27). comment: equation (27) provides a natural index of the contribution of the preference proxies used to elicit the policy maker’s hidden information to improved identification. this is the product of the improvement in identification  ˆ  between the ols and the two-stage approaches times the maximum potential bias  2 1   affecting the coefficients measuring the impact of p in (11) relative to (1). it may thus be called the value identification-gap narrowing index (vigni), as it weighs the identification gap improvement by the upper bound of the potential bias at stake. notice that the hausman (1978) “exogeneity” test, as reformulated by nakamura and nakamura (1981), is precisely testing whether this coefficient is significant. hence, it can also be interpreted as a deeper specification test that should systematically be used when preference proxies are used to narrow the identification gap of a policy trade off relative to ols. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 59 published by scholink inc. a closer look at (29) yields another useful result from a practical point of view, using in fact another argument from nakamura and nakamura (1981): proposition 5: applying ols to (18) yields the same estimates as using 2sls to estimate (7) using the preference proxies as instruments. proof: since ĝ is orthogonal to p̂ and to x and it has a zero mean, its inclusion in (29) does not affect the other estimates, which are in fact the 2sls estimates as p̂ is included instead of p in (29). comments: the two-stage approach sketched above, which boils down equivalently to an application of the control-function approach or to 2sls, provides the econometrician with good prospects of nearly identifying (1), and hence the impact of on p y . moreover, this approach provides the natural test of improvement in identification by testing whether ĝ is significant in (25). this is essentially what the hausman “exogeneity” test does (hausman, 1978; nakamura & nakamura, 1981). the key product of the first-stage equation is its estimated residuals series, which are orthogonal to the variables capturing the information that the policy maker and the econometrician have in common, in order to extract the signal of the unobserved information used by the former in making her decisions. this is what must guide the econometrician in his choice of instruments. the latter must be chosen as proxies for the policy maker’s unobserved preference parameters. hence, it is safer to use several instruments to make sure that the relevant unobserved information is captured without being contaminated by some trivial common information. this is likely to mitigate also the additional problem raised by the presence of  in ĝ , which makes the latter a noisy estimate of e . this just entails a measurement error problem and hence a potential attenuation bias if   0e e  , without affecting identification as shown above. however, it is liable to bias the hausman test toward zero, thus leading sometimes the econometrician to underestimate the true contribution of the preference proxies to the narrowing of the identification gap. conversely, from an empirical point of view, this bias may reinforce the confidence that the econometrician may put in his near-identification strategy when the test turns out to be significant, despite the attenuation bias. empirical examples of this approach are provided by azam (2019) and azam and bhatia (2017) in a citizen’s oversight perspective, using preference proxies that reveal intriguing aspects of some governments’ preferences. 4. conclusion unless the econometrician analyzes data produced in a randomized controlled trial, where it is known for sure that the policy has been applied at random, then the policy maker’s behavior must be modeled to identify the policy trade off that the latter is supposedly exploiting. in this case, the model presented above has proved that using ols will not in general yield the desirable identification, and thus might result in potentially highly misleading estimates and diagnosis. fortunately, there is light at the end of the tunnel, as the econometrician can mitigate the asymmetric information problem by using some carefully selected instrumental variables. the latter must be useful proxies for the policy maker’s www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 60 published by scholink inc. underlying preference parameter(s). the first-stage equation is used to produce good residuals that reveal some of the policy maker’s private information that is not correlated with the information that the econometrician shares with her. because policy makers can have very weird preferences and will certainly not give away any accurate information about them in their speeches and writings, the econometrician might have to follow a drawn-out process of trial and errors. fortunately, various forms of the hausman exogeneity test can be used to evaluate whether the instruments used have made a significant contribution to the effort invested to come closer to identifying the policy trade off. funding funding from anr under grant anr-17-eure-0010 (investissement d’avenir program) is gratefully acknowledged. acknowledgments helpful comments by emmanuelle auriol, matteo bobba, sylvain chabé-ferret, pierre dubois and claire galez are gratefully acknowledged without implicating. references angus. (2015). friends don’t let friends do iv. retrieved december 12, 2015, from http://mungowitzend.blogspot.com.es/2015/09/friends-dont-let-friends-do-iv.html?m=1 arndt, c., jones, s., & tarp, f. (2015). assessing foreign aid’s long run contribution to growth and development. world development, 69, 6-18. https://doi.org/10.1016/j.worlddev.2013.12.016 azam, j.-p. (2019). let’s call their bluff: the politics of econometric methodology. peace economics, peace science, and public policy, 25(4), 1-7. https://doi.org/10.1515/peps-2019-0029 azam, j.-p., & bhatia, k. (2017). provoking insurgency in a federal state: theory and application to india. public choice, 170(3), 183-210. https://doi.org/10.1007/s11127-016-0389-5 boone, p. (1996). politics and the effectiveness of foreign aid. european economic review, 40, 289-329. https://doi.org/10.1016/0014-2921(95)00127-1 desai, m. (1976). applied econometrics. oxford: philip allan. easterly, w. (2006). the white man’s burden. why the west’s effort to aid the rest have done so much ill and so little good. new york: penguin press. fisher, f. m. (1965). near identifiability and the variances of the disturbance terms. econometrica, 33, 409-419. https://doi.org/10.2307/1909798 hausman, j. a. (1978). specification tests in econometrics. econometrica, 46(6), 1251-1271. https://doi.org/10.2307/1913827 moyo, d. (2009). dead aid. why aid is not working and how there is another way for africa. london: allen lane. https://doi.org/10.1016/j.worlddev.2013.12.016 https://doi.org/10.1515/peps-2019-0029 https://doi.org/10.1007/s11127-016-0389-5 https://doi.org/10.1016/0014-2921(95)00127-1 https://doi.org/10.2307/1909798 https://doi.org/10.2307/1913827 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 61 published by scholink inc. nakamura, a., & nakamura, m. (1981). on the relationships among several specification tests presented by durbin, wu and hausman. econometrica, 49, 1583-1588. https://doi.org/10.2307/1911420 stock, j. h., & yogo, m. (2005). testing for weak instruments in linear iv regression. in w. k. donald, d. w. k. andrews, & j. h. stock (eds.), identification and inference for econometric models: essays in honor of thomas rothemberg (pp. 80-108). new york: cambridge university press. https://doi.org/10.1017/cbo9780511614491.006 white, h., & chalak, k. (2013). identification and identification failure for treatment effects using structural systems. econometric reviews, 32(3), 273-317. https://doi.org/10.1080/07474938.2012.690664 note note 1. the classic reference on the near-identification issue is fisher (1965) while desai (1976) shows how to apply these concepts. white and chalak (2013) address some of these issues in a much broader theoretical framework. https://doi.org/10.2307/1911420 https://doi.org/10.1017/cbo9780511614491.006 https://doi.org/10.1080/07474938.2012.690664 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 91 original paper research on the application of the collective discussion system for administrative officials in maritime administrative penalties feihan sun 1 , yu tian 1 , zhaobin pei 1* & muxue yang 1 1 dalian ocean university, dalian, liaoning, china received: june 30, 2025 accepted: july 9, 2025 online published: july 10, 2025 doi:10.22158/elp.v8n2p91 url: http://dx.doi.org/10.22158/elp.v8n2p91 abstract the collective discussion and decision-making system of administrative heads in maritime administrative penalties combines internal democratic decision-making, power balance attributes, and special internal administrative procedural characteristics. the current system has the problem of unclear applicable standards, and normative documents at or above the provincial level have not elaborated on situations such as “complex circumstances” and “major violations”, resulting in excessive discretionary power of administrative agencies and significant differences in handling similar cases in practice. in this regard, the applicable situations can be refined from three dimensions: the clear procedural requirements focus on the amount threshold and rigid procedural requirements, the composite standard discretion type covers professional identification difficulties, legal application disputes, and evidence chain doubts, and the social impact assessment type focuses on the group effects and media attention caused by the case, in order to regulate maritime administrative penalties and ensure the rational use of marine resources. keywords administrative penalties in maritime areas, collective discussion system, applicable standards, improved procedures 1. introduction at present, with the vigorous development of the marine economy and the deepening of the strategy of building a maritime power, there are frequent activities in the development and utilization of sea areas, which puts higher demands on the fairness and scientificity of administrative penalties in sea areas. the importance of the collective discussion and decision-making system among administrative officials is becoming increasingly prominent. early maritime regulations provided relatively simple provisions for this system, but with the development of maritime rule of law, although it has been refined, problems frequently arise in practice. based on this background, this article selects typical cases of maritime administrative penalties based on existing marine regulations, deeply explores their applicable legal issues, draws on useful experience, and strives to improve the system, providing effective ideas and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 92 published by scholink inc. methods for regulating maritime administrative penalties and ensuring the rational use of marine resources, and assisting in the construction of maritime rule of law. 2. the nature of the collective discussion system among the heads of administrative agencies in maritime administrative penalties to analyze the nature of this system, it is necessary to approach it from multiple perspectives: it involves the functions of internal democratic decision-making and power balance, as well as the attributes of special internal administrative procedures, and is also related to the theoretical disputes and consensus of internal and external procedures. the following analysis will be conducted layer by layer. 2.1 reflection of internal democratic decision making and power balance the collective discussion procedure is an important mechanism for democratic decision-making within administrative agencies, and its core value lies in optimizing the quality of decision-making through collective wisdom while constraining the abuse of administrative power. jiang ming’an divides administrative democracy into two forms: external democracy and internal democracy. the former emphasizes public participation (such as hearings and publicity systems), while the latter focuses on procedural norms within the administrative system (such as collective discussions and hierarchical approvals) (jiang, m. a., 2023, pp. 13-17). in the field of administrative penalties, collective discussions are mainly applicable to two types of special cases: cases with complex illegal circumstances and cases involving major illegal acts. such cases often have high social sensitivity or difficulty in legal application, and require collective discussion to ensure the legality and rationality of the punishment decision. from the perspective of institutional design, the collective discussion procedure has a dual function: on the one hand, it provides a platform for law enforcement personnel to express professional opinions, which helps overcome personal cognitive limitations; on the other hand, it achieves a balance between efficiency and fairness through the operation mechanism of democratic centralism (i.e., “collective discussion + executive decision-making”). it is worth noting that this institutional arrangement is not purely “democratic decision-making”, but retains the final decision-making power of the executive head and requires them to bear corresponding responsibilities, effectively avoiding the dilemma of “collective responsibility but no one is responsible”. 2.2 special internal administrative procedures from the perspective of administrative procedural law, collective discussion and decision-making have distinct procedural characteristics. the 57th article of the revised administrative penalty law in 2021 clearly positions it as a key procedural link “after the investigation is concluded and before the penalty decision”, revealing its pivotal position in the process of administrative penalty. yano hiroshi’s theory of administrative process emphasizes that modern administrative law should focus on the dynamic process of the exercise of administrative power, rather than solely on the final decision (jiang, l. h., 2014). under this theoretical framework, collective discussion, as a key link in the formation of administrative decisions, has a direct impact on the legitimacy of the final punishment decision due to its procedural www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 93 published by scholink inc. legitimacy. the dichotomy of internal and external procedures proposed by zhang shufang provides an important reference for understanding the nature of collective discussion. she pointed out that internal procedures mainly adjust the relationships between various entities within the administrative system, while external procedures regulate the interaction between administrative agencies and counterparties (zhang, s. f., 2008, pp. 38-44). although collective discussion is formally an internal procedure, its uniqueness lies in the fact that it directly determines the outcome of administrative penalties and has a substantial impact on the rights and obligations of the parties involved. he haibo refers to such programs as “internal programs with external effectiveness”, believing that although they have no relative involvement, they can generate external legal effects by determining the output of content (he, h. b., 2022, p. 357). this particularity has led to a unique position for collective discussion procedures in the administrative procedural system, and has also sparked theoretical disputes over whether they should be subject to judicial review. 2.3 internal and external program disputes and theoretical consensus there is a clear divergence in academia regarding the legal attributes of collective discussion procedures, which essentially reflects different understandings of the classification standards for administrative procedures. professor ye bifeng holds the “external program theory”, which has a distinct perspective on institutional evolution in its argumentation logic. he believes that with the clear provisions of the administrative penalty law on the collective discussion system, the system has shifted from the traditional category of organizational law (internal rules of procedure) to the category of behavioral law (legal procedural requirements), especially when combined with the system of explaining reasons, which highlights its external procedural characteristics (ye, b. f., 2022, pp. 31-42). this viewpoint emphasizes the role of legal provisions in shaping the nature of procedures and has important theoretical implications. however, most scholars still adhere to the “internal program theory”, which is mainly based on the standards of program participants. scholars such as zhang shufang and he haibo believe that the core criterion for determining the internal and external attributes of a program lies in whether the relative person participates in the program’s operation. professor lu zhengfeng further deepened this viewpoint, proposing that internal procedures can be divided into pure internal procedures and external behavioral pre procedures, and categorizing collective discussions into the latter (lu, z. f., 2018, pp. 106-112). this refined classification method not only acknowledges the internal procedural nature of collective discussion, but also reveals its differences from general internal procedures. the current theoretical consensus tends to classify collective discussion as an internal procedure, but at the same time emphasizes its particularity: firstly, although it does not involve direct participation of the parties involved, it has a significant impact on the rights and interests of the parties involved; secondly, as a legal procedure, its operational flaws may lead to the revocation of administrative penalty decisions; finally, with the development of procedural rule of law, such internal procedures are gradually being included in the scope of judicial review. this understanding not only conforms to the current legal www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 94 published by scholink inc. framework, but also responds to practical needs, providing a theoretical basis for improving the administrative penalty procedure system. 3. analysis of the application standards issues in the collective discussion and decision making of administrative officials in maritime administrative penalties the core issue of unclear application standards in the collective discussion procedure of administrative agency heads in maritime administrative penalties. the lack of specific standards for “complex circumstances,” “major violations,” and “heavier penalties” in normative documents at or above the provincial level has led to excessive discretionary power of administrative agencies in handling individual cases, and a lack of industry unified discretion standards guidance, resulting in chaotic practices. in the field of property penalties, there is a lack of unified standards for determining whether the amount of fines triggers collective discussions, which makes it difficult to ensure the fairness and credibility of administrative penalties. taking the case of a breeding farm in dalian refusing to accept the administrative penalty decision of a natural resources bureau (dalian maritime court, administrative judgment no. (2021) liao 72 xingchu 12) as an example, the bureau held a hearing on the relevant penalty matters, but did not make a hearing record in accordance with the law. after the hearing procedure ended, without collective discussion by the responsible persons, an administrative penalty of “ordering restoration to the original state and imposing a fine of 3.2 million yuan” was imposed directly. the above-mentioned behavior seriously violates the legal procedures and goes against the legal provision that “when imposing heavier administrative penalties on complex or major illegal acts, it should be discussed collectively by the responsible persons”. in the end, the court revoked the administrative penalty decision in accordance with the law. in sharp contrast, the administrative penalty case of beihai naizhi marine technology co., ltd. v. beihai marine and fisheries bureau mentioned earlier. the ocean and fisheries bureau of beihai city has determined that beihai naizhi marine technology co., ltd. illegally occupies and implements the encirclement and reclamation of 0.38 hectares of sea area. after two rounds of review (the administrative agency considers it equivalent to a collective discussion procedure), the bureau has finally ordered the return of the illegally occupied sea area, restored the original state of the sea area, and imposed a fine of rmb 2.5677 million, which is fifteen times the amount of sea area use fees that should be paid during the illegal occupation period. in these two cases, a certain breeding farm case was fined 3.2 million yuan but no collective discussion was held, while the naizhi company case was fined 2.5677 million yuan. although the amount was relatively low, it was subject to collective discussion. such differences highlight that in the application of collective discussions on maritime administrative penalties, various regions often set their own standards based on factors such as local economic level and law enforcement capabilities, resulting in unclear conditions for the application of collective discussions and difficulty in ensuring fairness and impartiality in law enforcement. in the case of huang guofei and chen xiansheng (guangdong provincial high people’s www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 95 published by scholink inc. court, administrative judgment no. (2020) yue xing zhong 1770), huangpu customs imposed fines of 600000 yuan and 200000 yuan respectively on the two individuals. although the total amount was as high as 800000 yuan, the customs did not submit the case for collective discussion to the case review committee as “not meeting the standards of complex circumstances or major violations”. however, this judgment does not clearly define the quantitative standards of “complexity” and “significance”, nor does it fully consider the impact of fines on individual economies for small and micro enterprises, such fines may constitute a fatal blow. behind the different judgments in the same case is the imbalance of fairness and justice in different regions and cases. in the field of qualification penalties, such as revoking licenses and ordering production to stop, they are also deeply mired in procedural difficulties. administrative agencies may avoid collective discussions based on efficiency considerations, while judicial agencies may have intense conflicting positions due to their emphasis on procedural fairness requirements. although the huang guofei and chen xiansheng cases did not involve qualification penalties, this can be seen from the “selective application” of collective discussion procedures by administrative agencies when the procedures may delay the efficiency of punishment, the rigor of internal decision-making mechanisms easily gives way to the need for quick closure. what is even more alarming is the confusion of program functions. some administrative agencies and courts mistakenly equate “cases requiring a hearing” with the conditions for initiating collective discussion, but the hearing is an external defense procedure and the collective discussion is an internal decision-making mechanism, and their purposes are not the same. this cognitive bias is also reflected in the huang guofei and chen xiansheng cases: although huangpu customs informed the two of their hearing rights in accordance with the law, they directly skipped the collective discussion stage and imposed punishment without clearly defining whether the case met the criteria of “complex circumstances” and “major violations”, equating the integrity of the hearing procedure with the legitimacy of internal decision-making. although judicial case judgments attempt to clarify procedural boundaries, they lack universal binding force and cannot eradicate the recurrence of procedural violations. this exposes the fragmentation and lack of coherence in procedural norms within the legal system, resulting in a loss of precise guidance for the operation of administrative power on the procedural track. the case of huang guofei and chen xiansheng not only reflects the reality of vague standards for the application of collective discussion procedures, but also reveals the deep challenges faced by procedural justice in the operation of administrative power. the ambiguity of legal rules, the game between administrative and judicial positions, and the misinterpretation of procedural functions collectively weave a complex network that hinders the unity of the rule of law and the realization of fairness. if the loopholes in the rules are not filled in a timely manner and the procedural boundaries are not clarified, the procedural justice in the field of administrative penalties will continue to hover in chaos, damaging not only the rights and interests of individual parties, but also the foundation and authority of the rule of law. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 96 published by scholink inc. 4. refined suggestions on the application of collective discussion and decision-making by administrative agency heads in maritime administrative penalties based on the legislative experience of the “regulations on agricultural administrative penalty procedures” and the application of “hearings” and “legal reviews” in some regions, the author believes that the collective discussion of maritime administrative penalties can focus on three key dimensions. 4.1 clear procedural requirements the author believes that both the first and third items of the “regulations on agricultural administrative penalty procedures” belong to the category of clear procedural requirements. in maritime administrative penalties, some cases require collective review by the head of the administrative agency due to clear threshold amounts and procedural requirements, and such situations have rigid binding force. taking the illegal land reclamation case investigated and dealt with by the ocean and fisheries bureau as an example, if it involves a fine of more than 500000 yuan as stipulated in the sea area use management law, and the parties apply for a hearing, it belongs to a typical case with clear procedural requirements. illegal land reclamation seriously damages the natural attributes and functions of marine ecosystems, posing a great threat to the sustainable use of marine resources. when the fine amount reaches a relatively high standard and the parties apply for a hearing, it indicates that the nature of the case is serious and concerns the significant rights and interests of the parties. at this point, collective deliberation can effectively gather opinions from all parties, ensuring that the punishment decision is accurate and error free in terms of factual determination, legal application, and procedural compliance. for example, in a coastal city, a large enterprise illegally reclaimed land for commercial development projects without legal approval. after the ocean and fisheries bureau intervened in the investigation, according to relevant laws and regulations, it is proposed to impose a fine of 2.5677 million yuan on him. the enterprise applied for a hearing in accordance with the law, and the ocean and fisheries bureau quickly initiated a collective discussion process, organizing internal legal experts, law enforcement backbone, and relevant business department heads to comprehensively review every detail of the case. during the collective discussion, in-depth discussions were conducted on the legality and relevance of evidence, the accurate application of legal provisions, and the reasonableness of punishment ranges. ultimately, a legal and fair punishment decision was made, which not only effectively cracked down on illegal behavior but also safeguarded the legitimate hearing rights of enterprises (guangxi zhuang autonomous region high people’s court, administrative judgment no. (2018) guixingzhong 1163). 4.2 composite standard discretion type for maritime disputes with complex cases, relying solely on a single standard is difficult to make accurate judgments, and a composite standard needs to be constructed for discretionary determination. specifically, it can be refined into the following three aspects: 4.2.1 difficulties in professional identification of illegal facts the marine field is highly specialized and complex, and the determination of many illegal facts involves professional fields such as marine ecological damage assessment and cross ownership of sea areas. this www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 97 published by scholink inc. professionalism is particularly prominent in the assessment of the value of marine ecosystem services. for example, international standards estimate that the annual service function value of china’s four major sea areas is 272.806 billion us dollars, while domestic scholars’ estimates based on regional characteristics are only 181.36 billion us dollars, with a difference of more than 50%. this significant value bias is caused by different evaluation methods and indicator weights (jiang, y. j., 2014). as in the 2011 bohai penglai 19-3 oilfield oil spill, the drilling platform operated by conocophillips china limited leaked hundreds of tons of oil due to leakage and seabed rock cracking, polluting the sea area of over 6000 square kilometers. the oil spill accident resulted in a significant decrease in the species and diversity of plankton in the polluted sea area, and damage to the community structure. within one month after the accident, the density of planktonic larvae decreased sharply by 69%, and the density of fish eggs decreased by 45-83% compared to the background value (with a malformation rate of 92% in july). the density of larvae and juveniles decreased by 84-90%, causing serious damage to biodiversity. this accident has caused damage to biodiversity. in the assessment of ecological damage caused by oil spill accidents, there are significant difficulties in the professional determination of the compensation amount for ecological losses due to the multidimensional loss of ecosystem service value, including fishery resource loss, carbon sink function decline, and tourism value damage, and the lack of clear weight standards for different evaluation indicators in the marine environmental protection law. this type of illegal fact involving complex professional identification belongs to the special circumstances stipulated in the administrative penalty law that require collective discussion and decision-making by the responsible persons of administrative organs. although the specific amount of compensation for marine ecological losses and the assessment agreement for fishery losses in this case have not been made public, the administrative penalty must fully consider the long-term impact of the accident on marine fishery resources, the damage to the service functions of the marine ecosystem, and the actual cost of ecological restoration. as the determination of the amount of loss is directly related to the discretion of the fine amount, in order to ensure that the punishment range matches the severity of ecological damage and avoid an imbalance in discretion, administrative agencies should conduct collective discussions among responsible persons, comprehensively analyze professional evaluation reports, weigh the weights of various loss indicators, and ultimately determine a reasonable and fair punishment decision. this procedure can not only ensure the legality of administrative penalties, but also enhance the scientificity and credibility of law enforcement decisions. 4.2.2 disputes over the application of law marine administrative law enforcement involves multiple laws and regulations, and in some complex cases, multiple laws may be violated simultaneously, leading to disputes in the application of the law. taking ship oil pollution cases as an example, such cases may involve both the marine environmental protection law and the fisheries law. the marine environmental protection law mainly provides comprehensive regulations on the standards, monitoring, prevention, and control of ship oil pollution emissions from the perspective of overall marine environmental protection; the fisheries law focuses www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 98 published by scholink inc. on the protection of fishery resources and the maintenance of fishery production order, and also has corresponding punishment provisions for the damage caused to fishery resources by ship oil pollution. in practical law enforcement, when a ship experiences oil spill while sailing near the sea, it not only pollutes the marine ecological environment but also causes serious losses to the surrounding fisheries and aquaculture. at this point, law enforcement personnel need to carefully analyze whether the vessel’s navigation behavior complies with the provisions of the marine environmental protection law regarding the equipment, operation specifications, and emission standards for ship anti pollution. at the same time, they also need to consider whether the degree of damage caused by oil pollution to fishery resources meets the punishment standards stipulated in the fisheries law, as well as how to coordinate and apply the two laws. this requires law enforcement personnel to have solid legal knowledge and rich practical experience. through collective discussions, they can fully discuss the legislative purposes, scope of application, and specific provisions of different legal provisions in order to accurately make judgments on legal application. 4.2.3 doubtful evidence chain when there is doubt about the evidence chain in maritime administrative penalty cases, that is, there is evidence contradiction or legal application logic break in the determination of key facts, this itself constitutes the core situation of “complex circumstances”. the complexity of such cases often stems from the temporal and spatial continuity of maritime use behavior and the particularity of professional technical judgment, which poses significant challenges to building a complete and consistent evidence system. for example, in a dispute over the right to use a certain sea area, the administrative agency failed to clearly identify the spatial boundary of the illegal behavior, and confused the illegal behavior in an independent area (such as the s7 area of the weighbridge management room) that was clearly located outside the boundary of the plaintiff's sea area use certificate with its reclamation behavior in a legal sea area, mistakenly applying the provisions on “unauthorized change of sea area use” instead of the provisions applicable to illegal occupation of the sea (xiamen maritime court, administrative judgment no. (2019) min 72 xing chu 22). this fundamental qualitative error in the illegal facts directly led to confusion of the punishment targets and inaccurate calculation of the fine base, ultimately being rejected by judicial review due to “unclear facts and insufficient main evidence”. another typical case is another illegal occupation of sea areas, where the administrative agency found that the critical time point of “completion of construction in december 2021” for the project involved lacked sufficient evidence support, and this time point directly determined the calculation of the illegal occupation period and the determination of the fine amount. more prominently, in this case, the administrative agency will apply the one-time collection of sea use fees for non permeable structures after legally obtaining the right to use the sea area, and directly mechanically apply them to the calculation of fines for administrative penalties, reflecting a deviation from the understanding of the purpose of legal norms (xiamen maritime court, administrative judgment no. (2023) min 72 xing chu 43). although the case underwent a collective discussion procedure, the discussion failed to effectively address core issues such as weak evidence www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 99 published by scholink inc. during the illegal period and misplaced legal application standards, resulting in the revocation of the punishment decision due to “unclear factual findings and incorrect application of the law”. such cases fully demonstrate that when maritime administrative penalties face doubts about the evidence chain, such as contradictions between ownership certificates and on-site conditions, insufficient evidence during the illegal period, or poor connection between professional technical judgments and legal constitutive elements, the collective discussion of administrative agency leaders must not be superficial. it must substantially focus on the verification relationship between the temporal and spatial boundaries of illegal behavior and ownership certificates, the matching degree between professional technical identification and legal requirements, and whether the application of punishment standards accurately distinguishes the collection characteristics of sea use fees from the punitive purposes of administrative penalties. only through this in-depth and substantive collective analysis can we systematically bridge the gap in the evidence chain and ensure that administrative penalties have a solid foundation of legitimacy in both factual determination and legal application. 4.3 social impact assessment type when maritime administrative penalty cases trigger media attention or group effects, their social attention is high and their impact is wide, and they must be forcibly included in the scope of collective discussion. the outcome of such cases not only concerns the vital interests of the parties involved, but also has a significant impact on social stability and public interests. for example, illegal fishing cases involving more than 5 people or multiple fishing boats, due to the large number of fishing boats and the livelihood issues of many fishermen, are prone to trigger mass incidents. in terms of mass violations, the case of 10 electric fish gangs in the taihu lake lake in jiangsu province in 2024 and the case of nine fishing boats dismantling beidou in fujian province in 2023 form a double proof: the former needs to coordinate the law enforcement agencies in jiangsu and zhejiang provinces through collective discussion, assess the irreversible damage of electric trawls to the taihu lake lake biological chain, and finally impose a fine of 30000 yuan on 10 parties and confiscate all the tools of the crime; the latter posed a major navigation safety hazard due to the coordinated evasion of supervision by 9 ships. after analysis and judgment, a fine of 754000 yuan was imposed, and a comprehensive use of “technology+law” methods was employed. the fishermen and fishing boats involved in such cases may come from different fishing villages and have been engaged in fishing operations during the fishing ban period for a long time. after the case was exposed, local fishermen were inevitably emotionally agitated, and some fishermen even expressed their demands through collective petitioning and other means. the relevant law enforcement departments should quickly include the case in the collective discussion procedure, and organize sufficient communication and negotiation among fishery experts, legal workers, grassroots government representatives, and fishermen representatives. in collective discussions, it is necessary to consider both strictly cracking down on illegal fishing activities in accordance with the law, protecting the long-term interests of fishery resources, and taking into account the actual living difficulties and reasonable demands of fishermen. ultimately, a comprehensive set of punishment and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 100 published by scholink inc. assistance measures should be formulated. punish illegal fishing vessels in accordance with the law, and provide assistance policies such as fishery breeding technology training and employment guidance for affected fishermen, effectively resolving social conflicts and maintaining social stability. in terms of media focus, taking the ecological environment damage incidents in nature reserves as an example, after such incidents are exposed by the media, their destructive behavior is highly likely to attract widespread public attention due to the core ecological functions of nature reserves, such as maintaining biodiversity and protecting endangered species. through collective discussion, various factors such as ecological protection, social public opinion, and public interests can be comprehensively considered to ensure that punishment decisions are scientific and reasonable. the illegal fishing case in natural reserves investigated and dealt with by zhanjiang city in 2023 is clear evidence: two ship owners, cai and others, used nets smaller than the minimum mesh size in the core area of the protected area to fish in violation of the fishing ban regulations, directly damaging the habitat and ecological chain of pangolins. as a first-class protected animal in china, the habitat destruction of the pangolin is a major ecological event that will inevitably trigger public supervision. law enforcement agencies should immediately initiate a collective discussion process, invite ecological experts to assess habitat damage, and listen to public opinions to balance ecological protection and livelihood demands. taking into account the illegal circumstances, such as the use of prohibited online devices, private transportation of unlicensed personnel, and the feasibility of ecological restoration, a fair and reasonable administrative penalty will be ultimately imposed. this not only strictly fulfills the regulatory responsibilities of the nature reserve regulations, but also responds to social concerns through the public announcement of law enforcement results, demonstrating a “zero tolerance” law enforcement stance towards ecologically sensitive areas, controlling public opinion risks, and dispelling public doubts. 5. conclusion this study clarifies the “special internal procedure” attribute of the collective discussion system in maritime administrative penalties, theoretically deepening the application of the administrative procedure dichotomy in the field of maritime law enforcement, and filling the gap in existing research on the characteristics of maritime areas; the three-dimensional refinement standard proposed in practice provides an operational path for solving the problem of ambiguous identification. compared with existing research, this article breaks through the perspective of a single procedural approach and constructs a composite system based on the professionalism of the sea area. however, compared with the macro theories of scholars such as jiang ming’an, there is a lack of cross disciplinary comparisons. there are limitations in the research, such as the lack of in-depth exploration of the technical path of provincial discretion standards, and the improvement of judicial review and administrative procedure reception. suggest promoting the special revision of discretionary benchmarks and establishing a quantitative model in the future; in the future, collaborative research on maritime and terrestrial procedures can be expanded to provide more systematic support for the unification of maritime rule of law. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 101 published by scholink inc. acknowledgments 1) research on the important discussion of general secretary xi jinping on building a marine power, special fund for basic research funds for undergraduate universities in liaoning province (2024jbptr001). 2) in 2024, the research project of the agroforestry discipline working committee of the chinese association of academic degrees and postgraduate education (2024-nlzx-yb140) was “research on the innovation and practice of the cultivation mode of master of laws with sea related+fishery related+foreign related characteristics under the guidance of xi jinping's thought of rule of law”. references dalian maritime court, administrative judgment no. (2021) liao 72 xingchu 12. guangdong provincial high people’s court, administrative judgment no. (2020) yue xing zhong 1770. guangxi zhuang autonomous region high people’s court, administrative judgment no. (2018) guixingzhong 1163. he, h. b. (2022). administrative litigation law (p. 357). beijing: law press. jiang, l. h. (2014). analysis of the main viewpoints of japanese administrative process theory. journal of the national prosecutor’s college, 2012(3). jiang, m. a. (2023). improving the rule of law in administrative procedures is the only way to build a rule of law government. administrative law research, 2023(1), 13-17. jiang, y. j. (2014). jiang lan analysis and inspiration of oil spill accident in penglai 19-3 oilfield [c]//journal of guangzhou maritime university, volume 22, 2014 (total issue 57) south china sea environmental monitoring center of the state oceanic administration; school of environment and energy, south china university of technology, 2014:128-131. lu, z. f. (2018). research on internal administrative procedures and their rule of law construction. journal of liaoning university (philosophy and social sciences edition), 2018(3), 106-112. xiamen maritime court, administrative judgment no. (2019) min 72 xing chu 22. xiamen maritime court, administrative judgment no. (2023) min 72 xing chu 43. ye, b. f. (2022). the development of collective discussion system from organizational law to behavioral law. law, 2022(6), 31-42. zhang, s. f. (2008). on the position of internal procedures in administrative law enforcement. journal of social sciences, jilin university, 2008(1), 38-44. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 17 original paper legislative obstacles to the right to be forgotten in china’s network environment yifan zhao 1 1 dalian ocean university, dalian, liaoning, china received: july 6, 2024 accepted: july 16, 2024 online published: july 19, 2024 doi:10.22158/elp.v7n2p17 url: http://dx.doi.org/10.22158/elp.v7n2p17 abstract in recent years, the rapid development of network technology in china has changed our lives and at the same time triggered new challenges to our right to information. since ancient times, human beings have been trying to challenge to overcome forgetting, and the internet has changed the law of people’s memory. the right to be forgotten has come into people’s attention since the “gonzalez v. google inc. and pioneer newspaper” in the european union in 2014, which triggered discussions in the academic community, and then the first case of the right to be forgotten in china, “ren jiayu v. baidu”, has pushed the localization of the study of the protection of personal information and the right to be forgotten to a new level in our country. the case of ren jiayu v. baidu, the first case of the right to be forgotten in china, also pushed the protection of personal information and the localization of the right to be forgotten to a climax. however, the right to be forgotten in china is facing multi-level legislative difficulties. in this paper, we will discuss it once and for all. keywords right to be forgotten, localization, legislative barriers 1. summary of the right to be forgotten 1.1 the origin of the right to be forgotten human beings are social creatures, connected by a network of human relationships that are inextricably linked. the right to be forgotten was born in the context of the internet era, and has developed over a long period of time from its inception to its establishment, and did not happen overnight. in france, the “right to forget” is regarded as the predecessor of the right to be forgotten, which refers to the right of criminals to conceal their incarceration after committing a crime and record the facts of the crime, so as to help criminals reintegrate into the normal social life after being released from imprisonment, and so the european union countries realized a breakthrough of the right to be forgotten, and directive www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 18 published by scholink inc. 95/46/ec was enacted in 1995. directive 95/46/ec was promulgated in 1995, although the directive did not specifically elaborate on the concept of the right to be forgotten, but clearly pointed out the partial application of the right to be forgotten, and then with the development of the economy and the needs of the masses, the eu amended article 17 of the proposal in 2016 to formally establish the right to be forgotten in the national legislation of the eu (xu, 2024, pp. 45-50, p. 56). and in recent years, network information development by leaps and bounds, we enjoy the development of the network industry to bring us convenience and speed at the same time, we will also use the network platform to leave footprints, and silently bear the adverse consequences it brings us, the network platform has changed the scope of sharing and dissemination of information, affecting our daily life style. before the popularization of the internet, it was human nature to forget, and with the passage of time, most information would gradually fade away. however, in such a transparent and gigantic “information prison” as the internet, remembering becomes the norm, while forgetting becomes the exception. against this backdrop, our control and ownership of personal information, such as shopping records, transportation records, and other social information, is gradually being eroded, and all traces of information are retained unscreened and at risk of leakage. this information is collected and stored by information thieves to gain profit. therefore, forgetting is necessary, since we have obtained the right to leave information, then corresponding we should also obtain the right to choose to forget, the network information to breed the right to be forgotten, the right to be forgotten to help us get rid of once, to protect personal rights, the establishment of the right to be forgotten when the network information age is a product of necessity (moreno, 2023, pp. 313-331). 1.2 the right of the right to be forgotten 1.2.1 theory of privacy shao stressed that the right to be forgotten belongs to privacy, that the right to be forgotten is an extension and supplement to the right to privacy, foreign scholar napoleon xanthoulis agrees; tao qian said that the right to privacy includes the right to be forgotten, content is all enjoying the control of personal information and all, the right not to be disturbed by others; zhang said the right to privacy should be equal to the right to be forgotten, the right to be forgotten is the compound right of the right to forget; zhang xinlu believes that the two connotations are obviously different in, it is inappropriate to attribute the right to privacy to be forgotten; zhou lina concluded through her research, network information is constantly being harassed, make the right to be forgotten in strengthening the protection of information, provides a good solution. from the research results of many scholars, we analyze, can be found that in the exercise of purpose, be forgotten is to wrong outdated information to privacy, dilute the influence on normal life, the right to privacy in the purpose of protecting information from the public know similar, but in other ways, has obvious differences. the right to be forgotten is indeed closely related to the right to privacy, and both emphasize that the individual has complete control and ownership of personal information. however, the direction scope of the right to be forgotten is not fully covered by the right to privacy. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 19 published by scholink inc. in terms of right object, the right to privacy emphasizes the peace of private life and only protects the information not disclosed to the public. if the right person makes the personal information through legal channels independently, on the contrary, the right to privacy will lose its protection effect. the subject of rights is different, and the subject of the right to be forgotten is a natural person, but only limited to the natural person related to its information. the subject of the right to forget is also a natural person, and the natural person has no special requirements. in terms of the efficiency of rights, the right of privacy tends to be a passive defense mechanism after the event. only when specific and clear infringement results appear, such as illegal use and illegal publication, can the subject of rights claim the right relief. the right to be forgotten is the active relief and protection mechanism in advance, not on the actual infringement results. the two information is released in different ways. the infringement of privacy is caused by the violation of the information control and ownership of the information subject, and the illegal use of the information without the consent of the information subject. the information release of the forgotten right is legal and released by the information subject itself, but the information becomes inaccurate and irrelevant, so as to avoid the right to correct and delete the normal life (yun, chuan, hongyan et al., 2023, pp. 829-850). 1.2.2 right to personal information generally believed, personal information right is a kind of positive initiative rights, is a kind of information subject control of their information, the value is the core protection of information subject dignity and respect the autonomy of personal information, specific meaning for the information subject to control information and control the information, when the information subject found data thieves illegal collection and publish their information, enjoy the right to delete and correct information subject to personal information enjoy absolute exclusive dominance, unconditionally exclude others to their information. therefore, as long as there is an infringement, there is no need to wait for the specific results, you can exercise the right to protect personal information. in a word, it enjoys the freedom to control personal information. in this concept, there is a certain connection between the right to be forgotten and the right to personal information. the emergence of the right to be forgotten is to retain private information, which is a remedy for the excessive abuse and unreasonable preservation of information caused by the wide application of network technology. however, yang lixin and han xu believe that the right to personal information contains the right to be forgotten, and the right to be forgotten mainly adopts correction, deletion and concealment; while the right to personal information has the same or more exercise methods. in the object of protection, the right to personal information also contains the right to be forgotten. the right to be forgotten is protected by outdated, inaccurate and irrelevant information, while the object of personal information right protection is wider, including the protection object of the right to be forgotten. to some extent, the latter can be regarded as an extension of the former. but mei xiaying www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 20 published by scholink inc. believes that the core of the right to be forgotten is not entirely the content of the personal information protection law. in terms of right attributes, both are active rights. after meeting the exercise conditions, both have the right to decide how to exercise their rights independently. in terms of relief, they are similar relief rights in advance, which do not need to wait for the emergence of harmful results, but only specific acts. the information subject believes that the disclosed information will infringe on their rights and interests, no matter whether it will cause infringement or not, it can exercise relief means. 1.2.3 the right of personality theory scholar duan weili pointed out that the right to be forgotten belongs to one of the new rights of personality. most scholars who agree with this view generally believe that the right of personality is the legal protection given by the society to self-identified people, and the right to be forgotten involves a number of personality interests. therefore, the number of forgotten power is the right of personality. the theory is divided into two schools, divided into general personality rights and specific personality rights. with mr. liao lei as the representative of the general personality right said. the general personality right, as a cover clause, contains multiple abstract concepts, and its protection of interests is also abstract. however, the content concept of the right to be forgotten is indeed relatively specific. secondly, for the specific personality right, the specific personality right is derived from the basis of the general personality right, which includes the specific right of portrait, the right to name and the right to life. most scholars who support this view believe that the information content protected by the right to be forgotten is attached to a specific personality right, and may be attached to the right of privacy, or the right of reputation. therefore, the right to be forgotten is a personality right balanced with multiple personality rights. in his research, man hongjie pointed out that the right to be forgotten belongs to a specific kind of personality right, and the right to be forgotten needs the right to freedom of speech and the public’s right to know to balance the interests. from the current academic research, there are many theories about the legal nature of the right to be forgotten. but the author thinks that the right to be forgotten is a specific personality right. first of all, the author classifies the right to be forgotten as a personality right because of the following reasons: first, from the analysis of the subject of rights, the subject of personality right is limited to protecting the rights and interests of natural persons. the right to be forgotten develops with the development of internet technology. in this context, special attention is paid to the protection of human dignity, and such subjects themselves are natural persons with legal control of their own information, excluding legal persons and unlegal organizations. second, in terms of the object of rights, the content of the right to be forgotten also roughly overlaps with the right of personality. the right to be forgotten protects the personal interests and dignity behind personal information. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 21 published by scholink inc. third, in the content level of rights, they also have a certain degree of similarity. the right to be forgotten refers to the right of the subject to own the information and require the information controller to delete the information; the content of personality right has the right to ask others to act or act, and the subject has the obligation to act and act, so as to protect its own interests. secondly, the author thinks that the right to be forgotten is a specific right of personality, because of the following reasons: first, the information protected by the right to be forgotten contains specific interests such as portrait, name and privacy. secondly, the concept, content, identification and tort relief mechanism of specific personality rights in the civil law have special protection provisions, which is very effective in protecting the specific personality interests of the information subject, and also provides an exact legal source for the protection of the right to be forgotten. thirdly, if the right to be forgotten is determined as a specific personality right, the content and system of the personality right can be improved accordingly. in the internet era, the free and high circulation of information inevitably lead to the abuse of information and the infringement of people’s information, and the right to be forgotten is established as the specific right of personality. 2. necessity and feasibility of the application of the right to be forgotten 2.1 the need to localize the right to be forgotten since entering the 21st century, china’s network industry has developed rapidly, the personal information collected by many types of payment methods, the full popularity of short video applications, etc., people leave more and more footprints on the network, the information subject of the information rights are subjected to a very serious test, the introduction of the right to be forgotten is in line with the reality of our country’s need to be access to information has infiltrated into every aspect of our lives, so china should consider the right to be forgotten into our legal system. therefore, china should consider incorporating the right to be forgotten into our legal system. first of all, in the internet era, all platforms are collecting personal information, personal information leakage is serious, and the right to be forgotten can change the status quo of information leakage to a certain extent. with the further development and improvement of the network industry, personal information began to be stored in the network platform in the form of digitalization, online shopping records, browsing videos, face recognition and other information constitutes a unique symbol about the individual, and these data have become the object of deep excavation and analysis, through which the gender, age, preferences and other information of the subject of the information can be accurately identified, and accurate delivery can be realized. the analyzed data has brought huge commercial benefits, but also many serious security risks, allowing more and more people with the intention to obtain illegal benefits through these data. personal information left on the internet can be easily retrieved, and when searched by some fraudulent groups, it can also cause greater economic losses to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 22 published by scholink inc. the people. moreover, when there are some negative events, the subject of the information will be likely to suffer from the attack of “human flesh search”, which will bring the subject of the information both physical and psychological blows. however, through the establishment of the right to be forgotten, can to a certain extent compensate for the infringement of the subject of information. the subject of information can request the deletion of links and content related to him/her as soon as possible in order to stop the further expansion of the infringement and to stop the damage in a timely manner. thus, the establishment of the right to be forgotten can effectively improve the current situation of information leakage. secondly, the existing laws and regulations in china are insufficient for the protection of personal information. at present, china has a number of laws and regulations related to the protection of personal information, although the number is large, but the provisions are fragmented and fragmented system, operability is not strong, in the application of the many difficulties faced. for the right to be forgotten legislation, china’s academic circles have been concerned. for example, article 1037(2) of the people’s republic of china stipulates that if a natural person finds that an information processor handles his/her personal information in violation of laws and regulations or the agreement between the two parties, he/she shall have the right to request that the information processor delete the information; these provisions are of a guiding nature and in principle, and are not sufficiently specific and detailed in their application, and are not sufficient to effectively and comprehensively realize the protection of the right to be forgotten. finally, for the subject of information, his or her network footprints will side by side passively outline his or her own character image, but it is not completely accurate, and once there is a wrong suspicion, it will negatively affect his or her own image as well as his or her personal dignity. in the commercial field, due to the huge value potential of information, major enterprises have become more and more active in collecting information. the rapid development of network technology, the blurring of the boundaries between personal and non-personal information, and the simplicity of information processing have led to the collection and processing of a large amount of data, resulting in the overexposure and inappropriate use of many pieces of information, which can lead to serious consequences (wang, 2023, pp. 162-172). 2.2 feasibility of localizing the right to be forgotten although china has not formally established the right to be forgotten, but there are relevant similar legal norms, with a certain legislative basis, and there have been relevant rights and interests in china have been infringed on the judicial cases, in summary, china for the introduction of the right to be forgotten has a sufficient basis for the establishment of the right to be forgotten is feasible. with the advent of the era of big data, although china is relatively late compared to the development of western countries, but the continuous updating of internet technology, as well as the attention of citizens to the issue of personal information security, in the protection of personal information has shown a trend of later to catch up. as for the right to be forgotten, china has not yet stipulated it as a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 23 published by scholink inc. separate type of right, but it can be seen from the existing legal norms, there are still some legal provisions similar to the right to be forgotten. in order to enhance the safe development of the internet economy and to reasonably regulate citizens’ online information, article 41 of china’s cybersecurity law, introduced in 2017, stipulates that network operators shall obtain the consent of the collected person when processing the collected person’s information. article 42 stipulates that network operators shall not arbitrarily leak, tamper with, or destroy personal information, and shall take necessary technical measures to safeguard information security. article 43 stipulates that when an individual discovers that a network operator has collected and used personal information in violation of laws, administrative regulations and relevant agreements, the individual has the right to request the network operator to delete the personal information, and when the individual discovers that the personal information is incorrect, the individual has the right to request the network operator to delete and correct the information. although these provisions reflect the exploration of the right to be forgotten, they are not the right to be forgotten in the true sense of the word, and the scope of application of the provisions is relatively narrow. there is also legal exploration of the right to be forgotten in the civil code. article 1037 of the civil code stipulates that a natural person has the right to request an information processor to delete his/her personal information in a timely manner when he/she discovers that the information processor has handled his/her personal information in violation of the law or the agreement between the two parties. meanwhile, article 1195 of the tort liability section of the civil code stipulates that when a right holder finds that an internet user has committed an infringing act, he/she has the right to notify the internet service provider to take measures such as deleting, blocking and disconnecting the link. at the same time, the network service provider has the obligation to notify the relevant network users and take the necessary measures, and if it fails to take the necessary measures, resulting in the expansion of the loss, it shall be jointly and severally liable with the other network users for the expanded portion of the loss. from the above provisions, it can be found that article 1195 of the civil code is similar to the right to be forgotten, both of which take place in the internet, and can realize part of the function of the right to be forgotten. but the difference is that the article only for infringement of information, and here the right to delete and the right to be forgotten has the essential difference, the article is essentially the regulation of infringement, and for some unnecessary, outdated information processing law and regulations and the right to be forgotten in the information often does not have the damage behavior and the consequences of the damage occurs, but on the whole, the civil code article 1195 does not have the right to be forgotten of direct protection. however, in general, although article 1195 of the civil code does not provide direct protection for the right to be forgotten, it has played a positive role in maintaining network order and safeguarding the information security of information subjects. as china’s legal reform becomes more and more in-depth, china’s information security protection legislation is also gradually maturing. the personal information protection law of the people’s republic of china was formally passed on august 20, 2021, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 24 published by scholink inc. providing for the collection, deletion, and use of personal information in the form of specialized legislation. the first paragraph of article 47 of the personal information protection law stipulates the specific circumstances in which the right to erasure applies, allowing the subject of information the right to demand that the processor of the information fulfill the obligation to erase under specific circumstances. although the right to erasure here is a further exploration of the right to be forgotten, compared to the right to be forgotten, the right to erasure of personal information in this case is only for erasure in the case of violation of law and fulfillment of the purpose of the processing, and does not provide for erasure of outdated or inaccurate information, and the subjects covered by the right to erasure are limited to the subject of the information and the person in control of the information. personal information published by a third party through the dissemination of a link cannot be protected under the existing framework of the right to erasure. as a result, it appears that the protection of human dignity is insufficient, and cannot make the subject of information maintain an objective and true image in the internet space. at present, china’s laws do not clearly stipulate the concept of the right to be forgotten, the exploration of which is distributed in a variety of laws and regulations (long, 2018, pp. 69-80). 3. the legislative dilemma of the right to be forgotten and ways to resolve it 3.1 the contradiction between the right to freedom of expression and the right to be forgotten the right to freedom of expression is a fundamental right granted to citizens by the constitution to freely express their opinions and views by speaking and listening to others of their own free will. the guarantee of this right strengthens the development and integration of cultural pluralism and promotes the democratic development and progress of society. the constitution of china clearly stipulates that citizens enjoy the right to freedom of expression in the “fundamental rights and duties of citizens”. the right to be forgotten, also known as the “right to erasure”, was introduced to protect the human dignity of the subject of information and the right to control and protect information. the right to be forgotten stipulates that the subject of information has the right to delete information that is irrelevant, inaccurate or outdated. the internet space is somewhat hidden, which to some extent strengthens the degree of citizens’ freedom of expression on the internet, while the right to be forgotten emphasizes the deletion of information that the subject of information wants to delete, so the two are in relative opposition to each other. when an information subject makes a request for deletion to the information controller, the information controller usually uses the right to freedom of expression as a defense. unlike the european union, the united states focuses more on freedom of speech, so american scholars are more opposed to the right to be forgotten, while domestic scholar liang chenxi is concerned that the right to be forgotten will adversely affect freedom of speech, freedom of the press, and so on. from the perspective of rights norms, the right to freedom of expression is a fundamental right protected by the constitution, while the right to be forgotten is regarded as a personality right in the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 25 published by scholink inc. academic circles, which also belongs to the fundamental rights protected by the constitution, and both of them are constrained by each other to a certain extent, but at the same time equally protected by the constitution. therefore, when the right to be forgotten and the right to freedom of expression are in conflict, they should be analyzed in the following aspects: first, it should be divided according to the nature of the information. if the information belongs to the private information of the information subject, and the behavior of the information controller such as controlling and processing is itself prohibited by law, then the information protection interests of the right to be forgotten should be prioritized over the public’s right to freedom of expression. as far as the author is concerned, when we are dealing with the personality interests of individuals, the information protection interests of the information subject should not be swayed by the right to freedom of expression. secondly, the identity of the subject of information is different, some subjects of information are ordinary citizens, but some subjects of information are public figures with special identity and status, this kind of special subjects because of their special characteristics will lead to the exercise of the right to be forgotten have restrictions, they will be subject to freedom of expression and public opinion supervision constraints, requiring this kind of special subjects to bear certain public opinion risk, with certain tolerance obligations. therefore, the author believes that we should categorize the information subjects from their identity. finally, we should uphold the principles of legality, openness and transparency in dealing with the priority of the right to be forgotten and the right to freedom of expression. in the context of today’s era focusing on the protection of personal privacy, information controllers will face the controversy of overly strict speech regulation when they change or delete information according to the request made by the subject of the information, but for the information controllers, they are only executing the request made by the subject of the information, which is the obligation of the information controllers, not the right. information controllers will ignore the public’s freedom of speech to restrict the public’s free expression in order to avoid getting themselves into a dispute over the right to be forgotten. when dealing with the relationship between the two, we should consider whether the processing of information is in accordance with the principle, whether the subject of information requests to exercise the right to be forgotten out of malice, and whether the controller of information is lawful and reasonable in processing the information. in summary, we should consider a number of factors in order to properly deal with the priority between the two (silva & nazarovets, 2023, pp. 651-666). 3.2 conflict between the public’s right to know and the right to be forgotten the concept of the public’s right to information refers to the freedom and right of the general public to obtain information and to know the content of that information, and is one of the important rights of citizens. depending on the means of access to information, it can be categorized into official and unofficial information. third-party dissemination other than active dissemination by the information www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 26 published by scholink inc. subject are all unofficial information. in the internet era, obtaining information from online platforms is by far the most common way, so online platforms store a large amount of information. the exercise of the right to be forgotten by the information subject will lead to the deletion and tampering of the information in the platform, relegating the information that has already been made public to the private sphere and reducing the public’s access to and circulation of information, that is to say, the exercise of the right to be forgotten by the information subject restricts the free dissemination of information, which creates a kind of artificial manipulation of the access to and circulation of information. this kind of behavior is contrary to the concept of the public’s right to know and damages the public’s right to know. it can be seen that the right to be forgotten and the public’s right to know are contradictory in the legal provisions, and there is also a conflict in judicial decisions. scholar zheng zhifeng is even more worried that the right to be forgotten will become a weapon to erase a person’s bad black history. 3.3 gaming the solution—the principle of proportionality the principle of proportionality refers to a restriction on the freedom of other interests within a reasonable and proportionate range in the exercise of strong rights. the principle emphasizes the regulation of the interests of strong rights, as a way to balance the interests of other weak rights, reflecting the balance and moderation, the use of this principle can effectively avoid the imbalance between the two sides due to the dominant position of the strong rights. with the rapid development of internet technology, emerging rights continue to increase, but the emerging rights and the traditional rights of the border fuzzy, unclear concept, resulting in the exercise of rights in the process of friction, the essence of the reason is not to deal with the balance of interests between the rights. the european union has applied the principle of proportionality to solve the problem of conflicts and contradictions of the right to be forgotten, which provides a reference for countries around the world. the right to be forgotten, as an emerging specific personality right, aims to protect the personal information of the information subject, but the value of its protection should not be higher than the value of the public’s right to know and the right to freedom of expression as a matter of course, and the protection of personal information does not necessarily have to be prioritized over the corporate interests of the network platform operators. therefore, the principle of proportionality is applied to harmonize the conflict between the right to be forgotten and other rights. in the current study, when applying the principle of proportionality, there is a difference in the order of priority. first, the purpose justification should be analyzed first. in our country’s civil code has specially set up the personality right, which reflects the importance of our country’s human dignity and the protection of the important position, and the establishment of the right to be forgotten in order to better protect the subject of the information of the human dignity, once to avoid the inaccurate, outdated information on the subject of the information of the impact of the present life, so when the right to be forgotten and other rights conflict, in order to protect the dignity of the human being, the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 27 published by scholink inc. right to be forgotten is rightfully considered to be the right to be forgotten, the right to be forgotten is the right to be forgotten. is rightfully considered to be justified. after that, we analyze the principle of the right to be forgotten, which is based on whether or not the action meets the conditions conducive to the realization of the purpose. in order to achieve the purpose of “forgetting”, the subject of information exercises the right to be forgotten to request the controller of the information to delete unfavorable information about him or her, and in this way, realizes the protection of human dignity of personal information. finally, the principle of necessity of means is analyzed, i.e., the principle of least infringement, which means that in the face of a variety of means of exercising the right to be forgotten, a means of choosing the one that is least detrimental to the interests. the most favorable means of exercising the right to be forgotten is deletion, at this time to measure the deletion is the least damaging means, need to be analyzed through specific cases. in conclusion, objectively, the friction between the right to be forgotten and other rights is inevitable, and the friction will become an obstacle to the exercise of the right to be forgotten, but it can not become an obstacle to the establishment of the right to be forgotten, and when the friction between the right to be forgotten and other rights arises, the principle of proportionality should be used to establish the practical standard and the exercise boundary of the principle of proportionality based on the circumstances of the specific case. 3.4 impacting the growth of the network industry since the 21st century, china’s information network technology has developed significantly, and china’s economy has been riding on the express train of network technology development, which has brought unprecedented opportunities to our country, and at the same time, it has also become one of the key factors for our country’s ability to overtake in the international arena. in recent years, the state will network information technology development as an important national strategy to focus on planning, therefore, china’s information network technology can be rapid development, to a certain extent, also promotes the development and improvement of the law, and the law also reacts to information technology. the development of information network technology extends the scope of application of law and expands the field of legal research, but it may also hinder the development of information network technology. the information industry collects all kinds of information through processing to enhance interests. if the right to be forgotten, once established, enhances the information subject’s right to control personal information, it will have a negative effect on the information processing of the information industry. the information network platform, which brings together a lot of information, contains great value. in the current context, if the right to be forgotten is established, it will lead to many information subjects requesting the deletion of their corresponding information, and the deletion of too much information will lead to the optimization of the algorithm performance of the relevant engine companies and data exploration and mining problems, which will cause concern, and for the sake of their own company’s interests, they will not be willing to provide too much of the collected data to the public for reference, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 28 published by scholink inc. and the data will lose its value. at the same time, each network platform also needs to spend a lot of human and financial costs to complete and approve the information subject’s request for the right to be forgotten, which will cause the company’s research and development costs to increase, inefficient, after the establishment of the right to be forgotten in europe, google and other companies to deal with all kinds of requests, specializing in the establishment of expert advisory groups, to approve and delete the information, which is a huge cost. therefore, the establishment of the right to be forgotten has led to an increase in the burden of the obligation of information network platforms, and the cost is too high for individual platforms. in addition to china’s ali, baidu, tencent and other financially strong companies, there is no shortage of small and medium-sized enterprises, including some will have to invest a lot of human and financial resources, hindering the development of the company. the above concerns also triggered social thinking, but the healthy development of the information industry is conducive to social development, so we need a more standardized institutional environment, the need for legal escort. in the context of network technology, the development of network technology has led to too much imbalance between the rights and obligations of information subjects and network operators, resulting in unequal processing of information between the two sides. the current international community’s control over the strength of self-information calls for more protection, and calls for brand-new norms and laws to be introduced to adjust the current mode of data processing. the fact that the right to be forgotten has been established in many countries around the world shows that there is a general trend to strengthen the protection of personal information. if our country rejects the right to be forgotten due to the fear that the establishment of the right to be forgotten will have an impact on the information industry, it will hinder the development of our international business. therefore, for network platforms, they should independently strengthen the industry norms, enhance self-regulation, reasonably dispose of the rights and obligations between them and the information subject, rebuild the possibility of expectation of the information subject, and transform the respect for the information right of the information subject into the competitiveness of each platform to the outside world, and do not regard it as their own burden, so as to realize a win-win situation with the information subject. therefore, at the system level, under the background of the present network technology era, referring to the legislative experience of various countries, we should try to take into account the rights and obligations of the information subject and the network platform operators. in summary, the author believes that we should take the initiative to explore the legislative path of localization of the right to be forgotten in china. for example, by setting the information retention period, the information subject can utilize the information retention period provided by the network platform operator to set their own information retention time, which can effectively avoid the unlimited disclosure of personal information in cyberspace, and the enterprises can also use the network platform with more confidence because the information subject’s right to information has been adequately protected and respected, and the network operator's pressure on the application of the right to be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 29 published by scholink inc. forgotten can be alleviated to a certain extent. the pressure of the application of the right to be forgotten can be alleviated by this move. 4. resulting in a squeeze on judicial resources once the right to be forgotten is established, in the context of the present internet era, related judicial disputes will also appear in large numbers, which will bring more pressure on the already strained judicial system in china. however, according to past experience, the birth of any law will lead to a surge of new types of judicial disputes, which will put more pressure on the judicial system. however, we should not think too much about what kind of pressure and burden the establishment of a new legal system will bring to the judicial system, but rather, we should consider how much positive effect it will have on the society, the feasibility and necessity of its construction, and consider how to make the judicial system less burdensome. for the above views, the author believes that we can follow the example of the european union, the establishment of the data protection authority (china can be the ministry of industry and information technology under the information and communication administration as), the use of a system similar to the review of our country’s predecessor to neutralize the two. according to the central editorial office [2015] no. 17 document, the information and communication bureau in china should undertake the supervision and protection of personal information, designation of information protection system, etc., the information and communication bureau can serve as a review subject after the legislation of the right to be forgotten, accept the application of the subject of the information, review the content of the application whether the application is reasonable, the network platform operator whether it is properly operated, if the subject of the information is dissatisfied with the disposition of the information and communication bureau if the information subject is not satisfied with the information and communications bureau’s handling of the application, the information subject shall then proceed to the next step of litigation. specifically, the information subject should first request the information network operator to delete the relevant information and links, and if the other party does not agree, then the application will be made to the data protection authority, and if it still fails, the information subject will then take the option of judicial remedies. the data protection authority here can act as a front-loaded role, playing a shared review obligation and reducing the pressure on the judicial system. 5. conclusions according to the current development speed of china’s network, the right to be forgotten of the localization of the legislation has provoked intense discussion in the academic community, with the introduction of article 47 of the personal information protection act to a certain extent laid down the right to be forgotten of the legislation, but at the same time the right to be forgotten of the legislation in our country is faced with a number of contradictions, how to resolve these contradictions with the right www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 30 published by scholink inc. to be forgotten of the conflicts, is the direction of the research that we want to focus on in the future to provide a better platform for the protection of information in our country. it is the direction we should focus on in the future, so as to provide a better platform for the progress of information protection in china. reference long, y. (2018). on the construction of the “right to be forgotten” system in the personal information protection legislation in china. journal of jinan (philosophy and social sciences edition), 40(12), 69-80. moreno, á. b. (2023). digital rights in europe after the entry into force of regulations for the protection of personal data: before and after the right to be forgotten. communication law and policy, 28(4), 313-331. https://doi.org/10.1080/10811680.2023.2271461 silva, d. t. a. j., & nazarovets, s. (2023). can the principle of the “right to be forgotten” be applied to academic publishing? probe from the perspective of personal rights, archival science, open science and post‐publication peer review. learned publishing, 36(4), 651-666. https://doi.org/10.1002/leap.1579 wang, y. (2023). the connotation, value and realization of the right to be forgotten in the chinese context. journal of wuhan university (philosophy and social sciences edition), 76(05), 162-172. xu, h. (2024). the realistic logic and construction path of the right to be forgotten in the era of big data credit investigation. proceedings of zhongzhou university, 41(02), 45-50, 56. yun, z., chuan, l., hongyan, w. et al. (2023). “a right to be forgotten”: retrospective privacy concerns in social networking services. behaviour & information technology, 42(7), 829-850. https://doi.org/10.1080/0144929x.2022.2046162 https://doi.org/10.1080/10811680.2023.2271461 https://doi.org/10.1002/leap.1579 https://doi.org/10.1080/0144929x.2022.2046162 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 286 original paper legal issues concerning the entity responsible for collecting marine area usage fees zhaobin pei 1 & han wang 1 1 dalian ocean university, dalian, liaoning, china received: november 27, 2025 accepted: december 10, 2025 online published: december 13, 2025 doi:10.22158/elp.v8n2p286 url: http://dx.doi.org/10.22158/elp.v8n2p286 abstract the legal positioning and delineation of responsibilities for the entity collecting marine area usage fees are central to safeguarding national marine resource revenues. following the implementation of document no. 19 of the ministry of finance [2021], the collection and management duties for marine area usage fees were transferred to tax authorities. however, three major legal issues persist: the separation of collection authority from the right to apply for court-enforced execution; a disconnect in the legal standing between regulatory norms and policy documents; and inconsistent adjudication standards in judicial review. through analysis of typical cases and legislative empirical evidence, this study proposes three key countermeasures: establishing a “unified authority + collaborative empowerment” mechanism; improving the “legislative revision + policy coordination” system; and creating a “unified rules + judicial coordination + grassroots enforcement + legal oversight” safeguard mechanism. these measures provide a legal basis for refining the collection entity system. keywords marine area usage fees, collection, non-tax revenue, administrative penalties 1. introduction marine area usage fees, as the economic manifestation of state ownership over maritime territories, serve both as a key lever for regulating marine resource allocation and as a vital funding source for marine ecological conservation and the development of a maritime power. the legal status of the entities responsible for collecting these fees directly impacts the security of state-owned assets and the effectiveness of marine governance. in practical terms, china’s marine gross domestic product reached 10.5438 trillion yuan in 2024, accounting for 7.8% of the nation’s total gdp (jiang, y. j., 2025). this robust growth underscores the immense value of marine resources. however, the scale of marine use fee collection has failed to keep pace. following the establishment of the new “marine approval, tax www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 287 collection” mechanism under document no. 19 of the ministry of finance [2021], a surge in delinquent cases occurred due to delayed legal coordination. currently, academic research on the intersection of administrative power allocation and the rule of law in marine resource management remains largely unexplored. the ambiguous legal status of collection entities and unclear delineation of responsibilities not only prevent the full collection of marine area usage fees, hindering support for public welfare projects like marine area remediation and restoration, but also indirectly constrain the sustained and healthy development of the marine economy. therefore, this research holds dual value in both theoretical advancement and practical solutions. it not only lays a solid theoretical foundation for subsequent related studies but also provides concrete guidance for the rule-of-law-based management of marine resources. 2. research hypotheses this study proposes a core hypothesis: by clarifying the legal status and delineating the authority and responsibility boundaries of the collection entity, improving the legal norms and policy coordination system, and unifying judicial review standards, it is possible to effectively resolve the current issues of misaligned responsibilities, legal conflicts, and inconsistent judicial practices in the collection of maritime use fees. specifically: 1. at the legislative level, clarifying the tax authorities’ legal status as the integrated entity responsible for both collection and enforcement applications, while establishing a collaborative mechanism between tax and maritime departments, would fill the enforcement coordination gap. simultaneously revising higher-level laws such as the maritime area use management law and enacting a unified non-tax revenue collection and management law to refine policy implementation rules can resolve conflicts between legal and policy hierarchies. issuing specialized judicial interpretations by the supreme people’s court to establish a coordination mechanism between judicial and administrative bodies can achieve uniform adjudication standards for similar cases. ultimately, these approaches would enhance the efficiency of marine area usage fee collection, curb the loss of state-owned assets, improve the operational mechanisms of administrative power and the legal framework for marine resources, and provide institutional safeguards for building a maritime power. 3. research design this study follows a core logic of “identifying problems—analyzing root causes—proposing solutions.” first, through policy document review and case analysis, it systematically deconstructs the three major challenges faced by entities responsible for collecting maritime use fees: separation of powers and responsibilities, legal conflicts, and inconsistent judicial interpretations. second, it delves into the institutional roots of these issues from three dimensions: legislative lag, deficiencies in authority allocation, and regulatory gaps. finally, integrating the administrative law principle of “alignment of authority and responsibility” with the requirements for reforming the non-tax revenue www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 288 collection and management system, it constructs a three-dimensional solution framework encompassing “legislative refinement, mechanism coordination, and judicial standardization,” thereby forming a research trajectory that bridges theory and practice. 4. empirical analysis 4.1 legal issues in the entities responsible for collecting marine area usage fees the collection of maritime area usage fees faces issues such as the separation of collection authority and enforcement authority, gaps in the effectiveness of laws and policies, and inconsistent judicial adjudication standards. following the 2021 transfer of collection duties to tax authorities under document no. 19 of the ministry of finance, delays in revising higher-level laws like the maritime areas use administration law created an enforcement vacuum: tax authorities “collect but struggle to enforce,” while marine departments “enforce but cannot collect.” for instance, a dalian enterprise’s delinquency case took three years to resolve due to jurisdictional misalignment. simultaneously, conflicts between higher-level laws and policies, as well as between special and general laws, have led to chaotic enforcement models across 31 coastal provinces. the lack of practical implementation rules for policies caused a refund case in shenzhen to stall for nearly a year. in judicial review, courts exhibit significant divergence in adjudicating issues such as the eligibility of enforcement applicants, resulting in three types of rulings: supporting the maritime authorities, supporting the tax authorities, or dismissing both parties’ applications. furthermore, maritime courts and local courts apply legal logic differently, severely undermining legal consistency and judicial credibility. 4.1.1 separation of the collection authority of the collecting entity from the right to apply for court-ordered enforcement the 2021 finance comprehensive document [2021] no. 19 fully transferred the responsibility for collecting maritime use fees to tax authorities, marking china’s entry into a new phase of “tax-led unified collection” for non-tax revenue management. this reform aimed to address regulatory failures caused by the natural resources department’s “self-collection and self-management” model, enhancing efficiency and reducing rent-seeking opportunities through the tax authorities’ professional collection and management. however, due to the delayed revision of higher-level laws such as the maritime areas use administration law of the people’s republic of china, a structural mismatch has emerged between the allocation of collection authority and the authority to apply for court-enforced execution. this has created an enforcement vacuum where “those with collection authority lack the right to apply for enforcement, while those with enforcement application rights lack collection functions.” the currently enacted administrative compulsory law of the people’s republic of china does not specify the enforcement entity, which, while allowing flexibility in enforcement, also risks triggering unnecessary disputes (wang, q. b., & gao, c. h., 2022). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 289 in practice, the conflict between the two entities’ functions is most evident in the enforcement application process: tax authorities face “collection without enforcement.” while tax authorities possess collection authority under policy to conduct fee assessments and written payment reminders, they lack legal authorization to apply for court enforcement. article 40 of the tax collection and administration law of the people’s republic of china explicitly limits tax authorities’ enforcement powers to “taxes, late payment penalties, and fines,” excluding maritime area usage fees as non-tax revenues. meanwhile, the maritime area usage administration law of the people’s republic of china contains no provisions granting tax authorities the right to apply for enforcement. this leaves tax authorities “powerless” when confronting delinquent payments. for instance, in a case involving a dalian changhai county aquaculture enterprise owing 4 million yuan in maritime area usage fees, tax authorities completed three written payment reminders but could not submit an enforcement application. consequently, the entire case cycle lasted three years (changhai county people’s court of liaoning province, 2022), far exceeding normal administrative enforcement timelines. marine authorities face “enforcement without collection.” although marine departments retain tacit enforcement authority in some regions due to article 48 of the maritime area use administration law of the people’s republic of china (“canceling certificates and reclaiming maritime areas”), they have lost core collection data support following the transfer of tax collection responsibilities. furthermore, this separation of functions causes efficiency losses in the “enforcement assistance” process. 4.1.2 disconnect in legal norms and policy document effectiveness significant conflicts exist in the configuration of enforcement entities among the higher-level law on the administration of the use of maritime areas of the people’s republic of china, the general administrative compulsory law of the people’s republic of china, and the departmental policy document cai zong [2021] no. 19. this creates a dual dilemma of “disconnect between legal provisions and reform practices, and contradictions between special laws and general laws,” trapping local enforcement in a “dilemma of choice.” it also increases the burden of litigation for parties involved, reduces enforcement efficiency, and causes unnecessary consumption of judicial resources. from a regulatory framework perspective, the conflict manifests primarily at three levels. conflict in the effectiveness of higher-level laws and policies. article 33 of the maritime area use administration law of the people’s republic of china explicitly states that “the maritime area use fee shall be collected by the administrative department in charge of maritime area use.” article 48 assigns the enforcement authority to “cancel maritime area use right certificates and reclaim maritime areas” to “the people’s government that issued the certificates,” without mentioning the status of tax authorities as the competent entity. meanwhile, document cai zong [2021] no. 19, as a departmental normative document, merely transfers collection duties to tax authorities based on the state council’s non-tax revenue reform directives without concurrently addressing the legal authorization for “how enforcement authority should be transferred.” pursuant to article 91 of the legislation law of the people’s republic of china, which stipulates that “departmental regulations shall not exceed the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 290 boundaries of legal authorization,” the authority adjustments in document cai zong [2021] no. 19, lacking support from higher-level laws, are frequently challenged for legality during judicial review. conflict between special and general laws. as a special law governing marine resource management, article 48 of the law of the people’s republic of china on the administration of the use of maritime areas implicitly reflects the legislative intent of “maritime departments retaining associated enforcement authority.” conversely, article 53 of the administrative compulsory law of the people’s republic of china, as a general law, explicitly states that “administrative organs without compulsory enforcement authority shall apply to the court for enforcement.” this conflict in legal application has led to divergent enforcement practices across regions: among china’s 31 coastal provinces, 22 (e.g., hainan, guangxi) continue using the outdated “oceanic department enforcement application” model; 7 (e.g., guangdong, shandong) have adopted the new “tax department application + oceanic department assistance” approach; and 2 (e.g., qinghai, ningxia) have suspended enforcement procedures due to the conflict. disconnect between policy and practice. circular no. 19 [2021] of the ministry of finance and the ministry of finance only stipulates the “transfer of collection responsibilities” without detailing operational rules such as “determination of arrears, application materials for enforcement, and interdepartmental collaboration procedures.” this has resulted in lengthy local exploration efforts. for instance, shenzhen port group secured approval for a 1.62 million yuan reduction in sea area usage fees under the policy. however, when applying for a refund to the yantian district tax bureau, the reduction/refund involved approvals from multiple central and local departments—a scenario not covered by tax authorities’ responsibility for refunding erroneous or overpaid taxes. with no precedents and a multi-tiered, multi-departmental, multi-step application process, the case stalled for nearly a year. ultimately, the shenzhen municipal taxation bureau spearheaded the development of the operational guidelines for refunding marine area usage fees to complete the refund (state taxation administration yantian district tax bureau of shenzhen city, 2024), exposing the policy’s flaw of “emphasizing principles over details.” 4.1.3 inconsistent judicial review standards when reviewing applications for compulsory enforcement of maritime area usage fees, courts lack uniform adjudication rules, leading to significant divergences on core issues such as “eligibility of enforcement applicants” and “resolution of conflicts between laws and policies.” this has resulted in three contradictory types of rulings: “supporting the maritime department,” “supporting the tax department,” and “dismissing both parties’ applications,” severely undermining legal consistency and judicial credibility. some courts strictly adhere to the “legal supremacy” principle, citing article 48 of the maritime areas use administration law of the people’s republic of china to support the maritime authorities’ standing. others emphasize “reform practice,” relying on circular no. 19 [2021] of the ministry of finance to support the tax authorities. still other courts adopt a “double-negative” stance, dismissing www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 291 both parties’ applications on grounds of “unclear subject qualification.” regarding the order of application between the special law (law on the administration of the use of maritime areas) and the general law (administrative compulsory law of the people’s republic of china), judicial reasoning diverges. maritime courts, due to their specialized jurisdiction over maritime cases, tend to prioritize the law on the administration of the use of maritime areas, while local courts focus more on general rules governing the allocation of administrative authority. the hainan case recognized the traditional legal standing of marine authorities (danzhou municipal bureau of natural resources and planning et al., 2022), whereas the dalian municipal people’s government’s policy interpretation of the work plan for collecting overdue maritime area usage fees in changhai county maintained that the application for maritime area usage fees should still be borne by the competent marine administrative authorities. inconsistent adjudication standards in similar cases undermine legal uniformity. 4.2 analysis of legal issues in the entity responsible for collecting marine area usage fees following the transfer of marine area usage fee collection responsibilities to tax authorities, numerous legal and enforcement challenges have emerged. first, the lengthy revision cycle of the marine area usage management law lags far behind the reform pace outlined in document no. 19 of the ministry of finance and the general administration of taxation (2021), failing to explicitly designate tax authorities as the enforcement entity. this results in a situation where they “have the name of collection but lack the substance of enforcement.” second, the law has not been amended to align with the reforms, allowing maritime departments to continue enforcing outdated regulations. as a departmental document, document no. 19 carries less legal weight than the law and cannot override the legal constraints on enforcement authority allocation. this creates a stalemate where “tax authorities lack coercive enforcement powers for collection, while maritime departments have authorization but lack data.” third, the absence of rules defining the enforcement authority, the disputed interpretation of “the authority issuing the collection decision,” and the lack of regulations on transferring non-tax revenue enforcement applications have led to inconsistent judicial discretion. courts have rendered contradictory rulings in similar cases, hindering the implementation of reforms. 4.2.1 legal failure to simultaneously clarify tax authorities’ enforcement status following the transfer of tax administration responsibilities, while tax authorities have become the statutory entities responsible for collecting maritime use fees, the law has not concurrently granted them the authority to apply for court-ordered enforcement. this has resulted in a disconnect between “collection authority and enforcement application rights.” the root cause of this issue lies in the “mismatch between the pace of reform and legislative procedures” and “legal design flaws in the allocation of powers.” on one hand, the legislative revision cycle cannot meet the timeliness requirements of reforms. as a law enacted by the standing committee of the national people’s congress, the revision of the law on the administration of the use of maritime areas must undergo statutory procedures including “proposal—first reading—second reading—vote—promulgation,” typically taking 2 to 3 years. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 292 meanwhile, document cai zong [2021] no. 19, as a reform task deployed by the state council, requires pilot programs to be launched within six months in seven provinces (autonomous regions and municipalities) including hebei and inner mongolia, with full implementation within one year. the pace of legislative revision lags far behind the reform’s advancement. this “policy-first, law-follows” model has resulted in the tax authorities’ enforcement application authority long lacking support from higher-level laws. liu wenhua noted in his study “research on administrative agencies with compulsory enforcement powers” that “the allocation of administrative compulsory enforcement powers must be explicitly authorized by law; no policy document may transfer or create such powers without legislative procedures” (liu, w. h., 2021). circular no. 19 of 2021 can only adjust collection procedures and cannot override legal provisions reserving enforcement authority. on the other hand, the law failed to anticipate the need for seamless integration of responsibilities under the “separation of collection and enforcement powers.” when the “law of the people’s republic of china on the administration of the use of maritime areas” was enacted, it adopted the traditional model of “self-collection and self-enforcement by maritime authorities,” failing to distinguish between the attributes of “collection authority” (determining fee amounts and demand payment) and “enforcement application authority” (initiating judicial procedures). it simply granted both types of authority to the same entity. when transferring collection authority under document no. 19 of 2021, the ministry of finance failed to concurrently promote legal amendments to restructure authority allocation. this has resulted in tax authorities possessing “the title of collection but lacking the substance of enforcement.” for instance, the law of the people’s republic of china on the administration of the use of maritime areas neither added provisions explicitly authorizing “tax authorities to apply for compulsory enforcement based on collection decisions” nor removed the reference linking the maritime department to enforcement authority in article 48. this has trapped local law enforcement and judicial review in a predicament where “old laws remain in effect while new laws have yet to be enacted.” 4.2.2 higher-level laws remain unrevised despite reforms, and policy effectiveness is limited as a special law governing maritime resource management, the maritime areas use administration law of the people’s republic of china was not revised concurrently with the non-tax revenue collection reform, retaining the outdated provision that “maritime departments lead enforcement.” meanwhile, document no. 19 of the ministry of finance (cai zong [2021] no. 19), being a departmental normative document with lower legal authority than statutes, cannot override the rigid constraints imposed by law on the allocation of enforcement powers. the combination of these factors creates a systemic conflict between “legal provisions and reform practices.” first, the “legal residue” in the higher-level law hinders reform implementation. articles 33 and 48 of the maritime areas use administration law of the people’s republic of china continue to grant collection and enforcement authority to marine departments, excluding tax authorities from primary responsibility. as a special law, this statute is often prioritized in judicial review under the principle of “special laws taking precedence www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 293 over general laws,” rendering the reform provisions of cai zong [2021] no. 19 difficult to fully implement. second, the limited efficacy of departmental policies cannot resolve substantive authority issues. document cai zong [2021] no. 19 holds the legal status of a “departmental normative document.” pursuant to article 13 of the administrative compulsory law of the people’s republic of china, which stipulates that “administrative compulsory enforcement shall be established by law,” it lacks the authority to create or transfer compulsory enforcement powers. it can only regulate procedural matters within the collection process (e.g., payment channels, invoice usage). in practice, although the document mandates tax authorities to collect “arrears from previous years,” their inability to initiate enforcement applications leaves them “only able to urge payment, not enforce collection.” meanwhile, marine authorities possess enforcement application rights but lack collection data to proceed, creating a “deadlock.” 4.2.3 lack of unified rules for determining enforcement entities neither laws nor policies clearly define the core rule for “determining the enforcement applicant after the transfer of collection responsibilities.” this absence of a unified standard forces courts to exercise discretionary judgment on a case-by-case basis during review. the root cause lies in the failure to codify post-reform authority boundaries through established rules. specifically, this rule gap manifests in two core areas: ambiguity in identifying the administrative agency responsible for issuing decisions: article 155 of the supreme people’s court’s interpretation on the application of the administrative procedure law of the people’s republic of china requires that “the administrative agency applying for enforcement must be the agency that made the administrative act.” however, after the transfer of collection and management responsibilities, the definition of the “agency making the collection decision” is disputed: the maritime authorities, however, contend that pursuant to article 48 of the maritime areas use administration law of the people’s republic of china, the “decision to pay within a specified time limit” must still be issued by them, and the right to apply for enforcement should not be transferred. the rules governing the transfer of enforcement application rights for non-tax revenues are absent. the administrative compulsory law of the people’s republic of china has not added provisions addressing the “transfer of non-tax revenue collection and management responsibilities,” leaving unresolved issues such as whether enforcement application rights transfer concurrently with collection rights and whether local governments can adjust enforcement entities through administrative coordination. for instance, in a tax enforcement case filed by a tax authority in aksu, xinjiang, the court dismissed the application on the grounds that “non-tax revenue is not subject to tax enforcement rules,” adhering to the logic of “who collects, who enforces.” conversely, in a case in danzhou, hainan, the court granted enforcement based on the rationale that “the maritime department has legal authorization,” applying the standard of “whoever has the authorization enforces.” this regulatory gap grants excessive judicial discretion, leading to conflicting rulings in similar cases. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 294 4.3 solutions and recommendations for legal issues regarding the entity responsible for collecting marine area usage fees to overcome challenges in collecting maritime use fees, efforts must focus on three areas: authority and responsibility, rule of law, and safeguards. regarding authority and responsibility, legislation should establish the tax authorities as the core collectors, granting them the right to levy, verify fees, and apply for enforcement. natural resources departments should assist by building a national data platform for collection and management to enable full-process oversight. regarding the rule of law, efforts should be made to enact the non-tax revenue collection and management law and update the maritime area use management law. collaborative norms should be elevated to local regulations, with differentiated verification and payment standards and a 30-day refund deadline clearly stipulated. for safeguards, judicial interpretations should define enforcement entities and establish a four-department consultation mechanism. an enforcement team should be formed, supported by technological oversight, with procuratorial organs leading supervision and implementing a 15-day case filing review procedure to ensure lawful and efficient collection. 4.3.1 establishing a “unified authority + collaborative empowerment” mechanism clearly designate tax authorities as the statutory entity for both collection and enforcement applications, eliminating the institutional root cause of “separation of powers.” enhanced research is needed to precisely coordinate the relationship between the maritime administrative authorities and the maritime areas use administration law of the people’s republic of china with other departments and relevant laws through legislation and regulatory development, thereby preventing power struggles and redundant management (zhu, f., 2021). 4.3.1.1 legislation to clarify tax authorities’ status as enforcement applicants revise article 48 of the “law of the people’s republic of china on the administration of the use of maritime areas” to add: following the transfer of maritime area usage fee collection responsibilities to tax authorities, tax authorities shall serve as the entity issuing administrative decisions. pursuant to article 53 of the “administrative compulsory law of the people’s republic of china” and relevant provisions of the “non-tax revenue collection and management law” (proposed), they shall exercise collection authority, fee determination authority, and the right to apply for court-enforced execution. the natural resources department (marine authority) shall be responsible for assisting in the cancelation of certificates, the recovery of maritime use rights, and the provision of information to facilitate enforcement, such as the location of maritime facilities and the status of use rights mortgages, thereby fulfilling its duties as the owner of state-owned natural resource assets. simultaneously, the law incorporates derivative provisions explicitly referencing the procedures for “enforcement of monetary claims” under the tax collection and administration law of the people’s republic of china. this approach maintains the integrity of the fiscal legal system while reducing legislative costs, aligning with the core requirement of “systematizing rules” for non-tax revenue governance (lyu, n. n., & pan, l., 2024). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 295 a dedicated provision is added to the administrative compulsory law of the people’s republic of china: “following the transfer of non-tax revenue collection responsibilities, the authority to apply for court-enforced execution shall be concurrently transferred to the receiving department along with the collection authority. when tax authorities apply for enforcement regarding cases of non-payment of maritime area usage fees, they need not obtain separate legal authorization; they may initiate procedures based solely on the collection decision document and fee assessment materials.” this measure complies with the statutory requirement for administrative enforcement authority, which must be explicitly granted by law and cannot be transferred or created through policy documents. 4.3.1.2 establishing a cross-departmental collaborative enforcement system to align with the natural resources management framework drawing on the logic of authority and responsibility allocation in the “tax department implementation model” for non-tax revenues (shi, z. w., & xue, h. t., 2023), and aligning with the management system reform requirement that “matters of the same category should in principle be coordinated by a single department” for natural resources, the measures for collaborative collection of sea area usage fees were formulated. these measures clarify the core boundaries of authority and responsibility between tax departments and natural resources departments (marine authorities): tax authorities uniformly exercise collection authority, payment reminder authority, and the right to apply for compulsory collection, responsible for core processes including fee amount determination, collection and deposit, and investigation of violations; natural resources departments (marine authorities) retain management functions including maritime use approvals, title confirmation, and purpose supervision, while assuming auxiliary enforcement obligations. these include: forwarding title confirmation data and maritime use status change information within 3 working days; completing maritime use right cancelations within 10 working days after court rulings take effect. this establishes a collaborative mechanism featuring “separation of collection and supervision with clear, coordinated responsibilities.” leveraging the unified natural resources survey and monitoring system, the initiative integrates title confirmation data from marine authorities, collection data from tax departments, and treasury deposit data to establish a nationwide “marine area usage fee collection and management information sharing platform.” this platform incorporates a risk warning module that automatically triggers alerts for overdue payments, abnormal fees, or illegal maritime use—drawing on non-tax revenue risk management mechanisms and dynamic natural resources monitoring tools—to achieve a closed-loop management process: “fee source monitoring → risk identification— targeted collection — usage supervision.” implement a self-declaration system for payers, clarifying their responsibility for the authenticity and completeness of declared information. establish a joint verification mechanism between tax and natural resources departments, shifting the focus of supervision to post-event verification. this aligns with the trend of streamlining administration, delegating power, and improving services, as well as the requirements for comprehensive natural resources supervision. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 296 4.3.2 improving the “legislative revision + policy coordination” system currently, most non-tax revenue collection regulations in china remain at the level of departmental normative documents or local regulations. to strengthen the hierarchical effectiveness of policies, elevate the “measures for the collection of sea area usage fees” and “implementation rules” to local government regulations. clarify the legal responsibilities for cross-departmental collaboration and establish disciplinary measures—such as public censure and performance point deductions—for departments that fail to submit data on time or refuse to fulfill assistance obligations. this addresses the shortcomings of departmental normative documents in terms of legal efficacy. 4.3.2.1 establishing a hierarchically structured legal framework to align with natural resource governance following the widely held view that “the legitimacy of non-tax revenues requires legal implementation” (xu, d. q., 2013), promote the enactment of a unified national non-tax revenue collection and management law. incorporate maritime area usage fees into this law to clarify the definition of non-tax revenues, collection principles, responsibilities of competent authorities, and oversight mechanisms. this addresses the current “insufficient authority” stemming from reliance on administrative regulations. simultaneously revise the maritime areas use administration law of the people’s republic of china to remove outdated provisions stating “the maritime department is responsible for collection.” clarify that “maritime areas use fees shall be collected in accordance with the non-tax revenue collection and management law, with tax authorities designated as the statutory collection entities,” thereby achieving alignment between higher-level laws and specialized legislation. advance comprehensive legislation in the natural resources sector. future integrated natural resources laws should establish common management rules for revenues from the paid use of natural resources, including maritime use fees. this will standardize foundational issues such as collection entities, assessment criteria, and distribution mechanisms, resolving the current lack of coordination caused by fragmented legislation. the npc standing committee should clarify the relationship between the maritime areas use administration law of the people’s republic of china, the non-tax revenue collection and management law, and the natural resources law (proposed): for core matters involving collection authority qualifications and power allocation, the general provisions of the non-tax revenue collection and management law and the natural resources law shall take precedence. for special matters concerning the characteristics of maritime use and ownership management, the special provisions of the maritime areas use administration law of the people’s republic of china shall apply, resolving the dilemma of conflicts between special laws and general laws. 4.3.2.2 refine policy implementation rules and cost constraints to implement the paid-use system drawing on canada’s fiscal management act principles of “charges not exceeding costs” and “classified determination standards,” and in line with the requirements of the natural resource asset www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 297 paid-use system reform, the “detailed rules for the collection of maritime area usage fees” were formulated. these rules clarify three core principles: first, classified determination standards: market value is used for commercial maritime use, actual service costs for public welfare maritime use, and preferential rates for ecological protection maritime use, reflecting the principle of “equal emphasis on protection and development.” second, standardized refund procedures distinguish between erroneous payments, policy exemptions, and other scenarios, specifying a 30-day timeline and required documentation for the “tax preliminary review—finance re-examination—treasury refund" process. third, a cost accounting mechanism mandates that tax authorities, in collaboration with finance and natural resources departments, periodically calculate collection costs, strictly prohibiting charges exceeding actual costs to ensure the rationality of levies and the realization of owner’s rights. integrate all revenues and expenditures from the paid use of maritime areas into budget management, implementing a “separate revenue and expenditure” system to ensure funds are exclusively allocated to marine ecological conservation and restoration, maritime resource management, and other designated areas, aligning with state-owned natural resource asset revenue management requirements. 4.3.3 establish a “unified rules + judicial coordination + grassroots enforcement + legal supervision” safeguard mechanism issue a special judicial interpretation on the collection of maritime use fees and establish a four-party joint conference mechanism. strengthen grassroots comprehensive law enforcement and technical support. construct a specialized legal supervision mechanism led by procuratorial organs, clarifying their responsibilities and procedural coordination, and establish relevant information sharing mechanisms. 4.3.3.1 issue special judicial interpretation to clarify recognition rules and bridge judicial and administrative functions the supreme people’s court should supplement the interpretation of the administrative procedure law with the following provision: “criteria for determining the applicant’s standing in enforcement proceedings for maritime area usage fees: for collection decisions made after the transfer of tax administration, the tax authorities shall be the applicant, as they are the statutory entity exercising state-owned resource revenue rights. for historical arrears cases prior to the transfer of tax administration, the natural resources department (the original collection entity) shall be the applicant; cases not resolved by the deadline shall be transferred to the tax authorities. the natural resources department shall only assist in enforcement and shall not act as an independent applicant, ensuring the unity of state ownership, revenue rights, and enforcement authority.” establish a four-party joint conference mechanism involving courts, tax authorities, natural resources departments, and finance departments. quarterly reports shall cover adjudication updates, collection progress, and collaborative challenges. for emerging disputes such as cross-regional maritime arrears and installment payment enforcement, jointly develop resolution plans to achieve seamless integration between judicial adjudication standards and administrative enforcement regulations. when courts issue www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 298 enforcement rulings, they shall concurrently send “assistance enforcement notices” to natural resources and finance departments, specifying assistance requirements, deadlines, and legal liabilities to ensure efficient procedural coordination. finance departments shall support judicial enforcement through budget oversight and fund management, forming a coordinated supervision chain of “judicial adjudication – administrative enforcement – budgetary constraints.” 4.3.3.2 strengthening grassroots law enforcement and technical support to address governance weaknesses in line with the requirement to “enhance grassroots law enforcement and supervision capabilities” in natural resources, establish integrated law enforcement teams covering tax, natural resources (marine), and other sectors. equip these teams with specialized personnel, clarify enforcement responsibilities, and strengthen support from modern technologies like satellite remote sensing and big data to achieve full-chain, intelligent oversight of marine use fee collection and maritime activities. leveraging the supervision information system based on the “single map” for territorial spatial planning, integrate marine land use fee collection data with information on marine land use rights confirmation, land use control, and ecological protection. this enables coordinated management across “fee source supervision—marine land use control—ecological protection,” addressing issues of insufficient grassroots enforcement capacity and low supervision efficiency. 4.3.3.3 establishing a specialized legal supervision mechanism centered on legal accountability legal supervision, corresponding to political oversight, is a supervisory approach fundamentally centered on legal accountability (men, z. j., 2022). a specialized legal supervision mechanism for marine area usage fee collection will be established, clarifying the supervisory responsibilities of procuratorial organs: first, supervising the legality of tax authorities’ collection actions, focusing on verifying whether collection standards are lawful, whether payment reminder procedures are standardized, and whether applications for compulsory enforcement meet statutory conditions, thereby preventing violations such as “illegal collection” or “excessive collection” that infringe upon payers’ rights or national interests; second, supervising the assistance execution actions of natural resources departments, ensuring timely submission of maritime usage data and lawful fulfillment of maritime usage rights cancelation obligations. for inaction or delayed action, issue procuratorial recommendations to urge rectification. third, supervising the adjudication activities of judicial organs. for inconsistent adjudication standards or erroneous application of law in maritime usage fee enforcement cases, file appeals or issue procuratorial recommendations in accordance with the law to promote uniform judicial adjudication standards. clarify procedural coordination for legal supervision: upon discovering illegal activities in the collection process, procuratorates shall initiate case review within 15 working days. for cases requiring administrative liability, procuratorial recommendations shall be issued to relevant competent authorities; for suspected official crimes, cases shall be transferred to supervisory authorities for handling; for cases causing significant loss of state assets, public interest litigation may be initiated to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 299 hold responsible parties liable for compensation. simultaneously, establish an information-sharing mechanism among procuratorial, tax, and natural resources authorities. procuratorial organs may access real-time data on marine use fee collection and management, as well as marine use approval, to ensure precise and efficient oversight while adhering to the requirement that “legal supervision must be based on procedural division of powers.” 5. conclusion the legal positioning and delineation of responsibilities for entities collecting maritime use fees serve as the institutional vehicle for realizing state ownership of marine resources and represent a crucial manifestation of the “building a maritime power” strategy at the legal level. by analyzing the legal issues faced by collection entities after the transfer of maritime use fee collection duties and their underlying causes, this study proposes a series of targeted recommendations. research indicates that optimizing the legal framework for the collection entity of maritime use fees is not only an inevitable requirement of non-tax revenue collection system reform but also the institutional foundation for safeguarding state ownership of maritime areas and ensuring a balance between marine ecological protection and development. future efforts should further explore the boundaries of authority and responsibility between tax authorities and marine departments in specific implementation procedures, as well as differentiated enforcement regulations for different types of maritime areas, to provide more refined legal safeguards for the sustainable utilization of maritime resources. references changhai county people’s court of liaoning province, administrative ruling no. (2022). liao 0224 xingshen 6. danzhou municipal bureau of natural resources and planning, hainan longdan fishery development co., ltd., administrative non-litigation execution ruling no. (2022). qiong 72 zhi 245. liu, w. h. (2021). research on administrative organs with compulsory execution power. journal of yunnan administration institute, 23(6), 138-148. lyu, n. n., & pan, l. (2024). experience reference of non-tax revenue legalization and path selection in china. international taxation in china, 2024(2), 73-80. men, z. j. (2022). the responsibility connotation and concept reconstruction of legal supervision. law review, 40(6), 9-19. shi, z. w., & xue, h. t. (2023). research on the legal system of non-tax revenue collection and management by tax authorities from an international comparative perspective. taxation research, 2023(1), 70-76. state taxation administration yantian district tax bureau of shenzhen city. (2024). completion of the first reduction and refund of marine use fees in shenzhen this year [eb/ol]. shenzhen: state taxation administration shenzhen municipal tax bureau. [2025-11-04]. retrieved from www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 published by scholink inc. 300 https://shenzhen.chinatax.gov.cn/ytqswj/gzdt/202403/fa3aafe7dd5247fa9b61294a3987ff81.shtml wang, q. b., & gao, c. h. (2022). research on the single-track configuration of administrative compulsory execution power. journal of jiangsu administration institute, 2022(3), 128-136. xu, d. q. (2013). discussion on the legality of non-tax revenue. legal science, 2013(4), 67-73. zhou, y. j. (2025). building a harmonious marine ecological environment between humans and the sea. people’s daily, june 9, 2025(014). zhu, f. (2021). research on non-tax revenue of local governments and its collection and management. china market, 2021(10), 43-44. microsoft word elp-v2n2-p189 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 2, 2019 www.scholink.org/ojs/index.php/elp 189 original paper the legal status of archipelagos in the international law of the sea maher gamil aboukhewat1* 1 public international law department, kafer elsheik university, kafer elsheik, egypt * maher gamil aboukhewat, public international law department, kafer elsheik university, kafer elsheik, egypt received: january 23, 2019 accepted: february 11, 2019 online published: august 21, 2019 doi:10.22158/elp.v2n2p189 url: http://dx.doi.org/10.22158/elp.v2n2p189 abstract the archipelagic states, which attempt to extend their control over the waters surrounding their islands, are demanding the establishment of a legal system for archipelagos in order to preserve their interests, their maritime wealth and their regional security. on the other hand, there are the great maritime states that hold on to the freedom of the sea and international navigation. the problems raised by the islands constituting the archipelago did not stand at the end of sovereignty disputes and their right to their own maritime areas, but many other problems were associated with the presence of archipelagic islands. the measurement of marine areas of archipelagic islands requires a description of how the baselines from which these areas are measured are to be drawn. also, the measurement of marine areas of the islands of individual problems is different from those raised by the presence of the islands in the form of an archipelago. drawing baselines also varies according to the archipelagic islands site, and whether they are located in front of the coast regions or at the entrances to the bays in these coasts, or were located in the sea or ocean. these problems remained subject to international controversy and tension until a new system of archipelagic state was adopted under part iv of the united nations convention on the law of the sea in 1982, which represents a very important renewal of the international law of the sea. keywords archipelagos, the archipelagic states, international navigation, islands, united nations convention on the law of the sea www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 190 published by scholink inc. 1. introduction the term “archipelago” is used to refer to the sea areas spread by a group of islands and on the same islands at the same time. the islands can therefore be used as synonyms for the archipelago. however, the geographical location distinguishes between two types of archipelagos, where there are coastal archipelagos near the continental coasts, archipelagos located in the middle of the seas and oceans consisting of several islands and forming an independent state (mohamed, 2000, p. 377). archipelago is the most visible phenomenon of the extension of state sovereignty within the seas and oceans. the new regime adopted by the united nations convention on the law of the sea guarantees the archipelagic state an impressive expansion in its maritime areas. in addition to its rights to the territorial sea, the adjacent area, the exclusive economic zone and the continental shelf, as in other maritime states, it also exercises sovereignty over waters within the archipelagos baselines that determine the maritime extensions of the archipelagic state, called archipelagic waters (qu, 2017, pp. 216-222). however, the issue is not so simple as the legal system of archipelagos raises some legal problems and difficulties in drawing the baselines from which the territorial sea of the archipelago is measure, because of the different location of the archipelago islands and their economic and navigational importance. the difficulty also lies in determining the legal nature of the water that exists among the archipelago islands. does this water take the legal nature of inland water, does it have the legal status of territorial waters, or is it of a different nature? what is the system of traffic in those waters, the rights of the state in its archipelagos waters, and in return the rights of the international community to pass through this water? the importance of this study is to try to answer these questions, in order to uncover the ambiguity that may surround the subject archipelagos and rules governing them in international law. in this regard, the study will address the main elements surrounding the subject, such as the evolution of archipelago system in international law of the sea, and then shed light on the archipelagic state in terms of the identification and legal nature of archipelagos waters and, finally, the archipelagos water system. 2. the evolution archipelagos system in international law the situation of archipelagos states has been raised since the 1920s, when intensive discussions were held in various scientific societies concerned with the study of international law on the question of the territorial waters of the islands. at the time, these discussions shed some light on the legal status of the archipelago in general (note 1). when the hague conference on the codification of international law was held in 1930, portugal suggested that, in the case of the archipelago, its constituent islands were considered one unit, and the territorial sea was measured from the farthest reaches of the archipelago. this was opposed by the participants of the conference, where the united states and a large number of countries to deny the idea of the legal archipelago, and demanded that each island has its own territorial sea (mohamed, 2000, pp. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 191 published by scholink inc. 386-387). thus, the texts of the articles adopted by the hague conference of 1930 did not contain any texts dealing with archipelagos. indeed, during that period, international practice had known successive attempts by archipelagos states to extend their territorial jurisdiction over the waters surrounding their islands. under the fisheries act, denmark declared all archipelagos waters around the island of greenland to be “archipelagic waters” (note 2). in 1934, the cuban government declared archipelagos waters to be internal waters, covering all the waters surrounding all the large and small islands and the rocky highlands surrounding cuba’s main island (note 3). the international court of justice, in its famous judgment in the fisheries case between britain and norway in 1951, addressed the issue of coastal archipelagos states with regard to the drawing of the baselines from which the territorial sea would be measured in such cases (note 4). some archipelagic states have attempted to invoke the judgment of the international court of justice in the case of fisheries and to consider the waters between their islands as internals waters, although the distances of these islands are far apart. philippines initiated to consider separating water of the islands as internal waters, in a memorandum addressed to the secretary-general of the united nations on december 12, 1955 was followed by indonesia in this direction also under the declaration of its government, issued on december 13, 1957 as the maldives, fiji has issued national legislation considered the water between its islands internal water (amer, 2000, pp. 300-301). in the first united nations conference on the law of the sea, found some proposals in favor of the treatment archipelagos ocean similarly coastal archipelagos, but the geneva convention of 1958 on the territorial sea and the contagious zone, pointed out only in the article (4) to the coastal archipelagos when the principles had already approved by the international court of justice in the fisheries case, on the straight-baselines method. thus, the conditions for oceanic archipelagos remained outside the scope of the 1958 geneva convention (mohamed, 2000, p. 408). at the third united nations conference on the law of the sea-caracas session-indonesia, the philippines, mauritius and fiji made a proposal that the waters behind the baselines are subject to the sovereignty of archipelagos states. the four archipelagos states project’s was presented for discussion in the second committee. the discussion focused on the archipelago, which consists of a group of islands, including the islands parts and water connecting them and other natural attractions, which are closely interrelated with each other, so that together constitute the geographical entity, economically and politically self-contained, or which historically has been considered (as well) (note 5). this prompted a number of countries to submit proposals aimed to ensure the freedom of transit through the straits, located in the archipelagos waters and nearby corridors of them, as well as in the archipelagos waters where there are shorter routes used for international navigation. on the other hand, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 192 published by scholink inc. major navigational states have made strong reservations about the expansion of the maritime extensions of archipelagic states (note 6). this prompted a number of countries to submit proposals aimed at ensuring freedom of transit through the straits, located in the archipelagos waters and nearby corridors of them, as well as in the archipelagos waters where there are shorter routes used for international navigation. on the other hand, major navigational states have made strong reservations about the expansion of the maritime extensions of archipelagos states. hence, archipelagos countries have sought to develop a system that includes coastal archipelagos as part of the state, and archipelagos in the middle of the sea and one legal system. but in the end they did not respond to the claims of some coastal archipelagos states in the development of rules include qualitative archipelagos. part iv of the 1982 united nations convention on the law of the sea dealt with the subject of archipelagos in a manner that harmonized the interests of the opposing states and confined itself to the situation of oceanic archipelagic (arellano, 2017, pp. 38-39). 3. definition of archipelagic state article 46.1 of the 1982 united nations convention on the law of the sea defines the archipelagic state as “a state constituted wholly by one or more archipelagos and may include other islands”. we can therefore distinguish between two types of archipelagos states. type i: coastal archipelagos states, a state consisting of a territory that is part of a continent, followed by a group of islands nears its coasts that are archipelagos. a typical example of this species is the norwegian coastal archipelago. the second type is the archipelagos states, which means a state whose whole territory consists of one or more archipelago surrounded by seawater or ocean, such as the philippines, indonesia and fiji (sa’adi, 2010, p. 57). in accordance with article 46, paragraph 2, of the convention on the law of the sea, the archipelago means “a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such” (santos, 2008, pp. 13-16). it should be noted that some of the archipelagic states in the middle of the sea have called for extending the application of the legal system of archipelagos’ states to the arctic archipelago that forms part of the state (note 7). however, the convention on the law of the sea did not provide for any provisions relating to this type of archipelago. this was due to the strong opposition of the rest of the international community, which was demanding that the archipelagos concept be applied to archipelagos states only, because the water that is located within the archipelago would change the legal nature of this water, having been subject to the legal regime of the high seas, which recognized the freedom of navigation, fishing and some general rights of all states of the international community. therefore, there is a common international www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 193 published by scholink inc. interest which has led to the failure of the archipelagos system to apply to the archipelago of the middle of the sea, which does not constitute an independent archipelagic state (mohamed, 2000, p. 413). there is also a fundamental difference between the concept of archipelagos, which is a geographic and a topographic concept, and the elements that justify the concept of archipelagic state such as the philippines and indonesia. they are not only geographical elements but also political, economic and historical (mohamed, 2000, p. 414). the convention also exempted any provisions governing coastal archipelagos. the rule of these archipelagos has been left to the general rules for the baselines from which the territorial sea is to be measured (arellano, 2017, p. 10). however, the convention on the law of the sea has a legal regime for oceanic archipelagos, and has given free legal extensions to peripheral archipelagos states that have not existed before (churchill & lowe, 1999, p. 119). 4. archipelagic waters the united nations convention on the law of the sea responded to the claims of the archipelagic states to impose their sovereignty over the waters surrounding the islands comprising the archipelago by drawing the baselines along the lines of the archipelagos islands, most of which are far from their center, water is archipelago. therefore, we shall address the determination of archipelagos waters, and their legal nature. 4.1 determination of archipelagic waters archipelagos waters are those waters confined between the straight baselines connecting the farthest points of the islands from the heart of the archipelagos state, the specific lines of the outer perimeter of the island group of the archipelago. archipelagic water is determined by the use of straight baselines, which form the starting point for the identification of the various marine areas surrounding the archipelagos state (douglas & johnston, 1988, p. 95) (note 8). the straight-line method is detailed in article 4 of the geneva convention on the territorial sea and the adjacent area of 1958, as well as article 7 of the 1982 united nations convention on the law of the sea. in the case of coastal archipelagos consisting of a group of islands along the coast or distance from it, the identification of water between or between these islands and the coast is carried out by applying the same rules as the baselines for which the territorial sea is measured (munavvar, 1995, p. 69) (note 9). many states have used straight baselines or their national legislation has authorized their use. under articles 4 and 6 of the saudi royal decree of may 28, 1949, the islands and the coastal archipelago are part of the outer coast of saudi arabia, and the group of islands can be connected by baselines of no more than 12 nautical miles. the islands and the mainland are inland waters. the egyptian royal decree of 18 january 1951, as amended on 17 february 1958, also provides for this. indonesia issued the so-called djuanda declaration in december 1957, which provided for the use of straight baselines to limit water between islands by measuring from the farthest point of the islands forming the archipelago (phiphat, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 194 published by scholink inc. 1982, p. 6). china also applied the straight-line system. the declaration of 4 september 1958 states in its second article that the territorial sea baselines along the main land and coastal islands are the line consisting of straight lines connecting base points located on the main coast of the earth, and that the water area extending from these lines 12 nautical miles towards the sea is the chinese territorial sea (mohamed, 2000, p. 330). article 47 of the united nations convention on the law of the sea (1982) provides for the definition of archipelago baselines, which are considered to be archipelagos waters. this is in accordance with a set of criteria and controls, foremost among which is the provision of the first paragraph of this article that “an archipelagic state may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1” (note 10). the term “main islands” refers to the largest islands in the archipelago in terms of population or economic production, or islands that are prominent in the historical and cultural sense (myron, 1985, pp. 401-402). this paragraph also identified the ratio between the land formed by the terms of the islands and the surrounding marine area, with a ratio of 1 to 1, 9 to 1. countries such as indonesia and the philippines can meet the land-to-water ratio, large islands and thousands of small islands. on the contrary, this condition prevents countries such as the united kingdom, australia and cuba from drawing archipelagos straight baselines, because their archipelagos are dominated by a large island or two interconnected islands (arellano, 2017, p. 18). thus, the ratio of water to land is not met. some archipelagos states, such as mauritius and seychelles, will not be able to prolong their archipelago in one framework because they are composed of scattered islands (santos, 2008, pp. 24-25). the second paragraph states “the length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles”. it is clear that this provision gave archipelagic archipelagos’ states broad maritime stretches beyond the provisions of article 4 of the geneva convention on the territorial sea and article 7 of the united nations convention on the law of the sea (arellano, 2017, p. 19). in considering these criteria in paragraphs 1 and 2 of article 47 of the convention, they exclude coastal archipelagos states, which can determine their archipelagos waters by applying the method of baselines from which the territorial sea is measured. archipelagos baselines are limited to oceanic archipelagos states, because they are the only ones by virtue of their composition and location at the heart of water that can meet the requirements of article 47 of the convention on the law of the sea. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 195 published by scholink inc. article 47 (5) of the convention on the law of the sea embodies the principle of “non-arbitrariness of the archipelago state”. where the archipelago state was required to draw the archipelagos baselines, it would not separate the territorial sea of another state from the high seas or the exclusive economic zone. the principle of non-arbitrariness also appears in the provision of this article: “if a part of the archipelagic waters of an archipelagic state lies between two parts of an immediately adjacent neighboring state, existing rights and all other legitimate interests which the latter state has traditionally exercised in such waters and all rights stipulated by agreement between those states shall continue and be respected”. we believe that this specific provision could also be applied in the case of coastal archipelagic states, because it implies a general provision that the establishment of baselines should not adversely affect the rights of neighboring and adjacent states, which is largely achieved in coastal archipelagos for interfering with the waters of their neighboring states in some cases. we can argue that the judgment of the international court of justice in the british-norwegian fisheries case of 1951 was present in the minds of the authors of the text of article 47, paragraph 6, of the convention on the law of the sea (note 11). in order to determine the exact archipelagic waters, the convention provides that “the width of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from the archipelagic baselines laid down in accordance with article 47” (note 12). the archipelagic state may also draw, in its archipelagic waters. in accordance with articles 9, 10 and 11 of the convention on the law of the sea, in the case of estuaries, bays and ports (note 13). 4.2 the legal nature of archipelagic water in accordance with article ii of the 1982 convention on the law of the sea: “the sovereignty of a coastal state outside its territory and its internal water or archipelagic waters shall extend to an adjacent maritime belt known as the territorial sea”. there is therefore a presumption or presumption that the islands located in the internal or archipelagic waters or the territorial sea of the coastal states are subject to the sovereignty of that state (abu al-wafa, 1989, p. 553) (note 14). article 49 of the convention on the law of the sea came to emphasize the principle of the sovereignty of the archipelagic state over the waters confined within the archipelagic baselines, which were called archipelagic waters. the sovereignty of the state over its archipelagic waters extends to the airspace above archipelagic waters, as well as to its waters and subsoil, and to its living resources. finally, the system of passage in the archipelagic sea lanes established by the convention should not affect the status of archipelagic waters, nor onthe archipelagic state’s exercise of its sovereignty over these waters, their airspace, the subsoil, the subsoil thereof and the resources therein (note 15). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 196 published by scholink inc. thus, the sovereignty of the state over its archipelagic waters is different from its sovereignty over its internal waters, since the sovereignty of the state over the internal waters is absolute or total sovereignty. while archipelagic waters, although subject to the archipelagic sovereignty of the archipelagic state in principle, have rights established in the archipelagic waters of other states, with a view to ensuring the freedom of international navigation (amer, 2000, p. 313). where the archipelagic state is committed to respecting the status of existing agreements with other states and recognizes the traditional fishing rights and other legitimate activities of neighboring and adjacent states directly in certain sectors within archipelagic waters. the archipelagic state also respects submarine cables established by other states and passers-by through its waters without affecting land. the archipelagic state allows the maintenance of these cables and their replacement upon receipt of the necessary notification of their location (note 16). we can also note that archipelagic waters differ in their legal status from the situation of the territorial sea, despite the fact that they are subject to state sovereignty. this difference or paradox shows that archipelagic waters lie behind the archipelagic baselines from which the territorial sea of the state begins. however, the archipelagic state has obligations in those waters vis-à-vis other states beyond the established obligations in the territorial sea. archipelagic waters are not considered part of the high seas and are not subject to the sovereignty of any state. archipelagic waters can be said to be of a special nature and subject to rules and regulations that differ from the rest of the rules governing the rest of the maritime areas (hammoud, 2008, p. 222). 5. traffic system in the archipelagic waters although archipelagic waters are subject to the sovereignty of the archipelagic state, there are rights to other states in these waters. these rights constitute restrictions on the archipelagic state. the most important of these restrictions is the passage of two types of traffic in archipelagic waters, namely the right of innocent passage, the right of archipelagic traffic. the regime adopted by the convention on the right of foreign ships to exercise international navigation via archipelagic water is a kind of reconciliation between archipelagic water subordination to the sovereignty of the state and considerations of guaranteeing the freedom of international navigation and not placing impediments to its movement (charlotte, 1991, p. 472). 5.1 the right of innocent passage through archipelagic waters in 1982, the united nations convention on the law of the sea recognized the right of foreign vessels to pass through archipelagic waters. article 52, paragraph 1, of the convention states: “subject to article 53 and without prejudice to article 50, ships of all states shall enjoy the right of innocent passage during archipelagic waters, in accordance with part iii, section 3”. it is clear from this text that innocent passage in archipelagic waters is subject to the same rules as the convention, which governs and regulates innocent passage in the territorial sea (note 17). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 197 published by scholink inc. article 52, paragraph 2, of the archipelagic state also allowed the passage of innocent traffic in its archipelagic waters, in accordance with the same conditions as the third paragraph of article 25 on the cessation of innocent passage in the territorial sea, namely, that the moratorium shall be limited to specific sections of archipelagic waters and shall be necessary to protect the security of that state and shall declare such suspension. indeed, the right of a coastal state to stop innocent traffic in its territorial sea is based on international custom and exists in a large number of national legislation of states, before it is provided for in the 1958 convention on the territorial sea and the adjoining zone and the 1982 convention on the law of the sea (eldesoki, 2008, pp. 192-196) (note 18). 5.2 the right of passage in archipelagic sea lanes since innocent traffic in archipelagic waters does not provide sufficient freedom for foreign vessels in those waters. this was one of the most important points of disagreement between states during the third conference on the law of the sea. a new traffic system known as the archipelagic system of traffic has thus been established to balance the principle of international freedom of navigation and the considerations of state sovereignty over archipelagic waters, which is similar to the transit system through straits used in international navigation (amer, 2000, p. 316). the archipelagic passage means “the exercise of the rights of navigation and flying in the normal manner in accordance with the convention on the law of the sea for the sole purpose of continuous, unimpeded and rapid transit between a part of the high seas or a pure economic zone and another part of the high seas or exclusive economic zone” (note 19). thus, the archipelagic traffic of foreign ships and aircraft ensures continuous and rapid traffic for maritime and air navigation through the routes used for international shipping through archipelagic waters. however, the archipelagic state may require these ships and aircraft to pass through sea lanes and air routes determined by them (note 20). article 53 of the convention sets forth a number of disciplines and standards to which the archipelagic state is bound when determining maritime times in its territorial waters, while at the same time providing for the duties of foreign vessels and aircraft as they cross archipelagic waters. the most important of these controls are as follows: these sea lanes and air routes are determined by a series of continuous axial lines from the entry points to the exit points. and on the ships and taira t passers-by would not deviate more than 25 nautical miles to either side of these axial lines as they pass, provided that they are not going these ships and aircraft at a distance of more than proximity to the beach, ten per cent of the distance between the nearest points on the littoral islands maritime corridor (note 21). the archipelagic state, which establishes sea lanes under this article, shall also decide on the distribution of traffic to ensure the safe passage of ships through narrow channels in those sea lanes (note 22). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 198 published by scholink inc. the archipelagic state may replace those designated by other maritime corridors or establish other systems for the division of traffic if circumstances so require (note 23). these sea lanes and traffic division systems must conform to generally accepted international regulations (note 24). the archipelagic state shall, upon its designation or replacement of these sea lanes, or in the determination of systems for the division or replacement of traffic, submit its proposals to the competent international organization for adoption, and the organization shall not rely on sea lanes or traffic systems except as agreed with archipelagic state (charlotte, 1991, p. 473) (note 25). the archipelagic state clearly identifies the axis of all the sea lanes and the traffic division systems that it assigns or decides in maps to be declared public. if the archipelagic state does not designate sea lanes or airways, the right to pass through the archipelagic sea lanes may be exercised during the routes normally used in international navigation (note 26). it should be noted that article 54 of the convention on the law of the sea, while passing through archipelagic waters or flying in its airspace, binds ships and aircraft with the same obligations as ships and aircraft in the exercise of the right of transit through straits used for international navigation (note 27). the previous rules also apply to the passage of warships in archipelagic lanes (el desoki, 2008, pp. 142-152). in order to confirm the rules relating to the passage of those vessels provided for in the convention on the law of the sea, the san remo manual on international humanitarian law applicable to armed conflicts at sea, 1994, states: “the rights of transit passage and archipelagic sea lanes passage applicable to international straits and archipelagic waters in peacetime continue to apply in times of armed conflict. the laws and regulations of states bordering straits and archipelagic states relating to transit passage and archipelagic sea lanes passage adopted in accordance with general international law remain applicable” (note 28). the san remo manual also affirms that: “a belligerent in transit passage through, under and over a neutral international strait, or in archipelagic sea lanes passage through, under and over neutral archipelagic waters, is required to proceed without delay, to refrain from the threat or use of force against the territorial integrity or political independence of the neutral littoral or archipelagic state, or in any other manner inconsistent with the purposes of the charter of the united nations, and otherwise to refrain from any hostile actions or other activities not incident to their transit. belligerents passing through, under and over neutral straits or waters in which the right of archipelagic sea lanes passage applies are permitted to take defensive measures consistent with their security, including launching and recovery of aircraft, screen formation steaming, and acoustic and electronic surveillance. belligerents in transit or archipelagic sea lanes passage may not, however, conduct offensive operations against enemy forces, nor use such neutral waters as a place of sanctuary nor as a base of operations” (note 29). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 199 published by scholink inc. 5.3 comparison between archipelagic traffic and innocent traffic the international law of the sea regulates the passage of ships and aircraft into the sea and divides them into four types: free passage, innocent traffic, transit and archipelagic traffic, so that ships and aircraft in each particular maritime area exercise their own traffic system. where both the free passage and the innocent passage of traditional traffic systems in the seas that have emerged for a long period of time are referred to in the 1958 geneva conventions of the law of the sea, while transit and archipelagic traffic are considered as traffic systems developed under the 1982 convention on the law of the sea. in view of the rules governing, the innocent traffic is generally regulating the passage in archipelagic corridors. it is clear that there are fundamental differences between them, the most important of which is the following: archipelagic traffic includes maritime and air navigation, while only innocent traffic is restricted to maritime navigation. thus, the archipelagic system of navigation expands international shipping, something that the great maritime states have been looking for (essad, 1982, p. 97). the state may, in an innocent passage, determine freely certain shipping lines or decide to divide the traffic taking into account the recommendations of the competent international organizations, while it cannot do so in the archipelagic traffic unless the matter is submitted to the competent international organization. in accordance with article 53, paragraph 12, the use of the right of passage in the archipelagic sea lanes may be exercised arbitrarily through routes normally used in maritime navigation. this ensures international navigation during archipelagic waters (hamoud, 2008, pp. 234-235). rules on innocent passage have been divided into rules applicable to private ships and other rules applicable to public vessels. while the rules relating to archipelagic traffic rules are the one applicable to all ships, which indicates that rules of archipelagic traffic expansion of international free shipping. the archipelagic traffic system allows submarines to pass through archipelagic waters underwater, without having to pass freely and fly their flags, as in the case of innocent traffic. this is a greater freedom of navigation. the traffic regime establishes certain restrictions on the passage of nuclear-powered or nuclear-powered ships or other hazardous or harmful materials, while there was no restriction on the passage of these vessels through archipelagic waters. a part of international jurisprudence argues that there is no reason to exempt such vessels from their obligations under article 23, concerning innocent passage in the territorial sea, when passing through archipelagic waters, on the grounds that the provisions of the convention on the law of the sea do not preclude such interpretation. as well as the fact that the passage of these vessels into the territorial sea of the archipelagic state is always a long way from passing through archipelagic waters. thus, the fulfillment of the requirements of article 23 is necessary for the exercise of innocent passage through archipelagic waters or transit through archipelagic sea lanes (amer, 2000, pp. 319-320). the authority of the state to enact laws and regulations relating to the regulation of innocent traffic that is broader than its authority in archipelagic passage (hamoud, 2008, pp. 234-235). the convention www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 200 published by scholink inc. on the law of the sea also authorized coastal states to charge for services provided to ships during innocent passage. there was no such text in archipelagic passage (note 30). 6. conclusion there is no doubt that the united nations convention on the law of the sea, when providing for the legal regime of archipelagos, has thus established a solution to some of the issues that have remained controversial for many years. having examined the legal status of archipelagos in international law of the sea, we have reached several important conclusions. first, the adoption of the new system of archipelago came after the insistent demands of archipelagic countries, especially indonesia and the philippines as one of the largest archipelagic countries around the world. second, the convention on the law of the sea was limited to the organization of oceanic archipelago, did not address the coastal archipelago and left its organization to the general rules governing the measurement and passage of the territorial sea. thirdly, the absence of specific legal rules in the international law of the sea that governs the question of archipelago in the middle of the sea has made this matter in a situation of uncertainty and confusion. and that the claim of the continental powers exercising their sovereignty over this type of archipelago must be taken into account in order to preserve its integrity. which requires the formulation of international rules that balance these considerations on the one hand and freedom of navigation and international communications on the other. fourth, the right of foreign vessels to exercise international navigation through archipelagic waters is a compromise system that combines archipelagic water subordination with the sovereignty of the archipelagic state and the guarantee of freedom of international navigation. references abu al-wafa, a. (1989). the legal situation of the islands of the red sea (pp. 482-483). publications of arab research and studies institute in cairo. amer, s. (2000). the international law of the sea, a study of the most important provisions of the united nations convention on the law of the sea (pp. 300-301). arab renaissance publishing house. arellano, v. e. (2017). the legal status of mid-ocean archipelagos of mainland states under international law: the case of galapagos. ucl journal of law and jurisprudence, 6, 38-39. charlotte, k. u. (1991). the archipelagic states concept and regional stability in southeast asia. case western reserve journal of international law, 23, 472. churchill, r., & lowe, v. (1999). the law of the sea (p. 119). manchester university press. douglas, m., & johnston, t. (1988). the theory and history of ocean boundary-making. canada: mcgill-queens university press. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 201 published by scholink inc. eldesoki, m. (2008). the legal system of the passage of foreign vessels innocent warships in the territorial sea of the coastal state. arab renaissance publishing house. essad, a. (1982). concluding provisions of the united nations convention on the law of the sea (phd thesis). faculty of law, tizi ouzou university, algeria. hammoud, m. (2008). international law of the sea. dar al-thaqafa, amman, jordan. mohamed, d. (2000). the legal system of islands in international law of the sea (phd thesis). faculty of law, helwan university, cairo. munavvar, m. (1995). ocean states: archipelagic regimes in the law of the sea. martinus nijhoff. myron, h. (1985). united nations convention on the law of the sea 1982. martinus nijhoff publishers. phiphat, t. (1982). asean and the law of the sea. institute of southeast asian studies. qu, y. (2017). a brief analysis of the applicability of the archipelago waters system in china. journal of shipping and ocean engineering, 7. https://doi.org/10.17265/2159-5879/2017.05.006 sa’adi, m. (2010). state sovereignty over the sea in general international law. the university house, alexandria. santos, f. a. (2008). beating the deadline: archipelagic state compliance under unclos article 47. world maritime university dissertations, sweden. notes note 1. there were scientific and doctrinal discussions in this period on the issue of baselines and the delimitation of territorial waters in the case of archipelagos. for example, the draft faqih alvarez which he submitted to the international law society in 1924, the american institute of international law no. 10 on the national sphere in 1926, and the international law institute in 1927. united nations, conference on the law of the sea, geneva, switzerland 24 february to 27 april 1958. doc, a/conf.13/18, p. 291. note 2. by various danish regulations and decrees, the waters between and inside the danish costal archipelagos are considered danish internal waters (see, e.g., neutrality decrees of 27 january 1927 and 11 september 1938, and enactments concerning fishing and hunting in greenland waters of april 1, 1925, may 27, 1950, june 7, 1951 and november 11 1953). note 3. according to article 6, paragraph 2, of the decree of january 8, 1934, provides: the waters situated between the islets or cays and the mainland of cuba are internal waters. note 4. icj, fisheries case, united kingdom v. norway 1951, para. 129. note 5. third united nations conference on the law of the sea, 9 august 1964. un doc, a/conf.62/c.2/l.49. note 6. summary records of meetings of the second committee (12 august 1974, un doc, a/conf. 62/c.2/sr.37). note 7. examples of arctic archipelago, which follow some countries: the faroe islands in denmark, the andaman and nicoba in india, the azores in portugal and the galapagos in ecuador. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 202 published by scholink inc. note 8. as johnston describes “a baseline is typically the exterior limit of internal and archipelagic waters as well as the interior limit of the territorial sea”. note 9. straight baselines, on the other hand, are the artificial construct created for the purpose of facilitating the measurement of the breadth of the territorial sea where the coastline is significantly irregular or has the presence of certain features that require a special set of rules to ascertain a more precise starting point. note 10. according article 47: 1) an archipelagic state may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 2) the length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3) the drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. 4) such baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island. 5) the system of such baselines shall not be applied by an archipelagic state in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another state. 6) if a part of the archipelagic waters of an archipelagic state lies between two parts of an immediately adjacent neighboring state, existing rights and all other legitimate interests which the latter state has traditionally exercised in such waters and all rights stipulated by agreement between those states shall continue and be respected. 7) for the purpose of computing the ratio of water to land under paragraph l, land areas may include waters lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau. 8) the baselines drawn in accordance with this article shall be shown on charts of a scale or scales adequate for ascertaining their position. alternatively, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted. 9) the archipelagic state shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the secretary-general of the united nations. note 11. icj, fisheries case, united kingdom v. norway 1951. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 203 published by scholink inc. note 12. article 48 of unclos. note 13. article 50 of unclos. note 14. this was confirmed long ago by the arbitration rule on the island of biolama between portugal and britain on 21 april 1870, when he decided that the islands in the territorial sea were within the sovereignty of the coastal state. note 15. article 49 of the convention on the law of the sea. note 16. article 51 of the convention on the law of the sea states that: 1) without prejudice to article 49, an archipelagic state shall respect existing agreements with other states and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring states in certain areas falling within archipelagic waters. the terms and conditions for the exercise of such rights and activities, including the nature, the amount and the areas to which they apply, shall, at the request of any of the states concerned, be regulated by bilateral agreements between them. such rights will not be transferred to or shared with third states or their nationals. 2) an archipelagic state shall respect existing submarine cables laid by other states and passing through its waters without making a landfall. an archipelagic state shall permit the maintenance and replacement of such cables upon receiving due notice of their location and the intention to repair or replace them. note 17. articles 17 to 32 of the unclos. note 18. there is a lot of domestic legislation for coastal states that provides for the cessation of innocent passage in their territorial waters. for example: article vi/2 of the french ordinance no. 85/185 of 6 february 1985 on the regulation of the passage of foreign vessels in french territorial waters, the indonesian law no. 6 of 8 august 1996 on indonesian waters, the law on inland waters and the territorial sea the area adjacent to the russian federation issued on july 17, 1998. note 19. article 53.3 of the unclos. note 20. east-west environment and policy institute, research report, no. 15, february 1984, pp. 17-18. note 21. article 53.5 of the unclos. note 22. article 53.6 of the unclos. note 23. article 53.7 of the unclos. note 24. article 53.8 of the unclos. it should be noted that the controls laid down in article 53 on the determination of archipelagic passages are only a repetition of article 41 of the convention on the law of the sea concerning the designation of sea lanes and the division of traffic in straits used for international navigation. note 25. article 53.9 of the unclos. the competent organization is the international maritime organization (imo), as well as the international civil aviation organization (icao). note 26. article 53.12 of the unclos. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 204 published by scholink inc. note 27. article 39 of the unclos, which provides for the duties of ships and aircraft during transit. note 28. para. 27 of the san remo manual on international law applicable to armed conflicts at sea, 1994. note 29. paragraph 30 of the san remo manual. note 29. article 26. 2 of the unclos. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 223 original paper the moral justification and necessity of torture in the context of suspected terrorists wang suyi 1 1 beijing normal university law school, no. 19 xinjiekouwai street, haidian district, beijing, china received: june 1, 2024 accepted: june 7, 2024 online published: july 3, 2024 doi:10.22158/elp.v7n1p223 url: http://dx.doi.org/10.22158/elp.v7n1p223 abstract this essay examines the moral permissibility and necessity of using torture on suspected terrorists, particularly in the context of the “ticking bomb” scenario. the paper is divided into two parts. part i critiques the deontological arguments against torture, highlighting the weaknesses in the absolutist stance that prohibits torture under any circumstances. it argues that in specific situations, the rights of victims justify a self-defence response, which can be executed by authorities on their behalf. part ii explores the common law doctrine of necessity, demonstrating that under certain conditions, torture is both necessary and reasonable. the essay concludes with a proposal for “torture warrants” to legalize and regulate the use of torture in specific, extreme cases, ensuring accountability and minimizing misuse. keywords torture, moral justification, “ticking bomb” scenario, necessity doctrine 1. introduction torture is defined under the united nations convention against torture and other cruel, inhuman or degrading treatment or punishment 1984 (―un 1984‖) as an act which inflicts severe physical or mental suffering or pain on an individual for the purpose of obtaining information or confession (note 1). in 2017, the trump administration openly endorsed the use of torture and confirmed the efficiency in intelligence collection (note 2). his intention to soften the us‘s stance on torture has again put the ongoing academic debate over the moral and ethical legitimacy and efficiency of the practice of torture under the spotlight. on one hand, scholars like clara assumpção aver torture of suspected terrorists is either morally permissible or necessary (note 3). their position is bolstered by deontological ethics and the principle of universality of human rights. yet, as the statement in the question rightly observes, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 224 arguments advanced by ethical absolutists suffer from a fundamental weakness–pragmaticism. this essay takes an even further stance than the prompt maintains and argues that under specific circumstances, the practice of torture is not only morally justifiable but also necessary. to illustrate this proposition, part i will tackle the moral permissibility of the use of torture. it will unpack and scrutinise philosophical and moral arguments against the torture of suspected terrorists and identify their weaknesses. part ii will turn to the necessity of torture and will illustrate that torture of suspected terrorists can be effective under specific circumstances with reference to the common law doctrine of necessity. to narrow the scope of discussion, this essay will frame arguments in the context of the classic ―ticking bomb‖ scenario. 2. the ticking bomb dilemma: ethical and practical justifications for torture when courtenay and conrad surveyed pedestrians in new york regarding the practice of torture, most individual‘s first reaction was an affirmative refusal to undertake in such a ―gruesome act‖ (note 4). however, when the very same group was presented with the iconic ―ticking bomb‖ scenario, which is often the starting point of moral and ethical debate over the use of torture, many hesitated (note 5). imagine the following context (note 6): a terrorist stages an attack in your hometown. he hides a bomb carrying deadly chemical agents somewhere in the city. the police track him down and identify him as the suspected perpetrator, whereupon he confirms that the device has been set to go off. there is a very real danger that your city and all its suburbs could be destroyed by the bomb exploding in five hours. all will endure a horrifying demise. the terrorist declines to provide information on the position of the device despite being urged and pressured to do so. instead, the terrorist requests the immediate and unconditional release of all prisoners on death row, the amount of ten million pounds, and a plane for his flight. what do you plan on doing? in the view of moral absolutists, the prohibition of torture is absolute even in the above ticking bomb context. as ariel dorfman once famously puts it, ―i can only pray that humanity will have the courage to say no to torture, no to torture under any circumstance whatsoever, no to torture, no matter who the enemy… no to torture no matter what kind of threat is posed to our safety‖ (note 7). this stern attitude against the use of torture could be explained through deontological ethics. kant maintains that an individual is either good or bad based on the motivation/reasons behind their behaviours, not on the goodness of the consequences of such behaviours (note 8). someone will have moral value if they are inspired by moral principles. in this reading, if someone acts on their impulses and wishes, the action is not morally correct, since it was not motivated by moral or ethical principles. more importantly, kantian philosophers are unconcerned with the ramifications of decisions, but rather with their motivation. kant asserts that if two individuals behave for the same purposes, they are still morally deserving, particularly if one of their acts results in negative outcomes (note 9). according to kant, an individual is only good if they perform their duties out of obligation. it is acceptable if they enjoy www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 225 themselves, however, they must want to do so even if they do not. this level of unshakable allegiance towards moral principles and ethical values is best summarised by the maxim that ―one should only act which will become a universal law‖ (note 10). under this paradigm, since torture itself is an intrinsically wrong/evil action, no amount of good could possibly justify it. thus, torture would never be admissible, not even in a ―ticking-bomb‖ scenario. a practical application of kantian deontologism is gafgen v germany (note 11). in this case, the european court of human right (―ecthr‖) upheld a breach of article 3 (note 12) of the european convention of human rights (―echr‖) when german police officers subjected the kidnapper of an 11-year-old boy to threats of torture in an attempt to locate and rescue the victim. in reaching their decision, the grand chamber emphasised that article 3 is an absolute right. there was no ground for defending any violations, which implies that they cannot be justified against the worthiness of other ends, such as the life of an 11-year-old boy (note 13). on a point of which might appear to be pedantry, it should be noted that grand chamber did not adjudicate that gafgen was tortured. rather, they concluded he was subject to inhuman treatment. kantian absolutism‘s stance on the ticking bomb scenario suffers from fatal flaws. one major weakness is its impotence in reconciling two conflicting and competing interests. the kantian maxim mandates persons not to commit any harm (because it is morally impermissible), but it does not give any guidance when others inflict harm first. for instance, in gafgen, when the applicant kidnapped 11-year-old jakob, jakob‘s conventional rights were equally at stake and he was incapable of undertaking any defence to protect his rights. echoing professor steven greer‘s criticism, it is disappointing to see that grand chamber did not take the conventional rights and interests of the victim into proper consideration while rendering the judgment (note 14). one may challenge my view by suggesting that my argument only grants the victim, jakob, a morally permissible right to self-defend and it does not justify the imposition of inhuman treatment of german police on the kidnapper. there is some truth to this critique. to counter this, osman v united kingdom (note 15) needs to be closely examined. in this case, ecthr confirmed that national authorities have a ―positive obligation under article 2 of the echr‖ to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual‖ (note 16). neil graffin argues that this positive obligation is subject to two conditions (note 17). the first is it cannot impose a disproportionate burden on authorities, and the second is that such obligation must exercise in respect of the suspects‘ rights under article 5 and 8 of echr (note 18). i agree with these two conditions. indeed, it is precisely these two limitations that equally prevent the national authorities from abusing the practice of torture, which many kantian absolutists are concerned about. this will be discussed in further detail in part ii. unlike osman, in which the murder could not have been predicted with sufficient certainty, in the case of gafgen, the risk was much more imminent. accordingly, it is puzzling why such a positive obligation is not engaged in the judgment to protect the rights of jakob. in addition to the conflicting convention rights, the inequality of each side enduring suffering as a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 226 consequence of their rights having been abused is often not addressed under kantian justification against torture. as mavronicola puts it, gafgen infringed on jakob‘s interests even more seriously than the police did to gafgen. jakob would have faced a horrific nightmare spanning days if he had not been killed nearly immediately after being kidnapped. his ordeal would have been made much worse by the reality that he was an 11-year-old boy estranged from his parents. gafgen‘s ordeal, on the other hand, lasted just ten minutes of ―considerable anxiety, agony, and emotional pain‖, according to the grand chamber (note 19). if the aim of article 3 is to prevent human suffering caused by anyone for which the state may be held liable, given that if this was the only viable means of rescuing jakob, it is argued that the positive obligation on the police to use force to extract information from gafgen is morally permissible and necessary, since gafgen is subject to a far less serious violation of his article 3 rights than jakob. another major moral claim against the practice of torture is the slippery slope argument. green-sanders argues that granting some level of justification to inhuman treatment or torture to suspected terrorists, including in life-or-death scenarios like the ―ticking-bomb‖ scenario, starts a risky chain of events that might lead to torture being a normality (note 20). in addition, in the real world, green-sanders maintains that there is no way to be certain that the suspect or detainee is the correct penetrator, that they possess all the knowledge, or that they will supply the details under the threat of torture (note 21). this danger is unacceptable since causing discomfort or distress on others for the sake of obtaining information is not morally justified, particularly in established democracies. in gafgen, the grand chamber also expressed the same concern and admitted part of the rationale behind the judgment is to prevent any potential ―ill-treatment in future difficult situations‖ (note 22). yet, bagaric and clarke make a powerful point that a legal standard for torture would not slip if the practice of torture were rigidly legalised (note 23). one piece of evidence in support of this is capital punishment. donohue‘s model which analysed all existing death penalty cases confirmed that the legal standard for capital punishment does not seem to have slipped after capital punishment was formally legalised (note 24). in one version of the slippery slope argument, jeremy waldron interestingly characterises the blanket ban on torture as a ―legal archetype‖ (note 25), which can be understood as a baseline or bottom line in a legal system. in waldron‘s words, torture ―sums up or makes vivid to us the point, purpose, principle or policy of a whole area of law‖ (note 26). waldron demonstrates that landmark judicial decisions against less severe and harmful examples of police brutality were rendered, using torture as a baseline. the analogy of torture was used to justify the rejection of other forms of brutality. for example, in rochin v california (note 27), the supreme court made a comparison between ―forcing a piece of information out of a suspect‘s body‖ and ―forcing a substance from his body‖. it follows that if the former is strictly prohibited, the latter should have the same treatment in law. in this sense, the judgment would not be possible if torture were to become legalised and validated, since a punishment‘s resemblance to a normal legal practice could hardly be used to justify another. waldron maintains that www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 227 ―the premise is that our trust in what occurs at the bottom of the slope which is the practice of torture informs and encourages our confidence in the lesser evils that lay beyond torture as well‖. as a result, dismantling the archetype of torture prohibition contradicts the prohibition of lesser types of violence. the whole series of anti-brutality injunctions would fall apart, and the justice system‘s character would be tainted. moreover, waldron contends that what makes such a brutalization of the justice framework particularly terrifying is that it often involves the brutalization of the enforcer—who, in contemporary democracies, is essentially the state. it is one thing to give a person the legal justification to torture another individual in a particular circumstance. however, allowing the state to constitutionally institutionalise torture in some cases is something entirely new. the more the practise of punishment spreads, the further it undermines the prohibition‘s archetypical character. the more this occurs, the more the practise spreads. it is not only a slippery slope but also one that becomes increasingly steeper as it descends. waldron‘s craft of argument is intriguing. however, by focusing solely on the relationship between incidents of police brutality and the practice of torture, waldron exaggerates the role torture played in such cases and overlooks the intention behind police violence, which has most proven to be motivated by racial bias/discrimination (note 28). the nature of the use of torture among suspected terrorists is very different. two ethical approaches explain the nature of such practice. firstly, according to the realist approach, which follows from hobbesian thought, the ticking bomb scenario is the defence of the nation‘s interest (e.g., protection of community). it permits a person to do anything for the good of his country, the national interest is subject to the nation. thus, torture would be morally justified if it was used to promote the state‘s well-being. the realist perspective, with its emphasis on national interest and patriotism, would enthusiastically embrace the use of torture not only in ―ticking bomb‖ scenario but also in self-defence situations. on the other hand, the consequentialist approach maintains that actions are judged by their consequences and that the overarching goal should be to generate a ―global good‖. thus, if the use of torture is justified on the basis of the benefits derived from it, torture is also equally ethically justifiable. the final criticism of the claim against torture falls upon the idea of practicality. steinhoff gives an extreme example of the human race versus aliens. he invites us to consider—if one has the choice between killing a maniac (let us say idi amin) or the minority group (namely us) for an hour, he/she would want to bless the creation of such a situation that character inhumanely harmfulness on the minority group (he has postulated, so far, an alien or one) and whether they‘d even consider going against it if one hour were granted to do that when you think about it. alternatively, what if it is decided that humanity as a whole must be tortured in order to obtain information or only one particular group of people are punished in order to protect one person? fruits and vegetables count, too, if the consequences of their neglect could be considered catastrophic. the rules cannot be simply avoided by serving no function for the sake of the ―absolute good‖, especially if there are no justifications for doing so. legality exists in justice, as well as in ease; the letter of the law as well as in wealth. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 228 part i scrutinises the deontological claim that torture is categorically wrong under any circumstances because of its intrinsic affront to human decency and dignity. as demonstrated above, the deontological prohibition of torture presents a few ethical flaws. the first is its failure to reconcile and balance all parties‘ competing interests and convention rights and the second is the slippery slope argument itself is displaced and unconvincing in the ―ticking bomb‖ scenario. 3. the doctrine of necessity: utilitarian perspectives on torture in extreme scenarios there is a common fear shared by advocates of human rights that once the right of the individual not to be subjected to torture is derogated, even just slightly, the practice will be abused and exploited. part ii will focus on this very specific concern and make reference to the common law doctrine of necessity as a standard to assess the necessity of practice of torture in the ―ticking bomb‖ scenario. the doctrine of necessity is deeply embedded with the principle of utilitarianism, which inevitably involves weighing ―choices of evil‖. the doctrine holds that certain conduct or in our context use of torture is permissible and acceptable because it prevents a greater evil and thereby results in a net social advantage or profit to society (note 29). in comparison to inflexibilities presented in deontological claims, andrew ashworth suggests, the necessity doctrine is a compromise of human vulnerability in the face of immense pressure, in which the accused violates the law rather than resulting in greater harm if he did not violate the law (note 30). the defence of necessity has long been recognised as a common-law doctrine and subject of controversy in both english and american courts. 3.1 an assessment a comprehensive five-prong test devised by john cohan is applied here to analyse the ―ticking bomb‖ scenario (note 31). it is said that the practice can be justified by the doctrine of necessity and becomes necessary if the defendant can prove that: (1) he had to choose between two evils and selected the lesser of the two. (2) he took measures to prevent imminent harm. (3) he had a reasonable expectation of a causal link between his actions and the damage to be prevented. (4) there were no other alternatives but to break the rule. (5) in the first place, the defendant‘s actions are not irresponsible and negligent. limb one is comprehensively covered in part i. the following will focus on the rest of the elements. on (2), imminence denotes the danger‘s immediacy, but how real must the threat be in order for it to be ―imminent‖ enough to warrant torture? what if the ticking bomb goes off in a month, rather than a day or two? or how about a week? the criterion of imminence usually ensures that the threatened damage is temporally quite close to the present moment. torture ―ought not to be utilised but in cases which admit of little delay; in cases in which if the thing done were not done instantly there is a likelihood, at least a great possibility, that the doing it will not answer the purpose‖, bentham says (note 32). if the danger is not immediate, there is always scope to use conventional law enforcement techniques and all www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 229 legitimate ways to find the relevant information. the matter of imminence, on the other hand, must be interpreted in terms of the gravity of the harm to be avoided. the danger could be days away if the gravity of the threat is immense, such as a ticking nuclear bomb that might destroy tens of thousands of civilians, but the gravity of the hazard may warrant drastic action now. on this topic, a study by an israeli national commission known as the landau commission report concluded that using torture to reveal the position of a device, if it is due to blow in five minutes or five days, could be justified (note 33). on (3), the intervention taken must be fairly determined to be causally successful in averting the greater evil under this factor. bentham put the causal nexus aspect this way: ―torture is not to be used except on circumstances when pause is not possible, but only in situations where the value provided by doing the thing required is such as to justify the use of such a drastic remedy‖ (note 34). torture‘s usefulness under the need theory cannot be maintained where there is a remote chance of accomplishment and less invasive; permissible forensic tactics are usable. this aspect takes into account whether the suspect has the ability to supply the requested details. to some point, this overlaps with the lesser-of-two-evils factor, as this essay argues that when deciding if torture is the lesser evil, officials should weigh the degree of confidence that the suspect has the requisite evidence. if the perpetrator admits to planting the bomb but declines to reveal its position, there seems to be a strong degree of confidence that the suspect has the ability to reveal the necessary facts. however, if authorities have just a theory and no evidence to back that up, we‘re in a whole different position. in this regard, bentham argues that there seem to be two cases in which torture may be used appropriately (note 35). the first is where the thing that a man is asked to do is something that the society is interested in his performing or something that he has a guarantee in being able to do (note 36). therefore, he is certain not to be innocent as long as he continues to struggle for not doing. the second is when a man is required to do anything that is perhaps, though not certainly, beyond his power to do; and through which he may suffer, even though he is innocent; but which the public has such a strong interest in him doing that the danger of what might result from his failure to do so is greater than the danger of an innocent person suffering the greatest degree of pain (note 37). bentham went on to state that torture cannot be used until there is good evidence that the inmate has the will to perform what is asked of him. a related point to make regarding the causal nexus factor is the effectiveness of torture. according to sanford levinson, torture would never be required because ―we have no idea how effective torture is as a method of extracting intelligence‖ (note 38). although it is true that there are fundamental difficulties in evaluating the efficacy of coercive interrogation, we cannot say that we have ―no idea‖ how reliable it is. according to the washington post, philippine officials tortured a jihadist into sharing intelligence that may have prevented attempts to kill the pope, smash eleven passenger aeroplanes into the pacific ocean, and fly a private cessna loaded with explosives into the cia headquarters in 1995 (note 39). intelligence officers pounded the suspect ―with a chair and a long piece of wood (breaking www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 230 much of his ribs), pushed water into his mouth, and mashed lighted cigarettes into his private parts‖ for sixty-seven days. they handed him over to american authorities after effectively completing this operation, along with the life-saving knowledge they had extracted from him. following osama bin laden‘s death, cia officials said that vital intelligence obtained by waterboarding aided in the capture of the world‘s most wanted jihadist (note 40). it is hard to escape the daunting philosophical problem of deciding between evils while ignoring the scientific fact that torture operates sometimes, if not always. no crime-prevention strategy is guaranteed to be successful. on (4), a demonstration that there is no fair legal solution to averting the greater evil is needed. if time allows, some fair solutions to torture will need to be used in order for torture to pass muster under the necessity theory. the legal way-out component is linked to the imminence factor, which means that if the emergency situation is actually urgent, there will be little opportunity to consider legal options. if the threat is not immediate, bentham recommends that ―a form of compulsion that seems less serious, and therefore, less unpopular can be used in preference‖. obviously, if the threat to be averted is so immediate that there is little time to consider less invasive tactics, interrogators can decide if torture is the only rational way of averting the greater evil under the circumstances (note 41). other options, such as bribery, other bonuses, or psychological tactics, may be discussed. the less traumatic option of injecting the prisoner with ―truth serum‖ may be seen by interrogators (note 42). the usage of truth serum or other mind-altering drugs may be legal in the united states unless the drug causes ―prolonged psychiatric damage‖ (note 43). in either case, ―a large percentage of participants maintain the capacity to dissemble when under the control of truth serum‖, and certain drugs cannot guarantee the quality of the data collected (note 44). others contend that while medications make criminals chatty, there is more proof that they are merely ―chirruping on‖ rather than speaking the facts, and that there is a shortage of scientific evidence of the authenticity of admissions elicited under so-called truth serum (note 45). truth serum, on the other hand, is less painful and, according to the united states‘ view of the united nations convention, is a legal procedure. ―when the stakes are sufficiently large, and all techniques have failed, even a reasonably small risk of finding valuable intelligence might very well be considered as adequate to warrant the usage of such interrogation methods,‖ such as truth serum, says mary lowth‘s study (note 46). the fifth amendment right against self-incrimination, according to dershowitz, does not preclude the usage of truth serum or even coercion if a defendant is granted protection from indictment (note 47). as a result, if using truth serum to interrogate a prisoner would not breach substantive fair process protections, it may be a legitimate solution to abuse. in comparison to simple, physical torture, the testimony cannot be used in prosecution, however; the suspect‘s human rights may not be deemed abused. it may be because truth serum injections are minimally painful, have virtually no discomfort or negative side effects, and simply reduce a person‘s inhibitions. if this rational legal option fails to yield the desired details, the interrogation may have no choice but to resort to torture. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 231 on the (5), many attackers believe they have ―clean hands‖, that is, that they are not to blame for the situation that has prompted them to target us (note 48). they feel they are completely innocent of any crime and that the bad to be avoided is entirely external to them, such as fascism, colonialism, and the introduction of western ideals. terrorists may believe that they are facing a severe type of discrimination or persecution by a strong political adversary, that an act of terrorism is the only way to avoid the damage, and that the act is, on average, the lesser evil (note 49). furthermore, there is no such thing as an ―innocent victim‖ in the hostile community for a criminal, but people and all ―innocent‖ objectives are fair game for the offending country (note 50). the targets are not completely innocent in the eyes of the terrorists, but collectively guilty of their government‘s policies. terrorists may conclude that they were not the original aggressors, but that the enemy government‘s imperialism is illegal brutality and aggression toward their fundamental rights, and that terrorist action is the only logical way to combat the infringing government and end dictatorship. terrorists, according to r.m. hare, ―function on behalf of an impoverished segment of the society that has no other way of achieving redress of its just grievances‖ (note 51). such people would say that in a similar situation, they will be willing to make someone do the same to them. however, as hare points out, the issue is what constitutes, ―just complaints‖ (note 52). it would be appropriate to demonstrate that there were no other viable options for resolving complaints. terrorists, on the other side, entirely comply with the clean hands requirement—they have clean hands, and therefore, are not the root of the bad they aim to kill. even where serious situations arise, the different features of the need for protection render it exceedingly impossible for officials to explain or excuse the usage of torture. it isn‘t to say that in a ticking time bomb case, officials would not use torture. nonetheless, the universal agreement that torture is unethical seems to have been conventional international law. as a result, it will extend to all state entities, with ―necessity‖ serving as neither a rationale nor an excuse for violating it. in the end, states will pursue whatever measure they find appropriate in the face of exigent situations that will otherwise go unnoticed. 3.2 application of the doctrine of necessity-torture warrants a more concrete application of the doctrine of necessity is torture warrants. according to dershowitz, ―torture warrants‖ may be introduced, a process that will involve prosecutors to submit an application and, if sufficient cause is shown, a judge to sanction the procedure (note 53). in a similar way, floyd abrams and harvey silverglate have also said that they would support the usage of nonlethal punishment if it could save thousands of lives, but they do not want torture to be accepted by our legal system (note 54). the strategy taken by abrams clashes with the third critical democratic value: transparent governance and transparency. off-the-books, under-the-radar activities are incompatible with democratic philosophy and practise. citizens cannot support or disapprove of government activities they do not know about. off-the-books behaviour has been seen to have disastrous effects in the past (note 55). totalitarian and totalitarian governments do not face this conflict because they do www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 232 not adhere to civil libertarian or democratic ideals that are at odds with the importance of stability. we jeopardise our people‘s protection and welfare if we should not torture them. we sacrifice public transparency standards if we allow torture but leave it off the record and under the radar. we abandon our principled resistance to torture under all situations if we establish a legislative framework for restricting and monitoring torture. we, therefore, create a highly volatile and expandable scenario. the request for a torture warrant aims to restrict the usage of torture to the lowest level and degree possible while still establishing collective responsibility for its occasional occurrences (note 56). it is not a concession for civil liberty; rather, it is an attempt to maximise civil liberties in the face of the real possibility that torture occurs and may continue to occur outside of the reach of accountability (note 57). and if judges seldom refuse requests, requiring the action to be accepted by a judicial officer would result in fewer cases of torture. 4. conclusion: torture—moral and can be necessary part i established that torture is not necessarily morally impermissible in the ticking-bomb scenario. to advance this proposition, this essay first identifies weaknesses of arguments driven by kantian deontologism and concludes that since torture infringes victims‘ rights and interests in the first place, victims shall be granted a self-defence right to defend their interests being damaged. additionally, the authority could exercise this self-defence on behalf of the victim if victims are incapable of protecting themselves from the infringement. part ii illustrates that that the long-recognised common law doctrine of necessity is used to demonstrate that if all certain conditions are met, torture in the ticking-bomb scenario is necessary and reasonable. the essay ends with a torture warrant as a reform recommendation to legalise and formalise the use of torture in specific circumstances. references apuzzo, m., park, h., & buchanan, l. (2014). does torture work? the c.i.a.’s claims and what the committee found (nytimes.com, 2014). retrieved april 19, 2021, from https://www.nytimes.com/interactive/2014/12/08/world/does-torture-work-the-cias-claims-and-wh at-the-committee-found.html ashworth, a., & redmayne, m. (2010). the criminal process. oxford university press. https://doi.org/10.1093/he/9780199547289.001.0001 assumpção, c. (2020). can the use of torture in intelligence gathering be justified? (e-international relations, 2020). retrieved april 16, 2021, from https://www.e-ir.info/2020/03/20/can-the-use-of-torture-in-intelligence-gathering-be-justified/ avery, d., & ruggs, e. (2020). a death in the family: a metaphor about race and police brutality. equality, diversity and inclusion: an international journal. https://doi.org/10.1108/edi-06-2020-0169 https://doi.org/10.1093/he/9780199547289.001.0001 https://doi.org/10.1108/edi-06-2020-0169 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 233 bagaric, m., & clarke, j. (2006). tortured responses (a reply to our critics): physically persuading suspects is morally preferable to allowing the innocent to be murdered. university of san francisco law review. barry, p. (2015). the kantian case against torture. philosophy. https://doi.org/10.1017/s0031819115000145 brecher, b. (2017). torture and the ticking bomb. wiley. brugger, w. (2000). may government ever use torture? two responses from german law. the american journal of comparative law. https://doi.org/10.2307/840910 chandler, k., white, b., & wilmott, l. (2015). the doctrine of necessity and the detention and restraint of people with intellectual impairment: is there any justification? psychiatry, psychology and law. https://doi.org/10.1080/13218719.2015.1055853 clemens, j. (2017). bentham, torture, modernity. cogent arts & humanities. https://doi.org/10.1080/23311983.2017.1390913 cohan, j. (2021). torture and the necessity doctrine. valparaiso university law review. conrad, c. and others. (2017). threat perception and american support for torture. political behavior. https://doi.org/10.1007/s11109-017-9433-5 dershowitz, a. (2008). why terrorism works: understanding the threat, responding to the challenge. yale university press. dershowitz, a. (2014). the case for torture warrants (reuters, 2014). retrieved april 19, 2021, from <http://blogs.reuters.com/great-debate/2011/09/07/the-case-for-torture-warrants/ donohue, j. (2021). economic models of crime and punishment. social research. engelmann, s. (2016). nudging bentham: indirect legislation and (neo-) liberal politics. history of european ideas. https://doi.org/10.1080/01916599.2016.1251716 graffin, n. (2017). gäfgen v germany, the use of threats and the punishment of those who ill-treat during police questioning: a reply to steven greer. human rights law review. https://doi.org/10.1093/hrlr/ngx030 greene-sanders, d. (2014). the plausibility of a slippery slope: guantanamo bay as an example of direct/indirect participation in torture and the corruption of societal morality (unf graduate theses and dissertations). greer, s. (2015). is the prohibition against torture, cruel, inhuman and degrading treatment really “absolute” in international human rights law? human rights law review. https://doi.org/10.1093/hrlr/ngu035 hare, r. (1993). the ethics of medical involvement in torture: commentary. journal of medical ethics. https://doi.org/10.1136/jme.19.3.138 homant, r., & witkowski, m. (2011). support for coercive interrogation among college students: torture and the ticking bomb scenario. journal of applied security research. https://doi.org/10.1080/19361610.2011.552002 https://doi.org/10.1017/s0031819115000145 https://doi.org/10.2307/840910 https://doi.org/10.1080/13218719.2015.1055853 https://doi.org/10.1080/23311983.2017.1390913 https://doi.org/10.1007/s11109-017-9433-5 https://doi.org/10.1080/01916599.2016.1251716 https://doi.org/10.1093/hrlr/ngx030 https://doi.org/10.1093/hrlr/ngu035 https://doi.org/10.1136/jme.19.3.138 https://doi.org/10.1080/19361610.2011.552002 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 234 keating, v. (2016). the anti-torture norm and cooperation in the cia black site programme. the international journal of human rights. https://doi.org/10.1080/13642987.2016.1192534 kramer, m. (2015). alan dershowitz’s torture-warrant proposal: a critique. https://doi.org/10.2139/ssrn.2559237 kremnitzer, m. (1989). the landau commission report—was the security service subordinated to the law, or the law to the ―needs‖ of the security service? israel law review. https://doi.org/10.1017/s0021223700016745 levinson, s. (2006). torture: a collection. oxford university press. lowth, m. (2017). does torture work? donald trump and the cia. british journal of general practice. https://doi.org/10.3399/bjgp17x689701 mavronicola, n. (2017). is the prohibition against torture and cruel, inhuman and degrading treatment absolute in international human rights law? a reply to steven greer. human rights law review. https://doi.org/10.1093/hrlr/ngx019 orsolic, t. (2010). the prohibition of torture and the ticking time-bomb scenario. ssrn electronic journal. https://doi.org/10.2139/ssrn.1573601 ramsay, m. (2006). can the torture of terrorist suspects be justified? the international journal of human rights. https://doi.org/10.1080/13642980600608384 steinhoff, u. (2006). torture—the case for dirty harry and against alan dershowitz. journal of applied philosophy. https://doi.org/10.1111/j.1468-5930.2006.00356.x tiel, j. (2019). can torture be justified? journal of military ethics. https://doi.org/10.1080/15027570.2019.1627033 waldron, j. (2005). torture and positive law: jurisprudence for the white house. columbia law review. weaver, m., & ackerman, s. (2017). trump claims torture works but experts warn of its “potentially existential” costs (the guardian, 2017). retrieved april 16, 2021, from https://www.theguardian.com/us-news/2017/jan/26/donald-trump-torture-absolutely-works-says-u s-president-in-first-television-interview wickham, b., capezza, n., & stephenson, v. (2019). misperceptions and motivations of the female terrorist: a psychological perspective. journal of aggression, maltreatment & trauma. https://doi.org/10.1080/10926771.2019.1685041 https://doi.org/10.1080/13642987.2016.1192534 https://doi.org/10.2139/ssrn.2559237 https://doi.org/10.1017/s0021223700016745 https://doi.org/10.3399/bjgp17x689701 https://doi.org/10.1093/hrlr/ngx019 https://doi.org/10.2139/ssrn.1573601 https://doi.org/10.1080/13642980600608384 https://doi.org/10.1111/j.1468-5930.2006.00356.x https://doi.org/10.1080/15027570.2019.1627033 https://doi.org/10.1080/10926771.2019.1685041 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 235 notes note 1. article 1, convention against torture and other cruel, inhuman or degrading treatment or punishment, adopted and opened for signature, ratification and accession by general assembly resolution 39/46 of 10 december 1984 entry into force 26 june 1987, in accordance with article 27 (1). note 2. matthew weaver and spencer ackerman, trump claims torture works but experts warn of its ―potentially existential‖ costs (the guardian, 2017) <https://www.theguardian.com/us-news/2017/jan/26/donald-trump-torture-absolutely-works-says-us-pr esident-in-first-television-interview> accessed 16 april 2021. note 3. clara assumpção, can the use of torture in intelligence gathering be justified? (e-international relations, 2020) <https://www.e-ir.info/2020/03/20/can-the-use-of-torture-in-intelligence-gathering-be-justified/> accessed 16 april 2021. note 4. courtenay r. conrad and others, threat perception and american support for torture (2017) 40 political behavior, 1000. note 5. ibid, 1001. note 6. this description is adapted from alan m dershowitz, why terrorism works: understanding the threat, responding to the challenge (yale university press 2008), p. 33. note 7. uwe steinhoff, torture—the case for dirty harry and against alan dershowitz (2006) 23 journal of applied philosophy, 345. note 8. peter brian barry, the kantian case against torture (2015) 90 philosophy, 595. note 9. ibid. note 10. ibid. note 11. gafgen v germany application no. 22978/05, merits, 1 june 2010. note 12. art. 3 european convention on human rights provides as follows: ―no one shall be subjected to torture or to inhuman or degrading treatment or punishment‖. note 13. natasa mavronicola, is the prohibition against torture and cruel, inhuman and degrading treatment absolute in international human rights law? a reply to steven greer [2017] human rights law review, 480. note 14. steven greer, is the prohibition against torture, cruel, inhuman and degrading treatment really ‗absolute‘ in international human rights law? (2015) 15 human rights law review, 120. note 15. osman v. the united kingdom-23452/94. note 16. ibid, at para 116. note 17. neil graffin, gäfgen v germany, the use of threats and the punishment of those who ill-treat during police questioning: a reply to steven greer (2017) 17 human rights law review, 690. note 18. ibid, 691. note 19. (n 10), at para 110. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 236 note 20. dominique greene-sanders, the plausibility of a slippery slope: guantanamo bay as an example of direct/indirect participation in torture and the corruption of societal morality (2014) 516 unf graduate theses and dissertations, 53. note 21. greene-sanders (n 19), 106. note 22. (n 10), at para 124. note 23. mirko bagaric and julie clarke, tortured responses (a reply to our critics): physically persuading suspects is morally preferable to allowing the innocent to be murdered (2006) 40 university of san francisco law review, 704. note 24. john donohue, economic models of crime and punishment (2021) 74 social research, 380. note 25. jeremy waldron, torture and positive law: jurisprudence for the white house (2005) 105 columbia law review. note 26. ibid, 1723. note 27. rochin v. california 342 u.s. 165 (1952). note 28. derek r. avery and enrica n. ruggs, a death in the family: a metaphor about race and police brutality (2020) 39 equality, diversity and inclusion: an international journal, 769. note 29. kim chandler, ben white and lindy wilmott, 'the doctrine of necessity and the detention and restraint of people with intellectual impairment: is there any justification?' (2015) 23 psychiatry, psychology and law,361. note 30. andrew ashworth and mike redmayne, the criminal process (oxford university press 2010), 183. note 31. john alan cohan, 'torture and the necessity doctrine' (2021) 41 valparaiso university law review, 1609-1610. note 32. justin clemens, 'bentham, torture, modernity' (2017) 4 cogent arts & humanities, 6. note 33. mordechai kremnitzer, the landau commission report—was the security service subordinated to the law, or the law to the ―needs‖ of the security service? (1989) 23 israel law review, 260-263. note 34. clemens (n 32). note 35. stephen engelmann, nudging bentham: indirect legislation and (neo-)liberal politics (2016) 43 history of european ideas, 81. note 36. ibid. note 37. clements (n 32). note 38. sanford levinson, torture: a collection (oxford university press 2006), 291. note 39. vincent charles keating, the anti-torture norm and cooperation in the cia black site programme (2016) 20 the international journal of human rights, 940. note 40. ibid. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 237 note 41. matt apuzzo, haeyoun park and larry buchanan, does torture work? the c.i.a.‘s claims and what the committee found (nytimes.com, 2014) <https://www.nytimes.com/interactive/2014/12/08/world/does-torture-work-the-cias-claims-and-what-t he-committee-found.html> accessed 19 april 2021. note 42. robert j. homant and michael j. witkowski, support for coercive interrogation among college students: torture and the ticking bomb scenario (2011) 6 journal of applied security research, 140-150. note 43. ibid. note 44. ibid. note 45. jeffrey r. tiel, can torture be justified? (2019) 18 journal of military ethics, 40. note 46. mary lowth, does torture work? donald trump and the cia (2017) 67 british journal of general practice, 126. note 47. alan m dershowitz, why terrorism works: understanding the threat, responding to the challenge (yale university press 2008), 250. note 48. brittany m. wickham, nicole m. capezza and victoria l. stephenson, misperceptions and motivations of the female terrorist: a psychological perspective (2019) 29 journal of aggression, maltreatment & trauma, 956-958. note 49. ibid. note 50. ibid. note 51. r m hare, the ethics of medical involvement in torture: commentary (1993) 19 journal of medical ethics, 138-140. note 52. ibid. note 53. dershowitz (n 47), 175. note 54. ibid. note 55. alan dershowitz, the case for torture warrants (reuters, 2014) <http://blogs.reuters.com/great-debate/2011/09/07/the-case-for-torture-warrants/> accessed 19 april 2021. note 56. maureen ramsay, can the torture of terrorist suspects be justified? (2006) 10 the international journal of human rights, 110. note 57. ibid. microsoft word elp-v1n1-p76 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 1, no. 1, 2018 www.scholink.org/ojs/index.php/elp 76 original paper the right of the accused to compensation in the iranian criminal justice system mansour rahmdel1* 1 faculty of law, tehran islamic azad university, central branch, tehran, iran * mansour rahmdel, faculty of law, tehran islamic azad university, central branch, tehran, iran received: april 3, 2018 accepted: april 12, 2018 online published: april 24, 2018 doi:10.22158/elp.v1n1p76 url: http://dx.doi.org/10.22158/elp.v1n1p76 abstract normally, the right to compensation refers to the victim’s compensation. the legislator also typically refers to the right to it, as the iranian criminal procedure code has done so in articles 14 and 15. but the present paper, refers not to the victim’s, but the accused right. the criminal procedure code of 1912 and 1999 referred to the possibility of compensating the accused by the iniquitous private complainant. however, none of them referred to the government’s obligation to compensate to the innocent accused. in contrast, the penal code of 2014 stipulates the government’s obligation to compensate the defendant for damages, but does not rule out the possibility of compensation by iniquitous complainant. certainly, it does not exempt the complainant to compensation. reaffirming the responsibility of the government to offset the losses of innocent accused, in line with international conventions, is one of the highlights of the new code. but the lack of compensation for unjustified detention is one of the gaps in the new code. this paper proposes that the iranian new code of criminal procedure, serves as a development in respecting the accused right in creating comprehensive compensation schemes. keywords the innocent accused, compensation, right, government, complainant 1. introduction “the history of the topics of wrongful conviction, and of compensation therefore, appears to justify the conclusion that, at least since 1760, when criminal practice and procedure assumed their present form, wrongful convictions have always been a rare, and are a diminishing quantity” (compensation in cases of wrongful conviction, pp. 254-304). the compensation discussion is the place where two rights are crossed. on the one hand, there is the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 77 published by scholink inc. right of the victim to lodge a complainant, which is stipulated in article 34 of the constitution (note 1) or the obligation of the prosecutor to start a case according to the principle of compulsory prosecution, which is referred to in article 11 of the criminal procedure code 2014. on the other hand, the defendant is entitled to compensation. the legislator saw the way to resolve the conflict as compensation for the defendant. the two previous codes considered the solution in case the complainant is iniquitous. the new code has not explicitly referred to it, but according to general rules of civil liability, whoever, illegally, damages others, has to compensate. “criminal prosecutors, like other public servants in a representative democracy, must continually work out what it means to ‘represent’ the public” (staszewski, 2009, pp. 56-84). so, the prosecutor as the representative of the community and responsible for the security of the community prosecutes those accused of committing a crime. although that is contrary to the presumption of innocence, but his action, in some cases, requires the denial of freedom from the accused. the government exercises sovereignty in the community and the exercise of sovereignty may lead to harm to individuals. the accused are in a worse situation. the prosecutor uses all community facilities against them and even if the accused actually committed a crime, they are in a very bad situation compared with the prosecutor. he lacks the facilities. he is only an accused and is known innocent until the alleged charge is proven. due to the weakness of the defendant’s position, the legislator tries to develop his situation, which is interpreted as equality of arms. inequality of arms between the prosecutor and the accused can undermine the legitimacy of any criminal court over time and affect its credibility. “equality of arms requires that the parties be allowed access to facilities on equal terms and have a reasonable opportunity of presenting their case under conditions which do not place them at substantial disadvantage visit-vis their opponent” (o’boyle, 1995, p. 218). equality of arms is one of the main components of fair trial. “the right to a fair trial entails protecting the ‘equality of arms’ principle, an inherent element of the due process of law in both civil and criminal proceedings. strict compliance with this principle is required at all stages of the proceedings in order to afford both parties (especially the weaker litigant) a reasonable opportunity to present their case under conditions of equality. indeed, at the core of the concept of ‘equality of arms’, as elaborated in domestic and international case law, is the idea that both parties should be treated in a manner ensuring that they have a procedurally equal position to make their case during the whole course of the trial” (negri, 2005, p. 513). it could be said that “in essence, the equality of arms principle speaks to the virtues of procedural equality: the idea that both parties should be treated in a manner ensuring that they have an approximately equal opportunity to make their case during the course of a trial. such protections are guaranteed in most domestic legal systems, are enshrined in relevant international instruments (such as the two we examine in this paper) and are the procedural bedrock of all major international courts and tribunals” (gamble, 2009, pp. 187-216). one of the instruments is presumption of innocence. article 37 of the iranian constitution has also referred to it (note 2). because of that the prosecutor bears the burden of proof. “ancient maxims and rules maintain that allegations must be proven by those who make them, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 78 published by scholink inc. and the accused must be considered innocent, and must therefore normally not be deprived of status and liberty in the interval between accusation and judgment” (quintard-morenas, 2010, pp. 107-150). “the prosecutor evaluates evidence and then carries out a ministerial duty to file charges whenever the evidence is sufficient” (herrmann, 1974, pp. 468-469). item 2 of article 14 of the international covenant on civil and political rights has also referred to it. according to it “everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”. “the presumption of innocence impels the relevant authorities to act ‘as if’ the defendant is innocent in order to suspend any definitive judgment on the defendant's culpability” (de jong, 2016, pp. 32-49). thus, “the maxim of ‘innocent until proven guilty’ signified that jurors convict only when there was enough proof that the crime was committed” (baradaran, 2011, pp. 723-728). the reason the law provides for compensation is that “law and justice are two historical twins” (katouzian, 2008, pp. 150-194). justice requires compensation when a person has been unjustly prosecuted. especially, when the freedom of the accused has been unjustly stripped, moral and justice require compensation. it can be said that the law for compensation has a moral basis too. the rationale of the cause of action for damages for malicious prosecution is that the court’s process has been abused (frederick mclellan, 2013, pp. 59-92). regarding the mentioned problems, now in some countries, there is an innocence movement. “innocence movement is a civil rights movement that seeks not only to free innocent inmates from their wrongful convictions, but to understand the problems that lead to wrongful convictions and to reform and improve the system to make it more accurate” (godsey, 2015, pp. 13-37). in the iranian criminal justice system, the right to compensation is not limited to innocent accused, but also includes cases where the person is convicted and the penalties imposed are disproportionate and arise from the judge’s mistake. in some cases, in spite of the fact that the prosecution is being stopped, the legislator has provided compensation. now, with this introduction, we will explain the various aspects of the compensation process for the defendant in the iranian criminal justice system. 2. method of the research the research method is descriptive and analytical. this explains that by studying the historical record of the compensation of the defendant in the legal system of iran and focusing on the criminal procedure code of the year 92, various aspects of the discussion have been considered and the points of weakness of the law have been investigated. so, data collection and data analysis represent the core of research. i have also addressed a range of different elements within the scope of the research. 3. result the problem of wrongful imprisonment is not a new one, but undoubtedly, public awareness about innocent prisoners has increased in recent years. however, as much as the number of innocent prisoners increases, this problem also attracts more attention. by paying more attention to this problem, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 79 published by scholink inc. lawmakers were forced to adopt protection laws in this regard. it could be said that the right of innocent defendants to compensate for damages is one of their fundamental and basic rights. in a case that the accused has spent a long time in prison, his reentry into society is very difficult. he is free, but his entry is difficult. although iran has certainly come a long way in developing a comprehensive compensation scheme, there is room for minor improvement. in recent years, the number of exonerations of persons wrongfully imprisoned has increased nationwide. with the number of exonerations continually on the rise, iran, has addressed the needs of exonerees with legislation that provides for the compensation of these individuals. the criminal justice system has failed these individuals in one way or another, and after years in prison, many are in need of more than money upon release. by increasing monetary amounts, iran leads in offering service to those individuals who have had their lives stripped from them for their respective wrongful imprisonment. those states that offer only monetary compensation are lacking the perhaps more important services for exonerees. the need for services such as these was succinctly expressed by one exoneree: “it just doesn’t seem fair that after you take eighteen years of a person's life and you think now you can send them into the world and everything’s going to be all right because now they have their freedom? yeah, freedom is important, but you also have to have a lot of different things set up for people. you have to have programs for people who are wrongfully convicted because there are a number of people wrongfully convicted” (note 3) (armbrust, 2004, p. 157). monetary compensation does not reimburse all the damages and does not restore and reimburse the damaged reputation. the exonerated person loses his social position and situation. the society loses his confidence on him and does not trust him like before. even the release of the verdict does not solve all his problems and his previous life is not to reintegrate him into society so he can function as normal citizen. in addition to the monetary compensation, the state should supply financial support for basic necessities, including subsistence funds, food, transportation, help securing affordable housing, medical/dental care, and psychological and/or counseling services, assistance with education and the development of workforce skills and legal services to obtain public benefits, expunge criminal records, and regain custody of children. iranian code of criminal procedure has two basic deficiencies regarding compensation for the accused. first, it does not refer to unjustified and unnecessary detentions. it means that, while the accused finds a conviction, the judges could take another security measures instead of detention. so, if the judge issues an order of detention, whereas he could take other security measures, the government should compensate and refer to the faulty judge. second, it does not refer to wrongful convictions which finally the result in exoneration of the accused. suppose that the primitive court convicts the accused, but he has a successful appeal the appellate court exonerates him. he has paid so much money to defend himself, he has lost his time and reputation. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 80 published by scholink inc. lack of provision for compensation for unjustified detention is one of the gaps is the new law. 4. discussion 4.1 concept of damage the legislator has not defined damage. it seems that damage has a wide meaning and definition. some believe “wherever there is a defect in the property, or a deliberate loss of interest or damage to personal health and dignity or passions, it is said to have harmed. it is harmful to him to reduce his property and prevent it from spreading to any title” (katouzian, 1995, p. 219). article 14 of the iranian criminal procedure code refers to both material and spiritual damages. according to it “the plaintiff can claim all the material and spiritual losses and possible benefits of the crime”. according to note 1 of the same article “spiritual harm is a mental injury or disruption of personal, family or social dignity and privilege. the court may, in addition to the award of a damages decision, order damages in other ways, such as the obligation to apologize and publish it in the newspaper or the like”. according to note 2, “the possible benefits are limited to cases where the something has been destroyed. also, provisions related to possible benefits and the payment of spiritual damages, does not include specified ta’zir offenses in the islamic sharia (note 4) or in cases relating to blood money”. it means that, in the latter cases, the court cannot convict the accused to pay spiritual damage. it is important to realize that from law view point compensation does not only mean money and the innocent accused deserves both material and spiritual compensation. it is clear that it is foreseeable that exorbitant claims will also be made for the efforts of proving innocence and obtaining rightful exoneree compensation. the possibility of claims such as these can be avoided in the future and the commission should consider such costs and attorney’s fees in exoneration cases. because “the indigent defense system has the duty to provide effective assistance of counsel to individuals who have been charged with a crime” (rigg, 1999, pp. 2-48). one of the difficulty is as to the amount of compensation. to solve this problem we can frame a scale which, having regard to the position in life of the person, the time of detention, would ensure proper compensation being given in all cases. 4.2 cases of compensation the compensation cases are different and can be reviewed as follows: 4.2.1 in case of wrongful conviction according to article 13 of the iranian penal code “imposing and executing a punishment or security and correctional measures shall not breach the limit and conditions specified in the law or the judgment; and any loss or damage, if caused deliberately or negligently shall be followed by criminal and civil liability accordingly; otherwise, the loss shall be recovered from the public treasury”. the question is that can the general responsibility of the state for compensation be inferred from this article? it seems that the answer to the question should be negative. explaining that in accordance with the article, the condition of liability is: www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 81 published by scholink inc. 1) the person has been convicted. therefore, this article refers to the responsibility against the convict and not the accused. 2) the judge issuing the judgement (whether a lower-level judge or appeal) exceeds the amount of punishment or security measures more than prescribed in the law, which, contrary to the quality stipulated in the law, or prescribes the execution of punishment contrary to law. 3) the judge enforces the sentence or security measures in contravention of the procedure prescribed in the law, or does not comply with the provisions of the law in respect of the quality of the execution. 4) the legislator has ruled on the responsibility of the judicial authority or the general treasury (beit-al-mal) conditional on “any harm and consequential damages resulting from this”, but it should be considered as indisputable. therefore, the mere violation of the amount and quality prescribed by law or the court order requires responsibility. the legislator has distinguished between the two situations. the judge will be liable in case of having intention or fault, but if he is not guilty of any fault, the general treasury will be liable for compensation. for example, the judicial authority orders the execution of the lash penalty, and the execution officer observes all the rules related to the execution, and, however, the punishment injures the convict. the general treasury will be liable for compensation. so, it seems that this article provides an introduction to the problems of wrongful convictions and the need for compensating those individuals, and their respective families, who suffer the failure of the criminal justice system. therefore, “it is recognized that the state’s responsibility in relation to wrongful convictions should not, and does not, end with the quashing of such a conviction. but on the other hand such recompense does not arrive quickly and neither can it compensate for the horrors that have been endured by defendants and their families” (taylor, 2002). 4.2.2 in case of exoneration although some believe that “the road to being compensated for wrongful imprisonment necessarily begins with a wrongful conviction” (shaw, 2010-2011, pp. 593-617). but, according to article 255 of the iranian criminal procedure code “persons who are detained in the course of preliminary investigations and proceedings for any reason and who are exonerated by the judicial authorities or prosecutors, may, in compliance with article 14 of this law, demand for compensation from government”. it seems that by referring to article 14 the legislator looks for the compensation of all (material or spiritual) damages of the innocent accused. the legislator only refers to compensation in case of detention order and does not refer to the claim for compensation in other assumptions. in other words, the accused cannot claim compensation for the undue assignment by which the prosecutor which inflicts him material or moral damages. therefore, the legislator prescribes compensation only on the assumption of the deprivation of liberty that is recognized unjustified. between illegal and unjustified detention there is a difference that in cases of unjustified detention, the actions of judicial authorities are made in accordance with the evidence in the file and in accordance with the rules, but www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 82 published by scholink inc. they eventually conclude that the accused has been innocent but, in illegal detention, from the outset, the denial of freedom was against the law. “for decades, scientific evidence was widely considered infallible. thought to derive directly from the hard sciences, it was said to produce information that was straightforward, objective and highly reliable. however, the exonerations brought about by the innocence project revealed for the first time in a systematic way the extent to which scientific evidence derived from disciplines such as serology, bite mark comparison, fingerprint comparison and even forensic dna analysis had contributed to the conviction of innocent people” (garret, 2011). “scientific evidence can be erroneous for various reasons. first, scientists can voluntarily falsify laboratory results, because of time pressure or bias, paired with dubious professional ethics. most errors due to improper handling of scientific evidence are not voluntary, however. they include contamination of samples, transfer of material, switching and mislabeling of samples, clerical errors and errors in the interpretation of the data. finally, erroneous interpretation of data can also be caused by cognitive biases” (vuille, 2015, pp. 39-55). the notion of unjustified detention is more general than the concept of illegal detention and includes the concept of illegal detention. the legislator, in article 256, refers to cases in which the accused is not entitled to receive damages. according to the article “in the following cases, the detainee is not entitled to compensation”: 1) detention is due to the refusal to provide deeds, documents and evidence of innocence. 2) with the intention of running away the accused, puts himself in the position of charge suspicion and detention. 3) in any direction has unjustly provided grounds for his detention. 4) at the same time, he was in detention because of other charges. in item 1, it can be noted that, for example, the private complainant claims forging of a document by the accused in a specified date, and the expert confirms the accuracy of the complainant’s claim, but the defendant in that time is out of the country and can easily present his passport, but refuses to do so. in the second case, he introduces himself as the perpetrator of the crime instead of the accused, such as to introduce his father as an accused instead of his son, or somebody as a result of alluring or sympathy or fame introduces himself as the perpetrator. in the third case, for example, it can be noted that, due to negligence, he did not prepare an evidence that could later be presented, and his prosecution led to the detention, such as drawing a postdate check, but as he has not got a receipt, he cannot prove that the check was postdated (note 5). none of these cases have conflicts with the presumption of innocence. because the presumption of innocence is where there is no evidence against the accused. in the fourth state, it seems that the following situations should be elaborated: 1) if, for example, the defendant was detained on charges from the date of 25/3/2016 to 6/6/2016 and he was detained for the second accusation of 25/5/2016, and, for the first charge, he is exonerated, in accordance with article 255, he shall be entitled to claim damages in respect of the period from 25/3/2016 to 24/5/2016. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 83 published by scholink inc. 2) in the case of the second accusation, he will have the right to claim damages from the date of the detention of 25/5/2016, if he is exonerated. 3) therefore, only if the date of detention on the two charges is totally concurrent and he is exonerated on one of the charges and is convicted on the second charge, there is no right to claim damages. the question arises as to whether there is a conflict between the cases mentioned in article 256 and the right to be silent? it seems that this question should be answered in the negative. because, the legislator has stated in the above assumptions that if the accused refuses to provide an evidence for his benefit, he will not be entitled to claim damages. whereas, in case of silence the question is that whether the judge can draw adverse inferences of the silence against the accused? because, it is “difficult to see how drawing adverse inferences from silence somehow damages a special interest in privacy that is uniquely protected by the privilege against self-incrimination” (roberts, 2010, p. 538). therefore, there is a difference between the two. it seems that, revision of the penal code, which results in stopping the prosecution, should have the same effect of exoneration. it seems that the assumptions in article 256 are not essentially included in the meaning of illegal or unjustified detention and not illegal detention. detention is illegal or unjustified, when the accused has not fault, but in the mentioned cases, it is the fault of the accused which results in detention, and as the court does not exonerate the accused, the discussion of compensation is cannot be plotted. in the case of police officers, once a warrant is obtained with a showing of probable cause, the officers possess qualified immunity from liability (pierson v. ray, 386 u.s. 547, 557 (1967)). “only where the warrant application is so lacking indicia of probable cause as to render official belief in its existence unreasonable, will the shield of immunity be lost” (malley v. briggs, 475 u.s. 335, 344-45 (1986)). “additionally, a ‘peace officer’ who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved” (pierson, 386 u.s. at 555.). given that the threshold of probable cause is low, an action against police officers is unlikely to stand. in some cases, the primitive court convicts the accused, but the appeal court exonerates him. such conviction could be called as wrong conviction. “by wrongful conviction, we understand judicial decisions through which a factually innocent person is being found guilty” (killias, 2015, pp. 57-80). “during the investigation of a crime and the development of a case, before and during trial, many evidentiary problems surface that lead to a wrongful conviction” (the causes of wrongful convictions, 2011 & causes and remedies, 2017). and “these causes have generally been divided into six categories: eyewitness misidentification; un-validated or improper forensic science; false confessions or admissions; government misconduct; unreliable informants or snitches; and bad lawyering”. these causes of wrongful convictions are all, in some way, linked to the government whether directly by investigative procedures or conduct of prosecutors, or indirectly where the state’s criminal justice system failed to regulate properly. as such, a failure of a state run criminal justice system that results in a wrongful conviction that leads to wrongful imprisonment supports the idea that the state should www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 84 published by scholink inc. accept responsibility and compensate those wronged (shaw, 2010-2011, p. 596). in fact, “the criminal justice system should pay special attention to the fate of the innocents. because, man is not immune from making error in the acts of justice and the greatness of the justice system is that after taking all the necessary measures to prevent the error, compensate for the innocents” (ashouri, 1974, pp. 30-47). 4.2.3 in case of conviction or stop of prosecution according to article 145 of the iranian criminal procedure code, “if the possessor of the home, the place or objects under inspection, refuses to open the closed places and objects, the interrogator can order their reopening, but as far as possible, the actions that cause damage should be avoided”. note: if material damage is introduced in the implementation of this article, and subject to a definitive decision, the accused is exonerated or the prosecution stops, as well as in cases where the third person impedes the entrance, even if the issue results in the conviction of the accused, the government is liable for compensation, unless the interrogator or other law enforcement officers guilt is found, which the state will compensate and refer to the interrogator and the guilty agents. note of article 145 provides exonerees with a basis to seek compensation from the agencies they feel are responsible for their damage. essentially, this note allows exonerees to file suit against any person who, acting under color of law, damages a person of a right. the traditional definition of acting under color of law that the defendant exercised power possessed by virtue of law and made possible only because the wrongdoer is clothed with the authority of law. employment by the state is generally sufficient to render the defendant a state actor. further, it is firmly established that when a defendant abuses the position given to him, he acts under color of law. the primary parties that a plaintiff generally chooses to sue are the police and prosecutors that were responsible for the investigation and trial of the case. however, if a plaintiff is able to show that they were deprived of a constitutional right by police officers or prosecutors, they must overcome the hurdles of qualified and absolute immunity. notwithstanding, regarding this article the following points should be considered: 1) the rule of this article is not compatible with the principles of civil liability in terms of requiring the state to compensate for damages, because the refusal of the accused or third parties causes damage and it is not a fault of the agents of the state. as, the government, essentially, will only be liable for compensation if the fault of the law enforcements result in damage. since the accused or third parties are required to comply with the decision of the judicial authority and should not be able to get compensation for damages despite the disregard of the decision of the judicial authority or the legislator, and in particular, in the case of third parties who are the source of the loss of his own refusal, there is no justification for compensation from the government. 2) there is no justification to compensate for the accused by government in case of exoneration because of not having mens rea. because the accused has committed, but his mens rea is not met, and in other cases like stopping the prosecution (when the act is not a crime, or when there is not enough evidence against the accused or when there is no evidence) the base of obligation to compensate is to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 85 published by scholink inc. exercise sovereignty by government. 3) in cases mentioned in article 13 of the criminal procedure code like death of the accused, his insanity, forgiving by the complainant, lapse of time, abolishment of law, non bis in idem, public amnesty just in case of insanity, death, abolishment of law and non bis in idem compensation is justified and in other cases there is no justification. because, if the complainant did not consent or the accused was not subject to amnesty, the file would result in conviction unless it was possible to exonerate the accused in spite of amnesty or consent of the complainant. it even seems to be necessary to distinguish between different states regarding the non bis in idem: a. there is no justification for compensation by government in the assumption that the complainant, with the knowledge of issuing a definitive judgement, lodges the complaint again. b. in the assumption in which there are several victims and on the base of lodging a complaint by one of them the court issues a definitive judgement, and according to the rule of non bis in idem denies the second complaint, there is a justification for the compensation by government. 4) the legislator has distinguished between two assumptions of conviction: a. if the damage is caused by the act of the accused, the government will not be liable for any damages. b. if the damage is not caused by the act of the accused, the government will not be liable for any damages. as a rule, if a person other than the interrogator or other public official is liable for damage, the government will not be liable for any damages. 5) the outcome of the prosecution file may be conviction, exoneration or stopping the prosecution. therefore, in all three cases, it should be decided on the basis of the above mentioned assumptions. in the event that the damaged is a third party, he will have the right to compensation, even on the assumption of the conviction of the accused. in the first instance, in the presumption of the stopping the prosecution or when the prosecution office does not regard the act of the accused as a crime, the third-party must be compensated, although it is contrary to the action rule and there is no justification for imposing such a charge on the public treasury, as the act of third party is a crime according to article 607 of the iranian islamic penal code ratified in 1996. but on the other hand, given the general rule of the law, the legislator, in spite of the above considerations, has ordered the state to compensate for the damage, and the judge does not have the right to distinguish between different assumptions. as it is told “one who is acquitted or discharged is innocent in the eyes of the law and the sights of the rest of us should not be set any lower. there is a powerful social interest in seeing acquitted persons do no worse than to be restored to the lives they had before they were prosecuted” (naughton, 2005, p. 165). 4.3 responsible for compensation depending on the situation, the legislator has required the state or persons to compensate for damages. so, it is necessary to distinguish between two assumptions: 4.3.1 responsibility of the government in accordance with article 259 of the code of criminal procedure, compensation for the issue of article 255 of this law is the responsibility of the government and if the detention is due to iniquitous report of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 86 published by scholink inc. a crime, perjury or the fault of judicial authorities, after compensation, the government can refer to the causer. therefore, even in the assumption that the state is not responsible for compensation, the legislator has required the government to compensate, and then refer to the responsible persons in the cases which is examined as following. 4.3.2 responsibility of persons article 259 stipulates the responsibility of the state for compensation, but the rule of the latter part of this article implies that article 255 of the code deals with cases that judicial authorities have not mistaken (unlawful detention). iniquitous reporting of a crime can be made by citizens or judicial authorities, or administrative or law enforcement agencies. “this is not to say that law enforcement officers and prosecutors are untrustworthy; most are honest”. however, “criminal justice is a human endeavor and the possibility for corruption exists” (government misconduct, 2017). it seems that the phrase “iniquitous” should be considered as deliberate assignment of the charge on another, and in fact refers to defamation. the first point that comes to mind is that the legislator knows government officials responsible in case of assigning a crime to others and declares that there is no difference between ordinary citizens and government officials and as a normal citizen can be prosecuted in the case of defamation, government officials will also be prosecuted and they will bear the criminal and civil liability of defamation. the question then arises is that whether the compensation commission, itself, realizes the iniquitous reporting of the crime or whether the detained person first must refer to criminal authorities to prove the iniquitous then the compensation commission can order compensation? it seems that this question should be answered in the negative and the compensation commission can itself realize the iniquitous and order compensation. the reason is that, if we require the citizen to prove the iniquitous and if the compensation is subject to proof of iniquitous by the criminal authority then he will be caught in the courtroom and may not come to an end. on the other hand, the legislator, in article 259, absolutely provides for compensation and in the case of iniquitous assignment of the crime to the accused, has given the government the right to refer to the causer. the other question that arises is that if the criminal authority should obey the decision of compensation commission, in case the accused lodges a complainant against the iniquitous person? it seems that this question must also be answered negatively. because, first, the compensation commission is essentially a civil commission and we cannot give the verdict of the commission a credit of ruling of the civil judgement on criminal matters. second, giving the cred of non bis in idem to the commission’s verdict is in conflict with the accused right to defense. while the defendant has the right to defense. if we require the criminal court to obey the commission’s decision, the criminal court will have a formality aspect. suppose that the criminal authority issues summons and after taking security measures, by an indictment sends the file to the court and the court convicts him. undoubtedly, this process contradicts a fair trial. therefore, it should be said that the commission’s decision can only be a guideline for criminal authority, and cannot be binding on it. now, the question is that if the accused lodges a complaint against the iniquitous person, which process should the criminal authority take? www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 87 published by scholink inc. it seems that the criminal authority should take a usual process of trial and if finally concludes that the assignment was not iniquitous, must exonerate the accused. in this situation, the government cannot refer to the reporter of the crime and claim for damages paid to the detained detainee. the same is true of perjury, and the commission can announce the falsehood of martyrdom. to this end, the commission can summon witnesses and ask questions about the testimony and the source of his information. however, he will not have the right to issue arrest order or even take security measures. because the commission is not a criminal authority. the witness cannot be summoned as an accused but as information source could be questioned. most of the testimonies are done by eyewitnesses. it seems that, even if the mistake of eyewitness is not in the concept of perjury, but could be regarded as a base of compensation in case of exoneration. the reason is that “while eyewitness testimony can be valuable to a fact-finder during a trial, research in the area of social science has proven that eyewitness identification can frequently be unreliable” (eyewitness misidentification, 2017), and “validity of eyewitness reports depends a great deal on the procedures that are used to obtain the reports” (wells, 2006, p. 615). there are more deficiencies regarding the testimony of witnesses. “the more complex of the estimator variables includes such factors as a witness’s level of stress, the presence of a weapon, the race of the perpetrator, and a witness’s ability to retain information in the interval between the crime and police interview” (wells, 2006, p. 615). “by taking steps to reform eyewitness identification procedures, this major cause of wrongful convictions could at the very least limit the frequency of eyewitness misidentification” (shaw, 2010-2011, p. 598). in order to prevent the false testimony, “during the administration of the lineup, the witness should be warned that the suspect may not be among the participants” (wells, 2006, p. 629). “a ‘double-blind’ procedure, one in which the neither the administrator nor the witness is aware of who the suspect is, should be used to prevent the possibility of the administrator giving inadvertent clues as to the suspect’s presence” (wells, 2006, p. 631). 4.4 retroactivity or non-retroactivity of the law another point regarding article 255 and the next articles is the discussion of the possibility or impossibility of claiming damages on the base judgements issued before the entry into force of the law in 21/06/2015. the question is whether individuals who have been detained illegally before the entry into force of this law can benefit from the compensation process provided in this law? it seems that this question should be answered in the negative, although, essentially there is no difference between such persons and those who are detained illegally after the entry into force of the law. because in both cases an unjustified factor has caused the loss to the detainee. but, since the law provides for such a right for a period after the entry into force of this law, there will be no right for those individuals who have been illegally arrested before the entry into force of the law. another question that can be asked is whether the entire period of detention should take place after the entry into force of the law or is it important to decide (exoneration)? it seems, considering article 255, the period of detention should begin after the entry into force of the law, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 88 published by scholink inc. but the negative effect will be that if someone was detained even one day before the law came into force, but the major part of his detention was in the aftermath of the entry into force of the law, excerpt from article 255 and in order to prevent such a problem, the date of decision should be taken into account. 4.5 the competent authority for compensation upon release from prison, persons wrongfully convicted have the right of filing a civil rights law suit in the commission provided in article 257. according to the article 257, “the detainee must submit a claim for compensation to the provincial commission, consisting of three of the judges of the province’s appeal courts, elected by the head of the judiciary, within six months from the date of notification of the definitive decision indicating his innocence. the commission will decide on compensation if the conditions provided in the law are met. in case of refusal of the request, the person can appeal to the commission referred to it in article (258) of this law within twenty days from the date of notification”. article 258, in referring to an appeal commission for a decision taken by the provincial commission provides “reviewing the detainee’s protest takes place at the national commission for compensation, consisting of the president of the supreme court, or one of his deputies and two of the supreme court judges, elected by the head of the judiciary. the decision of the commission is definitive”. the decision of the provincial commission could be solely by the claimant appealed. but note of article 342 provides “in claims for compensation subject to article 260 of the code of criminal procedure and article 30 of the law on supervision of the judges behavior ratified in 07/10/2011 and in cases which the blood money should be paid by public treasury, the court must invite the related organization to the trial session to defend the public treasury. the mentioned organization has the right to appeal the decision. therefore, the government representative can defend public interests by attending at the meeting. for example, the government representative can declare that the claim for compensation has been made out of the moratorium and must be rejected or refer to one of the points mentioned in article 256 or 259 and therefore provide the possibility of reference of the government to the causer of the damage to the public treasury”. one of the most important points is that the law refers to lapse of time. so, while the lapse of time in civil cases has not been accepted, the legislator has accepted it in claim for compensation in article 257. 4.6 the enforcement authority article 260 refers to the enforcement authority of the decisions of the compensation commission and provides “in order to pay damages subject to article 255 of this law, a fund is established at the ministry of justice, which its budget is financed annually from public budget. the fund is under the auspices of the minister of justice and he is responsible to perform the commission’s decisions. article 512 as a completion of article 255 provides a person who, by virtue of a definite judgement, is acquitted, may, within a maximum of six months from the date of the notification of the judgement, in addition to the monetary compensation, request the primitive court to publish the acquittal judgement on the charge of the judiciary in one of the daily newspapers”. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 89 published by scholink inc. references armbrust, s. (2004). when money isn’t enough: the case for holistic compensation of the wrongfully convicted. 41 am. crim. l. rev. 157. ashouri, m. (1974). the necessity of compensation for innocent prisoners. journal of faculty of law and political science, 15-16, 30-47. baradaran, s. (2011). restoring the presumption of innocence. 72 ohio st. l.j. 723, 728. biedermann, o. a., & taroni, f. (2015). accounting for the potential of error in the evaluation of the weight of scientific evidence. in l. luca, & k. wolters (eds.), understanding wrongful conviction, the protection of the innocent across europe and america (pp. 39-55). compensation in cases of wrongful conviction. (n.d.). sibley criminal appeal and evidence (pp. 254-230). eyewitness misidentification. (n.d.). the innocence project. retrieved august 25, 2017, from http://www.innocenceproject.org/understand/eyewitness-misidentification.php ferry de, j., & leonie van, l., (2016). the presumption of innocence as a counterfactual principle. utrecht l. rev., 32, 49. gamble, r., & dias, n. (2009). equality of arms is a blessed phrase: its meaning under international law, 21(187), 216. garrett, b. l. (2011). convicting the innocent: where criminal prosecutions go wrong. cambridge, harward university press; b. l. garrett-p. j. https://doi.org/10.4159/harvard.9780674060982 godsey, m. (2015). the human factors in wrongful convictions across national borders. in l. luca, & k. wolters (eds.), understanding wrongful conviction, the protection of the innocent across europe and america (pp. 13-37). government misconduct. (n.d.). the innocence project. retrieved august 25, 2017, from http://www.innocenceproject.org/understand/government-misconduct.php harris, d., o’boyle, m., & warbrick, c. (1995). law of the european convention on human rights. butterworths, london. herrmann, j. (1974). the rule of compulsory prosecution and the scope of prosecutorial discretion in germany. the university of chicago law review, 41(3), 468-505. https://doi.org/10.2307/1599176 katoozian, n. (1995). non-contractual obligations, un-voluntary liability. in usurp and exploiting (1st ed., p. 219). tehran university press. katouzian, n. (2008). justice and morality, collection of essays. in a step towards justice (2nd ed., pp. 194-150). mizan publication, tehran, iran. killias, m. (2015). wrongful convictions as a result of political pressure. in l. luca, & k. wolters (eds.), understanding wrongful conviction, the protection of the innocent across europe and america (pp. 57-80). myles, f. m. (2013-2014). innocence compensation: the private, public and prerogative remedies. 45 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 90 published by scholink inc. ottawa l. rev., 59, 59-92. naughton, m. (2005). redefining miscarriages of justice: a revived human-rights approach to unearth subjugated discourses of wrongful criminal conviction. the british journal of criminology, 45(2), 165-182. https://doi.org/10.1093/bjc/azh066 negri, s. (2005). the principle of “equality of arms” and the evolving law of international criminal procedure. international criminal law review, 5, 513-571. https://doi.org/10.1163/157181205775093847 quintard-morenas, f. (2010). the presumption of innocence in the french and anglo-american legal traditions. the american journal of comparative law, 58, 107-150. https://doi.org/10.5131/ajcl.2009.0005 rigg, r. r. (1999). the constitution, compensation, and competence: a case study. in the university of texas school of law, 27(1), 2-48. roberts, p., & zuckerman, a. (2010). criminal evidence (2nd ed.). oxford: oxford university press. shaw, j. (2010-2011). exoneration and the road to compensation: the tim cole act and comprehensive compensation for persons wrongfully imprisoned. tex. wesleyan l. rev., 17, 593-617. staszewski, g. (2009). reason-giving and accountability. minn. l. rev., 93, 56-84. taylor, n. (2002). fixing the price for spoiled lives: compensation for wrongful conviction, criminal justice review 1991-2001. center for criminal justice studies, university of leeds. retrieved from https://www.leeds.ac.uk.law.ccjs.homepage.htm wells, g. l. (2006). eyewitness identification: systemic reforms. wis. l. rev., 615. notes note 1. litigation is the indisputable right of everyone, and anyone can go to competent courts to lodge a complaint. note 2. innocence is to be presumed, and no one is to be held guilty of a charge unless his or her guilt has been established by a competent court. note 3. arguing that compensation should expand beyond only monetary compensation, offering a “holistic” program with services including education, vocational training, and medical services. note 4. according to article 18 of the iranian islamic penal code “ta’zir is a punishment which does not fall under the categories of hadd, qisas, or diya and is determined by law for commission of prohibited acts under shari’a or violation of state rules”. the type, amount, conditions of execution as well as mitigation, suspension, cancellation and other relevant rules of ta’zir crimes shall be determined by law. in making decisions in ta’zir crimes, while complying with legal rules, the court shall consider the following issues: (a) the offender’s motivation and his/her mental and psychological conditions when committed the crime. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 91 published by scholink inc. (b) method of committing the crime, extent of a breach of duty and its harmful consequences. (c) conduct of the offender after committing the crime. (d) the offender’s personal, family, and social background and the effect of the ta’zir punishment on him/her. in some ta’zir crimes like having sex with his own wife in ramadan or removing the hymen of a girl, the punishment has been determined by sharia. note 5. in the iranian criminal justice system drawing a postdate check is a crime. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 222 original paper research on the judicial determination standards for illegal administrative compulsory demolition procedures futeng qiu 1 & yu chen 1 1 school of ocean law and humanities, dalian ocean university, dalian, china received: october 30, 2025 accepted: november 6, 2025 online published: november 7, 2025 doi:10.22158/elp.v8n2p222 url: http://dx.doi.org/10.22158/elp.v8n2p222 abstract in the current process of urban and rural governance, the issue of procedural legality has become the core point of contention in judicial review of disputes over forced demolition, and the damage to rights caused by procedural violations has become a prominent problem in administrative law enforcement governance. starting from the practice of adjudication, this paper explores the specific judgment paths for the legality review of the administrative compulsory demolition procedure, focusing on the issue of how to establish judicial determination standards for the illegality of the administrative compulsory demolition procedure. by applying the method of normative analysis and case comparison, extract the consensus-based judgment rules in judicial determination. research has found that judicial authorities are gradually forming operational standards for determination, including standards for strengthening the review of procedural evidence and reversing the burden of proof, standards for distinguishing formal defects from substantive violations, as well as empirical review standards for compensation for procedural violations based on elements such as illegality, damage, and causal relationship. distill the judicial judgment logic scattered in the reasoning of the judgment into clear judicial determination standards, promote the transformation of administrative law enforcement from procedural awareness to procedural responsibility, and thereby achieve the standardization, verifiability and traceability of responsibility of the administrative forced demolition procedure. keywords administrative compulsory demolition, procedural violation, judicial determination, procedural legitimacy administrative compensation 1. introduction in recent years, cases of forced demolition of illegal buildings have been on the rise. the parties involved may have their immovable property forcibly demolished by violence without being given the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 223 published by scholink inc. opportunity to make statements or defenses, thereby causing irreversible damage to their family life, business operations and even property safety. in practice, there are also procedural violations such as the delay of document supplementation behind demolition actions, the formalization of the notice and announcement procedures, the absence of statement and defense procedures, and insufficient evidence retention. procedural infringement not only weakens the credibility of administration but also makes it a key consideration factor in determining the legality of administrative acts in judicial review. as a result, the issue of forced demolition of illegal buildings has evolved into a complex problem involving institutional rights protection and administrative compensation risks. to address the issue of procedural violations, the state has successively passed laws and regulations such as the “administrative compulsion law”, the “urban and rural planning law”, the “administrative punishment law”, and the “state compensation law”, along with local regulations, gradually establishing a procedural restraint mechanism. however, from a practical perspective, there are still gaps in the implementation of systems and governance blind spots with overlapping authorities. on the one hand, the program rules are relatively complete at the textual level. on the other hand, due to factors such as law enforcement resources, assessment mechanisms, and administrative driving forces, some law enforcement links have been weakened or absent. the essence of this problem lies in the poor operability of procedural rules and the imperfect responsibility traceability mechanism, which leads to a high incidence of procedural violations and frequent demands for judicial relief. based on this practical contradiction, this article focuses on the research topic of “the judicial determination standards for procedural violations in administrative forced demolition”, aiming to answer how courts identify the standards for procedural violations from the perspective of judicial review, how to distinguish formal flaws from substantive violations, and how to define liability for compensation and the allocation of evidence in cases where procedural violations cause damage. for this reason, this paper systematically screens typical cases of procedural violations in the forced demolition of illegal buildings in recent years. by combining the interpretation of current legal provisions and legal theory analysis, and adopting a method that combines case studies with normative analysis, it strives to distill the determination standards that are both operational and reflect judicial trends. on this basis, it proposes improvement paths that can be referred to by the judiciary and administration. 2. the normative system foundation of the administrative compulsory demolition procedure 2.1 at the central level administrative compulsory demolition is a direct compulsory measure taken by administrative authorities in the course of performing their regulatory duties against illegal buildings, illegal land use and other acts in accordance with the law. the requirement for procedural legality stems from the administrative compulsory system. article 44 of the administrative compulsory law clearly stipulates that the party concerned must first be ordered to make corrections within a prescribed time limit. only if the corrections are not made within the time limit can the law enter the compulsory enforcement www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 224 published by scholink inc. stage. at the same time, the law requires administrative authorities to fulfill the procedures of urging and announcing before enforcement to ensure that the parties enjoy procedural rights such as statements and defenses. from this, three basic stages of the demolition procedure were established, namely, ordering rectification, urging announcement and compulsory enforcement. at present, the legal system for administrative compulsory demolition in china is mainly based on central legislation. the “administrative compulsory law” serves as the core norm and, together with the “urban and rural planning law”, the “land administration law”, and others, forms the basic framework. the implementation requirements are further detailed through administrative regulations and departmental rules. article 64 of the urban and rural planning law clearly stipulates that the competent department of urban and rural planning may, in accordance with the law, carry out forced demolition for construction activities that violate the planning after ordering the demolition within a time limit without success. although the newly revised “administrative penalty law” does not directly stipulate the compulsory demolition procedure, the supreme people’s court has already explicitly listed “ordering demolition within a time limit” as an independent cause of action under “administrative penalty” in the “interim provisions on the subject matter of administrative cases”, which indicates that judicial practice has tended to define it as a type of administrative penalty. the newly revised land administration law in 2019 has strengthened the control over illegal land use. article 77 and article 83 stipulate that for buildings that violate the land use master plan, a decision to demolish them within a time limit must be made, and forced demolition must be included in the administrative penalty procedure. if the party concerned fails to perform within the prescribed time limit, they shall apply to the court for compulsory enforcement. although this move highlights the principle of protecting cultivated land in terms of system, it also makes the implementation process rely on judicial channels. in actual operation, it is prone to cause an extension of the processing cycle and an increase in costs. at the level of administrative regulations and rules, the “regulations on the expropriation of houses on state-owned land and compensation” issued by the state council in 2011 specifically clarifies the compulsory enforcement procedures in chapter five. the model of applying to the court for compulsory enforcement stipulated in article 28 of this chapter is in line with the content of article 53 of the “administrative compulsory law”. the “measures for urban management and law enforcement” issued by the ministry of housing and urban-rural development in 2017 detailed the law enforcement procedures and on-site requirements. the “administrative penalty measures for natural resources” issued by the ministry of natural resources in 2024 provides procedural guidance for the handling of related illegal buildings. as this article screens case samples based on the search terms of administrative compensation, forced demolition, and illegal buildings, with the aim of ultimately achieving actual compensation, judicial authorities, while applying the norms of demolition procedures, will also invoke the norms of national compensation. article 2 of the state compensation law clearly stipulates that if damage is caused by the illegal exercise of powers by state organs, the victim may request compensation. this thus establishes the prerequisite conditions for compensation www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 225 published by scholink inc. liability arising from procedural violations. article 11 of the judicial interpretation “provisions of the supreme people’s court on several issues concerning the trial of administrative compensation cases” issued by the supreme people’s court further points out that when administrative organs fail to retain evidence, making it difficult to ascertain the facts, they will bear the adverse consequences of presenting evidence. in this way, a judicial review chain has been formed where procedural violations constitute administrative act violations, and administrative act violations cause damage, and the state’s liability for compensation is immediately initiated. 2.2 local level compared with the relatively complete institutional system at the central level, there are obvious implementation deviations at the local level during the implementation process. although some local regulations and rules have made detailed provisions for the forced demolition process, there are widespread problems such as the notice and announcement procedures being merely formalities, the absence of hearing links, and the non-standard delivery of documents. as a result, in actual operation, procedural violations have become the focus of judicial review. when it comes to the administrative act of demolishing illegal buildings, which has a significant impact on the rights of the parties involved, an extremely cautious attitude must be adopted in legislation (wang, y. b., 2024). the normative documents at the local level mainly include local regulations, government rules and other normative documents, which have both local characteristics and the feature of being scattered. for instance, local regulations such as the “regulations on urban renewal of the shenzhen special economic zone” and the “regulations on urban and rural planning of jiangsu province” have made detailed provisions in terms of the standards for identifying illegal constructions, handling property rights disputes, and the division of responsibilities among departments. while aligning with national laws, they also retain flexibility in enforcement. the implementation measures for removing illegal structures in places like hangzhou and suzhou focus on the management of law enforcement processes and emphasize the collaboration among planning, natural resources, and urban management departments. in pursuit of efficiency, some places evade legal procedures under the guise of emergency demolition, and even engage in illegal acts such as forced demolition at night or obstructing the parties from obtaining evidence. the poor connection between local regulations and departmental rules has also led to operational difficulties. for instance, when multiple departments jointly identify illegal constructions, unclear responsibilities may result in shirking or repetitive law enforcement. this move not only infringes upon the procedural rights of the counterparty, but also becomes the main factor for administrative authorities to lose in administrative litigation. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 226 published by scholink inc. 3. the main problems of procedural violations in administrative compulsory demolition based on the statistics of judgment samples from the judgments online and the wko xianxing network over the past five years, in administrative forced demolition cases, procedural violations remain the main point of contention in judicial review. whether the procedure is legal is the entry criterion for measuring whether the administrative forced demolition act is proper. from the perspective of judicial determination, this article holds that procedural violations mainly manifest in two aspects: non-standard program initiation and the absence of program nodes. although the two occurred at different stages, the essential cause of both was that the administrative authorities failed to fully perform the legal procedures, resulting in the demolition being determined as illegal in the judicial review and thus triggering the liability for compensation. 3.1 the program startup is not standardized the initiation stage of the program is the source link of administrative compulsory demolition, and its legality directly determines the effectiveness of subsequent demolition actions. the rectification within a prescribed time limit shall be ordered first, and the performance period shall be clearly defined. if the rectification is not made within the time limit, the demolition may be carried out in accordance with the law. however, in the practice of judicial adjudication, administrative authorities often enter the demolition stage before the conditions for initiation are met or the pre-procedures are completed. in the case where zheng sued the people’s government of xiaojiang town, pingyang county for forced demolition of houses and administrative compensation, the administrative authority organized the forced demolition without making a written decision to order rectification before the demolition and was unable to provide a delivery voucher. the court, based on the facts, determined that the actions of the defendant administrative organ did not meet the prerequisite requirement of ordering rectification within a time limit as stipulated in article 34 of the administrative compulsory law, and also violated the provisions of article 44 of the public announcement and granting a time limit for self-demolition. as the plaintiff’s property suffered losses, the court, in accordance with article 2 of the state compensation law and articles 31 and 32 of the provisions of the supreme people’s court on several issues concerning the trial of administrative compensation cases, ordered the administrative organ to bear the obligation of compensation for the plaintiff's losses. a similar situation was more evident in the case where xu shengjie sued the zhonghe sub-district office of the people’s government of yinzhou district, ningbo city for the forced demolition of houses or facilities. the zhonghe sub-district neither made a decision to demolish within a time limit nor received instructions from the superior government, but directly carried out the forced demolition. it is worth noting that in this case, the court cited the provisions of the zhejiang province local administrative law enforcement regulations. according to article 8 and article 9 of the zhejiang province comprehensive administrative law enforcement regulations, sub-district offices can only carry out administrative law enforcement matters authorized by government announcements. at the same time, in accordance with article 15 and article 16 of the “regulations on the disposal of illegal buildings in zhejiang www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 227 published by scholink inc. province”, the decision to demolish within a time limit shall be made by the department with jurisdiction. the zhonghe sub-district carried out the demolition without making a decision on the demolition within a time limit and without being instructed by the superior government, which is a typical act of overstepping authority. the court ultimately ruled in accordance with article 74 of the administrative litigation law that the administrative act was illegal. however, due to the insufficient causal relationship between the damage and the act, in accordance with article 32 of the “several provisions on administrative compensation cases”, the claim for compensation is not supported. such cases reflect the common procedural laxity and the lack of evidence traceability in grassroots law enforcement. some scholars hold that in cases where there is a lack of a decision on the forced demolition of illegal buildings, the fundamental act of the forced demolition of illegal buildings should continue to be pursued “forward”, that is, the decision on the demolition of illegal buildings within a specified time limit should be regarded as the fundamental act of the forced demolition of illegal buildings (gao, j. f., & lu, j., 2025, pp. 87-96). it can be seen that the problem of non-standard program initiation runs through the process nodes such as the failure to make a decision to order rectification and the over-authority initiation of demolition. judicial judgments clearly state that failure to initiate procedures in accordance with the law will result in administrative acts being illegal, and when damage is caused, the administrative organ shall bear administrative compensation liability. 3.2 missing program nodes when it comes to whether the demolition involved in the initiation of the procedure can begin, the procedure nodes reflect precisely how the administrative authorities specifically advance this process. it mainly includes whether the execution of the links such as urging, announcement, service and evidence fixation is in place. in the case where guo moujie sued the natural resources and planning bureau of weihui city and the people’s government of jishui town, weihui city for the forced demolition of houses or facilities, the two defendants jointly and directly carried out the forced demolition, but failed to fulfill the prerequisite requirements of article 65 of the urban and rural planning law for ordering a stop and making corrections within a time limit. nor have the procedures of urging and making statements and defenses as stipulated in articles 35 to 37 of the administrative compulsory law been carried out. ultimately, the court made a judgment confirming the violation in accordance with article 70 of the administrative litigation law. as neither party was able to provide a basis for loss assessment, the court ultimately determined the amount of compensation based on the third paragraph of article 47 of the interpretation of the supreme people’s court on the application of the administrative litigation law of the people’s republic of china, with the judge’s discretion, in accordance with his life experience. given that the urban and rural planning law, as a special law, has limitations in regulating illegal buildings under construction, it is necessary to strengthen the legal basis by improving the administrative compulsory law, a general law (sun, y. p., 2023, pp. 158-160). procedural flaws are particularly common in the announcement stage. in the administrative www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 228 published by scholink inc. confirmation case of huangshi city’s moumou ecological agriculture professional cooperative against the people’s government of moumou town, yangxin county and xu mouhua, the “notice of order to stop illegal construction” involved in the case failed to inform the rights and obligations, and there was no evidence to prove that separate notification had been made, resulting in the deprivation of the rights of the parties involved. in this regard, the court, in accordance with article 76 of the administrative litigation law and articles 2, 4 and 36 of the state compensation law, ordered the administrative organ to bear the liability for property damage compensation. this case particularly cited the reversal of the burden of proof as stipulated in article 11 of the “judicial interpretation on administrative compensation of the supreme people’s court”, demonstrating that when courts are confronted with procedural violations and clear losses, they adopt a review path of confirming the violation and supporting compensation. in addition, non-standard evidence fixation is also an important manifestation of program node defects. in the case where gou mouyuan sued the guancang town government for administrative compensation and non-criminal compensation, the defendant administrative agency failed to conduct full audio and video recording and did not register the items in the property preservation house, which led to the inability to accurately identify the involved property. the court directly ruled that the administrative agency should make advance compensation for the loss part and, in accordance with the provisions of the above-mentioned judicial interpretation, combined with the on-site evidence and common sense, determined the compensation amount at its own expense. in the case of xu mouxia v. the people’s government of heping town, yuzhong county for non-criminal compensation, the court pointed out that the defendant’s forced demolition methods were improper, resulting in the damage or loss of the plaintiff’s recyclable building materials, and compensation should be given. at present, the law enforcement means for the demolition of illegal constructions are lacking, which puts the authorities in a dilemma of insufficient deterrence when responding to resistance, and tough enforcement is prone to intensify conflicts (yu, x. j., 2020). moreover, the defendant failed to register and preserve the items inside the house. in response, the court, in accordance with article 4 and article 36 of the state compensation law, determined that this act was illegal and caused property damage. at the same time, in accordance with the specific provisions on interest calculation in the judicial interpretation, the court ordered compensation for direct losses. as mentioned above, the problem of missing program nodes is often manifested as having what should be but not having it or having what should be but not having it. the root cause lies in the tool-based understanding of procedural regulations by local administrative authorities. in cases where the notification process is missing, the statements and defenses have not been implemented, the enforcement decisions have not been made, the announcement and service processes lack effective proof, and the demolition methods are illegal, the judicial consequences caused by the absence of procedural nodes show a high degree of consistency. once any key node is missing, it constitutes a serious procedural violation. if property damage is caused as a result, it will also trigger the state’s www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 229 published by scholink inc. liability for compensation. therefore, on the basis of exploring the inherent meaning of the principle of due process presented in the court trial system, the value of procedure should be respected, procedural justice should be guaranteed, and the review standards of the principle of due process should be constructed (pan, k. l., & li, g. h., 2018, pp. 86-94). 4. the judicial determination standards for the illegality of administrative compulsory demolition procedures 4.1 the standards for strengthening procedural evidence review and reversing the burden of proof this article, through the search of cases involving violations of the compulsory demolition procedures for illegal buildings, reveals that the majority of judgments indicate that courts are gradually increasing their requirements for evidence of procedural facts. if administrative authorities fail to submit a complete chain of documents, such as orders to rectify, notices of demand, announcement records, service vouchers, and compulsory demolition decisions, the courts will directly determine that the procedures are illegal. in the case of jin baosong v. the sanjiang sub-district office of yongjia county people’s government and others for forced demolition of houses and administrative compensation, the court held that the sanjiang sub-district office of the defendant was unable to prove the legality of its procedures, and the consequences of failure to provide evidence should be borne by the administrative organ. this case fully embodies the principle of “he who asserts must prove” stipulated in article 34 of the administrative litigation law, as well as the provision that administrative organs bear the main burden of proof. article 35 and article 37 of the current administrative compulsory law stipulate that when administrative authorities carry out forced demolition, they must strictly fulfill procedural obligations such as prior notice and listening to statements and defenses, and properly file relevant documents for future reference. during the judicial review process, courts have gradually established a legality review standard that the legality of procedural performance must be restored at the evidence level. this standard not only requires administrative authorities to complete procedures such as notification, urging and announcement in form, but also emphasizes the construction of a closed chain at the evidence level to ensure that the legality of the procedures can be restored and verified. in disputes over procedural violations, the legality of administrative acts no longer solely relies on the self-evidence of administrative authorities, but rather requires verification through an objective chain of evidence. based on this, when judicial authorities apply article 34 of the administrative litigation law, they should establish a strengthened application standard of reversing the burden of proof: when an administrative counterpart raises a reasonable question about the legality of a procedure and the administrative authority fails to submit evidence forming a closed chain, it is presumed that the procedure is illegal. this standard can enhance the intensity of review of procedural evidence, promote administrative authorities to move from procedural completion to procedural provability, and achieve a deep integration of procedural review and burden of proof. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 230 published by scholink inc. 4.2 the criteria for distinguishing formal flaws from substantive violations in the judicial determination of procedural violations, courts will distinguish the severity of the circumstances. therefore, a distinction standard centered on the degree of impact of procedural flaws on rights should be gradually established: if procedural flaws do not affect the substantive outcome of the decision and only constitute minor flaws, they shall not be revoked; if the defect leads to restrictions on the counterparty’s right to state and defend, unclear facts or damage to rights, it will constitute a substantive violation and should be revoked. for instance, in the case of xu shengjie mentioned above, although the decision to demolish within a time limit was missing, it did not affect the legality of the demolition. it was only confirmed as illegal and not revoked. in the case of a certain ecological agricultural professional cooperative in huangshi city, as the “notice of order to stop illegal construction” did not specify this content, the plaintiff was deprived of the rights to make statements, defend themselves and request a hearing. the court determined that the act was substantially illegal and revoked the notice. of course, such revocation does not lead to the invalidity of administrative acts. violations of legal procedures by administrative acts neither lead to nor should lead to the invalidity of administrative acts. therefore, they should be fundamentally denied (yang, d. f., 2024, pp. 1002-1020). this distinction standard is in line with the essence of article 70 of the administrative litigation law, that is, the people’s court should focus on whether the illegal circumstances have an impact on the legality of the administrative act, rather than merely being confined to formal procedures. as a result, judicial review can move from formal legality to substantive legitimacy, ensuring administrative efficiency while making the boundaries for correcting errors in administrative actions clearer. 4.3 the empirical review standards for compensation for procedural violations in compensation lawsuits arising from administrative forced demolition, the court should establish an empirical review standard with illegality, damage and causal relationship as the core elements: if the procedural violation directly leads to property loss and the demolition object has legitimate rights and interests, the liability for compensation can be established. both article 4 of the state compensation law and article 76 of the administrative litigation law reflect this requirement. the establishment of administrative compensation must be based on the premise that the administrative act is illegal and has caused actual damage. in the case of guo moujie, although the illegally constructed structures themselves are illegal, the building materials will not become illegal property as a result. neither party has provided conclusive evidence to prove the amount of loss of the rock wool board iron house involved in the case, and both have stated that they will not apply for an appraisal. therefore, the court will determine the compensation at its discretion. courts still tend to protect the legitimate interests of the claimant in building materials and do not mechanically exclude compensation. in the search process of this article, the proportion of such cases is not small. when determining the scope of compensation, courts tend to combine the evidence at the judge’s disposal and common sense in life to determine the amount of loss at their discretion. if the administrative agency fails to retain video evidence or www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 231 published by scholink inc. assessment materials, the court will regard this as the consequence of failure to provide evidence due to procedural violations, and the administrative agency shall bear the responsibility. considering the discretionary coefficient in this way aims to ensure that courts can fully exercise their discretionary power in accordance with the characteristics of each specific case when hearing various cases, and avoid mechanically applying discretionary rules (chen, x. x., & zhu, r. n., 2024, pp. 86-90). the establishment of this standard can promote the transformation of administrative compensation from formal judgment to empirical review based on evidence and results, making compensation judgments more predictable. 5. the improvement path of the judicial determination standards for the illegality of administrative compulsory demolition procedures the procedural violations of administrative forced demolition exposed during the judicial adjudication process highlight the poor operability of law enforcement. the essence lies in the tension between institutional texts and law enforcement practices. first of all, the principle requirements of legal provisions regarding procedures have been clearly defined; on the other hand, administrative authorities have operational flexibility and discretionary space in complex law enforcement scenarios, which leads to the simplification, skipping or even evasion of procedures. at the institutional level, the ambiguity of some procedural rules provides the possibility for implementation deviations. for instance, the flexible expression of the “notice period” in article 35 of the administrative compulsory law may lead to differentiated operational standards in different regions. in practice, due to the limited law enforcement resources at the grassroots level and the efficiency-oriented approach of performance assessment, procedural irregularities have become a frequently occurring issue in judicial determinations. furthermore, as a high-authority act, the procedural legitimacy of administrative forced demolition not only concerns the rights relief in individual cases but also directly affects the credibility of administrative agencies and the overall process of building a law-based government. this also means that the governance of procedural violations by judicial authorities needs to go beyond the simple institutional level. therefore, this study suggests that the following aspects can be considered to improve the normative improvement path for the operability of judicial determination standards. 5.1 the document chain is included in the necessary review items for the initial judicial trial when hearing cases of forced demolition, the court should clearly take the integrity of the document chain as the first requirement for the initial judicial trial. specifically, it should be determined whether the procedure has been initiated in accordance with the law based on the written order and the list of evidence. the list of evidence includes the decision to order rectification or the decision to demolish within a time limit, the notice of demand, the written or electronic delivery certificate, the announcement record, the decision on compulsory enforcement, as well as the image or mapping report of the demolition site. the review results should be listed in the form of items in the reasoning of the judgment. if the administrative agency is unable to provide evidence for each item, it should clearly www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 232 published by scholink inc. point out the missing items in the reasoning of the judgment and apply the procedure of reversing the burden of proof as illegal. by institutionalizing the document chain as the threshold for the initial trial of cases, judicial authorities can leverage their judicata power to urge administrative agencies to improve evidence retention and procedural compliance before law enforcement, thereby reducing lawsuits caused by the practice of dismantling evidence before obtaining it from the source. 5.2 refine the key points for identifying formal flaws and substantive violations in the judgment, the court should clearly take the test of rights impact as the objective criterion for distinguishing procedural formal flaws from substantive violations. it is suggested that in the reasoning of the judgment, a judgment be made one by one based on four key points: whether the initiation is legal, whether the nodes are complete, whether the evidence can be restored, and whether the rights are guaranteed. first, if the absence of any one of these key points directly causes the party to lose the opportunity to state and defend or to hear, or leads to the inability to restore the facts, then the administrative act should be determined to constitute a substantive violation and be revoked. secondly, if the defect is merely in terms of procedural form and does not affect the substantive rights of the parties involved, the administrative act can be confirmed as illegal, but the administrative organ should be ordered to make corrections or provide explanations. courts should clearly list the factual and legal basis for adopting this standard in their judgment documents, so as to reduce the differences in judgment standards among different courts. 5.3 clarify the evidence standards and loss determination rules for compensation review when hearing administrative compensation cases based on procedural violations, courts should specify the evidence standards for the three elements of illegality, damage and causality. in cases where administrative authorities fail to submit key procedural evidence, the court should apply an unfavorable presumption or reverse the burden of proof, and require the administrative authority to bear the main burden of proof for the scope of damage or the causal relationship. in cases where it is impossible to accurately determine the losses, the judgment may be made based on the authorization of the “interpretation of the supreme people’s court on the application of the administrative litigation law of the people’s republic of china”, in combination with the evidence on file, expert assessment opinions or common sense of life, and the basis for determination and calculation methods shall be clearly stated in the judgment. in addition, courts can establish several exemplary standard templates for calculating demolition compensation within their jurisdiction, such as the pricing basis standards for building materials value assessment items and labor and transportation cost items, to ensure consistency and predictability of discretion. 5.4 establish judicial acceptance standards for electronic evidence and full-process imaging the forced demolition work should establish a chain of evidence throughout the entire process, covering on-site photos, videos, surveying and mapping data, announcement records, and execution logs, etc. given that evidence at the demolition site is prone to loss, it is suggested that the court clarify the key points for accepting electronic evidence and video evidence. the submitter is required to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 233 published by scholink inc. simultaneously clarify the generation time of the evidence, the acquisition path, the integrity of the link, and the source data such as the timestamp. for the image materials submitted by administrative authorities, the court shall require them to be mutually corroborated with independent surveying and mapping, third-party appraisal or other evidence on record before they can be accepted. introducing modern information technology into administrative law enforcement and leveraging digital technology to improve the governance environment and expand its scope of application also needs to be carried out under the constraints of the legal order (sun, w. n., 2024, pp. 52-62). in judicial practice, courts should demonstrate in their judgments the reasons for accepting or not accepting electronic evidence, so as to form evidence rules that can be followed in judicial practice, and thereby encourage administrative authorities to retain evidence in accordance with the law simultaneously before dismantling it. 5.5 establish a closed-loop mechanism for judicial feedback and administrative compliance to enhance the effectiveness of institutionalization, it is suggested that judicial authorities be able to conduct feedback work in a standardized manner after making judgments. in the judgment, in addition to ruling on individual case relief, the types of deficiencies in administrative procedures and the directions for rectification should also be clearly pointed out through attached explanations or judicial suggestions. typical types of violations should be summarized within an annual or semi-annual period and fed back to the competent administrative department and grassroots law enforcement units. at the same time, it is suggested that local judicial administrative organs and administrative authorities work together to formulate a compliance list for forced demolition, incorporate the determination elements adopted by courts in their judgments into the administrative law enforcement review form, and include them in the compliance guidelines for the pre-law enforcement review procedures. by leveraging the guidance of judicial decisions and the introduction of administrative compliance guidelines, a closed-loop system is formed, from judgment to feedback, then to law enforcement rectification, and ultimately to judicial supervision. this not only ensures the timeliness of judicial relief but also effectively promotes the structural optimization of the law enforcement process. 6. conclusion administrative compulsory demolition is at the intersection of public governance and the protection of individual rights. whether its procedure is proper or not only concerns the outcome of individual case handling but also reflects the operational level of administrative power. the violation of judicial review procedures does not hinder administrative decision-making, but rather serves as a calibration of the boundaries between power and rights. the determination standards formed by judicial trials can serve as external norms for administrative law enforcement and also draw clear boundaries for the actions of administrative organs. in the process of forced demolition, procedure is the subject that carries rights, and procedural justice is the prerequisite for ensuring the credibility of substantive judgments. the gradual formation of judicial determination standards has provided clear boundaries for administrative authorities at the operational level and also prompted them to re-examine the value of procedures while www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 234 published by scholink inc. pursuing governance effectiveness. in the future, with the improvement of digital governance, the traceability of evidence throughout the entire process, and the public participation system, the standardization of administrative compulsory demolition procedures will shift from outcome control to process governance. it is expected that judicial rationality and administrative self-discipline will work in synergy to make administrative forced demolition a model of law-based governance and shape a modern government image that is both powerful and warm. fund project the 2020 liaoning provincial social science planning fund project. research on forward-looking policy tools for social risk early warning of artificial intelligence technology (key project, l20agl016), project leader chen yu. references chen, x. x., & zhu, r. n. (2024). the rule structure for determining the amount of ecological and environmental damage compensation by referring to the amount of administrative penalty fines. people’s justice, 2024(24), 86-90. gao, j. f., & lu, j. (2020). research on judicial review of forced demolition of illegal buildings. yinshan academic journal, 38(01), 87-96. pan, k. l., & li, g. h. (2018). an empirical consideration of the value of procedural justice from the perspective of administrative trials. administration and law, 2018(05), 86-94. sun, w. n. (2024). rational deviation and technical reinforcement of administrative procedures in the era of data governance. journal of beijing university of chemical technology (social sciences edition), 2024(02), 52-62. sun, y. p. (2023). on the improvement of the compulsory demolition system for illegal buildings in china: from the perspective of administrative organs’ compulsory enforcement. hua zhang, 2023(09), 158-160. wang, y. b. (2024). research on the compulsory demolition system of illegal buildings. heilongjiang university. yang, d. f. (2024). denial of the invalidity theory of administrative acts due to procedural violations. chinese and foreign jurisprudence, 36(04), 1002-1020. yu, x. j. (2020). research on compulsory demolition of illegal buildings by the government. yantai university. microsoft word elp-v2n1-p82 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 1, 2019 www.scholink.org/ojs/index.php/elp 82 original paper the development of health centres due to the cooperation in clusters in poland małgorzata muszyńska-kurnik1* & danuta żiżka1,2 1 the podhale state college of applied sciences in nowy targ, poland 2 the university of physical education in krakow, poland *małgorzata muszyńska-kurnik, the podhale state college of applied sciences in nowy targ, poland received: february 21, 2019 accepted: march 6, 2019 online published: april 4, 2019 doi:10.22158/elp.v2n1p82 url: http://dx.doi.org/10.22158/elp.v2n1p82 abstract increasing competition in the market of health tourism, enforces various forms of cooperation. this collaboration may take the form of a network-cluster, where there is cooperation between municipalities, spa companies, organizations and research centers. a good example of such activities in poland are: kuyavia and pomerania organisation of employees lewiatan, cluster “świętkorzyskie spas”, innovation cluster “for health-sudeten” or cluster “medicine poland south east”. keywords clusters, health centres, health centres’ cooperation 1. introduction travelling for health reasons is one of the oldest forms of tourism. its roots reach the most distant past since natural resources were the only medicinal form available at that time. contemporary health tourism is determined by numerous factors, which are created by the market, both by the producers, who are constantly improving their offer as well as by the tourists who require the highest level of service. growing competition on the market of health tourism requires constant cooperation as well. this kind of cooperation can be achieved by different means. these can include a chain connection, where the participants are local communities, boroughs, municipalities, health resorts, a wide range of organisations, societies and universities. one of the forms of such connections in health centres can be creating a network and establishing a cluster. michael e. porter (1998, p. 78) defines cluster as “geographic concentration of interconnected companies and institutions in particular field. clusters encompass as array of linked industries and other entities important to competition”. they may include, for example, supplies of specialized inputs such as www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 83 published by scholink inc. goods, researches and providers of specialized services. this definition was introduced to economics by m. e. porter (1970). porter and kramer (2011, p. 8) also say that “no company is self-contained. the success of every company is affected by the supporting companies and infrastructure around it. productivity and innovation are strongly influenced by clusters”. clusters deal not only with business but also with different institutions such as academic programs, trade associations and standards organizations. they may also involve numerous public assets in the surrounding community, such as schools and universities, clean water, fair-competition laws, quality standards, and market transparency. clusters can be also noticed in majority of successful and developing regional economies. furthermore, they contribute to the development of productivity, innovation, and competitiveness. logistical efficiency and ease of collaboration can be expanded by local suppliers. stronger local capabilities in such areas as training, transportation services and related industries also boost the productivity. without a supporting cluster, conversely, productivity suffers. the perspective of cluster development in health tourism faces european union politics which is based on clusters and aims at increasing the level of competitiveness as far as the management of the spa areas and tourist reception are concerned enforcing competitiveness on tourist market by the means of clusters is obtained mainly by the development of entrepreneurship and innovation on the areas which have been analysed. european union defines cluster as a way of organising productivity due to geographical location of business entities and other organisations specialising in the same areas of business activity, developing mutual market, as well as outside market relations, which contribute to the development of innovations and competitiveness of cluster members and the area of their activity. 2. objective, material and method the main aim of the article it to examine the possibilities of the use of tourist cluster in the area of health resorts taking into consideration the offer and the action. the article deals with cluster in galicia, which are a part of “medicine poland south east” as well as kuyavia and pomerania organisation of employees lewiatan, cluster “świętkorzyskie spas”, innovation cluster “for health – sudeten”. nowadays spas are considered as effectively working entrepreneurs who support country’s economy. furthermore, they boost local and regional development. one of the key factors ought to be the use of numerous health resources in order to develop innovative and comprehensive products of health and recreational tourism which should be fundamental as far as polish spa industry is concerned. it is worth mentioning that spa destinations contain far many advantages than other tourist centres. therefore, it is not necessary to build the product offer from the scratch. it is enough to develop it, to enrich and to extend it. market forces spa centres to improve their offer and to adjust it to the needs of clients and patients. contemporary spas are not only health resorts, but also the centres of recreation, tourism and culture. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 84 published by scholink inc. they also offer a wide range of attractions. innovative ideas introduced by these centres aim at increasing income, developing consumption of the customers and taking advantage over other competitors. by categorizing issues into strengths, weaknesses, opportunities, and threats, swot analysis is one of the top tools and techniques used in strategic planning. swot assists in the identification of environmental relationships as well as the development of suitable paths for countries, organizations, or other entities to follow. swot analysis is a useful way to prole the general environmental position of a new trend, technology, or a dynamic industry. by using swot analysis, it is possible to apply strategic thinking toward development of medical tourism market in poland. 3. results and discussion 3.1 the examples of spa clusters in poland galician spas and health resorts are an integral part of “medicine poland south east” cluster. it is the first attempt to create marketing group which aims at common promotion and joint actions taken in order to change their image and improve their operation. “medicine poland south east” cluster is the first and the most exclusive medicinal cluster in poland. it was established in 2007. widely developed medicinal subjects are accompanied by spas and enterprises dealing with medicine, telecommunications, and information technology and consulting. at present there are 45 members of business entities and over 20 entities cooperating from five south-eastern polish voivodeships. these include lesser poland voivodeship, silesian voivodeship, subcarpathian voivodeship, świętokrzyskie voivodeship and lublin voivodeship. the cluster is further supported by various institutions dealing with business as well as universities, municipalities and government entities. the “galician spas and health centres” group working within the cluster is an excellent example of creating a regional brand. this brand aims at development and promotion of different forms of tourism in spa and health regions. patients are offered not only medicinal treatments, but also different forms of physical activities. these include 3.000 km tourist routes, historical places, attractive monuments and historical places, nature monuments as well as other fascinating tourist attractions. the galician spas and health centres include: iwonicz inc. spa, rabka inc. spa, wysowa inc. spa, rymanów inc. spa, krynica-żegiestów inc. spa, kraków-swoszowice inc. spa. all of them are promoted by the slogan “galicia means health and tradition”. kuyavia and pomerania organisation of employers lewiatan. on the 1st of july 2013 medical tourism and the wellness cluster was created. the cluster acts on the basis of its own rules and agreement with lewiatan, the assigned leader of the cluster. the main objective of the medical tourism and wellness cluster is to promote health and wellness tourism in poland and abroad, as well as to create mutual connections between: medical companies, specialized suppliers and with other companies with related business branches. the cluster organizes conferences and courses on health and wellness, participate in national and international exhibitions and fairs and acquire external funds for project realization for the cluster www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 85 published by scholink inc. members and the cluster itself. the cluster also would like to involve economical and market analysis as well as market research and marketing services for the cluster members. it wants to build marketing and sales strategies in order to gain new patients both from poland and abroad. on december of 2013 cluster “świętokrzyskie spas” was established. more than 20 cluster members are entrepreneurs, research institutions, business support organizations, local governments, cultural institutions, foundations, entities engaged in the development and promotion of health-related tourism. cluster coordinator is the regional center for innovation and technology transfer. cluster’s mission is to build a platform for cooperation in the field of the broader health tourism, in particular: the promotion, implementation and dissemination at the local and regional level objectives. the aim of the cluster is to create a cooperation platform for its members to implement the common projects. the cluster focuses on transfer of knowledge and technology in the field of innovative health-related tourism in particular from the european union and the dissemination of good practices, to promote health-related tourism development based on local resources of raw materials, using innovative technologies. the cluster would like to promote activities for the development of tourism in the context of pro-health protection and development of cultural heritage. cluster “for health-sudeten” is a platform for cooperation of diversified business entities, organizations and universities, established in order to exchange and use of a common knowledge base and skills training. this collaboration is focused in the area of health services and medical spa, tourism and education. it contributes to enabling effective combination and use of the potential of people, businesses, universities, research units, business environment institutions and regional authorities. area of operation of the cluster is focused on creating services, preventive health care, promotion of healthy lifestyles and environmental protection, promotion and building a positive image of the region. the main determinants of the creation of innovative cluster initiative “for health-sudeten” is to increase health awareness in a society that is aging at the same time, a variety of diseases and increased incidence of so-called. diseases of civilization, increased interest in forms of wellness and health tourism and spa. other factors underpinning the development potential of the project is the involvement of entities that have the potential in the area of unique natural resources are located in a privileged geographical location and provide excellent conditions for the provision of services and a high standard of preventive services and leisure. 3.2 swot analysis of medical tourism market in poland swot analysis is an analytical model that considers and determines the external environmental issues (opportunities and threats) along with internal issues of the examined organisation (strengths and weaknesses), so it allocates the proper strategy on considered situations. to perform the swot analysis of medical tourism market in poland, information was gathered and relevant findings from the secondary data published in various research journals, articles, and websites and government reports. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 86 published by scholink inc. table 1. swot analysis of medical tourism market in poland strengths weaknesses • local concentration of enterprises • the cross-sectoral nature of enterprises declaring their readiness to participate in the initiative • rich natural resources and natural spas: healing waters, geothermal waters, varied terrain, specific bioclimatic conditions, landscape parks, forests, waters • rich cultural potential • diversified tourism resources-database accommodation, catering, network of trails tourist and thematic paths • the centuries-old tradition of providing spa services • high level of qualifications of staff and services medical • well-developed ecological and municipal infrastructure as well as a network of stores, post offices, banks, etc. • poor quality of tourist services in tourist accommodation and accommodation facilities • poor marketing of towns and products • poorly qualified hotel staff to handle demanding tourists and travellers • limited financial possibilities of municipalities and the local spa and tourist industry, hampering the development of investments • poor communication accessibility of spas • no vision of action and strategy. opportunities threats • the growing role of research and innovation in regional programs in the context of the implementation of the lisbon strategy • european, national and regional programs • the interest of enterprises in the sector in raising competitiveness through access to new types of services and cooperation with universities • attempts to undertake coordinated actions by self-government authorities in the field of entrepreneurship and innovation • development of business support institutions • geographical and specialization diversity of polish spas • tourist, cultural and sports base • lack of innovation policy in the region • insufficient availability of bank credit and loan and guarantee funds • insufficient tourist infrastructure • lack of a clearly defined government’s tourist and health policy (along with government-local government and public-private partnership) • too slow liquidation of environmental pollution • lack of funds for an effective tourism promotion policy at home and abroad • lack of clearly defined in policy health instruments and mechanisms for the functioning and development of health resorts, and in particular in the field of structural changes www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 87 published by scholink inc. •foreign investment • eu funds for the development of municipalities health resorts especially in the area infrastructure and staff improvement • the need and social understanding for health prophylaxis • increased interest in tourism health resort in europe and in poland as a factor in the development of local and regional economy • fashion for “clean air”, healthy, active rest and ecological food • revitalization of historic polish spa centers as an important element of national heritage. proprietary spa companies, investment and healthcare financing • lack of system support for spas similar to those existing in european union countries (italy, hungary, etc.). 4. conclusions the tourism market forces the spa centres to adjust to contemporary worldwide trends in health tourism. only the places that meet the customers’ demands and provide services at the highest quality will survive on the free market economy. the main tasks and actions connected with the development of health centres ought to include support for the spa development, tourism and sport infrastructure as well as establishing polish health tourism both on the local market as well as european union markets. moreover, it is also crucial to improve customer service, to provide a wide range of trainings and courses for staff employed in health centres and health communities. additionally, it is important to develop and support promotional activities (koniusz & węglarz, 2009). the members of cluster are frequent participants of different forms of professional trainings dealing with management in tourism and marketing. these trainings enable them to use the existing resources in order to become competitive on the tourist market and to meet the changing demands of customers. joint trainings and promotional programmes are one of the best way to use the resources and possibilities offered by tourist spas and health centres. the true success perspective, which is based on the highest quality of competition, brings together the science and educational markets, local communities. it is also one of the factors contributing to development of clusters. clusters ought to provide the highest achievements as far as dynamic, global economic development of the country. making a wide range of deals and business agreements enforces the development of polish spa centres and initiates such developments that will help to introduce innovative methods of management and investments’ financing. this kind of cooperation may turn to be the most attractive due to the easiness of forming cluster societies and possibility of establishing cooperation. the perspective of success based on the highest www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 88 published by scholink inc. quality of competition brings together the science and educational markets, entrepreneurs and local societies. additionally, the establishment of a new cluster enhances the cooperation between these entities. clusters are supposed to be the crucial factor influencing the achievement of high rates as far as reaching the top during the race towards a dynamic, global economic development of a region. some trends can be identified in the eu cluster policy. one of them is raising the quality of existing clusters and increasing the number of world clusters (world-class clusters). the european commission estimates that there are about 150 clusters in europe, which can be considered clusters of this type due to the size of employment, the number of entities and the area of specialization. one of the most important directions of the european commission activity is to improve the quality of cluster management and to streamline management processes in cluster organizations and to develop competences of managers managing clusters. no less important is the internationalization of small and medium enterprises through clusters. references botterill, d., pennings, g., & mainil, t. (eds.). (2013). medical tourism and trans-national health care. palgrave macmillan, basingstoke. https://doi.org/10.1057/9781137338495 european trend chart on innovation. thematic report cluster policies, covering period up to march 2003. (n.d.). retrieved march 12, 2018, from http://www.cnel.gov.pt/document/cluster_policiesreport.pdf hermaniuk, j., & kurpa, j. (2010). współczesne trendy funkcjonowania uzdrowisk—klastering. rzeszów, poland. innovation cluster “for health-sudeten”. (n.d.). retrieved march 12, 2018, from http://www.dlazdrowia-sudety.pl jedlińska, m. (2009). współpraca w zakresie tworzenia sieciowych produktów turystycznych w regionie. in a. rapacz (ed.), gospodarka turystyczna w regionie. przedsiębiorstwo. samorząd. współpraca. ae, wrocław, poland. koniusz, m., & węglarz, r. (2009). kierunki zmian w polskich uzdrowiskach. in m. boruszczak (ed.), turystyka uzdrowiskowa. stan i perspektywy. wyższa szkoła turystyki i hotelarstwa, gdańsk, poland. kuzon, j., & muszynska-kurnik, m. (2014). turystyka zdrowotna a współpraca uzdrowisk. in h. r. zięba, & p. lizis (eds.), bilsko człowieka (pp. 222-232). kraków. levary, r. r. (2011). multiple-criteria approach to ranking medical tourism destinations. thunderbird international business review, 53(4), 529-537. https://doi.org/10.1002/tie.20430 lubowiecki-vikuk, a. p., & rab-przybyłowicz, j. (2015). wybrane aspekty funkcjonowania rynku turystykimedycznej w polsce. folia turistica, 34, 85-107. medical tourism and wellness cluster. (n.d.). retrieved march 12, 2018, from http://kpoplewiatan.pl www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 89 published by scholink inc. porter, m. e. (1998). clusters and the new economics of competition. boston: harvard business review, 76(6), 77-90. porter, m. e., & kramer, m. (2011). creating shared value, harvard business review, 89(1/2), 62-77. rab-przybyłowicz, j., & lubowiecki-vikuk, a. p. (2014). komunikacja marketingowa na polskim rynku turystyki medycznej. handel wewnętrz-ny, 3(350), 113-127. “swietokrzyskie spa” cluster. (n.d.). retrieved march 12, 2018, from http://www.it.kielce.pl/o-nas/aktualnosci-scitt/item/392-zawiazanie-klastra-uzdrowiska-swietokrz yskie.html staszewska, j., szromek, a., & hadzik, a. (2009). klaster jako perspektywiczna forma powiązań sieciowych w turystyce uzdrowiskowej. in m. boruszczak (ed.), turystyka uzdrowiskowa. stan i perspektywy. wyższa szkoła turystyki i hotelarstwa, gdańsk. youngman, i. (2014). how the medical tourism industry has changed. international medical travel journal. retrieved june 10, 2014, from http://www.imtj.com/ar-ticles/2014/how-the-medical-tourism-industry-has-changed-40178 microsoft word elp-v1n1-p58 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 1, no. 1, 2018 www.scholink.org/ojs/index.php/elp 58 original paper trade value chains effect of an integrated zone on economic growth and food security almame abdoulganiour tinta1* 1 université ouaga 2, burkina faso * almame abdoulganiour tinta, université ouaga 2, burkina faso received: march 7, 2018 accepted: march 20, 2018 online published: april 19, 2018 doi:10.22158/elp.v1n1p58 url: http://dx.doi.org/10.22158/elp.v1n1p58 abstract this study analyzes the effect of trade value chains in the context of regional integration to speed economic growth and food security. this study examines how such policies in relation with regional integration and trade can improve food security. the study estimates two models with panel fixed effects. the findings support that regional integration needs to strengthen and better promoted in order to stimulate the potential of each country to move from discontinuous to sustained growth. international trade is not the better solution for ecowas countries to boost economic growth, but intra-regional trade needs to progressively improve the competitiveness of the economy using the scale effect of global value chains. keywords food security, economic growth, trade openness, regional integration, value chains 1. introduction food security and economic growth constitute the two challenges of the contemporary economy particularly in developing countries. despite the improvement of the performance of african countries these recent years, the economic growth rate is still low. in fact, the report of africa growth initiative (2016) illustrates that low economic growth rate, weak industrial development and growing poverty characterize african countries due to poor human development, growing population living in urban slums with no access to elementary services, raise of corruption and disadvantage in global trade. in the case of ecowas (note 1) countries, the gdp per capita increased very slowly ($954 in 2010, $1,051 in 2011, $1,057 in 2012, and $1,137 in 2014) but the economic growth gap among africa and other regions is not new and started to be structural between 1970 and 2000. while all other developing countries and the world experienced remarkable progress in reducing extreme poverty, in african www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 59 published by scholink inc. countries the percentage of the population under poverty increased. this lack of involvement was the starting point of the fundamental contrast between africa and the rest of the world. also, ndulu and o’connell (2006a) note that this divergence augmented sharply when the continent missed out on the economic structural transformation that took place in the developing world, making poverty in africa mainly a growth challenge. the economic growth rate in african countries has always been too low to initiate the development process. subsequently, maddison (2007) identifies the erratic growth performance of african countries as the most important reason behind its lagging position in eradicating poverty. several approaches based on country case studies followed each other since the 1990s (world bank, 2005; berthelemy & soderling, 2002; azam et al., 2002) to investigate growth pattern and identify the constraints to implement sustained growth. this period, marked by the design and the implementation of various development program schemes and macroeconomic stability program failed to tackle poverty and generate a sustained growth. a summary of the large number of study on africa’s slow growth (glaeser et al., 2004; calderon, 2009; collier, 2007; ndulu et al., 2007; chandra & kolavalli, 2006; comin & mestieri, 2013) reaches the same conclusion that some factors (long distances from markets, geographical fragmentation, tropical climates and soils, small markets, demographic pressure, natural resource curse, aid, external economic shocks vulnerability, weak institutional capacity, low financial sector and information technology, risks and uncertainty of policies and political instability) are main dangers in achieving and sustaining growth. however, all these key factors influencing growth and channels through which these run, can be addressed by regionalism accompanied by transparency, innovation, sound policies and effective leadership. in fact, regional integration through the potential of community trade offers enormous opportunities to boost economic growth. regional integration by enlarging the size of the market stimulates the efficient allocation of resources, increases human capital and mobility of labor, develops agricultural research and development related activities, diversifies production and improves manufacturing sector, increases domestic saving and investment, improves infrastructure and reduce the need of foreign debt. thus, regional integration directly affects economic growth by raising the competitiveness and accelerating industrialization, and by creating better employment opportunities which lead to poverty reduction in the region. however african economies are not strongly advanced in the insertion of global value chains which represent a crucial asset. therefore, linking regional integration to global value chains can expand trade, create comparative advantage in world trade and strengthen partnerships opening the way to a faster economic growth rate. in the same order, regional integration through its spill-over effects on agriculture, food prices and macroeconomic policies affects food security. fao (2003) reports that “food security will be affected by international trade in general and agricultural trade in particular”. based on the ability of intra-regional trade to foster economic growth and increase employment prospects and the income-earning capacities of the poor, it will enhance access to food. regional integration offers a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 60 published by scholink inc. space for “learning to compete” and for “self-discovery” to firms and organizes them for the greater rigor and competition in global value chains. global value chains being in infant stage in most african countries, what can be the potential of a regional integration oriented on regional trade value chains promotion on food security? several indicators assessing food security have been conceived, but per capita daily dietary energy supply is mostly used to measure national food security. consistent with the literature, per capita dietary energy supply is used in this study as food security indicator. this study analyzes the effect of trade value chains in the case of regional integration in accelerating economic growth and achieving food security with a focus on ecowas. using data from world development indicator, oecd tiva, unctad and fao, two panel model are estimated and three particular instruments are investigated in ecowas integration such as each country international trade openness, each country intra-regional trade openness and the community insertion in value chains. the rest of the paper is organized as follows. section 2 presents the methods. section 3 shows the empirical results. section 4 discusses the results, interpretations and evidence based on policy recommendation and section 5 concludes. 2. methods 2.1 literature review literature in international trade provides a lot of evidence on how trade liberalization positively influences the performance of economies which have liberalized trade to the world economy (herath, 2010; leamer, 1988; dollar, 1992; sachs & warner, 1995). trade liberalization is assumed to be a driving force of economic development in a country. svatoš and smutka (2010) show that international trade has become a vital instrument in building external economic links among world economies. grossman and helpman (1992) show that openness to international trade increases domestic imports of goods and services which include new technologies. through learning by doing and the transfer of technology, the most open economies are growing at a faster pace than most protectionist. however, the authors add that these gains depend on several factors, including the initial situation. the latter determines the nature of the specialization of the country in the long run and therefore its growth rate. the openness of a small country may lead her to specialize in a low-growth sector, contributing instead to leave the country in underdevelopment. in this case, the country should adopt protectionist policies during the early stages of its development, then opt for appropriate opening policies. according to levine and renelt (1991), the causal relationship between openness and growth is through investment. a country liberalizing its trade will attract foreign investment flows. however, they may cause a decline in domestic investment due to stronger international competition, and the net effect then remains ambiguous. grossman and helpman (1992) also argue that a country protecting its economy can stimulate growth, but only if government intervention encourages domestic investment according to the comparative advantages of the country. dollar (1992), barro and sala-i-martin (1995), sachs and warner (1995), edwards (1998) and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 61 published by scholink inc. greenaway et al. (1998), using cross-sectional regressions, found that trade distortions due to the intervention of the state led to low growth rates. frankel and romer (1999) use a method of instrumental variables including geographical features, and confirm that international trade has a significant impact on growth. harrison (1996) reaches similar conclusions using a variety of indicators of openness. by using different methods (cross-section fixed effects, five-year average, first differences), the results suggest a positive relationship between openness and growth. however, not all openness measures were significant, even though they were mostly a positive sign. rodriguez and rodrik (2000) criticize trade openness indicators. they find that the positive correlation between openness and growth was not robust and the methodology used by other authors lacked crucial control variables to have a decisive effect on growth. noguer and siscart (2005) leading a study on a sample of 98 countries, find a positive relationship between international trade and economic growth which improves the income segments of the population who engage in production activities. hubert and satoshi (2016) analyze east asian trade and focus on global value chains effects on industrial networks. using graph theory and input-output data to measure value-added, they show that trade value chains foster regional integration so that the inter-industry linkage moved from a simple hub-and-spokes cluster to a more complex structure with the rise of china and the specialization of several countries as secondary pivots. the intensification of value chains reduced variance among country tariffs duties and lowered transaction costs which promote export-led growth accompanied by industrialization based on domestic markets. it also improved logistics services and cross-border administrative procedures, lessened anti-export bias and enhanced the competitiveness of national suppliers. their results prove the importance of global value chains in shaping industrial development based on trade. baldwin (2008, 2011b) examines the relationship between regionalism, trade, and industrialization in east asia, and why building a supply chain is crucial. he demonstrates that compared to the past where successful industrial development (south korea and taiwan) took decades and involved a domestic supply chain, today intra-regional trade has the potential to bring countries in industrialization in only a few years by joining supply chains. if numerous studies can be find on regionalism, integration and their spill-over effect on economic growth, only a few empirical works are done on regionalism and food security. most of the studies done are limited to statistical analysis (fao, 1996; sen, 1981; maxwell, 2001; fao, 2009; kakwani & son, 2016). the links between regional trade, international trade, and food security are complex and multiple. the debate that whether trade liberalization improves food security is hypothetically ambiguous. based on studies, the nature and magnitude of the food security effect of liberalization depends on various factors such as the extent of adaptability of the poor to changing economic conditions; the degree of exposure of the country to food imports; the presence of favorable initial conditions and accompanying measures; and the time horizon considered. dorosh (2004) argued that trade liberalization contributed to enhance national food security of bangladesh by increasing the level of available foods for domestic consumption during the production www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 62 published by scholink inc. shortfalls and therefore stabilizing market prices benefitting poor consumers. chen and ducan (2008) report that an increase in real gdp resulting from trade in india improves the food security status of the poor. herath et al. (2014) capture the effects of trade liberalization on food security in south east asia. their findings support that discriminatory trade liberalization policies have positively influenced food security. they found that after the formation of the association of south east asian nations’ free trade agreement (afta), the level of per-capita daily dietary energy supply of the member countries has been increased moderately over time. thomas and morrison (2006) show that the food security outcomes of liberalization varied by country and the food security indicator used. bezuneh and yiheyis (2014) investigate whether trade liberalization has improved food security of developing countries. by applying multiple regression analysis on panel data, they found that trade liberalization exerted a negative short-run impact on food availability but the overall results fail to support the view that from the medium to long run, the effect of trade liberalization on food availability is favorable. their findings provide evidence on the ambiguity of the impact of trade liberalization on food security. grant and lambert (2005), seck et al. (2010), korinek and melatos (2009), nin-pratt et al. (2008) show that regional integration has not led to substantial allocation effects and the expected decrease in food prices caused by efficiency gains. hence, the direct impact of integration on food security seems to have been small. taking into account that allocation effects have been small, accumulation effects have also been limited. the evidence on the mixed and inconclusive relationship between trade liberalization and food security is confirmed by mccorriston et al. (2013). maertens and swinnen (2015) analyze the contribution of trade value chain in developing regions through the significant increase in foreign investment. the results show that the demand for high-value products raises rural incomes and creates opportunities for developing countries to realize economic growth through expanding and diversifying their agricultural exports. jaud and kukenova (2011) find similar results which are explained by the potential of labor-intensive production systems implemented. xiang et al. (2012) simulate the general equilibrium effects of the trade growth on household welfare. their findings confirm the benefit of the value chain. beghin et al. (2015) and maertens et al. (2011) explain that trade value chains, directly and indirectly, affect food security by impacting smallholder producers. smallholders, when included in value chains through contract-farming schemes across sectors and countries, can increase their income, raise their production and improve their competitiveness and in the long term better insert themselves in the global market. along with this process of insertion of smallholders in value chains, some authors (negash & swinnen, 2013; dries & swinnen, 2010; minten et al., 2009) show that the improved access to inputs leads to a rise in technology transfer. this effect generates significant productivity increases both for the product itself and for other production activities at the farm level and has essential spillovers on household food security. in the same perspective, mano et al. (2011) illustrate that value chains enhance labor market by creating substantial employment and diversifying off-farm employment opportunities for women. the implications of gender and rural poverty are the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 63 published by scholink inc. empowerment of women and more access to income which allow more spending on food. 2.2 methodology the theoretical frameworks used to assess the effect of integration and international trade on growth is drawn to the endogenous growth theory. the endogenous growth theory (walz, 1997) by presuming increasing returns to the growth of capital considers long-term or permanent effects of regional integration. the long-term impact depends on the insertion of human capital which will maintain investment and disseminate knowledge. in turn, economic growth can accelerate due to the integration agreements extending technology on a large scale. the theory also explains how international trade fosters economic growth through human capital seeing as the engine of growth (lucas, 1988). based on bezuneh and yiheyis (2014) and herath et al. (2014), panel data with fixed effects is used. however, hausman test is required to check if fixed or random effects are appropriate according the data used. the dependent variable is represented by real gdp per capita. the keys interest variables are trade openness which measures international trade, the intra-community export which measures intra-regional trade and per capita domestic value-added which measures global value chains performance. per capita domestic value-added captures the gains associated with exporting which accrue to local labor and capital. domestic value added is the share of exported products that are not finished product and will be imported from other countries to be processed before being exported. according to literature (andersen & babulal, 2008; pam, 2017; yaya, 2017), some control variables which are significant in determining economic growth are included such as gross capital formation, foreign direct investment, and inflation rate. gross capital formation and foreign direct investment measure the level of investment in the country. both are used to dissociate the mitigating effect of investment in economic growth discussed in literature review. gross capital formation appreciates domestic investment which is connected to the industrial development of the country and therefore stimulate growth. in contrast, foreign direct investment links to technology transfer, transport and infrastructure, the level of the country attractiveness and also has a crucial impact on growth. inflation measured by consumer prices index indicates the economic stability of the country. the reduced model takes the following form: log ( (i) where is the real gdp per capita, the stochastic error term, the country-specific effect, the set of explanatory variables such as trade openness, intra-community export trade, per capita domestic value-added, inflation as a proxy of monetary policy, gross capital formation, and foreign direct investment. based on literature (mccorriston et al., 2013; thomas & morrison, 2006; ifpri, 2006; herath et al., 2014; darshini, 2012), direct and indirect channels are identified through which regional integration or trade influences food security. food security can be affected by growth in national income and employment. it is widely accepted that economic growth is a required stage for sustainability of poverty reduction and food security, even if in the short-run, growth may not be fast enough to achieve www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 64 published by scholink inc. food security. economic growth raises incomes and the ability of the poor to gain access to food and health and can lead to improved food security. economic growth also develops infrastructures, services, and opportunities for a raise in the overall level of income. secondly, food security is associated with regional integration’s capability to rise global supply of the production (through a mixture of imports and domestic production) and to stabilize variations in food prices. where the local charge of food was expensive compared to the rest of world due to trade barriers or tariffs, importing country will reduce domestic food at the same cost to increase the level of food consumed. however, the decrease in national commodity prices and cheaper imports would negatively affect domestic production and thereby the poor food security status whose key source of income and employment is food production. the third channel is through improved foreign exchange earnings. with the improvement of exports market access via multilateral liberalization and a more competitive production process based on comparative advantage, the export sector develops. the subsequent rise in foreign exchange gains improve the potential of the economy to expand domestic production and finance food imports. the fourth channel is reducing variability and uncertainty of food provision. opening up the economy lessens the unpredictability of staple foods supply by helping offset undesirable domestic production shocks. finally, market prices affect food accessibility and represent the purchasing power in the economy. the effect on the purchasing power is correlated to the magnitude of money supply which impacts local prices of goods and services and can also import inflation. per capita dietary energy supply is adopted to measure the food availability which approximates food security. the keys interest variables are trade openness, intra-community export trade and backward integration which assesses the extent to which a country is integrated and correspond to the country’s place in the value chain. backward integration is the share of the imported value added from foreign suppliers upstream that will be found in the country’s exports. increasing backward participation is associated with more competitive export, higher per capita domestic value-added in exports and $growing income. a higher share of backward participation is also linked to access of competitive inputs and a more-sophisticated export bundle and greater diversification over time. including the direct and indirect channels through which trade influences food security (mccorriston et al., 2013; thomas & morrison, 2006; ifpri, 2006; herath et al., 2014; darshini, 2012), we introduce a set of variables such as real gdp per capita to measure growth, average value of food production to assess the overall supply of food, reserves to measure foreign exchange effect, political instability to assess uncertainty effect, domestic credit provided by financial institution to measure market price and purchasing power effect. even though these variables are the most important used, agricultural land irrigated and population growth are added which influence african economies and their food security level. (ii) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 65 published by scholink inc. where is per capita dietary energy supply as a proxy of food security, is the country-specific effect, is the stochastic error term, is the set of explanatory variables such as trade openness, intra-community export trade, backward integration, foreign direct investment, gross capital formation, real gdp per capita in logarithm, average value of food production in logarithm as a proxy of food variability, foreign reserves in logarithm, political instability, domestic credit provided by the financial institution, agricultural land irrigated in percentage, and population growth. the data cover ecowas countries (mali, benin, sierra leone, ivory coast, burkina faso, guinea-bissau, cape verde, ghana, togo, niger, guinea, liberia, gambia, nigeria, and senegal) from 1995 to 2012. real gdp per capita, trade openness, inflation and gross capital formation come from the world development indicator. intra-community trade and foreign investment come from unctad database. per capita domestic value added is provided by oecd tiva. data on political instability, agricultural land, per capita dietary energy supply and the value of food production (constant 1$ per person) come from fao. foreign reserves, domestic credit and population growth are provided by world development indicator. backward integration is computed with oecd tiva database. 3. results the result of the hausman test (table 1) after the estimation with fixed and random effects for model (i) and (ii) rejects the null hypothesis that there is a no difference between the coefficients obtained by fixed effects and random effects. the correct specification for both model (i) and (ii) is the fixed effects. table 1. specification test hausman test ho: difference in coefficients not systematic model (i) model (ii) dependent variables real gdp per capita (log) per capita dietary energy supply (log) chi2 9.43*** 117.21*** prob>chi2 0.0027 0.0000 number of observations 270 270 note: *** significant at 1%, ** significant at 5%, and * significant at 10%. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 66 published by scholink inc. the estimation results for model (i) and model (ii) are summarized in table 2. table 2. econometric results variables model (i) model (ii) real gdp per capita (log) per capita dietary energy supply (log) coefficient prob coefficient prob trade openness -0.08306 (0.074609) 0.2668 0.036203** (0.017612) 0.0410 intra-community trade 2.63028** (1.328243) 0.0489 0.37977 (0.334490) 0.2574 per capita domestic value added 1.386192*** (0.200369) 0.0000 backward 0.356052*** (0.126743) 0.0054 foreign direct investment inflows 0.292824*** (0.094501) 0.0022 0.006791 (0.021624) 0.7538 gross capital formation 0.543962*** (0.180456) 0.0029 0.140021*** (0.042331) 0.0011 inflation -0.3617*** (0.132363) 0.0068 real gdp per capita (log) 0.041838*** (0.014330) 0.0039 average value of food production (log) 0.244314*** (0.023328) 0.0000 foreign reserves (log) 0.024421*** (0.004966) 0.0000 domestic credits 0.03633** (0.014296) 0.0117 agricultural land 3.180132*** (0.511387) 0.0000 population growth 0.874901** (0.362402) 0.0166 political instability -0.00444** (0.002008) 0.0282 constant 5.908543*** 0.00000 3.052991*** 0.00000 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 67 published by scholink inc. (0.043177) (0.114812) number of observations 270 270 f-test 222.9256 0.00000 65.3645 0.00000 r-squared 0.94807 0.878502 note. *** significant at 1%, ** significant at 5%, * significant at 10%, standard errors in parentheses. 4. discussion the coefficients for model (i) are all significant except trade openness, and also have the expected sign according to theory. in the case of ecowas, trade openness which assesses the opening degree of each country to international trade does not affect economic growth. this result seems to be paradoxical but tends to support the viewpoint of some researchers (noguer & siscart, 2005; rodriguez & rodrik, 2000) who conclude after studies done in other developing countries that the relationship between openness and growth is inconclusive. moreover, grossman and helpman (1992) and levine and renelt (1991) already discussed that the effect of trade openness on economic growth remains ambiguous. in ecowas, even if trade openness affects on growth, this effect is trivial which explains that in our estimation the coefficient is insignificant. another explanation of this result in the specific case of ecowas is that countries trade more with world market than with regional market, and ecowas imports are not oriented to capital and industrial equipment which pulls economic growth. trading with developed countries, the openness of ecowas countries which are small countries leads them to specialize in a low-growth sector, mainly the exports of primary products. the consequence is that the openness of each country to international trade is characterized by more imports than exports. international trade theory demonstrates that trade among countries with different levels of development does not benefit the poorest countries. for international trade to push countries, exchanges must be done among similar countries. also, opening to international trade is not a necessary and sufficient condition to increase economic growth, other factors such as infrastructure, investment, comparative advantages, industrial development, protectionist policies, and technology progress need to be effective. however, in ecowas countries those factors are missing. in contrast, intra-community trade and per capita domestic value-added positively influence economic growth. even if ecowas intra-trade is low, it affects the economic growth of each country. this result shows that intra-regional trade is crucial for economic growth. the more regional exchange increases, the more per capita income rises, and the more economic growth can be boosted. this finding supports that regional integration needs to strengthen and better promoted to stimulate the potential of each country to move from discontinuous growth to sustained growth. in fact, intra-community trade within ecowas is estimated only at 9 percent in 2015. it is clear that if trade agreements are put in place to motivate countries to trade with each other, the impact will be different for producers and households in term of improving income, raise of investment and increase of consumption. also, if the intra-regional trade is focused on the promotion of goods and services www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 68 published by scholink inc. resulting from the consolidation of value chains among the different countries, economic growth can be exponential. an increase domestic value added is associated with high volume of trade which will raise the competitiveness and diversification of exports, enhancing each country place in global value chains. therefore, comparing the results, intra-regional exchange and per capita domestic value-added boost more economic growth than international trade (trade openness). international trade is not a solution for ecowas to boost economic growth but regional trade linked to the creation of value chains among each country can be the engine of the growth. an examination of other control variables shows that they significantly contribute to economic growth as indicated in the literature. foreign direct investment has a positive and significant effect on gdp. klasra (2011) finds the similar result in pakistan. ercakar (2011) shows that in african economies, openness cannot achieve economic growth without foreign direct investment. however, the gross capital formation is even more important than foreign investment for countries. it affects positively more economic growth, showing the crucial role of domestic investment in the development process. this effect of the domestic investment on economic growth is also highlighted by pam (2017) in the case of sub-saharan africa. positive changes in inflation are associated with negative changes in economic growth, thereby suggesting that price volatility reduces growth because of the unpredictability of the macroeconomic environment and the challenge for the individual to have a rational expectation. this finding is in line with kremer et al. (2009), jafari et al. (2012) and pam (2017) results. in model (ii), all explanatory variables except foreign direct investment and intra-community trade significantly influence food security. international trade positively affects per capita dietary energy supply while the intra-regional is not significant. this finding has two main implications: (i) even if trade openness does not touch growth in ecowas countries, it significantly raises food security status because ecowas trade with developed and emerging countries is focused on imports of consumer goods. therefore, an increase in trade openness improves food security. trade between ecowas and the rest of the world is characterized by imports of primary products mainly agricultural goods and services, raw materials, imports of foods and foodstuffs coming from asian countries such as thailand, china, vietnam, south korea, malaysia and latin america (unctad, 2016). by not importing more capital and industrial equipment, the degree of openness is unusual to draw economic growth; (ii) intra-regional trade, which significantly improves economic growth, does not influences per capita dietary energy supply due to the weakness of trade among ecowas countries. the findings are consistent with ivica (2016) results which advocate that international trade improves food security. nevertheless, backward integration has a positive effect on food security thereby suggesting that participation in the value chain has spillover effects on countries food security. in fact, the strengthening of trade value chains among ecowas countries can organize the production and manufacturing of goods in chains and concentrate the retail sector, the demand for higher quality products will increase followed by the raising of prices in international food markets. expansion and diversification of agricultural products generate opportunities for people in the region and raise rural www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 69 published by scholink inc. incomes which will allow rural and urban households to access adequate and nutritious food. consequently, a joint effect of integration and value chains boosts food security. similarly, positive changes in economic growth and domestic investment translate into increase in per capita dietary energy supply while a rising of political instability in ecowas is seen to have a negative impact on food security. economic growth improves food security, showing that a rise of household income directly targets the consumption of foods. this finding in line with timmer (2005) confirms that food security in ecowas is mainly a growth challenge contrary to others developing countries where economic growth alone does not solve the problem of food security. in ecowas countries, economic growth is essential for food security, and strategies at regional and national level need to be investigated. the promotion of trade value chains may be the bottom line to design these strategies because of the effectiveness of per capita domestic value added on sustaining economic growth. value chains need to be implemented across countries and sectors, and the development program of ecowas must only target this goal. as expected, the incidence of political instability negatively affects food security. political instability creates an unfavorable condition on food security through the decrease of investment and its impact on food supply from domestic production. some researchers find similar results for asean (herath et al., 2014) and developing countries (bezuneh & yiheyis, 2014). growth in food production is associated with an increase in national food security. an enabling environment needs to be created by ecowas countries to encourage producers by increasing domestic consumption, improving the areas of farm household, making them able to cope with risk, uncertainty and sources of technical change, and raise industrial development to make food cheaper. also, some measures must be taken by governments to improve market efficiency such as communications, transportation and storage facilities, legal codes to enforce contracts, credit availability to finance short-run inventories and processing operations, a market information system to keep all market participants from farmers to consumers fairly and accurately informed about market trends. increase in domestic credits, population growth, foreign reserves and agricultural irrigated land are associated with rise in per capita dietary energy supply. domestic credits increase the consumer purchasing power and allow to access various and qualities commodities (baldwin, 2011b). national food security can be improved if countries allocate more domestic credits for the segment of the population who needs it. it is well established that credits in most developing countries go directly into consumption and are used as an asset to smooth people’s income (ivica, 2016). furthermore, credits act on food production and prices which are linked to food security. the amount of foreign reserves in ecowas contributes to food security. foreign reserves enhance the ability of food importation of countries and are a channel to buy the capital machinery to accelerate production to achieve self-sufficiency. also, the development of the industrial sector is mainly correlated to the earning of foreign exchange and the ability of people to buy food staples. the percentage of land irrigated significantly contribute to food security through its positive impact on domestic food production. the more households have access to land for growing crops the more food production and availability www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 70 published by scholink inc. increase. an extension of agricultural land reduces prices and diversifies different cropping patterns that provide nutrient diversity and more stability of output. contrary to the findings of studies (bezuneh & yiheyis, 2014) obtained for some region where population growth undermines food production, the results show that for ecowas countries, population growth affects positively per capita dietary energy supply. these results are explained by the fact that in african countries, most of the labor force is assigned to the agricultural sector. this sector employs more than fifty percent of the workforce. therefore, a growing population raises food production, enlarges the variety of goods and improves the competitiveness of domestic market (xiang et al., 2012). the final result is an increase of food security due to more availability of food. however, stable population growth is better than rapid population growth which constitutes a danger. 5. conclusion international trade of agricultural products appeared very early as an enrichment factor of nations. through the development of exports, the precursors have demonstrated the strength of international trade to drive the economic growth of a country. by the international division of labor, international trade relies on exchange liberalization. the promise of liberalization is that by creating incentives for producers from different states to specialize in the products or services in which they have a comparative advantage, it will benefit all the trading partners since it will lead to efficiency gains within each country and to an overall increase of world production. therefore, comparative advantage suggests that economic growth and poverty alleviation may result. however, international trade for african countries has not brought the expected results. this study focuses on ecowas and attempts to respond to the inconsistency of the economic policies in african countries that turn away from the regional integration for the benefit of foreign markets. three particular strategies are investigated in ecowas integration (such as each country international trade openness, each country intra-regional trade openness and insertion to value chains) to identify the best way for economic development in term of economic growth and food security raising. two models are estimated with fixed effects over the period 1995-2012. the results show that the relationship between openness and growth is not robust, while intra-community trade and per capita domestic value-added appear to influence economic growth. this finding supports that regional integration needs to strengthen and better promoted to stimulate the potential of each country to move from discontinuous to sustained growth. international trade is not a solution for ecowas to boost economic growth but regional trade linked to the creation of value chains among each country can be the engine of the growth. countries should move more to regional integration than international trade. furthermore, international trade positively affects per capita dietary energy supply while intra-regional trade is not robust. this irrelevance impact of regional trade on food security can be justified by the weakness of exchange among ecowas countries. nevertheless, backward integration has a positive www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 71 published by scholink inc. effect on food security, thereby suggesting that participating in the value chain has spillover effects on countries food security. a joint effect of intra-regional trade and value chains trade can boost food security. this strategy optimizes economic growth and food security. references africa growth initiative. 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(1995). economic reform of global integration. brookings papers on economic activities, 1, 1-118. https://doi.org/10.2307/2534573 seck, a., lassana, c., kossi, m., & jonathan, h. (2010). how important are non-tariff barriers to agricultural trade within ecowas? sen, a. (1981). ingredients of famine analysis: availability and entitlements. the quarterly journal of economics, 93(3), 433-464. https://doi.org/10.2307/1882681 svatoš, m., & smutka, l. (2010). development of agricultural foreign trade in the countries of central europe. agricultural economics-czech, 56, 163-175. https://doi.org/10.17221/22/2010-agricecon www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 75 published by scholink inc. thomas, h., & morrison, j. (2006). trade related reforms and food security: a synthesis of case study findings. in h. thomas (ed.), trade reforms and food security (pp. 1-116). rome: fao. timmer, p. (2005). food security and economic growth: an asian perspective. asia pacific economic literature, 19, 1-17. https://doi.org/10.1111/j.1467-8411.2005.00155.x united nations conference on trade and development. (2016). key statistics and trends in international trade. in division on international trade in goods and services, and commodities. walz, u. (1997). dynamic effects of economic integration: a survey. open economies review, 8(3), 309-326. https://doi.org/10.1023/a:1008298900468 world bank. (2005). making finance work for africa. in world bank unpublished manuscript. washington, dc. xiang, t., huang, j., kancs, d., rozelle, s., & swinnen, j. (2012). food standards and welfare: general equilibrium effects. journal of agricultural economics, 63(2), 223-244. https://doi.org/10.1111/j.1477-9552.2012.00334.x yaya, k. (2017). the impact of trade openness on economic growth: the case of cote d’ivoire. cogent economics & finance, 5, 1332820. note note 1. the economic community of west african states (ecowas) comprises benin, burkina faso, cape verde, ivory coast, gambia, ghana, guinea, guinea-bissau, liberia, mali, niger, nigeria, sierra leone, senegal and togo. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 81 original paper on the definition of the behavior of replacing qr codes xie jiao 1 1 school of marine law and humanities, dalian ocean university, dalian, liaoning, china received: june 20, 2025 accepted: june 30, 2025 online published: july 2, 2025 doi:10.22158/elp.v8n2p81 url: http://dx.doi.org/10.22158/elp.v8n2p81 abstract in recent years, some criminals have obtained others’ property by replacing qr codes, which has sparked fierce debates on the nature of such acts. the controversy over defining the nature of these property-related cases mainly revolves around fraud and theft. existing theories primarily include the general fraud theory, triangular fraud theory, new triangular fraud theory, indirect principal theory of theft, and ordinary theft theory. during the crime, the perpetrator conceals their existence, and neither customers nor merchants have direct contact with the perpetrator, making it impossible to generate disposal of the perpetrator. therefore, the argument that replacing qr codes for property constitutes fraud lacks persuasiveness. in addition, customers scanning the wrong qr code to repay debts to merchants is not the direct act of theft by the perpetrator, and the perpetrator does not dominate customers. thus, the view that the perpetrator is an indirect principal of theft cannot be established. however, it is precisely the perpetrator’s act of replacing the merchant’s qr code that replaces the merchant’s identity as a creditor, secretly intercepts the creditor’s rights and interests transferred by customers to the merchant, violates the wishes of both customers and merchants, and meets the constitutive requirements of theft. therefore, it is more appropriate to characterize the act of replacing qr codes as theft. key words act of replacing qr codes, fraud crime, theft crime 1. theoretical controversies on the behavior of replacing qr codes 1.1 disputes over qualification in 2018, li moumou repeatedly replaced qr codes, and the public prosecution organ instituted a public prosecution on the charge of theft. however, the first-instance court held that it constituted fraud. finally, the public prosecution organ appealed against the improper first-instance judgment, and the second-instance court also found it constituted fraud and upheld the original judgment. in 2019, the court found shi mou, who also replaced qr codes, guilty of theft. it can be seen that regarding how to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 82 published by scholink inc. define the nature of the act of replacing qr codes, there are different opinions between procuratorial organs and judicial organs, as well as among judicial organs. perpetrators all obtain others’ property by replacing qr codes, with the same nature of behavior, but the judgment results differ. the biggest controversy is whether replacing qr codes for property constitutes fraud or theft (yu, h., 2022). the identification standards for theft and fraud are different. compared with traditional property crimes, whether the perpetrator’s act of obtaining property violates the victim’s true will, and whether the victim has a cognitive deviation, thus generating the intention and act of disposing of property, are relatively easy to distinguish. however, the act of replacing qr codes under this new criminal method blurs the distinction between fraud and theft, making the nature of the case difficult to define. before a unified definition standard is formed in china regarding the nature of this act, the situation of “different judgments for the same case” exists, which is not conducive to achieving judicial justice. accurately determining the nature of acts in new property crime methods can not only precisely combat criminal acts but also strengthen victims’ relief, thereby maintaining the authority of national law, ensuring fairness and justice, and increasing judicial credibility (you, b. x., 2022, pp. 159-161). among them, within the theory of fraud, it can be divided into the general fraud theory and the triangular fraud theory. dr. zhang qingli supports the general fraud theory, believing that the perpetrator uses the method of replacing the merchant’s qr code to deceive customers into thinking that the replaced qr code is the merchant’s, thus disposing of their property. since customers are aware of their act of disposing of property, they have the intention to dispose (mei, s. y., 2021). in this case, the victim is harmed, and the perpetrator obtains property, thus constituting fraud. scholar ruan qilin states in “the qualification of qr code replacement cases as fraud” that if the person who is deceived and delivers the property is not the same as the person who suffers the loss, it does not affect the establishment of fraud, that is, the nature of fraud is not affected by the deceived person disposing of their own property (ruan, q. l., 2018, pp. 3-7). triangular fraud refers to the situation where the deceived person disposes of property due to misunderstanding, causing the victim to suffer losses, and the deceived person is not the same as the victim. the perpetrator secretly replaces the merchant's qr code with their own, and customers lack the ability to distinguish, so they dispose of property based on cognitive defects. while obtaining goods, merchants do not receive equivalent returns, making merchants the real victims. therefore, this act should constitute triangular fraud. scholar zhang mingkai proposed a new triangular fraud relationship in “types of triangular fraud”, believing that the deceived person disposes of their own property based on a wrong understanding, not the victim’s property, and the victim suffers losses. this act is different from traditional triangular fraud and should be regarded as new triangular fraud (zhang, m. k., 2017, pp. 9-26). among the views that the perpetrator who replaces the qr code constitutes theft, there are different opinions on whether the perpetrator is a direct principal or an indirect principal of theft. some scholars believe that the perpetrator replaces the merchant’s qr code without the notice of both the merchant and the customer. although this replacement act deceives the customer, this deception is not the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 83 published by scholink inc. deception in fraud, so it cannot make the customer produce a wrong understanding of disposal. the perpetrator has the purpose of illegal possession from the beginning and violates others’ true will to steal others’ property, so it should constitute theft. for example, scholar zhou mingchuan states in “qualitative analysis of obtaining property by replacing merchants’ qr codes” that customers are unaware that the payment for goods will fall into the perpetrator’s account when paying with the replaced qr code; merchants think the qr code is their own and have no intention to transfer possession to the perpetrator. therefore, neither customers nor merchants dispose of property to the perpetrator based on wrong understanding, so this act belongs to secret theft rather than fraud (zhou, m. c., 2017, pp. 112-122). scholar bai langtao states in “on the ‘disposing intention’ in fraud” that the perpetrator is a direct principal of theft. the perpetrator replaces the qr code, steals the merchant’s identity as a creditor, violates the merchant’s true will, and transfers the merchant’s creditor’s rights and interests against customers to themselves, which conforms to the constitutive requirements of theft (bai, l. t., 2017, pp. 97-106). another view holds that the perpetrator who replaces the qr code is an indirect principal of theft. the indirect principal of theft refers to manipulating others as tools to commit crimes without directly implementing the crime themselves. the perpetrator secretly replaces the merchant’s qr code and uses the customer’s ignorance to make the customer a tool for secret property acquisition. the act of replacing the qr code by the perpetrator, with the purpose of illegal possession, violates others’ true will, and steals others’ property (property interests), satisfying the constitutive requirements of ordinary theft. it should be determined to constitute theft rather than fraud, and the specific reasons are elaborated below. 1.2 merchants should be the victims in qr code replacement cases, determining the victim requires discussing whether the perpetrator truly infringes on the legitimate rights and interests of the merchant or the customer. there is a sales contract relationship between the merchant and the customer. according to legal provisions and trading habits, both the merchant and the customer have mutual rights and obligations: the merchant delivers goods and has the right to collect payment; the customer has the right and obligation to receive goods and pay the price. among them, scholars liu mengya and zhang aiyan argue that the victim is the customer (liu, m. y., & zhang, a. y., 2018, pp. 12-15). before the customer scans the code to pay, the qr code has been replaced, and in fact, the merchant has no possibility of receiving the payment. at this time, the rights and obligations between the two parties are unequal. the merchant suffers losses without receiving the payment, and still has the right to require the customer to pay. the customer’s payment obligation is not eliminated because the qr code is replaced, so the customer’s rights and interests are infringed, and thus the customer is the victim. other scholars believe that the merchant is the real victim. the customer has completed their obligation by scanning the code to pay, so the merchant has no right to ask the customer to pay again (wang, y. f., 2022). the merchant delivers the goods but does not receive the corresponding payment, making www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 84 published by scholink inc. the merchant the ultimate victim. the author agrees with the second view and believes that the victim in qr code replacement cases is the merchant. as is well known, qr codes have the advantage of being convenient and fast. when customers pay in the way required by the merchant, they often do not take the initiative to check whether the merchant’s qr code is correct. in daily life, there are a large number of transactions. checking the correctness of the merchant’s qr code undoubtedly increases the customer’s duty of care and payment difficulty, which does not conform to the current concept of fast and convenient transactions. moreover, merchants can avoid losses by timely checking the qr code and turning on the payment voice function. since the customer has paid to the designated account, regardless of where the payment flows, it means that their payment obligation has been completed. the merchant cannot require the customer to pay again. it is only because of the perpetrator’s act of replacing the qr code that the creditor’s rights and interests that should belong to the merchant are stolen, making the merchant the ultimate victim. after the transaction ends, the customer pays the price and obtains the ownership of the goods in return, without any financial loss, so the customer is not the victim. 1.3 the object of the crime is property interests in such cases, the main disputes are not only reflected in the definition of nature and the identification of victims but also in the determination of the object of the crime. some scholars believe that the merchant’s loss is specific payment for goods (ma, c., 2018). at the moment when the customer scans the code to pay, the merchant has a claim for the payment based on the delivery of goods, and these funds should belong to the merchant, that is, the merchant has the right to these funds. in fact, the merchant does not obtain the ownership of the payment. before the customer scans the code to pay, it belongs to the customer, and after payment, it is possessed by the perpetrator. in other words, the factual state of the merchant’s possession of the payment never formed throughout the process, so the merchant’s loss should not be money. based on the sales contract relationship between the customer and the merchant, both parties enjoy mutual rights and obligations. in qr code replacement cases, the customer pays the payment and receives the goods, and their legitimate rights and interests are not damaged. of course, the payment here includes but is not limited to currency. in this case, it mainly involves electronic currency, which operates through a third-party payment platform. due to the convenience of electronic payment, when customers trade with merchants, they do not actually transfer their control over real property but only transfer their monetary claims (wang, y. c., 2022, pp. 95-103). the normal mode is that customers directly transfer their claims against the payment platform to the merchant. however, due to the interruption of the perpetrator’s act of secretly replacing the qr code, the merchant does not receive the property paid by the customer after delivering the goods. this property is essentially the claim that the merchant should obtain (liu, p. c., & zhang, x. t., 2022, pp. 36-37). in short, the perpetrator intercepts the claim for creditor’s rights that should belong to the merchant against the third-party payment platform. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 85 published by scholink inc. 2. the behavior of replacing qr codes does not constitute fraud 2.1 negation of general fraud 2.1.1 the perpetrator’s deception is not the deception in fraud the deception in fraud refers to intentionally fabricating facts or concealing the truth to mislead the deceived object, making it have a cognitive deviation when disposing of property. the content of deception can include facts and values; the ways of deception include express and implied, as well as acts or omissions. moreover, the deceptive act must reach a certain degree to cause the other party to have a cognitive deviation. for example, a sells a vase claimed to be from the ming dynasty to b at the price of 200 yuan. according to the understanding of the general public, this vase is a fake. a cognitive error means that the deceptive act makes the other party produce a wrong intention to dispose of property, and this error cannot be any error. for example, a borrows b’s mobile phone to make a call under the pretext, and with b’s consent, a takes b’s mobile phone when b is not prepared. at this time, the perpetrator a has implemented a deceptive act, and b has a cognitive defect, but b does not have a cognitive deviation regarding the disposal of the mobile phone’s ownership. there is no causal relationship in criminal law between a’s deceptive act and b’s disposal, so this deceptive act is not the deception in fraud, and thus a constitutes theft rather than fraud. throughout the transaction process, neither the customer nor the merchant is aware of the perpetrator’s existence. it is undeniable that the perpetrator’s act of replacing the qr code is a deception. both the customer and the merchant will mistakenly think that the replaced qr code is the merchant’s, and both have cognitive deviations. however, deception in daily life is not the same as deception in the sense of fraud, and neither of them has the intention to dispose of possession to the perpetrator based on wrong understanding. if the merchant or customer finds that the qr code has been replaced, they will definitely prevent the result from occurring. therefore, the perpetrator’s act does not conform to the standards of fraud. 2.1.2 lack of disposing intention the victim disposes of property based on a cognitive error, which specifically includes two aspects: subjective and objective, that is, both disposing intention and disposing act are required. in china’s academic and judicial practice, the necessary theory of disposing intention is mostly adopted (wang, x. c., 2015). for the victim to have a disposing intention, first, they must be aware that they are in possession of the property and realize the objective existence of the property; second, if they recognize the key external characteristics of the property, their disposing intention can be determined. example 1: a takes out the toothpaste when the salesperson is not paying attention and puts a high-end electric toothbrush into the toothpaste box. the salesperson mistakenly thinks it is toothpaste and only charges the price of a tube of toothpaste. objectively, the salesperson has a disposing act, but because the types of the two items are different, the salesperson does not realize the possibility of the existence of the toothbrush, so there is no intention to dispose of the toothbrush, and a does not constitute fraud. example 2: b swaps the price tags of two sets of clothes, pasting the low-price tag on the high-price www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 86 published by scholink inc. clothes. the merchant is deceived, so b buys the high-price clothes at a lower price. in this case, the merchant has a wrong understanding of the price and disposes of the ownership of the high-price clothes to b. the merchant has a disposing act, sees the clothes, realizes the existence of the clothes, and has a disposing intention for the clothes, conforming to the constitutive requirements of fraud, so b constitutes fraud. example 3: c puts two identical electronic watches into one box, and the packaging box states that there is one watch inside. the storekeeper also thinks there is only one and only charges the price of one watch. in this case, the storekeeper is not aware of the existence of the other watch and has no disposing intention, so c does not constitute fraud. example 4: d buys bulk melon seeds in a supermarket. the boss sticks the price, ties the shopping bag, and then d quietly opens the shopping bag and puts in another handful of melon seeds. the boss is unaware and collects the money at the original price. in this case, the boss is aware of the existence of the melon seeds in the bag and has a disposing intention. the deception is a wrong understanding of the quality of the melon seeds, so d constitutes fraud. example 5: zang moumou sends a link with a transaction amount of 1 yuan to the victim but containing a payment of more than 300,000 yuan, lying that clicking the payment link of 1 yuan can view the payment record, misleading the victim to transfer more than 300,000 yuan plus 1 yuan to zang moumou. the victim only has the intention to dispose of 1 yuan, not more than 300,000 yuan, so zang moumou constitutes theft. when customers scan the code to pay as required by the merchant and transfer their claims against the payment platform, it does not mean that customers have the intention to dispose of property to the perpetrator. customers always think they are paying to the merchant, that is, they only have the intention to dispose of property to the merchant, not to any person who may actually receive the payment. for the victim merchant, there is of course no intention to transfer property to the perpetrator. it can be seen that neither customers nor merchants have the intention to dispose of the ownership of property to the perpetrator. 2.1.3 lack of disposing act fraud belongs to self-loss crimes, and the disposing act refers to disposing of the ownership or possession of property to the perpetrator, which is also the main reason for the victim's interest damage. the victim disposes of property based on cognitive deviation. only the act under the domination of disposing intention is the disposing act in fraud. disposing intention and disposing act should not be discussed in isolation but as a whole. otherwise, the situation of “named fraud but actual theft” will be formed. the disposing act in fraud means “wrong property disposal”, and not all property transfers from one person to another are disposing acts. in qr code replacement cases, customers scan the code to pay, and although there is an objective act of disposing of property, this act is a normal transaction step in the sales relationship, not a disposal of property based on cognitive defects. the true intention is not to voluntarily deliver property to the perpetrator. the merchant agrees that the customer scans the qr code to pay based on usual trading habits and has no intention to transfer their claim against the customer to the perpetrator. disposing intention and disposing act are interrelated. we should view www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 87 published by scholink inc. problems from a developmental and comprehensive perspective, not judge with a static, isolated, and one-sided perspective. as mentioned above, both the merchant and the customer lack the intention to dispose of property to the perpetrator, so there is no mention of the existence of property disposing acts in fraud between the two parties. 2.2 negation of triangular fraud triangular fraud is essentially fraud, but there are three parties in the relationship, that is, the deceived person is not the same as the victim. in some aspects, triangular fraud is easily confused with the indirect principal of theft. they have some commonalities, and there are three parties in their relationships. the main difference is whether the deceived person has the right to dispose of the victim's property. example: a deceives the nanny of b’s family, claiming to be an employee of a dry cleaner, and b asks him to pick up the clothes to be cleaned. the nanny believes it. in this case, the perpetrator is a, the deceived person is the nanny, and the victim is b. the deceived nanny has the status to dispose of the owner b’s clothes. therefore, a constitutes fraud, which is a typical triangular fraud. another example: cleaner c sees a bag in the bathroom and asks a next to him. a lies that the bag is his own and takes it away, but in fact, the bag is left by d. the perpetrator a has implemented a deceptive act, but the deceived cleaner c does not have the right to dispose of d’s items, so c becomes a’s tool. therefore, a in this case does not constitute triangular fraud but the indirect principal of theft. in the case of the perpetrator replacing the merchant’s qr code, the legal status of the customer and the merchant is equal. the customer disposes of their own property, not the merchant’s, and does not have the right to dispose of the merchant’s property. therefore, it should not be defined as triangular fraud. from the perspective of triangular fraud, teacher zhang mingkai proposed a new view of triangular fraud for qr code replacement cases, and the difference between the two types of fraud only lies in the different owners of the property disposed of by the deceived person. in the case of qr code replacement, a transaction relationship has been formed between the customer and the merchant, and the customer has the obligation to pay the payment as required by the merchant. however, transferring their property to the merchant cannot ensure the absolute safety of the merchant’s property, and it cannot be inferred that there is a direct causal relationship in criminal law between the customer’s disposing act and the merchant’s property loss. therefore, this act can be regarded as the victim disposing of their own property and suffering losses (lan, r., 2020, pp. 29-37). moreover, the parties’ act does not meet the essential conditions required for fraud. in the case of not constituting fraud, the arguments that it constitutes triangular fraud and new triangular fraud are even less persuasive. 3. the behavior of replacing qr codes constitutes theft 3.1 negation of the indirect principal of theft the indirect principal refers to not directly implementing the crime but controlling others as tools to commit crimes and using others to implement the crime. to establish an indirect principal, the perpetrator must be intentional subjectively, knowing the consequences and hoping for or allowing the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 88 published by scholink inc. consequences to occur; objectively, there is an act of causing and dominating the criminal to implement the crime. example: a instructs the mentally ill person b to steal. a uses b as a tool for crime to achieve the purpose of stealing others’ property, so a constitutes the indirect principal of theft in this case. in the case of obtaining property by replacing qr codes, the perpetrator indeed has the criminal intention of theft subjectively, uses the ignorant customer as a criminal medium, and hopes for or allows the result to occur knowing that the payment will be transferred to their own account after the customer scans the code to pay. however, according to the relevant provisions of china’s criminal law, the establishment of the indirect principal of theft has strict conditions. the indirect principal must be the mastermind behind the whole case, and the used person is the direct perpetrator of theft, among which the used person should not have the right to dispose of the victim’s property (liu, m. x., 2015, pp. 98-115). the customer’s payment is to fulfill the obligation in the sales contract relationship, and scanning the code to pay itself is not a criminal act. the customer does not belong to the perpetrator’s tool, and the perpetrator has no control over the customer’s payment act. the customer who scans the wrong qr code has no legal error, and their act of disposing of property is legal and valid. the real reason for the merchant's property loss is the perpetrator’s secret theft of the claim against the third-party payment platform. 3.2 argumentation of theft 3.2.1 the perpetrator’s secret theft against others’ wishes different from fraud, which uses the victim’s cognitive deviation to transfer possession of property, theft transfers possession through unknown means and against the victim’s true will. the perpetrator replaces the qr code often by peaceful and secret means to avoid contact with customers and merchants. although the replacement act has a deceptive appearance, this deception cannot make customers or merchants directly produce property disposal to the perpetrator, and does not constitute the deception in fraud. china does not have strict regulations on open theft, and this article does not expand on open theft. however, the acts implemented by the perpetrator in internet property acquisition cases are unknown, which meets the requirement of secretly stealing others’ property in theft. the customer’s intention to scan the code to pay is to fulfill the debt to the merchant, and the merchant requires the customer to scan the code to realize their own claim. both are unaware that the qr code has been replaced and that the perpetrator has obtained the property. the perpetrator’s act violates the true will of both parties, and this act of obtaining property should belong to secret theft. 3.2.2 destroying the merchant’s possession and establishing new possession transfer of possession consists of two parts: destroying others’ possession of property and establishing one’s own possession of property. example: a steals the bicycle in front of b’s house and takes it for himself. a destroys b’s possession and establishes a new possession relationship, so a constitutes theft. if a only smashes the car, even if a also destroys the original possession relationship at this time, because no new possession is formed, a does not constitute theft. in qr code cases, the customer and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 89 published by scholink inc. the merchant have reached a determined transaction. after the customer obtains the goods, they should pay the corresponding payment to the merchant. however, when the payment is on the way to the merchant’s account, it is intercepted by a third party at the moment of arrival. according to common sense, it can be determined that the customer has lost possession of the claim, and the merchant has obtained possession (wang, h. w., 2021, pp. 102-120). the perpetrator’s act of replacing the qr code hinders the correct flow of the claim, secretly transfers the claim that should belong to the merchant to themselves, causes the possession state of the property to change, destroys the old (merchant’s) possession relationship, and establishes a new (own) possession relationship. the merchant suffers property losses, and this act satisfies the constitutive requirements of theft, constituting theft. 4. conclusion the development and popularization of technology and the circulation and sharing of resources demonstrate the progress of life, while some emerging new crimes in society, especially crimes in the internet field, bring many challenges to the judicial circle. the law has stability and cannot be changed overnight. due to the ambiguity of language itself, criminal law norms have generality and abstraction. facing new problems, we should take facts as the basis, take legal norms as the criterion, grasp the essence of each crime in criminal law, analyze the constitutive elements of each specific crime, comprehensively consider conviction and sentencing, and achieve consistency between crime, responsibility, and punishment. new problems and new challenges. forming a unified standard for the nature of the act of replacing qr codes is conducive to achieving the same judgment for the same case and maintaining legal authority. qr code replacement cases are cases where theft and fraud are intertwined. there is a sales contract relationship between customers and merchants, with mutual rights and obligations. the perpetrator secretly replaces the qr code, confusing the vision of both parties, causing cognitive errors, and affecting the realization of rights and obligations. the author believes that this deception has not reached the degree of deception required in fraud, and neither the merchant nor the customer voluntarily disposes of the ownership of property to the perpetrator based on wrong understanding. this act of obtaining property does not conform to the constitutive requirements of fraud and should not be defined as fraud. moreover, the customer’s act of scanning the code to pay is a medium for the perpetrator to achieve the criminal purpose, not the direct act of theft. it cannot be determined that the perpetrator is the indirect principal of theft. instead, the perpetrator violates the merchant’s will, replaces their status, and secretly steals the claim belonging to the merchant. it is more appropriate to define this act as ordinary theft. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 90 published by scholink inc. references bai, l. t. (2017). on the “disposing intention” in fraud. oriental law, 2017(02), 97-106. lan, r. (2020). analysis of the legal qualification dilemma in “qr code replacement cases”. journal of radio and television university (philosophy and social sciences edition), 2020(01), 29-37. liu, m. x. (2015). negation of the concept of indirect principal—from the perspective of the single principal system. legal research, 37(06), 98-115. liu, m. y., & zhang, a. y. (2018). the criminal law recognition of replacing merchants’ payment qr code cases. chinese procurators, 2018(02), 12-15. liu, p. c., & zhang, x. t. (2022). the qualification of the act of replacing qr codes. economist, 2022(12), 36-37. ma, c. (2018). qualitative analysis of qr code replacement cases. shanghai: east china university of political science and law. mei, s. y. (2021). the criminal law qualification of the act of replacing qr codes. shanghai: east china university of political science and law. ruan, q. l. (2018). “qr code replacement cases” should be qualified as fraud. chinese procurators, 2018(02), 3-7. wang, h. w. (2021). on the normative possession in network theft. journal of the national procuratorate college, 29(06), 102-120. wang, x. c. (2015). on the victim’s disposing intention in fraud. beijing: graduate school of the chinese academy of social sciences. wang, y. c. (2022). research on the qualification of “qr code replacement cases”. journal of north china university of water resources and electric power (social sciences edition), 38(02), 95-103. wang, y. f. (2022). qualitative research on illegally seizing money by replacing merchants’ collection qr codes. beijing: foreign affairs college. you, b. x. (2022). the behavioral qualification of “replacing qr codes” cases. economic research journal, 2022(24), 159-161. yu, h. (2022). the criminal law qualification of the act of replacing qr codes to obtain property. heilongjiang: harbin university of commerce. zhang, m. k. (2017). the types of triangular fraud. legal review, 35(01), 9-26. zhou, m. c. (2017). qualitative analysis of obtaining property by replacing merchants’ payment qr codes. oriental law, 2017(02), 112-122. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 154 original paper research on innovation mechanism and realization path of carbon finance under the goal of “double carbon” he shu 1 1 fuzhou university of international studies and trade, fuzhou 350202, fujian, china received: september 10, 2024 accepted: september 28, 2024 online published: october 2, 2024 doi:10.22158/elp.v7n2p154 url: http://dx.doi.org/10.22158/elp.v7n2p154 abstract on a global scale, climate change has become a serious problem that cannot be ignored. carbon finance, as a key means to deal with climate change and promote sustainable development, is gradually receiving attention from the international community. the innovation of financial technology (fintech) has injected new vitality into traditional financial business, and also brought new opportunities and challenges to the development of carbon finance. starting from the basic concept of carbon finance, this paper reviews the current development status of carbon finance, analyzes the promotion role of financial technology to the development of carbon finance, and on this basis, looks forward to the future development path of the combination of financial technology and carbon finance. keywords carbon finance, financial technology, low-carbon economy, sustainable development 1. introduction carbon finance refers to the financial activities and services around carbon emission rights or emission reduction projects in the financial market. it includes carbon emission trading, carbon derivatives trading, carbon asset management and carbon credits. financial technology refers to the use of scientific and technological means to innovate financial services and products, and its core technologies include big data, artificial intelligence, and blockchain. the application of fintech in the field of carbon finance can not only improve the efficiency and transparency of the carbon market, but also reduce transaction costs and enhance market participation. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 155 published by scholink inc. 2. development status of carbon finance 2.1 overview of international carbon market the global carbon market mainly controls and reduces greenhouse gas emissions through the emissions trading system. the european union emissions trading system (eu ets) is the largest and most established carbon market and, since its launch in 2005, has become a flagship project in global efforts to reduce emissions. the eu ets incentivizes companies to take steps to reduce their emissions by setting a cap on carbon emissions and allowing them to buy and sell emission rights within the system. the california carbon market is also a leading example of an innovative market mechanism that encourages companies to reduce their carbon footprint. as one of the world’s largest carbon emitters, china has actively promoted the establishment of a national carbon emission trading market in recent years, and is committed to controlling and reducing carbon emissions through market-based means. 2.2 carbon financial products and services as the carbon market matures and expands, carbon financial products and services continue to innovate and develop. in addition to the traditional carbon emission trading, there are also a variety of financial derivatives related to carbon emissions in the market, such as carbon futures, carbon options and carbon credits. these derivatives allow companies and investors to hedge against fluctuations in the price of carbon, while funding projects that seek to reduce carbon emissions. to manage these products more effectively, carbon asset management services have emerged to help businesses and investors assess and manage carbon-related financial risks and opportunities. in addition, with the development of carbon markets, innovative financial products have emerged, such as carbon bonds and green bonds, which provide new ways to finance low-carbon projects. carbon bonds are a type of fixed income financial product specifically used to finance projects that reduce emissions, while green bonds are used more broadly to finance a variety of environmentally friendly projects, including energy efficiency improvements, renewable energy development, sustainable water management, and clean transportation. the development of carbon finance provides a powerful market-driven mechanism for global efforts to reduce emissions. from carbon trading to financial derivatives to carbon asset management services, innovative financial products and services not only help mitigate climate change, but also provide new opportunities for investors. as the global economy continues to move in a low-carbon, environmentally friendly direction, we can expect the carbon finance market to continue to grow in size and influence. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 156 published by scholink inc. 3. the role of fintech in carbon finance 3.1 big data and carbon emission assessment through big data analysis, fintech can more accurately assess the carbon emissions of enterprises, provide a scientific basis for the pricing of emission rights, and provide guidance for investors to make low-carbon investments. through the collection, processing and analysis of massive data, fintech can reveal the carbon emission patterns in corporate activities, thus making the assessment of corporate carbon emissions more accurate and efficient. this assessment not only provides scientific data support for governments and environmental regulators when formulating emission trading policies and pricing, but also helps investors identify companies with low carbon emissions. in this way, investors can make more environmentally friendly investment decisions and facilitate the flow of capital to companies with less environmental impact, thereby driving the transition to a low-carbon economy for society as a whole. this shows that big data is not only an enabler of technological transformation, but also plays a vital role in addressing global challenges such as climate change. 3.2 innovative application of blockchain technology blockchain technology, as a distributed ledger technology, has demonstrated significant advantages in the field of carbon trading through its innovative application. it not only increases the transparency and security of transactions, but also ensures the imtamability of transaction records through unique encryption and consensus mechanisms. the introduction of this technology allows every carbon transaction to be tracked and verified, greatly reducing the potential for fraud. with the application of blockchain technology, the trust of market participants has been enhanced, promoting the healthy development of the carbon trading market. this transparent and secure trading environment attracts more investor participation, helping to drive the transition to a low-carbon economy and the response to climate change. 3.3 the role of artificial intelligence in carbon markets artificial intelligence technology plays a key role in the carbon trading market. by automating the transaction process, it not only significantly improves the efficiency and response speed of transactions, but also reduces errors caused by human factors. at the same time, with the help of deep learning and big data analysis, ai can conduct in-depth risk assessment of the market and effectively predict market trends and price fluctuations. this enables investors to make investment decisions based on more accurate and comprehensive information, increasing the return on investment. in addition, ai’s real-time monitoring and analysis capabilities help to instantly discover abnormal trading behavior in the carbon market, ensuring market fairness and transparency, and thus maintaining the stability of the entire market. in these ways, ai has become an important force driving the development and efficiency of carbon markets. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 157 published by scholink inc. 4. challenges and countermeasures for the development of carbon finance with the increasing global concern about climate change, the carbon finance market has ushered in unprecedented development opportunities. financial technology, especially the application of emerging technologies such as blockchain, big data and artificial intelligence, has provided a more efficient and transparent trading platform and tools for the carbon financial market, greatly broadening its development potential. however, carbon finance still faces many challenges, and its development strategy needs to be carefully formulated. 4.1 technical security issues technical security is a challenge that cannot be ignored in the development of carbon finance. the widespread application of fintech has made the trading system more complex, and in the event of technical errors or cyber attacks, it may lead to major financial risks and a crisis of market trust. in addition, the data quality and measurement, reporting and verification (mrv) issues specific to carbon finance also need to rely on stable and reliable technology. therefore, strengthening technical security and data protection is an important countermeasure to ensure the healthy development of carbon finance. this includes improving the security standards of the system, increasing investment in cybersecurity and improving emergency response mechanisms. 4.2 regulatory issues the complexity and international nature of carbon finance requires forward-looking and internationally compatible regulations. at present, the rules and standards of carbon emission trading systems in different countries and regions differ, which brings obstacles to cross-border carbon financial trading. therefore, the establishment of a unified legal framework and the development of internationally recognized trading rules and regulatory standards are necessary measures to promote the healthy development of carbon financial markets. at the same time, strengthening regulatory cooperation to jointly combat fraud and manipulation in the carbon financial market is also the key to protecting investors’ rights and interests and maintaining market order. 4.3 market acceptance market acceptance is an important factor in determining the success of carbon finance. because carbon finance is a relatively new field, many investors and market participants lack sufficient knowledge and confidence in it. in addition, the complexity and professionalism of carbon financial products make it difficult for ordinary investors to participate. therefore, strategies to increase market acceptance should include strengthening market education and advocacy, increasing transparency of carbon finance, simplifying product design, and providing more training and advisory services to help investors better understand and accept carbon finance products. to sum up, although the development of fintech has brought great opportunities for carbon finance, the challenges in terms of technical security, legal regulation and market acceptance cannot be ignored. the development of countermeasures requires multi-stakeholder participation and collaboration, only in this way, carbon finance can contribute to global carbon reduction efforts while achieving its own www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 158 published by scholink inc. healthy and sustainable development. 5. development path outlook in order to promote the deep integration of fintech and carbon finance, we need to strengthen research, build cooperation mechanisms, improve the regulatory system, and raise the awareness of technology application of market participants, from multiple aspects to ensure the smooth progress of this integration process. first, strengthening research is the foundation for promoting the integration of fintech and carbon finance. at present, the application of fintech in the field of carbon finance is still in its initial stage, and many potential application scenarios and technical solutions have not been fully developed and utilized. therefore, it is necessary to increase the basic research and applied research on the application of fintech in the field of carbon finance, and explore more innovative technical solutions. this includes the application of blockchain technology in carbon trading and carbon asset management, the application of big data and artificial intelligence in carbon emission data monitoring, analysis and forecasting, and the innovative use of internet financial tools in green credit, green bonds and other fields. through in-depth research, the applicability and efficiency of fintech in the field of carbon finance can be improved, and technological innovation and business model innovation can be promoted. second, building a cooperation mechanism is the key to promoting the integration of fintech and carbon finance. the combination of fintech and carbon finance involves many industries and fields, including financial institutions, technology enterprises, environmental protection agencies, etc. therefore, it is necessary to establish a cross-industry and cross-field cooperation mechanism to encourage and promote exchanges and cooperation between all parties. for example, financial institutions can work with technology companies to jointly develop fintech products suitable for carbon finance; environmental protection agencies can cooperate with fintech companies to jointly promote the development and application of carbon emission monitoring technology. through cooperation, the resources and wisdom of all parties can be gathered to accelerate the promotion and application of fintech in the field of carbon finance. third, improving the regulatory system is a guarantee for the healthy development of the integration of fintech and carbon finance. the carbon financial market involves various types of transactions, a large number of transaction entities, and the application of financial technology has increased the complexity of the market. therefore, regulators need to adapt to the new changes in the development of the market and improve the relevant regulatory system. this includes developing special laws and regulations for carbon financial markets, clarifying market trading rules, strengthening supervision of trading activities, and establishing a sound market risk prevention and control system. at the same time, regulators also need to strengthen the supervision of fintech to ensure that its application in the field of carbon finance is safe, compliant and reliable, and to prevent possible financial risks. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 159 published by scholink inc. finally, improving market participants' awareness of technology application is the driving force for the integration of fintech and carbon finance. market participants include financial institutions, enterprises and individual investors, who are direct participants in the carbon finance market, and their acceptance and application ability of fintech directly affect the integration degree of fintech and carbon finance. therefore, there is a need to raise awareness of technology use among market participants through various means, including organizing training and seminars, providing technical advisory and support services, and promoting successful fintech use cases. by raising the awareness of technology application of market participants, it can promote their more active adoption and use of fintech, and accelerate the integration process of fintech and carbon finance. 6. conclusion the continuous innovation and application of fintech help to improve the efficiency and transparency of the carbon financial market, and provide strong support for the realization of low-carbon economic transformation and response to global climate change. in the future, the further integration of fintech and carbon finance will be an important trend to promote the development of green finance. financial technology, as the intersection of finance and technology, has been constantly promoting the progress and innovation of the financial market. in recent years, with the increasingly severe problem of global climate change, carbon financial market, as an important tool to deal with climate change, has attracted more and more attention from governments and international organizations. the healthy development of the carbon finance market can not only promote the effective control of carbon emissions, but also guide capital flow to low-carbon and green industries, and promote the global economy to achieve low-carbon transformation. in this context, the innovation of fintech has become a booster for the development of carbon financial markets. the application of advanced data analysis technology, blockchain, artificial intelligence and other financial technology means has greatly improved the efficiency and transparency of the carbon financial market. for example, through blockchain technology, the whole process of carbon credit trading can be more effectively tracked and verified to ensure the authenticity and accuracy of the transaction. the big data analysis capability of artificial intelligence can help investors better evaluate the value of carbon assets and the risks associated with them. in the future, the deep integration of financial technology and carbon finance will further promote the development of green finance. fintech can not only improve the operational efficiency of carbon markets, but also help discover and foster new low-carbon financial products and services, and promote the more effective flow of financial resources to green and low-carbon industries. with the progress and innovation of technology, the combination of fintech and carbon finance will become more closely, and become an important force to promote the transformation of the global economy to sustainable development. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 160 published by scholink inc. references chen, l. x. (2006). research on china’s fiscal policy in the context of international economic cooperation. dongbei university of finance and economics. cui, q. y. (2018). research on international coordination of macroeconomic policies under non-synchronous business cycles. shanghai international studies university. li, l. (2008). research on international cooperation of china’s monetary policy under the condition of economic globalization. southwest university of finance and economics. wang, y. (2022). research on value creation of shenzhou international business model based on value chain extension. harbin university of commerce. zhao, j. q. (2022). business model evolution under the change of information technology. business economics research, 2022(06), 5-8. zhou, d. c. (2015). empirical analysis of the relationship between financial development and economic growth cycle in china. nanchang university. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 31 original paper inadequacies and improvements in china’s divorce cooling-off period system li zongqi 1 1 universiti kebangsaan malaysia, kuala lumpur, malaysia received: july 10, 2024 accepted: july 25, 2024 online published: july 26, 2024 doi:10.22158/elp.v7n2p31 url: http://dx.doi.org/10.22158/elp.v7n2p31 abstract as a new system, the divorce cooling-off period system aims to curb hasty divorce. divorce and impulsive divorce, reduce the divorce rate in our country, maintain the divorce rate, and maintain a certain degree of stability in marital relationships. article 1077 of the chinese civil code stipulates that the divorce cooling-off period system is an indisputable fact and has been incorporated into law. by using qualitative research methods and theoretical research methods to explain its meaning and background, it briefly introduces the development process of the divorce cooling-off period in our country. on the basis of affirming its positive significance, it points out the shortcomings of the current divorce cooling-off period system in our country and analyzes the reason why my country’s divorce cooling-off period system needs to be improved is to conduct a general inspection of foreign divorce cooling-off period systems through comparative research methods and put forward opinions and suggestions for improving my country’s divorce cooling-off period system. and the results are drawn: china’s divorce cooling-off period system is complex and requires long-term, multi-faceted efforts to resolve its flaws and improve its effectiveness. keywords divorce cooling-off period, applicable situations, defects, overseas comparison, improvement suggestions 1. introduction 1.1 background the chinese civil code was passed on may 8, 2020, which for the first time included the divorce cooling-off period system into the scope of marriage and family adjustment in my country from the legislative level. our country has established a cooling-off period system for divorce registration, to a certain extent, to improve the current marital situation in our country and to guide couples to carefully www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 32 published by scholink inc. consider the adjustment of marriage and family in our country from the legislative level. our country has established a cooling-off period system for divorce registration, to a certain extent, to improve the current marital situation in our country, to guide couples to carefully consider when dissolving their marriage, and to recognize and solve problems that arise during the divorce process. cooling off period. avoiding problems reduces hasty and impulsive divorces. from a social perspective, the divorce rate will also be relatively reduced, which is conducive to social stability. however, once the divorce cooling-off period system was introduced, it caused dissatisfaction and frustration in society. however, once the divorce cooling-off period system was introduced, it aroused widespread doubts. for example, whether a divorce cooling-off period system would make divorce more difficult. for example, will the divorce cooling-off period system make it more difficult for divorcing parties to get divorced and restrict their freedom of divorce? or whether the cooling-off period can be enforced in all circumstances. this article will focus on the problems existing in the application of the cooling-off period in divorce. by analyzing chinese laws and learning foreign cooling-off period systems, we put forward suggestions for improvement so that the divorce cooling-off period system can exert its due value. only during this period can the system exert its due value. 1.2 problem statement article 1077 of my country’s civil code stipulates a cooling-off period for divorce, but because this content is a new provision, problems arise in its application: 1) special circumstances that require immediate divorce are not taken into account., may lead to insufficient protection of personal rights and interests; 2) the special circumstances of divorce may lead to insufficient protection of personal rights and interests; failure to consider the need for immediate divorce. the special circumstances of divorce may lead to insufficient protection of personal rights and interests; 3) the 30-day cooling-off period uniformly stipulated by law may not be suitable for all situations; 4) the specific the specific operation method is unclear, which may lead to the parties abusing the right of revocation; 5) there is a lack of protection for minor children; these problems hinder the system from effectively achieving its objectives. the specific operation method is unclear which may lead to the parties abusing the right of revocation; 6) there is a lack of protection for minor children; these problems hinder the system from effectively achieving its expected goals. this article focuses on the problems existing in the divorce cooling-off period, and makes reference to the advantages of south korea’s cooling-off period regulations in different situations. this article focuses on the problems existing in the divorce cooling-off period, and makes reference to the advantages of south korea’s cooling-off period regulations in different situations and russia’s special protection of children in the cooling-off period regulations, and puts forward constructive suggestions. the content of the divorce cooling-off period in article 1077 of the civil code: making it clear that within 30 days of the receipt of an application for divorce registration from both spouses by the marriage registration office of the civil affairs department, either party may request the marriage www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 33 published by scholink inc. registration office to revoke the application for divorce registration if either party regrets it. upon the expiration of the 30-day period, within the next 30 days, both spouses shall appear in person at the marriage registration office to obtain a divorce certificate; failure to appear in person to apply for a divorce certificate is considered a withdrawal. the research on improving the cooling-off period system of divorce in china identifies several key gaps in the existing literature, highlighting areas where further investigation and analysis are needed. these research gaps include: limited empirical studies: the existing literature lacks comprehensive empirical studies that assess the actual impact of the cooling-off period system on divorce rates, family stability, and the well-being of individuals, particularly in the chinese context. further empirical research is needed to provide concrete evidence of the system’s effectiveness and its implications for families and society. focus on vulnerable populations: there is a gap in the literature regarding the specific impact of the cooling-off period system on vulnerable populations, such as victims of domestic violence and minors. further research is needed to understand how the system affects these individuals and to identify measures for better protecting their rights and well-being within the divorce process. comparative analysis: although there are some literatures that compare the cooling-off period systems of other countries, they are mainly compared with a single country. this article will make a targeted comparison based on the specific problems existing in china’s divorce cooling-off period system. learn the best parts of other countries and combine them with chinese practices. this provides valuable insights into best practices and potential challenges in implementing and improving the system in the chinese context. steps to divorce in korea: confirm the spouse’s desire for divorce: first, you need to apply to the family court for confirmation of the divorce intent. in the case of divorce by agreement, as long as both spouses have the intention to divorce, the court will not make additional inquiries about the reasons for divorce. listen to the court’s explanation: the court will provide explanations on divorce matters and, if necessary, recommend that the couple consult with professionals. divorce cooling-off period: after the divorce cooling-off period, if both spouses still want to divorce, the court will provide a [divorce willing confirmation] for subsequent divorce filings. due to matters such as domestic violence, the continuation of the relationship can cause great pain to one party: it can be shortened or canceled depending on the specific circumstances of the case there can be no divorce cooling-off period. make a formal divorce filing: within 3 months after receiving the confirmation of divorce intention, either spouse can file for divorce at the city hall or district hall of the place of marriage registration/residence. -after the above 4 steps, the divorce can be considered official. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 34 published by scholink inc. the “korean civil code” stipulates the exception conditions for the application of the divorce consideration system. according to the law, if there are urgent reasons such as domestic violence that require a quick divorce, you can explain to the family court the reasons for shortening or exempting the divorce intention confirmation period and submit relevant documents. the legislative purpose of the certification materials is to relieve the suffering of the parties suffering from domestic violence as soon as possible, avoid further physical and mental harm, and start requesting rights relief as early as possible. because there is a cultural environment that is similar to china, we can apply and learn from china. family code of the russian federation regulations: if a couple divorces by agreement, there is also a cooling-off period of one month. moreover, russia also stipulates that if the couple has a common minor child, they cannot divorce by agreement and must litigate for divorce, and there is also a three-month period for litigious divorce cooling off period. in order to protect the rights and interests of minor children, this system increases the time cost and financial cost of divorce for couples. the intervention of the court can better make up for the fact that couples treat minor children in order to divorce impulsively. these two areas are what china’s divorce cooling-off period system needs to make up for the most, so south korea and russia were chosen for system comparison to learn from the advantages of these two countries. 1.3 research objective general objective: the general objective of the research on the system perfection of divorce cooling-off period in china is to comprehensively analyze the existing divorce cooling-off period system, identify its deficiencies, and provide recommendations for its improvement. the general objective of the research on the system perfection of divorce cooling-off period in china is to comprehensively analyze the existing divorce cooling-off period system, identify its deficiencies, and provide recommendations for its improvement. specific objectives: to analyze the legal framework and policy context of the divorce cooling-off period system in china, including relevant laws, regulations, and guidelines; and to analyse the legal framework and policy context of the divorce cooling-off period system in china, including relevant laws, regulations, and guidelines. to identify the deficiencies and challenges within the current divorce cooling-off period system. to learn and analyze the regulations on divorce cold machines in south korea and russia, and get inspired. to explore potential improvements and reforms to the divorce cooling-off period system. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 35 published by scholink inc. 1.4 research question why does china introduce a cooling-off system for divorce? what are the problems and challenges in the establishment and implementation of my country’s divorce cooling-off period system? how do south korea and russia ensure efficiency and fairness? compared with the divorce systems in south korea and russia, what are the improvements in the chinese system? 1.5 scope of research overview of divorce cooling-off period: the research delves into the background, development, and introduction of the divorce cooling-off period the research delves into the background, development, and introduction of the divorce cooling-off period system in china, providing a comprehensive understanding of its implementation. analysis of deficiencies: it thoroughly examines the deficiencies and limitations of the current divorce cooling-off period system in china, aiming to it thoroughly examines the deficiencies and limitations of the current divorce cooling-off period system in china. comparative study: conduct a comparative analysis of the divorce cooling-off period systems of south korea and russia, focusing on the unique advantages of these two countries, and provide reference for the improvement of my country’s divorce cooling-off period system. improvement suggestions: in view of the improvement of the divorce cooling-off period system in china, through the comparative study of south korea and russia, specific opinions and suggestions on exceptions, flexible application, protection of minor children’s rights, and supporting measures are emphatically put forward. overall, the scope of the study includes a detailed analysis of china’s existing divorce cooling-off period system, comparative insights with other countries, and feasible recommendations for improving the system. 1.6 literature review on how to define the cooling-off period for divorce: xia qin will divorce cooling-off period and divorce review period together, and that its meaning for the husband and wife filed a request for divorce within one month after the marriage registry for both parties to the divorce qualification review to avoid impulse avoid impulse. [references xia qin. the civil code registration of divorce cooling-off period provisions of the interpretation of the theory. jurist, 2020, no.182(05).] professor yang lixin believes that the divorce cooling-off period refers to the cooling-off period during which both parties to the marriage voluntarily apply for divorce under the principle of freedom of divorce. significance of the divorce cooling-off system: virgil h. langtry, in juvenile crime-an approach to solving some fundamental problems through changes in divorce laws, points out that couples face marital problems faced by couples in marriage are common, but too much freedom in divorce can cause couples to avoid these problems rather than to seek a new marriage. couples to avoid these www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 36 published by scholink inc. problems rather than actively address them, so a cooling-off period is necessary. [virgil h. langtry, juvenile crime-an approach to solving some fundamental problems virgil h. langtry, juvenile crime-an approach to solving some fundamental problems through changes in divorce laws, 36 or. l. rev. 97 (2017).] most scholars have affirmed the positive significance of the system, but due to the incompleteness of the system, there is still a need to improve the provisions on avoiding family risks and protecting women and children. most scholars have affirmed the positive significance of the system, but due to the incompleteness of the system, there is still a need to improve the provisions on avoiding family risks and protecting women and children. on the setting of the duration of the divorce cooling-off period: luo and xu believe that the divorce cooling-off period should be extended for agreed divorces involving minor children with adverse effects, and the duration of other general cases should be maintained. on the setting of the duration of the divorce cooling-off period: luo and xu believe that the divorce cooling-off period should be extended for agreed divorces involving minor children with adverse effects, and the duration of other general cases should be maintained. (luo hongyang, xu xiaoyi. on the differentiation of the legal value of the divorce cooling-off period. jianghai journal, 2022(03)). although scholars have laid the foundation for understanding the divorce cooling-off period system, there are still major disputes over its conceptual definition, application period, and setting principles, which deserve further in-depth study. 1.7 significance of research theoretical significance: make up for the theoretical flaws in the marriage and family section of the civil code. the introduction of the divorce cooling-off period is in line with the values and concepts of civil law legislation and takes into account the public interest. the introduction of the divorce cooling-off period is in line with the values and concepts of civil law legislation, takes into account public interests while safeguarding freedom, and balances the status of both parties in civil society. at the same time, research on the divorce cooling-off period should learn from the institutional characteristics of other countries to supplement our country’s weak links. in addition, through exploration and theoretical research on the relevant legislative systems of south korea and russia, a scientific model in line with my country’s national conditions will be constructed to promote the improvement and maturity of my country’s divorce system, thereby promoting the in-depth development of civil code marriage and family. practical significance: the divorce cooling-off period system has played a role worthy of recognition, but because it is an emerging system, there are also areas that need to be improved. studying the divorce cooling-off period system can help us understand why our country established this system and how the system operates in practice. from the usage, we can see what is happening. the study of the divorce cooling-off period system can help us understand why our country has established this system and how the system operates in practice. from the usage, we can see which aspects need to be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 37 published by scholink inc. improved and discussed in various ways. conduct multi-faceted analysis of existing problems and propose solutions. it can make the divorce cooling-off period system play a positive role in the practice of our country. it can make the divorce cooling-off period system of our country truly play its role and reduce the divorce rate, the design of maintaining this system should play a positive role and provide corresponding help for the practice of this system in our country. let our country’s divorce cooling-off period system truly play its role, reduce the divorce rate and maintain the stability of marriages. 2. methodology the purpose of this article is to make suggestions for china’s divorce cooling-off system by comparing the cooling-off system in south korea and russia. therefore, to answer the given research questions, a qualitative method is most appropriate. this article obtains information by referring to articles, research papers, literature, government work reports, and legal regulations. this article obtains information by referring to articles, research papers, literature, government work reports, and legal regulations. this article uses comparative research and theoretical research methods to analyze the problem. this article uses comparative research and theoretical research methods to analyze the problem. the purpose of the research is to make suggestions, so it is a normative research. 3. overview of the system of cooling-off periods in divorce on the afternoon of 28 may 2020, the third session of the thirteenth national people’s congress voted and passed the civil code of the people’s republic of china (hereinafter referred to as the “civil code”) with a high vote, which will come into force from 1 january 2021 onwards. this much-anticipated code marks china’s entry into a brand-new generation of civil codes. article 1077 of the civil code provides for a cooling-off period for divorce, making it clear that within 30 days of the receipt of an application for divorce registration from both spouses by the marriage registration office of the civil affairs department, either party may request the marriage registration office to revoke the application for divorce registration if either party regrets it. upon the expiration of the 30-day period, within the next 30 days, both spouses shall appear in person at the marriage registration office to obtain a divorce certificate; failure to appear in person to apply for a divorce certificate is considered a withdrawal. in the divorce process to increase the cooling-off period system, caused widespread concern in society, some people believe that this move is conducive to prevent impulsive divorce, to provide couples with the opportunity to repair their feelings, some people believe that this move restricts the freedom of divorce, will lead to the phenomenon of difficult to divorce, there are also worried about the cooling-off period of divorce sheltered from domestic violence, and to the transfer of property to leave space time. so, how to correctly treat the cooling-off period of divorce? www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 38 published by scholink inc. 3.1 meaning of the cooling-off period in divorce the cooling-off period for divorce refers to the period of calm reflection during which either spouse may withdraw the application for divorce within a certain period of time after its receipt by the marriage registration authority, in order to end the registered divorce procedure, in order to avoid frivolous divorces by the spouses, in accordance with the legislation upholding the principle of the freedom to divorce. china’s registered divorce system has two main features: first, the parties have reached agreement on the divorce and on the issue of children and property; second, the procedure is quick and convenient, and the privacy of the parties is safeguarded to the greatest extent possible. its establishment is in line with the development trend of the times and is conducive to safeguarding the freedom of divorce. but the freedom of divorce can not be unlimited freedom, personal freedom in and family harmony, social stability, to be subject to certain restrictions. in practice, due to china’s divorce registration procedures are relatively simple, there is no additional restrictions on the divorced parties, resulting in the breeding of bad divorce behaviour, the phenomenon of frivolous divorce increased, is not conducive to family stability and even produce a lot of disputes, such as child support, property re-division after the divorce and so on. divorce rates soaring year by year, flash marriages and other problems need to be resolved urgently the introduction of a cooling-off period system, thereby maintaining social stability, and safeguarding the legitimate rights and interests of minors and the elderly. according to this article, during the 30-day cooling-off period for divorce, either party may withdraw the application for divorce from the registration authority. if, within 30 days of the expiry of this period, both parties fail to apply to the divorce registration authority for the issuance of a divorce certificate, the application for divorce shall be deemed to have been withdrawn. the reason for the 30-day cooling-off period for divorce is to protect the rights and interests of the parties concerned. the 30 days stipulated in this law is a period of no change, which is a typical cooling-off period for divorce. judging from this provision, the cooling-off period for divorce in china is 30 days. during the cooling-off period, either the man or the woman or both parties have the right to request a withdrawal. upon receipt of the withdrawal request, the marriage registration authority shall terminate the divorce registration procedure. if, after the 30-day cooling-off period, both parties do not change their minds about the divorce, they shall come together to the marriage registry office to apply for the issuance of a divorce certificate within the next 30 days. however, if the parties do not come to the marriage registry within the next 30 days, the application for divorce shall be deemed to have been automatically withdrawn. 3.2 background to the introduction of the cooling-off period in divorce 3.2.1 divorce rates show a continuing upward trend in recent years, the divorce rate in china has been on a steady upward trend, especially in 2003, when the divorce rate suddenly rose sharply, owing to the adoption in 2003 of the regulations on marriage registration, which lowered the threshold for divorce. this law made it easier for civil affairs www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 39 published by scholink inc. departments to register divorces, and their staff were more lenient in their examination of divorce data, even to the extent that they did not do any mediation work with the parties who came forward to apply; basically, divorce was immediate, leading to a rapid increase in the number of divorces going to civil affairs bureaux, and a steep rise in the divorce rate, which led to the emergence of the third peak in divorce since the founding of the people’s republic of china. according to statistics from the official website of the ministry of civil affairs, in 2018, there were 10.108 million registered marriages and 3.08 million divorces nationwide; in 2019, there were 9.471 million registered marriages and 4.15 million divorces nationwide; and in 2020, there were 8.131 million registered marriages and 3.733 million divorces nationwide. as can be seen from the above figures, the marriage rate is declining, but the divorce rate is increasing. divorce by mutual consent is handled very swiftly in china; as long as both parties agree to divorce and reach a consensus, they can apply for a divorce at the civil affairs department, which will respect the wishes of both parties and will immediately process the divorce and issue a divorce certificate to both parties. there are no restrictions on divorce by negotiation in marriage registries, and the procedures are convenient and easy to carry out, which, coupled with china’s rapid economic and social development and the opening up of the minds of individual members of the public, has led, to a certain extent, to an increase in the divorce rate. 3.2.2 increase in the number of flash marriages and divorces, and changes in the outlook on marriage with the increasing openness of mindsets, the phenomenon of “flash marriages” is very common. both parties lack of understanding, or did not carry out an in-depth understanding, not to mention the role of both parties in the marriage should play a clear understanding of the responsibilities, only on the basis of the relationship between the two sides of the good feelings, on the basis of the vision of a better life after the marriage of a passionate to go to get a licence to get married. after marriage, the real character of the two parties and the gap between them before and after marriage, their inability to adapt to their roles after marriage, their inability to deal with the conflicts between the two families, and their lack of the necessary communication and tolerance for each other and a series of other problems are revealed, leading to the intensification of conflicts between the two spouses and their choice of divorce. obviously not. firstly, with china’s economic and social development, the concept of marriage has changed. the traditional family-oriented “family-oriented” view of marriage has gradually been replaced by an individual-oriented “individual-oriented” view of marriage, and the parties to a marriage attach greater importance to their personal feelings. for the parties to a marriage, if the individual believes that the marriage is no longer necessary, then divorce will naturally become the choice of both parties. secondly, in the context of the great development of current society, the concept of equality between men and women has become generally accepted. the social status of women is improving, women are increasingly seeking independence and are no longer merely dependent on men, and women’s courage www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 40 published by scholink inc. in making the decision to divorce has led to “an increase in the number of women filing for divorce”. in addition to the two points mentioned above, increasing social inclusiveness is also one of the reasons for the continuing rise in the divorce rate. with economic and social development, the concept of autonomy and equality has become more and more popular. people increasingly believe that marriage is a private family matter, other people should not be overly judgemental, society for divorce also shows a more enlightened and tolerant attitude, divorce, remarriage have become commonplace. this state of affairs has also made people who want to get divorced no longer fear the condemnation from the public opinion and dare to get divorced. 3.2.3 the prevalence of remarriage according to the data displayed on the official website of the china statistics bureau, the number of couples who remarry in china continues to rise. the reasons for remarriage are summarised as follows: (1) to provide a good environment for children to become successful; (2) regret for impulsive divorce: (3) rethinking of marriage; (4) due to life pressure. in fact, the main reason for remarriage lies in the nonchalance of both parties at the time of divorce. in order to reduce impulsive divorce, frivolous divorce, the national people’s congress deputies, cppcc members from all walks of life have called for the draft civil code to be introduced into the cooling-off period for divorce, in the consultation of the majority of people’s support, and then after a few modifications to determine the cooling-off period for divorce system. 3.2.4 the significance of a cooling-off period in divorce a. contribute to the reduction of frivolous divorces when divorce becomes easier and easier, people’s loyalty to their marriage decreases, they don’t have the patience to look for a suitable partner before marriage, and they don’t want to spend enough energy to maintain their relationship after marriage, thus increasing the casualness of divorce. the purpose of the cooling-off period for divorce is to reduce the number of frivolous divorces and to prevent “flash marriages and flash divorces” and “frivolous divorces”. whether or not a family is happy and fulfilled, whether or not the marital relationship is harmonious is the foundation. at present, china is in a period of transition in social development, the divorce rate remains high, and marital families are facing unprecedented instability. hasty divorces can be classified as impulsive divorces, and the introduction of a new legal system of cooling-off periods for divorce will help to reduce the divorce rate in china. for example, in a case that took place in beijing in 2020 when the cooling-off period for divorce was first applied, mr he and ms ran decided to divorce by mutual consent, as they both felt that the marriage had come to an end and that there was no need to continue. both mr he and ms ran were at peace when they divorced, and both agreed on the distribution of property and custody of their daughter, and then went to the civil affairs bureau to apply for divorce registration. however, during the cooling-off period of the divorce, ms ran regretted that she still had feelings for mr he, so ms ran revoked it, and under the mediation of the civil affairs bureau, the two people restarted their married life, and to a certain extent, also reduced the pressure of the court. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 41 published by scholink inc. conducive to improving china’s divorce system freedom of marriage is honoured in our country, and in the case of marriage it is required to follow the common will of the man and the woman, not to go against the will of the individual, and not to be interfered with by anyone: similarly, in the case of divorce, the freedom to divorce is also advocated. respect for the freedom of divorce and the rejection of hasty divorces are the main attitudes of our laws towards divorce. the establishment of a cooling-off period for divorce will not interfere with citizens’ right to enjoy the freedom of divorce in accordance with the law. many couples are in an incompatible and hostile state when they get divorced, and in the case of an extremely frosty relationship, some couples will directly confront each other in court, or even engage in irrational behaviour such as discrediting each other for the sake of divorce. the establishment of a cooling-off period for divorce allows couples in an irrational state to return to rationality and re-examine their marital relationship, judge whether their relationship is indeed irreparable, and then make a choice that is ultimately in line with the expression of their subjective meaning. the establishment of a cooling-off period for divorce has gradually developed into a buffer period for the relationship between husband and wife, so that both spouses through the return of reason to repair the emotional cracks, so as to restore the original marriage may be lost. at the same time, for the real-life “for property fake divorce” parties, also because of the provisions of the divorce cooling-off period system will lose the statute of limitations, so that to a certain extent to curb false divorces, to maintain the stability of the family and the authority of the law. 4. shortcomings of the cooling-off period system in divorce 4.1 failure to consider exceptional circumstances without considering the applicable circumstances, a cooling-off period has been stipulated across the board for all agreed divorces. many people find this inappropriate, especially in cases of domestic violence, drug abuse, drug trafficking, maltreatment, transfer of property, concealment of property, etc., which is inconsistent with the original intent of our country’s establishment of a cooling-off period for divorce, and also runs counter to the psychological expectations of the public. from the perspective of marriage, a woman pays a lot of time, money and energy to leave a broken relationship, and the setting of a cooling-off period for divorce leads to the possibility that what she gets in the end is not in her favour, so she takes measures to remedy the situation. article 1077 of the civil code stipulates that a 30-day cooling-off period is mandatory for all parties going to the marriage registry for a divorce. however, in reality, the reasons for divorce are many and varied, ranging from family matters, personality differences, domestic violence, abuse, etc. the decision to divorce is not impulsive or frivolous, but rather the survival of the marriage is likely to be life-threatening. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 42 published by scholink inc. this is especially true for marriages in which the man has been a perpetrator of domestic violence, and in which there are cases of domestic violence that cause physical and mental harm to the woman. domestic violence is a conflict between husband and wife that endangers the life and health of the couple, and if it is determined that there are serious cases of domestic violence, and the person concerned requests a divorce due to domestic violence, there is no need to grant a cooling-off period. in other words, there are such special circumstances for which the “cooling-off period system for divorce” should not be applied, and the law should consider setting up a quick remedy for them, so that they can be relieved as soon as possible, and avoid continuing to be harmed as a result of going through the cooling-off period. in cases where one of the spouses engages in vices such as gambling, drug abuse or mistreatment of family members, the application of a cooling-off period for divorce not only fails to promote family harmony and social stability, but on the contrary artificially delays the time for the injured party in a marital or family relationship to save himself or herself through divorce, which may aggravate the situation of the victim, intensify the conflicts between the spouses and their family members, and even lead to irreversible and serious consequences. the application of the 30-day cooling-off period for divorce in cases where one of the spouses has transferred, concealed or squandered the joint property or where there is a significant risk that the property has been transferred or that the property has been lost. 4.2 there is a problem with the unified setting of the cooling-off period a uniform 30-day cooling-off period is too mechanical and unscientific, and in practice it is not conducive to the real purpose of the cooling-off period. each party’s marriage is not the same form, the reasons for divorce are not the same. philosophically speaking, specific problems are analysed specifically, so the duration of the cooling-off period should not be set too rigidly. the length of the cooling-off period should be analysed on a case-by-case basis. for example, there are domestic violence, the injured party wants to leave as soon as possible, do not need a day of the cooling-off period; and for example, the parties to the divorce have a few small children, on the issue of custody of small children, children’s education and so on the complexity of the law, the general provisions of the 30 days may not be enough, in the 30 days of the divorced parties have not negotiated to deal with the issues, then it is necessary to extend the period of cool-headedness. therefore, i believe that the period of the cooling-off period should be different according to different circumstances, rather than 30 days in all cases. 4.3 the specific operation method of the cooling-off period system is not clear the specific methods of operation are unclear, and there are no corresponding judicial interpretations to improve them. for example, the law provides that both parties have the right to withdraw, give a party the right to withdraw the initial intention is good, but if a party withdraws the application for divorce, but also want to agree to divorce, according to the provisions of the law but also to wait for the cooling-off period, if a party to repeatedly withdrawn, indicating that the parties to the existence of a divorce there is a difference of opinion, the civil affairs department staff will generally allow them to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 43 published by scholink inc. sue for divorce to the court, which to a certain extent increased the pressure on the court to handle the case, but also to the parties to the divorce life added trouble. this has increased the pressure on the court to handle the case, but also added to the life of the divorced party to the trouble. pursuant to article 1077 of the civil code, in the case of divorce by mutual consent, the parties may apply to the marriage registry for the issuance of a divorce certificate only after 30 days from the date of the application for registration of the divorce, and if neither party has withdrawn the application for registration of the divorce. however, there is no provision on the manner of withdrawal, whether it is oral or written, or whether it can be entrusted to another person. in addition, if one of the parties fails to go to the civil affairs department together to apply for a divorce certificate within 30 days after the cooling-off period due to other force majeure reasons, such as health problems or restriction of personal freedom, the application for divorce is deemed to have been withdrawn, with no remedies provided for in the law or the relevant judicial interpretations. complicated procedures and increased costs may also force some parties to forgo the exercise of their rights. one more thing, if one of the parties abuses the right of withdrawal and makes the divorce by consent proceedings impossible! what should be done about it? 4.4 lack of protection of the rights and interests of minor children there is not the slightest reference to the protection of minor children in the cooling-off period for divorce. although there are special laws to protect minors in china, we should all understand that the family of origin has a great impact on a child’s life, influencing the formation of the child’s character and their outlook on their own life, world and family. therefore, if a man and a woman must divorce, they should try to minimize the impact of the divorce on their children, properly handle their children’s lives and education, and pay attention to the psychological changes in the children of minors. at the same time, attention should also be focused on the issue of how child custody is distributed. if the children are minors at the time of the parents’ divorce, the relevant authorities should intensify their efforts to mediate, communicate with the minor children in depth and listen to their true feelings. according to the civil code, if the children have reached the age of 8 but are not minors, the parents should listen to their views in order to minimise the psychological harm caused by the divorce. the provisions of the civil code on the cooling-off period for divorce are too simple and do not show any protection for minor children, which is a major flaw. it should be noted that in divorce cases, it is the minor children who suffer the most. originally, they need the material and spiritual care of their parents at this stage of their development, but when their parents get divorced, the children have already become bargaining chips, and society should therefore consider paying special attention to and protecting them. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 44 published by scholink inc. 5. an examination of extraterritorial cooling-off periods in divorce the cooling-off period for divorce is not the first of its kind in our country. many foreign countries have provisions for a cooling-off period for divorce, only the names are different, but the purpose is the same, to reduce the divorce rate through intervention and to give both parties a cushion of time. as our divorce cooling-off system has only been established, we need to learn from countries that have already established a mature divorce cooling-off system. 5.1 korean law on cooling-off period in divorce korea’s concept of marriage and family is similar to ours, and in 2005, in an effort to reduce the consistently high divorce rate, the korean authorities introduced a “deliberation period” system in the seoul family court, which makes it clear that in order to obtain a divorce in the family court, the parties concerned must go through a one-week deliberation period, and only formally apply for a divorce after obtaining expert counselling and mediation to no avail. the system makes it clear that the parties concerned must go through a one-week deliberation period in order to obtain a divorce in the family court, and only after obtaining expert counselling and mediation to no avail can the divorce be formally finalised. according to relevant statistics, since the introduction of the “reflection period” in korea, the number of couples withdrawing their divorce petitions has increased exponentially compared to the past. therefore, only two years later, korea has incorporated the divorce deliberation period into the civil code, making it clear that, firstly, couples who intend to divorce by mutual consent must go through divorce counselling given by the family court, and, if necessary, the family court may recommend that the parties concerned receive counselling from a professional counsellor. secondly, the parties applying to the family court for divorce, after the first divorce counselling provided by the family court, confirm a number of matters through the following periods: firstly, whether there are any dependants, and if so, the period of deliberation is set at three months, which covers the woman’s conceived and unborn children; secondly, in the event that there are no children in need of support, the period of deliberation is set at one month; and thirdly, in the event of emergency situations such as domestic violence in the marriage, the family court may, depending on the circumstances of the case, decide on the appropriate course of action to be taken. thirdly, if there is an emergency situation such as domestic violence in the marriage, the family court may shorten or even waive the deliberation period depending on the seriousness of the actual situation. since the introduction of the “reflection period” system in korea, 23 per cent of the parties have cancelled their divorce agreements. the korean government has demonstrated through judicial practice that this cooling-off period has reduced the divorce rate. the korean law can be learnt from the provisions on the cooling-off period for divorce: 1) the period of deliberation varies depending on whether there is a dependent or not, with the period of deliberation being three months with a dependent and one month without one; and 2) the period of deliberation can be shortened or exempted in the event of an emergency such as domestic violence, taking into account special circumstances. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 45 published by scholink inc. 5.2 russian law on the cooling-off period in divorce in accordance with the provisions of the family code of the russian federation, there are two different types of divorce in russia: registered divorce and litigious divorce. in order for a divorce to be registered, both spouses must submit a joint application to the family registry office, and the divorce may not be formalised until one month has elapsed since the application was made. russian family law attaches great importance to the protection of the rights and interests of minor children, and therefore makes it clear that a registered divorce may be applied only if the spouses have no children to raise together, otherwise it may be applied only in the case of a litigious divorce. during this period, the court conducts mediation between the parties to the divorce, inquiring about their true intentions, and gives them a period of reconciliation of no more than three months, so that the parties can think carefully and prudently about their marital affairs. russian law provides for a cooling-off period of one month for registered divorces and three months for divorce proceedings in the courts, a provision that reflects the prudence with which russians approach divorce and is conducive to the protection of the rights and interests of minor children. the russian law on the cooling-off period for divorce has a number of useful features: it attaches importance to the protection of the rights and interests of minor children, and makes it clear that a registered divorce may be applied only when the spouses are not required to provide for the maintenance of their children together. 6. paths to improvement of the divorce cooling-off period system 6.1 divorce cooling-off period to be set exceptions according to china’s civil code, if there are acts of domestic violence, the cooling-off period for divorce is not applicable, which is in line with the original purpose of the establishment of the system. domestic violence not only brings mental and physical harm to the abused party, but also causes great psychological harm to the minor children who have been under the shadow of domestic violence for a long time. for this reason, divorce should be granted immediately, and only in this way can women and minor children be effectively protected. there is also a need to exclude from the cooling-off period cases in which one of the parties is a drug addict, a drug dealer, an abuser, a transferor of property, a concealer of property, etc., and in such cases, the continued existence of a cooling-off period in a divorce will bring more pain to the parties concerned. it will not help to save the marriage. 6.2 distinctions to be made in the setting of the cooling-off period the 30-day cooling-off period for divorce under our civil code is not flexible enough. in this regard, most countries provide for a differentiation based on the presence or absence of minor children. for example, in korea, the civil code provides that if there are minor children, the cooling-off period is set at two months, and vice versa. in the russian federation, the family code provides that the dissolution of a marriage between divorcing parties who have minor children in common can only be effected by www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 46 published by scholink inc. means of litigation. we can learn from this by setting a variable period of one to three months, depending on the circumstances, for longer marriages, because divorce may involve more disputes over the interests of all parties, depending on whether or not to give birth to a child, the age of the minor children, the maintenance of minors, etc. 6.3 focus on the protection of the rights and interests of minor children in a sense, divorce means the dissolution of the family, which marx discussed in his draft law on divorce. divorce does not only affect the divorcing parties, but also the minor children, for example, because if the parents are divorced, the minor children will no longer be able to live in a family with a mother and a father, and this will have a great impact on them. minor children are vulnerable and need parental care and guidance. the parties to a marriage not only enjoy the right to freedom of divorce, but should also fulfill their responsibilities as parents. the need to ensure that the legitimate rights and interests of minors are effectively safeguarded should be reflected at the legislative level. to protect the interests of minors, in cases of divorce where there are minor children, an agreement must be reached on the upbringing of the minor children, and the state may, if necessary, provide certain assistance to the minor children, such as identifying their guardian or providing support to ensure their material needs. in accordance with article 1043 of the civil code, spouses and even family members endeavour to build a harmonious family. in this regard, english law provides that the court may refuse to grant a divorce if the divorce would cause serious financial hardship to the minor children. the korean civil code also provides for a cooling-off period of three months for those who apply to the family court for confirmation of divorce with dependent persons and one month for those who are not dependent. therefore, i think that in our country, in setting the duration of the cooling-off period, we should also focus on whether there are minor children to make flexible provisions, such as the parties to a divorce by mutual consent do not have minor children, the cooling-off period is set at one month if there are minor children, the cooling-off period will be three months. at the same time, in order to protect the interests of minor children, the relevant laws and judicial interpretations should clearly stipulate that, during the cooling-off period, if the couple is to be separated, both parties should deal with the issue of the maintenance of minor children and make arrangements for the lives of minor children in advance. in order to ensure that the issue of the maintenance of minor children is properly resolved. during the cooling-off period, if the child is under two years of age, the child is generally raised directly by the mother: for minor children who have already reached the age of eight, their views should be heard, so as to ensure that the interests of the minor children are effectively safeguarded. 6.4 improving supporting measures for the cooling-off period in divorce to date, china has not set up a special mediation mechanism for marriages. in this regard, we can reasonably draw on the advanced experience accumulated by other countries, while at the same time taking into account our country’s actual situation and making efforts in the following two areas: first, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 47 published by scholink inc. giving full play to the mediation role of grass-roots mediation organisations and marriage registration authorities. grass-roots mediation organisations have a relatively better understanding of the parties involved, and their participation in organising mediation is likely to achieve good results and is very beneficial in terms of saving social costs. in view of the current situation of marriage registries, which may not be adequately staffed, it is necessary to strengthen the cooperation between marriage registries and professional marriage mediation organisations, and to set up professional psychological counselling rooms in marriage registries. this is conducive to a clearer understanding of the true intentions of both parties, ensuring the legitimate rights and interests of the weaker party, and thus achieving the goal of reducing costs and enhancing social benefits. secondly, cooperation between marriage registration departments and the courts has been strengthened, so that if the parties concerned fail to achieve results during the cooling-off period, or if there are cases of domestic violence, abuse or transfer of property, they are actively and quickly guided to file a lawsuit with the courts. in addition, the construction of professional marriage and family counselling teams has been strengthened. specialised marriage and family counselling can provide professional services to help divorcing parties sort out whether their relationship has broken down, and at the same time analyse the stakes of divorce from a professional point of view, so as to achieve the goal of reducing the occurrence of impulsive divorce, which has a significant role to play in maintaining family stability. for example, the korean civil code clearly stipulates that couples wishing to divorce can bring their case to the court, which will provide them with marriage counselling and mediation, and can also advise them to receive professional marriage counselling services. to a certain extent, this eases the burden on the courts and reduces the pressure on court staff. 7. conclusion this thesis through the introduction of china’s divorce cooling-off period system overview, pointed out that china’s divorce cooling-off period system exists in the four deficiencies, analysis of china’s divorce cooling-off period system needs to improve the reasons; through the divorce cooling-off period inside and outside of the region to do a general examination, so as to give the relevant improvement of the divorce cooling-off period system of advice and recommendations. from the establishment of the law to improve the law can not be completed in one day, we must see the construction and improvement of the divorce cooling-off period system is a complex systematic project, can not hope for a short-term to get a complete solution, which requires a variety of subjects from their respective perspectives to contribute to the effort. in the context of freedom of marriage and freedom of divorce, the exploration of the dilemma of the divorce cooling-off system and its path to perfection can not only provide a theoretical basis for the state to formulate and introduce relevant laws and judicial interpretations, but also has great practical significance for the progress of improving and perfecting the system of divorce cooling-off period. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 48 published by scholink inc. references general, a. (2002). grounds for divorce and maintenance between former spouses. institut für zivilverfahrensrecht, salzburg, 2002(9). guo, j. p. (2018). jurisprudential reflections on the construction of china’s divorce cooling-off period system. social scientist, 2018(7), 26-34. posner, r. (2002). sex and reason. political science and law press, 2002(6), 329. shim, h., choi, i., & ocker, b. l. (2013). divorce in south korea: an introduction to demographic trends, culture and law, 2013(rev), 578. https://doi.org/10.1111/fcre.12054 wang, l. (2020). correctly understanding the meaning and function of the “divorce cooling-off period”. china women’s newspaper, 2020(6), 5. yang, l. x. (2018). legislative proposals on 30 issues for revision of the marriage and family part of the civil code. finance and economics law, 2018(6), 3. yang, l. x., & jiang, x. h. (2019). legislative evaluation of the cooling-off period for divorce stipulated in the draft marriage and family section of the civil code. henan social science, 27(06), 35-45. yuan, z. x., & ke, y. j. (2020). how to deal with the “divorce cooling-off period”. in people’s court daily (2020(6), 2nd ed.). zhang, x. j. (2023). on the support of minor children after divorce. legal system and social development, 2023(06), 29-35. https://doi.org/10.1111/fcre.12054 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 173 original paper research on the role of the digital economy in the modern logistics industry zichen wang 1 1 university of shanghai for science and technology, shanghai, china received: may 6, 2024 accepted: june 15, 2024 online published: june 17, 2024 doi:10.22158/elp.v7n1p173 url: http://dx.doi.org/10.22158/elp.v7n1p173 abstract the world has entered an era of digital economy, and china’s logistics industry is accelerating its digital transformation to promote the upgrading of industrial structure, enhance safety and efficiency, improve service quality, optimize user experience, and ultimately drive intelligent transformation. furthermore, in response to the current state of digital logistics, this paper proposes optimization and innovation policies such as strengthening the training of logistics innovation technical personnel, enhancing the economic infrastructure of digital logistics, and promoting deep integration between the digital economy and logistics industr -to enrich logistic theory under the digital economy and promote high-quality development of contemporary logistics industry. keywords digital economy, smart logistics, logistics industry, digital era, development 1. introduction with the rapid development of global e-commerce and internet industry, logistics industry-as an indispensable part-also follows its development. the logistics industry is a new emerging industry in contemporary society, and its importance and vitality in contemporary society has great potential for future development. the world has entered an era of digital economy, artificial intelligence, blockchain technology and cloud computing and other digital technologies have been used in all walks of life, the logistics industry is also entering a period of digital transformation: the traditional logistics industry should be adjusted in a timely manner, better integration with digital technology to promote the development of each other. this paper mainly studies the current situation of the logistics industry’s demand for digital economy technology in the era of digital economy, explores the role of digital economy in the modern logistics industry, gives the logistics industry optimization and innovation countermeasures in the era of the digital economy, and puts forward good policy recommendations to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 174 promote the accelerated and high-quality development of the logistics industry. 2. definition of the digital economy and the current status of its development the digital economy is a new economic form following the agricultural and industrial economies. the digital economy refers to a series of economic activities that use digitized knowledge and information as the key production factors, modern information networks as the important carriers, and the effective use of information and communication technologies as the important driving force for efficiency enhancement and the optimization of the economic structure, and it is a new economic form that promotes the greater unity of equity and efficiency. the digital economy is developing at a fast pace, radiating widely and influencing profoundly, constantly pushing forward profound changes in the modes of production, living and governance, and becoming a key force in reorganizing global factor resources, reshaping the global economic structure and changing the pattern of global competition. the digital china development report (2023) suggests that with the joint efforts of all regions and departments, positive progress will be made in the construction of digital china in 2023. the pace of data foundation system construction has accelerated, and a national data work system with up-and-down linkage and horizontal synergy has initially taken shape. the digital infrastructure has been expanding and speeding up, and the total scale of arithmetic power has reached 230eflops, ranking second in the world; key core technologies such as advanced technology, artificial intelligence, 5g/6g and other key core technologies have been making breakthroughs, and high-performance computing has continued to be in the first echelon in the world. the data factor market has become increasingly active, with total data production amounting to 32.85zb, a year-on-year increase of 22.44%. 2023 saw china’s digital economy maintain steady growth, with the added value of core industries in the digital economy accounting for 10% of gdp, and as of 2024, the scale of china’s digital economy market continues to expand, accounting for an increasing proportion of china’s gdp, which signifies that the digital economy’s national economic proportion has been increasing, and has become an important force driving economic growth in china in the new era. 3. analysis of the current situation of china’s logistics industry in a digital context the logistics industry is rapidly advancing its digital transformation, enhancing logistics efficiency and service quality through technologies such as the internet of things, big data, and artificial intelligence. since 2010, express logistics enterprises have extensively established big data application platforms, such as the cai niao supply chain control tower, to enable data-driven operations through functions like panoramic vision, abnormal alarm systems, and intelligent diagnosis. in 2023, the number of newly established digital logistics enterprises exceeded 5,900, marking a nearly 12% increase compared to 2022. additionally, in 2023 there will be a total of 1,647 new digital logistics projects accounting for approximately 54.77%, with specific focus on big data (1,947 projects) and internet of things technology (1.736 projects). the penetration rate of digital logistics projects is projected to reach www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 175 49.5% in 2023-an increase of 12.5% from the previous year. sf express continues to lead scientific and technological innovation by launching a digital twin platform in order to establish a highly accurate virtual representation of real-world scenarios within the logistic process using intelligent algorithms for optimization strategies and algorithm development research. the ongoing acceleration of digital transformation within the logistics industry provides robust support for high-quality development while continuously improving overall quality and efficiency. 4. an exploratory analysis of the role of the digital economy in the modern logistics industry 4.1 digital economy promotes green development of the logistics industry the digital economy promotes the green and sustainable development of the logistics industry. the application of digital technologies such as the internet of things, big data analysis, artificial intelligence, cloud computing, etc., makes the logistics system more reasonable and efficient, reduces the non-essential invalid transportation and the use of transportation means of time, which reduces the energy consumption and air pollution; the digital economy technology makes the warehousing of the logistics industry more and more intelligent and automated, for example, the application of internet of things sensors makes the warehouse temperature, humidity, etc. monitored in real time, which helps to reduce the waste of goods and the energy consumption of transportation; the use of digital economy technology optimizes the warehouse layout and transportation route of the logistics system. the application of internet of things sensors the transportation of fruits and vegetables, for example, making it possible to monitor the temperature and humidity of the warehouse in real time, thus helping to reduce the waste of goods and transport energy consumption; the use of digital economy technology makes the logistics system optimize the layout of warehousing and transportation paths, so that the goods can arrive at their destinations faster and more efficiently, reduce the number of unnecessary transportation links, shorten the transport path, thus reducing the energy consumption of transportation means and reducing the pollution of the environment. in the era of digital economy, green logistics technology is more and more widely used in the logistics industry, new energy electric vehicles, hydrogen cars gradually replace traditional oil vehicles, new energy trucks are gradually used in the logistics industry, such as the use of tesla semi electric trucks, making the global automobile emissions reduced, which contributes to environmental protection. at the same time, big data analysis technology contributes to the development and optimization of green packaging technology in the logistics industry, which reduces the damage to the environment caused by traditional logistics packaging materials; the application of digital economy technology improves the synergy and visibility of the supply chain. cloud data storage technology enables real-time sharing of data and information between the supply chain, improves the responsiveness and operational efficiency of the whole supply chain, enables timely and accurate transmission of information, reduces the risk of logistics transportation and storage process, and then reduces energy loss, which contributes to the green and sustainable development of the logistics industry. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 176 4.2 the digital economy promotes the upgrading of the industrial structure of the logistics industry the digital economy optimizes the original allocation of resources in the logistics industry, the introduction of the internet, artificial intelligence, big data and other digital technologies can optimize the allocation of resources in the logistics industry, promoting the transformation of the logistics industry towards digital intelligence, the digital economy will prompt the interconnection of different industries, which will help to eliminate the asymmetry of information between different industries, and promote the linkage of independent industries to each other to eliminate barriers, which will in turn help to improve the entire industry chain, making it more efficient and rational. this will help improve the whole industry chain and make resource allocation more efficient and reasonable. the digital economy has optimized the industrial model of the logistics industry from all aspects. on the one hand, the reference of digital technology optimizes the management mode of logistics enterprises, which use big data and cloud computing technology to establish an intelligent management system to realize the intelligent scheduling and optimal allocation of resources such as orders, inventories, vehicles, etc., which improves the efficiency of logistics; at the same time, the introduction of intelligent logistics equipment and robots enables logistics enterprises to realize the automation of part of the manual labor, further improving the logistics efficiency. on the other hand, the reference of digital technology optimizes the transmission of logistics information such as the location and status of goods and improves the transparency of logistics. users and companies are able to query the courier information at any time, reducing the information asymmetry of logistics information, and the application of artificial intelligence technology also makes the processing of logistics information more automated. the digital economy meets the consumer demand in the process of intelligent transformation of the logistics industry, and the digital economy has largely changed the behavior of consumers, and big data can accurately push recommended products according to the online shopping habits of consumers as well as recommend the same type of products with different price levels according to the historical consumption ability of consumers, and consumers will enhance the possibility of purchasing goods because of the accurate push of big data, therefore, the application of digital technology indirectly has a positive impact on the logistics industry. for logistics companies, the application of big data can more closely match the individual needs of consumers and consumption tendencies, each consumer can obtain personalized services, the overall service experience of consumers continues to improve, so that the digital economy can meet the consumer demand in the process of intelligent transformation of the logistics industry. 4.3 the digital economy enhances the safety and timeliness of the logistics industry the advancement of digital logistics facilitates the utilization of internet of things, big data, and other technologies by logistics enterprises to conduct real-time monitoring and management of storage, transportation, and delivery processes. this ensures the security of logistics goods at every stage, significantly reduces the risk of damage and loss, and guarantees overall logistics security. logistics www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 177 enterprises employ big data technology to analyze historical data from various countries and regions, capturing information such as traffic patterns, human geography factors, and environmental conditions. this enables them to effectively plan and predict transportation routes for logistics goods in real time while minimizing potential risks. in order to address the constant risk of information leakage and loss due to the large volume of data in the industry, logistics enterprises ensure secure information storage through encryption, protection measures, backup systems, and other digital security technologies. additionally with big data analysis and artificial intelligence technology support, logistics enterprises establish an intelligent distribution system that automatically optimizes distribution modes based on real-time weather conditions, traffic situations, and environmental factors ensuring timely delivery. furthermore, the use of automated processing technology such as robot sorting in warehouse management reduces labor costs and improves speed accuracy thus enhancing timeliness. logistics companies use big data analysis technology to analyze the logistics order demand in different months, different holidays and different regions in previous year, so to predict future demands and carry out capacity planning resource allocation in advance enabling them to prepare calmly ensuring timeliness. 4.4 the digital economy improves service quality and optimizes user experience in the logistics industry the application of digital economy technology in the logistics industry has optimized the service mode of the logistics industry, and digital technology has made the service of logistics more personalized for different users, so that different needs of users can be met. compared with the traditional logistics service mode, users can choose a more favorable transportation mode, receiving mode and payment mode in the mini program, which greatly improves user experience. logistics companies continue to analyze and excavate the collected data to better understand the different behavior patterns of all users, provide personalized logistics services, increase user stickiness and satisfaction, and improve their own competition in the logistics industry. the application of artificial intelligence in the logistics industry enables logistics enterprises to create their own intelligent online robots, which can answer and deal with questions at any time according to customers’ questions, establish a good communication channel between enterprises and customers, and improve users’ trust and satisfaction with enterprises. internet of things technology enables enterprises to locate and monitor logistics goods in real time, and predict the more accurate arrival time, customers can also monitor and browse the status of logistics goods in real time, check the estimated arrival time of goods, compared with the unknown status and location of traditional logistics goods. the internet of things technology, to a large extent, optimizes the users’ experience. 4.5 digital economy promotes intelligent transformation of the logistics industry the intelligent logistics industry refers to the transformation of traditional logistics into “internet + logistics”. logistics enterprises integrate internet of things information and other technologies to establish a smart integrated platform for logistics enabling intelligent warehousing, delivery, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 178 transmission, and receipt processes. this facilitates high-quality and efficient collaboration among various units within the logistics system. the digital economy drives the digital and intelligent transformation of the industry by efficiently integrating and analyzing data in the logistics process plus enhancing information visualization. enterprises can make informed logistic decisions through data analysis, leading to automation and intelligence in the industry. the digital economy introduces new models such as self-service delivery machines, campus automatic delivery robots, drone delivery, shared truck warehouses etc., providing momentum for the industry’s intelligent transformation. additionally, globalization is a characteristic of the digital economy which promotes resource sharing among global logistics enterprises through technology exchange. 5. the demand analysis of logistics industry for digital economy and its current inadequacy 5.1 data security and technical standards and specifications with the continuous development of the digital transformation of the logistics industry, a large amount of private data such as transaction data, user information, address information, supply chain data and other private data are collected and left on file, data leakage and customer privacy leakage have become a potential threat, and the huge information system of the logistics enterprise is always at risk of being maliciously attacked and information leakage, so strengthening data security is the key to the transformation of the logistics industry into a digital and intelligent one, and logistics enterprises should establish a more sound data security management system, develop complete data security processes and policies, and set up a professional and experienced security team to provide more security for the logistics industry in the era of digital economy. compared with the traditional logistics industry, the logistics industry in the era of digital economy needs more perfect technical standards and management norms, and the central government should set up relevant industry laws and regulations in a timely manner. non-uniform technical standards and norms will make the market chaotic, supply chain inefficiency, increase the difficulty and cost of cooperation between enterprises, and even bring security risks and other problems. logistics industry associations and organizations should take the initiative to participate in the development of industry technical standards and norms, so that the domestic norms and international norms adapt to the relative connection, logistics enterprises should also take the initiative to comply with the standards and norms set up by the industry, in accordance with the relevant laws and regulations. 5.2 refinement of the talent structure in digital logistics with digital transformation of the logistics industry, the human resource structure within the logistics industry has changed dramatically, some traditional manual positions have been replaced or removed, the industry needs more technical logistics talents, the logistics industry needs to invest more time and capital to cultivate technical and innovative talents, expand the talent pool of digital logistics, and make up for the gap in the supply of technical talents in the logistics industry in the era of digital economy. regions with different levels of development should set up relevant policies and benefits to attract www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 179 skilled logistics talents, to ensure a balanced digital transformation of the logistics industry between regions and to avoid brain drain. 5.3 green logistics and sustainable supply chain management the logistics industry in the era of digital economy should utilize big data, the internet and other technologies to reduce the damage to the environment caused by logistics, incorporate the esg system into its own new standards, reduce energy waste and packaging pollution, and pay more attention to green and low-carbon logistics methods. logistics enterprises should pay attention to the sustainability of the supply chain between themselves, their customers and their suppliers, so as to reduce the cost of their own operations and enhance their competitiveness and development stability. 6. logistics industry optimization and innovation countermeasures based on digital economy 6.1 enhance the training of technical personnel in logistics digital technology and logistics enterprises complement each other and promote each other’s development, the logistics industry through the introduction of digital technology continues to develop in high quality, so it is urgent to cultivate logistics professionals who are proficient in digital technology, colleges and universities should respond to the changes of the times, promote the school curriculum and the modern industry in line with the focus on the cultivation of composite talents who have digital skills and professional knowledge of logistics. at the same time, the state should give more financial support to colleges and universities to promote the construction of the relevant professional curriculum system in colleges and universities, and local governments should formulate policies for the introduction of digital talents in the logistics industry as well as bonuses and benefits, etc., so as to inject more energetic and innovative scientific and technological talents into the logistics industry, and to make up for the shortage of talents in the logistics industry in the era of the digital economy. 6.2 strengthen the infrastructure of digital logistics economic, facilitate the deep integration of digital economy and logistics industry local governments should accelerate the construction of digital infrastructure, and accelerate the deployment and setup of a new generation of intelligent facility systems, such as setting up logistics information platforms, cloud computing and big data centers. promote the digital transformation, intelligent transformation of national publicized facilities, create an all-round upgraded efficient, high-speed transportation system, use artificial intelligence, big data, cloud computing, the internet and other technologies to realize the digital and automated management of the logistics industry, and continue to promote the development of the deep integration of the digital economy and the logistics industry. 6.3 promote the development of intelligent logistics implement the “internet +” strategy: encourage logistics enterprises to apply modern information technologies such as the internet, big data and artificial intelligence to establish an intelligent logistics system, optimize the organization of logistics and transportation, and improve the efficiency of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 180 logistics and transportation, such as adopting ai algorithms to carry out the intelligent allocation of orders, transportation path planning and intelligent prediction of traffic congestion to further improve logistics efficiency and management level. support logistics technology innovation, encourage enterprises to increase investment in automation, intelligent logistics equipment and information technology research and development, to enhance the intelligent level of logistics operations, such as in pet transportation, adding sensors, trackers, temperature detectors and other equipment connected to the user’s cell phone terminal, so that the user can use the internet technology to observe the pet’s health and vital signs in real time, so as to achieve the development of intelligent logistics. 6.4 promote the popularization of digital logistics technology in order to promote the promotion and popularization of digital technology in small and medium-sized cities, and comprehensively promote the digital transformation of logistics, local governments can set up a special fund to vigorously promote the digital transformation of small logistics enterprises in rural and non-developed areas, so that they can break the threshold of digital transformation and narrow the digital technological gap between enterprises; logistics enterprises should strengthen the training and exercise of employees in digital technology, so that they can better learn and adapt to digital tools and software, and improve the overall technological capabilities of enterprises; the media should increase the promotion of digital logistics for users, so that users of different ages can better understand, adapt to, and use digital logistics technology, and promote the digitalization of logistics industry. logistics enterprises should strengthen the training and exercise of employees in digital technology, so that they can better learn and adapt to digital tools and software, and improve the overall technological capabilities of the enterprise; the media should increase the promotion of digital logistics to users, so that users of different ages can better understand, adapt to, and use the digital logistics technology, and promote the digital transformation of the logistics industry. 7. conclusion the rapid development of the digital economy has injected a new “living water” and a new “energy” into the modern logistics industry. the logistics industry should keep up with the pace of the digital economy, seize the new opportunities empowered by the digital economy, meet the new challenges, and strive to realize the digital transformation and industrial change, and make positive contributions in the wave of promoting the digital transformation of the global economy, and continue to strive for the digital economy to drive the high-quality development of 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(2024). research on the impact of digital economy on the high-quality development of logistics industry. logistics science & technology, (05), 20-23, 32. zhong, m. y. (2024). impact analysis of digital economy empowering the development of smart logistics. railway procurement and logistics, (05), 45-47. zhong, x. r. (2024). the impact of digital economy on the industrial upgrading of logistics industry. china storage & transportation, (03), 157-158. https://doi.org/10.1016/j.jtrangeo.2016.08.009 https://doi.org/10.18178/joams.11.3.84-90 https://doi.org/10.1016/j.telpol.2022.102484 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 1, 2023 www.scholink.org/ojs/index.php/elp 46 original paper performance of contracts upon the fundamental change of circumstances in vietnam’s civil code 2015 duong quynh hoa 1 1 deparment of civil law, institute of state and law, vietnam academy of social sciences, hanoi, vietnam received: march 7, 2023 accepted: march 17, 2023 online published: may 10, 2023 doi:10.22158/elp.v6n1p46 url: http://dx.doi.org/10.22158/elp.v6n1p46 abstract while performance of contracts upon the fundamental change of circumstances is not a new matter in the laws of developed countries, it is newly regulated in the 2015 civil code of vietnam. only now, vietnam has had guiding documents from competent state agencies on this matter, so the application in practice is still inconsistent, especially in determining what is the fundamental change of circumstances. therefore, on the basis of clarifying the concept, legal status and practical application problems, the article will also make some recommendations for the contracting parties as well as the court in handling the matter of performance of contracts upon the fundamental change of circumstances. keywords contract, contract adjustment, change of circumstances 1. introduction pacta sunt servanda (principle of the binding nature of a contract) is one of the fundamental principles of contract law. however, in some cases, the rigid application of this principle may lead to irrationality or unfairness for a party of the contract. therefore, balancing the principle of pacta sunt servanda and the principle of rebus sic stantibus (the principle that allows the contract to be adjusted upon the change of circumstances) is great concern. many legal systems around the world have even regulated cases when circumstances have changed to the point that the obligor is unable to perform his/her obligations, also known as “force majeure”, as one of the grounds to exempt the other party’s liability for failure to perform his/her obligations (note 1). in addition, there are cases when circumstances change, although not to the extent that one party cannot perform their obligation, but may cause the cost of performing the obligation to increase excessively, causing unfairness to the other obligee. this situation is often referred to as a “fundamental change of circumstances”. however, in current legal systems, there are www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 47 published by scholink inc. still various views on the performance of a contract upon the fundamental change of circumstances. in vietnam, for a long time, the lack of provisions to adjust situations when the change of circumstances leads to obvious damage to one party if they continue to perform the contract as the original agreement has caused many confusions to both the judges as well as the parties in the process of dispute settlement. therefore, the stipulation of the performance of contracts upon fundamental change of circumstances in article 420 of the civil code 2015 is considered a breakthrough. 2. method it is a normative legal research using secondary data, such as: academic articles, legal normative documents, reports, journal articles as well as conference papers and other documents having correlation with contract law and performance of contracts upon the fundamental change of circumstances. the data were collected using library research, then legal interpretation method was employed to analysis data. 3. results and discussions 3.1 definition of performance of contracts upon fundamental change of circumstances the principle of pacta sunt servanda is a fundamental principle of contract law. when both parties enter into the contract, they have expressed their commitment and desire to be bound by their own will to the contractual obligations, therefore, the parties will be responsible to perform the obligations even if the performance costs may increase. this confirms the role of the contract as a tool for the parties to manage their own plans and decisions. however, just as the principle of free will has certain limits, the principle of mandatory validity is also not absolute. during the performance of contracts, certain circumstances may arise and the parties need to reconsider (note 2). commercial practice has proven that in contracts, especially long-term contracts, the contracting parties may face risks caused by circumstances such as natural disasters, socio-economic crisis, market circumstances… thus leading a party to encounter excessive difficulties in performing their obligations. circumstances that fundamentally alter the equilibrium of such contractual obligations are refer to in international contract law as “hardship” or “change of circumstances” (note 3), however, the term “change of circumstances” shall be mentioned frequently in this article. “change of circumstances” is a concept established to shift contractual risks and is designed as rules to resolve conflicts of interest when circumstances change or unexpected situations arise, thus completely alter the context of the contract. “change of circumstances” is directly regulated in the civil codes of countries that have recently re-codified their law (note 4), however, due to its novelty and modernity, the clause “change of circumstances” is often developed in case law by explaining and detailing the principle of good faith. hence, the principle of good faith shall be applied to restore the relative equilibrium between the parties when performing the contract. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 48 published by scholink inc. in some legal systems in europe, by law or case law, it is generally accepted that a contract can be terminated or altered when the preservation of the original contract may results in unacceptable consequences, incompatible with the law and is unjust. the italian civil code appears to be the first to adopt the theory of “fundamental change of circumstances”, a mechanism that has influenced a number of later systems, especially in latin american countries. according to article 1467 to article 1469 of the italian civil code, contractual commitments can be canceled upon the occurrence of a sudden, unusual, unpredictable event after the contract has been signed and before the performance of the contract; and this event makes it extremely difficult for one party to perform the contract. the involving parties can avoid the cancellation of the contract by demanding or offering an equitable modification of the contract (article 1467 (3)) (note 5). however, these provisions are not mandatory, and the parties may agree not to apply them. italy’s case law has had ruling on this issue (note 6). in addition, article 258 of the dutch civil code allows a judge to modify the terms of a contract based on unforeseen change of circumstances. the same can be seen in article 437 of the portuguese civil code (note 7). in germany, before the outbreak of world war i, german law took a strict stance on the possibility of contract modification due to change of circumstances. accordingly, german law only recognizes the doctrine of impossibility to perform obligation (unmöglichkeit) (note 8). however, the economic situation after world war i, especially hyperinflation, had made many contracts become unreasonable. at that time, the german civil code of 1896 did not allow the court to modify the contract due to change of circumstances. therefore, the german courts had settled a number of disputes based on the doctrine of impossibility to perform obligation, but had faced objections. after that, professor oertmann developed a new doctrine of contractual basis (geschäftsgrundlage) (note 9). according to this doctrine, the expectation of one party on the performance of the contract must coincide with that of the other party or the other party must be clearly informed of this expectation. if there is a change of circumstances after the contract has been made, the basis of the contract (geschäftsgrundlage) shall ceases to exist and the court may release the parties from the obligation to perform the contract or modify it in order to restore the equilibrium. this doctrine of professor oertmann was quickly accepted and applied by the german courts for a long time (note 10). in 2002, there was an important amendment to the german civil code and the performance of a contract upon the change of circumstances, which was noted in article 313. clause 1 article 313 stated that: if circumstances which became the basis of a contract have significantly changed since the contract was entered into and if the parties would not have entered into the contract or would have entered into it with different contents if they had foreseen this change, adaptation of the contract may be demanded to the extent that, taking account of all the circumstances of the specific case. clause 3 article 313 stated that if adaptation of the contract is not possible or one party cannot reasonably be expected to accept it, the disadvantaged party may revoke the contract (note 11). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 49 published by scholink inc. in the united states, article 2-609 of the uniform commercial code acknowledged and allowed the the contract to be renegotiated due to the change of circumstances. accordingly, “if the actual costs of performing the obligation have changed substantially, by more than 10 times the costs expected at the time of the contract was entered into, the obligor may ask the court to declare termination of the contractual relationship due to impracticability”. article 2.615 of the ucc acknowledged the impracticability of performance (change of obligation upon the change of circumstances) in the sale of goods. thus, circumstances are considered to be changed if they happen unexpectedly, and the involved parties cannot not foresee nor expect of it, or if they had expected it, they did not think that it could become reality at the time they entered into the contract (note 12). in france, the performance of a contract upon the change of circumstances is recognized in article 1195 of the french civil code (note 13). it states that: if a change of circumstances that was unforeseeable at the time of the conclusion of the contract renders performance excessively onerous for a party who had not accepted the risk of such a change, that party may ask the other contracting party to renegotiate the contract. the first party must continue to perform his obligations during renegotiation. in the case of refusal or the failure of renegotiations, the parties may agree to terminate the contract or by a common agreement ask the court to set about its modification. in the absence of an agreement within a reasonable time, the court may, on the request of a party, revise the contract or terminate it, from a date and subject to such conditions as it shall determine. “hardship” has also been codified in many code of conduct on international commercial contracts with great influent around the world, such as the unidroit principles of international commercial contracts and the principles of european contract law. the unidroit principles of international commercial contracts 2010 has regulated the performance of contract upon the fundamental change of circumstances (hardship) from article 6.2.1 to article 6.2.3. it has defined the term hardship as followed: there is hardship where the occurrence of events fundamentally alters the equilibrium of the contract either because the cost of a party’s performance has increased or because the value of the performance a party receives has diminished, and must satisfy the following four conditions: “a. the events occurs or become known to the disadvantaged party after the conclusion of the contract; b. the events could not reasonably have been taken into account by the disadvantaged party at the time of the conclusion of the contract; c. the events are beyond the control of the disadvantaged party; and d. the risk of the events was no assumed by the disadvantaged party” (note 14). article 6.2.1 of the 2010 unidroit principles establishes general principles for the application of hardship: “where the performance of a contract becomes more onerous for one of the parties, that party is nevertheless bound to perform its obligations subject to the following provisions on hardship” (note 15). it can be seen that this provision emphasizes the importance of the principle of pacta sunt servanda and does not allow the involved parties to automatically suspend or terminate the performance of their obligations whenever there is a change in circumstances. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 50 published by scholink inc. normally, a change in circumstances does not affect the obligation to perform, so the obligor cannot invoke this reason to not perform its obligation unless a change in circumstances affects the principle of equity and mutual interests of the contract. whether a change is considered “fundamental” in a given case will depend upon the circumstances. a change in circumstances that affects (increase or decrease) 50% or more of the total contract value will be considered as a fundamental change (note 16). the principles of european contract law-pecl also recognizes a change of circumstances clause in article 6:111. it states that: “if, however, performance of the contract becomes excessively onerous because of a change of circumstances, the parties are bound to enter into negotiations with a view to adapting the contract or terminating it, provided that: (a) the change of circumstances occurred after the time of conclusion of the contract, (b) the possibility of a change of circumstances was not one which could reasonably have been taken into account at the time of conclusion of the contract, and (c) the risk of the change of circumstances is not one which, according to the contract, the party affected should be required to bear”. thus, it can be seen that the clause that modifies the contract when there is a change in circumstances is for the event of a fundamental change in circumstances due to objective reasons that severely affect the equilibrium of the contract, as well as the interests of one party and cause the performance of the contract extremely difficult and expensive. hence, the law allows the parties the right to make demand to the court (or arbitrator) to adjust the contract. if it cannot be adjusted, the contract will be terminated to ensure the equilibrium of interests between the parties in the contract. the clause that regulates a contract when there is a fundamental change in circumstances is not inconsistent with the principle of pacta sunt servanda, but it complements this principle, in order to eliminate inequities in the proper performance of the contract. on the one hand, this helps to ensure the interests of the involved parties, while on the other hand brings a solution to promote economic development since this helps the contract to continue to be performed and yields interests to both parties instead of one party has to suffer the onerous disadvantages or the termination of the contract. hardship is also a clause that concretizes the principle of good faith when there is a change in circumstances that lead to an excessive imbalance of interests between the parties of the contract, whereby the parties not only have to care about their own interests but must also take care of the other party’s interests so that both parties of the contract may benefit. 3.2 adapting contract upon the fundamental change of circumstances in vietnamese law the 13th national assembly of vietnam approved the civil code of 2015 on november 24 th 2015 and codified the provisions on fundamental change of circumstances for the first time. however, the code only lists its signs. this includes: a) there is a change to the circumstances due to objective reasons, occurring after the contract is entered into; b) the parties cannot anticipate the change of circumstances when the contract is signed; c) the conditions changed so much that the contract would not have been signed into or would have had different terms if the parties had anticipated it; d) ) continuing to fulfill the contract without modifying its terms may entail substantial loss and harm to one party; d) the party www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 51 published by scholink inc. whose interests are affected has taken all necessary measures to the best of its ability and appropriate with the nature of the contract but is unable to prevent or mitigate the level of affecting the interestss. upon looking at these conditions, it can be seen that it is quite similar to the provisions on “hardship” in the principles of international commercial contracts. of the 5 conditions above, conditions (a) and (b) are quite recognizable and have many similarities. these two conditions represent the objectivity and unpredictability of the change of circumstances. these changes must occur after the contract was entered into. when enter into a contract, the parties also could not have foreseen the occurrence of such situation. if the parties were aware of such facts when enter into the contract, it must be taken into account as a basis to enter into the contract, and if such events do occur in the future, no reference to the “fundamental change of circumstances” shall be invoked. conditions (c) and (d) are distinctive conditions, closely related to each other and play an important role in identifying fundamental change of circumstances. not every change should be seen as a fundamental change of circumstances. if the change of circumstances does not affect the obligation to perform the contract, then this provision is not invoked, unless the equilibrium between the contractual obligations is fundamentally altered. a situation is considered to be fundamentally changed when the change is big enough to seriously affect the interests of the affected party, if the parties had known in advance, the contract would not have been entered into or would have entered into but with completely different contents. if the affected party still continue the performance of the contract without adjusting the contract contents, they will receive serious damage. when there is a fundamental change of circumstances, the party with affected interests must apply necessary measures to the best of its ability to prevent or mitigate the level of the impact on its interests. if these necessary measures are not taken and the interests are affected, this provision shall not be invoked. condition (đ) is a sufficient condition for the party affected by the change of circumstances to exercise the right to request an modificaion (adjustment) of the contract or to terminate the contract. under this condition, upon fundamental change of circumstances, the affected party shall endeavor to take all necessary measures to the best of its ability to minimize the effect of the change of circumstances on its own legitimate interests. in the event that the affected party fails to take the necessary (while possible to perform) measures and if these measures were to be applied, the extent of the impact would have been prevented or mitigated, this party loses the right to request the modification or termination of the contract. according to clause 2 article 420 of the civil code 2015, in the event there is a fundamental change of circumstances that causes an equilibrium in contractual obligations, the party whose interests are affected has the right to request the other party to re-negotiate the original terms of the contract within a reasonable period of time to better adapt to the new circumstances (note 17). the request for contract renegotiation by the disadvantaged party and the conduct of the two parties in the contract renegotiation process must comply with the principle of good faith. the disadvantaged party must be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 52 published by scholink inc. honest when proclaims the fact that there are fundamental changes of circumstances and may not demand renegotiation as a tactic. the party with affected interests may bring up options to modify the contract to apdapt to the circumstances and balance the interests of both parties. the other party may accept or not accept the plan proposed by the affected party. if the parties can reach to an agreement on a new plan, the contract shall continue to be performed. if no agreement can be reached, one of the parties may ask the court to settle the contract by terminating the contract at a certain determined time or modifying the contract to balance the legitimate rights and interests of the parties due to a fundamental change in circumstances. this situation may occur due to the fact that the unaffected party completely refuses to accept the request for contract renegotiation or the contract renegotiation process which has been conducted in good faith by the parties has not been successful. thus, it can be seen that the request for modification or termination of the contract in the event of a fundamental change in circumstances is not a unilateral right of the party affected by the change in circumstances. the mechanism to exercise this right is completely different from the mechanism to exercise the right to unilaterally terminate the performance of the contract due to one party seriously violates the obligations of the contract (note 18). regarding this provision, a number of issues are worth noting as followed: first, the parties can only ask the court to consider the termination or modification of the contract if they cannot reach an agreement on their own, and all parties enter into the contract are entitled to exercise this right; second, in the settlement of the involved party’s petition, the court must give priority to the application of the contract termination mechanism. the court may only decide to modify the contract in cases where the termination of the contract will cause far more damage than the costs to perform the contract if it is modified. this provision raises the following issue: in case the involved parties only file a request to modify the contract, does the court have the right to decide the termination of the contract?; third, the request to modify or terminate the contract in the event of a fundamental change in circumstances is not a unilateral right of the affected party with the change in circumstances, therefore during the negotiation process to modify or terminate the contract, while the court settles the case, the parties must continue to perform their obligations under the contract, unless otherwise agreed upon by the parties. 3.3 some difficulties arise in practical application of the provision although the civil code 2015 has regulated quite detail the conditions to what determine as the fundamental change of circumstances thus leading to the affected party’s right to request modification or termination of the contract, but in practice some problems may arise as follow: first, the civil code 2015 does not regulate the exclusion of certain types of contracts by its nature or by custom, thus leading to the situation where a party may not be able to modify or terminate when there is a fundamental change of circumstances. for example, with a forward contract for the sale of goods, the seller commits to deliver and the buyer commits to receive the goods at a future time. this is a high-risk type of contract, when entering into this kind of contract, the parties are forced to carefully calculate the impact factors of the market. therefore, in the event of strong market fluctuations www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 53 published by scholink inc. (fundamental change in circumstances), can a party petition to modify or terminate the contract or must bear the risk? second, the civil code 2015 does not regulate that the party affected by the change of circumstances must be completely free of mistakes in the performance of the contract to be able to petition for a modification, supplementation to the contract. third, clause 3 article 420 of the civil code 2015 states that if the parties cannot reach an agree on the modification of the contract within a reasonable time, one of the parties may request the court to modify or terminate the contract. however, the court is only permitted to make a decision on modification of the contract in a case where the termination of the contract will cause loss and damage of an amount higher than the costs for performance of the contract if the contract is modified. the concepts of “damage” and “costs for performance” in this article still need to be clarified. specifically, to which party will the damage caused by termination of the contract be compared with the costs of performance of the contract? does it take into account the costs and benefits of a third party? in addition, the settlement regulated in the civil code 2015 may not be consistent with the principle of maintaining the validity of the contract (favor contractus), as the court should give priority to maintaining the validity of the contract by modifying the contract and only when the modification of such contract is impracticable or unreasonable for the other party should the court terminate that contract. approaching from a comparative perspective, while article 6.2.3 of the 2010 unidroit principles also recognized the two measures of termination and modification of contract, it did not specify the order of priority. however, in the comments on the 2010 unidroit principles, researchers have debated that, to a reasonable extent, contract modification should take precedence over. fourth, the civil code 2015 is following the direction that when the court modifies the contract, the court must ensure that the modification must maintain the equilibrium of the legitimate rights and interests of the parties due to the fundamental change of circumstances. this provision seems to be understood as the legitimate rights and interests of the parties will always be balanced at the time of entering into the contract. if in the cases where the rights and interests of the parties were not in equilibrium at the time the enter into the contract, when a fundamental change in circumstances arises, it is not entirely clear that the court has the right to modify the contract in the direction of maintaining the equilibrium of legitimate rights and interests between the parties (note 19). fifth, the civil code only refers to the jurisdiction of the court, but does not mention the arbitrator’s authority to consider and resolve requests for contract modification or termination when there is a fundamental change of circumstances. however, there might be a problem that arise which is if the contract has an arbitration clause, does the court have the jurisdiction to resolve it or not? according to article 6 of the law on commercial arbitration 2010: “in case the disputing parties have reached an arbitration agreement but one party initiates a lawsuit at a court, the court shall refuse to accept the case, unless the arbitration agreement is invalid or unrealizable”. thus, in theory, if the contract has an www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 54 published by scholink inc. arbitration clause, the court will have to refuse to accept the settlement of the contract modification at the request of the parties. arbitration jurisdiction to settle disputes as prescribed in article 5 of the law on commercial arbitration 2010: “a dispute shall be settled by arbitration if the parties have an arbitration agreement”. however, according to the provision in clause 3 article 420, the arbitrator has no jurisdiction. thus, with this clause, if there is an arbitration clause in the contract, there will be no competent authority to deal with the issue of contract modification upon fundamental change of circumstances. while studying the two sets of principles on international commercial contracts, the unidroit principles on international commercial contracts 2004 and the principles of european contract law, it can be seen that both of these principles recognize the authority of both the court and the arbitrator to modify the contract upon the fundamental change of circumstances. 4. some suggestions we advise improving vietnam’s civil law in the context of internationalisation based on theoretical and practical study on the execution of contracts upon the fundamental change of circumstances in vietnam’s civil code 2015, specifically: firstly, for the parties when enter into the contract, they need to be cautious and try to anticipate the possibilities that may occur during the performance of the contract, especially contracts with a long implementation time, contracts that are easily affected by external factors, to negotiate and reach an agree in advance on how to perform and handle unexpected circumstances. the parties should list some (but not all) possible events as a condition of the fundamental change in circumstances and their consequences, and what are the responsibilities of the parties if such change of circumstances occur. the fundamental change of circumstances clause always consists of two main parts, the first part speculates when to consider that there is the fundamental change of circumstances and the second part describes the consequences of that speculation. this is also the way that the international chamber of commerce-icc recommends the parties to do when establishing the clause on the fundamental change of circumstances in the contract. secondly, when there is a change in circumstances during the performance of the contract, it should be clarified whether the change is a fundamental change or not? to do so, it is necessary to consider the relevance of such changes to the specific contents of the contract, their impact on the performance of the contract; the loss of interests the parties have to suffer if they continue to perform the contract; the extent of damage, especially in the equilibrium between the parties. lastly, as for the court, although the civil code allows it to make the decision on the modification of the contract to main tain the equilibrium of the legitimate rights and interests of the parties due to the fundamental change in circumstances, however, this is not a simple matter. in order to minimize errors in the modification decision, the court should give guide and support to the parties so they can reach to an agreement on their own for the modification plan. if the parties cannot reach an agreement, the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 55 published by scholink inc. court will decide on a specific modification plan. when drafting a contract modification plan, the court must base on the actual situation, the extent of changes in circumstances, and ensure the equilibrium of legitimate rights and interests between the parties. 5. conclusion article 420 of the civil code 2015 is a provision that shows the progressiveness in the legislative process and the study of international experience of vietnamese legislators, this also meets practical needs and ensures the interests of the disadvantaged party in the performance of contract. however, this still is a rather complicated provision. at the present time, there has not been any guidance and explanation from competent state agencies on provisions related to the fundamental change of circumstances in the civil code 2015. there also seems to be no case law on this issue. in fact, commercial contracts often do not regulate this issue, but the parties will rely on the general provisions of law to exercise their rights when there are fundamental changes of circumstances. this is an issue that needs to be further studied and verified in the practice of law. references brian, a. b. (2007). contracts: examples & explanation (4th ed.). wolters kluawer, ny 2007. criscuoli, g., & pugsley, d. (1991). the italian law of contract. egidijus, b., & paulius, z. (2009). the effect of change in circumstances on the performance of contract. jurisprudence, 118(4). european contract law-materials for a common frame of reference: terminology, guiding principle, model rules. (2006). sellier european law publishers. ha thi mai hien. (2005). amendment to the civil code of vietnam and the issue of perfecting contract provisions. state and law review, 2005(3). james, g. (ed.). (2004). the enforceability of promises in european contract law. cup, cambridge. le minh hung. (2009). contract modification clause due to fundamental change of circumstances in foreign law and experience for vietnam. journal of legislative studies, 6. nguyen, m. h. et al. (trans.). (2005). unidroit principles on international commercial contracts 2004. judicial publishing house, hanoi. paul, o. (1921). die geschäftsgrundlage—ein neuer rechtsbegriff, leipzig und erlangen. truong, n. q. (2020), contract law-basic legal issues. dan tri publishing house. unidroit. (2010). unidroit principles on international commercial contracts. vietnam civil code. (2015). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 56 published by scholink inc. notes note 1. egidijus baranauskas and paulius zapolskis (2009), the effect of change in circumstances on the performance of contract, jurisprudence, vol. 118, no. 4, p. 198. note 2. ha thi mai hien, amendment to the civil code of vietnam and the issue of perfecting contract provisions, state and law review, issue 3/2005 (10-19), tr. 19. note 3. european contract law-materials for a common frame of reference: terminology, guiding principle, model rules; sellier european law publishers, 2006. note 4. for example, see clause 1 article 133 of the yugoslav law on obligations, see: le minh hung, contract modification clause due to fundamental change of circumstances in foreign law and experience for vietnam, journal of legislative studies, issue 6, march 2009. note 5. see: g. criscuoli and d. pugsley, the italian law of contract, (1991), 211. note 6. cass. civ., sez. ii, 20/6/1996, no. 5690 (roccheri c. mazzara); cass. civ., 9/4/1994, no. 3342 (soc. arbos c. com. piacenza). note 7. see also: james gordley (edited), the enforceability of promises in european contract law, cup, cambridge, 2004, pp. 202 & 204. note 8. article 275 of the german civil code, available online at: https://www.gesetze-im-internet.de/bgb/__275.html accessed on 11/11/2022 note 9. paul oertmann (1921), die geschäftsgrundlage—ein neuer rechtsbegriff, leipzig und erlangen. note 10. bgh mdr 1953, 282. note 11. article 313 of the german civil code, available online at: https://www.gesetze-im-internet.de/bgb/__313.html accessed on 11/11/2022 note 12. brian a blum (2007), contracts: examples & explanation, 4 th edition, wolters kluawer, ny 2007, p. 492. note 13. article 1195 of the french civil code, available online at: http://fdvn.vn/bo-luat-dan-su-phap-ban-dich/, accessed on 11/11/2022 note 14. unidroit (2010), unidroit principles on international commercial contracts, p. 213. note 15. unidroit (2010), unidroit principles on international commercial contracts, p. 212. note 16. unidroit (1994), unidroit principles on international commercial contracts, p. 147 note 17. see clause 2 article 420 civil code 2015. note 18. see clause 1 article 428 civil code 2015. note 19. truong nhat quang (2020), contract law-basic legal issues, dan tri publishing house, tr.458. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 184 original paper an examination of the reasons for the failure of the mental defectives amendment bill 1928 in new zealand jun li 1* 1 china west normal university, nanchong, china * jun li, world history, school of history and culture, china west normal university, nanchong, china received: december 5, 2024 accepted: december 20, 2024 online published: december 24, 2024 doi:10.22158/elp.v7n3p184 url: http://dx.doi.org/10.22158/elp.v7n3p184 abstract the eugenics movement emerged in various countries from the late 1800s to the 1940s, and the mental defectives amendment bill 1928 was the high point in the history of the eugenics movement in new zealand, the first and last time that the highest goal of the eugenics movement in new zealand was included in the provisions of the bill, the sterilization, but the sterilization provision was ultimately forced to withdraw due to the contradictions of various parties, resulting in the ultimate failure of the amendment bill 1928. however, the sterilization provision was eventually withdrawn due to conflicts between different parties, leading to the failure of the amendment bill 1928. this paper analyzes the reasons for the failure of the amendment bill 1928, in order to get a glimpse of the basic map and direction of new zealand’s social history at the beginning of the twentieth century. keywords new zealand, the mental defectives amendment bill 1928, eugenics movement 1. introduction at the beginning of the twentieth century, new zealand‟s traditional social order was disintegrating, social disadvantage groups were expanding, and new zealand‟s racial concerns were growing. eugenics became one of the solutions to new zealand‟s racial problems, and the new zealand eugenics movement emerged, with the promotion of sterilization legislation as its overriding goal. against this backdrop, the mental defectives amendment bill of 1928 came into being. the core of the bill was the eugenic sterilization and marriage restrictions in sections 21 and 25 of the bill, which marked the peak of the eugenics movement in new zealand. the mental defectives amendment bill of 1928 was both an anti-liberal response to over-liberalism and a challenge to traditional social mores, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 185 published by scholink inc. which inevitably gave rise to heated debates among all parties, leading to the last-minute withdrawal of the sterilization provisions by the ruling party, and the failure of the amendment bill 1928, which profoundly affected the development of the eugenics movement in new zealand. currently, academics have focused on the process and main content of the mental defectives amendment bill 1928, but have not analyzed the reasons for its failure. in view of this, this paper is intended to make a preliminary examination of the reasons for the failure of the amendment bill 1928, and to analyze in depth the intricate forces behind the bill, so as to get a glimpse of the basic pattern and direction of the development of new zealand‟s social history. 2. partisan conflicts: opposition pressure on the ruling party new zealand‟s modern politics started late but developed rapidly, with the liberal party, new zealand‟s first modern political party, emerging among the middle class in the early 1880s, followed by the reform party, the independence party, and the labor party, which constituted the basic map of party politics in new zealand at the beginning of the twentieth century. the main reason for the failure of the amendment bill 1928 was that the parties had different political philosophies and agendas and were at loggerheads with each other. new zealand entered the “great liberal era” when the liberals won the election in 1891. however, the reform party emerged quietly in the 20th century as people lost confidence in the liberal government due to the long period of social crisis in new zealand. 1905 saw the founding of the reform party by william massey, who adopted a populist style and pragmatically incorporated the popular policies of the liberals, rapidly expanding the party‟s base, and officially came to power in 1912, ending the liberal era. in 1912, he came to power, ending the era of the liberal party. although the reform party took a series of measures to alleviate the economic crisis after coming to power, new zealand‟s economy remained weak for a long time throughout the 1920s, and the social atmosphere became increasingly low. older people who had lived through new zealand‟s golden age became more and more worried about the moral decline and racial degradation of the young people, and they called the 1920s the “aspirin age” of new zealand. the reform party was always worried about racial degradation in new zealand. therefore, they embraced the theory of eugenics and tried to control the reproduction of the mentally deficient through the state power to ensure racial purity, prevent the decline of national quality and enhance national efficiency. many of the reform party executives were personally involved in the eugenics movement and pushed for the amendment bill 1928. for example, gordon coates, then prime minister of new zealand and whip of the reform party, regarded the amendment bill 1928 as a government measure and asked all party members to support it. however, once introduced, the bill was fiercely attacked by the opposition parties, most notably the left-wing labor party, which virtually dominated the parliamentary debate. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 186 published by scholink inc. new zealand had a large number of trade union organizations and an active trade union movement, but there had never been a unified political party, and in 1916, with the hardening of the reform party government against the trade union movement and the international situation, the united new zealand labour party and the social democratic party formally merged to form the labour party. the nzlp centered its development on the urban working class and became the second largest opposition party in parliament in 1922. the labour party rejects the underlying philosophy of new zealand eugenics-that genetic factors are responsible for the increase in the number of mentally handicapped people. it argues that the root causes of the mentally handicapped are socio-economic and that class differences and economic issues should be addressed. peter fraser, a labor mp, attacked sterilization measures as “short-cut attempts to deal with deep-rooted social evils”. he delved into the arguments provided by the reform party, pointing out that “.... sterilization is not based upon scientific or proved fact, but is simply the outcome of uninstructed propaganda carried on by people whose doctrines are mainly charlatanism”. holland, the labour opposition leader, even quoted directly from a study by a doctor at the university of edinburgh namely that it would take 34,746 years to reduce the number of mentally defective people from 1 in 1,000 to 1 in a million by sterilizing them. in the face of holland‟s skepticism, reform health minister alexander young remains convinced that “how slow the process may be, it is better than allowing pure streams to be polluted”. but the labor party did not accept alexander young‟s argument, the liberals and independents challenged it, and even the reform party disagreed with it, so that the parliamentary debate on the amendment bill 1928 continued for many years without agreement. the reform party government had to face not only strong opposition within parliament, but also the upcoming election season outside of parliament. in 1928, former liberal prime minister joseph ward returned to politics, taking in some former liberals, the businessmen‟s wing of the reform party to form the coalition party, which was supported by the labor party, and, upholding traditional liberal ideals, was under strong pressure in the in the 1928 general election, it gained momentum and put great pressure on the reform party government. new zealand‟s political tradition was completely transplanted from the west, emphasizing civic and constitutional checks and balances on state power, and liberalism was deeply rooted in the people. the prevailing view in society at the time was that safeguarding the individual from unnecessary state interference was paramount, and that the state should first adopt policies in the interests of the individual. at the same time, new zealand‟s prudent legal and political framework was an important cornerstone of resistance to anti-liberalism, and the sound democratic and liberal political system had a strong countervailing power to suppress eugenics. the reform party‟s attempts to safeguard the public interest through state intervention in the individual were seen by the opposition as a challenge to liberalism, with ward repeatedly and publicly criticizing coates‟ sterilization clause as a violation of individual rights and a breach of the core of liberalism. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 187 published by scholink inc. under pressure from both opposition parties inside and outside parliament, the reform party government, fearing that passing the controversial bill during the election season would alienate key voters, chose at the last minute to withdraw the bill‟s sterilization provisions. 3. religious conflicts: protestant-catholic conflict as the french statesman and scholar andré siegfried said when he visited new zealand in 1904, “no tradition is so strong as the religious tradition”, and although new zealand was striving to develop its own identity, it remained faithful to the old world in religious matters. protestantism is widespread in new zealand, but the influence of roman catholicism cannot be underestimated. the new zealand public has long experienced little religious tension between the two, but this does not mean that the religious environment in new zealand has been unruffled. at the beginning of the 20th century, protestant-catholic tensions punctuated new zealand‟s seemingly calm religious landscape and had a profound effect on the amendment bill 1928. since the first ship sailed to new zealand in 1848, many scottish immigrants have traveled across the ocean to new zealand to take root in places such as otago and spread rapidly, and protestant denominations such as the presbyterian church have entered new zealand with them. new zealand has always had a high percentage of protestant believers compared to other anglo immigrant countries (e.g., canada, the united states, and australia), and has been very active in protestantism, believing that god ordained its outward expansion of its colonies and the development of a christian nation. the presbyterian church of new zealand has made predestination of salvation an important doctrine, believing that the salvation of an individual is predestined by god and has nothing to do with the efforts of the individual. under the influence of protestantism, protestants tend to weaken or even limit the “defective” who are unable to reach the level of god‟s elect. coupled with the fact that protestantism had long been actively engaged with science, theories such as eugenic sterilization were more readily accepted and supported by protestants. therefore, protestantism has become one of the main promoters of the eugenics movement in new zealand. new zealand protestants are found in all walks of life, especially in the media. many of the editors of both the small country papers and the influential metropolitan dailies were staunch protestants, publishing articles and editorials on eugenics, as well as a large number of books and radio broadcasts, and actively importing eugenic views into society, which played a positive role in the introduction of the 1928 amendment act. however, unlike the protestant church, the catholic church was keen to save all “god‟s children” and was firmly opposed to any interference in the reproductive process, and the catholic church played an important role in the anti-eugenics movement. with a small irish population among the early immigrants to new zealand, the spread of catholicism was slow, but the catholic church gradually took root in the lower class of new zealand by virtue of its doctrine and organization, and its influence in society continued to grow. 1928 amendment bill intensified the catholic church‟s concern over the declining fertility rate and the moral crisis in the society, and at the same time aggravated the doctrinal www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 188 published by scholink inc. contradiction between the catholic church and protestantism, so they stood firmly in support of the opposition party and demanded that parliament withdraw the sterilization provision. demanded that parliament withdraw the sterilization clause. the new zealand tablet, an organ of the new zealand catholic church, repeatedly published editorials condemning the sterilization provisions in the 1928 bill from a moral point of view, criticizing the government for punishing the “moral innocents”, and considering these provisions to be the symbol of the “moral school” and even the symbol of the “moral school”. the government was criticized for punishing “moral innocents” and considered these clauses to be a sign of “moral schools”, even equating sterilization with “murder”. archbishop redwood went so far as to state that eugenics challenged traditional catholic morality and that there was a fundamental difference between the two. he argued that “the root of the difference between catholic teaching and modern eugenics is that the church makes bodily and mental culture subservient to morality, while modern eugenics makes morality subservient to bodily and mental culture”. in a press statement, he further articulated the catholic church‟s opposition to the sterilization clause and called attention to four main issues: first, the church‟s heightened concern for the rights of the individual; second, the lack of trust in legislators and policymakers; and third and fourth, the fear that sterilization would “open the door to immoral legislation” and even evolve into a coercive measure. thirdly and fourthly, the catholic church is concerned that sterilization will open the door to “immoral legislation” and even evolve into coercive measures. in addition, the catholic church also questioned the scientific validity of eugenics. h.h. mcclelland, a devout catholic and director of the ohic association for the welfare of the mentally sick, wrote the sterilization fallacy directly after the amendment bill 1928 to oppose sterilization. the sterilization fallacy”, written directly after the amendment bill 1928, argued against the eugenicists‟ use of sterilization as a solution to social problems and dismissed it as “monstrous legislation”. he argued that the prevailing ideology of sterilization was based on public discrimination against the mentally handicapped and on a large number of false statistics compiled by eugenicists, and that it lacked a sufficient scientific basis. the opposition of the new zealand catholic church to the bill influenced the views of the authorities on the amendment bill 1928 and guided public opinion. the church‟s repeated warnings to the faithful not to vote for “bigots and fanatics” in the forthcoming general election added to the pressure on the reform party to take a more cautious approach to the amendment bill 1928. 4. conceptual shifts: eclectic pragmatic eugenics theories and the rise of foreign threat theories the amendment bill 1928 was shaped by concerns about racial degradation in new zealand and the development of negative eugenics. negative eugenics was based on the theory of heredity and advocated restricting the reproduction of the “unfit” in order to ensure the health of the race. negative eugenics dominated the early eugenics movement, but in the twentieth century an eclectic and pragmatic approach to eugenics emerged, which greatly influenced the direction of the eugenics www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 189 published by scholink inc. movement. at the same time, as immigration increased, new zealand‟s focus shifted from “domestic threats” to “external threats” such as asian immigration. this shift in thinking led the new zealand authorities to reconsider the feasibility of sterilization provisions. the traditional view of eugenics, which held that heredity was the most important factor in determining the destiny of the race, was a theory of genetic supremacy that influenced the direction of the early eugenics movement. however, from the 1920s onwards, an eclectic and pragmatic group of eugenicists emerged outside the mainstream, who, while recognizing the importance of heredity, also began to emphasize the importance of the environment in racial issues. parliamentarian d. mclaren spoke of new zealand‟s “excessive acceptance of the impatience and ambition of civilization; one of the results of the struggle for existence and the quest for wealth has been the prevalence of mental illness”, while urbanization‟s “drudgery and overwork in special trades” was also a contributing factor to mental illness. “is also a factor in mental illness” under urbanization. it can be argued that new zealand‟s economic development has been accompanied by increasingly crowded, squalid living conditions and mounting pressures of life, all of which affect the public‟s physical and mental health and lead to an expansion of the mentally deficient population. former president of the new zealand eugenics education association and attorney general findlay suggested that the government‟s top priority should be to improve town planning, workers‟ housing conditions and children‟s playgrounds to ensure a healthy environment for the public to live in. more and more eugenicists have begun to advocate that the government should pay more attention to environmental factors and improve the situation of the mentally handicapped groups through environmental interventions (e.g., improving living conditions, organizing outdoor activities, promoting psychotherapy, etc.). at the same time, new zealanders have come to see the main threats to the country as external rather than internal, and new zealand‟s rapid socio-economic growth since the beginning of the twentieth century has attracted a large number of non-white ethnic groups (especially asian immigrants), many of whom suffer from mental deficiencies, infectious diseases, disabilities and other problems. however, the new zealand colonialists regarded their own society as “part of the great anglo-saxon nation” and believed that “the european races were superior to the non-european races and that the anglo-anglo nation had created the most perfect of all civilizations”, and theories of racial superiority were prevalent. theories of racial superiority were rampant. the large number of non-white immigrants is seen as an impediment to new zealand becoming a better home for great britain‟s communities, impacting on the social identity and cohesion that new zealand is trying to build, and many new zealanders are calling for tighter border controls. at the same time, new zealand did not view the maori within its borders as an inferior race that had to be eliminated, and even many maori were active in the new zealand eugenics movement. a range of educated māori leaders, such as māui pōmare, ngata, and buck, were actively involved in debates about population, health reform, race science, and eugenics. more worried about the impact of foreign immigration on new zealand society than worried about domestic issues, ngata and buck developed graded race science and eugenics policies for ethnic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 190 published by scholink inc. chinese in response. it can be argued that new zealand‟s racial homogeneity was seldom threatened by internal ethnicity, and so they were also more concerned with external issues, focusing on the exclusion of “unsuitable” immigrants. the idea of negative eugenics is just one part of a broad range of racial and demographic thought in new zealand, and it is active in new zealand‟s political scene alongside other theories. when more compelling theories emerge, negative eugenics inevitably falls by the wayside, and the bills underpinning it are put on the back burner. 5. public opposition: fierce opposition and debate from various sectors public disagreement in new zealand over the amendment bill 1928 was an important factor in the eventual withdrawal of the sterilization bill. once introduced, the bill generated a great deal of public debate, with a wide range of organizations and individuals expressing their views in the national press and demonstrating a wide range of attitudes towards the amendment bill 1928. a section of the public was wary of the sterilization provisions because of concerns about the state of society. the evening post, in an editorial published on 18 july of that year, expressed concern about racial degradation in new zealand, and was generally in favour of the amendment bill 1928, but suggested that the sterilization provisions should be postponed. editorials in the new zealand herald and the dominion praised the bill as a “progressive piece of social legislation”. the herald emphasized that the prolificacy of the mentally challenged was a worldwide problem, but argued that sterilization was too radical a measure at the present time and that the government needed to carefully consider the possibility of its implementation. the dominion was more radical than the former, with several articles emphasizing the dangers of reproduction by the mentally handicapped and the enormous costs it imposes on new zealand society and the public. however, the newspaper also pointed out the lack of a popular base for sterilization, and called for a greater emphasis on eugenics to improve social efficiency. the press, on the other hand, said bluntly that “new zealand‟s restrictions have been delayed for too long” and that new zealand “already has enough safeguards in place”, but it still drew the government‟s attention to the need to further improve the humanitarian measures for the sterilized group in order to avoid an even greater moral crisis. in addition, some social organizations commented on the bill, and their main view was that the government should be careful with the sterilization provisions. many members of the public were outright opposed to the sterilization clause. the auckland star was the most scathing in its criticism of the amendment bill 1928, stating that the sterilization clause was an anti-liberal attack on liberalism and a “serious menace to individual and social liberty”. the otago daily times accused the sterilization clause of being contrary to catholic teaching and questioned the science of sterilization, stating that “there is no scientific consensus on sterilization” and suggesting that the government should pay more attention to the environmental impacts. subsequently, the times received letters of opposition from the australian psychological and philosophical association, the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 191 published by scholink inc. new zealand institute of education and others, which severely criticized the sterilization provisions as essentially “racial poison” and suggested that the government should revise the bill in consultation with representatives of teachers, psychologists and social workers. the above letter reflects a heated debate between academics and politicians. the main objections of the academics were the lack of scientific validity of sterilization, both because of the lack of strong evidence that genetics was the cause of the development of the mentally handicapped, and because of the strong bias of the government‟s research, which relied too heavily on case studies. triggs, on the other hand, argued strenuously in defense of the government, focusing on the dangers of uncontrolled mentally defective persons and the cost to the taxpayer. the controversy continued through september 1928, with many academics and politicians debating it in the form of letters or articles, and with the opposing views of the two sides intensifying. ada paterson, the director of health, drew a direct line between academics and prbillitioners of the mental system, arguing that all actual practitioners within the mental system should support the passage of the amendment bill 1928. on behalf of the auckland progress committee on the mentally handicapped bill, professors fitt and anderson sent a letter to the public pointing out the concerns of academics about the sterilization bill and emphasizing the possibility of the government taking a progressively more heavy-handed and coercive approach to sterilizations. the letter further stated that “the main provisions of the bill are based on theories of heredity and physical improvement by certain „eugenic‟ methods, which have not only been proved to be unreliable, but for which the only possible authority should be the professional researcher”. the unfounded opinions and experiences of „practical social workers‟ become worthless in these matters. the debate between academics and the government is essentially a conflict between interest groups, with different sectoral interests and political leanings often determining one‟s stance in the debate on natural parenting. in the face of strong opposition from academics, the new zealand authorities had to consider more carefully where the bill would go from here. at the same time, through further observation of newspaper editorials and letters from the public during this period, it can be found that the discussion about the amendment bill 1928 was almost entirely focused on the middle and upper social elites, and the lower class people hardly participated in the debate. the bill fundamentally lacked a mass base, and its failure was inevitable. 6. conclusion a combination of factors led the government to announce on 25 september 1928 that it was abandoning the controversial sterilization provisions. the failure of the bill was not only due to a confluence of factors, including partisan conflict, religious conflict, philosophical shifts and public opposition, but also reflected the intense play of values and political forces in new zealand society as it modernized. although the amendment bill 1928 failed to achieve its highest goal, the process of its introduction and debate has undoubtedly left a deep mark on the history of the eugenics movement in new zealand. the introduction and eventual withdrawal of the bill demonstrated new zealand‟s deep www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 192 published by scholink inc. concern for social order, racial purity and the future of the nation at the beginning of the twentieth century. it was not only an attempt to put eugenics into practice in new zealand society, but also a challenge to traditional values and social morality. the failure of the bill also signaled new zealand‟s emphasis on individual freedom and civil rights, as well as its prudent attitude towards the use of state power. in addition, the bill has provided experience and lessons for subsequent eugenics campaigns and the formulation of related policies, prompting new zealand to pay more attention to scientific evidence, human rights protection and social justice when confronting racial and social issues. in summary, the failure of the mental defectives amendment bill 1928 became not only a turning point for the eugenics movement in new zealand, but also one of the major points in the development of new zealand‟s social history. the bill and the eugenics movement behind it constitute an important aspect of new zealand‟s social history. although it never became a popular movement, it was widely spread in the academic, political, medical, and social service sectors, and eugenics concepts gradually infiltrated into new zealand‟s mental health, education, and other systems, and ultimately affected new zealand‟s daily life. to this day, eugenics remains relevant to the debate about the care, management and control of people with intellectual disabilities in new zealand. references bashford, a. (2010). the oxford handbook of the history of eugenics. new york: oxford university press. https://doi.org/10.1093/oxfordhb/9780195373141.001.0001 brookes, b. (2007). gender, work and fears of a „hybrid race‟in 1920s new zealand. gender & history, 19(3), 501-518. https://doi.org/10.1111/j.1468-0424.2007.00495.x brooking, t. (2004). the history of new zealand. new york: bloomsbury publishing usa. https://doi.org/10.5040/9798400665127 bueltmann, t. (2011). scottish ethnicity and the making of new zealand society, 1850-1930. edinburgh: edinburgh university press. https://doi.org/10.3366/edinburgh/9780748641550.001.0001 byrnes, g.(2009). the new oxford history of new zealand. melbourne: oxford university press. facer, w. a.(1980). aspects of birth control in nineteenth century new zealand. new zealand journal of family planning, 30-32. fischer, d. h. (2012). fairness and freedom: a history of two open societies: new zealand and the united states. melbourne: oxford university press. fleming, p. j. (1981). eugenics in new zealand 1900-1940. palmerston north: massey university. hamilton, c.(2012). sterilisation and intellectually disabled people in new zealand—still on the agenda?. kotuitui: new zealand journal of social sciences online, 7(2), 61-71. https://doi.org/10.1080/1177083x.2012.724693 kevles, d. j. (1995). in the name of eugenics: genetics and the uses of human heredity. cambridge: harvard university press. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 193 published by scholink inc. macgregor, d. (1876). the problem of poverty in new zealand (part ⅲ). new zealand magazine, 1(1), 60-75. mcclelland, h. h. (1927). the sterilization fallacy. national catholic welfare conference bulletin, (9), 19-20. neville, r. j. w. (1979). the population of new zealand: interdisciplinary perspectives. auckland: longman publishing group. paul, d. b., stenhouse, j., & spencer, h. g. (2018). eugenics at the edges of empire: new zealand, australia, canada and south africa. berlin: springer. https://doi.org/10.1007/978-3-319-64686-2 pool, i. (2013). the new zealand family from 1840: a demographic history. auckland: auckland university press. primrose, m. s. (1962). society and the insane: a study of mental illness in new zealand 1857-1926 with special reference to the auckland mental hospital. auckland: university of auckland. siegfried, a. (1914). democracy in new zealand. london: g. bell & sons. sutch, w. b. (1969). poverty and progress in new zealand: a re-assessment. wellington: a. h. & a. w. reed. tennant, m. (2007). the fabric of welfare: voluntary organisations, government and welfare in new zealand, 1840-2005. wellington: bridget williams books. https://doi.org/10.7810/9781877242373 wanhalla, a. (2007). to “better the breed of men”: women and eugenics in new zealand, 1900-1935. women’s history review, 16(2), 163-182. https://doi.org/10.1080/09612020601048779 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 194 original paper discussion on the legal theory of underage minors' harmful behavior to society fei wang1a, shutian chang1b, gaohang shi1c, jiazhe cheng1d, & zhugang tan2e* a civil, commercial and economic law school, gansu university of political science and law, lanzhou city, gansu, china b school of prosecution, henan university of economics and law, zhengzhou, henan province, china c belarusian state university, university of international relations, minsk, the republic of belarus d intermediate people's court, jiaozuo city, henan province, china e faculty of liberal arts and law, guangdong university of petrochemical technology, maoming, guangdong province, china * corresponding author received: november 15, 2024 accepted: december 08, 2024 online published: december 27, 2024 doi:10.22158/elp.v7n3p194 url: http://dx.doi.org/10.22158/elp.v7n3p194 abstract the legal regulation of minors' harmful social behavior has become a major problem in judicial practice. the core topic of this study is to understand and answer the challenges of the abnormal behavior of minors to the law, and explain the deep reasons behind it. through comparative studies and case studies, it reveals legal contradictions including over-indexing penalties, undervaluing the functions of prevention and education, and age zoning. to truly achieve the expected effectiveness of legal regulation, it is necessary to focus on prevention and psychological counseling, especially the establishment of multi-directional defense mechanisms and intervention measures. at the same time, it is suggested that the age of criminal responsibility should be set rationally according to the cognitive ability and socialization level of minors, and the protection system of family, school and society should be strengthened. this study has important theoretical and practical significance for perfecting the legal regulation system of underage minors and preventing and reducing their harmful social behaviors. keywords juvenile legal regulation, psychological correction, the age of criminal responsibility, prevention mechanism, paradox of social behavior www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 published by scholink inc. 195 introduction the problem of legal regulation of juveniles' harmful social behavior, especially the abnormal behavior of juveniles, has become a difficult problem in judicial practice. the purpose of this study is to probe into the paradox of legal regulation on the harmful behaviors of young minors, and analyze the challenges and difficulties faced by current laws in dealing with such cases. through case analysis and legal theory discussion, the contradictions in legal regulation are revealed, and scientific and reasonable solutions are put forward. this study has important theoretical and practical significance for improving the legal regulation system of underage minors, preventing and reducing their harmful social behaviors, and contributing to the construction of a more just and effective legal protection mechanism for minors. 1. case recovery and analysis 1.1 select typical cases of young minors endangering society selecting a typical case of young minors endangering society is of great significance to further explore the paradox of legal regulation on this issue (wang, 2024). in this chapter, through the detailed restoration of cases, it will reveal the difficulties and challenges that the law enforcement may face when dealing with the harmful behavior of young minors. there was a case of intentional injury near a school by a small gang composed of several young people under the age of 14. the teenagers argued with their classmates over trivial matters, and then premeditated to beat them after school, causing serious physical and mental injuries to the victims. after the incident, schools, parents and all sectors of society have paid close attention to the incident and demanded severe punishment for the gang. since all the juveniles involved were below the age of criminal responsibility prescribed by law, the judicial authorities could not impose criminal penalties on them according to the current law (liu, 2019). in the handling of the case, the public security organs and education departments intervened and tried to deal with it through mediation and education. due to the limitation of the legal framework on the regulation of the behavior of young minors, this approach fails to effectively deter the juveniles involved and fails to ensure the legitimate rights and interests of the victims. the outstanding feature of this case is that although the teenagers' behavior has caused serious social harm, according to the law, they cannot bear the corresponding legal responsibility. this contradiction reflects the impotence of the law in the face of the illegal acts of minors, and also reveals the paradox of legal regulation. another aspect of the case that deserves attention is that although the protection law on minors aims to safeguard the legitimate rights and interests of minors, in reality, some minors know the law and break the law and use legal loopholes to evade responsibilities (he & wang, 2024). due to the lack of family education, inadequate school management and weak social supervision, minors are prone to form wrong values in the process of growing up, leading to the occurrence of illegal behaviors. the law faces great challenges in how to balance the protection and regulation of minors. specifically in this case, when the judicial organs carried out follow-up investigations, it was found that www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 published by scholink inc. 196 most of these teenagers came from single-parent families or left-behind children, and lacked effective family discipline and psychological counseling. their problems are not only legal, but also involve deep social problems. this case, in revealing the dilemma of legal regulation of juvenile delinquency, also reflects the need for joint efforts from the three aspects of family, school and society to provide comprehensive education and support programs. another case is in a middle school, a 14-year-old boy li mou, because of the long-term impact of bad internet content, gradually formed a violent tendency. one day after school, li gathered several teenagers of the same age to beat and intimidate a classmate of the same school without reason. they not only punched and kicked, but also filmed the whole process with mobile phones and spread it widely on social media, causing extremely bad effects. the incident has aroused wide concern from schools, parents and all walks of life. after investigation, it was found that li mou and others often pick quarrels and bully inside and outside the school, but because of their young age, they are often only slightly punished by the school and fail to cause enough warnings. the outbreak of this incident has made people deeply realize the seriousness of the behavior of young minors endangering society. for such behavior, we must take effective measures to intervene and correct. on the one hand, family education should be strengthened to cultivate the good moral character and legal consciousness of minors; on the other hand, schools and society should also strengthen the supervision and guidance of minors to detect and stop bad behaviors in time. at the same time, young minors who are serious and harmful to society should also be punished according to law to make an example of others [(2019) yue0883 xingchu no. 811]. through the in-depth restoration and analysis of this case, it can be seen that the current law fails to find a balance between protection and punishment, resulting in some young minors in the implementation of illegal acts without fear. when exploring new ways to regulate the behavior of minors by law, more attention should be paid to the functions of prevention, education and correction, so as to realize the comprehensive protection and effective management of minors. this case study provides rich practical materials and theoretical basis for the improvement and adjustment of the subsequent legal system. 1.2 application of existing law in the case the application of the existing law in the cases of young minors endangering society often faces the dual challenges of adaptability and effectiveness. under the current legal framework, the setting of juvenile criminal responsibility is mostly based on the criminal code and related laws and regulations. minors usually cannot be criminally prosecuted because they are under the age of criminal responsibility. although this setting is in line with the original intention of protecting minors, it leads to the lack of criminal legal tools when young minors carry out serious social harm. the current law on the protection of minors and the law on the prevention of juvenile delinquency also aim to prevent the occurrence of crimes through education and correction. these laws, which focus on preventive and educational measures such as detention, psychological counseling and behavior www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 published by scholink inc. 197 modification, often encounter practical difficulties in their application. on the one hand, due to the lack of adequate supervision and follow-up during the implementation of educational and corrective measures, they often fail to effectively achieve the intended purpose of correction. on the other hand, factors such as social resources, family environment and school education also restrict the implementation effect of legal measures. as far as specific cases are concerned, the issue of the age standard for the application of the law is particularly prominent. criminal law usually sets the dividing line of no criminal responsibility under the age of 14, and relative responsibility under the age of 14 to 16, and these divisions are too mechanical and inflexible in the face of individual differences in the mental development of minors. although some young minors are not up to the standard in terms of biological age, their behavior is similar to that of adult crimes in terms of severity and social harm, which exposes the limitations of the current law on the division of age standards in case handling. the application of law in the cases of minors is also affected by the problems of law enforcement power and allocation of judicial resources. when encountering such cases, law enforcement agencies and judicial institutions need more precise legal guidance and support in how to rationally use legal resources and scientifically judge individual differences and behavioral motives. the current laws provide general guidance in this field, which leads to uncertainty and inconsistency in actual operation and further aggravates the dilemma of law application (liu, 2002). in the application of the current law, there are many problems, such as insufficient setting of criminal responsibility, difficult implementation of educational corrective measures, unreasonable age division standards, and unclear legal guidance. to deal with such cases, it is urgent to introduce more flexible and pragmatic regulatory means within the existing legal framework, so as to realize the dual functions of both protection and regulation for minors. 2. contradiction analysis from the perspective of law and criminal law 2.1 thinking from the perspective of jurisprudence the thinking from the perspective of jurisprudence is based on the discussion of the paradox of legal regulation of the juvenile's harmful social behavior, involving the multiple dimensions of legal ethics, fairness and justice and legal functions. from the perspective of jurisprudence, law is not only a tool to maintain social order, but also reflects the protection of individual rights and social justice. because the cognitive ability and psychological maturity of young minors have not reached the adult level, special considerations should be given to bear legal responsibility. to some extent, this idea has formed a conflict with the existing legal regulations. the current legal setting of criminal liability for minors is often not significantly different from the scale of punishment for adults, which can lead to disproportionately harsh punishments for younger minors. jurisprudence emphasizes that the attribution of individual responsibility should be consistent with their subjective fault and behavioral capacity. however, due to incomplete psychological www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 published by scholink inc. 198 development, young minors often lack clear ability to judge right and wrong, and the harmfulness of their behavior may be more due to environmental factors and insufficient social education, rather than simply individual malice. simply following the adult penalty standard is not an effective solution to the problem. law not only has the function of punishment, but more importantly, it has the social function of education and guidance. the legal system design that over-relies on the intensity of punishment and neglects the correction of juvenile behavior cannot give full play to the guiding role of law, which runs counter to the idea of "education first" in jurisprudence. lack of education and prevention mechanism of legal sanctions, it is easy to push young minors into the vicious circle of crime. from the perspective of jurisprudence, the legal regulation needs to adjust the age of criminal responsibility according to the psychological and socialization level of minors, so that the legal system can be both serious and educational, help young minors better integrate into society, and prevent the occurrence of harmful behaviors. only in this way can we truly achieve legal social justice, safeguard the legitimate rights and interests of minors, and realize the overall stability and harmony of society. 2.2 analysis from the perspective of criminal law from the perspective of criminal law, there are many contradictions and challenges in the legal regulation of the juvenile's harmful social behavior. the current legal system often oscillates between punishment and protection, so that young minors can not get effective legal guidance and correction. this challenge is particularly acute in the application of the code. the setting and application of penalty often have a long-term impact on minors, but the current criminal law relies too much on the deterrent effect of penalty and ignores the special psychological and physiological development characteristics of minors. when the law imposes punishment on minors, it is easy to overemphasize the identification of responsibility, while ignoring the family, society and other factors behind the crime. in this case, punishment fails to achieve the purpose of correction and education, but may strengthen the psychology of minors against society. the demarcation of the age of criminal responsibility in the legal text has become the focus of discussion. too fixed age division can not flexibly cope with individual differences, ignoring the differences in maturity and cognitive ability of different minors. the fixed definition of the age of criminal responsibility leads to the difficulty of execution in practice, and some minors with a critical age escape from legal sanction or suffer improper punishment. in the process of penalty implementation, there are also procedural deficiencies. the protection system of minors' rights in criminal proceedings is not perfect, and the program design suitable for the special needs of minors is lacking. as a result, in judicial practice, minors often become passive trial parties, unable to fully exercise their legitimate rights. on the whole, the contradictions in the criminal law regulation of young minors are not only reflected in the imperfection of legal provisions, but also reflect the insufficient grasp of the balance between punishment and education in the application of law [5]. this suggests that more flexible and diversified www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 published by scholink inc. 199 regulation modes should be explored from the perspective of criminal jurisprudence to promote the comprehensive protection and effective correction of minors. 2.3 specific manifestations of contradictions in the analysis of the legal regulation of the harmful behavior of young minors, there are multiple contradictions in the existing laws. on the one hand, the regulation of juvenile behavior relies too much on the intensity of punishment, and often ignores the functions of prevention and education. this over-reliance on punishment can lead to excessive punishment and fail to achieve effective education and correction. because of their special psychological and physiological development characteristics, young minors are easily affected by the external environment, so more emphasis should be placed on correction through education and guidance rather than punishment. in the existing legal system, the age division of criminal responsibility for minors is indeed too rigid. the law often takes the fixed age limit as the only standard to judge whether minors should bear criminal responsibility, but ignores the significant differences in cognition ability and socialization level of different individuals. this "one-size-fits-all" approach has caused a series of problems in practice. on the one hand, some minors who are still young but have quite mature cognitive ability may escape due legal responsibility because of age, which is undoubtedly damaging to social justice and greatly reducing the deterrent power of the law. on the other hand, for those minors with relatively low cognitive ability, prematurely incorporating them into the scope of criminal responsibility may adversely affect their normal growth and development, make them bear too much psychological burden, and even go to the opposite side of society. therefore, it is imperative to reform and improve the age division system of juvenile criminal responsibility. it is necessary to establish a more flexible and scientific evaluation mechanism, taking into account the psychological development, cognitive level, family background, social environment and other factors of minors, so as to ensure the justice and rationality of the law, and also provide a strong legal guarantee for the healthy growth of minors. the legal system faces serious challenges in dealing with the tension between the rights of young minors and social security. the law aims to punish crime and ensure social order and safety, but it also needs to protect minors' rights to growth and education. however, the current legal framework often focuses on meeting the safety needs of society, and the special protection of minors is slightly insufficient. this bias not only limits the full development of minors, but also may cause them to suffer secondary injuries in judicial procedures. the limitations of the legal system in dealing with such complicated problems make the judicial practice face many difficulties in the concrete operation. how to find the right balance between safeguarding social security and protecting the rights and interests of minors has become an urgent legal problem, which requires the joint efforts of the legal profession and all sectors of society to constantly explore and improve the relevant legal system to ensure that every minor can thrive in a safe and healthy environment. the existence of these contradictions reveals that the legal system needs more flexible and diversified mechanisms in the regulation of the harmful social behaviors of young minors, so as to effectively www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 published by scholink inc. 200 combine the functions of punishment, education and prevention, so as to achieve real social justice and harmony. 3. resolution of legal conflicts 3.1 comparison and reference of domestic and foreign legal regulations it is of great significance to learn from domestic and foreign legislative experience and judicial practice when discussing the legal regulation scheme of the juvenile's harmful social behavior. many countries and regions focus on education, prevention and correction when dealing with juvenile delinquency, in order to achieve the best social results. britain and other western countries pay attention to the moderation and socialization of juvenile justice (ye, 2023). the children's court system in the uk emphasises the protection and support of minors, implementing comprehensive interventions and encouraging the active involvement of families and communities. the united states has established a juvenile record sealing system in some states to protect the privacy of minors and avoid the impact of bad records when they become adults. these measures emphasize the re-socialization and rehabilitation of minors, focusing on the long-term development and social return of individuals. in asia, japan's approach is instructive, with a juvenile court system that prioritizes prevention and education, using professional counselors, psychologists and other interventions to help minors reintegrate into society. community correction and parent education are also important links to reduce the risk of recurrence. in contrast, china's legal system still relies on criminal punishment and lacks diversified solutions when dealing with the harmful behavior of young minors. although the concept of education and correction has been gradually introduced into legislation and judicial practice in recent years, it still needs to be further perfected and implemented. through comparative analysis, it can be seen that more attention should be paid to the functions of education and prevention when formulating and implementing relevant laws in china. learning from the successful experience of foreign countries will help china strengthen the protection of the rights and interests of minors in its legal system and establish a more humane and scientific regulatory mechanism. only by forming a multi-level and systematic protection and correction mechanism under the legal framework can the occurrence of harmful social behaviors of minors be effectively reduced (liu, 2023). 3.2 apply jurisprudence to propose solutions the theory of jurisprudence plays an important guiding role in solving the problem of legal regulation of the juvenile's harmful social behavior. we should deepen the understanding of responsibility ability and pay attention to the particularity of young minors in the stage of physical and psychological development. according to the principle of liability in jurisprudence, a more flexible setting mode of age of criminal responsibility is proposed, which combines the socialization level of minors with their www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 published by scholink inc. 201 responsibility ability. the applicable standards under different behaviors are redefined, and more personalized regulatory measures are formulated through accurate assessment of minors' cognitive ability. in order to deal more effectively with the harmful behavior of young minors, it is necessary to strengthen the status of education and prevention functions in the legal system. jurisprudence profoundly reveals that the essence of law is far more than punishment, it is the wisdom crystallization of social governance, aiming to promote social harmony and progress through guidance and regulation. therefore, the law should actively assume the responsibility of education prevention and behavior correction, not only as a tool of punishment after the event. in order to achieve this goal, behavioral modification programs and psychological counseling mechanisms should be actively introduced, which can provide personalized help and support to the special psychological and developmental needs of young minors. through professional psychological counseling, we can help them establish correct values and strengthen self-control, so as to prevent the occurrence of bad behaviors. at the same time, behavior modification programs can intervene and correct problematic behaviors that have emerged to help minors get back on track. such legal regulation mechanism is no longer limited to the punishment of illegal acts, but has formed a prevention-oriented system mechanism. it can effectively intervene before problems arise, thus avoiding many unnecessary tragedies and consequences. jurisprudence emphasizes the rational application of law. the age division in the current law is too general, and according to the "principle of individuality" of jurisprudence, it should be flexibly applied in the regulation to adapt to the specific personality and background of minors. in specific cases, the law should give the judicial organs a certain discretion, allowing them to make reasonable judgments according to the background, motivation and other factors of the minor, so as to maintain the seriousness of the law, but also reflect the warmth and humanity of the law. through the adjustment of these jurisprudential perspectives, the legal regulation system can more effectively deal with the harmful social behaviors of minors, and realize the justice of the law and the harmonious development of society. 3.3 suggestions on improving the relevant legal system suggestions to improve the relevant legal system are essential to solve the paradox of legal regulation in the harmful behavior of young minors. the perfection of legal system should be carried out in multiple dimensions to achieve effective correction and prevention. the age division of criminal responsibility in the criminal law has been revised to make it more in line with the psychological and cognitive development level of minors. current age standards ignore individual differences and rely too mechanically on biological age as the sole basis, without fully considering specific cognitive abilities and mental maturity. it is suggested to introduce flexible evaluation mechanism and establish differentiated treatment method through professional psychological evaluation. establish a scientific system of education and corrective measures. for young minors, punishment www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 published by scholink inc. 202 alone cannot fundamentally curb harmful behaviors, but may lead to an increase in their recidivism rate (qiu, 2023). the law should put more emphasis on the correction and education of minors, set up special counseling institutions, implement personalized correction programs, and maximize the educational function. the legal system needs to strengthen the trinity of protection and intervention system of family, school and society. the family is the key place for the socialization of minors, and the law should adopt supportive measures to promote the family to better fulfill its educational responsibilities. schools should incorporate legal regulations and increase attention and support for students by formulating specific campus safety policies and psychological counseling measures. at the social level, we can establish a community support network and integrate social resources to provide multi-directional support and help for minors, so as to achieve an effective combination of prevention and correction. promote the deep integration of law and social services (chen, 2023). based on the professional trial, the dalian court has improved the working mechanism of juvenile trial, sent the law into the school through the development of school curriculum, the practice of moot court, and the construction of education base, and implemented the preventive work in advance. at the same time, it promotes multi-party cooperation, and forms a joint force with judicial departments, education departments, youth league committees, women's federations, customs work committees and other parties through co-construction of government and school, to effectively prevent and crack down on criminal acts that infringe upon the rights and interests of minors, and protect the legitimate rights and interests of minors and their healthy physical and mental growth. 4. judicial dilemma and countermeasures of juvenile delinquency 4.1 current dilemmas in judicial practice in our country in the current judicial practice of our country, dealing with juvenile delinquency faces many difficulties. there is an obvious tension between legal protection and punishment of minors. while the law emphasizes the special protection of minors, it also faces the difficult problem of balance between protection and punishment. for some underage minors, because of their young age, they cannot bear criminal responsibility, which weakens the law's regulation and restraint on some serious behaviors to a certain extent. this situation leads to the possibility that some young minors may commit acts that endanger society due to the lack of effective legal deterrent, which brings potential threats to social security and the rights and interests of others. how to protect the rights and interests of minors and punish them properly for their serious behavior has become an urgent legal problem. therefore, it is necessary to further improve the legal system for minors and explore a more scientific and reasonable protection and punishment mechanism to ensure that social security can be effectively safeguarded and the legitimate rights and interests of minors can be fully protected. in addition, the physical and psychological development of young minors is not mature, and their cognitive ability to recognize the consequences of behavior is insufficient. in judicial practice, there is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 published by scholink inc. 203 still a lack of systematic methods and standards on how to accurately evaluate the psychological state and behavioral motivation of minors, so as to make appropriate legal treatment. some judicial personnel may lack professional psychological assessment ability, which affects the accurate determination of cases. the prevention and intervention mechanisms of family, school and society are obviously insufficient in protecting young minors from the risks of social behavior. the lack of these mechanisms makes the young minors in the face of complex social environment, lack of necessary guidance and help, easy to go astray. the justice system usually intervenes only after problems are exposed, but the weakness of prevention mechanisms prevents many potential problems from being detected and corrected in time. this lag not only increases the risk of young minors being involved in harmful social behaviors, but also limits their opportunities to get timely help and correct mistakes. the protection measures for minors in judicial procedures still need to be optimized. in the judicial process, the protection of the privacy and rights of minors is still insufficient, which easily leads to secondary injury and social discrimination. this not only affects the rehabilitation and re-socialization of minors, but also poses a challenge to judicial fairness. only through the optimization of the judicial system and the strengthening of the protection of the human rights of minors can we find a proper balance between law and humanistic care. 4.2 analysis of other possible scenarios in analyzing the judicial dilemma of juvenile delinquency, it is necessary to consider the complex interaction between law application and social environment. the diversity and concealment of such crimes make it difficult for traditional legal regulation to cope with them. underage minors are often in the dual development period of physical and psychological, lack of sufficient legal awareness and self-control ability, so that they are vulnerable to the influence of external environment. lack of family education, inadequate school education and weak social protection measures may become a "hotbed" of illegal behavior. young minors may face the problem of alienation in the process of socialization. in this process, if it is not effectively guided, the young minors with immature self-control ability are likely to be involved in improper behaviors due to the pursuit of group identity. negative social and cultural influences, such as the proliferation of violent entertainment content, may also cause their behavioral concepts to deviate, and even regard violations as normal. in judicial practice, law enforcement personnel also face many contradictions in dealing with the illegal acts of young minors. on the one hand, it is necessary to maintain the majesty of the law and ensure the normal order of society, but on the other hand, their essential plasticity and educational potential cannot be ignored. the balance between strict and flexible application of law has become an unavoidable issue for judicial personnel (tang, 2022). the risk of recidivism among young minors is also of concern. the current legal means are more inclined to punishment after the fact, rather than prevention and intervention in advance, which makes www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 published by scholink inc. 204 some minors fail to achieve the effect of education correction after receiving legal sanctions, and further increase the risk of recidivism. this scenario not only affects the future development of minors, but also poses a potential threat to social stability (deng, 2021). the judicial dilemma of juvenile delinquency also involves the perfection of legal system, the cooperation of all sectors of society and the effective integration of resources. to solve these problems systematically, it is necessary to carry out comprehensive management from multiple angles and levels, so as to build a more scientific and efficient mechanism for protecting minors' rights and interests and correcting social behaviors. 4.3 suggestions for dealing with judicial difficulties to deal with the judicial dilemma of juvenile delinquency, it is necessary to formulate scientific and reasonable measures to realize the justice and effectiveness of law. it is necessary to adjust the age dividing line of criminal responsibility, which should be evaluated comprehensively according to the psychological maturity and socialization level of minors. rigid rules on age in legal texts can lead to unfair judicial outcomes, while flexible criteria can better reflect individual differences. it is also important to strengthen the collaborative protection mechanism of family, school and society. family education plays a fundamental role in the growth of minors, and parents should have basic legal awareness and educational ability. schools need to establish a sound counseling and psychological support system to help students form a correct concept of the rule of law. at the social level, the construction of community protection network should be promoted, and corresponding resource support and legal aid should be provided (zi & fu, 2019). examining the core of justice, we can find that the establishment of professional judicial mechanism is the key. through the establishment of a special agency dealing with juvenile cases, a suitable environment has been established within the judicial structure. the professional team that focuses on the application of psychology and social work background ensures that juvenile cases are examined in a complete and comprehensive way to reflect their particularities. the expansion of education and prevention programs for juvenile delinquency is a joint effort between the government, non-profit organizations and relevant social institutions. the program includes community activities, psychological guidance, skills training, etc., which will provide a positive and positive environment for minors to grow up. deepening the legislation of legal protection of minors is the way to achieve concrete measures. in judicial practice, the education and correction function should be emphasized, and the single dependence on penalty should be exceeded. rectification and improvement of the current legal system for comprehensive reform can promote the holding of more humane and effective legal constraints on minors. closing remarks this study explores how some young children may engage in behaviors that are harmful to society and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 published by scholink inc. 205 analyzes how current laws in this area are regulated in our country. we found that the current law has some shortcomings in how to prevent this kind of behavior and how to set the age. we recommend that the law take into account the degree of mental development of a child when judging whether he or she is responsible for his or her actions. at the same time, families, schools and society should work together to protect and educate these children. our suggestions need to be verified by further research and practice. through continuous improvement, we hope to establish a better set of laws to solve this problem and help children grow up healthily. in this way, children can better understand and abide by the rules of society and become responsible citizens. reference chen, h. m. (2023). commentary on article 17 of the criminal law (criminal responsibility of minors). jurist, (01), 176-190. deng, x. l. (2021). legal thoughts on juvenile criminal responsibility governance and system improvement. social scientist, (04), 114-119. he, t., & wang, l. d. (2024). minor crime in our country criminal law the idea renewal and improvement of the standard approach. journal of human rights, (3), 86-103. jiang, m., & shi, x. h. (2019). the dilemma and way out of the minimum punishment age system to deal with juvenile crimes: reflections on the murder case of a 13-year-old boy in handan. journal of chongqing university (social sciences edition), 30(04), 237-251. liu, r. w. (2023). judicial application of juvenile criminal liability clause. journal of law, (07), 59-76. liu, s. (2002). legislative mechanism of lowering the age of criminal responsibility clause and its prudent application. review of criminal law, 72(04), 1-36. liu, y. h. (2019). norm activation and rule creation: the optimal age of criminal responsibility for punishing minors. law and social development, 30(04), 17-36. qiu, s. p. (2023). response stance and development of juvenile delinquency: starting from adjustment of minimum age of criminal responsibility. journal of xiangtan university (philosophy and social sciences edition), 47(02), 73-78. tang, j. y. (2022). application of theory of young underage criminal responsibility of. journal of sichuan normal university (social science edition), 49(02), 50, 58. wang, g. (2024). punishment, communication, and criminal responsibility age. chinese journal of criminal law, (4), 142-160. ye, x. q. (2023). the application path of individual lowering the statutory minimum age of criminal responsibility clause. journal of suzhou university (law), 10(4), 109-123. zi, z. f., & fu, l. p. (2019). can the age of criminal responsibility for minors be lowered? an empirical study based on 1010 questionnaires. human rights research (journal of human rights), 23(01), 285-313+571. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 68 original paper research on judicial review of manifestly improper administrative acts hongyu lea 1* 1 school of marine law and humanities, dalian ocean university, liaoning, dalian, china * corresponding author, e-mail: 2449759465@qq.com received: may 1, 2024 accepted: may 25, 2024 online published: may 27, 2024 doi:10.22158/elp.v7n1p68 url: http://dx.doi.org/10.22158/elp.v7n1p68 abstract judicial review, as a form of external supervision, can effectively improve the lack of self-supervision by administrative subjects. obviously improper as one of the circumstances of administrative behavior, the definition of the academic community, and the “administrative procedure law” and its judicial interpretation of the lack of clear definitions and application standards, resulting in the court in the judicial practice of the application of “obviously improper” as the basis for review of the standard is not uniform and inconsistent application of the problem, judges and relying on their accumulated professional knowledge and practical experience to determine whether the administrative subject of the administrative act constitutes “obviously improper”, with a greater subjectivity, which may lead to administrative action as well as the judicial trial of the phenomenon of the same case, undermining the impartiality and authority of the judiciary, not conducive to the construction of the rule of law, the rule of law government. therefore, in order to solve the above problems, the need for the meaning of clearly improper and its judgment standards, standardize the “clearly improper” the scope of application of the basis for review, the establishment of a unified standard of judicial review, but also to continue to improve the administrative case guidance system. therefore, clarifying its criteria is of great significance to the people’s courts in correctly adjudicating administrative cases to safeguard the lawful rights and interests of citizens and legal persons, and also helps to standardize the criteria for judicial review, and to regulate and limit administrative power. keywords manifestly improper, judicial review, judicial remedies, administrative action www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 69 1. introduction 1.1 clearly inappropriate textual interpretation first, from a literal point of view, manifest impropriety consists of two main lexemes: “manifest” and “impropriety”. “obvious” is a value judgement, indicating a degree of clarity, intelligibility and particular ease of recognition. “inappropriate”, on the other hand, is a factual judgment, indicating unreasonableness and inappropriateness. its overall meaning is a clear indication of unsuitability and inappropriateness. obvious impropriety is essentially a general and vague legal concept, which is subject to subjective judgment in the light of the spirit of legislation and legal principles. 1.2 obviously inappropriate academic opinions different scholars have different views on the meaning of the term “manifestly improper” in the academic world. mo yu-chuan professor that the administrative organ to make the administrative act to meet the requirements of legality and reasonableness, when the administrative act reaches the degree of obvious unreasonableness, unfairness, that is characterized as obviously improper, then need the court to intervene. professor shen han thinks: “obviously improper in the legislation is for the judicial review of the intensity of the establishment of a relative limit, to avoid excessive judicial intervention in administrative discretion. obviously inappropriate this standard can cover the administrative organs due to cognitive bias, negligence or error and made with the legislative purpose, the spirit of the legislation, the basic principles of the rule of law, the general concept of fairness and justice or common sense discretionary decisions obviously contrary to each other”. prof. jiang ming’an defines obvious impropriety as obvious unreasonableness and injustice; prof. hu jianmiao argues, “obvious impropriety refers to the problem that an administrative act is not in accordance with reasonableness although it is not illegal”. professor he haibo, on the other hand, from the point of view of distinguishing between formal legality and substantive legality, obviously improper in terms of formal legality, although in conformity with the legal rules established by laws, regulations, rules and so on, but in accordance with the point of view of substantive legality, in addition to not violating the specific rules of the laws, administrative regulations, rules and regulations, it also can not be contrary to the principles of administrative law, the spirit of the legislation, administrative precedent, public morality and other sources of legal expressed in the legal norms. summarizing the above views, the author believes that: “obvious impropriety is an illegal act committed by an administrative organ that is contrary to the principles of administrative law, the purpose of legislation, and public morality, and that causes substantial damage to the administrative relative and legitimate rights and interests”. 1.3 manifestly improper legal interpretations in the administrative litigation and judicial interpretation related understanding and application, the definition of obviously improper administrative behavior basically adopts the viewpoint of professor jiang ming’an, that is, the administrative behavior is unreasonable and unjust by seriously violating the principle of reasonableness. from the results of the interests of the interpretation of clearly improper administrative behavior results in violation of the usual clean-up degree. but an administrative act is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 70 unreasonable to what extent is considered obviously improper, how to distinguish between general improper and obviously improper, these are no specific refinement of the standard. obviously improper as a legal concept of uncertainty due to the lack of specific theory and refinement of the provisions of the court in specific cases of trial and review of certain difficulties. although obviously improper itself with a certain degree of ambiguity, but also should be specific quantitative concept of its scope, so as to make the judicial review of the objective criteria to maintain its fairness. therefore, the concept of clearly improper administrative action and specific refinement of the standard is conducive to regulating the administrative organs of the exercise of discretionary administrative action and the fairness of the court’s judicial review. 2. the need for judicial review of manifestly improper administrative action 2.1 administrative rule of law needs in the dictionary, “administration” means management, and in the english dictionary, administration and management are even one word. in the usual sense, the term administration refers to the activities of a social group that organizes and manages a certain range of affairs for a specific purpose. according to this interpretation, administration exists in all social organizations, government, enterprises, institutions, mass organizations and so on. it can be seen that administration exists in all aspects of human life. in order to regulate the exercise of administrative power, it is necessary to impose certain constraints on it to ensure reasonable administration in order to realize the efficient management of the state and social affairs, maintain social peace and stability, and further promote administration in accordance with the law and the rule of law. however, with the continued expansion of modern administrative power, there is a risk of abuse of power, and in order to implement administration in accordance with the law and the rule of law, it is necessary to remain vigilant against the downward expansion of administrative power on the grounds of governance. in addition to the horizontal expansion of administrative power, resulting in its management of social affairs more detailed, wider coverage, and administrative power is not like the exercise of power that is strictly regulated, it will inevitably be abused, the administrative subject is very easy to make obviously improper administrative behavior. therefore, in the process of safeguarding the exercise of administrative power, attention should also be paid to the supervision of administrative power. administration in accordance with the law is an inevitable requirement for the construction of a rule-of-law state and a rule-of-law government. administration in accordance with the law requires that administrative subjects shall not violate the provisions of laws, administrative rules and regulations in carrying out administrative activities. if the administrative organ or other administrative subject violates the relevant laws and regulations, exceeds the authority, made unreasonable, inappropriate administrative decisions need to bear the corresponding legal responsibility. therefore, to clarify the meaning of administrative behavior is obviously improper, for judicial review and the rule of law has important significance. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 71 2.2 need for administrative discretionary control administrative discretion is also a fuzzy concept, similar to the criminal law in the fitness of crime and punishment. academics mostly define it in terms of legislative power, judicial power and administrative power. for example, professor jiang ming’an believes that in line with the spirit of legislation, legislative purposes, legislative principles, in order to achieve the administrative purposes, the administrative organs to choose, decide to make the behavior is administrative discretion. with the legislator’s substantive provisions of the substantive law of administrative discretion, the court can realize the administrative organs of their own choice of administrative action to achieve the supervision of the litigation, and to achieve the legislator’s purposes and requirements. therefore, administrative discretion is viewed from the perspective of the legislature, the judiciary and the executive, which helps to understand its meaning. therefore, how to realize the balance between the freedom of administrative discretion and judicial supervision is the focus. administrative discretion has several characteristics as follows. first, the power of administrative discretion is clearly defined by law. including the power by whom to exercise, discretionary standards, discretionary content, etc., violation, abuse of power need to bear the corresponding responsibility. secondly, administrative discretion is made by a specific person within certain limits, although the laws and regulations have objectivity, but also less subjective. the choice and decision of administrative discretion is relatively free, must be made within reasonable and lawful limits. third, the scope of discretion, there are different academic differences. one party claims that administrative discretion is limited to specific administrative action. and the other side advocates, administrative discretion and in all administrative behavior. because of the expansive nature of administrative action, so the abstract administrative action field should also have the right amount of discretion in order to regulate the administrative power. fourth, the certainty and predictability of discretionary decisions. although administrative discretion has subjective initiative, it is also limited by norms. the choice of administrative behavior must strictly abide by the laws, regulations and other restrictions and in line with the legislative principles and the spirit of legislation. the famous administrative jurist, bernard once said: “administration lies in discretion and control of discretion”. to a certain extent, it can be said that the vitality of administrative power lies in administrative discretion. and administrative discretion is under the clear provisions of the law, so administrative discretion has an umbrella. and because the choice of administrative power with a great deal of subjectivity and environmental uncertainty, so the administrative body is likely to violate the exercise of power, make a form of legal, but the substance of the administrative decision is unreasonable. the legislative purpose of administrative discretion itself is to make up for the limitations of the law, to supplement the defects and deficiencies of the legislation, and to give full play to the subjective initiative to realize the justice of individual cases. based on the principle of interconnectedness of power and responsibility, in order to avoid abuse of administrative power, administrative discretion is also subject to restriction and regulation. the regulation of administrative www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 72 discretion in most cases focuses on legislative control as well as formalistic checks, that is to say, the legislature enacts strict legal norms at the time of legislation to control the exercise of administrative discretion. another way is ex post facto relief, i.e., in the face of unjust and unreasonable administrative decisions to limit the unfairness caused by the exercise of administrative discretion by means of judicial review. however, the effect in reality is not satisfactory, and the attempt to realize the regulation of administrative discretion through legislation is usually constrained by many circumstances. for example, judicial review has its own limitations and judicial remedies have a certain degree of delay. therefore, it can be learned that there are many difficulties in trying to realize the regulation of administrative discretion by means of traditional means. so far, the regulation of administrative discretion has shifted from procedural to substantive, from external constraints to internal regulation, which is the only way to minimize or even avoid the making of obviously improper administrative acts. 2.3 the need for judicial remedies due to the administrative discretionary behavior itself does not have a specific and clear standards and made the subject with the subjective initiative, always inevitably produce infringement of the legitimate rights and interests of administrative counterparts. therefore, the administrative remedy should not only include illegal administrative behavior, but also the form of legal but illegal administrative behavior included. the administrative remedies include but not limited to, administrative litigation, administrative reconsideration. administrative litigation refers to when the legal rights and interests of citizens and legal persons suffered unjust and illegal infringement can seek judicial relief from the court. therefore, administrative litigation assumes the function of final guarantee. an important legal principle of our country, power and responsibility are unified, therefore, the power must be regulated, and obviously improper administrative behavior should be regulated. judicial remedies are characterized by both passive and active. its passivity is reflected in the initiation of the procedure, that is, no lawsuit, the court may not take the initiative to intervene in the obviously improper administrative behavior of judicial review before the parties to the court litigation. judicial review at the same time also has a positive and active aspects, that is, after the court accepts the administrative litigation case, the judicial organs can be appealed to the administrative behavior of the initiative to review, and actively safeguard the legitimate rights and interests of administrative counterparts, to maintain the value of legal fairness and justice. judicial remedies can effectively regulate the administrative subject’s discretionary behavior, the period is more reasonable, can significantly reduce the occurrence of improper administrative behavior, and make the law more authoritative. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 73 3. inappropriateness of the manifest impropriety standard in judicial review 3.1 inconsistent standards for determining manifest impropriety the legal affairs commission of the national people’s congress, as the formulation authority of the new administrative procedure law, also organized scholars to publish the “interpretation of the administrative procedure law”, so this book has a high reference value, which can better help us to understand the legislator’s attitude towards the obviously improper. the legislator in the “interpretation of the administrative procedure law” on the evaluation of obviously improper is this: administrative punishment results in national celebration or excessive. this interpretation evaluates obvious impropriety from the sense of result. but the court can not agree with this view. because the court’s trial is not only the result, there are other procedures such as trial, this explanation obviously can not meet the requirements of the court practice review. for the court, to judge whether an administrative act is improper, can not only look at the results, but also to judge the administrative organ to make the administrative act to give what purpose, as well as the means used is appropriate. in 2014, before the revision of the administrative procedure law, the academic community on the obviously improper research is very little, administrative organs and judicial organs on the obviously improper are not a unified interpretation of the standard, can only rely on their own experience in practice on its judgment. to this day, the academic community for the interpretation of obviously improper is still divided. 3.2 inadequate and clearly improper reasoning in adjudicative documents in accordance with the provisions of the administrative procedure law, in order to maintain the authority of the law, it is necessary to justify the reasons for the decision, with a clear basis and sufficient reasons to argue. the abstract concept of clearly improper more need to be sufficient grounds to argue, make the administrative litigation trial to achieve satisfactory results. the legislator set up obviously improper as the basis for review, its intention is to prevent the abuse of administrative power, safeguard the legitimate rights and interests of the administrative relative, but in practice it is not difficult to find, most of the court’s decision, the obviously improper reasoning is obviously not sufficient, which is unconvincing. for obvious insufficient reasoning, obviously the word can see the legislator for the respect of administrative power, only when the administrative power is obviously wrong after the fact by the judicial power to be corrected. not only maintain the discretionary power of the administrative organs, but also can give the administrative relative reasonable relief. but in practice, the court for the “obvious” reasoning is usually only a direct quote from the article, only one sentence, not enough. for “improper” reasoning is insufficient. the specific form of its manifestation is that the violation of what is improper, as well as the reasons for the violation of what is, to what extent the violation is considered improper, these in the decision often did not set out. for example, the court in the decision to write: “the main evidence is insufficient, obviously improper”, the latter part of which seems to be followed in the lack of evidence after a result of the description, and no reasoning of the argumentation, was passed over. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 74 4. proposals for improving judicial review of manifestly improper administrative acts 4.1 refinement of the standard for determining manifest impropriety so far, in practice, most judges and scholars have used the basic principles of administrative law as the standard for judging obvious improprieties. although this approach has a certain theoretical basis, but this standard depends on individual value judgment, which may lead to different judges to treat the same case will come to different conclusions, is not conducive to the consistency and certainty of the law, it is difficult to give adequate reasoning in the judgment, resulting in judicial practice, the confusion of the application of the obviously improper. appropriate reference can be made to the legislative principles, for example, the principle of equality, in the same case there are more than one relative who has committed an act of comparable degree of violation of the law, the administrative organ should impose a similar degree of punishment on all. secondly, the principle of proportionality, which is an important principle in administrative discretion, to achieve a balance of the interests of all parties. in order to achieve certain administrative purposes, the administrative organ should obtain greater benefits at the least cost, and maintain a good balance between individual interests and public interests. 4.2 improving the administrative case guidance system although our country does not take jurisprudence as a formal source of law, as do common law countries, it is undeniable that jurisprudence has a great role to play in the application of legal norms by judges in adjudicating cases and in harmonizing adjudication standards. simply put, it means that such rules of adjudication, which are recognized by the highest judicial body, can provide a basis of legitimacy that is highly persuasive to the judiciary, administrative agencies, and administrative counterparts. as mentioned earlier, there is also the problem of insufficient reasoning in cases of obvious impropriety. improve the administrative case guidance system, this can also be improved. the role of the judgment is not just a simple record of the results of the case, which is more important is the basis of the decision and convincing reasoning process. the judge not only to persuade the parties to the litigation, but also to persuade themselves, therefore, the establishment of the administrative case guidance system, to standardize and improve the judicial review of clearly improper administrative action, has practical significance, can unify the judge to decide on the basis of the legal terminology to the maximum extent possible to offset the ambiguity of the legal terminology. in addition also help to improve the judgment on the reasoning part of the argumentation, more clearly see the judge free heart process, so as to form an invisible supervision of the judge, a better balance between the judicial organs, administrative organs and administrative relative interests of the three parties, to maintain the authority of the law, and to maintain social harmony. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 75 5. conclusion to start from the focus of the dispute of administrative behavior, according to the scope of obviously improper review of administrative behavior, filtering out irrelevant factors, from the legal principles of administrative law for consideration, after full argumentation to clarify the meaning of the scope of obviously improper. especially in the adjudication documents to strengthen the argumentation and reasoning, for different audiences, so that the administrative organs, the administrative relative, as well as the public and other satisfaction, so that the law to show the proper feelings and reasoning, to achieve the unity of the legal effect and social effect. references boughey, j. l. (2014). bills of rights: the newest despotism? a comparison of the development of the principles of judicial review of administrative action in australia and canada. monash university, faculty of law. brown, d. j. m., & evans, j. m. (1998). judicial review of administrative action in canada. canvasback publishing. chiti, m. p. (2021). judicial review of administrative action: europe and latin america. judicial review of administration in europe. https://doi.org/10.1093/oso/9780198867609.003.0020 de smith, s. a., & evans, j. m. (1980). judicial review of administrative action. stevens & sons. dollat, p. l. (2011). zhang: judicial review of the legality of administrative acts in china. china-eu law journal, 1(1-2), 119-124. https://doi.org/10.1007/s12689-011-0003-8 hua, p., & school, l. (2014). discussion upon the judicial review of the administrative emergency action. journal of southwest university of science and technology (philosophy and social science edition). lingyun, y. (2003). judicial review on administrative discretion with improper purposes. law and social development. mcharg, a. (2017). administrative discretion, administrative rule-making, and judicial review. social science electronic publishing. https://doi.org/10.2139/ssrn.3044092 peck, c. (1958). the scope of judicial review of administrative action in washington. washington law review. peng, c. (2019). existing problems in the legitimacy review of administrative acts and the ways to improve them. tianjin legal science. schorr, j. a. (1983). forum for judicial review of administrative action: interpreting special review statutes. the b.u.l.rev. https://doi.org/10.1093/oso/9780198867609.003.0020 https://doi.org/10.1007/s12689-011-0003-8 https://doi.org/10.2139/ssrn.3044092 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 127 original paper legal regulation of harassment over food delivery reviews ying liu 1 1 dalian ocean university, dalian 116023, china received: april 12, 2025 accepted: april 28, 2025 online published: april 29, 2025 doi:10.22158/elp.v8n1p127 url: http://dx.doi.org/10.22158/elp.v8n1p127 abstract this study uses literature and logical analysis to explore the legal regulation of the harassment of poor reviews of takeaways. the study finds that the right to bad reviews has the attributes of both supervisory rights and personality rights, and its protection is of great value to the market order, personality dignity and platform governance, but faces the dilemmas of ambiguous legal characterisation, unclear platform responsibilities and difficulties in defending rights, which are manifested in the problems of cross-criminal and civil identification, inconsistent application of laws and imbalance of evidence. in this regard, we propose a “legislation-platform-rights protection” trinity programme: refining the legal qualitative standards, perfecting the platform responsibility system, and innovating the evidence and rights protection mechanism, which will provide a reference for consumer protection and platform governance in the digital economy. keywords consumer protection, internet privacy, legal regulation 1. introduction in recent years, with the popularisation of mobile internet and smart terminals takeaway platforms have risen rapidly and gradually become an important part of the modern consumer ecology, during which consumers play an important role in market regulation through the statutory right-the right to evaluation, which is explicitly stipulated in article 39 of the e-commerce law, but along with the intensification of market competition however, along with the intensification of market competition, the impact of bad user reviews on their ratings, rankings and orders is becoming more and more prominent, and merchants on the platform are facing significant operational pressure. in order to avoid the negative effect of bad reviews, some merchants take improper means such as harassment, threat and even privacy leakage to interfere with the user’s right to evaluation, which has become a new type of network infringement, such behaviour is a direct infringement of the legitimate rights and interests of consumers, and is even more destructive to the platform’s credit mechanism, which will exacerbate the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 128 published by scholink inc. crisis of trust between the users and merchants, so there is an urgent need to carry out a systematic study at the theoretical and practical levels. the “2024 evaluation transparency report” released by vwdianping shows that the platform intercepted 20,717,200 non-compliant evaluations and dealt with 1,562,700 times of harassment of bad evaluations in the whole year (volkswagen dianping, 2024), which not only reflects the effectiveness of platform governance, but also highlights the complexity and challenge of evaluation ecological construction. this study takes this as an entry point to explore the balance of rights and interests in the online evaluation system and the governance mechanism, which not only aims to reveal the pain points and blockages in the current evaluation ecosystem, but also aims to build a set of comprehensive governance solutions that take into account the protection of consumers’ rights and interests, the maintenance of legitimate interests of merchants and the healthy development of platforms. at the theoretical level, this study will expand the theoretical connotation of consumer rights protection in the era of digital economy; at the practical level, the research results can provide useful references for the platform to optimise the governance rules, and the regulatory authorities to improve the policies and regulations, and ultimately promote the formation of a truthful, transparent and healthy online evaluation ecosystem, so that the benign cycle of consumers dare to evaluate, merchants focus on the service, and platforms are good at governance becomes possible. 2. the need for legal regulation of harassment of poor takeaway reviews 2.1 guaranteeing consumers’ freedom of evaluation and human dignity consumers make use of the blockchain online evaluation system with evaluation content integrity, tamperability and traceability to provide truthful and fair evaluations, and report false or misleading reviews through the reporting and screening mechanism, which can achieve the virtuous cycle of the evaluation system (shi, p. p., sun, g. q., shi, w. p. et al., 2025, pp. 149-163), and when merchants implement harassment, intimidation or even retaliation against consumers due to bad reviews, consumers’ freedom of evaluation and human dignity are vulnerable to infringement, and the law’s regulation of such behaviours is conducive to the protection of individual rights and interests. the regulation of such behaviour is conducive to the protection of individual rights and interests. the protection of consumers’ freedom of evaluation and human dignity is embodied in the following aspects: first, respecting consumers’ true will and guaranteeing that evaluation is not coerced. according to article 39 of the e-commerce law, consumers have the legal right to objectively evaluate goods and services, and legal regulation of harassment due to poor user reviews not only helps to ensure that consumers can freely evaluate based on their real experience, but also ensures that the evaluation mechanism will not be reduced to a form. secondly, strengthen the responsibility of platform supervision and enhance the transparency of the evaluation system. dong jingbo believes that the state’s supervision of online platforms should achieve coordination between policy and platform autonomy, adhere to the principle of “network neutrality” and the principle of transparency of platform rules, and promote the realisation of regulatory goals by regulating platform technology (dong, j. b., www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 129 published by scholink inc. 2022, pp. 70-82), thus, the law should establish a transparent mechanism for displaying and appealing against bad evaluations, and give play to the important role of takeaway platforms in safeguarding consumers’ freedom of evaluation. the law should establish a transparent mechanism for displaying and appealing against bad reviews, and give play to the advantage of takeaway platforms in protecting consumers’ freedom of evaluation. third, balance the power contrast between merchants and consumers to maintain a fair trading environment. merchants often occupy information and resource advantages in consumer relations, while the mechanism of bad reviews is one of the few checks and balances for consumers, and legal regulation is a strong guarantee for the correction of this inequality, and merchants should not be allowed to suppress bad reviews through harassment, which may lead to a further imbalance in the status of the two parties. 2.2 maintaining the normal market order and integrity system maintaining market order and a fair and transparent market environment requires every businessman to adhere to the principle of honesty and ensure the truthfulness of the services provided, which can be derived from ensuring the truthfulness and objectivity of the evaluation in the online evaluation mechanism. meng fanxin to enhance the level of governance of network service trading platform, aimed at effective governance mechanism construction, the deception and opportunistic behaviour in the service transaction to effectively constrain, stop and necessary punishment, so as to achieve the high-quality development of the network service trading market (meng, f. x., 2023, pp. 32-42). the regulation of bad review harassment behaviour is the guardian of market integrity and transparency. first, to ensure the truthfulness and objectivity of evaluation is the basic respect for every consumer. online consumption era, evaluation is not only a simple scoring and message, but also between consumers to pass the bond of trust, a real bad evaluation, can remind other consumers to avoid risk, when the invisible and intangible online takeaway service tends to be transparent, consumer rights and interests are further safeguarded. secondly, when the word-of-mouth attribute of bad reviews is revealed, businesses can be forced to improve their services, thus forming a good atmosphere for upward competition. when individual merchants through harassment means to “eliminate” bad reviews and improve the ranking, other law-abiding operators will be forced to follow, otherwise it will be at a disadvantage in the algorithm recommendation, which will lead to the destruction of the market order, so that the regulation is also a sense of security to the business. third, evaluation authenticity directly affects the efficiency of resource allocation. legal regulation through clear behavioural boundaries and disciplinary standards, can rebuild “quality service-real praise-traffic reward” market positive cycle, so that the focus of business competition to return to the quality of service rather than public opinion manipulation. 2.3 promoting service innovation and industry upgrading to promote service innovation and industry upgrading in order to better meet consumer demand and thus promote economic development, takeaway platforms and merchants need to continuously carry out service innovation and improve service quality and efficiency. the legal regulation of the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 130 published by scholink inc. harassment of bad reviews of takeaways not only has a negative defensive value, but also promotes the innovation and upgrading of the catering and local life service industry in a positive way. firstly, it forces service upgrading. when the law explicitly prohibits businesses from interfering with consumer evaluations through harassment, businesses will be forced to shift the focus of competition to improving the quality of food, delivery efficiency and after-sales service, which will in turn promote service innovation and healthy development of the industry. second, bad reviews drive optimisation. bad reviews themselves are real feedback in the market demand, when the business can not be suppressed through harassment of bad reviews will naturally be more proactive in analysing the content of the bad reviews, through the identification of shortcomings in the service and then promote product improvement or process re-engineering, this model of bad review-driven innovation is the original intention of the evaluation mechanism is also a healthy market should be a virtuous cycle. third, regulate competition in the industry. from the perspective of the industry as a whole, the legal regulation of bad review harassment is equivalent to the establishment of a “competitive bottom line”, through the establishment of a “competitive bottom line” can prompt the industry to shift from low-end price wars or brushing marketing to high-quality competition centred on user experience, thereby promoting the transformation and upgrading of the entire service industry. the establishment of a “competitive bottom line” can prompt the industry to shift from low-end price wars or brush marketing to high-quality competition centred on user experience, thereby promoting the transformation and upgrading of the entire service industry. 3. the real dilemma of legal regulation of bad review harassment behaviour 3.1 difficulty in characterising behaviour in judicial practice, the legal characterisation of bad review harassment faces a number of dilemmas, which are first reflected in the ambiguous area of civil tort determination. when merchants frequently call consumers or send harassing information due to bad reviews, it may involve the infringement of the right to privacy, the right to reputation and the right to peace of mind, etc. however, the current civil code does not clearly define the boundaries of these rights, which are generally divided into two situations: one is simple telephone bombing, which may constitute an infringement of the right to peace of mind, and the other is that it may be accompanied by verbal abuse and threats, which may simultaneously infringe the right to reputation, and this phenomenon of competing rights has a significant impact on whether judges can accurately apply the law when adjudicating the case. this phenomenon of competing rights makes it difficult for judges to apply the law accurately when making decisions. secondly, it is often difficult to quantify the damage caused by the infringement, and the damage suffered by consumers mainly manifests itself in mental suffering and daily life, with mental suffering including anxiety, fear and other negative emotions caused by the continuous harassment, and interference in daily life manifesting itself in the form of reduced concentration at work, limited social activities and other specific aspects. these damages are obviously subjective and persistent, and are www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 131 published by scholink inc. difficult to be verified by objective means such as medical examination and the lack of uniform assessment standards, in judicial practice, the quantification of damages caused by infringement of rights has always been faced with significant difficulties, which can be seen in the harassment of takeaways in the case of bad reviews is a difficult point. finally, the anonymity of the network has increased the difficulty of proof. consumers will face technical obstacles in proving that the harassing calls actually came from the poorly rated merchants, and in reality, even if the harassed consumers inquire about the number through the operator, they may also encounter the merchants using the “black card” or the virtual number as a means of circumvention, so the difficulty of proof is a cause for concern. in terms of criminal identification, the harassment of bad reviews may constitute offences such as provoking trouble and infringing on citizens’ personal information, but there are still gaps in the existing law in terms of behavioural characterisation, rules of evidence and the appropriateness of the offence. firstly, there are disputes over the application of the criminal law offences of provoking trouble and insults to the harassment of bad reviews, and it is difficult for general telephone harassment to meet the “aggravating circumstances” criterion, unless it results in extreme consequences such as consumer suicide. secondly, it is difficult to grasp the scale of the determination of threatening words, the so-called “i know your home address” of the merchant may be deemed to be just a statement of fact rather than a clear threat, and it is yet to be confirmed whether the public security authorities have filed a case against such grey words. finally, criminal investigations are faced with the problem of evidence collection and evidence fixing. in daily life, consumers often lack the awareness of evidence collection and do not record harassing phone calls, which leads to the loss of evidence, and even if there are recordings, they are often unable to form a complete chain of evidence due to the ambiguity of the content. what is more problematic is that when the harassment behaviour is scattered in multiple minor actions, the behaviour from the constituent elements of the analysis do not constitute a crime, but overall it causes serious distress to consumers, so the poor evaluation of the harassment behaviour in the criminal law level of the legal qualification is also particularly difficult. 3.2 lack of accountability mechanisms for platforms currently, there is an obvious lack of responsibility mechanisms for takeaway platforms in the event of harassment by bad reviews, which is mainly reflected in two aspects: the legal gap of the platform’s prior prevention obligations and the delayed response to complaint handling and information blocking. although article 39 of the e-commerce law stipulates in principle that platforms should provide consumers with evaluation channels and prohibit merchants from interfering with them, there is a lack of detailed requirements on how to build an effective harassment prevention mechanism, and the platform, as a rule maker that holds the right to review the qualifications of the merchants, the right to distribute order information and the right to display evaluations, should, at the level of information protection, block the merchants “access to the consumers” private information through technological means as well as however, in reality, most platforms ignore these preventive measures, focusing on the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 132 published by scholink inc. fact that the complained merchant can continue to obtain consumer information by changing its account, which shows that the effect of the existing mechanism on preventing merchants from continuing to obtain consumer information through other means remains to be seen. more critically, the law does not specify the presumption of liability of platforms in the case of bad review harassment, leading to platforms often shirking their responsibilities on the basis of “technological neutrality”, and the ambiguity of this preventive obligation essentially condones the growth and spread of harassment behaviour. in the aftermath, the platform’s complaint handling and information blocking mechanism has a lag, when consumers complain to the platform after experiencing harassment, the complex evidential requirements and lengthy review process often discourage defenders, for example, consumers to find the complaint portal often due to the platform’s design is hidden in the multi-level menus and spends time, and in addition, when complaining, consumers are required to collect their own call logs, text message screenshots, and other evidence. in addition, it is clearly unfair to shift the burden of proof entirely to the victim. at the same time, the platform’s disciplinary action against merchants mainly takes measures such as deducting credit scores and issuing warnings, and rarely implements more binding dispositions such as downgrading the shop or temporarily taking it offline. to sum up, platforms have failed to play a key role in protecting consumer rights and interests as well as technical means, and the takeaway industry urgently needs platforms to prevent and punish bad reviews and harassment through technical and rule-based means, so as to complement or replace the government’s external supervision. 3.3 barriers to proof of rights and remedies consumers are prone to encounter technical difficulties in the process of obtaining evidence, especially for the traceability of nuisance calls and sms, there are obviously objective obstacles for individual consumers without technological support, especially in the case of harassment by merchants using virtual numbers or non-real-name registered communication tools, even if consumers save the call records and the content of the text messages, it is difficult to establish a direct link with a specific merchant. the asymmetry of information makes it difficult for consumers to establish a direct link with a particular merchant even if they keep call records and sms content, while the call records provided by the operator usually only show the number without confirming the identity of the actual user. in addition, the voice information and text records of instant messaging software are easy to tamper with, and their evidentiary validity may be challenged in judicial determinations. these technical factors objectively increase the difficulty for consumers to prove their case. on the other hand, there are also concerns about the cost-benefit ratio of judicial remedies. when consumers defend their rights through formal legal channels, they usually need to invest considerable time and economic costs, including litigation fees, attorney’s fees, and loss of lost time due to court appearances, etc., and the remedies that can be obtained are often based on cessation of harassment and compensation for moral damages, which may be unbalanced between the amount of compensation and the investment in defending their rights. balance, at the same time, the time span of the litigation process may be up to several months, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 133 published by scholink inc. and this time cost further affects consumers’ motivation to defend their rights (yang, y. n., 2024, pp. 60-77). 4. the path to improvement of the legal regulation of bad review harassment behaviour 4.1 substantive law level: building a multilevel liability system it is proposed to improve the regulation system of bad review harassment in three aspects: first, to refine the legal norms, issue a judicial interpretation of article 39 of the e-commerce law, clarify the identification criteria of harassment behaviours, such as more than three consecutive contacts in non-normal time periods, the use of insulting and threatening language, etc., and set up a provision on the right to make bad reviews in the protection of consumers rights and interests law, so as to establish a gradient of legal responsibility; second, to optimize the liability determination mechanism, apply the “knowingly or should have known” standard to the platform, and require it to set up a conspicuous complaint portal and respond within 24 hours. the second is to optimise the liability determination mechanism by applying the “knowingly or should know” standard to platforms, requiring them to set up conspicuous complaint portals and respond to complaints within 24 hours, and applying the principle of “presumption of fault” to merchants, as well as establishing a multi-layered compensation mechanism that includes actual losses, moral damages, and punitive damages; the third is to strengthen the convergence of the laws by including serious harassment as an act that disrupts the social management order in the public security administration punishment law, promoting collaborative law enforcement by the departments, and encouraging pilot projects in localities. ultimately, the e-commerce law and the consumer rights and interests protection law will serve as the core of a regulatory system covering the entire civil, administrative and criminal fields. by clarifying the boundaries of behaviour, lowering the threshold for defending rights, and strengthening law enforcement coordination, the systematic management of harassment by bad reviews will be formed. 4.2 at the level of procedural law: optimising mechanisms for defending rights it is proposed to build a comprehensive mechanism for the management of bad reviews and harassment: first, to strengthen the front-end disposal of platforms, requiring takeaway platforms to set up a 48-hour rapid response channel, take measures such as temporary shielding and account restriction, and mandatorily save order data for at least six months; and at the same time, to improve the rules of electronic evidence, lower the threshold of evidence for consumers, and recognise the effectiveness of legally documented communication records. second, optimising dispute resolution procedures, developing a special module for online mediation, promoting simplified trial procedures, and supporting judicial confirmation of mediation agreements; introducing a litigation anti-harassment order, clarifying the platform’s obligation to assist in enforcement, and imposing credit penalties on merchants who refuse to enforce the law. thirdly, it has improved the collaborative governance system, established a data-sharing mechanism between administrative organs, judicial organs and platforms, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 134 published by scholink inc. standardised the process of transferring criminal cases, and formed a three-tier linkage mechanism of “platform disposal-administrative mediation-judicial adjudication”, so as to realise a closed-loop procedure of prevention, mediation and disciplinary actions. procedural innovations have improved the efficiency of rights protection, and a technology-enabled, multifaceted and common governance procedural safeguard model has been constructed. 4.3 platform governance level: improving technical defence and control to improve the legal regulation of bad review harassment at the platform governance level, it is necessary to give full play to the dual advantages of the platform as a market gatekeeper and technology controller, and to build a modern governance system that is prevention-oriented, technology-enabled, and multi-party collaborative. it is suggested that a comprehensive management system for bad reviews and harassment should be built from three dimensions: technical prevention and control, credit management and government-enterprise coordination. at the technical level, the platform should establish a “virtual number relay station” anonymous communication mechanism, assigning a temporary virtual number to each order, which will be automatically invalidated after the order is completed, and supporting the development of an intelligent semantic recognition system, which will monitor insulting and threatening language in the content of communications in real time, and automatically trigger early warning and archiving. at the same time, it has invested r&d resources to build an intelligent risk warning system, which can monitor abnormal communication patterns and achieve the function of “one-key protection”, etc. it is also equipped with a professional dispute handling team to conduct manual review to ensure the accuracy of technical judgement. in terms of credit management, the platform needs to establish a scoring system for merchants’ behaviour, incorporate bad reviews and harassment into the credit evaluation index, and implement step-by-step disciplinary measures: warning and mandatory training for the first violation; lowering search rankings and restricting promotions for the second violation; and suspending business or permanently going offline for the third or more violations. in the merchant shop page set up “integrity file” column, the public record of violations and the results of processing, to protect consumers’ right to know. these credit disciplinary measures should be connected with the credit supervision system of the market supervision department to avoid a regulatory vacuum. in terms of collaborative governance, the platform should regularly report complaint data and handling to the regulatory authorities, promptly transfer suspected illegal clues to the public security authorities, and open the data interface for random checks and inspections by the regulatory authorities. the establishment of a joint interview mechanism, the problem of outstanding business areas or categories, by the platform and the regulatory authorities to jointly interview merchants. the above implementation path suggests a pilot first strategy, first in beijing, shanghai, guangzhou and other developed cities in the digital economy to select key platforms to pilot, after maturity, through industry standards and other forms of industry-wide promotion, and ultimately the formation of technology prevention and control, credit constraints, government and enterprise coordination of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 135 published by scholink inc. three-dimensional governance pattern. 5. conclusion through the systematic analysis of the harassment behaviours of bad reviews on the seller platform, this study reveals that there are three core dilemmas in the current legal regulation: the difficulty of judicial application due to the ambiguity of behavioural qualification, the vacuum of governance formed by the lack of platform responsibility, and the obstacle of relief caused by the poor mechanism of defending the right, and the results of this study show that it is necessary to construct a “trinity” solution for the improvement of the legal regulation of the harassment of bad reviews. the research results show that to improve the legal regulation of bad review harassment, it is necessary to build a “three-in-one” solution: to refine the recognition standard and legal responsibility of harassment at the level of substantive law, to optimise the electronic evidence rules and dispute resolution mechanism at the level of procedural law, and to strengthen the technical prevention, control and credit discipline at the level of platform governance. the future needs to further improve the legal regulation system for bad reviews and harassment, improve the consumer rights and interests protection mechanism, and strengthen the platform governance responsibility, so as to build a fairer and safer online trading environment. references dong, j. b. (2022). research on the regulatory issues of platform autonomy—taking the dual identity of platforms as a perspective. business economics and management, 2022(07), 70-82. meng, f. x. (2023). research on the governance framework and mechanism of network service transaction platform under the perspective of digital economy. e-government, 2023(03), 32-42. shi, p. p., sun, g. q., shi, w. p. et al. (2025). the internal logic and realisation mechanism of blockchain-enabled platform governance—based on a three-party evolutionary game perspective. management review, 37(03), 149-163. volkswagen dianping. (2024). evaluation transparency report. shanghai: meituan company. yang, y. n. (2024). on the optimisation of cost-sharing mechanism of civil public interest litigation. research on administrative law, (06), 60-77. microsoft word elp-v1n1-p170 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 1, no. 2, 2018 www.scholink.org/ojs/index.php/elp 170 original paper diagnostics of the life deficiency of life of the population of ukraine e. b. boichenko1* & n. о. vasilchuk1 1 institute of economic and legal studies of the national academy of sciences of ukraine, kyiv, ukraine * e. b. boichenko, institute of economic and legal studies of the national academy of sciences of ukraine, kyiv, ukraine received: october 14, 2018 accepted: october 22, 2018 online published: november 6, 2018 doi:10.22158/elp.v1n2p170 url: http://dx.doi.org/10.22158/elp.v1n2p170 abstract the article is devoted to the determination of the lifespan deficiency of the population of ukraine. the diagnostics is carried out on the basis of generalization of studies by domestic and foreign scientists in the context of lifespan. calculations were made on the basis of official data of the state statistics of ukraine and the world health organization. in the article, by the lifespan deficiency of the population, it is suggested to mean actual shortage of a certain period of lifespan that has resulted from death coming from external and/or internal causes that prevent a person from living to the limits of his/her biological capabilities. the diagnostics is based on the methodology for constructing mortality tables of average expected lifespan for one year and five years old age groups. the results of the diagnostics made it possible to find that the real lifespan deficiency in ukraine is 12.4 years. in addition, it was determined that the potential lifespan deficiency of the ukrainians from so-called “diseases of behavior” is 2.47 years. it was substantiated that, in the context of overcoming mortality from such diseases as aids, active tuberculosis, alcoholism, and drug addiction by adjusting the behavior of the population in society, lifespan can increase by almost three years. keywords health, health status, lifespan, healthy life duration, average expected lifespan, real lifespan deficiency, potential lifespan deficiency, lifespan diagnostics, premature mortality www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 171 published by scholink inc. 1. introduction one of the most important indicators of the socio-economic development of society is average expected lifespan at birth (indicator of longevity), which is one of the indicators of the quality of life of the population. singling out this component by the un as one of the three components that characterize the welfare level of the population is due to the fact that the indicator of average expected lifespan depends on the conditions of human life. the high mortality rate of the population of ukraine, especially at the working age, affects the expected lifespan of the population and becomes one of the urgent problems of society. on this premise, modern studies of the structure and dynamics of the lifespan of the population, as well as the identification of the reasons influencing it, are of particular importance. solving this problem requires careful scientific research and analysis. 1.1 analysis of recent research and publications health status and lifespan extension has been attracted, are attracting and will always attract attention both in scientific circles and in everyday life of ordinary citizens of the whole world. thanks to works of such authors as: human development of the regions of ukraine: analysis and forecast collective monograph k.: institute of demography and social studies of the national academy of sciences of ukraine, health and life expectancy in ukraine in the context of the prerequisites for an innovative employment. demography and social economics, demographic consequences of alcohol abuse in ukraine, demography and social economy, economic equivalent of losses due to premature mortality in ukraine, demography and social economy. mortality of the ukrainian population in working age, and others, modern ukrainian science has a substantial number of works devoted to addressing problems of lifespan of the population. among the recent works focused on addressing issues of extending lifespan through overcoming illnesses, of interest are the works by hall, taylor, barnes. dependence of the achievement of the goals of the sustainable development of the eastern mediterranean on the improvement of public health was studied by akbar, hirani, richter, and many other researchers, but this is not sufficient to solve problems of overcoming the lifespan deficiency of the population of ukraine. 1.2 purpose the purpose of the article is to determine the expected lifespan deficiency at birth of the population of ukraine. 1.3 result and discussion according to the world health organization (data as of 2017), ukraine ranked 104th in the world in terms of population lifespan. so, with regard to this indicator, ukraine was left behind not only by countries that are classified as economically developed, but also by many developing or underdeveloped countries such as nicaragua (75th place), honduras (77th place), venezuela (85th place), azerbaijan (96th place), libya (97th place), belarus (98th place), guatemala (101st place), bangladesh (102nd place). the main reasons for such a situation are the low level and unfavorable conditions of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 172 published by scholink inc. living and working of a large part of the population of ukraine, low efficiency of the existing health care system, pollution of a large part of the territory by industrial waste, prevalence of bad habits, and neglect of healthy lifestyle standards. the lag, with regard to the indicator of average expected lifespan at birth, of ukraine from european countries leads to deterioration in the quality of life and to changes in the structure of the population. thus, population lifespan in ukraine in 2016 amounted to 71.38 years, including 66.37 years for men and 76.25 years for women. the difference in the lifespan of men and women in our country is almost 10 years, while in economically developed countries this indicator is 5-6 years. 2. deficiency of life expectancy it should be noted that by the lifespan deficiency of the population (from latin deficit-it lacks) one means actual shortage of a certain period of lifespan that arose as a result of death coming from external and/or internal causes that do not allow a person to live to the limits of his/her natural abilities. by natural human abilities of a person, the authors mean the age which can potentially be reached by 80% of the representatives of the corresponding generation. in theory and practice, real and potential lifespan deficiency is singled out. real deficiency, according to the authors, can be considered as the number of years that ukrainians fail to live to reach the maximum lifespan recorded in the world. it is clear that each year these indicators will vary depending on the statistics provided by the world health organization and the un. potential deficiency should be considered as a period of time by which lifespan is reduced depending on various causes that can potentially be eliminated, or whose effects can be reduced. thus, in order to develop an effective mechanism for overcoming the lifespan deficiency of ukrainians, it is advisable to differentiate the causes that cause it. in previous studies, it was found that the formation of the value of average expected lifespan at birth is influenced by the following factors: man-made, physiological, and socio-economic ones (figure 1). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 173 published by scholink inc. figure 1. factors influencing the formation of the value of average expected lifespan at birth source: author’s formulization according to previous research. it is clear that the threat of the effects of the listed factors on a person will always be present. however, reducing the threat of the effects of some of them is possible through changes in social behavior, through raising the level of public responsibility and consciousness, etc. it is found that the real lifespan deficiency of the ukrainians is 12.4 years. this shows that the inhabitants of ukraine do reach the possible hypothetical limit of the natural possibilities of the organism of a person. thus, if the socio-economic conditions of the reproduction of the population are changed, and the changes are aimed at improving their lives, one can count on an increase in the lifespan at birth by almost 12 years. in this study, we give an example of the calculation of the potential average expected lifespan deficiency at birth caused by the causes of mortality from so-called “socially dangerous diseases”, that is, “diseases of behavior”, the dynamics of which is presented in table 1. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 174 published by scholink inc. table 1. dynamics of socially dangerous diseases in ukraine indicators years deviation 1995 2000 2005 2010 2015 2016 abs., pers. 1995-2016 rel., % 1995–2016 living with hiv 1529 30692 62936 110503 126759 133117 131588 8606 per 100,000 of population 3.0 63.1 134.6 242.3 297.6 313.8 310.8 10360 aids, persons 54 917 5096 1402 34055 38779 38725 71712,9 per 100,000 of population 0.1 1.9 10.9 30.8 80.0 91.4 91.4 91300 active tuberculosis, persons 99518 122904 103177 78635 36228 34966 -64552 -64.9 per 100,000 of population 194.8 250.6 220.7 172.5 85.1 82.4 -112.4 -57.7 mental and behavioral disorders due to alcohol consumption, persons 736215 687716 650177 607461 475670 470196 -266019 -36.1 per 100,000 of population 1441.3 102.4 1390.8 1332.2 1116.8 1108.6 -332.7 -23.1 mental and behavioral disorders due to the consumption of drugs and psychoactive sub-stances, persons 46515 76041 87883 80589 61715 62204 15689 33.7 per 100,000 of population 91.1 155.1 188.0 176.7 144.9 146.7 55.6 61.0 source: calculated according to data of the state statistics service of ukraine. mortality in ukraine from the illness caused by the human immunodeficiency virus in 2016 amounted to 4036 cases (9.9 ‰0). the number of people infected with hiv and aids who were registered at medical institutions of ukraine in 2016 amounted to 133117 (313.8 ‰0) and 38779 (91.4 ‰0) persons respectively. the dynamics of the spread of this infection over the last decade suggests that it is spreading at an exponential rate. and this is just official data. back in 1995, the world health organization classified ukraine as a country with a low prevalence of aids (hiv). however, we can assume that the real estimate of patients to some extent exceeds the official statistics. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 175 published by scholink inc. the complex epidemiological situation in ukraine with tuberculosis morbidity and mortality is causing concern. according to scientists, the current problem of the third millennium in the world has been the increase in the incidence of tuberculosis and the spread of the human immunodeficiency virus, with those illnesses belonging to the most dangerous and widespread diseases in the world as well as in ukraine. it is also noted that these diseases have not been eliminated in any country in the world. despite the fact that the number of patients with active tuberculosis diagnosed for the first time in life has a stable tendency to decrease from 29753 in 2000 to 23292 in 2016 (it is more than 20%), the number of patients remains high enough. this trend can also be traced when calculating using 100000 of population: from 60.4 in 2000 to 54.8 in 2016. on average, over 20000 persons in ukraine annually are found to have tuberculosis. most often, people of working and reproductive age are struck (figure 2). figure 2. age structure of persons who contracted tuberculosis in ukraine in 2016 source: compiled by the author based on the works of petrenko. 3. the reasons for the shortage of life expectancy growth among the most common causes of the increased incidence of tuberculosis are the following. first and foremost, these are socio-economic problems of the development of society, the consequences of which are a decline in the standard of living of the general population, malnutrition and violation of nutrition regime, food of low quality, which further reduces the body’s resistance to tuberculosis. the second reason is the lack of funding for anti-tb facilities. other causes include: the existence of a significant number of patients (more than 10 thousand people) in detention facilities; social problems, namely www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 176 published by scholink inc. unemployment, alcoholism, drug addiction, stress, etc. the current dynamics of tuberculosis mortality tends to increase. thus, since 1991, the mortality rate from this disease has increased from 8.1 per 100000 of population in 1991 to 10.2 in 2016. it is evident that the spread of social diseases such as aids and tuberculosis occurs in countries (regions) with serious socio-economic problems, which, in turn, leads to an increase in the number of deaths from this disease. according to analysis of the consumption of alcoholic beverages in ukraine, it has been found that there is a negative tendency to an increase in their consumption volumes. world bank experts believe that in ukraine, 40% of deaths of men and 22% of women of working age (from 20 to 64 years old) are the result of alcohol consumption. this is especially true for the consumption of strong alcoholic beverages, which is the most harmful to the health of the population and leads to negative social and economic consequences. during the 90’s of the twentieth century, the incidence of drug addiction and substance abuse has increased fourfold in ukraine; also, the number of patients (per 100,000 people) who are registered for mental and behavioral disorders due to the consumption of drugs and other psychoactive substances more than tripled. thus, the spread of drug addiction in ukraine remains, along with alcoholism, one of the most important and most acute problems. given the fact that official statistics do not give a real picture of the consumption of drugs by the population, the extent of this problem is not determined. drug consumption leads not only to the physical and social degradation of a person, but also to extremely negative consequences for society. among them, one can mention the following ones: rise of the level of crime, increase in the number of grave and gravest crimes; spread of a wide range of concomitant diseases (hepatitis, tuberculosis, hiv, aids, which requires the state to increase the expenses for their prevention and treatment). a significant impact on the lifespan of the population is made by the existing rate of mortality of the population from alcoholism and drug addiction. the consumption of alcoholic beverages amounts to 1.7% of the total household cash expenditures per month (for example, healthcare consumes about 2.1% of household expenditures). it should be borne in mind that there are no direct statistics of alcohol consumption in ukraine; such an assessment can only be made on the basis of the volume of registered alcohol sales or according to relevant sociological surveys. the reliability of official statistical reporting is questionable, since it does not reflect the true capacity of the ukrainian alcohol market, the size of which is much larger than the declared one. the corresponding expert estimates of alcohol consumption among ukrainians are averagely hovering around 10-13 liters per capita. it is worth remembering that, according to the who, alcohol consumption of more than 8 liters per year is dangerous and detrimental to health. thus, an increase in average per capita consumption of alcohol by 1 liter adds 8 male and 1 female suicides per 100000 men and 100000 women. for alcoholics, the risk of suicide is 9 times higher than for the rest of the population. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 177 published by scholink inc. the world health organization experts have found that each additional liter of pure alcohol above the specified limit causes a reduction in lifespan by 11 months for men and 4 months for women. also, there is a close connection between the indicators of alcohol consumption, on the one hand, and the level of injury and mortality from accidents and the incidence of many chronic diseases, on the other one. among drug addicts, other diseases and viruses (hiv, hepatitis viruses, etc.) are also common, which significantly reduce the lifespan of a person. there is an assumption that the average lifespan of people who regularly take opioid drugs is 7-10 years since the beginning of narcotization. thus, it can be argued that the morbidity and mortality from aids, active tuberculosis, alcoholism, and drug addiction are an important indicator that influences the lifespan of the ukrainians. as already noted, these diseases are considered “diseases of behavior”. that is, these diseases, as well as the consequences of mortality from them, can be avoided if adjusting the behavior of the population in society. in order to calculate the expected lifespan of the population of ukraine according to a hypothetical scenario, we will give the indicators of mortality from such diseases as aids, active tuberculosis, alcoholism, and drug addiction (table 2). table 2. structure of mortality of the population of ukraine in 2016 age interval, years in all for certain causes of mortality number of the dead mortality rate mortality rates from a disease caused by hiv(per 100 000 of population) mortality rates from tuberculosis (per 100000 of population) mortality rates from mental and behavioral disorders due to alcohol consumption 0–1 3318 722.2 1.3 0.3 0 1–4 662 37.2 0.1 0.4 0 5–9 419 18.0 0.1 0 0 10–14 454 21.9 0.1 0 0 15–19 1154 58.1 0.4 0.2 0.1 20–24 2437 89.7 1.5 1.6 0 25–29 4867 142.2 8.3 6.1 0.6 30–34 7875 225.5 21.2 10.2 1.1 35–39 11001 360.8 31.9 18.9 2.2 40–44 14108 489.9 28.6 19.9 2.6 45–49 17448 658.9 21.1 21.7 4.7 50–54 26564 913.1 12.4 22.0 4.3 55–59 37541 1296.6 6.3 18.0 4.4 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 178 published by scholink inc. 60–64 49010 1981.8 2.6 13.6 4.0 65–69 53626 2822.1 1.1 6.1 2.5 70–74 59328 4285.1 0.3 6.0 1.4 75–79 108579 6785.0 0.2 5.2 0.9 80 and 196405 19550.3 0.2 3.4 0.9 all population 594796 1477.1 10.0 1.2 1.9 source: built according to data of the state statistics service of ukraine, compiled by the author according to data of the state statistics service of ukraine. the next stage in diagnosing the lifespan deficiency of the population of ukraine is the construction of mortality tables and the calculation of the average expected lifespan of the population. the calculations are made based on the “methods for constructing mortality tables and average expected lifespan for one year and five year age groups”. firstly, estimates of the average expected lifespan of the population of ukraine in 2016 under real conditions were made. the resultant value of lifespan at birth is 71.38 years. secondly, calculations of the hypothetical average expected lifespan of the population of ukraine at birth in 2016 are made. that is, if the rate of mortality from a disease caused by human immunodeficiency virus, tuberculosis, alcoholism, and drug addiction were excluded, it is calculated that the lifespan would be 73.85 years. thus, it can be argued that the potential lifespan deficiency of the ukrainians from so-called “diseases of behavior” is 2.47 years. consequently, on the assumption of overcoming mortality from such diseases as aids, tuberculosis, alcoholism, and drug addiction by adjusting the behavior of the population in society, lifespan is increased by almost two and a half years. a significant impact on the formation of the expected lifespan of the population at birth is made by deaths due to safety breaches in the workplace. a high degree of wear and tear against the backdrop of low investment activity in industry and the municipal sector remains a potential threat of accidents and incidents at hazardous industrial facilities, including those with fatal consequences. physical and moral aging of production equipment is a problem that concerns all sectors of the economy and is characteristic of all regions of ukraine. according to conclusions of appropriate commissions, in 2016, in the event of failure to take necessary measures for safety and lack of personal protective equipment, 4429 accidents directly related to production occurred, of which 357 (8.1%) had fatal outcomes. thus, the elimination of mortality due to safety breaches and accidents is a potential opportunity to increase the lifespan of the population of ukraine. it should also be noted that the potential for increasing the lifespan of the population includes the exclusion of mortality from transport accidents (in 2016, the number of victims was 4687 people) and intentional self-harm (the number of deaths is 6898 people). consequently, the hypothetical elimination www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 179 published by scholink inc. of mortality due to these reasons will increase the expected lifespan at birth by about 1 year. 4. conclusion and recommendations the authors’ assessment of the lifespan deficiency in ukraine has made it possible to draw the following conclusions. firstly, the lifespan deficiency of the population is actual shortage of a certain period of lifespan that arose as a result of death coming from external and/or internal causes that do not allow a person to live to the limits of his/her natural abilities. by the natural abilities of a person we mean the age that can potentially be reached by 80% of the representatives of the corresponding generation. secondly, the lifespan deficiency of the population can be presented as real and potential. the real deficiency is considered as the number of years that ukrainians do not live to reach the maximum lifespan recorded in the world. as for the potential deficiency, it is proposed to consider it as a period of time by which lifespan is reduced that is caused by a specific cause which can potentially be eliminated (or the consequences of which can be reduced). thirdly, the determination of the average expected lifespan deficiency at birth as a result of mortality from the main causes allows establishing a change in the value of this indicator, provided that the mortality from a particular cause is completely eliminated. it is substantiated that an important indicator that influences the lifespan of the ukrainians is the morbidity and, as a consequence, mortality from aids, active tuberculosis, alcoholism and drug addiction, transport accidents and intentional self-harm. it is established that the real lifespan deficiency in ukraine is 12.4 years; the potential lifespan deficiency of the ukrainians caused by so-called “diseases of behavior” is 2.47 years. it is substantiated that in case of overcoming mortality from diseases such as aids, active tuberculosis, alcoholism and drug addiction, transport accidents and intentional self-harm by adjusting the behavior of the population in society, the lifespan may increase by almost 3.5 years. references akbar, s., hirani, a., & richter, s. (2017). the capability approach: a guiding framework to improve population health and the attainment of the sustainable developmental goals eastern mediterranean. health journal la revue de santй de la mйditerranйe orientale emhj, 1, 23-29. birth rate tables of life expectancy. (2017). statistical bulletin (m. b. timonin, ed., p. 167). state statistics committee of ukraine. from the history of drugs. (n.d.). retrieved from http://intranet.tdmu.edu.ua/data/cd/narkomaniya/html/rozdil1/r01.html hall, p., taylor, r., & barnes, l. (2013). сapabilities approach to population health and public policy-making. rev epidemiol sante publique, 61, 177-183. https://doi.org/10.1016/j.respe.2013.05.016 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 180 published by scholink inc. levchuk, n. m. (2005). demographic consequences of alcohol abuse in ukraine. demography and social economy, 1, 46-56. levchuk, n. m. (2017). health and life expectancy in ukraine in the context of the prerequisites for an innovative employment. demography and social economics, 1(29). 54-65. https://doi.org/10.15407/dse2017.01.054 libanova, e. m. (ed.). (2007). human development of the regions of ukraine: analysis and forecast (p. 328). collective monograph k.: institute of demography and social studies of the national academy of sciences of ukraine. libanova, е. et al. (2007). mortality of the ukrainian population in working age (p. 210). kyiv: idss [in ukrainian]. ministry of health new time. (2018). experts examined mortality due to alcoholism in ukraine. retrieved from https://nv.ua/ukr/ukraine/events/eksperti-doslidili-riven-smertnosti-cherez-alkogolizm-v-ukrajinimoz-2140947.html natural population movement for 2016. (2017). statistical bulletin (m. b. timonin, ed., p. 57). state statistics committee of ukraine. petrenko, v. i., & protsyuk, r. g. (2015). the problem of tuberculosis in ukraine. retrieved from http://nbuv.gov.ua/ujrn/tlkhvil_2015_2_6 population of ukraine for 2015. (2016). demographic yearbook (m. b. timonin, ed., p. 120). state statistics committee of ukraine. ryngach, n. a. (2016). economic equivalent of losses due to premature mortality in ukraine. demography and social economy, 2, 39-49. https://doi.org/10.15407/dse2016.02.039 the number of available population of ukraine as of january 1, 2017. (2018). statistical collection (m. b. timonin, ed., p. 83). state statistics committee of ukraine. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 1 original paper study on the application of the principle of proportionality in the use of force in maritime law enforcement wenjing gao 1 1 dalian ocean university, dalian, china received: december 12, 2024 accepted: december 30, 2024 online published: january 3, 2025 doi:10.22158/elp.v8n1p1 url: http://dx.doi.org/10.22158/elp.v8n1p1 abstract with the step-by-step advancement of china’s strategy to become a strong maritime nation, the requirements for high quality and high level of maritime law enforcement activities have become more and more stringent. in maritime law enforcement activities, the use of force is a necessary means to realize the purpose of law enforcement. in maritime law enforcement activities, the use of force is a necessary means to realize the purpose of law enforcement, but the unrestricted use of force not only fails to maintain maritime peace and security, but also triggers conflicts and disputes in the international arena. however, the unrestricted use of force not only fails to maintain maritime peace and security, but also triggers conflicts and disputes in the international arena. this paper analyzes the actual cases of the use of force in maritime law enforcement, and explains the application of the principle of proportionality in the use of force in maritime law enforcement. this paper discusses the current situation of the application of the principle of proportionality in the use of force in maritime law enforcement, and discusses and concludes that the principle of proportionality, as a principle, is unable to provide an effective solution for law enforcement officers when they use force in law enforcement due to the lack of a middle bridge. it discusses and concludes that the principle of proportionality, as a provision of principle, cannot provide accurate guidance for law enforcement officers in the use of force. the article starts from each sub-principle of the principle of proportionality and takes its own logical. the article starts from the sub-principles of the principle of proportionality, takes its own logical structure as the starting point, and summarizes the specific problems of the principle of proportionality when applied to the use of force in maritime law enforcement. keywords maritime law enforcement, principle of proportionality, use of force, quantitative discretion www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 2 published by scholink inc. 1. introduction the united nations convention on the law of the sea established the exclusive economic zone system, there is a large amount of overlap between countries adjacent or opposite sea areas, china’s neighboring waters in addition to the gulf of tonkin and vietnam reached a delimitation agreement, there are still a number of delimitation of undetermined state of controversy, such as china, japan and south korea in the east china sea continental shelf demarcation of the disputed area, china and south korea in the yellow sea disputed area, the disputed area around the diaoyutai islands and south china sea disputed area and so on , not peaceful! the unpeaceful maritime environment has aggravated the difficulty of maritime law enforcement, and at this time, the use of force must be prudent, excessive force may cause unnecessary national disputes and exacerbate international instability. in the international arena, the application of the principle of proportionality to the use of force in maritime law enforcement is corroborated by a number of legal bases, such as article 3 of the code of conduct for law enforcement officials adopted by the general assembly of the united nations in 1979, which states: “law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duties”. this article is the embodiment of the specific requirements for the use of force by law enforcement officials under the principle of proportionality, which is a subprinciple of the principle of balance of interests; and article 4 of the general provisions of the basic principles on the use of force and firearms by law enforcement officials, adopted by the united nations congress on the prevention of crime and the treatment of offenders in 1990, provides that: “law enforcement officials, in the performance of their duties, should, as far as possible, resort to nonviolent means, and should only resort to force or firearms as a last resort. they shall use force or firearms only as a last resort. they shall resort to the use of force and firearms only when other means have failed or when there is no hope of achieving the desired result”. this article requires that force be used as a last resort, which is a reflection of the principle of proportionality’s principle of least harm. the marine police law of the people’s republic of china (hereinafter referred to as the “marine police law”), which came into effect in china on february 1, 2021, stipulates that china’s marine police departments shall reasonably judge the necessary limits of the use of weapons in accordance with the nature, degree and urgency of the danger of the criminal act and the perpetrator of the criminal act, so as to avoid or minimize unnecessary casualties and property losses as much as possible. this provision is the principle of proportionality applies to the use of force at sea law enforcement in china’s legislative embodiment, but the general provisions of the provisions of the complex law enforcement reality there is a huge gulf between the “nova”, “guangdao xing 28”, “lu yan yuan fishing no. 010” to the tragic cases in september 2016, when the south korean maritime police chased away a chinese fishing vessel that entered the south korean exclusive economic zone and used sound-exploding bombs, causing a fire on the chinese fishing vessel and resulting in the deaths of three people due to smoke and asphyxiation, etc., it can be seen that the connotation of the principle of proportionality has not been fully comprehended and applied when law enforcement force at sea is being used to find out www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 3 published by scholink inc. the finding out the specific reasons why the legislative significance of the principle of proportionality cannot be fully realized in the law enforcement process of the use of force and the problems of its application can provide a direction for the improvement of the level of law enforcement at sea. 2. practice in the application of the principle of proportionality in the use of force in maritime law enforcement 2.1 the meaning of the principle of proportionality the origin of the principle of proportionality can be traced back to aristotle’s idea of distributive justice more than two thousand years ago. although the idea of distributive equality does not directly express the word proportionality, the core idea of proportional distribution is the earliest ideological origin of the principle of proportionality. the idea of proportionality has been around for a long time, but the principle of proportionality in today’s jurisprudence originated in the german police law at the end of the 18th century. 1794 germany enacted the “prussian general state law” so that the principle of the principle of proportionality in the principle of necessity, “the police can take the necessary measures in order to maintain the public tranquillity, public safety and public order, to prevent the potential danger to the public or individuals. danger”. in 1882, the higher administrative court of prussia handed down the famous judgment in the mount of the cross case, marking the final formation of the principle of necessity, the prototype of the principle of proportionality. nowadays, the principle of proportionality has been developed into a constitutional principle, and its logical structure has also developed from the early second-order theory, that is, the principle of proportionality contains only the principle of necessity and the principle of balance, to the present fourth-order theory, which holds that the principle of proportionality includes the principle of justification, the principle of appropriateness, the principle of necessity, and the principle of proportionality in a narrow sense. the essence of the principle of proportionality is to balance power and rights, adjust the rational relationship between means and ends, and provide a reasonable scale for the exercise of power and rights. the principle of proportionality discussed in this paper adopts the third-order view that the principle of proportionality consists of three subprinciples: the principle of appropriateness, the principle of necessity and the principle of balance, and that the examination of the appropriateness of the purpose of law enforcement acts is the first step in the examination of whether the acts meet the requirements of the principle of proportionality. 2.2 current status of the application of the principle of proportionality in the use of force in maritime law enforcement means of force is the common law enforcement activities in law enforcement, means of force has a strong injurious, unrestricted use of force does not have justice, maritime law enforcement activities are different from maritime military activities, through the discussion of maritime law enforcement cases, to summarize the principle of proportionality applied to the current situation of the use of force in maritime law enforcement, and in this way to elaborate on the problems that exist therein. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 4 published by scholink inc. 2.2.1 the saiga case the saiga is a tanker registered in st. vincent and the grenadines on march 12, 1997 by tabona maritime ltd. of nicosia, cyprus. on october 27, 1997, the saiga entered the guinean exclusive economic zone (eez) and was carrying out fuel replenishments for three fishing vessels from 0400 to 1400 hours on the same day. the saiga was discovered by a guinean customs patrol boat and was arrested by guinean authorities for violating the customs tariff law and the prohibition of import and export law. the guinean authorities arrested the saiga for violating the customs code and the law on prohibited imports and exports, and the saiga fled into the open sea. in hot pursuit, the guinean authorities fired machine guns from the patrol boat at the hull of the saiga and boarded the vessel at 0900 hours on 28 october. when the crew of the vessel did not resist, the guinean law enforcement officers opened fire at random on the deck, injuring two crew members and damaging important equipment on board. the vessel and its crew were taken back to the guinean capital, conakry, by the law enforcement officers and detained. on the basis of the facts of the case, saint vincent and the grenadines protested and a dispute ensued between the two countries. following unsuccessful negotiations between the two countries, the case was referred to the international tribunal for the law of the sea for adjudication and settlement. in this case, there was forceful enforcement of the law, which took place in the course of the exercise of the right of hot pursuit by the enforcing state, and the international tribunal for the law of the sea held that, although the united nations convention on the law of the sea does not contain a specific provision on the use of force in the course of a ship’s arrest, the use of force in the course of a ship’s arrest is not prohibited by the convention, but by virtue of the provisions of article 293 of the convention on the law of the sea and of the convention on the enforcement of foreign armed conflicts in connection with the united nations convention on the law of the sea of 10 december 1982, which are applicable to all vessels. however, according to article 293 of the united nations convention on the law of the sea and article 22 of the agreement for the implementation of the provisions of the united nations convention on the law of the sea of 10 december 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks (hereinafter referred to as the migratory fish stocks agreement), the use of force in the course of the taking should be avoided as far as possible, and, if it is unavoidable, the degree of force should be limited to what is necessary and reasonable. it is clear from the reasoning of the court that, in the course of maritime law enforcement, the use of force should be applied as a conservative and last resort. however, even in scenarios where the use of force is necessary, there is still a difference in the level of force within the means of force, which should be selected in accordance with the degree of force that is necessary and reasonable. analyzing the saiga case from the perspective of the subprinciples of the principle of proportionality, before boarding the saiga, the guinean law enforcers had a legitimate law enforcement purpose, that is, to safeguard the country’s tariff power and administrative order, and there was a correlation between www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 5 published by scholink inc. the forceful means of hot pursuit and firing and the realization of the law enforcement purpose, and it was not possible to determine whether the law enforcement means complied with the principle of least damage, but no casualties were caused in the course of the law enforcement, and the law enforcement actions were legitimate and lawful. the law enforcement officers successfully boarded the saiga, at which point the benefits of law enforcement were proportional to the damage caused by the means of law enforcement, and the law enforcement action was justified and lawful; after the guinean law enforcement officers boarded the saiga, the above-mentioned law enforcement objective was close to being realized, at which point the officers resorted to the means of force of firing at the deck of the vessel to deter the crew of the saiga, and in the absence of resistance from the crew of the vessel, the action did not have a justified law enforcement objective, although the means was proportional to the damage caused by the means of law enforcement. that, although there was a correlation between the means and its purpose, the purpose was not justified and the correlation at that point had an element of illegality, and that the forceful means of randomly shooting at the deck did not comply with the principle of least harm, and that the damage caused by the forceful means of shooting at the deck resulted in injuries to two crewmembers and destruction of important equipment on the ship that was disproportionate to the gains from the law enforcement officers’ law enforcement purpose of trying to deter the target of the law enforcement officers’ actions. therefore, the law enforcement actions of the guinean law enforcement officers after boarding the saiga were disproportionate and unlawful. 2.2.2 the nova incident “the new star, a sierra leone-flagged chinese-owned cargo vessel, sank on february 15, 2009, in the waters off vladivostok, russia, after being fired upon 515 times by russian forces on its way home”. the cause of the incident was that the nova had a dispute with the russian consignee on january 29, 2009 during unloading of cargo in nakhodka port and was detained, so it quietly set sail and left the port on the night of february 12 when there was no time for it to go through the departure procedures. “when a russian border patrol boat caught up with the nova and demanded that it return, the nova refused to respond, and the russian side then opened fire on the bow and stern of the ship. the sinking resulted in the disappearance of 8 of the 16 crew members, 7 of whom were chinese”. in this incident, the use of the disproportionate means of law enforcement, such as the killing of a chicken or a cow, can be seen, and the russian side’s law enforcement action, which resulted in the destruction of the vessel and the death of its crew, was unlawful, as the nova was subjected to 515 fire strikes because of its administrative violation of the law. analyzed by the principle of proportionality, the russian side’s law-enforcement purpose was to prevent the nova from leaving the port illegally, which is a legitimate law-enforcement purpose, and there is a correlation between the forceful means of opening fire and the attainment of the law-enforcement purpose; however, opening fire, even 515 times, does not conform to the principle of least damage, and the result of preventing the nova from leaving the port is not in accordance with the principle of least damage. “the value of the purpose of preventing the nova from leaving hong kong in violation of the law was disproportionate to the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 6 published by scholink inc. damage that resulted in the deaths of eight people. that is, the enforcement action did not meet the requirements of necessity and reasonableness”. 2.2.3 incidents of sound bombs being thrown by the korean coast guard on september 29, 2016, at around 9 a.m., the chinese fishing vessel s caught fire on the sea 70 nautical miles southwest of hongdo island, saenam-gun, jeonnam, and the fire on the fishing vessel resulted in the death of three chinese crew members. according to the mokpo marine police safety agency, at 9:00 a.m. on the same day, the mokpo marine police issued three orders to stop the vessel and attempted to inspect the s in accordance with the contents of the management manual, but the crew of the vessel did not respond and attempted to flee, so the korean marine police forcibly boarded the s for inspection, and during the boarding and inspection of the s the crew closed the cockpit in order to avoid inspection and resisted, so the korean marine police threw three sound bombs into the cockpit, of which three were explosive bombs, one of which was a fire bomb. three sound bombs were thrown into the cockpit, two of which exploded, presumably causing the fire. analyzing by the principle of proportionality, the law enforcement purpose of the korean maritime police is to remove obstacles and carry out inspections, and this law enforcement purpose is justified, and there is a correlation between the use of the means of using sound bombs (cylindrical sound bombs with a length of 128 millimeters and a circumference of 45 millimeters, which are thrown within two to three seconds with the safety pin pulled out, and which instantly emit light, noise and smoke) and the achievement of the law enforcement purpose, and the sound bombs are a non-lethal weapon, so it cannot be judged by the principle of minimum damage. the principle of minimum damage can not be judged, but the value of the purpose of removing obstacles to carry out inspections and the damage caused by the death of three people is disproportionate to the result of this law enforcement behavior is unlawful. moreover, although the sound bombs are non-lethal weapons, they are still weapons and a means of force, which is not necessary to achieve the law enforcement purpose of removing obstacles and carrying out inspections. conclusion: through the analysis of the above three cases, we can feel that although the law stipulates that the use of force should be reasonable and necessary, but the lack of corresponding quantitative standards, law enforcement officers through the subjective standards can not be in the process of law enforcement to reasonably control the extent of the use of force, which makes the principle of proportionality is only embodied in the legislative process, and can not be applied in practice in the law enforcement process. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 7 published by scholink inc. 3. proportionality analysis of the application of the principle of proportionality in the context of maritime force enforcement activities maritime law enforcement is different from land law enforcement in that it involves foreigners and ships, and these properties require that maritime law enforcement must be cautious in the use of force, and although the principle of proportionality can navigate maritime law enforcement in terms of direction, there is a lack of a direct basis for its application in concrete practice. from the subprinciples of the principle of proportionality, the principle of relevance, the principle of necessity and the principle of balance of interests each have specific problems of application. 3.1 large margin of discretion in the application of the principle of proportionality the two main specific situations in which force may be used in maritime law enforcement are the exercise of the right of self-defense by law enforcement officers and the obstruction of maritime law enforcement, in which case law enforcement officers may use force as appropriate. (1) law enforcement officers exercise the right to self-defense. the protocol of 2005 to the convention for the suppression of unlawful acts against the safety of maritime navigation (hereinafter referred to as “the protocol”) provides that: “the use of force shall be avoided in the conduct of operations authorized in accordance with this article, except where it is necessary to ensure the safety of the officers and the persons on board the ship, or where the officers are prevented from carrying out the authorized operations. the use of force in accordance with this article shall not exceed the minimum necessary and reasonable under the circumstances”. article 3 of the code of conduct for law enforcement officials states, “law enforcement officials may use force only when absolutely necessary and no more than is necessary for the performance of their duties”. article 48 of china’s maritime police law provides that in the event that a law enforcement vessel or aircraft is attacked by weapons or other dangerous means, shipboard or airborne weapons may be used. these provisions show that law enforcement officers can use force out of the need for defense, and in the content also shows the meaning of the principle of proportionality to be used to limit the use of force, but in the actual law enforcement process, how to determine that the measure of force is necessary, how to define the use of force is reasonable? take our country as an example, law enforcement officers based on the law enforcement ship was attacked by weapons, can use hand-held weapons, shipborne weapons or airborne weapons, that in a specific case, is the law enforcement ship was attacked by weapons (the semantics of weapons with the “people’s police use of firearms and weapons regulations” in the same way as the weapons referred to in the lethal weapons, such as firearms, ammunition, etc.). law enforcement officers can be enumerated in the “marine police act” of the weapons in a few items can law enforcement officers choose any of the weapons listed in the marine police act for defense? is the standard degree of defense limited to preventing the law enforcement counterpart from violating the law or something else? although there is article 50 of the maritime police act to provide directional guidance, but there will still be law enforcement officers are suspected of excessive discretion, which requires the principle of proportionality to be specifically www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 8 published by scholink inc. detailed into the rules, and quantitative discretion, so as to better balance the relationship between power and rights. (2) obstruction of maritime law enforcement powers. when obstruction cannot be removed by non-forceful means, law enforcement officers may use force to assist in the enforcement of the law. obstruction of the right to enforce the law can be divided into two situations, one is the object of law enforcement violent resistance (which is overlapped with the first point of self-defense force defense), and the other is that if the use of force is not used will probably lead to the escape of the illegal ship. in the case of maritime law enforcement rights are obstructed, the use of force is to exclude the obstruction of law enforcement, to the “south korean marine police threw sound bombs” incident, for example, the south korean marine police to exclude the s fishing vessel obstruction of the inspection of the reasons, the s threw sound bombs to the cockpit, at this time, the south korean marine police has successfully boarded the s, the ship has considerable control over the power, the closed cockpit has been closed, and the vessel has been the first time, the south korean marine police has already successfully boarded the s, and the vessel already has considerable control over the power. at this point, the korean maritime police had already successfully boarded the s and had considerable control over the vessel, and the tightly closed cockpit was no longer an imminent situation in which law enforcement rights were obstructed, and the use of weapons at this point was not a necessary and reasonable use of force. this reflects the excessive discretionary power of law enforcement officers, and the legal norms that restrict them with the words “necessary and reasonable” are not able to adapt to the complex reality of the situation. legal principles are distinguished from legal rules by a high degree of abstraction and universal applicability. the principle of proportionality as a kind of administrative discretion and judicial review benchmark, the maritime law enforcement activities have a directional guidance role, in the examination of a number of case practice, can be found, the principle of proportionality is mostly applied to the use of force in the legislative and judicial fields, such as china’s “marine police law” stipulated by law enforcement officers to reasonably judge the necessary limits of the use of firearms, the international “code of conduct for law enforcement officials” and other legal norms directly to words the international code of conduct for law enforcement officials and other legal norms directly stipulate in writing the principle of “necessary and reasonable” use of force, which is a direct manifestation of the application of the principle of proportionality to the legislative sphere; in the red cross, lone and saiga cases, the principle of proportionality was directly reflected in the legislative sphere. in cases such as the red cross, the lone star and the saiga, international judicial bodies have justified the use of force in terms of what is “necessary”, “reasonable” and “proportional”, which is proportionality. this is a concrete application of the principle of proportionality in the judicial field. in the field of maritime law enforcement, the principle of proportionality can provide law enforcement officers with a direction for exercising their discretionary power, but it lacks a direct basis for application, that is, a specific standard of discretion, for example, in the aforementioned saiga case, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 9 published by scholink inc. even though the maximum speed of the saiga did not exceed 10 knots, the guinean patrol vessel was not allowed to use a 10-nautical-mile speed limit when it could use a 10-nautical-mile speed limit. for example, in the aforementioned saiga case, even though the maximum speed of the saiga did not exceed 10 nautical miles, the guinean patrol boat, which could have boarded the vessel by non-forceful means, still fired at a cargo ship loaded with gasoline, without any consideration of the extent of the use of force, i.e., the contents of the provisions of the law, such as “reasonableness” and “necessity”. in other words, the content of the provisions on “reasonableness” and “necessity” stipulated in the law cannot be directly manifested in law enforcement, which makes the provisions on “necessity” and “reasonableness” stipulated in the law, which are subjective in nature, to be shelved. 3.2 failure to provide guidance on the correlation between the ends of law enforcement and the means of force-lack of typologies the diversity of specific law enforcement situations can give rise to multiple states of use of law enforcement force. in the course of maritime law enforcement, when law enforcement officers are faced with defensive dangers or when their right to enforce the law is obstructed and they have to use force to assist in law enforcement, they have a wide range of law enforcement weapons to choose from, such as police firearms, which are less harmful on a stand-alone basis, beam-type riot control bombs and fire-fighting water cannons, which are classified as non-lethal weapons, and lethal weapons, such as machine guns and naval cannons. while the single-arm injuriousness of these weapons can probably be measured, the different ways in which different weapons are used in different law enforcement situations can lead to different law enforcement damages. for example, in the “sail” case mentioned earlier, the sail was a cargo ship loaded with gasoline, and the guinean patrol boat’s fire attack on the sail could easily lead to fire and explosion. it can be seen that the law enforcement officers did not take into account the specific situation of the target of law enforcement in the choice of means of force. the korean maritime police threw sound bombs into the closed cockpit of the s. normally, the use of sound bombs does not cause fires, but under certain circumstances, such as confined spaces and wooden structures, sound bombs are not an option, and the korean maritime police clearly did not consider the circumstances of the law enforcement situation. in the 21st century, with the diverse development of weapons, the types of weapons a law enforcement vessel is equipped with are quite varied, and the variability of law enforcement environments should be taken into account in the selection of force measures, and given the complexity and difficult nature of maritime law enforcement environments, the types of weapons that should be applied under what circumstances, and the rank of what weapons should be discharged backward in terms of what conditions they are used in are the types of typologies that guide the documents that are the relevance principle important medium for applying the principle of relevance to the use of force. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 10 published by scholink inc. 3.3 lack of conditions for the application of the principle of necessity in practice in the case of the nova incident, for example, the nova left the port in violation of the law and ignored the law enforcement order of the russian border patrol vessel to return to the port, at which point, if the russian law enforcement vessel had not used force, the nova could have escaped, and the russian forces fired on the nova a total of 515 times in order to achieve their law enforcement objectives, in violation of the requirements of the principle of proportionality of necessity and reasonableness. at this point, if the russian law enforcement vessels did not use force, it might have caused the nova to escape, and in order to achieve the purpose of law enforcement, the russian forces opened fire on the nova a total of 515 times, which violated the degree of proportionality between what is necessary and what is reasonable, and although the norms of law enforcement require that law enforcement officers follow the degree of force required for law enforcement in the maritime law enforcement, it is insufficient to regulate the content of the force to be divided into lethal and non-lethal weapons. although the law enforcement norms require law enforcement officers to follow the degree of force required for the use of force in maritime law enforcement, the simple division of force into lethal and non-lethal weapons is insufficient to regulate the discretion of law enforcement officers in the use of force, and cannot adapt to the needs of real law enforcement. in the “nova” incident, the russian military had a legal basis for the use of force, but lacked the degree of force to regulate the indicators, to fire 515 times to achieve the purpose of law enforcement by means of unreasonable force, this law enforcement process is obviously not in line with the principle of proportionality of the minimum damage requirements, but also highlights the principle of proportionality applied to maritime law enforcement force lack of an intermediate bridge, in the must implement the means of force to assist the implementation of the principle of proportionality. it also highlights the fact that the principle of proportionality as it applies to the use of force in maritime law enforcement lacks an intermediary bridge, and that the least damaging means of force cannot be accurately selected in scenarios in which the means of force must be used to assist in the realization of law enforcement objectives. 3.4 lack of criteria for measuring proportionality between the value of harm and the interests of law enforcement value in economics refers generally to the positive significance and usefulness of an object to a subject, while legal value is an extremely traditional jurisprudential issue. most of the theoretical disputes in the history of legal research are related to the legal value system, and the key reason for these disputes and conflicts is that it is difficult to find universal arguments that can help us to prove the specific hierarchical structure and hierarchical pattern of values such as freedom, order, justice, equality and efficiency, whether from the theoretical point of view of their own connotations or from the empirical point of view of the emphasis and preference of each nation and era. it is difficult to find universal arguments that can help us validate the particular hierarchical structure and hierarchical pattern. for example, in the classic “trolley problem”, how to choose between the value of the lives of five people compared to the value of the lives of one person? in measuring the relationship between law www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 11 published by scholink inc. enforcement interests and the value of harm, we cannot simply draw conclusions from empirical evidence, which requires a standardized theory to provide guidance to law enforcement officers. how is the proportionality of an act of force to be determined in accordance with the principle of proportionality, which focuses on measuring the proportionality between the detrimental outcome of the force and the law enforcement benefit gained? how is the law enforcement value of stopping and boarding a vessel measured against the damage caused by its destruction? in the previously mentioned incident of the korean maritime police dropping sound bombs, the korean maritime police realized the law enforcement purpose of boarding and inspection and safeguarded its maritime law enforcement rights and interests, and the force used resulted in the damage outcome of the destruction of vessel s and the death of two crew members, in which case we are able to conclude that there is a lack of proportionality between the benefits and the costs from a teleological point of view, but this is a case of obvious disproportionality. what if the damage outcome of the case was only the destruction of ship s? at this point, there will be a big difference in the mental evidence of the judges. some of them will think that the destruction of a fishing vessel by the korean maritime police in order to safeguard the maritime rights and interests of south korea and to realize the purpose of law enforcement is a just and appropriate law enforcement; the other part of them will think that, the korean maritime police had already boarded the s, and the level of resistance of its crew did not reach that of using weapons to enforce the law, and the result of the ship’s destruction caused by the forceful law enforcement is unnecessary and disproportionate. it is thus clear that mental evidence cannot replace written guiding standards to provide guidance on the application of the principle of proportionality to the use of force in maritime law enforcement. moreover, the determination of whether a law enforcement action is proportional is an important guarantee that the law enforcement counterpart will be able to bring a claim for relief. 3.5 lack of proper purposeful judgment of specific law enforcement actions in practice with the deepening of legal research, the principle of proportionality of the logical structure of the continuous development and improvement, to date, the “fourth order” principle of proportionality in the academic community has a large number of supporters. in this paper, the review of the legitimacy of the purpose of a law enforcement behavior is the application of the principle of proportionality to carry out law enforcement behavior of the legality of the review of the previous review link. in this paper, the principle of proportionality applies to the use of force at sea law enforcement activities, refers to the maritime law enforcement activities, the principle of proportionality of the subprinciples as a guiding principle of the implementation of all aspects of the use of force activities; in the maritime law enforcement activities after the end of the principle of proportionality review and evaluation of the force law enforcement behavior in accordance with the provisions of the law, whether to make the power and the right to balance in the range of a certain proportion. in practice, however, not only are the subprinciples of the principle of proportionality not used directly, but in cases where the use of force is unlawful, there are few instruments or articles that evaluate the legitimacy of the law www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 12 published by scholink inc. enforcement purpose of the means of force. in the saiga case, taking the boarding of the saiga as the dividing line in time, before the boarding, the law enforcement officers of the guinean side pursued and shot at the ship, an act of law enforcement that had a legitimate law enforcement purpose, that is, to safeguard the maritime rights and interests of their own country. however, after the boarding of the saiga, the guinean law enforcement officers, in the context of peaceful law enforcement environment in which the purpose of law enforcement could be achieved without the use of force, demonstrated their authority by shooting at the deck, which clearly did not have the legitimacy of the purpose intended to be achieved by the law enforcement officers. the purpose of the law enforcement action was clearly not justified. at this point, the guinean law enforcement officers’ act of force after boarding the saiga can be recognized as a violation of the principle of proportionality and an unlawful law enforcement action due to the lack of justification of the purpose. the international tribunal for the law of the sea, while agreeing that the guinean side’s boarding of the saiga at a low speed and its use of force in a situation where the use of force was not justified were unlawful, did not assess the legitimacy of the purpose of the law enforcement action. the remaining references to the saiga case also fail to assess the legitimacy of the purpose of the force used by the guinean party. 4. analysis of the reasons for the problematic application of the principle of proportionality in the context of maritime force enforcement activities 4.1 subjective reasons 4.1.1 insufficient experience in the use of force by law enforcement officials taking china as an example, our marine police law stipulates that the main body of maritime law enforcement in china is the chinese maritime police, which is subordinate to the chinese people’s armed police force, and according to the cases released by the chinese maritime police bureau, the chinese maritime police has accumulated a wealth of experience in the use of low-intensity, non-lethal force in response to the obstruction of law enforcement by domestic law-breaking vessels, and has not seen any high-intensity law enforcement conflicts. when facing the obstruction of law enforcement by foreign vessels, because of the cultural differences between the law enforcers and the targets of law enforcement, and the openness and vastness of the sea, the targets of law enforcement usually have more fierce resistance behavior, which increases the difficulty of law enforcement by the chinese marine police, and the intensity of the use of force at this time is even higher, and lethal weapons are usually used, and the control of guns and ammunition in china is extremely strict, and the experience of chinese marine police in the use of lethal weapons is still relatively lacking, and it is not possible to master the use of lethal weapons. china’s maritime police lack experience in the use of lethal weapons and are unable to grasp the extent to which they are reasonable and necessary, and neither the provisions on the procedures for handling criminal cases by maritime police agencies adopted in 2023 nor the provisions on the procedures for the administrative law enforcement by maritime police www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 13 published by scholink inc. agencies adopted in 2024 contain procedural details on the use of force by the maritime police in the course of law enforcement. in the case of the vietnamese fishing vessel qng90617ts, which illegally entered the waters of the xisha islands, the chinese marine police ship 4301 warned it off in accordance with the law, and the vietnamese vessel eventually sank after hitting the 4301 ship. although there were no casualties, the lack of experience in the use of lethal weapons by the marine police agencies in the case of a high-intensity conflict is still visible in this case. as conflicts involving foreign law enforcement occur from time to time, the experience of the chinese marine police in the use of force in maritime law enforcement still needs to be accumulated. 4.1.2 inconsistent legal literacy of law enforcement officials as mentioned above, marine rights enforcement activities are more complex than land enforcement activities, the marine environment is ever-changing, under the interference of weather, equipment and other factors, maritime law enforcement officers may be in a state of communication difficulties with their superiors, at this time the law enforcement activities of law enforcement officers are more isolated, in this case, if law enforcement officers are faced with urgent obstacles to the enforcement of the cause of need for the use of force to assist the law enforcement officers, law enforcement officers if they do not have rich legal literacy, fully understand and accurately implement the necessary and reasonable content of the provisions of the implementation of force, it is easy to evolve into unlawful law enforcement, law enforcement officers have different legal literacy, and can not accurately grasp the extent of the requirements of the necessary and reasonable, therefore, if the principle of proportionality is truly applicable to the use of force for maritime law enforcement, it is necessary to intermediate provisions of the implementation of the system of force will be fixed to reduce the law enforcement process of the uncertainty. 4.2 objective reasons 4.2.1 ongoing maritime disputes and a hostile law enforcement environment the establishment of the exclusive economic zone system under the 1982 united nations convention on the law of the sea has given rise to a large number of overlapping maritime areas, and the determination of maritime rights and interests requires the conclusion of a delimitation agreement through consultation among countries with adjacent or opposite maritime areas, and there are still a number of disputed areas around our country where the delimitation has not yet been determined, such as the disputed areas around the diaoyutai islands of china and japan, and the disputed areas in the south china sea, and so on. the continuous disputes over the sea have given rise to a large number of disputes over maritime rights and interests, and the use of force in law enforcement by various countries is endless, so that the degree of restriction required by the principle of proportionality cannot be realized in the law enforcement process. the vastness, openness and variability of the sea itself, as well as the deterioration of global weather, the increase in extreme weather and other realities, have also made the conditions for maritime law enforcement increasingly harsh. harsh environments can easily lead to extreme law enforcement measures, and clear institutional guidance is needed to ensure www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 14 published by scholink inc. that the principle of proportionality is truly implemented in the use of force in maritime law enforcement. 4.2.2 lack of institutional connection from theory to practice regardless of whether it is a norm of international law or a norm of domestic law, the formulation of norms on the extent of the use of force in maritime law enforcement mostly focuses on the words “necessary” and “reasonable”, that is to say, the principle of necessity and the principle of balance of interests in the principle of proportionality are briefly stipulated in the provisions of the law without any specific institutional guidance on the words “necessary” and “reasonable”. in other words, the principle of necessity and the principle of balance of interests in the principle of proportionality are briefly stipulated in the law, without providing specific institutional guidance on “necessary” and “reasonable”. what kind of force is necessary? what level of force is reasonable? the lack of a typology of “necessary” and “reasonable” use of force, and the absence of intermediate norms to guide the transition, will make the application of the principle of proportionality lack a foothold. 4.2.3 application of modern scientific and technological equipment to be explored in modern society, the development of science and technology is ever-changing, subject to the harsh environment of law enforcement, if we want to regulate the extent of the use of force in maritime law enforcement, it is inevitable that we need to be assisted by science and technology, no matter whether it is the mechanism of cost-benefit analysis that is often discussed together with the theory of the principle of proportionality, or the development of new types of weapons and the application of ai supervision function system can add bricks and mortar to the cause of regulating maritime law enforcement. conventional sea-based or air-based law enforcement platforms need to improve their performance in terms of cost control, structural flexibility, and the use of low-intensity non-lethal weapons; the recycling of shipborne drones and the application of harsh environments need to be strengthened; the research and development of non-conventional maritime law enforcement platforms such as underwater law enforcement platforms and law enforcement platforms with both sea-based and air-based functions still need to be promoted; and networked law enforcement means such as “virtual boarding” still need to be promoted. the research and development of non-conventional maritime law enforcement platforms, such as underwater law enforcement platforms with both sea-based and air-based functions, still needs to be pushed forward; and “virtual boarding” and other cyber law enforcement means still need to be actively explored. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 15 published by scholink inc. 5. conclusion whether in international or domestic law, legislators have paid attention to the issue of controlling the extent of the use of force in the law enforcement process, and have also used the principle of proportionality to control the discretionary power of law enforcement officers, which also indicates that the principle of proportionality is correctly and appropriately applied to maritime law enforcement activities by force. therefore, identifying the specific problems in the application of the principle of proportionality to maritime force enforcement activities can point out the direction for improving the comprehensive law enforcement ability of law enforcement officers and realizing the legislative value of the law. from the logical structure of the principle of proportionality, the principle of appropriateness can limit the means of force for law enforcement officers, indicating the measures of force associated with the purpose of law enforcement in a particular scenario; the principle of necessity is an absolute aid in regulating the degree of force, which requires that the least detrimental means of force among the measures of force under the limitations of the principle of appropriateness should be selected; the principle of proportionality in a narrower sense is the best measure of balancing the power and the right. principle, a forceful means cannot be selected and utilized if it results in a greater detrimental outcome than the law enforcement benefit it achieves, even if it meets the requirements of the first two logical constructs. the analysis of this entire logical structure, it seems that the principle of proportionality is applied to the use of force in maritime law enforcement, but the paper logic is different from the reality of application, if you want to realize the value of the logical structure, it is necessary to clarify the procedural conditions for the use of force in maritime law enforcement, standardize the delineation of the level of the use of force content, the introduction of a specific law enforcement scenarios under the typology of law enforcement measures proposed and the establishment of a measure of the value of the damage and law enforcement interests into a proportional standard, so as to build an intermediate bridge. in order to realize the value of this logical structure, it is necessary to clarify the procedural conditions for the use of force in maritime law enforcement, standardize the content of the hierarchy of the use of force, propose typological law enforcement measures in specific law enforcement scenarios, and establish a standard for measuring the proportion between the value of damage and the benefits of law enforcement. references chen, z. n. (2022). the systematic pattern of legal value. chinese law, 2022(02), 225. fu, k. c., & xu, p. (2011). maritime law enforcement and the use of force—how to apply the principle of proportionality. wu international law review, 14(02), 20-21. gao, j. j. (2009). study on the use of force in maritime law enforcement based on international practice. law and business research, 26(04), 23. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 16 published by scholink inc. globe news wire. science and technology south korean marine police use shock bombs that may have caused chinese fishing boats to catch fire. [eb/ol]. (2016-9-30). retrieved from https://mil.huanqiu.com/article/9cakrnjxsgs liu, q. (2021). controversy and reflection on the application of the principle of proportionality. comparative law studies, 2021(05), 175. ma, j. x. (2016). on the legality of the use of force in maritime law enforcement by coastal states—taking the incident of “lu yan yuan fishery 010” as an entry point. hebei law, 34(09), 94-103. wei, j. t. (2007). introduction to the protocol of 2005 to the convention for the suppression of unlawful acts against the safety of maritime navigation. china ocean shipping, 2007(02), 80. zhang, y. q. (2018). law enforcement issues in the disputed maritime areas. comparative law studies, 2018(01), 143. zhao, l. h. (1999). review of the tanker saiga case (continued)—the substantive issues of the case. chinese and foreign law, 1999(06), 105-117. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 66 original paper research about the regulation of environmental administrative penalty discretion zhuoma yangzong 1 1 political science and law, tibet university, lhasa, tibet, china received: october 25, 2024 accepted: november 7, 2024 online published: november 8, 2024 doi:10.22158/elp.v7n3p66 url: http://dx.doi.org/10.22158/elp.v7n3p66 abstract with the rapid development of china’s social economy, environmental problems have become increasingly prominent. the construction of ecological civilization has become the focus of china’s socialist modernization construction. in the face of increasing environmental risks, it is difficult to regulate the exercise of environmental administrative penalty discretion and increase the difficulty of implementing environmental administrative penalty decisions due to the limitations of legislative regulation, negative judicial regulation and weak administrative regulation. based on the basic theory of discretion in environmental administrative punishment, this paper analyzes the function of discretion in environmental administrative punishment, clarifies the necessity and principle of discretion in environmental administrative punishment, and puts forward the regulation path. keywords environmental administrative punishment, discretionary regulation, modernization of ecological environment governance system 1. introduction with the accelerated development of urbanization, the ecological and environmental problems are characterized by rapid development and diversification. environmental legislation is gradually put on the agenda, and the legal system of environmental administrative punishment is gradually improving. however, due to the diversity and professionalism of environmental issues, the legislature usually only clarifies the tasks and objectives that need to be completed, and cannot cover the specific details of environmental administrative penalties. with the revision of the “environmental protection law” in 2014 and the revision of other environmental separate laws, the administrative law enforcement authority of the ecological environment administrative organs has greatly expanded, the amount of fines and punishment measures have increased significantly, and the ecological environment www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 67 published by scholink inc. administrative organs enjoy a relatively large amount of administrative penalty discretion space. on may 22, 2019, the ministry of ecology and environment issued the “guiding opinions on further regulating the application of discretionary power of environmental administrative punishment” to regulate the application and supervision of the discretionary power of ecological environment administrative punishment and prevent law enforcement risks. the opinion clarifies the applicable principles and systems of administrative penalty discretion, the general requirements and procedures for the formulation of discretionary rules and benchmarks, and the application of discretionary rules and benchmarks. the document requires “refining the discretion standard and compressing the discretion space”. therefore, each region needs to formulate administrative normative documents according to the current situation of environmental law enforcement, and further refine relevant laws and regulations. in march 2020, the two offices of the central government issued the “guiding opinions on building a modern environmental governance system”, proposing that “strengthening the leading role of the government is the key, deepening the role of the main body of the enterprise is the fundamental, and better mobilizing social organizations and the public participation is the support to achieve the positive interaction between government governance and social regulation and enterprise autonomy”. the ternary subject framework of the modernization of the ecological environment governance system provides a new way of thinking for the regulation of environmental administrative penalty discretion. therefore, under the background of the modernization of the ecological environment governance system, it is necessary for us to re-examine the shortcomings of the traditional discretionary regulation of environmental administrative punishment and explore more effective discretionary regulation methods. 2. the bottleneck of the traditional regulation mode of environmental administrative penalty discretion with the development of society and the transformation of national administrative tasks, the traditional administrative discretion regulation mode is not enough to cope with the expansion of environmental administrative discretion in risk society. at the beginning of the emergence of administrative discretion, it tried to “completely limit administrative discretion to a certain range, so as not to be separated from the perspective of judicial review, in order to achieve the purpose of effective control of administrative discretion”. the theory of administrative discretion regulation has been developing continuously, forming traditional regulation methods such as legislative regulation, judicial regulation and self-regulation. in free countries with administrative intervention as the main administrative task, administrative discretion is regulated by legislative improvement and judicial review. with the emergence of the welfare state, the administration of payment has become the core of administrative tasks, the strength of the legislature has been weakened, and the executive has been given broad discretion. in order to limit the increasingly extensive discretion, davis, an american scholar, proposed in 1969 to limit, construct and restrict administrative discretion through the self-restraint of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 68 published by scholink inc. administrative organs. with the development of society, the welfare state has entered a risk society. national administrative tasks are no longer limited to payment administration, more importantly, risk administration. risk administration requires the state, especially the government, to take the initiative to prevent risks. in this context, the administrative discretion space of administrative organs is broader, especially in the current surge of environmental risks, the space of environmental administrative discretion is expanding, and the traditional legislative, law enforcement and judicial regulation models have shown fatigue. it is difficult to effectively regulate the discretion of environmental administrative punishment by relying solely on traditional regulation methods. 2.1 theoretical issues on the regulation of discretion of environmental administrative punishment the legislative regulation of administrative discretion is generally realized by legislators through law. due to the limitations of legislators’ ability and the language expression of the law itself, legislation also has limitations on the discretionary regulation of environmental administrative punishment. due to the ambiguity of semantics, the complexity of reality, and the professionalism of administration, legislators cannot make precise specifications for every detail in the face of a wide variety of administrative acts that almost pervade all areas of social life. as a legal expert, legislators cannot foresee all aspects of social development. legislation can only regulate problems that have emerged or are determined to emerge. however, with the development of social science and technology, environmental problems emerge in an endless stream. it is impossible to predict and regulate these problems by relying solely on legislators to amend the law in time. therefore, it is not expected that legislators can achieve the effect of regulating social problems without omission and with strict logic through legal provisions. administrative organs must be given relevant rights to find problems and make up for loopholes in the process of law enforcement. therefore, no matter how hard the legislators try to accurately define the legal text and narrow the discretionary space, the discretionary space still exists due to the abstraction and ambiguity of the language, and it is difficult for the legislature to accurately locate and carefully regulate the discretion. especially in environmental legislation, due to the professionalism, complexity and public welfare of environmental issues, environmental legislation is full of uncertain legal concepts, which cannot be correctly applied only by the language of legal norms. 2.2 environmental administrative penalty discretion judicial regulation negative the lag of environmental administrative justice makes it play a limited role in the regulation of environmental administrative penalty discretion. environmental justice has different attitudes towards the review of environmental administrative penalty discretion, which also makes the judiciary show a negative trend towards the contraction of environmental power. first of all, environmental justice is generally a more modest attitude towards administrative power. as the last barrier of power, justice also has a lag in the regulation of environmental administrative penalty discretion. judicial regulation of administrative discretion is generally achieved through administrative litigation. however, based on the principle of “no trial”, the vast majority of administrative acts will not enter the judicial www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 69 published by scholink inc. proceedings. the administrative counterpart does not file an administrative lawsuit based on various factors, or resolves administrative disputes through other means. “the court can only delve into a very small number of cases it accepts”, and the scope of judicial regulation on power contraction and discretion is extremely limited. even if the case related to administrative discretion enters the judicial process, the judicial organ or the case review judge will generally respect the judgment of the administrative organ, not easily deny the decision-making of the administrative organ, and “emphasize the need to fully respect the judgment of the administrative organ, especially the first-time judgment right of the administrative organ”. secondly, the judiciary is lagging behind and cannot fill the environmental damage caused by the abuse of environmental discretion. “judicature is an after-the-fact control, which is not synchronized with the administrative act, and its significant defect is that it cannot restore the damage caused by the administrative act”. ecological (environmental) damage is irreversible, and the repair cost of ecological (environmental) damage is much higher than its prevention cost. when the exercise of environmental power causes damage to the environmental rights and interests of the administrative counterpart or may cause damage, even through the time-consuming administrative litigation, it is impossible to prevent and prevent the occurrence of (environmental) damage in time. finally, the judicial practice of administrative discretion regulation function is weak. according to zhou haoren’s search, collection and analysis of administrative litigation judgment documents from january 1,2015 to june 10,2018, it can be seen that there are only 134 judgment documents involving “obvious improper”, which can be described as “few as morning stars”. it can be seen that in the process of judicial trial, judges rarely exercise judicial regulation on administrative power on the grounds of “abuse of power”, “obvious injustice” or “obvious misconduct”. in china’s administrative justice, “the judicial concept of emphasizing legality review and neglecting rationality review prevails”, “academic research and judicial practice often appear far apart from each other”, “the judge’s economic man thinking makes it a cheap choice to avoid the application of abuse of power standards” and other factors, resulting in the weak function of justice in discretionary regulation. 2.3 self-regulation of environmental administrative penalty discretion is weak the environmental legal authorization is broad and unclear, which makes the government’s regulation of environmental administrative penalty discretion have congenital defects. the environmental law grants the government greater environmental administrative authority and gives the environmental protection administrative organ greater discretion space. however, the imperfect authorization of environmental laws and the unclear scope of authorization have aggravated the possibility of legal but unreasonable situations when the environmental protection administrative organs carry out environmental administrative punishment discretion. the lack of regulatory awareness of environmental power exercisers makes the government lack of motivation for the regulation of environmental administrative penalty discretion. the exerciser of environmental administrative punishment power is the staff of administrative organs, and the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 70 published by scholink inc. administrative regulation of environmental administrative discretion also needs to be realized through the staff of administrative organs. however, when the administrative staff exercise the power of environmental administrative punishment, it is impossible to avoid the influence of subjective factors. the judgment of illegal acts, the analysis of illegal situations, the choice of applicable legal provisions, and the determination of the type and magnitude of punishment all require subjective consideration by the administrative staff. with the introduction and implementation of the new “environmental protection law”, in order to combat environmental violations and control environmental pollution and other environmental problems, environmental administrative law enforcement is strictly carried out. therefore, when environmental administrative law enforcement personnel exercise the power of environmental administrative punishment, they often choose the most severe punishment methods and punishment contents, and the situation of arbitrary exercise of discretion occurs from time to time. the new exploration of administrative regulation of environmental administrative penalty discretion is still not enough to form an effective regulation of environmental administrative penalty discretion. in 2019, the ministry of ecology and environment issued new guidance on standardizing the application of discretion in environmental administrative penalties, updating the discretionary regulatory documents issued 10 years ago. it can be seen that the central government tries to guide local governments to formulate environmental administrative penalty discretion benchmarks or rules through standardized environmental administrative penalty discretion benchmarks, rule-making processes, and institutional norms, and uniformly regulate environmental administrative penalty discretion. however, in theory, there is no conclusion on the subject of the formulation of the discretion standard, the scope of the effectiveness, the technical problems of the formulation, and how to deal with the conflicts of the discretion standard between the localities or the superiors and subordinates. in practice, whether the administrative discretion benchmark system will lead to the rigidity of law enforcement is increasingly questioned by scholars and law enforcers. for administrative organs, the formulation of discretionary benchmarks requires scarce resources and is technically difficult; the requirements of information disclosure will make the low-quality discretionary benchmarks invite the public’s ruthless criticism and ridicule. therefore, it can be seen that legislation can not limit the space of environmental administrative penalty discretion. the judiciary has a modest attitude towards the discretion behavior and discretion standard of environmental administrative penalty. it is difficult to achieve a comprehensive regulation of the unprecedented expansion of environmental penalty discretion only by relying on the administrative self-regulation method of environmental administrative penalty discretion standard or discretion rules. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 71 published by scholink inc. 3. the development of environmental administrative penalty discretion regulation under the framework of modernization of ecological environment governance system 3.1 administrative self-restraint based on self-restraint under the government-led modern ecological environment governance system, the government, as the main body of environmental power, regulates the discretion of environmental administrative punishment through its own behavior, which can maximize the realization of reasonable discretion and case justice, and is also the requirement of administrative self-restraint. self-restraint emphasizes the “voluntariness” of administrative organs in self-restraint. if the law clearly stipulates that the administrative organ must formulate rules to limit the discretion, the limited discretion of the administrative organ is not autonomous, spontaneous and voluntary, it is not the embodiment of self-restraint. therefore, the self-restraint of administrative discretion refers to the voluntary, spontaneous and autonomous self-limiting behavior of administrative organs. there are generally no laws and regulations, administrative orders, court judgments and other mandatory requirements and regulations. based on self-restraint, environmental administrative organs voluntarily carry out discretionary regulation, which can promote the realization of case justice. the discretion of environmental administrative punishment is the way and means to realize case justice. there are various ways of environmental administrative punishment and a large range of fines. it is necessary to determine the final punishment method and fine amount according to the specific case situation. because of this, the environmental administrative penalty is prone to the injustice of “different penalties for the same case”. according to the statistics of zhejiang province, in 2008, the average fine of environmental administrative penalty cases in zhejiang province was 37485 yuan. among them, the average fine of some areas was as high as 80,000 yuan, while the average fine of some areas was only 24,000 yuan. the realization of the justice of environmental administrative punishment cases cannot be achieved by legislation or justice because of the different illegal situations, illegal subjects, environmental conditions, social and economic levels and other factors involved in each case. it is necessary to promote the realization of case justice through self-regulation of environmental administrative punishment discretion. the discretion of environmental administrative penalty is made by environmental administrative organs and their staff. they have rich experience in law enforcement and the most understanding of illegal acts. therefore, they are also the most aware of what behaviors need to be regulated and how to regulate in the process of penalty discretion. discretionary rules and procedures designed based on self-restraint can also “effectively achieve the purpose of granting administrative discretion by laws and regulations, and effectively prevent the abuse of administrative discretion”. 3.2 negotiation regulation based on deliberative democracy in environmental administrative punishment, enterprises, as administrative counterparts, are generally in a passive position and are difficult to participate in the discretion of environmental administrative www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 72 published by scholink inc. punishment. in the modern ecological environment governance system, enterprises are in the dominant position, which also provides an opportunity for enterprises to participate in environmental administrative law enforcement as the main body. in theory, “deliberative democracy” also provides a basis for enterprises to participate in the regulation of environmental administrative penalty discretion as the main body. deliberative democracy is conducive to the realization of the substantive justice of the case of environmental administrative penalty discretion, and provides a new idea of consultation for the regulation of environmental administrative penalty discretion. habermas pointed out: “a norm is obviously effective, only means that it has been fairly demonstrated; only the fair application of this norm can lead to a valid judgment in a case”. the law gives the environmental administrative organs discretion space rooted in the pursuit of case justice. the discretion of environmental administrative punishment and the self-regulation of discretion can only ensure the realization of procedural justice in individual cases, while substantive case justice cannot be judged by the behavior of the administrative organ. consultative democracy requires consultation to run through the whole process of environmental administrative penalty discretion. the traditional administrative law is only a “point” in the study of the administrative behavior system, without considering the study of the administrative process. the study of administrative process not only decomposes an administrative act into different links and stages, but also studies the relationship between several related administrative acts, as well as the interaction between the subject of administrative act and the administrative counterpart. in modern risk administration, it is necessary to consider the risks in the whole process of administrative behavior from the perspective of administrative process theory, so as to truly realize risk regulation. on the one hand, enterprises should participate in the negotiation of environmental administrative penalty discretion related policies. based on the deliberative democracy system, the deliberative administrative regulation model can “directly absorb the relative person to participate in the formulation process of the regulatory policy, with the help of the relative person’s knowledge, and the relative person together to form the conditions and benchmarks for the specific operation of the administrative discretion in the case, so as to limit the exercise of the administrative discretion individually, win the cooperation of the administrative relative person, and achieve the goal of benign administration”. on the other hand, enterprises should participate in the process of environmental administrative penalty discretion. deliberative democracy is not limited to the democracy of policy making, but should be reflected in the democracy of the process and results of administrative law enforcement. therefore, enterprises should also have the right to participate in environmental administrative punishment, participate in the decision-making process, negotiate the decision-making results, and fully participate in the administrative discretion process to achieve regulation. 3.3 social regulation based on administrative legitimacy in the modern ecological environment governance system, social organizations and the public are widely involved in environmental governance, which also provides an opportunity for social www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 73 published by scholink inc. organizations and the public to participate in environmental administrative punishment and social regulation of environmental administrative punishment discretion. under the ternary main framework of the modern ecological environment governance system, the government, enterprises and the public interact with each other, and the restriction of the punishment discretion of the environmental administrative organs also needs to be carried out at the same time. the self-regulation of environmental administrative organs is an internal restriction mechanism, and there may also be abuse of power. the restriction of enterprises on the punishment and discretion of environmental administrative organs is carried out through participation in consultation, which is an external mechanism. however, due to the imperfect rules of government-enterprise consultation in china, it is impossible to provide a perfect guarantee mechanism for enterprises to participate in consultation, so that there is a grey area in the restriction of enterprises on the punishment and discretion of environmental administrative organs through consultation. this requires another most important subject in social co-governance, the public, to fill the restriction gap, form a complete regulatory mechanism under the modern ecological environment governance system, and achieve mutual balance. the introduction of public participation in the modern ecological environment governance system is in line with administrative justice and democratic administration. the principle of administrative legitimacy and democratic administration also provide a theoretical basis for the social regulation of environmental administrative penalty discretion. the principle of administrative justice originated from the natural justice in british law and developed in the due process of law inherited by american law. as the operation of administrative power, the principle of administrative legitimacy must meet the minimum standard of procedural justice, including avoiding partiality, fair hearing and administrative openness. the essence of social regulation is the exercise of public rights, the core is the public participation in the process of administrative penalty discretion, is the extension and supplement of political democracy in the administrative field, is an important basis for the realization of administrative justice. participation is the cornerstone of democratic politics. political democracy and administrative democracy together constitute the main content of modern democracy and the core concept of modern constitutional system. in modern democratic countries, the institutionalization and proceduralization of civil rights, especially the right of participation and supervision, is the basis for citizens to participate in the administrative process and compete with administrative power. through social sanctions, it is necessary to “establish and improve the concept and system of participatory administration, supervise and restrict the correct exercise of administrative discretion”. in the modern ecological environment governance system, the public is an important subject. it is an inevitable requirement of administrative democracy to consider the public interest and the democratic value of the public concern in the discretion of environmental administrative penalties. under the requirements of the principle of administrative legitimacy, environmental administrative punishment should introduce public participation. the public supervises the discretion of the environmental administrative organs, obtains the information about environmental administrative www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 74 published by scholink inc. penalties disclosed by the environmental administrative organs, and participates in the hearing of environmental administrative penalties, regulates the discretion of environmental administrative penalties, and ensures the legitimacy of the penalty discretion. the social regulation of environmental administrative penalty discretion is the final guarantee set under the modern ecological environment governance system. the regulation of environmental administrative penalty is realized by social regulation, and the regulation of self-regulation of administrative organs and enterprise negotiation regulation is realized at the same time, so as to ensure that the ternary regulation system can play a real regulatory effect. 4. renewal of environmental administrative penalty discretion regulation mode under the framework of modernization of ecological environment governance system 4.1 the way of self-regulation of environmental administrative punishment process by administrative organs based on the theory of administrative restraint, the self-regulation of environmental administrative penalty discretion is not the regulation between the staff of environmental administrative organs, nor the leadership’s control over subordinates. the self-regulation of environmental administrative penalty discretion is endogenous, which is generated from the administrative organs and administrative personnel themselves, and is realized through a series of mechanisms within the administrative system. the environmental administrative organs regulate the discretion of punishment through the formulation of administrative rules and the standardization of administrative procedures, and regulate the discretionary behavior of the staff of the environmental administrative organs through the internal supervision and accountability mechanism of the environmental administrative organs; based on the principle of self-restraint, the staff of environmental administrative organs improve their professional and legal quality, regulate their discretionary behavior of environmental administrative penalties through internal regulation, and conduct environmental administrative penalties in accordance with the rules and procedures formulated by environmental administrative organs. specifically, the self-regulation of environmental administrative penalty discretion under the framework of modern ecological environment governance system is a regulatory behavior with environmental administrative organs as the main body and self-control and self-restraint related entities and procedural rules as the means. the administrative organs should formulate relevant discretionary benchmark documents, procedures for the formulation of discretionary benchmarks, and publicize relevant documents. in the process of formulating relevant discretionary documents, we should attract the participation of enterprises and the public, listen to their opinions and suggestions, make the discretionary benchmark document easy to implement, and truly limit the discretionary space. after the occurrence of environmental violations, the environmental administrative organs exercise the right of environmental administrative punishment, carry out environmental administrative law enforcement activities, and enjoy a large discretionary www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 75 published by scholink inc. space. for the discretionary regulation of environmental administrative punishment, the administrative organs should formulate clear procedural rules, establish a sound law enforcement record system, discretionary review system and collective review system. after the implementation of environmental administrative penalty discretion, environmental administrative organs can still realize the self-regulation of environmental administrative penalty discretion through internal supervision such as environmental supervision, environmental supervision, environmental administrative reconsideration, accountability and post-assessment procedure of environmental administrative penalty discretion benchmark. environmental supervision and environmental supervision are the active supervision of environmental administrative organs. it is the supervision of environmental administrative supervision organs on the daily law enforcement of environmental administrative organs and the exercise of environmental administrative penalty discretion. environmental reconsideration is the passive supervision of environmental administrative organs. after the administrative counterpart files an administrative reconsideration, the reconsideration organ reviews the discretionary behavior. the post-assessment of the discretionary benchmark can comprehensively examine the implementation of the discretionary benchmark, improve the discretionary benchmark itself, make it more rationalized, and more in line with practical needs. 4.2 the way of negotiation regulation for enterprises to participate in the process of environmental administrative punishment based on democratic consultation, the regulation of environmental administrative penalty discretion requires consultation between environmental administrative organs and environmental administrative counterparts in the whole process of formulation, implementation and implementation of environmental administrative penalty discretion documents. that is, through the negotiation system, enterprises participate in the negotiation of environmental administrative punishment before, during and after the event, and form a regulation on the whole process of environmental administrative punishment. first of all, the pre-negotiation regulation of enterprises, that is, through administrative contracts, set up environmental protection facilities standards, emission standards, etc. in line with the actual situation of each enterprise, as well as penalties for breach of contract and violation of law, to encourage enterprises to abide by the law. the agreement on breach of contract and illegal punishment in the environmental administrative contract negotiated by both parties forms a constraint on the subsequent environmental administrative punishment discretion. secondly, through the participation of enterprises in environmental administrative punishment, the discretion is regulated. on the one hand, through the explanation system and the hearing system, it is ensured that the opinions and suggestions of the administrative counterpart can be expressed and involved in the process of environmental administrative punishment. on the other hand, through the reconciliation system, enterprises and environmental administrative organs conduct consultations in environmental administrative punishment, which is conducive to reaching an agreement on environmental administrative punishment in informal occasions and conditions, reducing the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 76 published by scholink inc. contradiction between “government and enterprises”, resolving the difficulty of implementation, and realizing the social benefits of environmental administrative punishment. because the agreement reached through consultation between enterprises and environmental protection agencies has the nature of administrative contract, it has de facto binding force. in the process of environmental administrative punishment, the environmental administrative organ can choose to negotiate with the counterpart through the exercise of discretion, and reach an agreement on the punishment measures and the amount of punishment. finally, after the decision of environmental administrative punishment is made, enterprises should also be given a certain opportunity to negotiate with the environmental administrative organs on the implementation mode and time of environmental administrative punishment, and the environmental administrative organs should make discretion on the implementation mode and time limit proposed by enterprises. through the negotiation of the way of performance, the implementation of the decision of environmental administrative punishment is realized. 4.3 the social regulation mode of public participation and supervision of environmental administrative punishment process social regulation is the supervision and restriction of the government’s environmental administrative behavior through social subjects, including the public, including experts, media, and social organizations and so on. social control generally includes two important forces: one is to counterbalance power with rights; the other is the power of supervision by public opinion. in summary, its essence is still to regulate and limit the power of administrative organs by the rights of various subjects in society. the social regulation of environmental administrative behavior is realized through the public’s right to know, participation and relief. first of all, social regulation is premised on public knowledge. through the right to know, the public knows the “environmental administrative penalty discretion”, “environmental administrative penalty discretion benchmark”, “environmental administrative organs and administrative counterparts on the administrative penalty to carry out the consultation process and the final result”, etc., to achieve the environmental administrative penalty discretion and its self-regulation and consultation regulation supervision and restriction. secondly, the public evaluation system is introduced into the environmental administrative punishment, “the public participation mechanism is introduced into the review process of environmental administrative punishment, and the public evaluation panel is formed to hold the public evaluation meeting of the case to evaluate the discretion of the original law only to the administrative organ”. public review can be recruited by government agencies to the society according to certain conditions, and a public review database can be established. the public review meeting is held 1 to 2 times a month, and each meeting is attended by 5 public reviewers. the public reviewers are randomly selected from the public review pool. the public reviewers make public comments on the preliminary opinions of the case materials and punishments to form public opinions. the administrative organ takes the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 77 published by scholink inc. public opinion as an important basis for the final administrative penalty decision. the public review system absorbs the public to truly participate in the process of environmental administrative penalty discretion, and realizes the regulation of environmental administrative penalty discretion. at the same time, the public, as the supervisor and participant, supervises the procedure of environmental administrative punishment of administrative organs, participates in the hearing and reconciliation in the process of environmental administrative punishment, and regulates the administrative self-control and negotiation regulation. finally, the public’s right to environmental relief. on the one hand, the public supervises the performance of environmental administrative organs. if it is found that the discretionary behavior of environmental administrative organs is illegal or unreasonable, which may damage the public interest, public interest litigation can be brought to the court according to law. on the other hand, the public supervises the negotiation process and negotiation results between the enterprise and the environmental administrative organ. if it is found that the government and the enterprise’s “collusion” in the negotiation process, or the enterprise does not act in accordance with the contract, it can be regulated by reporting or litigation. 5. conclusion under the influence of the modernization of the ecological environment governance system on china’s environmental governance, the modern governance system has introduced a multi-party co-governance framework of the government, enterprises and the public. with the revision of environmental laws, the space for environmental administrative authority and administrative penalty discretion has expanded. in order to achieve case justice, the environmental administrative organs have issued new discretionary benchmarks and procedural provisions to limit the space for self-discretion. regulating the exercise of discretion, urging administrative organs to exercise public power according to law, protecting the legitimate rights and interests of administrative counterparts, improving the rationality of the exercise of discretion, and preventing the abuse of public power are of great significance to china’s environmental protection cause and the construction of a government ruled by law. references chen, c. (2023). the dilemma and outlet of china’s ecological environment administrative penalty discretion benchmark system. jianghuai forum, 2023(03), 106-114. du, h. (2022). jurisprudence and advancement of the reform of the ecological environment law enforcement system. jiangxi social sciences, 2022(8), 131-140, 208. hu, j. m. (2022). the attributes, formulation and application of administrative discretion benchmarks. china justice, 2022(8), 45-48. liu, c. x. (2022). on the innovation and specialization of environmental administrative legal liability. global legal review, 2022(6), 23-39. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 78 published by scholink inc. wang, c. y. (2023). on the optimization of the dynamic system theory of administrative discretion benchmarks. political and legal forum, 2023(3), 41-54. wang, j. (2022). on the escape application of the administrative penalty discretion standard. financial law, 2022(1), 117-132. yu, l. y. (2022). on the review of rationality in administrative litigation. comparative law study, 2022(1), 145-161. zhou, y. y. (2022). a programmatic document to promote the construction of the benchmark system of administrative discretion in the new era. china justice, 2022(8), 37. zhou, y. y. (2023). new mission and new tasks for improving administrative discretion benchmarks. administrative law studies, 2023(1), 18-22. zhu, x. l. (2023). the current situation, problems and countermeasures of mitigating and mitigating the application of environmental administrative penalties in china. law (hans), 2023(4), 242-243. zou, y. (2022). definition of the punitive nature of administrative punishment. administrative law research, 2022(02), 44-55. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 147 original paper research on the civil law protection of private information jingwen xu 1 1 dalian ocean university, dalian, liaoning, china received: august 10, 2025 accepted: august 20, 2025 online published: august 22, 2025 doi:10.22158/elp.v8n2p147 url: http://dx.doi.org/10.22158/elp.v8n2p147 abstract according to the china annual report on personal information security, data breaches nationwide will increase by 23% year-on-year in 2024, and private information such as biometrics, health care, and financial transactions will become the main targets. in this context, article 1034 of the civil code of the people’s republic of china clarifies the legal attributes of private information, stipulates that the relevant provisions on privacy are applied to its protection, and the personal information protection law applies when there are no special provisions, which makes private information both “private” and “identifiable” as the intersection of privacy and personal information. theoretically, there is a dispute over the boundary between private information and sensitive personal information, and the protection model also faces differences in the choice of unification and dualization. in this regard, we can learn from the german “field theory” and combine the principle of proportionality in our country’s civil code, refine the rules from the whole chain of collection, use and storage, set up special regulatory agencies, and empower public participation through education, technical tools, public interest litigation, etc., so as to improve the private information protection system and effectively safeguard the rights and interests of citizens. keywords private information protection, infringement identification, privacy, personal information, burden of proof 1. introduction with the rapid development of the digital information era, the protection of personal private information has attracted increasing attention. in recent years, many incidents involving information leakage and infringement of personal information have occurred on the internet. however, relevant laws and regulations are not perfect, the definition of personal information is unclear, the scope of protection is not clear, and there are still illegal phenomena. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 148 published by scholink inc. 2. research hypotheses if private information is closely related to privacy rules, it is more likely to apply privacy rules for protection. the reason is that the right to privacy emphasizes the independent control and non-interference of individuals in the field of private life, and private information is an important part of privacy, and when faced with infringement, according to the privacy rules, the information subject can claim his right to conceal private information and not be illegally obtained and disclosed by others, so as to maintain the peace of his private life and personal dignity. 3. research design systematically explore the logic and protection path of specific rules under the framework of civil law protection, clarify the boundaries of private information and privacy rights and personal information protection rules, clarify the differentiated protection models of private information with different attributes, provide theoretical guidance for handling private information infringement cases in judicial practice, and put forward reasonable suggestions for improving our country’s civil law protection system for private information. 4. empirical analysis 4.1 the theoretical basis of private information protection in civil law 4.1.1 definition and characteristics of private information article 1034 of the civil code stipulates that private information within personal data shall be governed by privacy rights provisions; where no such provisions exist, the applicable personal information protection regulations shall apply. personal private information refers to data closely tied to an individual’s life, identity, health, and other aspects that they generally wish to keep private. this category includes critical information such as identity verification, physical condition, financial status, communication patterns, and geographical location, all of which carry paramount importance. information regarding property, health conditions, biometric data, and personal privacy falls under the scope of private information. additionally, other classifications are provided to categorize private information into different domains. professor zhang gexin argues that the legal framework lacks clear definitions for private information, given its inherently subjective nature (zhang, g. x., 2023, pp. 87-94). in practice, such determinations should be context-specific. to strengthen privacy protection, he proposes adopting a “discernibility + relevance” standard: private information refers to any electronically recorded data containing sensitive attributes of identifiable individuals, which may also be termed private 1information or informational privacy. in recent years, there has been a growing number of fraud cases caused by personal privacy, including vicious crimes such as financial fraud and identity theft. this not only reflects the urgency of protecting www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 149 published by scholink inc. private information, but also sounds an alarm for us to strengthen the formulation and enforcement of relevant laws. 4.1.1.1 privacy private information has the nature of not being disclosed or disclosed. it is the information that individuals do not want to be known by the outside world, and others cannot easily access or peek into it. only with the authorization or consent of the owner of the information can others have access to or obtain this information. 4.1.1.2 sensitivity some private information may involve trade secrets. therefore, if criminals steal or information processors illegally sell information in the process of processing information, it may bring serious property losses and adverse consequences to enterprises. the leakage of some private information may also damage a person’s reputation. for example, hotels install pinhole cameras to take indecent photos of hotel guests and leak them to the internet for corresponding remuneration. when it comes to the leakage of private information such as home addresses and personal travel plans, there may be security risks. at the end of 2019, when the covid-19 pandemic broke out in wuhan, there was a large-scale over-collection of citizens’ id numbers, home addresses, and other private information under the guise of epidemic prevention. this led to many people being harassed through wechat messages, phone calls, and verbal abuse (jiang, h. y., 2020, pp. 183-194, p. 209). 4.1.1.3 specificity and complexity confidential information lies at the intersection of privacy and personal data, encompassing multiple dimensions. in handling related cases, it is crucial to prevent factual errors in judgment while minimizing uncertainties in legal application. through referencing specific cases, modern legal practice continuously accumulates and innovates privacy protection methods. this ongoing process optimizes and enhances china’s civil law framework for safeguarding confidential information. 4.1.2 the connection between the right to privacy and private information to determine private information, it is crucial to distinguish between privacy and personal information. article 1032 of the civil code stipulates: natural persons enjoy the right to privacy. without permission, no acts such as prying, interfering, disclosing, or publicizing shall be permitted. paragraph 2 defines personal privacy as private life, activities, and information. the concept of privacy was first introduced in late 19th-century american legal systems, referring to an individual’s control over their private life information. with societal evolution, privacy rights now encompass not only personal information protection but also aspects of personal life tranquility and communication confidentiality. paragraph 2 of article 1034 of the civil code specifies that personal information includes any electronically or otherwise recorded data capable of identifying specific individuals, either independently or in combination with other information. this encompasses names, dates of birth, id www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 150 published by scholink inc. numbers, biometric data, addresses, phone numbers, email addresses, health records, and location data. privacy protection serves as a passive safeguard against intrusion, while right holders retain autonomy in personal information decisions during data integration and processing. article 1033 requires explicit consent for privacy processing, whereas article 1035 stipulates that consent may be explicit or implied, indicating that explicit consent isn’t always mandatory when handling personal information. at the same time, article 1033 of the civil code also states that the explicit consent of the right holder should be obtained when dealing with private information (zhang, z. w., 2022). as can be seen from the above, the protection of private information is more similar to the protection of privacy. private information constitutes the overlap between privacy and personal information. article 1034(3) of the civil code stipulates that private information within personal data shall be governed by privacy rights provisions, while areas lacking such provisions shall apply personal information protection regulations. the legal text demonstrates that privacy rights take precedence in protecting private information. this principle implies that only inherently private elements within personal data qualify for privacy rights protection under relevant legal provisions. 4.1.3 the necessity of protecting private information with the advancement of society, the infringement of personal privacy has become increasingly severe, making civil law protection crucial. the leakage of private information not only jeopardizes individuals’ reputation and property security but also compromises personal freedom and dignity, even affecting cross-departmental and societal information security. in this context, leveraging civil law to safeguard personal privacy plays a vital role in maintaining social equity and justice. to prevent reputational and financial harm caused by the leakage of personal privacy, civil law must provide robust safeguards. when citizens’ information is collected online, inadequate storage may leave it vulnerable to hackers who could steal uploaded private data. such breaches not only cause significant personal repercussions but also lead to potentially disastrous consequences that could ripple through society. through in-depth research, we can better understand the threats and risks to private information, thereby formulating more effective security strategies and measures. preventing the leakage of private information not only safeguards citizens’ personal dignity and rights, but also helps curb criminal activities such as property loss and identity theft caused by data breaches, which could otherwise destabilize society. protecting private information through civil legal frameworks can effectively mitigate these risks, playing a crucial role in maintaining social order and public safety. privacy processors who negligently leak or illegally sell others’ private information during processing, thereby causing harm, shall face severe penalties. when using apps, authorities must not force the collection or over-collect users’ private data. users should be informed in advance about such data collection to prevent malicious individuals from exploiting their privacy for personal gain, thereby infringing on rights holders’ interests. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 151 published by scholink inc. the current lack of clear legal provisions regarding the classification of private information and liability determination for infringement has allowed criminals to exploit legal loopholes, resulting in privacy violations against citizens without timely accountability. timely legislation on personal privacy protection not only safeguards citizens’ legitimate rights but also demonstrates china’s strong commitment to protecting privacy rights. personal privacy constitutes a vital component of commercial resources. protecting such information not only safeguards individual dignity but also fosters an open, transparent, and fair competitive environment for businesses, thereby driving social progress. moreover, it contributes to the healthy development of the digital economy. establishing clear definitions and protective measures for private data can enhance public trust in digital ecosystems, unleashing innovative potential and fueling the thriving growth of the digital industry. to sum up, it is very necessary to take civil law protection measures for private information, which not only protects citizens’ legitimate rights and personal dignity, but also highlights the respect for personal dignity. therefore, we need to constantly improve the protection of private information and strictly crack down on criminals from different dimensions. 4.2 problems existing in the protection of private information in the big data era, personal identity information—including id numbers, phone numbers, and online search histories—has become part of big data stored in databases, exposing them to risks of exploitation by governments or commercial entities. the illegal acquisition and resale of private data pose serious threats to citizens’ privacy security. internet service providers may store or collect personal information without users’ consent, leading to data breaches. the civil code stipulates that processing private information requires explicit consent from right holders. article 1032 explicitly states that natural persons enjoy privacy rights, prohibiting organizations or individuals from infringing these rights through prying, harassment, disclosure, or public exposure. article 1034 defines the scope of personal information, emphasizing that private information falls under privacy rights protection; otherwise, it follows general personal information protection rules. in practice, internet platforms often forcibly collect users’ private data, potentially causing leaks and misuse risks. 4.2.1 the identification of private information in the law is not clear according to article 1034(3) of the civil code, the protection of private information negatively excludes provisions for personal information. however, how private information passes the privacy test and becomes an object protected by privacy rights requires in-depth discussion. regarding the determination of private information, some aspects are undisputed—such as personal health data, criminal records, and financial status naturally fall under private information. information protected by personality rights like names, voices, and facial features should not be categorized as private information. given the complexity of infringed information in judicial practice, determining whether it constitutes private information cannot rely solely on the “unwillingness to be known” standard. it must consider both general public perception and specific case circumstances. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 152 published by scholink inc. 4.2.1.1 privacy and private information private information constitutes an integral part of privacy. the concept of “fans” is broadly defined to encompass all aspects of personal life that individuals wish to protect from unauthorized access or interference. within this framework, specific types of private information include concrete details such as personal correspondence and transaction records. as a category of personality rights, privacy rights primarily protect individuals’ private information, emphasizing the safeguarding of personal dignity rather than property attributes. however, confidential information is inherently embedded within personal data, whose defining characteristic lies in its identity-related nature. when citizens engage in shopping or banking transactions, they may inadvertently disclose sensitive details. this demonstrates that such confidential information transcends traditional privacy boundaries and exhibits distinct property attributes. 4.2.1.2 personal information and private information the accessibility of personal information is open to society, and its use generally does not significantly impact the rights holder’s reputation or social standing. however, if private data is leaked, it can cause substantial psychological harm to the rights holder, including threats to financial security and social standing. when privacy breaches result in emotional distress, the right to privacy constitutes the legal framework for protecting information. 4.2.1.3 sensitive personal information and private information the civil code stipulates the private information and its protection principles from the perspective of civil rights protection, while the personal information protection law stipulates the sensitive information and its processing principles and basic rules from the perspective of personal information processing (lu, z., 2021, pp. 86-100). since sensitive information and private information have overlapping relationships, the private information is also provided with legal protection. the personal information protection law categorizes personal information into sensitive and general types. sensitive information, which may infringe upon an individual’s dignity or harm their physical and material well-being if improperly disclosed or illegally used, includes biometric data, specific identity information, location data, and mobile communication records—except for personal information of minors under 14. article 1034 of the civil code further divides personal information into private and non-private categories, with sensitive information similarly reflecting a desire to maintain privacy. as privacy rights constitute part of personality rights, violations of such information can damage the rights holder’s personal dignity. according to the personal information protection law, breaches of sensitive information not only harm personal interests but may also involve social or national security concerns. to distinguish between sensitive and private information, we must examine their distinct perspectives. sensitive information represents vital privacy that impacts personal dignity and freedoms, while private information focuses on protecting individual privacy from external interference. scholar zhang lu argues that private information primarily manifests through two characteristics: secrecy and exclusivity. secrecy refers to the right holder’s legitimate expectation of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 153 published by scholink inc. privacy protection and public recognition of such protection. exclusivity ensures that the protection, storage, and consequences of privacy breaches concern only the right holder’s interests without affecting others. zhang lu pointed out that privacy is an important factor in determining whether it belongs to private information (yu, y., & yu, j. q., 2021, pp. 64-73). a comparative analysis of the aforementioned concepts reveals that the distinctions between private information, privacy, personal information, and sensitive personal information remain ambiguous. the difficulty in differentiating private information often leads to challenges in defining such data within information infringement cases. neither the civil code nor the personal information protection law provides clear definitions of private information through a “generalized+specific enumeration” approach. 4.2.2 the identification of invasion of private information is not clear the determination of private information infringement remains ambiguous in judicial practice. due to the lack of clear legal guidance, judges often have to make judgments based on their understanding of case circumstances and individual case specifics. this subjective approach may lead to inconsistent rulings, potentially undermining the predictability and credibility of the law. in handling personal information infringement cases, discrepancies in the application of tort liability elements result in varying determinations of liability. for instance, in the case of plaintiff gu versus defendant liaoning unicom company and other telecommunications service providers, the presiding judge applied the tort liability element of causing damage. as plaintiff gu failed to provide evidence of specific damages incurred, the court ruled that the defendant was not liable for compensation. under china’s current legal framework, victims of privacy violations must prove before courts whether their leaked personal information originated from malicious actors or inherent internet vulnerabilities. this creates significant obstacles for rights holders in evidence collection and litigation. in the privacy rights dispute case between pang lipeng and china eastern airlines co., ltd., pang lipeng had booked a flight through qunar (a subsidiary of beijing quna information technology co., ltd.) on behalf of lu chao. later, pang received an anonymous call informing him that his flight had been canceled. china eastern airlines subsequently sent a text message notifying him of schedule changes. when lu chao contacted the airline’s customer service for confirmation, he was told the flight had been canceled. pang claimed that quna and china eastern airlines had leaked his personal data. the court dismissed his information infringement claim in the first instance. during appeal, the appellate court identified potential liability from both china eastern airlines and qunar regarding the breach. while pang’s personal information exposure caused both financial losses and emotional distress, the case highlighted legislative gaps in fact-finding and judicial remedies. this precedent underscores the urgent need for enhanced privacy protection legislation in china. in information networks, where infringers are often unidentified and infringement methods are highly complex, rights holders face significant challenges in providing and listing concrete evidence of infringement under existing laws. this difficulty leads to unfavorable consequences of “failure to provide evidence” for rights holders www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 154 published by scholink inc. who cannot submit sufficient proof, making it hard for plaintiffs to obtain reasonable and effective legal remedies through litigation. consequently, they find themselves in a situation where their information is leaked but rights protection remains difficult to achieve. to sum up, the identification and compensation standards for privacy infringement need to be more clear and specific, and the legislation of privacy protection should be further improved to clarify the tort liability. 4.2.3 internet platforms infringe users’ private information according to the “measures for identifying illegal and improper collection and use of personal information by apps” (hereinafter referred to as the “measures”) issued in 2019 by china’s cyberspace administration and ministry of industry and information technology, the following scenarios may lead to app-related personal information collection being identified: “failure to publicly disclose collection rules”, “failure to clearly state purposes, methods, and scope of data collection”, “collecting personal information without user consent”, “violating the principle of necessity by collecting irrelevant data”, “providing personal information to third parties without authorization”, and “failure to provide legally mandated deletion or correction functions, or lack of published complaint reporting channels”. in today’s rapidly developing digital economy, users often face mandatory authorization requests when logging into or using apps to grant platforms access to location data, photo albums, contact lists, and other information (hoffman, s., & podgurski, a., 2007, p. 331). if users reject these permissions, they may be unable to access essential features or even the app itself. for instance, during the crackdown on apps infringing user rights in sichuan and chongqing, authorities discovered an app called “lubel”. upon activation, it displays a privacy policy prompt that collects sensitive information including id documents, facial recognition data, and fingerprints. the terms explicitly state that the app can commercially use de-identified data without user consent. when users attempt to reject these requests, the system forces them to read and agree to the privacy policy through a pop-up window. if rejected, users are compelled to exit the app. china has not established comprehensive regulations defining the scope of private information protection. while existing laws contain guidelines similar to the “security regulations”, their limited public awareness and absence of legal authority make personal data frequently vulnerable to infringement. users often face forced or excessive collection of sensitive information during app usage, causing significant inconvenience to rights holders (zhang, g. x., 2023, pp. 84-96). according to article of the “regulations”, when collecting user personal information, apps may not collect non-essential data or permissions unless users explicitly consent to such actions. in the personal information protection case between wang moumou and tencent, wang initially logged into weishi through wechat, granting permission for the app to access his gender, location, and contact list. after uninstalling weishi and resetting his phone to factory settings, wang attempted to log in using his original wechat id. despite not authorizing the “find friends using this app” feature during this www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 155 published by scholink inc. login attempt, weishi still displayed browsing history of his wechat contacts. tencent maintained access to wang’s contact information even after explicit user prohibition. however, following a 2021 system update, these features were removed, meaning weishi no longer searches unauthorized user data when using the same wechat account. the regulations further stipulate that apps must obtain user consent only through service quality improvements, enhanced user experiences, targeted content delivery, or new product development. in this case, tencent’s weishi app’s request for authentic gender and location data violated the principle of necessary information collection. 4.2.4 illegal processing of private information by the private information processor the protection rules of privacy rights shall be given priority to the private information. according to article 1033 of the civil code, if the right holder does not have explicit consent or the law does not provide otherwise, the processing of the right holder’s private information shall be deemed as illegal processing of the private information. privacy processors are individuals who possess, manage, or have access to specific personal information. they bear clear responsibilities and obligations to ensure the security and compliance of such data. the continuous collection, acquisition, and processing of private information stem from multiple factors. employers may seek to retain their most valuable employees, while marketers utilize this data to provide tailored services, enhance user experiences, and ultimately retain more customers (felt, a., & evans, d., 2008). on september 6, 2015, youlian company was officially registered. zhao haijun, the defendant, served as the company’s general manager, while zeng xi acted as its business director. in early 2015, zhao haijun obtained customer information stored by kai zhou unicom employees through professional connections. later that year, zeng xi acquired client data via her former colleague at kai zhou unicom. in 2017, zeng xi further obtained membership records from kai zhou aiyin image beauty salon through its owner. as data custodians, these unicom employees abused their positions to facilitate illicit activities, resulting in the leakage of sensitive customer information. as public awareness of personal privacy grows, new ethical dilemmas continue to emerge. financial institutions have increasingly resorted to collecting customer information for profit. in recent years, banks and insurance companies across china have faced penalties for improper use of client data. insurance providers exploited their access to vast amounts of customer information to conduct illicit transactions beyond their authorized scope, illegally profiting from such activities. for example, a criminal judgment document published by shanghai jing’an district people’s court in april 2023 revealed that employees of ping an life insurance yancheng central branch violated clients’ privacy by accessing and supplementing personal information, then selling it for illicit gains totaling nearly 270,000 yuan. another high-profile case involved “fat cat” (a pseudonym) who was defrauded of 510,000 yuan and committed suicide by jumping into a river. tan sued liu, fat cat’s sister, for privacy infringement. after the case came to light, tan successfully recovered over 136,000 yuan from fat cat's father through mediation. however, liu claimed the money had been spent on tan and expressed www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 156 published by scholink inc. resentment, stating she would “never let her live easy”. she further leaked screenshots of private chats and transfer records between tan and liu via fat cat’s phone onto public platforms, with most images depicting tan using psychological manipulation tactics against fat cat and labeling her as both a “fraudster” and “a woman to be exploited”. liu mou, under the guise of defending his brother, deliberately intercepted chat records unfavorable to tan mou. he manipulated public opinion against tan mou while illegally publishing their private conversations online without consent. later, by creating a new account to comment on forums and invite friends to join the discussion, he amplified the incident's impact to garner sympathy from netizens. this campaign led to widespread online abuse targeting tan mou, including threatening transfers with obscene messages. the actions not only disrupted tan mou’s daily life but also compromised cybersecurity standards. 4.3 suggestions for improving the protection of private information in civil law 4.3.1 clarifying the identification criteria of private information to establish clear definitions of private information, a multi-pronged approach is required. this includes clarifying its definition and scope, improving relevant laws and regulations, enhancing judicial determinations in practice, raising public awareness, and strengthening regulatory oversight and law enforcement. through implementing these measures, we can better protect personal privacy while maintaining social order and safeguarding public interests. in the discussion of civil legal protection for personal privacy information, establishing clear identification criteria for sensitive data is paramount. this serves not only to safeguard individual interests but also significantly impacts the fairness and efficiency of legal applications. with internet usage growing exponentially, the transmission formats and methods of confidential information have become increasingly diverse. therefore, in practical implementation, we need to precisely define the scope of private information. the criteria for determining private information should balance its confidentiality with potential consequences of disclosure. confidentiality primarily refers to the prohibition of unauthorized dissemination. if such information is illegally disclosed, it may jeopardize the rights holder’s personal safety and property security. for instance, when a company improperly shares employees’ salary data with third parties, it not only causes financial harm but also inflicts dual psychological trauma on affected individuals. when determining whether information qualifies as private, we should not only consider public perception and specific circumstances, but also employ a risk assessment model that evaluates the information’s value, potential leakage risks, and potential damages. this model allows us to determine the privacy level of information based on different scenarios, effectively addressing the challenge of right holders being at a loss when attempting to provide evidence of infringement. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 157 published by scholink inc. 4.3.2 strengthening the multi-dimensional protection of private information first, it is imperative to comprehensively refine relevant legal frameworks. to address regulatory gaps in privacy protection legislation, clearer and more specific provisions must be established. this includes defining clear responsibilities and obligations for all parties involved while imposing stricter penalties for violations. for instance, china could adopt the eu’s general data protection regulation (gdpr) model by imposing substantial fines on entities or individuals breaching privacy protection regulations, thereby creating a deterrent effect. although both the civil code and personal information protection law contain provisions on privacy protection, their differing approaches and objectives often lead to legal ambiguities. ambiguous legal concepts also create opportunities for misconduct. a prime example is article 28(2) of the personal information protection law, which defines “specific purposes”—the exact interpretation of these criteria directly impacts the determination of infringement cases. therefore, it is crucial to provide clear legal interpretations of how these provisions should be applied, building upon existing protective mechanisms. secondly, in judicial practice regarding privacy infringement cases, courts must ensure prompt and fair adjudication while minimizing victims’ burden of proof. this prevents the imbalance of evidentiary responsibilities from compromising legitimate rights. to enhance case handling efficiency, authorities should simultaneously raise public legal awareness and strengthen social oversight mechanisms. the public is encouraged to actively participate in safeguarding personal privacy by reporting violations and exercising supervision. furthermore, media outlets should intensify publicity campaigns and coverage on privacy protection to elevate societal awareness and commitment to safeguarding private information. professor zhang gexin argues that the protection of private information should be categorized, as its manifestation may differ in personal interests or commercial value (wang, y. n., 2023, p. 113). internationally, a categorized approach to privacy protection has been adopted. the european union implemented the general data protection regulation (gdpr), which strictly regulates personal data protection through rights of data subjects, obligations of data processors, and cross-border data transfers. the united states enforces multiple laws including the privacy act and the electronic communications privacy act (ecpa). the privacy act primarily governs federal government handling of personal information, covering collection, usage, disclosure, and confidentiality. the ecpa establishes corresponding protections for communication content and records, explicitly defining service providers’ responsibilities while emphasizing robust security measures for stored private data. in china, information can be classified by source and protection purposes into: 1) personal identification data (e.g., names, id numbers, home addresses); 2) financial data (e.g., bank account numbers, credit card transaction records); 3) health information (e.g., medical records, health check reports); 4) communication data (e.g., emails, texts, chat logs); 5) work-related information (e.g., trade secrets, work documents). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 158 published by scholink inc. 4.3.3 strengthen the protection of users’ private information by internet platforms 4.3.3.1 establish a safety inspection mechanism on internet platforms, users grant websites and apps the right to collect private information. while data processors ultimately benefit from this collection, the rights holders must bear the associated risks. if processors misuse collected data for personal gain through illegal processing, it may jeopardize both the reputation and financial security of rights holders. to address this, data processors must strictly comply with relevant laws and regulations. all information-gathering entities should establish robust information security management systems, ensuring proper custody of personal data while maintaining strict oversight over its collection, storage, usage, and transmission. in the event of data breaches, they must implement appropriate response measures while respecting users’ fundamental rights—including the right to be informed and the right to rectification. within the legal and regulatory framework, individuals who disregard established guidelines for managing private information should face appropriate oversight and penalties. effective supervision ensures that privacy handlers diligently fulfill their duties and adhere to established norms and standards. additionally, compliance with prescribed procedures for processing private information must be monitored. regular inspections should be conducted to ensure the security of user information. a penalty mechanism serves as a crucial regulatory tool. if data handlers neglect their obligations, such as allowing information leaks or data misuse, they should face appropriate penalties including fines and corrective guidance to rectify their actions. these disciplinary measures aim to serve as a deterrent, but should not be excessively harsh. foreign scholars have proposed that applications can display information to users through special labels. by restricting content in conditional sections, apps can prevent third-party leaks of sensitive data. the server within the program promptly clears elements in these sections. private data access is only permitted when users utilize cached images from the server and do not send leakage requests to external servers. only by strengthening the responsibility of private information processors can we effectively protect the private information of rights holders, maintain information security and network order, and promote the healthy development of the information industry. at the same time, it also helps to enhance public trust in information processing activities and promote the smooth operation of society. 4.3.3.2 adjust the burden of proof in both real-world and digital environments, the infringement of personal privacy has become increasingly prevalent. however, in judicial proceedings, individuals often lack sufficient evidence to assert their rights. given circumstances involving presumed fault, presumed causation, and evidentiary collection challenges, implementing an inverted burden of proof should be prioritized. the foshan consumer council in guangdong province recently released a research report titled “research report on evidence difficulties in civil disputes over consumer personal information”, proposing reforms to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 159 published by scholink inc. break away from the conventional burden of proof allocation framework under current laws. this would legally establish provisions for information providers to bear the burden of proving they failed to disclose private information. such an approach better aligns with the nature of information infringement, reduces the evidentiary burden on victims, helps protect citizens’ privacy rights, strengthens accountability for responsible parties, and ultimately curbs such violations at their source. in the past, the burden of proof for information infringement cases followed the “he who asserts must prove” principle. however, with rapid advancements in information technology, infringers can now employ ai face-swapping and voice-altering techniques. additionally, when economic capabilities or political statuses differ between parties, the rule of presumed fault may apply (shen, x., tan, b., & zhai, c. x., 2007, pp. 4-17). when applying article 69(1) of the personal information protection act regarding presumed fault liability, right holders need not prove the processor’s fault. instead, information processors must demonstrate their innocence, shifting the burden of proof to them. this reform significantly reduces the burden on right holders. when personal information is infringed, the no-fault liability principle should be adopted, requiring parties to provide evidence focusing on three essential elements: the infringement act, damages, and causal relationship. after installing an app, users might skip or misread privacy policies in haste. when declining to share personal information, they expect options to reject authorization or revoke partial consent. this allows the app to function properly without hindering usage. if the requested data isn’t essential for the service, developers should promptly respond to such revocation requests. in real-world practice, users exhibit varying levels of acceptance toward information collection and utilization. while some users adamantly reject having all personal data collected, others willingly provide detailed information to help apps and websites better meet their specific needs. therefore, foreign scholars xuehua shen, bin tan, and chengxiang zhai believe that it is necessary to adjust the level of privacy protection for different users to accommodate varying preferences in personalization and privacy protection trade-offs. 4.3.4 strengthen the code of conduct for private information processors regulating the behavior of private information processors is of great significance for safeguarding individual rights and interests, social stability and the development of information industry. 4.3.4.1 strictly follow the obligation of disclosing private information knowledge forms a cornerstone of privacy protection. when right holders fully comprehend how online platforms process personal data, understand the specific purposes behind information collection, and recognize the services these data support, they can more effectively prevent privacy violations. this awareness also streamlines the burden of proof during legal proceedings, ensuring stronger safeguards for data rights. when handling private information, the most crucial aspect is that data processors must inform rights holders about processing purposes, procedures, and necessary matters related to services. however, some notification rules are overly complex and lengthy, making it difficult for users who lack patience www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 160 published by scholink inc. to read them in full. certain notification protocols pose significant comprehension challenges due to insufficient information explaining the intent behind processing such private data. this ambiguity may leave users at a disadvantage in application disputes and undermine the effective protection of their legitimate rights. data processors must promptly, accurately, and comprehensively inform information subjects about every stage of processing private information, including collection, use, storage, and sharing. only with full understanding can rights holders make rational decisions regarding consent to data processing and how to protect their interests. by strictly adhering to privacy notification obligations, we can build trust with users, safeguard their right to information, enhance transparency in data handling, and prevent misunderstandings and disputes caused by information asymmetry. this will also encourage data processors to exercise greater prudence in their operations, align more closely with legal requirements, and fulfill their responsibilities to ensure user protection and information security. 4.3.4.2 use private information wisely first of all, there must be a clear legal purpose, and the collection of information irrelevant to the purpose should not be arbitrary. the method also stipulates that the collected information should be related to the services provided. moreover, before the collection of private information, the explicit consent of the right holder must be obtained. when handling information, strictly adhere to agreed-upon methods and boundaries to ensure data security. implement robust technical safeguards and management protocols to prevent leaks. all collected and utilized materials must undergo thorough review and evaluation. unauthorized use of personal data for illegal purposes is strictly prohibited, and sharing with third parties without proper authorization is forbidden. private information should be destroyed in a timely, thorough and secure manner after use to eliminate hidden dangers. for financial institutions that may pose significant risks, such as banks and insurance companies, establishing relevant regulations is crucial. this requires us to not only collect private information but also ensure its security, thereby preventing employees from exploiting customer privacy leaks or unauthorized access to confidential data for personal gain. 5. conclusion when collecting and using personal confidential information, it is necessary to ensure that it has a legitimate purpose and obtain explicit permission from the rights holder. any unauthorized collection and use is a violation of the privacy rights of others and should be subject to legal sanctions. at the same time, we should ensure that personal confidential information is not improperly used during storage, transmission, and use, and take necessary technical and management measures to safeguard the security of information. through the above measures, we aim to comprehensively protect citizens’ privacy rights, maintain social order and stability. a secure network environment and a society that respects privacy will be more conducive to the flourishing development of the information industry. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 161 published by scholink inc. while promoting innovation in the information industry, we should also ensure that citizens have the right to access personal and private information, allowing them to freely express their voices and share their experiences. references felt, a., & evans, d. (2008). privacy protection for social networking platforms. web, 2008. hoffman, s., & podgurski, a. (2007). in sickness, health, and cyberspace: protecting the security of electronic private health information. bcl rev., 2007(48), 331. jiang, h. y. (2020). on personal information protection in the context of the epidemic—from the perspective of the principle of proportionality. journal of china university of political science and law, 2020(04), 183-194, 209. lu, z. (2021). what is private information?—discussion on the intersection of privacy rights and personal information protection in the civil code. journal of gansu university of political science and law, 2021(01), 86-100. shen, x., tan, b., & zhai, c. x. (2007). privacy protection in personalized search. acm sigir forum. new york, ny, usa: acm, 2007, 41(1): 4-17. https://doi.org/10.1145/1273221.1273222 wang, y. n. (2023). burden of proof allocation in personal information protection disputes. people’s judicial, 2023(17), 113. yu, y., & yu, j. q. (2021). civil law regulation of personal information infringement in the era of big data—from the perspective of personal information collection and use by mobile apps. academic exchange, 2021(05), 64-73. zhang, g. x. (2023). defining the scope of private information and enhancing legal protection. journal of china university of political science and law, 4(2023), 84-96. zhang, g. x. (2023). on notice and consent in the processing of private information. journal of southwest petroleum university (social sciences edition), 25(05), 87-94. zhang, z. w. (2022). the distinction between privacy and personal information: judicial determination standards for private information (shanghai law studies collection, 2022, vol. 13—emerging rights and the rule of law in china, p. 11). department of law, harbin engineering university. https://doi.org/10.1145/1273221.1273222 microsoft word elp-v3n1-p57 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 3, no. 1, 2020 www.scholink.org/ojs/index.php/elp 57 original paper can customer intimacy strategy generate intention to buy? ms. eric santosa1 1 economics & business faculty, unisbank university, semarang, indonesia received: april 11, 2020 accepted: april 21, 2020 online published: may 7, 2020 doi:10.22158/elp.v3n1p57 url: http://dx.doi.org/10.22158/elp.v3n1p57 abstract creating customer intention to buy is obviously a major task of every marketer and/or firm. many tactics are exercised to generate the intention, in which a buying behavior is hopefully occured. a customer intimacy strategy supposedly be a particular way to do it. however, its power to generate the intention hypothetically is not straight forward, but through other variables. it is commonly known, in accordance with the theory of planned behavior (tpb), the intention could be predicted by consumer attitude and subjective norm. meanwhile, the attitude and subjective norm theirself are frequently in-line with the product’s performance. therefore.the purpose of the study is to investigate the power of customer intimacy strategy in creating the customer intention to buy through the product’s brand equity and both the consumer attitude and subjective norm. a 108 sample is withdrawn from those who recognize, are interested of and want to buy dagadu products. amos 16.0 and spss 16.0 are employed in analyzing data. the result shows that the customer intimacy strategy has significant effects to the brand equity, attitude and subjective norm. in addition, the brand equity also has a significant influence to the intention. keywords customer intimacy, brand equity, attitude, subjective norm, intention to buy 1. introduction commonly the consumption goods market contains numbers of likely similar products. it absolutely leads to tight competition among the similar products. while generating customers’ intention to buy is inevitably an obligation of every marketer and/or firm, the goal certainly depends on an efficacy of a selected strategy. a suitable product firstly determines the success of the goal. it should be based on a market preference, otherwise a failure takes place. though the product has high quality and well-designed, but if it is not in accordance with the market preference, the desire is distant. secondly, a situation analysis is should be carefully taken into account (hunger & wheelen, 2001; thompson, strickland iii, & gamble, 2010). while it considers the competitive advantage of the product, the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 58 published by scholink inc. activities or strategy of competitors should be receptively respected. treacy and wiersma (1997) introduce three strategies to generate customers, i.e., product leadership, operational excellence and customer intimacy. they insist not to implement the three simultaneously, since a concentration supposedly is a critical matter. santosa (2011, 2014a) investigates the efficacy of the product leadership and customer intimacy, particularly their effect to brand equity and customer’s loyalty. the results show that their effect whether to brand equity and customer’s loyalty are significant. further, he examines the power of product leadership in generating customers’ intention to buy (2013a, 2015b). the findings demonstrate that through variables such as perceived quality, perceived value and attitude, the product leadership is able to produce the intention. while the product leadership can create the customer’s intention, an interesting question likewise arises as follows, can the customer intimacy strategy establish the intention as well? following the study of santosa (2011, 2014a) the effects of whether the product leadership or customer intimacy to the brand equity are significant. in addition the finding of some studies (i.e., cathy et al., 1995; aydin & ulengin, 2015; hakkak et al., 2015; walangitan et al., 2015) point out that the brand equity significantly affects the intention. furthermore, shin et al. (2014) examine that there are significant effects as well of brand equity to attitude and to the intention, and similarly, santosa (2013a, 2015b) identifies that the brand equity affects the intention through subjective norm. consequently, it is supposed that the customer intimacy strategy can create the intention to buy too. thereby, the purpose of the study is to identify the effect of the customer strategy to the customer intention to buy, particularly through the brand equity, customer attitude, and subjective norm. hopefully, it will be a bridge of other previous study. the findings also will be expectantly support the theory of treacy and wiersma (1997). the empirical data are drawn from dagadu’s customers. it is assumed that the brand is a successful brand which inspired others to imitate it, or try to produce something similar (trieha, 2014; wirausaha online, 2014). some theoretical reviews, our methods and analysis are provided, and our findings are reported. 2. formulating hypotheses a. the relation between customer intimacy and brand equity customer intimacy especially produces a unique one-to-one product design (zeithaml & bitner, 2003). this unique design allows the product to be superior and distinctive (cravens, 2000). it apparently encourages the favorable customer’s cognitive process. furthermore, santosa’s study (2014) indicates that there is an effect of customer intimacy strategy on brand equity. as a result, a hypothesis can be withdrawn as follows: h1: customer intimacy influences brand equity b. the relationship between customer intimacy with attitude and subjective norm while the strategy is on line with the company’s effort to meet consumers’ preferences which is created by the long-term relationship along with customers, the products and/or services produced hopefully are in accordance with the customers; satisfaction (zeithaml & bitner, 2003, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 59 published by scholink inc. http://www.topdimension.eu; agilier, 2014; gruber, 2011; misc, 2014; sandvall, 2013). basically, an attitude is a total evaluation of a concept, which might generated whether by affective or cognitive system. the affective system will produce an affective response, such as moods, emotion, or even an attitude (peter & olson, 2002). an attitude comprises knowledge and perception which are along with experiences and information involved (schiffman & kanuk, 2000). whereas a subjective norm illustrates one’s perception to do something in accordance with other’s wants, it relates his/her motivation to comply the wants (azjen, 1991). thereby, hypotheses can be pulled out as follows: h2: customer intimacy affects one’s attitude h3: customer intimacy affects one’s subjective norm c. the relationship between brand equity with attitude and subjective norm the formulation of the following hypothesis is based on some considerations as follows: (1) brand equity might be depicted as an added value of a brand and/or the product which drives consumers to think, feel and act toward the brand and/or the product (kotler & keller, 2006). (2) brand equity lead consumers to have a favorable attitude toward the brand and/or the product (peter & olson, 2002). (3) brand equity leads to brand attitude which provokes a favorable perception of the brand’s or product’s value and its quality (schiffman & kanuk, 2000). (4) while an attitude is a total evaluation of a concept, generated by whether affective or cognitive system (peter & olson, 2002), which comprises knowledge and perception along with experiences and information involved (schiffman & kanuk, 2000), the finding of shin et al. (2014) denote that there is a significant effects of brand equity to attitude. thereby, the following hypothesis is: h4: brand equity affects one’s attitude furthermore, while a subjective norm illustrates one’s perception to do somthing in accordance with other’s wants, which relates his/her motivation to comply the wants (azjen, 1991), the finding of santosa (2013a, 2015b) demonstrates that the brand equity affects the intention through subjective norm. so, can be hypothesized as follows: h5: brand equity affects one’s subjective norm d. the relationship between brand equity and behavioral intention since an intention supposedly ignited by such driving forces who later on creates a particular behavior, it presumed as an indicator of the behavior probability (ajzen, 1991). in addition, some studies (cathy et al., 1995; shin et al., 2014; aydin & ulengin, 2015; hakkak et al., 2015; walangitan et al., 2015) apparently denote the relationship between brand equity and intention. as a result, a hypothesis might be proposed as follows: h6: brand equity affects behavioral intention www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 60 published by scholink inc. e. the relationship among variables attitude, subjective norm, and intention to buy fishbein and ajzen (1975) proclaim that intention is predicted by attitude and subjective norm. such studies (i.e., jyh, 1998; okun & sloane, 2002; martin & kulinna, 2004; wiethoff, 2004; marrone, 2005; kouthouris & spontis, 2005; santosa, 2013b; santosa, 2014a; santosa, 2014b; santosa, 2015a) support the theory of planned behavior that two predictors of intention are attitude and subjective norm. therefore, such hypotheses can be formulated as follows: h7: the more favorable the attitude is, the greater the behavioral intention will be. h8: the more favorable the subjective norm is, the greater the behavioral intention will be. f. effect of the hypotheses already formulated: an intervene position of the attitude and subjective norm it is hypothesized that brand equity affects the behavioral intention. further, it is hypothesized that brand equity affects both attitude and subjective norm. while it is hypothesized as well that whether attitude or subjective norm affects behavioral intention, consequently, both attitude and subjective norm likely post as mediator. therefore, next hypotheses can be drawn as follows: h9: attitude mediates the relationship between brand equity and behavioral intention h10: subjective norm mediates the relationship between brand equity and behavioral intention 3. research model based on the hypotheses a research model can be developed as follows in figure 1: figure 1. research model www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 61 published by scholink inc. identification: ci : customer intimacy be : brand equity ab : attitude toward behavior sn : subjective norm bi : behavioral intention 4. methods the population of the study is consumers who know dagadu, are interested of and want to buy the products, and live at central java, indonesia. a sample is drawn using the convenience and judgment technique (cooper & schindler, 2008). data are collected by questionnaires, which consist of five items for the customer intimacy variable, four items for the brand equity variables, six items for the attitude variables, six items for the subjective norm variables, and four items for the behavioral intention. they are distributed to respondents who live at semarang, yogyakarta, and other cities at central java. after examining the forms for the data’s completion, 108 out of the 110 questionnaire forms are accepted which supposed meet the sample adequacy (ghozali, 2004, 2007; hair et al., 1995). a likert scale is operated corresponding to a five-point scale ranging from 1 (=completely disagree) to 5 (=completely agree). the instrument, which denotes to indicators, will firstly be justified through confirmatory factor analysis, construct reliability and variance extracted. further, data are analyzed by employing amos 16.0. 5. result and discussion a. confirmatory factor analysis the confirmatory factor analysis is not simultaneously carried out, but done in phases. the first phase contains two variables, i.e., customer intimacy (ci) and subjective norm (sn). the second phase examines two variables, attitude (ab) and behavioral intention (bi). the third phase considers one variable, i.e., brand equity (be). the process illustrated at appendix a, while its result exemplified at table 1. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 62 published by scholink inc. table 1. the result of cfaon variables ci, be, ab, sn and bi indicators loading factor threshold criteria ci1 0.572 0.4 valid ci2 0.485 0.4 valid ci3 0.603 0.4 valid ci4 0.650 0.4 valid ci5 0.641 0.4 valid b 0.929 0.4 valid ev 0.935 0.4 valid nb 0.905 0.4 valid mc 0.919 0.4 valid be1 0.384 0.4 not valid be2 0.535 0.4 valid be3 0.868 0.4 valid be4 0.608 0.4 valid bi1 0.656 0.4 valid bi2 0.781 0.4 valid bi3 0.720 0.4 valid bi4 0.628 0.4 valid source: data analysis. all indicators denote of more than 0.4 which indicate of their validity (ferdinand, 2002) except be1. b. the structural equation model the model has one initial independents variable (ci) and four dependent variables (be, ab, sn, bi) in which the three dependent variables (be, ab, sn) at some extent are treated as independent variables as well. since the purpose of the study is eagerly to know the relationship between the one initial independents variable (ci) and the primary dependent variables (be, ab, sn, bi), likewise among the four dependent variables separately and simultaneously, a structural equation modelling (sem) is employed (hair et al., 1995). in addition, the use of sem will give advantages such as fast, accurate and more detail. it is possible since the method performs a unification of factor analysis and path analysis (ghozali, 2004, 2007). an initial structural equation model is drawn by connecting all variables as hypothesized. this model is likely not thoroughly appropriate to expectancy, since all indicators, i.e., chi-square/prob, cmin/df, gfi, agfi, tli, rmsea, do not meet the criteria (appendix b). consequently, a modification model is generated by connecting e1↔e2 and e3↔e4, this modification model seemingly produces better scores than before (table 2, figure 2). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 63 published by scholink inc. table 2 denotes that although not all the model’s indicators meet the criteria, most (chi-square, cmin/df, gfi, tli and rmsea) equalize the requirements. it means that the model’s data are in accordance with the structural parameter. as a result, the model is worthy of use. evaluation of normality. evaluation of normality is carried out by univariate test (ferdinand, 2002; ghozali, 2004). it is exercised by scrutinizing the skewness value whether its critical ratio values are less or equal to ±2.58. as a matter of fact, there is one variable, i.e., sn, whose c.r of the skewness value are more than ±2.58. as a consequent, it indicates that univariately the data distribution is not normal. to check further, a multivariate test is executed. the result of the data analysis shows up that the multivariate critical value is 18,937. it is more than 2.58 as required (appendix c) . as a result, the normality test needs a bootstrap analysis. table 2. the second indicators resulted from modification indicators initial scores second scores threshold justification chi-square/prob 226.136/0.000 27.172/0.205 40.790/p>0.05 meet the criterion cmin/df 9.422 1.235 ≤ 5 meet the criterion gfi 0.768 0.949 high meet the criterion agfi 0.564 0.896 ≥ 0.9 not meet the criterion tli 0.741 0.903 ≥ 0.9 meet the criterion rmsea 0.281 0.047 0.05 s.d 0.08 meet the criterion source: data analisis. bootstrap analysis. a bootstrap analysis is used to gain a fit model, since the normality test does not meet the pre-requisite. a bollen-stine’s bootstrap analysis illustrates the following: (a) the model fits better in 242 bootstrap samples, (b) it fits equally well in 0 bootstrap samples, (c) it fit worse or failed to fit in 258 bootstrap samples, (d) testing the null hypothesis that the model is correct, bollen-stine bootstrap p=0.517. the result indicates that the probability is more than 0.05 which denotes that it can reject the hull hypothesis. in addition, the model’s indicators of goodness of fit indicate that most meet the requirements (appendix d). consequently, the model is worthy of use. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 64 published by scholink inc. be ab sn bi b ev nb mc ,55 e1 ,43 e2 ,71 e3 ,61 e4 ,04 ,05 ,01 899,95 z3 1182,02 z2 3,77 z4 1 chi-square= 27,172 prob = ,205 cmin/df = 1,235 gfi = ,949 agfi = ,896 tli = ,993 rmsea = ,047 ,05 1 1 1 1 5,83 ci ,30 5,63 7,93 1 4,66 4,70 3,37 z11 ,04 ,01 ,48 1 57 -,29 figure 2. the modification model outliers. evaluation of the outliers can be carried out by either a univariate test or a multivariate test (ferdinand, 2002). the univariate test is successfully employed by firstly converting the data to z-scores, which should be less than ±3.0 (hair et al., 1995). the result indicates that most of the variables’ z-scores are less than ±3.0, except be1, ev3, nb2, and mc3,, which their scores are more than ±3.0 (appendix e). therefore, the existence of outliers is indicated. to check further, a multivariate outliers test is needed. it determines the chi-square value which subsequently is used as the upper limit, which could be calculated by searching on a chi-square table whose degree of freedom is equal to the number of variables employed, which is 17, under the degree of significance (p)=0.001. the chi-square value is found to be 40.790. in fact, most of the scores for mahalanobis’s distance are less than 40.790, except observations number 1, which inevitably suggests outliers (appendix f). however, because there is no specific reason to dismiss them, the outliers are worth being used (ferdinand, 2002). multicollinearity and singularity. according to the output from amos, the determinant of the sample covariance matrix should be equal to 964089,522. this value is far above zero. consequently, it belongs to no multicollinearity or singularity category (appendix g). test of hypotheses. the regression weights output indicates that the influence of ci on be, be on ab and sn, ci on ab and sn, sn on bi, and be on biare significant. the influence of ab on bi under assumption that p<0.10, belongs to be significant as well (table 3). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 65 published by scholink inc. table 3. regression weights: (group number 1-default model) estimate s.e. c.r. p label be <--ci 0,482 0,074 6,561 *** par_11 sn <--be 5,632 1,810 3,111 0,002 par_5 ab <--be 7,934 1,580 5,023 *** par_6 ab <--ci 4,661 1,422 3,277 0,001 par_7 sn <--ci 4,697 1,630 2,881 0,004 par_8 nb <--sn 0,045 0,002 22,044 *** par_1 mc <--sn 0,045 0,002 24,082 *** par_2 bi <--sn 0,011 0,006 2,035 0,042 par_3 b <--ab 0,048 0,002 26,009 *** par_4 ev <--ab 0,044 0,002 27,344 *** par_9 bi <--ab 0,010 0,006 1,650 0,099 par_10 bi <--be 0,304 0,110 2,762 0,006 par_14 source: amos output. intervene position test. based on table 4, the total effects of be-bi=0.426. likewise, it points up the total effects of be-ab (0.441), ab-bi (0.178), be-sn (0.305) and sn-bi (0.199). the sum of the total effects of be-ab and ab-bi is 0,619. whereas the sum of the total effects of be-sn and sn-bi is 0.504. these mean that whether the sum of the total effects of be-ab and ab-bi or the sum of the total effects of be-sn and sn-bi is bigger than the total effects of be-bi. consequently, both ab and sn are mediators. table 4. standardized total effects ci be ab sn be 0.536 0.000 0/000 0.000 ab 0.524 0.441 0000 0.000 sn 0.446 0.305 0.000 0.000 ev 0.490 0.412 0.935 0.000 b 0.486 0.409 0.929 0.000 bi 0.336 0.426 0.178 0.199 mc 0.410 0.280 0.000 0.919 nb 0.404 0.276 0.000 0.905 source: amos output. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 66 published by scholink inc. 6. discussion table 3 shows that the influence of ci to be is denoted by p=0.000. it means that the influence of ci to be is significant. likewise the influences of ci to ab and ci to sn belong to be significant as well, since their probabilities are less than 0.05 (p=0.001 and p=0.004). the probabilities of be to ab, be to sn, and be to bi are also less than 0.05, indicating that the influence of the variables are significant (p=0.000, p=0.002, and p=0.006). while the influence of sn to bi is positively less than 0.05 (p=0.042), the influence of ab to bi has probability more than 0.05 (p=0.088). however,it can be categorized to be significant when the threshold is altered from 0.05 to 0.10. testing of intervene position indicates that whether the indirect effect of be to bi through ab, or the indirect effect of be to bi through sn, is bigger than the direct effect. consequently, both ab and sn post as mediators. 7. conclusion the hypotheses of, i.e., “customer intimacy influences brand equity (h1)”, “customer intimacy affects one’s attitude (h2)” and “customer intimacy affects one’s subjective norm (h3)” are really empirically supported. likewise, the hypotheses of “brand equity affects one’s attitude (h4)”, “brand equity affects one’s subjective norm (h5)”, and “brand equity affects behavioral intention (h6)” are also empirically supported. the findings are in accordance with studies of shin et al. (2014), santosa (2015), cathy et al. (1995), aydin (2015), hakkak (2015) walangitan et al. (2015). the influence of both attitude and subjective norm to behavioral intention (h7, h8) are also empirically supported. the findings are also in favor with other studies such as jyh (1998) okun and sloane (2002),martin and kulinna (2004), wiethoff (2004), marrone (2005), kouthouris and spontis (2005), santosa (2013), santosa (2014) and santosa (2015), that support the theory of planned behavior, in which attitude and subjective norm are predictors of behavioral intention. this can be explained by the intention to buy, while being determined by attitude (fishbein & ajzen, 1975), and likewise shaped by the subjective norm, obviously suggests that whatever happens to the attitude or the subjective norm, the intention to buy apparently also follows, and the alteration of intention to buy is in accordance with the change of them. the hypotheses of ab and sn as mediators (h9, h10) are also supported. as a matter of fact, all hypotheses are successfully proven. the consequences of the study carries out two things, firstly that the findings contribute as a bridge of other previous studies. secondly the study justifies the theory of treacy and wiersma (1997). back to the title of the manuscript, i.e., “can customer intimacy strategy generate customer intention to buy?” the answer is, yes and not. the meaning of yes is, that the effect of the customer intimacy strategy later on generates the behavioral intention, particularly intention to buy. whereas the meaning of not is, the stategy could not directly generate the intention. however, it is empirically supported that customer strategy leads to the creation of behavioral intention, particularly intention to buy, whether www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 67 published by scholink inc. through brand equity, through both brand equity-attitude and brand equity-subjective norm, or through both attitude and subjective norm. 8. limitations and future directions there are some limitations of the study, firstly, the customer intimacy is supposed operated by indicators as follows, the diversification of the product is in line with consumers’ taste; the product’s message is personal; customer oriented; managers, staffs and employees are responsive; and personalized program. they are fully genuine which are not employed in such topic beforehand. though based on cfa test they belong to valid indicators (table 1), it is not impossible that other indicators might be employed which might contribute better results. secondly, it likely the model is not in accordance with the title. the customer intimacy variable is not directly regressed to the behavioral intention variable. it is based on such point of view as follows. since an intention to buy does not likely arise spontaneously but through something impressively, the brand equity variable is supposed worthy to trigger the intention. however, it might be possible, under such assumption, that the customer intimacy is regressed directly to the intention. thereby, it is recoomended to carry out such study which firstly, exploring other indicators of the customer intimacy variable. secondly, developing other model that leads to regress directy the customer intimacy to the intention. references agilier. (2014). discipline of the market makers by michael treacy and fred wiersma. retrieved may 8, 2014, from http://www.agilier.com/book-reviews/ ajzen, i. (1991). the theory of planned behavior. organizational behavior and human decision processes, 50, 179-211. https://doi.org/10.1016/0749-5978(91)90020-t ajzen, i., & fishbein, m. (1980). understanding attitudes and predicting social behavior. englewood cliffs, nj: prentice hall. aydin, g., & ulengin, b. (2015). effect of consumer-based brand equity on purchase intention: considering socioeconomic status and gender as moderating effects. journal of euromarketing, 24, 107-118. https://doi.org/10.9768/0024.02-3.107 cathy, j., walgren, c., ruble, c. a., & donthu, n. (1995). brand equity, brand preference, and purchase intent. journal of advertising, 24(3), 25-40. https://doi.org/10.1080/00913367.1995.10673481 cooper, d. r., & schindler, p. s. (2008). business research methods. boston: mcgraw-hill/irwin. cravens, d. w. 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(2013b). understanding customers’ behavior to choicing “lembah ngosit” restaurant using the theory of planned behavior. equilibrium, v(1), 40-55. santosa, m. s. e. (2014a). can product leadership be a predictor of a customer’s loyalty? journal of inonesian economy and business, 29(1), 74-88. https://doi.org/10.22146/jieb.v29i1.6214 santosa, m. s. e. (2014b). pengaruh efek atraksi terhadap pengambilan keputusan konsumen menurut teori perilaku yang terencanakan (theory of planned behavior). unisbank: penelitian belum dipublikasikan. santosa, m. s. e. (2015a). attraction effect on consumer’s decision making. international journal of applied busines and research (ijaber), 13(4), 1758-1780. santosa, m. s. e. (2015b). the power of product leadership in generating customers’ intention to buy: the case of dagadu. journal of inonesian economy and business, 30(2), 159-172. schiffman, l. g., & kanuk, l. l. (2000). consumer behavior (7th ed.). upper saddle river, new jersey: prentice-hall inc. shin, n., kim, h., lim, s., & kim, c. (2014). the effect of brand equity on brand attitude and brand loyalty in exhibition. shs web om conferences, 12, 1-7. https://doi.org/10.1051/shsconf/20141201018 thompson, a. a., strickland, a. j. iii, & gamble, j. e. (2010). crafting and executing strategy: the quest for competitive advantage (17th ed.). boston: mcgraw-hill irwin. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 70 published by scholink inc. treacy, m., & wiersma, f. (1997). the discipline of market leaders: choose your customers, narrow your focus, dominate your market. massachusetts: addison-wesley. trieha, u. (2014). branding “dagadu”, inspirasi tumbuhnya bisnis penjualan kaos oblong khas daerah. retrieved june 5, 2015, from http://ensiklo.com/ walangitan, a., pangemanan, s. s., & rumokoy, f. s. (2015). analyzing the impact of brand equity on consumer purchase intention of etude house cosmetic product in manadol. jurnal emba, 3(2), 758-766. wiethoff, c. (2004). motivation to learn and diversity training: application of the theory of planned behavior. human resource development quarterly, 15(3). https://doi.org/10.1002/hrdq.1103 wirausaha online. (2014). belajar dari kisahsukses kaos dagadu. retrieved june 5, 2015, from http:// menjadiwirausaha.com/ zeithaml, v. a., & bitner, m. j. (2003). services marketing (3rd ed.). boston: mcgraw-hill. appendixes appendix a chi-square= 44,185 prob = ,003 cmin/df = 2,008 gfi = ,922 agfi = ,839 tli = ,968 rmsea = ,097 ci1 ci2 ci3 ci4 ci5 ,37 e1 1 ,55 e2 1 ,66 e3 1 ,33 e4 1 ,31 e5 1 5,83 ci ,18 ,17,25,20 ,19 1609,36 sn nb mc ,71 e6 ,61 e7 ,04 ,05 1 1 43,22 -,57 -,21-,28 -,28 ,21 standardized regression weights: (group number 1 default model) estimate ci1 <--ci ,572 ci2 <--ci ,485 ci3 <--ci ,603 ci4 <--ci ,650 ci5 <--ci ,641 nb <--sn ,905 mc <--sn ,919 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 71 published by scholink inc. 1532,11 ab 5,38 bi b ev ,55 e1 ,43 e2 chi-square= 71,372 prob = ,000 cmin/df = 4,198 gfi = ,868 agfi = ,721 tli = ,921 rmsea = ,173 1 ,04 -,29 40,77 ,05 1 bi1 bi2 bi3 bi4 ,50 e3 1 ,22 e4 1 ,24 e5 1 ,55 e6 1 ,26 ,25 ,22 ,26 -,31 -,21 -,22 standardized regression weights: (group number 1 default model) chi-square= ,587 prob = ,444 cmin/df = ,587 gfi = ,997 agfi = ,973 tli = 1,059 rmsea = ,000 be1 be2 be3 be4 ,55 e8 1 ,60 e9 1 -,09 e10 1 ,66 e11 1 ,17 be ,24 ,452,27 1,00 ,18 estimate ev <--ab ,935 b <--ab ,929 bi1 <--bi ,656 bi2 <--bi ,781 bi3 <--bi ,720 bi4 <--bi ,628 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 72 published by scholink inc. standardized regression weights: (group number 1 default model) estimate be1 <--be ,134 be2 <--be ,232 be3 <--be 1,055 be4 <--be ,455 appendix b be ab sn bi b ev nb mc .55 e1 .43 e2 .71 e3 .61 e4 .04 .05 .01 899.95 z3 1182.02 z2 3.77 z4 1 chi-square= 226.136 prob = .000 cmin/df = 9.422 gfi = .768 agfi = .564 tli = .741 rmsea = .281 .05 1 1 1 1 5.83 ci 5.63 7.93 1 4.66 4.70 3.37 z11 .04 .01 .48 1 .30 appendix c assessment of normality (group number 1) variable min max skew c.r. kurtosis c.r. ci 14,000 25,000 ,208 ,883 -,166 -,353 be 8,000 20,000 -,020 -,086 ,451 ,958 ab 36,000 225,000 ,556 2,359 ,077 ,164 sn 49,000 225,000 ,902 3,825 ,661 1,401 ev 6,000 15,000 ,083 ,354 -,315 -,669 b 6,000 15,000 ,066 ,280 -,311 -,660 bi 10,000 20,000 -,108 -,459 -,746 -1,582 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 73 published by scholink inc. variable min max skew c.r. kurtosis c.r. mc 6,000 15,000 ,213 ,904 -,157 -,333 nb 6,000 15,000 ,280 1,186 -,023 -,048 multivariate 51,281 18,937 appendix d bootstrap be ab sn bi b ev nb mc ,55 e1 ,43 e2 ,71 e3 ,61 e4 ,04 ,05 ,01 899,95 z3 1182,02 z2 3,77 z4 1 chi-square= 27,172 prob = ,205 cmin/df = 1,235 gfi = ,949 agfi = ,896 tli = ,993 rmsea = ,047 ,05 1 1 1 1 5,83 ci ,30 5,63 7,93 1 4,66 4,70 3,37 z11 ,04 ,01 ,48 1 57 -,29 the model fit better in 242 bootstrap samples. it fit about equally well in 0 bootstrap samples. it fit worse or failed to fit in 258 bootstrap samples. testing the null hypothesis that the model is correct, bollen-stine bootstrap p = ,517 appendix e z-score descriptive statistics n minimum maximum mean std. deviation zscore(ci1) 108 -2.70605 1.33432 .0000000 1.00000000 zscore(ci2) 108 -2.52334 1.56447 -3.3452889e-16 1.00000000 zscore(ci3) 108 -2.32287 2.17704 -3.0619295e-15 1.00000000 zscore(ci4) 108 -2.44008 1.51285 .0000000 1.00000000 zscore(ci5) 108 -1.33302 1.40920 -1.3445716e-16 1.00000000 zscore(ci) 108 -1.96178 2.57245 -1.1079784e-16 1.00000000 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 74 published by scholink inc. zscore(be1) 108 -3.03427 1.20324 .0000000 1.00000000 zscore(be2) 108 -2.21312 1.66283 -3.5481533e-16 1.00000000 zscore(be3) 108 -1.87760 1.63883 .0000000 1.00000000 zscore(be4) 108 -1.18050 2.42783 -4.5369456e-16 1.00000000 zscore(be) 108 -1.72088 2.77562 .0000000 1.00000000 zscore(b1) 108 -1.85733 2.07584 .0000000 1.00000000 zscore(b2) 108 -2.90618 1.81363 .0000000 1.00000000 zscore(b3) 108 -2.12067 1.78329 -1.8905432e-15 1.00000000 zscore(b) 108 -2.24160 2.23239 .0000000 1.00000000 zscore(ev1) 108 -2.04799 2.23297 -1.1486601e-15 1.00000000 zscore(ev2) 108 -1.83790 2.02885 -2.0027205e-16 1.00000000 zscore(ev3) 108 -3.42527 2.05516 .0000000 1.00000000 zscore(ev) 108 -2.35508 2.50508 -3.6364543e-15 1.00000000 zscore(ab) 108 -1.93993 2.86621 -7.1187952e-16 1.00000000 zscore(nb1) 108 -2.71512 1.88461 .0000000 1.00000000 zscore(nb2) 108 -3.01569 1.82735 .0000000 1.00000000 zscore(nb3) 108 -2.50276 1.83358 -6.0578801e-16 1.00000000 zscore(nb) 108 -2.30177 2.21807 -3.0291404e-15 1.00000000 zscore(mc1) 108 -1.74651 2.02596 .0000000 1.00000000 zscore(mc2) 108 -2.87243 1.95593 -6.5612697e-16 1.00000000 zscore(mc3) 108 -3.58134 1.94415 -1.1846798e-15 1.00000000 zscore(mc) 108 -2.18845 2.32784 .0000000 1.00000000 zscore(sn) 108 -1.57186 2.79497 .0000000 1.00000000 zscore(bi1) 108 -1.67818 1.87562 .0000000 1.00000000 zscore(bi2) 108 -2.13844 1.82073 .0000000 1.00000000 zscore(bi3) 108 -1.38206 1.43421 -5.0588321e-16 1.00000000 zscore(bi4) 108 -2.66158 .91664 .0000000 1.00000000 zscore(bi) 108 -2.24465 2.04601 .0000000 1.00000000 valid n (listwise) 108 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 75 published by scholink inc. appendix f observations farthest from the centroid (mahalanobis distance) (group number 1) observation number mahalanobis d-squared p1 p2 79 63,860 ,000 ,000 78 32,016 ,000 ,000 31 26,357 ,002 ,001 80 25,098 ,003 ,000 61 25,068 ,003 ,000 73 24,734 ,003 ,000 76 24,025 ,004 ,000 92 23,315 ,006 ,000 88 23,315 ,006 ,000 95 19,555 ,021 ,000 44 18,843 ,027 ,000 28 17,811 ,037 ,001 41 16,136 ,064 ,021 6 15,529 ,077 ,039 48 15,032 ,090 ,061 23 14,275 ,113 ,157 5 14,023 ,122 ,159 38 13,617 ,137 ,217 97 13,555 ,139 ,166 35 12,999 ,163 ,300 45 12,989 ,163 ,223 74 12,533 ,185 ,344 50 12,224 ,201 ,415 67 11,910 ,218 ,499 72 11,739 ,228 ,507 30 11,160 ,265 ,748 94 11,121 ,267 ,694 25 10,788 ,291 ,793 71 10,667 ,299 ,787 105 10,227 ,332 ,906 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 76 published by scholink inc. observation number mahalanobis d-squared p1 p2 69 10,120 ,341 ,901 55 9,774 ,369 ,954 19 9,725 ,373 ,942 53 9,399 ,401 ,975 54 8,870 ,449 ,997 39 8,824 ,454 ,996 49 8,802 ,456 ,993 64 8,775 ,458 ,990 13 8,123 ,522 1,000 81 8,096 ,524 1,000 70 8,029 ,531 ,999 40 7,958 ,538 ,999 46 7,772 ,557 1,000 3 7,743 ,560 ,999 93 7,736 ,561 ,999 42 7,659 ,569 ,999 22 7,548 ,580 ,999 24 7,377 ,598 1,000 66 7,231 ,613 1,000 102 7,224 ,614 ,999 16 7,181 ,618 ,999 86 7,148 ,622 ,999 63 7,120 ,625 ,998 17 7,062 ,631 ,998 57 6,994 ,638 ,998 84 6,585 ,680 1,000 33 6,498 ,689 1,000 91 6,489 ,690 1,000 34 6,486 ,690 ,999 96 6,377 ,702 1,000 68 6,090 ,731 1,000 11 6,072 ,733 1,000 14 5,857 ,754 1,000 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 77 published by scholink inc. observation number mahalanobis d-squared p1 p2 52 5,799 ,760 1,000 9 5,762 ,764 1,000 87 5,723 ,767 1,000 62 5,243 ,813 1,000 12 5,138 ,822 1,000 10 5,120 ,824 1,000 26 5,100 ,825 1,000 21 4,913 ,842 1,000 51 4,817 ,850 1,000 100 4,603 ,867 1,000 90 4,577 ,870 1,000 103 4,558 ,871 1,000 85 4,493 ,876 1,000 99 4,472 ,878 1,000 56 4,325 ,889 1,000 58 4,314 ,890 1,000 7 4,170 ,900 1,000 47 4,162 ,900 1,000 32 4,129 ,903 1,000 108 4,063 ,907 1,000 27 3,936 ,916 1,000 4 3,867 ,920 1,000 75 3,858 ,921 1,000 89 3,626 ,934 1,000 18 3,597 ,936 1,000 106 3,427 ,945 1,000 36 3,208 ,955 1,000 29 3,200 ,956 1,000 77 3,199 ,956 1,000 82 3,197 ,956 1,000 15 3,082 ,961 1,000 37 2,924 ,967 1,000 65 2,534 ,980 1,000 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 78 published by scholink inc. observation number mahalanobis d-squared p1 p2 8 2,528 ,980 1,000 104 2,514 ,981 1,000 2 2,479 ,981 1,000 60 2,427 ,983 1,000 appendix g sample covariances (group number 1) ci be ab sn ev b bi mc nb ci 5,831 be 2,812 4,727 ab 49,486 50,609 1532,112 sn 43,224 39,831 815,399 1609,358 ev 2,068 2,152 67,480 34,225 3,397 b 2,613 2,479 72,826 42,321 2,918 4,009 bi 1,908 2,422 40,767 39,030 1,759 1,956 5,382 mc 1,902 1,949 35,804 73,114 1,471 1,798 1,648 3,934 nb 2,094 1,688 38,277 71,980 1,641 2,083 1,911 2,697 3,928 condition number=29270,467 eigenvalues 2401,867 757,603 5,142 3,689 2,208 1,164,745,178,082 determinant of sample covariance matrix=964089,522 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 3, 2023 www.scholink.org/ojs/index.php/elp 1 original paper the new history of urbanization representation: another face of new century novels ming shen 1 , zhijie jia 2* , xincun chen 1 & zeyu kou 3 1 school of guangxi vocational university of agriculture, nanning 530007, china 2 school of national university of malaysia, selangor 410500, malaysia 3 school of tunku abdul rahman university of malaysia, selangor 410500, malaysia * zhijie jia, school of national university of malaysia, selangor 410500, malaysia received: july 4, 2023 accepted: july 13, 2023 online published: october 11, 2023 doi:10.22158/elp.v6n3p1 url: http://dx.doi.org/10.22158/elp.v6n3p1 abstract from de-urbanization to urbanization, china has created a new history, it has mainly undergone a gradual transition from integration to diversification. based on the actual cities in china in the new century after reform and opening up, one period of time which born at the end of 1978, we tend to interrogate the urban novel for corresponding to rural novel, is a reflection on cultural integration and de-urbanization. from three aspects including the transcendence of modernity, the urban and rural spatial narrative of new century novels and the presentation of urban landscapes, considering the recursive reality from rural china to urban china, we attempt to explore how the novel text represents china's urbanization, dig out the manifestations of human’s survival in the process of urbanization in china in the new century after seeking roots in rural areas, thus mirroring the mixed urban habitats of multiple ethnic groups in guangxi. keywords urbanization, new century novels, existence, urban and rural space, theme supergram www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 2 published by scholink inc. 1. introduction in the field of economy and culture, mainland china has undergone dramatic changes from the countryside to the cities, and there is a cohesive field affecting each other. the process of urbanization affects the literary motif, and the embodiment of literary react on the development of the city by reflecting or pursuing. urbanization and literariness generate intertextuality. to a certain extent, the interaction mirrors the relationship between cities, beings and society to achieve the effect of symbiosis. “the city is the continuous double construction of urban life added to literary forms and literary forms added to urban life” (chen, 2016, p. 56). from this point of view, there is a certain degree of co-construction relationship between literature and social processes. therefore, urban china has created a “new consciousness china” in the literary field that is different from the previous rural china. the symbiosis of urbanized china and literary urbanization present a regular sequence. urbanization affects social values of human beings which are reflected in literary works in the form of reflecting the process of urbanization, while urbanization reveals the spiritual ecology of urban people which reacts to economic and social development. according to marx, “the modern city is the urbanization of the country, not the ruralization of the ancient city” (richard, 2009, p. 3). chinese urban novels from the late 1990s to the new century use high-rise buildings as textual images symbolizing desire and beings. le corbusier’s urbanization theory of high-rise buildings also proves the inevitability of architecture in the process of urbanization. in mainland china, the urbanization process follows the tall buildings with a secular face, thus it refers to single value of the urban literature. mainland china’s new century novels mirror the daily life in the whole process of urbanization including mass media, queer culture. it forms rather mixed metropolis and urban matrix cultural carrier. the diverse cultural field weaves the so-called recursive framework of inter-generational conflict and integration. “culture is always a mixture formed by interaction and migration” (karl & friedrich, 2001, p. 480). therefore, most of the new century novels in mainland china have a tangled relationship with the urbanization process of contemporary china. there are reciprocal action between the shaping of urbanization to new century novels and the demonstration of urbanization in new century novels. the new century urban novels in guangxi is different from urban writing in other regions of china. due to the guide of “economically backward, culture first”, coupled with transitivity and modernity in the emphasis on life consciousness, guangxi’s new century urban novels reveal the wild nature of guangxi as a region. we mainly interrogate urban novels corresponding to rural novels in the literary sense. therefore, contemporary urbanization really began in the 1980s. based on the recursive case from rural china to urban china, we argue that how novel texts represent urbanized china, how human experience their beings in new century after root-seeking from three aspects, namely, urban and rural space narrative, urban landscape presentation and original living conditions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 3 published by scholink inc. 2. from rural china to urban china: modernity theme transcendence in the perspective of society and literature from rural china to urban china, the sequence of development is presented by the transcendence of social structure and literary motif. the transcendence here refers to the transcendence and alternation of the previous beings. from the may 4th movement to 1940s, rural china and chinese cities are definitely not rural and urban in the modern sense. in the context of globalization, the current urban china has realized a kind of digital change in the modern sense of cultural flatness. at present, most of the chinese in the world live in cities or feel the modern field of network globalization and cultural flatness. since bai juyi’s “moderate seclusion” in ancient times, most of chinese have not been aware of the collective unconsciousness about living in the city. the texts created by literati originates form the living experience of the city, not the countryside. the city has always been the center of chinese culture. as the chinese field of urbanization, it is shown by the modern novel in the new century. in essence, it is a kind of dynamic generation of non-modern rural novels and vivid expression of urban habitat under the circumstance of worldwide network and culture. the multi-faceted and heterogeneous nature of globalization has led mainland china to embark on a homogeneous process with latecomer advantages, which has taken extreme urbanization as a sign of economic development. under the guidance of reform, opening up and market economic policies, contemporary china, gathering advantages such as globalized economy and culture, has gradually announced a large-scale migration of rural areas into cities. the shackles of the household registration system are gradually fading under the control of the government. thus, large numbers of rural people have slipped into the cities. transposition layer by layer, led by the collusion of urban capital and the government, generates the mixed connection of urban, suburban and rural spaces. further more, urban space gathers rural imagination and controls rural vitality. this outstanding feature of urbanization gives novels in the new century another dimension. in recent decades, economic development has been the center of mainland china, which has promoted the urbanization trend at an astonishing speed. after china’s reform and opening up, politics, economy, culture, society and other fields are basically under the aesthetic witnessing of urbanization process. new urban characters such as new citizens, slaves of desire, alien bottom class, alienation of survival, etc., and new urban images such as information network, towering buildings, and luxury items shown in urban novels all intertextualize with the reality of urbanization after the reform and opening up. therefore, this change is evident in the field of literature, especially in the text form of novels. since 2000, chinese novels have shown a time wonder in the sense of the times. it clearly refers to china’s rapid urbanization process in the past 20 years. in novels of the new century, skyscrapers, highways, five-star hotels and other typical symbols of modern cities can be seen everywhere, and mental states such as material desire, power struggle, and love sinking can be found everywhere. from the reform and opening up to the early 1990s, chinese writers’ style of writing conformed to the times, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 4 published by scholink inc. and most of them focused on reflective literature, root-seeking literature, educated youth literature, and pioneer literature. “in the past, chinese writers were all peasants, and they were only good at writing about rural areas, not urban areas” (michael, 2003, p. 149). jia pingwa, who is proficient in root-seeking literature, wrote the rural china under the consciousness of writers and the changes of the times based on the rural shanxi before the 1990s. jia pingwa wrote the city as a village in his book abandoned city, which marked the fall of rural writing and the opening of urban writing. the peak of chinese urban writing is mainly concentrated in the new century. the fluidity and openness of the city are in contrast to the solidity and conservatism of the countryside. the globalization of urban space determines that it is full of vitality and innovation, but at the same time it can hide dirt. in the late 1990s, a writing group known as the late generation emerged in the chinese literary circle. the cities described by them feature the unique era symbols of china in the 1990s, such as business, official corruption, and love games. the dark sides such as prostitution and whoring are also dealt with calmly and objectively in the novels of the late generation. compared with the literary works of the previous 40 years, from the late 1990s to the new century, the entire literary field has a completely new pattern, and at the same time shows a distinct imprint of the times. in terms of themes, it seems that it permeates the urban space on the surface and was popular in the 1990s. in essence, it is rooted in and the result of the release of human desires. it is mostly reflected in the desire for money and power violence. the characters written by writers of the late generation are often troubled by money and desire, full of yearning for power, and buried in common violence. “when the writers of the late generation put their narrative goals on a large scale to the reality of common people’s existence, a desire-based narrative law was gradually established, including that he dun and others’ obsession with money ” (huang, 2010, p. 119). this kind of fickleness on the theme is an overcoming of the folk character. the local writing novels still occupied the main position of chinese culture in the 1970s and 1980s. the narration of the land can best demonstrate the folk characteristics of the works, while the carnival presentation of the city refers to the existence of a non-beautiful state. “the rural population is attached to the land. generations of people have never left the land. it is normal for farmers to live on this land, and it is abnormal to leave their hometown” (hong, 1996, p. 60). a large number of rural groups who have merged into the urban space will inevitably change their original state of existence in the process of urban space organization and construction. in the text of the novel, this urbanization of space and people embodies the complex expression of the conspiracy of power and capital in the process of urbanization in the text of the novel. relationships, as well as the significance of human nature and ethnic groups, outsiders and local households in the city take the initiative to get close and communicate with the cultural traditions, so as to achieve a state of coupled symbiosis. the existence of non-beauty or original-beauty by farmers entering the city brings about structural transformation of urban ecology. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 5 published by scholink inc. generally speaking, in terms of themes, most novels in the new century involve the process of rapid urban evolution. narrative forms such as the trivial daily narrative in a troubled life, the grass-rooted narrative in above the wheat field, and the narrative of migrant workers entering the city in the fate of tampering are all different from the popular culture, traditional concepts, confucianism and buddhism in rural china before, which take the current social reality in the process of urbanization as the object of expression. looking at the new century literature from the perspective of urbanization, we can find that the urbanization in the novels has a strong impact on daily life and people’s living conditions. to some extent, “most new century literature writes about cities to varying degrees, reflecting the changes of contemporary urban culture in the process of urbanization” (fei, 2012, p. 4). and we are concerned that in urban writing, guangxi writers not only show the original beauty of urban space, but also focus on building a beautiful and harmonious state, an ideal urban living space. and pursuing the cultural significance and aesthetic value of this urban space is not unrelated to the unique living environment and lagging economic development of guangxi province. of course, writers’ strong desire to write under the premise of survival collides with the multi-ethnic culture in the land, that brings the bright future of urban text from the new group of gui, synonym of guangxi. 3. the narrative subject, imagination and construction of urban and rural space the complexity and entanglement of the relationship between urban and rural areas exists in the conflict of ideas and value systems. the praise of the countryside and the criticism of the city in novels in the new century are based on the monotonous value judgment of the city and the blindness of self-living space. since the may 4th movement, most literary works have pointed to the disorder and evil of the city for the uplifting of the countryside. however, the development of chinese cities was in a state of unbalanced growth in both the republic of china and the contemporary era. looking back at the development trajectory of post-modern european and american cities, china’s urbanization process is still in the growth mode of the post-industrial era. no doubt, in recent years mainland china proposed the construction of ecological civilization in 2009, just because it realized the unbalanced development of urban and rural areas and the fragmented damage to the natural environment. 3.1 underlying narratives in conflict “literature is a symbolic act of society” (wang, 2011, p. 29). therefore, the evolution of the urban-rural relationship and its consequences are symbolically presented through literary texts. the anxiety of social reality in modern and contemporary china refers to the conflict and confrontation between the moral rights mechanism between urban and rural areas. the entanglement between agriculture and urban civilization has become an important evidence of chinese development. the reconstruction of urban functions and values is based on the change of traditional peasant identities. the land complex runs through the rural and urban, traditional and contemporary contradictions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 6 published by scholink inc. “only those who make a living by farming understand the value of the soil. the city people despise the country people with rusticity, but for the latter, soil is their lifeblood. the land, as god, which is close to human nature, occupies the highest position of the gods” (henri, 2007, p. 61). the essential difference between urban and rural spaces in novels in the new century lies in the landlessness and homesickness of the city, and the imagination and return of the countryside. to a certain extent, the collision between the countryside and the city is rooted in taoism, ecological aesthetics, and heidegger’s ontology, expressing laozi’s theory of heaven, earth, man and god, the ancient thought of “harmony between man and nature”, heidegger’s quartet game theory and the pursuit of harmony and neutrality, which is evident in guangxi literature. urban writing and city novels in contemporary literature are two prefaces. urban writing is the necessity of urban novels, but it is not the specific dimension of urban novels. based on our research, city novels are a form of fiction that covers a wider range than urban literature. it should cover the novels of the large and medium-sized cities in mainland china. as far as the performance of the object is concerned, city novels involve more aspects than urban fictions. citizens, including urban migrants, migrant workers, beggars and other low-level people, are the concrete representation of urbanization described in city novels. from the point of view of connotation, city novels should have obvious city consciousness. city novels are “texts that describe individuals in urban space and their urban life, have a relatively clear expression of city consciousness in the text, and are created by writers with a long period of experience in urban life” (fei, 2012, p. 8). the writing of urban and rural spaces in city novels has obvious differences from the comparison between urban and rural areas in rural novels. the urban and rural space of rural novels is based on the soothing reproduction of rural scenery and the painful squeeze of urban space. for example, in the stone city of lan baiyang written by yang yingchuan, a novelist in the new century, the countryside in the text is homeland, harmonious, and natural, while the city is a highly control mechanism, a machine of desire, and the source of evil. but not all rural novels or urban novels describe the existence of urban-rural opposition in such a dualistic and opposing dimension. the complexity and tonality of the relationship between urban and rural areas needs to be considered in the local politics of morality and structure between urban and rural areas. the meaning of the existence of the city must also be confirmed by its entanglement with the rural countryside as the other. in the novels of the new century, the urban field is constructed by the reconstruction of rural space and the transformation of people who enter the city. transformation and resistance, conflict and opposition are placed in the context of globalization, referring to the local resistance to globalization. thus, the moral difference in urban and rural spatial narratives has led to a disordered state of social space. the underlying narrative is the means of demonstrating the urban-rural relations. after migrant workers entered the city, as the main body of the countryside, the strong moral law of the rural they accepted was replaced by the indifferent social logic in the city, and the process of urban norms gradually oppressing the lower class did not change the status of migrant workers and prostitutes. in the text, a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 7 published by scholink inc. large number of migrants from the rural still demand the direction of the urban culture based on the moral judgment standard of the rural culture, and resist the process of the urban culture. actually, the bottom-level characters are not bound by the moral values of both, so that there is an alienated image of indulgence. the cause of the disorder is that people who have broken away from the norms of local culture and resist modern cultural norms perceive themselves as being in the cracks, leading to an independent individual for survival, neither country nor city. “sharing the same cultural pattern, finding a place in a national system of interdependent activities, participating as a citizen in the activities of various organizations that constitute public life” (gong, 2021, p. 17), has become an impossible behavior for the image of the bottom. unable to integrate into the city, most of them are alienated, rebellious, and depraved. it is inevitable to become victims of urban-rural spatial entanglement. however, the abuse of the binary opposition mode in the text weakens the power of the text, such as digging out the evil side of urban human nature from the urban-rural opposition thinking mode in a biased way. citizens are the concrete figures, while the images of the bottom refer to the pain of living after entering the city. the images of men and women portrayed in novels in the 1990s tend to be typified, and the essential difference between male and female urban novelists lies in the macro and micro aesthetic observation of the city. the women described by female urban novelists in the 1990s are roughly divided into traditional women, white-collar beauties, urban newcomers, low-level women and urban migrant girls. white-collar beauties and urban newcomers are typical stereotyped female characters. new images of women, created by wei hui and mian mian, rebelling against tradition and playing with men in the games of love, convey a disdain for discipline and a rebellion against reality. human beings focusing on the desire are inevitable outside the mainstream culture, and their typified characteristics are manifested in the carnival of desire, the betrayal of the mainstream and the barrenness of spirit. in a certain period of time, they appear in the texts of many female writers, forming a tendency to typify. it is worth noting that some scholars believe that “female writers are best at expressing such delicate and sensitive folk writings, digging out enthusiastic or entangled citizens’ personalities” (fayve, 2005, p. 75). according to their point of view, female urban novelists can best express this kind of regionalized cultural genes. however, whether female writers can express the connotation of the city better than male writers, we believe that there is a certain entanglement between materialization and dematerialization. the independent personality of female writers in the 1990s was not complete. wei hui and mian mian’s self-materialized and lin bai’s forced compromise, all show a passive acceptance of desire. and not all male writers view and ponder them from the perspective of god. the urban novels of qiu huadong, li feng, etc., affirm women as a new independent image of the city from male power, referring directly to the conflict and entanglement between traditional and modern culture. after stripping off the traditional shell, women will naturally perceive the emerging world by themselves. of course, the traditional position of women is as the margin out of region mainstream. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 8 published by scholink inc. both are indeed possible to reach a consensus to some extent. 3.2 the imagination of urban space in the process of china’s urbanization, the reallocation of resources, population, land and other resources determines the social structure, life style, urban culture, style of doing things and other factors that the city tends to rationalize. china is a traditional agricultural country, and male and female migrant workers have become forced relocation due to the power of the city, which actually shows that the social development of the urban market has shifted from an economic and social form dominated by agriculture to one led to by service industries and industry and commerce. however, urbanization in mainland china is fundamentally different from urbanization in other parts of the world. in china, the agricultural population is huge, urbanization is late, the environment of industrialization has been severely damaged, and industrialization and urbanization have not been synchronized. therefore, the mixed urban landscape has been deduced into complicated social problems due to the contradictions of funds, land, people, and living space. the urban space does not give the bottom people the right to live. peasants who have lost their land also act as builders of urban imagination. homecoming and homeland complex have long been the motifs of chinese literature, but the new urban imagination in some works provides urban planners with the possibility of harmonious construction of urban space. the traditional chinese agricultural imagination makes the land constitute the collective unconsciousness of the chinese people. therefore, resisting the development of urbanization from a rural standpoint is rather absurd but innovative. in the age of no land, the author transforms the urban space by planting crops in the city, which shows that “human life has developed to the age of soilless. this civilization makes people leave the land and get further and further away from original nature and people’s concept of land is becoming more and more indifferent. in fact, the most missing thing in the city is the closeness of people to the land” (li, 2011, p. 60). in the soilless era, the city does not reject plants, and crops can grow on the road. this kind of romantic urban space imagination breaks the city’s discipline and suspends the city’s aesthetic principles. “to grow according to the aesthetic principles of cities, their combination, shape and distribution need to be carefully planned” (wang, 2011, p. 147). the aesthetic idea of rebuilding urban space by planting crops on urban land is an metaphor for land. 3.3 significance of rural space the countryside, as the spiritual hometown of most people in the agricultural society, the other in the urbanization process and the carrier of economic recession and environmental damage, bears the pressure of urbanization. some capital colluding between the city and the government flows into the rural field. the replacement of land use and the reconstruction of the value concept of the rural space make the original countryside tend to a kind of urbanization. among them, the novels of the new century features migrant workers and the shaping of the countryside by the city. since the beginning of the new century, a number of new rural writings such as ni qiu have emerged, whose fundamental quality is based on the narratives of migrant workers entering the city. in contrast, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 9 published by scholink inc. city novels focus on the passive form of rural space impacted by urban commerce. some works have reflected on the duality between urban and rural areas. in these novels, some texts did not escape from the entangled reality of urbanization, nor naively shifted the spatial latitude of the city to the perspective of moral criticism of rural ethics, simply placing urban and rural areas in the binary opposition, it expounds urban capital devours rural space, which brings and the disastrous consequences, and that a kind of sympathy for vulnerable groups from rural areas such as migrant workers. thus, the sadness and helplessness of rural power space are all reasonably displayed in the context of urbanization. villages that have historically regressed or been swallowed up by cities have become vulnerable spaces that sheltered for a long time. especially when modern civilization in the process of urbanization forcibly interferes with the original rural social structure, it will inevitably cause certain conflicts and variations in the original ecological consciousness of villagers. for example, in hunting season, the original guangxi is shaped by the city under the trend of desire. in the countryside, regardless of the ecological harmony, the practice of skinning and cramping is used for urban people to hunt, and leisure and entertainment have replaced the established situation of harmonious coexistence between man and nature. rural space narratives in urbanization are generally in the form of rural land and migrant worker narratives. some writers reflect the rebirth of rural power under the influence of cities. an old concept of power has resurfaced due to the control and suppression of urban desires, leading to the solution that farmers had to flee from the countryside to the cities. 4. presentation of urban landscape the urban landscape, as the externalization of the image of the steel and concrete, presents the aesthetic reproduction of commerce and consumerism, norms and power mechanisms. however, “the landscape itself also exhibits something indisputable and inaccessible” (wang, 2011, p. 148), which also foreshadows the evil side of city. those material, advanced, and magical urban landscape, as externalized carriers that affect human emotions, show the lack of natural landscapes and the reconstruction of urban space. geo-spatial experience is closely related to human self-identity. for example, in high heels, the city of shanghai in this novel squeezes ancient alleys in the shadow of high-rise buildings. modern streets such as nanjing road, xiafei road, and the bund, displaying petty bourgeois goods such as high-heeled shoes, perfume, and brand-name clothing, while the original folk culture of shibao street has been gradually replaced by commercial atmosphere. the changes of the protagonists in the lives actually form an ambiguous relationship with the commercial landscape, which improves the urban consciousness of citizens, and at the same time abandons the traditional imagery before urbanization. the urban landscapes such as ktv, bars, and foot-washing city on both sides of the street show the living environment of the bottom-level people and the shared face of the consumer group, while the new landscape on both sides of the street is an intersection where dogs lie, villagers gather and talk on www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 10 published by scholink inc. the country dirt road and the non-staple food store stands alone, which forms a sense of release and obedience. for the release of desires on the city streets, including purchase and physical desires, the rural guards and the only remaining local language have become symbols of loneliness and backwardness. apart from the streets, urban buildings in new century novels are no longer the folk house, ancestral temples, and cultural buildings in agricultural era. the buildings that best reflect urbanization are shops along the streets and high-rise buildings. under the presentation of these landscapes, different characters with different identities are pulled out. the specific urban space of high-rise buildings represent the living space of a new social class, and are representatives of postmodernism and consumerism. we have noticed the fact that in urban novels in the new century, the description of natural scenery is missing. the material symbols such as high-rise buildings, subways, luxury shops, and villas in the city have caused the distance between man and nature to a certain extent. these main landscapes and places, in a certain sense, show the characteristics of the city as the main body of urbanization, but at the same time, they separate the transitivity of the text, ignore the pursuit of harmony and abandon human nature. there is no need to sever the connection with the natural landscape, after all, what connects the countryside is the natural image landscape rather than the even urban architecture. 5. conclusion the mutual shaping of literature and cities embodies the intertextuality of culture and society, and demonstrates the multidimensional facets of social, cultural, economic, and capital in the development of cities in the new century. urban structure, social development, landscape presentation, and human nature display all predict the reality of urban culture and the possibility of becoming better. in addition, the construction of new century literature by urbanization and marketization is also reflected in the internal influence on literary activities. at the beginning of the reform and opening up in the last century, the central position of writers was gradually replaced by the multiple roles of writers or the polycentric status of the commodity society driven by factors such as literature, art and publishing. for example, the internet writing that appeared after 1998 has changed the pattern of pure literature in the past. the author and readers have formed an intimate relationship of interaction and cooperation, and the latter has become an important meaning of the literature. to a certain extent, internet literature is the product of the era of commercialization, and the prediction that literature come true. the end of one era brings the brightness of another era. and such multi-dimensional facets cannot fail to refer to the diversification and homogeneity of the city, the homogeneous desire, and the writing of the original beauty, presenting the overall evolution of urbanized china. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 11 published by scholink inc. the imprint of commercialization is like a branding iron engraved on the body of novels in the new century. there is no doubt that literature is marginalized, but in terms of the output of literary works, it shows a contrasting prosperity. ironically, the lack of quality has not affected the circulation of the text, the number is getting bigger and bigger, the audience is getting wider and wider, and more and more awards refer to the paradoxical reality. on the contrary, guangxi has culture first and economy lags behind. compared with contemporary writers who fluctuate to a certain extent between tradition and modernity, globalization and localization, based on ecological aesthetics, guangxi writers show a harmonious return and transitive interpretation. since the beginning of the new century, the pace of urbanization has accelerated, urban-rural mobility, and the change of land nature have become more frequent. the beauty and non-beauty of the living conditions of contemporary people are placed in front of literary creation. writers of texts must shift their point of view to the urban habitat. lei da believes that the biggest change in literature since the new century lies in “the shift in the focus of literature: the city is replacing the countryside as the center of literary imagination” (mike, 2003, p. 49). chen xiaoming pointed out, “to be precise, only those works that directly present the existence of the city itself, establish the object image of the city, express the author’s clear reflection on the city, and express the spiritual conflict between the characters and the city can be called typical urban literature” (lei, 2010, p. 35). urban literature itself has the characteristics of reflecting the dominant of the city. urban literature and the process of urbanization can achieve an inter-textual effect with symbiosis to a certain extent. the textual representation of the city by literature makes people reflect on the painful price paid by the disadvantaged groups for economic development in the process of urbanization, and urban literature should express the original beauty of desire-oriented human and the unlimited desire of human beings in the living environment to reflect on the negative consequences of urbanization. in addition to urban and rural space narratives and urban landscape presentations, the alienation of human beings in urban habitats also shows the spiritual changes of people in contemporary china under the influence of globalization. in the face of urban china, the genes of the countryside have been eroded away, but the writers’ desire to build a new harmonious urban structure has not diminished. the ontology of ecological aesthetics believes that there is a need to maintain a harmonious relationship between people, people and society, and people and nature for dynamic balance. guangxi’s diverse national culture and natural resources shape the generation of writers’ ecological awareness, and the life totem fits with the traditional chinese aesthetics of life, especially the meta-theory of ecological aesthetics, namely whole life, proposed by local theorists. it is more suitable for guangxi literature to explain the non-beautiful state of people in the city with an aesthetic attitude of reflection, witness, return, homeland, life, harmony and neutralization, and to find a way that is suitable for the harmonious development of the city and people with a seeking attitude. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 12 published by scholink inc. acknowledgements the article was supported by the philosophy and social science fund of guang xi (no. 22fzw012): on the urban novels of “guangxi army of literature” from the perspective of ecological aesthetics; education and teaching research project of guangxi agricultural vocational and technical college (no. yjj2122): exploration and practice of ideological and political education in the course of “literary appreciation” in agricultural universities from the perspective of party history learning and education. references chen, x. m. (2006). urban literature: the impossible “other”. literary research, 1, 56. fayve, g. (2005). urban sociology (w. m. xu, tran., p. 75). tianjin people’s publishing house. fei, x. t. (2012). reconstruction of the rural areas (p. 4). yuelu publishing house. fei, x. t. (2012). rural china (p. 8). beijingpeking university press. gong, l. f. (2021). 20th century narrative research on daily life in urban novelssince the 1990s (ph.d., p. 17). jiangxi normal university. henri, l. (2007). space and politics (p. 61). shanghai people’s publishing house. (in chinese) hong, z. g. (1996). the dance of desire, the third essay on writers of the late generation. literary review, 1996(4), 60. huang, w. l. (2010). the group of contemporary chinese novelists (p. 119). central compilation and translation publishing house. karl, m., & friedrich, e. (2001). the complete works of marx and engels (vol. 36, p. 480). beijing: people’s publishing house. lei, d. (2010). trends of chinese literature in the decade of the new century. literary contention, 2, 35. li, d. m. (2011). women’s urban novels in the 1990s from the perspective of regional culture (ph.d., p. 60). jilin university. michael, b. (2003). cultural geography (s. h. yang, & h. m. song, trans., p. 149). nanjing: nanjing university press. mike, k. (2003). cultural geography (p. 49). nanjing university press. richard, l. (2009). city in literature: history of knowledge and culture (z. f. wu, tran., p. 3). shanghai: shanghai people’s publishing house. wang, m. a. (2011). cities and plants. foreign literature, 4, 147. wang, m. a. (2011). cities and plants. foreign literature, 4, 148. wang, x. w. (2011). city writing in new century novels (ph.d., p. 29). shanxi normal university. microsoft word elp-v1n1-p152 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 1, no. 2, 2018 www.scholink.org/ojs/index.php/elp 152 original paper the largest externalities ever jan-erik lane1* 1 unige, geneva, switzerland * jan-erik lane, unige, geneva, switzerland received: july 16, 2018 accepted: july 30, 2018 online published: august 7, 2018 doi:10.22158/elp.v1n2p152 url: http://dx.doi.org/10.22158/elp.v1n2p152 abstract the notion of an externality is firmly grounded in economic theory. but it is not undone by itself. to eliminate external effects like the ghgs and its terrible consequences like sea level rise, droughts and unpredictable weather manifestations, policy-making and policy implementation or management is required. it all depends upon incentives and available technology. the pd nature of global coordination is a major hindrance, which is also true of the lack of large scale geo-engineering. it is increasingly likely that neither global coordination nor country resilience will be able to manage the consequences of this evolution towards a hotter state for planet earth. keywords abrupt climate change theory, only positive feedback lopes, less food and potable water, land losses, fires and storms 1. introduction economist n. stern has played a majpe in the scientific debate about global warming. thus, in 2007 he raised correctly the issue about the biggest even externality in the history of human societies. the emission of ghgs were seen by stern as an example of market failure, having very serious negative effects upon all countries. in 2015, he asked “what are we waiting for?”, believing perhaps somewhat naively that external effects could internalized between the countries as easily as externalities are corrected within a county. policy-making and implementation on climate change is very difficult and complicated, because of the pd at the core of global warming. the well-known prisoners’ dilemma game or pd game for short offers a standard model of the problematic of promises: respect them or renege upon them. as social interaction is often based upon cooperation, the pd games lies at the heart of social life: cooperation against defection (dutta, 1999). the paris treaty from 2015-cop21 agreement—is an example of pd gaming. will the promises about decarbonisation from 2020 to 2075 be held or not? given that states are sovereign under public www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 153 published by scholink inc. international law (pil), the signing governments cannot be forced by an outsider to respect the promises made. it is all voluntary agreement, which may be reneged upon by governments, if the costs of decarbonisaton appear too heavy for them each individually or simply advantageous for each one to continue with fossil fuels. the cop treaty also falls under the model of a common pool regime (cpr). cprs are based upon agreements and promises among a group of actors or players concerning the regulation of the use of a common resource, typically in scarce supply. according to the famous elinor ostrom analysis (1990), cprs are voluntary and rely upon self-policing. she focused upon domestic cprs mainly, and downplayed too much the indirect role of the state. but we find cprs in international relations, where there is no third party umpire who can play the role of hobbes’ illuminating judge with the sword, enforcing contracts or promises: “covenants, without the sword, are but words and of no strength to secure a man at all”. now, will the cop21 work as the cpr that saves mankind? or will governments abstain from opportunistic behaviour, reneging upon their promises? probably not. why? because the value of the game is tremendously important, namely energy. hawking irreversibility is practically sure, as massive decarbonisation is highly improbable. 2. no rational expectations: stopping irreversibility? recently launched, climate and earth scientists now focus upon so-called tippng points as well as the great variability in temperature increases over the entire globe. the dramatic changes in the arctic have made researchers focus upon the melting of the ice at the poles and greenland and its repercussions for global weather and the huge methane holdings in the permafrost from alaska to siberia, both on land and in ocean. a) tipping point 1: arctic sea ice; expected to disappear around 2020, it will not increase sea levels dramatically due to the equivalence between ice and water. but this will affect global oceans streams as well as global weather yet streams. b) tipping point 2: greenland ice; uncertainty when it will be gone—some say 1940, this will raise sea levels some 6 meters. major city areas will inundate: miami, rio de janeiro, venice, kairo-alexandria, mumbai, hanoi, shanghai, tokyo and singapore, for instance. it would further deteriorate oceans conveyor belt and the slow the global yet stream. c) tipping point 3: antartica ice mass; this enormous mass of ice and glaciers would be finished by some 100-500 years, rising sea levels some 60-70 meters. mankind stand to loose a lot of land all over the planet earth—a true catastrophe. d) tipping point 4: constant heat increase with draught and potable water scarcity. this would reduce food availability and lead to millions of climate refugees from vunerable low level coastline countries and poor nations along the equator. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 154 published by scholink inc. e) tipping point 5: methane emissions from the melting permafrost. this threat is so huge that mankind would never survive such a major release of a very potent ghg. but the probability is not known. the idea of so-called tipping points is that it make concrete the hawking notion of irreversibility. when s. hawking suggested that climate change was irreversible, he was met with sharp criticism. the notion of an irreversible process of change comes from the theory of scientific laws of nature with their universality and empirical necessity. if global warming is unstoppable or inevitable, then the survival of the human race is at stake. the only way to reduce the speed of climate change, avoiding inevitability, is to stop pumping ghgs into the atmosphere. this requires inter alia: i) immediate stop to coal and charcoal in poor countries; ii) replacing fossil fuel energy with solar panel parks of the morroccan quarzazate kind; iii) initiate now large scale geo-engineering experiments to suck up co2s or sequestrate co2s. will these measures be taken by the unfccc or the g20 group of nations? probably not. why? because of the ocean pd game involved. what matters to all countries and governments is access to carbon intensive energy, the culprint of the anthroposcene period. financial markets and institutions have not developed any anticpations about global warming and its effects. one circumstance is the time horizon of different climate change predictions that run from 10 years to hundreds of years. thus, some climate scientists claim that societies will crumble in a ten years time period, whereas others say that the earth will be ice and glacier free is some hundreds of years. in any case, economic output must sooner or later start declining due to immense capita destruction and reduced labour productivity. 3. carbon intense countries in rich countries with an economy in balance more or less, domestically and internationally, the baptiste say perspective upon economic motivation entails the idea of balanced economic growth, supported strongly by financial markets. even if real economic growth fluctuates, the emphasis upon yearly economic growth is typical of modern capitalism or the market economy, but so far it has necessitated a constant augmentation of energy. figure 1 shows the tight relation between affluence and energy consumption. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 155 published by scholink inc. figure 1. affuence and energy globally note. r2=0.951. sources: bp statistical review of world energy, world bank data indicators. poor countries need much more energy, but of a new kind. they need assistance to move to modern renewable, as they will give up fossil fuel and charcoal, only if there is compensation by other new energy sources. the enormous demand for more and more of energy comes with a major drawback, namely the ghg emissions. figure 2 has the picture for the carbon intensity of energy, resulting in co2s. figure 2. carbon intensity of energy (fossil fuels/all energy) sources: bp statistical review of world energy, world bank data indicators. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 156 published by scholink inc. very few countries score under 50 percent: norway and sweden, but several countries score 100% or close: the gulf states, algeria, former soviet union states, turkey, etc. 4. human development or capacities of men and women the public and private sectors demand lots of energy to produce their goods and services. energy, or the capacity to do work potentially or actually, is key in economic growth for enterprises and financial institutions in rich countries. and energy is absolutely essential in socio-economic development in poor nations. the central position of economic growth in rich countries and of socio-economic development in poor countries is much in consonance with basic human drives as well as with the logic of vibrant capitalism in the global market economy. governments and politicians cherish economic growth, because it makes more policy-making possible. look at the evidence about the positive effects of energy in the figures below, linking energy consumption with human development indicators. the living conditions in the poor countries in latin america, africa and asia as well as the pacific reflects the low level of energy employed. this basic fact determines life opportunities in a most dramatic fashion. the low access to energy has consequences for the environment and the life situation of people, including health, schooling, work, food and potable water. for instance, african countries are poor because they have too little energy. thus, they have much less ghgs than asia. yet, they need the cop project of the unfccc to renew their energy sources and move from fossil fuels and traditional renewable to solar power. hydro power depends upon water availability that shrinks with global warming. african energy deficit is conducive to a dire environment with enormous damages and risks. consider the following global figures. figure 3 shows how low energy leads to an unsafe environmental. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 157 published by scholink inc. figure 3. energy and environmental risk exposure source: environmental performance index, yale university, https://epi.envirocenter.yale. iea statistics © oecd/iea 2014 (http://www.iea.org/stats/inde). low energy use leads to poverty, malnutrition, deceases, lack of potable water, insufficient sanitation, etc. typical of many latin american, african and asian nations is the lack of stable electricity, which hampers everything and reduces environmental viability. figure 4 has the global picture. figure 4. energy and electricity access source: environmental performance index, yale university, https://epi.envirocenter.yale. iea statistics © oecd/iea 2014 (http://www.iea.org/stats/inde). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 158 published by scholink inc. the access to safe and stable electricity is crucial for health, schools, food, water, etc. figure 4 links energy with proper sanitation. especially, the rapidly growing african, latin american and asian mega-cities lack entirely proper sewage plants. thus, dirty water is put into the big rivers where other cities downstream take their potable water. the access to safe and stable electricity is crucial for health, schools, food, water, etc. figure 5 links energy with proper sanitation. figure 5. sanitation and energy source: environmental performance index, yale university, https://epi.envirocenter.yale. iea statistics © oecd/iea 2014 (http://www.iea.org/stats/inde). figure 6 underscores the necessity of more energy in poor countries for proper sanitation, without which the life of humans is “sale”. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 159 published by scholink inc. figure 6. energy and unsafe sanitation source: environmental performance index, yale university, https://epi.envirocenter.yale. iea statistics © oecd/iea 2014 (http://www.iea.org/stats/inde). air quality too depends upon energy access (figure 7). figure 7. energy and air quality source: environmental performance index, yale university, https://epi.envirocenter.yale. iea statistics © oecd/iea 2014 (http://www.iea.org/stats/inde). typical of many poor nations—latin america, africa, asia—is the lack of predictable access to safe electricity, which hampers work and reduces environmental viability. the access to safe electricity is, it must be emphasized, absolutely central for health, schools, food, potable water, etc. given the lack of enough energy in poor countries, being conducive to the above bad living conditions, one understands www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 160 published by scholink inc. the hopes of the poor countries for help with energy transformation, leading to better access to just energy! given the above evidence about the positive consequences of energy for quality of life and life opportunities, one understand the position of the third world at the paris meeting that decarbonisation must be combined with great economic assistance to make fundamental energy transformation. the result was the promise of a giant super fund, but it is only a promise too. 5. decarbonisation? the decarbonisation goal of cop21 requires the support of the big countries in the world. but do they really aim at decarbonisation? we look at three examples here. 5.1 india in indian energy policies, it is emphasized that developmental goals take precedence over climate change considerations. thus, all indian household must have access to electricity and only sustained rapid economic growth can reduce poverty. india has a “take-off” economy that delivers affluence for the first time since independence. but it is based on fossil fuels. india looks into other sources of energy, as long as socio-economic development is not hindered. figure 8 shows the main features of india’s future planning. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 161 published by scholink inc. figure 8. india’s energy future source: https://scroll.in/article/843981/indias-new-energy-policy-draft-projects-coal-fired-capacity-will-doubleby-2040-is-that-feasible india has rapidly become a major co2 emitter due to its high growth rates since 1990. it uses lots of coal, stone or wood. charcoal is bad for households and results in forest destruction. india tries to broaden its energy supply to modern renewable, like solar, wind and hydro power. yet, it will remain stuck with fossil fuels for decades. it needs assistance from the cop21 project, especially for solar power parks. building more dams is very risky, as global warming reduces water assets. figure 7 indicates the india cannot meet its cop21 promises, as ramesh (2015) underlines. india shows the same close link between gdp and energy consumption (figure 9). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 162 published by scholink inc. figure 9. gdp and energy in india note. r2=0.94. sources: bp statistical review of world energy, world bank data indicators. given this close connection between gdp and energy consumption in india, the risk is of course that further socio-economic developments will increase ghg emissions. india is hardly on the decarbomisation road. 5.2 usa the us has reduced its co2 emissions during the last years, mainly by a shift to natural gas. actually, several mature economies have been able to halt the rise of co2 emissions, either by more energy efficiency or a shift to natural gas or renewable. figure 10 captures some features in us energy plans. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 163 published by scholink inc. figure 10. us energy future source: https://www.e-education.psu.edu/egee102/node/1930 although the figure 10 predicts a doubling of renewable energy, the dependency upon fossil fuels, including coal energy, will not be much reduced. we are talking here about relative numbers, but if the us increases total amount of energy supply—fracking, then there may even be more fossil fuels. the reduction in co2s during recent years seems to be coming at a reduced rate. the hope is for economic growth without energy increases, but we are not there yet. and most countries demand more energy for the future. figure 11. gdp and energy for the usa note. r2=0.77. sources: bp statistical review of world energy, world bank data indicators. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 164 published by scholink inc. although the link between gdg and energy consumption is less tight for the usa than india (figure 11) reflecting that economic growth in advanced countries can be achieved without energy increase, it is still the case that the us is not on the road towards major decarbonisation. 5.3 china china now enters the first world, as it has long passed its “take-off” point in time around 1980 and has pursued a successful “catch-up” policy for a few decades. its energy consumption, especially of fossil fuels, has skyrocketed with gdp, resulting in the largest co2 emission globally. figure 12 has a projection for china. figure 12. energy projection for china sources: http://www.wrsc.org/attach_image/chinas-projected-energy-growth-fuel decarbonisation does not seem highly probable. much hope was placed at a recent reduction in co2s, but water shortages forced china to revert to coal in 2017 with attending augmentation of co2s. china is investing in both renewable and atomic power, but it also plans for large energy increase in the coming decades with lots of energy consuming new projects (figure 13). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 165 published by scholink inc. figure 13. gdp and energy for china note. r2=0.98. sources: bp statistical review of world energy, world bank data indicators. such a close connection between gdp and energy consumption in china implies that china must turn to renewable massively in order to comply with cop21 goals. 6. cooperation or defection in ocean games or global clubs the cop21 treaty, or any other similar agreement, would have two parts: i) reduction of co2 emissions in a certain pace towards zero emissions at some future date; ii) contributions to the super fund yearly according to some scheme and time table. both these two actions concern first and foremost the countries in the g20 group of nations, responsible for 70 per cent of the total co2 emissions. small poor nations can be left beside, as they pollute little and cannot be required to pay into the super fund. both i) and ii) are just promises, which the cop21 secretariat or the un cannot enforce, strictly speaking. when a country receives support the super fund, there is some leverage to force obedience. however, a big poor country may simply refuse decarbonisation, if no assistance is provided. decarbonisation is costly in the short run for all countries, as the must replace existing energy plants with new, hopefully renewable energy resources. contributing to the super fund is also costly in the short run. this sets up an interaction where a government may be tempted to defect from its promises to decarbonise or pay to the super fund. a. strategy of poor nations: the n-1 problematic. poor or small nations will engage in opportunism with guile in order to avoid too large costs with the cop21 decarbonisation policy, pretending they matter very little for outcomes. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 166 published by scholink inc. b. strategy of the rich country: the 1/n problematic. large or rich countries will find sacrifices that cannot be internalized as meaningless gifts to others, who may not be trusted to cooperate. thus, the us reneged because it did not want to pay for decarbonisation in india. the pd nature of interaction in a global cpr like the cop21 treary is fragile, to say the least. what is lacking is the instruments of control, as hobbes pointed out already 1651 in his leviathan, saying: “not believing in force is the same as not believing in gravitation”. 7. domestic policy concerns override international coordination a government may bind the state it represents to far-reaching objectives like complete decarbonisation at an international reunion, but it is really just a “scrap of paper”. if matters really press concerning safeguarding national interests, the government simply reneges. when water becomes scare for chinese energy dams, then coal is resorted to again, with new co2 augmentation. domestic politics play a major role in energy policy besides international accords. here are three examples a) japan’s dilemma after the fukushima disaster, japan closed 50 of its 52 reactors. the country relies much upon the import of various energy resources. will japanese politics allow a return ro nuclear power or will japan like south korea rely massively upon lng from australia? one possible scenario is ourlined in figure 14. figure 14. energy plan for japan source: http://www.world-nuclear-news.org/np-plan-sets-out-japans-energy-mix-for-2030-0306154.html www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 167 published by scholink inc. b) germany & france: nuclear distrust despite all propaganda about so-called energiwende, germany remain much dependent upon fossil fuels. high grade coal is imported from russia and colombia to add to its own low grade and dirtier coal, besides all the natural gas from gazprom. at the same time, nuclear power are closing—all up to 2022. france is also closing nuclear plants, despite the fact that they could be used longer and made safer. both countries should turn to solar power—see table 1, but may be expected to burn biomass or biotrash, which emits co2 inter alia. table 1. number of ouarzazate plants for 40 percent reduction of co2 in some giant countries (average of 250-300 days of sunshine used for all entries except australia, indonesia, and mexico, where 300-350 was used) nation co2 reduction pledge/% of 2005 emissions number of gigantic solar plants needed (ouarzazate) gigantic plants needed for 40% reduction united states 26-28i 2100 3200 china noneii 0 3300 eu28 41-42 2300 2300 india noneii 0 600 japan 26 460 700 brazil 43 180 170 indonesia 29 120 170 australia 26-28 130 190 russia noneiii 0 940 germany 49iv 550 450 france 37v 210 220 sweden 42v 30 30 world n/a n/a 16000 note. i) the united states has pulled out of the deal; ii) no absolute target; iii) pledge is above current level, no reduction; iv) upper limit dependent on receiving financial support; v) eu joint pledge of 40 % compared to 1990. c) swedish folly sweden used to be lucky with energy resources, relying upon its many rivers and modern high tech with very safe nuclear power stations. however since 2000, it now abandons nuclear power at astronomical costs, relying instead upon the import of biomass or biotrash. ghgs now increase for sweden. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 168 published by scholink inc. d) summing up: climate change is much more lethal than a nuclear power plant accident. 8. conclusion the prospects for decarbonisation halting climate change seems grim, especially if abrupt climate change theory is correct. the crux of the matter is energy, which still comes with a high carbon intensity in most countries. energy is the capacity to do work, which is the foundation of affluence. figure 15 brings this fact out clearly for 2017. figure 15. gdp and energy for the globe 2017 note. r2=0.8. sources: bp statistical review of world energy, world bank data indicators. of course, all nations want to move along the upward sloping line in this figure, “catching-up” as it were. stern’s (2007, 2015) calls remain unanswered or perhaps not even heard by the decision-makers globally. the only remedies are avoiding coal and charcoal, replacing fossil suels with solar power and start large scale geoengineering. otherwise, there will be dismal predicament with hunger, thirst, child morality, eco-emigrants at many places, fires in the boreal forest as well as in the rain forest, agricultural failure, drought, enormous storms, and finally massive land inundations. can war be avoided in such a predicament? the big unresolved issue in abrupt climate change theory is the time horizon for the positive feedbacks: arctic ice melting, melting of ice and glaciers on greenland and antarctica, arrival of serious drought in various regions and the start of decline in food and potable water resources. the biggest unknown is though that methane bomb, which would kill mankind if it goes off 100 percent. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 169 published by scholink inc. references tracking country climate pledges. (2015). carbon brief, paris. retrieved from https://www.carbonbrief.org/paris-2015-tracking-country-climate-pledges co2 emission reduction with solar. (n.d.). retrieved from http://www.solarmango.com/in/tools/solar-carbon-emission-reduction bp statistical review of world energy. (n.d.). world bank data indicators. (n.d.). environmental performance index. (n.d.). yale university. retrieved from https://epi.envirocenter.yale iea statistics © oecd/iea 2014. (2014). retrieved from http://www.iea.org/stats/inde dutta, p. (1999). games and strategies. cambridge, ma: mit press. ostrom, e. (1990). governing the commons. cambridge: cup. https://doi.org/10.1017/cbo9780511807763 ramesh, j. (2015). green signals: ecology, growth and democracy in india. oxford: oxford university press. https://doi.org/10.1093/acprof:oso/9780199457526.001.0001 stern, n. (2007). the economics of climate change. oxford: oup. https://doi.org/10.1017/cbo9780511817434 stern, n. (2015). what are we waiting for? cambridge, ma: mit press. edgar v 4.3.2, european commission, joint research centre (jrc)/pbl netherlands environmental assessment agency. (n.d.). emission database for global atmospheric research (edgar), release version 4.3.2. retrieved from http://edgar.jrc.ec.europe.eu economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 64 original paper research on the rule of law construction of the operating mechanism of china’s energy market access system under the “dual carbon” goal xuefeng yan 1 1 southwest petroleum university, chengdu, sichuan, china received: june 6, 2025 accepted: june 19, 2025 online published: june 20, 2025 doi:10.22158/elp.v8n2p64 url: http://dx.doi.org/10.22158/elp.v8n2p64 abstract the energy market access system refers to the conditions that energy enterprises need to meet when entering the market. under the “dual carbon” goals, china’s energy is gradually transitioning towards low-carbonization, and the promulgation of the energy law provides a basic guiding path for energy market access. however, at present, china’s energy market access system is confronted with problems such as insufficient legal support, unclear division of responsibilities, and unsmooth incentive mechanisms. to adapt to the requirements of the “dual carbon” goals, it is necessary to start from the perspective of the rule of law and build a modern energy market system that is unified, open, and orderly in competition. this requires us to clarify the guiding ideology and basic principles of the energy market access system, including promoting the low-carbon transformation and sustainable development of energy, ensuring the fairness and transparency of the market, and taking into account multiple dimensions such as energy security, energy efficiency, clean and low-carbon, and energy justice. by improving the market access process, strengthening market supervision, and standardizing market exit procedures, we can stimulate market vitality, promote technological innovation and industrial upgrading, and establish a more complete and efficient operation mechanism for the energy market access system, providing a solid legal guarantee for achieving the “dual carbon” goals, ensuring national energy security, and promoting the sustainable development of the economy and society. keywords the “dual carbon” goals, energy market access, operation mechanism, legal system construction www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 65 published by scholink inc. 1. introduction as global climate change intensifies, the necessity and urgency of addressing climate change have increasingly become a global consensus, requiring countries to work together to reduce emissions. the vision of the “dual carbon” goal has become an important guide for achieving harmonious coexistence between man and nature in the modernization process in the coming period. the improvement of the energy access system can promote the optimization of the energy structure, reduce the proportion of fossil energy, and increase the utilization of clean and renewable energy. it is of great significance for ensuring energy security and sustainable development, and achieving the “dual carbon” goal. however, the current legal system of energy market access in china is insufficient, which cannot provide effective reference for energy market access in various industries. this has led to significant differences in energy utilization and access standards among various industries, which not only affects fair competition in the energy market, but also increases the compliance costs of enterprises. the unclear division of responsibilities in the energy regulation process makes it difficult for law enforcement personnel to grasp the scale in the implementation process, leading to low regulatory efficiency and disputes, which affect market order and public interests. the poor incentive mechanism makes the enterprises lack the motivation in energy technology innovation and transformation, and the traditional energy mode with high energy consumption and high emissions is difficult to be effectively replaced, which hinders the realization of the “dual carbon” goal. in view of this, it is necessary to clarify the internal relationship between the energy market access system and the “dual carbon” goal, build a market-driven mechanism for the low-carbon transformation of the energy structure, and form an energy access system framework that meets the “dual carbon” goal by analyzing the functional requirements of the energy market access system at different stages of access, regulation, and exit, as well as the coordination between the energy supply side and demand side. 2. the purpose and functions of the energy market access system under the “dual carbon” goal 2.1 the energy market access system responds to the “dual carbon” goal the energy market access system refers to the process by which collectives and individuals, other than the state, acquire rights to explore, develop, and utilize energy resources through the energy industry market access mechanism. by conducting basic extraction and reasonable processing, they obtain ownership of energy products (zheng, j. n., 2014, pp. 121-123). the “dual carbon” goal refers to china’s commitment to achieving carbon peak by 2030 and striving for carbon neutrality by 2060. the realization of this goal hinges on the low-carbon transformation of the energy structure, and the energy market access system plays a crucial role in this transformation process. there is an intrinsic connection between the energy market access system and the “dual carbon” goal. the key to achieving the “dual carbon” goal lies in the low-carbon transformation of the energy structure, which requires market mechanisms as the driving force. the energy market access system www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 66 published by scholink inc. serves as a crucial normative core for the operation of these market mechanisms. the low-carbon transformation of the energy structure necessitates the establishment of specialized market mechanisms to regulate governance models and potential market risks during the transformation process. a well-developed energy market access system acts as an important constraint mechanism and regulatory tool to maintain market order stability and risk prevention. article 8 of the energy law stipulates that the state shall establish and improve the energy standard system to ensure energy security and green low-carbon transformation, promote the development of new energy technologies, industries, and business models, laying a theoretical foundation for the reform direction of the energy market access system. from a market perspective, it is necessary to establish and improve the energy market standard system under the premise of ensuring energy security, formulate unified standards and norms for energy entities entering the market to adapt to the development of the new energy industry and the optimization of the energy structure. the “opinions on improving the market access system” points out the need to refine the market access system, thoroughly dismantle market access barriers, and include the new energy industry as a new area in the optimization of the market access environment (the general office of the cpc central committee and the general office of the state council issued the “opinions on improving the market access system”, 2024, p. 24). it is evident that the current basic direction of china’s energy development is low-carbon development with new energy as the mainstay. the energy market is in a phase where new energy is gradually replacing traditional energy, necessitating a transition from fossil fuels to clean energy as the primary source, achieving green and low-carbon transformation and development (zhang, g. y., 2009, pp. 5-9). since the transition from traditional to new energy is a long-term process, the coexistence of traditional and new energy will undoubtedly require the strict implementation of the traditional energy market access system while also formulating and improving the new energy market access system. 2.2 the functions of the energy market access system under the “dual carbon” goal the market access system is an institutional arrangement through which the government utilizes market mechanisms to conduct macroeconomic regulation and control of market behaviors. its characteristics are embodied in the values and functions of “positive protection” and “anti-competition” (zheng, j. n., 2011, pp. 123-131, p. 160). the “positive protection” function refers to the role of energy market access in protecting the interests of market entities, maintaining market order, and promoting the low-carbon transformation and sustainable development of energy. the “anti-competition” function refers to the restrictive role of energy market access in preventing unqualified entities from entering the market and participating in competition, which could otherwise lead to the deterioration of the market environment. the “positive protection” function of the energy market access system is reflected in its ability to protect the competitive interests of entities already in the market by setting barriers. through establishing unified access thresholds and technical standards, the energy market access system prevents market failures and unfair competition, ensuring that market entities conduct transactions in a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 67 published by scholink inc. fair and transparent environment and promoting the optimal adjustment of the energy consumption structure (jiang, s. l., & chen, l. x., 2024, pp. 189-202). it also provides opportunities for new energy enterprises to enter the market. by introducing new energy sources, reliance on traditional energy can be reduced, carbon emissions lowered, and the low-carbon transformation of energy achieved. it leverages market mechanisms to revitalize energy development and utilization activities, supporting the implementation of the “dual carbon” goal in the energy sector (zhang, z. t., & zhang, y. d., 2024, pp. 142-149). to a certain extent, the market access system also possesses an “anti-competition” function. it sets thresholds to restrict the entry of unqualified enterprises, ensuring that only entities meeting certain standards and conditions can enter the market and participate in competition. the new energy market has broad market prospects and significant competitiveness. if unqualified market entities are unable to provide high-quality products or services, or resort to unfair competition means to enter the market, they will undoubtedly squeeze the space of the new energy market, thereby hindering the development of the energy market. as part of the legal construction of the energy market under the “dual carbon” goal, it is necessary to collaboratively promote the construction of a modern energy market. by establishing a market mechanism that relies on open, fair, and orderly competition to promote “energy conservation, pollution reduction, and carbon emission reduction”, and enhance the level of energy services, it is therefore essential to utilize the “anti-competition” function of the energy market access system to clear obstacles for the development of new energy (yang, x. j., 2022, pp. 55-65). 3. the rule outline of the energy market access system 3.1 the operation mechanism of the energy market access system the energy market access system is an important part of the market economy law, which stipulates the conditions and procedures for natural persons and legal persons to enter the market to engage in business activities. the whole process of the operation of the energy market access system includes three parts: pre-access, in-process supervision, and post-exit. in the access link, the law stipulates the conditions that energy market subjects need to meet to enter the market, that is, they have independent legal personality, meet the national and local environmental protection standards, and meet the corresponding technical conditions, so as to ensure that enterprises can stably and safely provide energy services. the formulation of standards refers to formulating unified and standardized industry standards for different types of energy enterprises to promote the rational allocation, safe supply, and structural optimization of energy elements. standards are the baseline for energy enterprises to provide energy products, requiring energy enterprises to provide energy products that meet the standard requirements, and at the same time, cooperate with the negative list system to restrict the entry of enterprises that do not meet the requirements, so as to improve the efficiency of pre-access qualification review (luo, l. w., & ma, y. q., 2023, pp. 85-96). after meeting the legal and standard provisions, enterprises that want to enter the market must also obtain a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 68 published by scholink inc. license issued by the energy competent authority after review. for energy enterprises that meet the access requirements, a license is issued before they can enter the market (zheng, j. n., 2012, pp. 133-138). in the supervision link, it is mainly the continuous supervision and management of the business behavior of market subjects after they have entered the market. the main purpose of in-process supervision is to ensure that market subjects continue to meet the access conditions and operate in accordance with the law. according to the different specific contents of supervision, supervision can be roughly divided into two categories: economic supervision and social supervision (zhang, z. m., 2018, pp. 82-91). economic supervision includes the inspection and supervision of the information authenticity, behavior legality, price rationality, of energy market subjects, focusing on establishing and maintaining the credit system of the energy market. for enterprises with good credit, certain policy preferences or market opportunities are given, while for enterprises with poor credit, they may face more strict supervision, and in severe cases, may face the punishment of market exit. social supervision emphasizes risk management, requiring the government to strengthen monitoring and early warning mechanisms to deal with risks brought by market supply and demand fluctuations and price changes, which is mainly realized through random inspections, credit grading and classification. in the exit link, first, when market subjects decide to stop operating due to poor management, business transformation, market changes, etc., market subjects will orderly handle their assets, debts, and employee relations in accordance with relevant laws, regulations, and market rules to ensure the legality and stability of the exit process. active exit is not only conducive to the rational allocation of resources of market subjects themselves but also can provide opportunities for other potential market entrants, promoting dynamic competition and survival of the fittest in the market. second, when market subjects violate relevant laws, regulations, or market rules in the course of operation, their behavior may have a negative impact on the fair competition of the market. in order to maintain market order and consumer rights and interests, the regulatory authorities have the right to require these unqualified market subjects to make corrections or even force them to exit the market. 3.2 the legal provisions of china’s energy market access system energy issues are related to the country’s economic development, social stability, and security. for energy production enterprises to enter the market, the state always imposes appropriate restrictions on their channels (li, x. h., 2011). as far as china is concerned, the market access of the energy field is strictly restricted, both at the legal level and at the policy level. at the legal level, china has formulated a series of single laws for the energy industry to regulate the market access license of the energy market. in order to ensure the healthy and orderly development of the energy market, energy enterprises must obtain the approval of the energy competent authority in accordance with the law before carrying out relevant business, which is mainly realized by implementing the business license system. the energy competent authority will issue corresponding licenses to operators in key energy fields such as petroleum, natural gas, coal, and electricity in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 69 published by scholink inc. accordance with relevant laws and regulations. in this process, the competent authority will strictly review the business qualifications, technical conditions, safety standards, and other aspects of the applying enterprises to ensure that only qualified enterprises can obtain the access qualification. in china’s current energy single laws, many laws have made clear provisions on the market access license of the energy market. for example, the coal law and the electric power law and other laws have elaborated on the market access conditions, procedures, and regulatory requirements for specific fields such as coal mining and power production. these provisions not only constitute a legal right and qualification granted by the energy management organ to the management counterpart (i.e., energy enterprises) but also constitute an important means for the management organ to effectively restrict and supervise the energy market subjects. at the policy level, for a long period in the past, china adopted a development model dominated by public ownership for a series of strategically significant specific industries such as petroleum, natural gas, and electricity, out of the consideration of maintaining national security, protecting public interests, and ensuring the stable supply of key resources, and strictly restricted private capital from entering the relevant markets to prevent potential market fluctuations and risks and ensure national energy security and people’s livelihood needs. with the rapid development of the global economy and the increasing trend of privatization in the energy field, china’s policy orientation has begun to change, gradually relaxing the restrictions on private capital investment in the energy field, and encouraging and standardizing the orderly entry of private capital into the market through a series of reform measures. in order to ensure the smooth and orderly transformation process, the government has successively introduced a series of targeted policies and regulations to elaborate on the access conditions, operation specifications, and exit mechanisms of private capital in various energy industries. taking the power industry as an example, the formulation of rules and regulations such as the basic rules for medium and long-term electricity trading and the trial basic rules for electricity spot market not only provides a legal framework for the trading behavior of the electricity market but also specially sets up chapters on access and exit to ensure the legitimate rights and interests of market participants and maintain the fair competition and healthy development of the market. 4. the legal construction deficiencies of china’s energy market access system under the “double carbon” goal driven by the “double carbon” goal, china’s energy pays attention to the low-carbon transformation to promote the institutional arrangement of high-quality energy development. in the market access, it is necessary to implement the needs of the “double carbon” goal for the low-carbon transformation and high-quality development of energy and form a perfect institutional system to adapt to the needs of energy transformation. however, china’s energy market access system still has a series of restrictive factors, and it is urgent to break the unfavorable factors restricting the high-quality development of energy from the level of overall layout and mechanism system. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 70 published by scholink inc. 4.1 insufficient legal support for the energy market access system first, the “double carbon” goal emphasizes the low-carbon transformation and development of china’s energy structure. under the guidance of this grand goal, the access system of the energy market urgently needs to adapt to and promote the green low-carbon transformation of the energy industry. however, at present, china has insufficient constraints on the low-carbon transformation of traditional energy, and there is no special law to clearly regulate and guide this transformation process. although single legislations such as the coal law and the electric power law have established a license system for energy market access and made a series of provisions on the conditions that energy enterprises need to meet to produce energy products, these provisions mainly focus on the initial access conditions of enterprises, and lack specific and detailed legal provisions on the low-carbon transformation, energy-saving and emission-reduction technology innovation, and exit mechanism of enterprises in the operation process. this leads to the fact that in practice, energy enterprises often ignore the long-term strategy of low-carbon transformation while pursuing economic benefits and lack sufficient motivation and pressure to implement energy-saving and emission-reduction measures. at the same time, although regulations and policies such as the coal industry policy and the basic rules for medium and long-term electricity trading have made certain provisions on the access and exit of the energy market, these documents mainly exist in the form of administrative regulations or policies, with relatively low legislative levels and insufficient authority, so it is difficult to form a strong legal constraint on the behavior of energy enterprises. in addition, these regulations and policies often focus on short-term market regulation and administrative management and lack the strategic planning and legal guarantee for the long-term low-carbon development of the energy industry. second, although provinces (cities) have formulated management regulations for the energy market access of their administrative regions, such as jiangsu province, gansu province, and chongqing municipality, which have stipulated the access and exit system of the power industry, and the national energy competent authority has also issued management measures on the access and exit of power sales companies and natural gas pipeline facility shippers, they have all been invalid, and the new access and exit system has not been established. moreover, the energy industry is now undergoing a low-carbon transformation, and the traditional energy market access mechanism is not suitable for the requirements of green low-carbon. it is necessary to carry out low-carbon transformation of high-energy-consuming industries, and the provisions in the previous management measures need to be combined with the needs of low-carbon transformation to achieve the function of carbon reduction. the low-carbon energy market is in a stage of rapid development, and new business models and technological innovations are emerging in an endless stream. however, the existing market access system is often too rigid to adapt to these new changes. for example, some legal provisions on the approval and filing processes of low-carbon energy projects are too cumbersome, leading to many difficulties for enterprises in the process of project promotion. this rigid system design not only reduces the investment efficiency of enterprises but also may inhibit the innovation motivation of enterprises, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 71 published by scholink inc. which is not conducive to the long-term development of the low-carbon energy market. 4.2 inadequate division of responsibilities in the energy market access system first, at the government management level, the management functions of china’s energy market access are dispersed among multiple departments, including energy authorities, environmental protection departments, safety supervision departments, and others. this multi-headed management has led to overlapping functions, resulting in fragmented policies, high coordination costs, and low management efficiency. for example, in terms of regulatory coordination, there is an issue where energy market regulatory agencies and antitrust enforcement agencies fail to effectively regulate enterprises in regulated industries that engage in acts prohibited by antitrust laws (jiang, s., 2014, pp. 95-105). due to the lack of clear authority demarcation, the approval process for energy market access is complex and opaque, leading to problems such as multiple approvals and insufficient law enforcement. this decentralized management model not only increases the burden on enterprises but also causes unfair competition and administrative monopolies in the energy market. second, at the market operation level, there are phenomena of unclear access thresholds and imperfect exit mechanisms. in the energy market access system, the entry thresholds for enterprises often lack clear and unified standards. this leads to situations where some enterprises may be excluded due to unstated conditions, while others may blindly enter the market due to inaccurate understanding of access requirements. the ambiguity of market access thresholds also gives rise to disorderly and excessive competition. some enterprises may adopt unfair means such as low-price competition and malicious competition to gain market share, thereby harming the overall market interests and legitimate rights of consumers. when energy enterprises exit the market, they often lack a sound exit mechanism, making it difficult for enterprises that cannot sustain operations due to poor management, backward technology, or other reasons to withdraw smoothly. this not only wastes market resources but also negatively impacts market order. 4.3 inefficient incentive mechanism in the energy market access system first, from the perspective of economic incentives, the energy market access system lacks sufficient legal guarantees to provide effective economic incentives. although china has introduced a series of laws and regulations to promote low-carbon economic development, such as the energy conservation law, renewable energy law, and circular economy promotion law, these laws still have obvious deficiencies in incentive mechanisms. the specific implementation rules for preferential policies such as tax reductions and subsidies are vague, making it difficult for enterprises to actually enjoy these benefits in practice. this legal ambiguity not only weakens the effect of economic incentives but also reduces enterprises’ willingness to invest in the low-carbon energy sector, thereby hindering the healthy development of the low-carbon energy market. the low-carbon transformation of the energy structure is a huge and lengthy systematic project. the inherent costs of energy development and utilization constrained by resource endowments, as well as compensation costs arising from differences in transformation capabilities, have increased the challenges faced by the low-carbon energy market www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 72 published by scholink inc. access system (zhang, z. m., & zhang, q., 2024, pp. 198-211). for regions or enterprises with weak transformation capabilities, the lack of effective compensation and incentive mechanisms may lead to difficulties due to high transformation costs, thus impeding the low-carbon process of the entire energy market. second, from the perspective of technological incentives, the low-carbon transformation of the energy market access system also lacks sufficient legal guarantees to provide effective technological incentives. in the process of energy low-carbon transformation, technological innovation is the key driving force for market development. however, the existing market access system has obvious shortcomings in technological innovation. on the one hand, due to insufficient legal protection for intellectual property rights, enterprises’ innovative achievements in technological research and development are prone to being copied or imitated, reducing their enthusiasm for technological innovation. on the other hand, the existing market access system lacks guidance and support for technological innovation, causing enterprises to face numerous difficulties in funding, talent, and other aspects during technological research and development. this insufficient technological incentive not only limits the rapid development of low-carbon energy technologies but also affects the competitiveness and innovation capability of the entire industry. 5. legal guarantee for the access system of china’s energy market under the “dual carbon” goals 5.1 guiding ideology of the rule of law for the energy market access system the world is currently in a critical historical period of transition from traditional fossil energy to clean energy. clean energy sources represented by wind energy, solar energy, biomass energy, and green hydrogen will not only change the production consumption structure of energy but also reshape the energy technology power of countries and their interdependent relationships (li, x. l., & liu, x. n., 2023, pp. 70-95, pp. 157-158). every step of the development of china’s energy industry has been accompanied by changes in the energy industry, providing a powerful impetus for the development of china’s economy and society. against the background of green transformation, the energy industry will also develop in a more diversified and cleaner direction (lu, q. x., wang, l., & wu, l., 2023). the energy market access system needs to achieve effective competition through market mechanisms and ensure the fairness, transparency, and predictability of the market through legal means. with the reform of china’s energy market, restrictions on the energy industry have been gradually relaxed, allowing more diverse market players to pour into the energy market to provide energy products, and the energy supply has shifted from extreme shortage to diversification. in this transformation process, the energy market access system not only needs to ensure that new and old enterprises can compete fairly under the same rules but also promote enterprises to achieve technological innovation and industrial upgrading and improve energy efficiency and sustainability. the strengthening of the rule of law, such as clearly defining property rights, strengthening anti monopoly supervision, and improving www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 73 published by scholink inc. the information disclosure system, provides a clear legal framework for market participants, enhances investors’ confidence, and helps the energy market move steadily in a more open, efficient, and green direction, injecting strong impetus into the economic and social development. 5.2 basic principles followed by the energy market access system the legal guarantee of the energy market access system aims to ensure the fairness, transparency, and predictability of the market, taking into account the multi dimensional principles of energy security, energy efficiency, clean low carbon, and energy justice. the energy security principle requires screening out enterprises with safe production and stable supply capabilities to prevent energy supply disruptions or safety accidents caused by insufficient enterprise qualifications. the new energy security strategy of “four revolutions and one cooperation” promoting the energy consumption revolution, supply revolution, technological revolution, and institutional revolution, as well as strengthening international cooperation in an all round way points out the direction and provides the fundamental guidance for energy development in the new era. under the guidance of the energy security strategy, china’s energy market sets a series of clear, specific, and strict standards to ensure that all economic entities intending to enter the market have the necessary technological advancement, sufficient financial support, and efficient management capabilities in the production or provision of energy related products and services. a solid barrier is built at the standard level, which greatly reduces the risk of production safety accidents that may be caused by sub standard technology or management chaos and ensures the stability and safety of the energy market. the energy efficiency principle requires encouraging technological innovation and efficiency improvement, allowing high efficiency and energy saving energy technologies and products to enter the market, and promoting the transformation and upgrading of the energy industry. improving energy efficiency is the key to achieving green low carbon development, and it is necessary to focus on strengthening the support for energy saving technologies and the construction of the demand side management system. in the demand side management, policies such as finance, taxation, and price should be fully utilized to strengthen the management of energy and electricity consumption and promote the improvement of energy use efficiency (yu, w. x., 2022, pp. 44-51). in terms of emphasizing energy efficiency, the government participates in the whole process of the operation of the energy market access system. by setting clear market access conditions and standards, energy enterprises with sufficient strength and technical level are screened out to enter the market, thus avoiding disorderly competition and resource waste and ensuring that energy enterprises in the market can continuously provide high efficiency and stable energy products and services. the clean low carbon principle requires encouraging the research, development, and application of clean energy and low carbon technologies, restricting the entry of high pollution and high energy consumption energy projects into the market, and promoting the optimization of the energy structure and the sustainable development of the environment. the clean low carbon principle encompasses “green priority” and reflects the internal logic of the integrated development of the environment and the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 74 published by scholink inc. economy, that is, to achieve green low carbon development under the premise of “ecological priority” (feng, s., 2024, pp. 67-75, pp. 210-211). this means that it is necessary to take ecological practical rationality as the approach, reflect the legal value of ecological priority, and construct a sound energy market access system. the new logic of energy legal control under the “dual carbon” goals determines that a series of clear, complete, and predictable low carbon principles should be established and integrated into the specific energy regulation system to solve the coordination mechanism between energy security and low carbon energy and prevent the conflict of interests with the traditional energy legal rules (zhang, q., & zhang, z. m., 2023, pp. 51-63). the energy justice principle requires ensuring the equal status and fair competition opportunities of all market entities in the energy market, preventing market monopolies and unfair competition behaviors, and ensuring the fairness and transparency of the energy market. the energy market access system ensures that all types of market entities can enter the market fairly by setting a unified market access threshold, thereby breaking monopolies and promoting market competition. by establishing a unified national energy trading market and a market based price formation mechanism, the energy market access system improves the transparency of the market, making the energy price better reflect the real market value. the energy law also emphasizes the importance of energy inclusive services, aiming to provide equal, affordable, and reliable energy services for everyone. 5.3 construction of the legal guarantee for the operation mechanism of the energy market access system 5.3.1 market access link the market access link serves as the foundation for the rule of law in the energy market. it determines which enterprises and products can enter the market, as well as the conditions and standards for entry, and is a crucial link to ensure market order and risk prevention. currently, china does not have a unified law governing energy market access. the realization of the “double carbon” goal has put forward higher requirements for the energy market access system, making it urgent to formulate a comprehensive law specifying market access for each energy industry, which can regulate the access system from two aspects: traditional energy and new energy, and establish differentiated market access standards. at the level of access standards, the access conditions of the electricity market can serve as a benchmark for formulating market access standards for each energy industry. energy supply enterprises need to have valid licenses, meet environmental protection, safety and other requirements, have a certain installed capacity and regulation capacity, and establish a sound metering and settlement system. energy sales companies need to obtain energy sales business qualifications, have stable sources of funds and professional operation teams, and establish a perfect customer service system. energy users are divided into different categories according to the amount of energy used. large users need to have a certain energy management ability and credit rating, while small users can participate in the market through collective means. at the specific implementation level, it is necessary to implement classified policies for traditional industries and new energy industries. for traditional energy projects, it www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 75 published by scholink inc. is necessary to strengthen environmental protection, energy efficiency and other requirements to promote their transformation and upgrading; for clean energy projects, the access threshold can be appropriately reduced to encourage their rapid development. the traditional energy industry needs to adapt to the requirements of low-carbon transformation and establish an efficient market access system to ensure the balanced development between clean energy use and energy supply. while guiding traditional energy enterprises to gradually reduce carbon emissions, it encourages and ensures the steady growth of clean energy, thus promoting the low-carbon transformation of the energy system from the source. the limited marketization of the traditional energy law regulation model shows that only by using energy marketization to break natural monopolies and encourage competition and openness can china's energy law operate in an orderly manner in building a market mechanism that conforms to national conditions and energy economic laws (ma, j. j., & gong, x. q., 2007, pp. 147-155). vigorously promoting the public-private partnership (ppp) model, guiding and supporting social capital to provide energy products, and participating in the low-carbon transformation of energy are paths to use the market’s own adjustment mechanism. the establishment and improvement of the carbon emission trading system is a model for incentivizing enterprises to reduce emissions through market mechanisms. through the development orientation of green and low carbon, sharing energy transformation experience, and ensuring that china’s energy low-carbon transformation path is stable and far-reaching. for the new energy field, it shoulders the important mission of leading the energy revolution and accelerating the realization of the “double carbon” goal. to this end, it is necessary to break the original access barriers and attract many enterprises to enter the market with a more open and inclusive attitude to provide a variety of clean and low-carbon energy products. this can not only stimulate market vitality, promote technological innovation and industrial upgrading, but also effectively respond to the urgent needs of the “double carbon” goal and promote the fundamental change of energy production and consumption patterns. the breakthrough progress of subversive technologies, the rapid decline rate of technical costs, and the energy market choices under the strong guidance of the “double carbon” goal will all profoundly affect china’s medium and long-term energy investment layout and the vigorous development of new business forms. these variables make the development path of the new energy field complex and changeable (ji, q., sun, x. l., & ma, y. r., 2024, pp. 80-98, p. 244). it is particularly important to build and improve the incentive mechanism in the new energy field. the incentive system can be established in the form of legislation, and a variety of means such as tax reduction and exemption, loan support, price preferential treatment, and financial subsidies can be comprehensively used to actively advocate and steadily promote the participation of enterprises and individuals (wang, f. b., 2011, pp. 90-99). the british government’s model of simplifying the access and management requirements for energy storage and demand response equipment, allowing demand response providers to transfer asset equipment, and obtaining superimposed benefits from the capacity market and auxiliary service market maximizes the protection of the interests of energy market entities, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 76 published by scholink inc. which can provide experience for china’s incentive policies for new energy access to the market. 5.3.2 market supervision link market supervision is an important means to ensure fair competition in the energy market and maintain market order. in terms of market supervision, the energy law emphasizes the establishment of an energy market system with multiple subjects, unified openness, orderly competition, and effective supervision, standardizing market order according to law, and equally protecting the legitimate rights and interests of various market entities. in order to achieve effective supervision, it is necessary to establish a market supervision system from two levels of economic supervision and social supervision to form a modern energy supervision system. the primary task of setting economic supervision is to clarify its functional positioning to ensure the healthy operation of the market mechanism and the construction of a fair competition environment. in the energy market, the primary function of supervision should focus on maintaining market order, protecting consumer rights and interests, and promoting sustainable development. the key to effectively regulating the problems caused by unclear market access thresholds and imperfect exit mechanisms for energy enterprises in the supervision link lies in establishing a sound regulatory framework and clear policy guidance. for the disorderly and excessive competition caused by unclear market access thresholds, referring to the american energy storage model, it is required that each energy industry independent operator (rtos and isos) establish relevant market models and rules, including technical parameters, scale requirements for participating in the market, and qualifications, so that energy supply enterprises can participate in all energy markets operated by rtos/isos. increase the supervision and punishment of low-price competition, malicious competition and other behaviors, and maintain market order and protect consumer rights and interests through fines, market ban and other means. for the lack of exit mechanism of energy enterprises, it is necessary to build a set of perfect exit procedures and policy support systems. this includes setting up special funds to provide financial assistance and transformation guidance for enterprises that need to exit due to poor management or backward technology; formulating clear exit procedures and timetables to ensure that enterprises can exit the market in an orderly and efficient manner and reduce the impact on market order. in addition, an information sharing platform should be established to promptly release enterprise exit information to facilitate market participants to adjust strategies and optimize resource allocation. the core of social supervision in the energy market is to effectively manage risks and ensure market stability and safety. to achieve this goal, it is very important to strengthen the monitoring and early warning mechanism, which requires close cooperation and clear division of labor between cross-departments. first of all, the scope of responsibilities of each regulatory department should be clarified. the complexity of the energy market requires that a clear division of responsibilities must be established between different government departments. the energy competent department should be responsible for the formulation of energy policies and the overall supervision of the market, the environmental protection department should focus on the environmental impact assessment and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 77 published by scholink inc. supervision in the process of energy development and use, and the safety supervision department should ensure the safe operation of energy facilities. through a clear division of responsibilities, each department can focus more on its work and avoid regulatory blind spots. secondly, it is necessary to establish a cross-departmental cooperation mechanism. set up cross-departmental coordination agencies or joint meeting systems, hold regular meetings, share and analyze energy market monitoring data and risk early warning information, and jointly discuss response measures. this mechanism helps to break down departmental barriers, promote information sharing, and improve regulatory efficiency. all departments should strengthen communication in cooperation, jointly formulate regulatory policies, and ensure the consistency and coordination of policies. finally, it is necessary to strengthen the construction of monitoring and early warning systems. using modern information technology, integrate the data resources of various departments, and establish a unified energy market supervision information platform. the platform should have the functions of real-time monitoring, data analysis, risk early warning, etc., to provide strong support for cross-departmental cooperation, and facilitate each department to find market anomalies in a timely manner, jointly assess risks, quickly formulate and implement response measures, and effectively prevent energy market risks. 5.3.3 market exit link the legalization of the energy market access system is the key to ensuring the healthy and orderly development of the energy field. the market exit link in its institutional system construction is also important, and it is designed to ensure the dynamic balance of the market and the optimal allocation of resources through standardized procedures. the construction of this exit system needs to start from two core dimensions: active exit caused by poor management and passive exit caused by non-compliance with regulatory requirements, taking into account the convenience and efficiency of active exit and the strict supervision of passive exit. through detailed legal provisions, clear procedural arrangements, and perfect interest protection mechanisms, it ensures the continuous and healthy development of the energy market and promotes the transformation, upgrading and sustainable development of the energy industry. in terms of active exit, it mainly targets energy enterprises that are unsustainable due to fierce market competition, poor management, backward technology, or continuous decline in economic benefits. in order to encourage and standardize the orderly exit of such enterprises, a simple exit procedure should be applied. the information such as the intention to apply for simple cancellation registration and the commitment of all investors should be actively announced to the society through the “simple cancellation announcement” column of the national enterprise credit information publicity system. through fast liquidation processes, debt restructuring guidance, and employee resettlement assistance, the exit process is ensured to proceed smoothly and market shocks are reduced. the simple procedure does not mean that the exit of energy enterprises is not supervised by the energy competent department. in the exit process, they still need to follow the relevant energy management system. after being reviewed and approved by the energy competent department and the government, when the market exit www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 78 published by scholink inc. of the enterprise involves the responsibility of the enterprise’s statutory quota system, it is necessary to realize the stable transfer of the responsibility of the statutory quota system under the supervision of the government, ensure the safety needs of china’s energy strategy, realize the survival of the fittest, and ensure the efficient supply of energy (shi, j. c., & li, c. g., 2009, pp. 18-23). however, the simple exit procedure is not applicable to all enterprises. for example, enterprises involved in complex creditor-debtor relationships or with serious illegal acts may not be able to apply for this procedure. therefore, from the perspective of government regulation, the exit of energy enterprises should also have restrictive conditions, and when a series of chain reactions are caused after the exit, a perfect interest protection mechanism should be established to alleviate the negative impact of the exit enterprises on the social economy. for energy enterprises that are ordered to exit due to violations of environmental protection standards, safety production regulations, market manipulation behaviors, or other regulatory requirements, the exit mechanism needs to be more strict and punitive. for energy enterprises that are ordered to exit due to violations of laws and regulations, their legal responsibilities shall be investigated in accordance with the relevant provisions of the administrative license law, including punishment for illegal acts and administrative sanctions for responsible personnel, etc. an information disclosure and blacklist system should also be established to increase the cost of violations and form an effective deterrent. in order to prevent the occurrence of market monopoly or unfair competition behaviors, the regulatory agency also needs to closely monitor the asset disposal process of the exiting enterprise to ensure that it does not carry out asset transfer or market manipulation at the cost of harming public interests when exiting. if an energy enterprise is ordered to exit due to violations of laws and regulations and cannot continue to operate, involving the liquidation of creditor-debtor relationships, asset disposal and other matters, referring to the relevant provisions of the bankruptcy law, the bankruptcy liquidation procedure can be initiated to fairly liquidate its creditor-debtor relationships and ensure that the interests of creditors are maximized. for enterprises that are forced to exit due to public interests such as public safety, industrial regulation, regional development, technical standards, and environmental protection, the government should provide necessary transformation support, such as financial subsidies, technical guidance, etc., to help them smoothly transition to new fields or new business forms that meet the requirements of new policies, so as to achieve the smooth transition of the market and the effective reuse of resources and ensure compliance with administrative supervision requirements. 6. conclusion the energy market access system plays a vital role in promoting the low-carbon transformation of the energy structure and achieving the “double carbon” goal. it is not only related to the healthy development of the energy industry but also a key legal tool to achieve energy security, efficiency, clean low carbon, and energy justice. with the acceleration of the global energy transition, china’s energy market access system needs to be in line with international standards and reflect the urgent www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 79 published by scholink inc. needs of domestic energy structure adjustment. the problems existing in china’s current energy market access system restrict the healthy development of the energy market and hinder the low-carbon transformation of the energy industry. therefore, it is particularly urgent to build a more perfect and efficient energy market access legal system. in order to meet the requirements of the “double carbon” goal, the legal construction of china’s energy market access system should follow the guiding ideology of promoting the low-carbon transformation and sustainable development of energy and adhere to the basic principles of energy security, efficiency, clean low carbon, and energy justice. on this basis, a institutional system including market access, market supervision, and market exit should be constructed to ensure fair competition and healthy development of the energy market. by improving the energy market access system, promote the technological innovation and industrial upgrading of the energy industry, improve energy efficiency and sustainability, and ensure energy security and market order. this is not only conducive to achieving the “double carbon” goal but also the only way to promote the high-quality development of china’s energy industry. the legal construction of china’s energy market access system is a systematic project, which requires the joint efforts of policy makers, energy enterprises, and all sectors of society. under the guidance of the “double carbon” goal, through continuous institutional innovation and legal improvement, it will contribute chinese wisdom and chinese solutions to the realization of the green, low-carbon, and sustainable development of china’s energy industry and even the global energy transition. references feng, s. 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(2014). construction of the legal system for energy property transactions in china. commercial times, 2014(14), 121-123. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 58 original paper research on copyright recognition of content generated by artificial intelligence jinyang gao 1* 1 school of marine law and humanities , dalian ocean university, liaoning, dalian, china * corresponding author, e-mail: 2241777048@qq.com received: april 01, 2024 accepted: may 17, 2024 online published: may 26, 2024 doi:10.22158/elp.v7n1p58 url: http://dx.doi.org/10.22158/elp.v7n1p58 abstract with the rapid development of artificial intelligence technology, artificial intelligence has developed into “expressive artificial intelligence”, artificial intelligence-generated content (aigc) is more and more widely used in various fields. however, there are still some disputes and confusion about the copyright ownership of these machine-generated content. this paper first introduces the basic concepts and characteristics of artificial intelligence-generated content under the current background. secondly, this paper discusses the positioning of aigc in the copyright law and the difficulties in protecting the rights and interests through the different views and legislative practices on the copyright recognition of artificial intelligent-generated content in the world. finally, in view of the current disputes, such as "creative requirements" and "human participation", this paper puts forward the possible ways to solve this problem in the future, including improving the copyright law to clarify the right ownership and responsibility of aigc, learning from foreign experience, and establishing the copyright ownership system of aigc, etc., which provides a useful reference for the formulation and practice of relevant laws and regulations. keywords artificial intelligence, generate content, copyright, rights and interests protection 1. introduction with the widespread development and utilization of ai tools, artificial intelligence-generated content has become an important field in today’s digital age. at present, there are a large number of artificial intelligence software and platforms on the market that can automatically generate content such as text, images, audio and video and distribute it through internet channels, and the copyright of these generated content is difficult to determine. in the traditional creative process, copyright usually belongs www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 59 to human creators, who have produced the work through their own intelligence and creativity. however, when ai began to participate in the generation of content, the issue of copyright ownership became ambiguous. an inconvenient question also arises: who owns the copyright to the ai-generated content? this issue involves many aspects such as intellectual property protection, creators’ rights and interests, and laws and regulations. this paper will focus on legal and ethical aspects, as well as comparison and analysis at an international level. at the same time, we will also discuss the impact of technological development on copyright ownership, and look forward to the future development direction and trend. 2. artificial intelligence-generated content overview 2.1 definition and scope aigc (artificial intelligence generative content) is a kind of new artificial intelligence technology, it is a technology based on machine learning and natural language processing, be able to generate text, images, audio and video, such as various types of content, this content can be news articles, novels, music, or software code. by analyzing large amounts of data and text, the aigc system has learned to imitate human creativity, with characteristics of anthropomorphism, innovation, and high quality of generated content. in the past few years, aigc has been widely used in many fields, such as natural language processing, machine translation, intelligent customer service, advertising and marketing. 2.2 the dispute and confusion of copyright ownership the controversy and confusion of copyright ownership mainly stems from the difference between the creation process of artificial intelligence-generated content and the traditional creation method. (wang, 2023) traditionally, copyright has usually belonged to human creators, who produced their works through their intelligence and creativity. however, when ai is involved in content generation, whether it is creative and original becomes the focus of controversy. the process of ai content generation is usually based on large amounts of data and algorithms to generate new content by learning and imitating existing works. (sun, 2023) this raises a number of questions: whether the generated content can be considered independent creations, whether it qualifies for copyright protection, and whether the developers and owners of ai should be considered creators. different countries and regions have different views on this issue. some countries believe that only human creators can enjoy copyright, and ai is only seen as a tool or an aid to creation. other countries believe that ai-generated content can be considered independent creations, entitled to copyright protection, and may ascribe copyright to the developer or owner of the ai. in terms of law and ethics, artificial intelligence has ostensibly closed the gap between purely mechanical activity and human thought, and content generated using artificial intelligence seems to have traces of chilean creation. existing copyright legal frameworks are often designed for human creators and are difficult to adapt to the particular circumstances of ai creation. how to balance the creative contribution of ai with the rights and interests of human creators, how to ensure reasonable copyright protection, and how to harmonize legislation and practice at the international level are all www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 60 challenges that need to be addressed. 3. international perspectives and practices on copyright recognition of artificial intelligence generated content 3.1 views and practices of copyright recognition abroad copyright laws in the united states generally ascribe copyright to human creators, treating ai as a tool or an aid to creation. in 2022, the united states copyright office reruled the copyright protection of artist kristina akashtanova’s comic book charia at dawn: since the work was created with the involvement of the ai painting tool midjourney, kristina kashtanova owns the copyright on the coordination and arrangement of text and visual elements, but it does not apply to the generation of the ai painting tool. the american version of global stated in the file that the image works created using tools such as photoshop were manually involved from the initial conception to the entire production process, therefore, the works are protected by copyright, and the works completed by ai tools such as chatgtp and midjourney are completely automatically completed by machines during the entire creation process, and the training data is completely based on the existing works of humans, so they are not protected by copyright law. in addition, the u.s. copyright office also stipulates that visual and textual works applying for copyright protection need to clearly indicate which parts are completed by ai and which are completed by humans, and if the parts completed by robots exceed the maximum limit, they should not be placed in the works for copyright law application. according to the united states copyright office, copyright law can only protect human intellectual creation, the results formed by natural phenomena or animal and plant activities cannot be registered for copyright, content generated solely by artificial intelligence usually does not meet the requirements of copyright protection, because they lack human creativity and originality. some european countries hold different views on the copyright ownership of ai-generated content. for example, the united kingdom adopts the computer-generated works system, which believes that the copyright of computer-generated works belongs to the person who needs to arrange the creation of the work, that is, artificial intelligence itself cannot become the copyright owner of its automatically generated works, but artificial designers or enterprises can have this right. ireland's copyright and related rights act 2000 states that when a work is "computer-generated and its author is not a person," the owner of the work is "a person who has made the necessary arrangements for the creation of the work." france, on the other hand, argues that ai-generated content can be regarded as independent creations, with copyright protection, and that the copyright belongs to the developer or owner of the ai. 3.2 relevant provisions of copyright law in china at present, the current legal documents issued in china have not given a conclusive evaluation of whether the ai products are in line with the works in the sense of the “copyright” law. in the existing cases in china, completely opposite views have also been formed on whether ai-generated works are “works”. it can be seen from the law that the works referred to in china’s copyright law “refer to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 61 intellectual achievements with originality in the fields of literature, art and science and can be expressed in a certain form”, so the works have two essential components: “originality” and the content belongs to “intellectual achievements”. although china issued the “measures for the management of generative artificial intelligence services (draft for comments)” in 2023, the document only stipulates that the provision of generative artificial intelligence products or services should comply with the requirements of laws and regulations, respect social morality, public order and good customs, and the pre-training and optimization data used for generative artificial intelligence products shall not infringe. it is not clear how to identify the copyright of artificial intelligence-generated products and how to resolve infringement disputes. 4. controversy over the ownership of copyright in content generated by artificial intelligence 4.1 the applicability of copyright to ai generated content the current copyright law mainly revolves around the rights and responsibilities of human creators, but with the development of ai technology, the following issues have arisen on the adaptability of copyright: first, the definition of the identity of the creator. in ai-generated content, the ai itself and the developers and users of ai should be considered creators. second, clarify the scope of copyright protection. copyright laws of most countries in the world generally give creators the exclusive right to their works as a way of recognizing power, but for the content generated by ai, how to define its scope and duration of protection is a difficult problem. third, responsibility and rights. according to the principle of consistency of rights and obligations, if ai is regarded as a creator, how should it assume obligations while enjoying the rights of the work and deal with the infringement liability arising from the work? china’s copyright law stipulates that the natural person who creates a work is the author, but legal persons and unincorporated organizations can also be regarded as the author under certain circumstances and bear the corresponding legal responsibility. but ai as a new technology, its development and expansion expand the potential object of intellectual property protection. therefore, it is necessary to clarify the scope of copyright protection and liability allocation for ai-generated works based on the clarification of technical principles, and explore what rights ownership and liability allocation rules can meet the legal needs of protecting the rights holders of ai-generated works while being consistent with china’s practice of artificial intelligence development (tang & niu, 2023). 4.2 the debate about ai as a creator modern artificial intelligence technology can carry out a series of complex mental activities, including cognition and analysis, which lays the foundation for the subjective status of artificial intelligence (qin & zhao, 2023). when computers developed bionic capabilities, people began to notice the contradiction between the intellectual property theory behind artificial intelligence technology and the traditional intellectual property theory. traditional intellectual property theory scholars believe that copyright law should have an identifiable human author, the author can own the copyright, the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 62 computer does not own the personality necessary for property. countries mainly hold two opposing views on the qualification of ai “agents”. some scholars who support ai as a creator argue that, at the level of creative expression, ai can produce high-quality, innovative work, and therefore should be considered an independent creator entity. on an objective level, compared to human creators, ai has less influence on factors such as themes and styles. it is therefore easier to achieve objectivity and impartiality. some scholars argue against ai as a creator: first of all, ai lacks emotions, self-awareness and other unique human characteristics, so it should not be regarded as a creator in the true sense of the word. second, once ai is considered a creator, it brings with it a host of liability and ethical issues, such as who should be responsible for ai-generated content and how to ensure that the content meets ethical standards. other ideas: cooperative model. one way to compromise is to see ai as a partner to the human creator, recognizing ai’s contribution to the creative process, but still seeing humans as the subject of the creative process. regulatory and defining criteria: an appropriate legal framework needs to be established to regulate ai-generated content and clearly define whether ai can be considered a creator. looking at the above points of view, only the view of the cooperation model places the creators of aigc in the technical premise of the production of works to identify, that is, to examine the role of artificial intelligence in the creation process. the creation principle of aigc technology is: first collect enough effective experimental data, and then train the model. through repeated iteration and adjustment of model parameters, the model can master the creation law and skills to generate output. but this process of ai data collection and processing cannot be done independently, it lacks a coherent mode of thinking from “cognition to judgment”, and usually requires the participation of algorithm engineers. it can be seen that although the content generated by artificial intelligence cannot meet the originality requirements required for works in the usual sense, it only shows that artificial intelligence does not have an independent subject status, and it cannot independently carry out creative activities without human control, and cannot be the pure creator of aigc. in the process of artificial intelligence creation from model adjustment to specific creation, there is no lack of signs of human participation in the designer's participation. whether the subject can become a creator needs to be judged by the participation factors (yu, 2022). 4.3 debate on the objectification of aigc copyright based on originality criteria the copyright objectiveness of aigc is a prospective issue for further exploration of its copyright ownership, exercise and limitation, which must be clarified first (yang & wang, 2023). at present, it is generally accepted that whether a work has originality is the primary criterion for determining whether it can enjoy copyright. therefore, the objectivity of aigc copyright can be analyzed from the perspective of originality criterion. there are two international standards for the recognition of originality: originality subjectivism standard and originality objectivism standard. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 63 the subjectivist standard holds that the process of independent creation is essential to the composition of a work, this standard is based on philosophical theories such as locke, kant, hegel, and others on property rights and author rights, it holds that the creation of works is a process from scratch, in which the work must be endowed with a clear purpose of creation and the emotional expression of the creative subject, rather than the originality of the work simply from the perspective of the result. in the pre-modern form of copyright law, the immaterial object is not regarded as a thing, but more as a concretely accomplished act, whose expression is embodied in the immaterial creation process in the material form (brad & lionel, 2012). as seen from the creation of artistic works, whether it is a painter or a calligrapher, what they have is not limited to the work itself, but more in their creative expression. at the same time, subjectivism adopts the dual structure, combining the property rights of works with the personality rights, and attaches great importance to the protection of authors’ intellectual achievements. its purpose is to encourage people to engage in intellectual creation activities through the protection of authors’ rights and interests. the objectivist standard holds that objects with the appearance of works can be regarded as works, this standard holds that in concrete practice, it is more feasible to use objective standards, that is, the appearance of the finished works, rather than the subjective psychology in the creation process (yang, 2021). because the subjective creativity generated by the creator in the creation process is often difficult to identify after the fact, the certification is more difficult. the work itself, as the final result of the creative process, can be effectively and objectively identified; on the other hand, as the main product, it is a bridge between the creator and the viewer. objectivist standards shift the identification of originality from the process of creation to the final form consideration of the completion of the work, in fact, in response to the gradual change in the way of intellectual property protection under the new technology industry model, its attention is shifting from intellectual labor and creativity to a relatively closed entity. in the judgment of the object of copyright, subjectivism standards ignore the causal relationship between creation and works, while objectivism standards may expand the interpretation of works in copyright law to a certain extent and damage public interests. in fact, whether subjectivist or objectivist standards are adopted, they are not completely opposed in determining the objectification of copyright, and taking the two as common reference standards can well solve the problems arising in the process of judging the works of an object from a single perspective. therefore, it provides theoretical support for the objective analysis of aigc copyright in the field of new technology industry in line with technical rationality and institutional rationality. 4.4 content issues arising from ai and human cooperation ai and humans belong to different fields of things, the two objectively have different attributes, although humans can currently control ai, but the future development of artificial intelligence is unknown. the work produced by ai and human cooperation is uncertain and may face the following difficulties: first, the specific contribution and responsibility of humans and ai are defined, and how to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 64 deal with copyright and intellectual property rights in collaborative creation. second, does ai generated content have sufficient originality and creativity, and whether it can be integrated and coordinated with the creativity of human creators to achieve the quality standards expected by humans. finally, the application and specification of relevant laws, regulations and ethical standards in the creation of works by ai and human cooperation, and whether the rights and interests of relevant parties can be protected. these issues need to be explored and collaborated on in areas such as law, ethics, technology, etc., in order to achieve balance and consensus on ai co-creating works with humans. in particular, on the legal side, relevant laws and regulations and ethical guidelines need to be developed to ensure that cooperation between ai and human creators can be reasonable, fair and mutually beneficial (feng & pan, 2020). understanding and respecting the positions and interests of different stakeholders and finding a balance is an important factor to consider when ai collaborates with humans to create works. 5. take the existing artificial intelligence jurisprudence as the starting point artificial intelligence technology greatly facilitates people’s life and work needs, but the problems it causes are very complex, through the analysis of aigc copyright dispute cases is conducive to effective legal regulation. in august 2023, “li mou v. liu mou infringement of his copyright to make pictures with aigc” was tried by the beijing internet court. in this case, the plaintiff li mou generated a series of pictures based on the model by installing the open-source stablediffusion integration package, and uploaded the pictures to an internet platform. the defendant liu used the plaintiff’s ai produced pictures as illustrations in his hundreds of articles, so the defendant sued the court, asking the defendant to bear the responsibility for copyright infringement, apologize and pay 5,000 yuan in compensation. the beijing internet court believes that there are three controversial points in this case: first, whether the ai product constitutes a work in the sense of china’s copyright law; second, if the ai product constitutes a work in the sense of copyright law, how does its copyright belong? the third is whether the accused tort constitutes an infringement, and if so, how to bear the tort liability. it can be seen that whether ai products constitute works interpreted in copyright law, that is, whether they are original expressions, is the primary focus of controversy in copyright infringement lawsuits. whether artificial intelligence is involved or not, copyright law protection is the original expression made by human beings in the field of literature, art and science, which involves four points: subject issue, originality, cultural field and subjective expression, which need to be judged separately according to the case. in this case, there is a direct connection between the plaintiff’s choice of data input, trigger condition setting, template and speech style and the specific form of expression of the picture, which is determined by the plaintiff’s personalized selection and arrangement. therefore, the picture contains intellectual choice and has originality, and should belong to the copyright law of china. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 65 6. take institutional suggestions on the copyright ownership of content generated by artificial intelligence 6.1 learn from the relevant experience of copyright abroad anglo-american law countries are at the forefront of the world in the study of artificial intelligence products, and try to respond to the issue of artificial intelligence and copyright from the legal level. in this regard, we can try to learn from the legislative experience of anglo-american law countries. the united kingdom recognizes the nature of the work of the product of artificial intelligence, and the copyright belongs to the person who is “necessary to arrange” in the creation of the work, but the specific author is required to judge on a case-by-case basis. compared with traditional works, the term of copyright protection of this work is limited to a certain extent. the united states has not made special legislation on this issue, but its copyright law has also taken into account its own applicability to artificial intelligence products in the process of revision, and up to now, it has formed a consensus that artificial intelligence products can be granted copyright as long as they meet the standards of the copyright law, and there are also precedents on the copyright of artificial intelligence products belonging to the designer. japan in the “intellectual property promotion plan 2017” shows that in the current system, artificial intelligence products can not become the object of protection of property rights, it is not an expression of ideas, can not become the object of copyright, but for the recovery of investment costs, curb free riding on public resources, products should be protected. in terms of specific protection measures, it is suggested to register by trademark registration to prevent the occurrence of impostor behavior, or to invoke the provisions of the anti-unfair competition law to give developers the right to claim damages for the unauthorized use of products. based on the above experience of overseas practice, china can also refer to the establishment of the “calculated works system”, in the process of ai creation without the designer’s substantial participation, the copyright of aigc works belongs to the developer, or the trademark registration is adopted to register, and the copyright problems caused by this can be traced to the source regulation. 6.2 the copyright law shall improve the provisions on aigc rights confirmation to improve the copyright law in the era of aigc technical creation, we should first clarify whether aigc belongs to the works explicitly interpreted in the copyright law, that is, whether the generated content should be protected by the copyright law. as mentioned above, artificial intelligence products, with the participation of participants, comply with the provisions of the copyright law on works and are copyrightable. in order to realize the equal protection of artificial intelligence products, judges should abandon the original concept of “non-human creation” to deny its work attributes, and judge it strictly according to the elements of the work. at the same time, the legislature should also strengthen the research on legal issues in the field of artificial intelligence, and build a specific system of copyright in line with the development of the times. to improve the copyright law, we should first affirm the status of works, and our country has reservations about the answer to this question in the draft of the “generative artificial intelligence service management measures”, so when affirming the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 66 status of works, a provision can be added to the back of article 3 of the copyright law, “artificial intelligence products that meet the conditions for human participation should be identified as works”. secondly, since artificial intelligence has the characteristics of high creative efficiency and the iteration cycle of technology is getting shorter and shorter, it is necessary to distinguish its copyright protection from that of traditional works, and appropriately shorten its protection period. specifically, we can refer to the provisions of the universal copyright convention on the protection period of property rights of works, and the protection period can be set at 25 years. the starting point is the first publication of the product. 6.3 institutional construction of aigc copyright ownership different countries and regions have different views and practices on the ownership of aigc copyright. when formulating specific systems, it is necessary to comprehensively consider domestic legal environment, social culture and technological development and other factors, and carry out cooperation and exchanges on an international scale to promote the formulation and implementation of relevant laws. according to the historical situation of the development of copyright law in china, the construction of aigc copyright ownership system can be placed on two issues: one is how to let developers or users obtain rights, and the other is what way to obtain rights. in the acquisition of rights, the system of works for special positions may be applied by analogy. the technical developers of aigc are regarded as “employers” and the users as “employees” in the system of special job works, and the ownership of the rights of the works is determined in advance in the form of clauses during the creation process, if not determined, the users enjoy the rights. the construction of the ownership system can be consistent with the system logic of special job works and can balance the interests of all parties (zhu & peng, 2020). in the way of obtaining rights, the registration system of works generated by artificial intelligence can be adopted. china’s copyright law adopts the method of automatic acquisition after the completion of the creation of works, but compared with ordinary human works, the use of artificial intelligence to create works has obvious advantages of high efficiency and large quantity. by adopting the method of registration acquisition, works with low creation level can be screened out by the registration authority. for the creation of high-quality works into the market can promote the prosperity of the cultural industry. in addition, the name of the artificial intelligence program can be attached to the registration to facilitate the identification of disputes over the rights of works in the future. 7. conclusion clarifying the legal attributes and copyright ownership of artificial intelligence-generated content is helpful to settle disputes and build a good cultural market order. from the perspective of economics, aigc can also meet the actual needs of the market in the information age and promote the prosperity of the field of literature and art. although the views on the protection of intellectual property laws in the world are not uniform, the fundamental purpose of the establishment of copyright is to protect the substance of product creation, and the market needs literary works that can promote social development. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 67 at present, china has promulgated the “measures” to supplement and improve the issue of the rights and responsibilities of artificial intelligence, and on the whole, the contradiction between technological development and legislative lag has been solved in a timely manner, but the provisions of the “measures” still have a large degree of reservation. the development trend of future artificial intelligence is difficult to predict, but either way, when dealing with the complex and changeable market, we should return to the source and explore the related issues in the field of copyright from the spirit of legislation and the advantages and disadvantages of social development. references brad, s., & lionel, b. 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(2023). on the rights holder and copyright ownership of artificial intelligence-generated works. fujian forum (humanities and social sciences edition), (11), 107-122. wang, y. (2023). "is chatgpt generated content copyrighted?" shanghai science and technology news, 6. yang, l. h. (2021). research on copyright of artificial intelligence products. modern law, 43(04), 102-114. yang, l. h., & wang, s. t. (2023). reflections on the objectiveness of copyright in artificial intelligence-generated content -and on the selection of originality criteria for judging works [j/ol]. journal of beihang university (social sciences edition), 1-17. yu, w. w. (2022). on the ownership of rights of artificial intelligence-generated content in copyright law. journal of university of chinese academy of social sciences, 42(02), 89-100+146-147. zhu, h. j., & peng, g. b. (2020). copyright ownership of journalistic works: history, disputes and suggestions—comments on article 16 of the draft amendment to the copyright law of the people’s republic of china. friends of the editor, 2020(10), 81-87. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 5, no. 2, 2022 www.scholink.org/ojs/index.php/elp 11 original paper research on the current situation and countermeasures of digital economy gao fuxia 1 1 college of finance and economics, sichuan international studies university, chongqing 400031 received: october 1, 2022 accepted: october 26, 2022 online published: november 14, 2022 doi:10.22158/elp.v5n2p11 url: http://dx.doi.org/10.22158/elp.v5n2p11 abstract with the birth and rise of the digital economy, it has promoted the development of new forms of digital economy. a new round of data technology revolution has become the trend of the times, especially under the impact of the epidemic, the digital economy has become the engine of economic development. however, some problems have emerged in the development of new business types. the “digital divide” problem is still serious, the digital transformation path of enterprises is not clear, the legal system and regulatory capacity are not in place, high-end talents in the digital economy are scarce, and the innovation ability of the digital economy is weak. in this regard, actively explore the road of digital economy development, and put forward corresponding countermeasures and suggestions, to provide reference for accelerating the improvement of high-quality and sustainable development of new forms of digital economy, and promote new changes and breakthroughs in new forms of economy. keywords digital economy, new business type, countermeasures and suggestions funds supporting: this research was funded by the general project of humanities and social sciences research of chongqing municipal education commission, grant number 21skgh141, and the general project of science and technology research of chongqing municipal education commission, grant number kjqn202100903. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 12 published by scholink inc. 1. introduction at present, human society is entering a new era of “all things are data”. the digital economy has become a new stage in the development of human history after the agricultural economy and industrial economy. up to now, knowledge economy and digital economy have shown a trend of integration. gong ke, president of the world federation of engineering organizations and executive director of china new generation artificial intelligence development strategy research institute, pointed out that “digital economy is actually an economic form driven and promoted by digital productivity”. it can be predicted that all scientific progress in the future will show the trend of digital development. 2. current situation and trend of the development of china’s digital economy (1) the development scale of new forms of digital economy in china continued to grow. from the perspective of the development process of new forms of digital economy, the new forms of digital economy in china have developed rapidly in recent years. recently, china internet network information center (cnnic) released the 49th statistical report on the development of china’s internet, pointing out that by december 2021, the number of internet users in china had reached 1.032 billion, and the internet penetration rate had reached 73.0%. with the prosperity and development of mobile internet, the price of mobile terminals such as smart phones is lower, the coverage of “village to village” is wider, and the internet demand of the elderly is stimulated, further promoting the growth of the demand for new forms of digital economy. the capital market driven by the new format of the digital economy remains rational and enthusiastic. the focus of investment is gradually shifting to areas that can directly improve the people’s living conditions and promote the sustainable development of the real economy. the high-quality development of the new format of the digital economy industry will become the core growth point under the digital economy ecology. (2) the development trend of new formats of digital economy. first, at the level of means of production: from material input to knowledge input. with the continuous emergence of new formats and technologies such as big data and cloud computing, knowledge and technology play an increasingly prominent role in the production process, and economic growth increasingly depends on the input of knowledge. however, the traditional industrial economy that relies on the input of material production factors will gradually be replaced by the innovation of knowledge and technology. the development of new forms of digital economy will provide new impetus for promoting social and economic growth. the second is production mode: from high cost production to low-cost replication. the biggest feature of the digital economy is the high cost of research and development, but the cost of replication and distribution is very low. the development of new formats of digital economy has promoted the transformation of a large number of production processes to digital and intelligent. because of its low promotion cost, it can integrate social and economic resources more efficiently. the third is the level of resources and environment: from seizing resources to environmental protection. the development of new formats of digital technology has not only introduced new applications and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 13 published by scholink inc. created digital life, but also bred new products, new services and new models. the wide application of digital technology has greatly improved the productivity of human beings. human production activities have gradually got rid of dependence on natural resources. they have changed from seizing natural resources and destroying the ecological environment for survival and development to improving the quality of life, protecting natural resources and restoring the ecological environment, promoting the harmonious development of human society and the natural environment. 3. the problems existing in the development of new digital economy (1) the “digital divide” is still a serious problem. the emergence of new forms of digital economy has greatly promoted china’s social and economic development, and the “digital divide” problem caused by uneven digital development has become increasingly prominent. the uneven distribution of data among different industries, regions and groups has led to insufficient data sharing, data interaction, open use and other problems among market subjects, especially for the elderly and rural groups. in addition, due to institutional reasons, there is still a serious “data island” phenomenon in china’s digital economy industry. the difference in data format and interaction protocol, as well as the lack of data tagging, cleaning, desensitization, aggregation and other links, aggravate the asymmetry of data distribution among different industries, regions and groups, and restrict the development of digital economy industry. (2) the digital transformation path of enterprises is unclear. the digital transformation of an enterprise is not only a technical update, but also an all-round change in business philosophy and operation strategy. however, enterprise managers generally focus on how to introduce information systems at the production end, ignoring the update of business philosophy and operation strategy. the internal digital transformation strategy of an enterprise is not clear and the incentive system is not perfect, which has brought great challenges to its digital transformation process. (3) the legal system and regulatory capacity are not in place. at present, china’s digital economy governance system and relevant laws and regulations are becoming more and more perfect, but there are still some shortcomings. large enterprises in various industries often wander in the blind area of legal supervision, take advantage of their huge user group, excessively collect user information, and monopolize the entire industry through high-tech means such as algorithm manipulation, data crawling, big data analysis, etc.; in order to survive, many small, medium-sized and micro enterprises would not hesitate to take advantage of loopholes in the legal system by means of pushing advertisements, bundling applications, linking illegal websites, etc. how to use technical means to identify violations is a major problem in the process of digital economy supervision. (4) high-end talents in the digital economy are scarce. because the development of digital economy in our country is still at an initial stage, although staff of various fields are gradually deepening the integration and development of the economy, but the high-end talent in the field of digital economy is relatively scarce, its influencing factors involve many aspects. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 14 published by scholink inc. (5) the innovation capacity of the digital economy is relatively weak. in the process of developing new forms of digital economy, the innovation ability, production efficiency and high-end supply of digital economy still have a certain gap compared with the developed countries, and the control of core technology by others still exists. digital empowerment and smart space are mostly just basic applications of the digital economy. especially for some micro, small and medium-sized enterprises, their application and innovation capabilities of the digital economy lag far behind those of large enterprises. their basic advantages have not been fully exploited and they have not been able to enjoy the “digital dividend”. due to the relatively weak core innovation capability, many difficulties and challenges are encountered in the transformation and upgrading process, and the efficiency and effect of innovation capability need to be further improved. 4. the countermeasures and suggestions to promote the development of new forms of digital economy (1) promote the coordinated development of digital economy in different regions. infrastructure is a necessary foundation for the development of digital economy, including the internet, 5g base stations, cloud platforms, etc. in promoting the coordinated development of digital economy in different regions, infrastructure construction is the first step. at the same time, different regions should actively respond to various important initiatives issued by the state and the government, as well as the guidance and plans on coordinated development. different regions should, in combination with their own geographical location and development level, find the advantages shown in promoting coordinated development compared with other regions, especially the neighboring regions, and the opportunities that digital economy development in other fields can bring to the region, give full play to their own advantages, seize the development opportunities, and actively share the knowledge and practical application experience of digital economy by building an information sharing platform for digital economy and actively communicating and learning with various regions, so as to gradually eliminate the current situation of data segmentation and promote the coordinated development of regional digital economy. (2) accelerate the transformation and upgrading of digital economy enabling industries. on the one hand, agriculture is an important industry related to the national economy and the people’s livelihood. in order to accelerate the digital economy enabling agriculture, a digital sharing platform for agriculture can be established. based on this sharing platform, the supply side of agricultural products can be connected with the demand side “in zero time and zero distance”, greatly reducing the cost of sending and obtaining information. an efficient and accurate information sharing platform promotes the development of agricultural modernization, not only promoting the digital transformation and upgrading of agriculture, and it has made great contributions to the expansion of china’s digital economy. on the other hand, accelerating the transformation and upgrading of digital economy enabled manufacturing industry is of great significance in promoting the development of new forms of digital www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 15 published by scholink inc. economy in china. as the physical support of national economies, manufacturing industry plays an extremely important role in economic competition. in order to accelerate the transformation and upgrading of digital enabled manufacturing industry, we should accelerate the deep integration of digital economy and real economy. based on efficient and systematic data information platform, manufacturing industry combines digital information technology to realize the intelligent and information-based production of entities, and continue to promote the transformation of traditional manufacturing industry from “manufacturing” to “intelligent manufacturing”. (3) strengthen legal constraints and government supervision. on the one hand, we should accelerate the exploration and development of standards, norms, laws and regulations for data resource management, clarify the legal status of data assets, build a data management system that includes data sending, circulation, receiving and use, establish a sound data security management mechanism, and provide a standardized, institutionalized and scientific legal basis for the application of data resources. on the other hand, in order to improve the healthy and sustainable development of new formats of the data economy, it is necessary to give play to the government's supervision role, clearly divide responsibilities and authorities, explore and develop a regulatory system for the development of new formats to better perform the responsibility of supervision, strengthen environmental supervision, optimize data governance, and build a multi coordinated governance mechanism combining legal constraints and platform self-regulation to provide security for the development of new formats of the digital economy. (4) improve the training and introduction mechanism of high-end talents in the field of digital economy. on the one hand, we should strengthen exchanges and cooperation between different universities at home and abroad on the cultivation of high-end talents in the digital economy, and promote mutual promotion and common progress of digital professionals in different universities. on the other hand, strengthen the cooperation between schools and enterprises. colleges and universities provide theoretical basis for enterprises, and enterprises provide practical platforms for colleges and universities to jointly build a talent training system and talent training base, and jointly cultivate digital economy talents through deepening cooperation. at the same time, the government can provide financial support and policy guarantee for the introduction of high-end talents. through an effective talent introduction mechanism, it can adjust the problems of unbalanced and insufficient development, thus promoting the construction of digital operation and governance system in the digital economy era, and reserving high-end talents for the development of china’s digital economy. (5) increase r&d investment in the digital economy. in order to break through the technical bottleneck of digital economy development, the most direct and effective means is to increase the r&d investment related to digital economy development, strengthen basic technology research, especially for the key and weak links in the digital economy industry chain, increase the r&d investment and related r&d subsidies for digital information technology, focus on breaking through the practical bottleneck of key technologies, and improve the modernization level of new forms of digital economy, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 16 published by scholink inc. achieve competitive advantage in the market with cutting-edge theoretical and practical achievements. at the same time, increase the investment in digital technology research sites on hardware equipment, as well as related infrastructure construction, such as experimental equipment, communication platforms and industrial internet, to create a good technical foundation for the development of china’s digital economy. at the time of the rapid development of digital economy, it has become an important focus to explore the present situation and countermeasures of the development of new digital economy. on analysis of the problems existing in the development, in promoting the digital economy in the development of new formats to take forceful measures to promote the development of the digital economy in different areas of the collaborative linkage, can speed up the digital economy fu industrial transformation and upgrading, strengthen law and government regulation, perfect the digital economy of high-end talent training and introduction mechanism, and increase investment in research and development of digital economy, build a new model of digital economy in china. references chen, n. x., & li, y. (2022). research on the impact of digital economy on the improvement of human capital. journal of northwest population. li, j. m., & han, j. y. (2022). research on the path of promoting china’s digital economy development in the pilot free trade zone. journal of macroeconomic management, 2022(07), 28-35. li, q. h., & he, a. p. (2022). research on the effect and mechanism of digital economy on the coordinated development of regional economy. exploration of economic problems research, 2022(08), 1-13. liu, g. w., li, j. h., & tang, c. g. (2022). digital economy, service industry efficiency improvement and high-quality development of china’s economy. journal of southern economy. liu, r. z., & he, c. (2022). the mechanism and test of digital economy promoting common prosperity. journal of regional economic review, 2022(05), 37-46. wei, l. l., & hou, y. q. (2022). research on the impact of digital economy on the green development of chinese cities. journal of quantitative economy and technology research, 39(08), 60-79. zhang, z. y., & wu, j. x. (2022). analysis on the mechanism and countermeasures of the multidimensional impact of digital economy on employment. journal of science and management. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 2, 2023 www.scholink.org/ojs/index.php/elp 15 original paper is there a policy that reduces mass public shooting deaths? carlisle e. moody 1 1 department of economics, college of william and mary, williamsburg, va 23187-8795, usa received: june 1, 2023 accepted: june 12, 2023 online published: july 21, 2023 doi:10.22158/elp.v6n2p15 url: http://dx.doi.org/10.22158/elp.v6n2p15 abstract the fact that an individual is willing to commit the most serious crime that carries with it the most serious punishment means that that person is unlikely to be deterred by laws with less serious consequences. this situation is compounded by the fact that many multiple victim public shooters are expecting, even planning, to die in the commission of their crimes. combining newly developed and traditional difference-in-differences methodologies, we analyze several policies that have been suggested as possibly effective in reducing deaths due to mass public shootings. we find that none of the proposed policies significantly reduce such deaths. however, we find evidence that mass public shooting deaths are lower in places that allow the carrying of concealed firearms. keywords mass public shootings, policy analysis, difference-in-differences, gun-free zones 1. introduction mass public shooting incidents are rare but horrifying events. such incidents receive intense media coverage and become political events leading to demands that we do something. the obvious question is what should we do? the fact that an individual is willing to commit the most serious crime that carries with it the most serious punishment, life in prison or execution, means that that person is unlikely to be deterred by laws with less serious consequences. this situation is compounded by the fact that many of the shooters are expecting, even planning, to die in the commission of their crimes (note 1). we analyze several policies that have been found to be effective, or suggested as possibly effective, in reducing deaths due to mass public shootings. most of the studies of mass public shootings have employed state-level panel datasets using two-way fixed-effects (twfe) regressions with state and year fixed effects. such regressions have recently been criticized by econometricians studying difference-in-differences analysis. for example, dechaisemartin and d‟haultfoeuille (2020), henceforth cd, show that the sign of the difference-in-differences coefficient estimated using fixed-effects regression could so biased that the coefficient is negative www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 16 published by scholink inc. when all the effects are positive. this finding potentially invalidates nearly all previous analyses concerning the effect of gun laws on deaths due to mass public shootings. fortunately, cd and others have developed a new methodology which generates unbiased estimates of the difference-in-differences. to our knowledge, this is the first study to use this new methodology to investigate the efficacy of state laws with respect to reducing deaths due to mass public shootings. the first analysis of mass public shootings was by lott and landis (1999) arguing that citizens carrying concealed weapons could deter such attacks because potential shooters would not know who might shoot back. in that study the authors studied multiple victim public shootings defined as two or more people killed, except for the perpetrator, in a public place, although they also considered alternative definitions with more people killed. they excluded incidents, “… that were the byproduct of another crime (e.g., a robbery or drug deal); shootings that involved gang activity (e.g., drive-by shootings); professional hits or shootings related to organized crime; and serial killings or killings that took place over the span of more than one day” (lott & landis, 1999, p. 7). a lexis/nexis search found 931 cases over the period 1977-1995. using a tobit regression, they found that right-to-carry (rtc) laws significantly reduced the number of mass public shootings, the number killed, and the number injured. they also found that waiting periods, firearm enhancement laws, and background checks had no significant effect on the number of mass public shootings or the harm they cause. duwe, kovandzic, and moody (2002), using a combination of fbi supplemental homicide reports (shr) and lexis/nexis searches, identified 116 mass public shootings between 1976 and 1999, defined as four or more people killed, apart from the shooter, but including some that occurred during the commission of a crime. using the negative binomial model on this more restrictive definition, they found that rtc laws had negative but insignificant effects on the number of incidents, the number killed, and the number wounded. gius (2015) using mother jones and shr data, estimated the effects of federal and state assault weapons bans for the years 1982-2011, finding evidence that such bans significantly reduced fatalities in mass shootings. gius (2018) found that state assault weapon bans were associated with lower fatalities in school shootings. using data compiled by the congressional research service, fox and fridel (2016) found that mass public shooting incidents were not significantly reduced during the federal assault weapon ban from 1994-2004. however, klarevas, conner, and hemenway (2018) found that bans on large capacity magazines (lcm, more than 10 rounds), including the 1994 federal assault weapons ban which included an lcm ban, were associated with a significant reduction in the number of incidents and the number of fatalities in mass shootings where six or more people are killed. dimaggio, avraham, berry, bukur, feldman, and klein (2019), using linear and poisson regression on national data, also found that the federal assault weapons ban significantly reduced the number of mass public shootings. the authors used data from three sources, but according to webster, mccourt, crifasi, booty, and stuart (2020, p. 173), www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 17 published by scholink inc. inexplicably, the researchers only included cases in their analyses that appeared in all three sources and thereby excluded many incidents of fatal mass shootings. this limited their data to only 51 public mass shootings that presumably were the most widely publicized. the study did not examine variation by state and thus did not consider state gun laws nor did it control for other covariates other than [a] linear trend. koper (2020) finds that mass public shootings in which the shooter used large capacity magazines result in more fatalities than those incidents where shooters did not use lcm‟s. he estimates that lcm bans, if effective, could reduce the number of mass shooting fatalities by 11-15 percent. reeping, cerdá, kalesan, wiebe, galea, and branas (2019) using shr data find that states with more firearms and more permissive firearm laws have more mass shootings. however, shr data misses many mass-shooting events, including newtown, ct and aurora, co (webster et al., 2020, pp. 172-173). on the other hand, lin, fei, barzman, and hossain (2018) using mother jones data, find no association between gun ownership or permissive gun laws and the number of fatal mass public shootings. siegel, goder-reiser, duwe, rocque, fox, and fridel (2020) constructed a database of 143 incidents of mass public shootings of four or more fatalities from 1976-2018 using a variety of sources including shr and media reports. the authors have made their data available online and we use it in this analysis. they analyze the effect of several policies: large capacity magazine bans, assault weapons bans, permit-to-purchase laws, red flag laws, universal background checks, may-issue laws (states without right to carry or permit-less carry laws), relinquishment laws (confiscating guns from individuals that become prohibited from owning firearms), and violent misdemeanor laws (prohibiting individuals from owning firearms who commit a variety of non-felony crimes). they find two of these policies have significant effects. permit-to-purchase laws are found to significantly reduce the number of mass public shootings but have no significant effect on the number of fatalities associated with those shootings. on the other hand, state large capacity magazine bans are found to significantly reduce fatalities but have no significant effect on the number of incidents. a serious drawback to this analysis is that, although it is a panel data of state-years, the authors do not use state fixed-effects to correct for unobserved heterogeneity. as a result, the estimates are biased due to the correlation between the number and severity of mass shootings and unobserved time-invariant factors such as climate, culture, history, political attitudes, etc. webster et al. (2020) analyze a data set created by supplementing shr data with data from the stanford mass shootings in america and the gun violence policy data sets. the threshold is four or more victims, not counting the shooter. they exclude gang-related and crime-related mass shootings but include domestic violence mass shootings as a separate category. they find that permit-to-purchase laws significantly reduce both the number of incidents and the number of fatalities associated with mass shootings. in the robustness section, they also find that lcm bans significantly reduce incidents and fatalities. because of reporting difficulties with the shr, they do not include observations from florida, kansas, kentucky, nebraska, and montana. these omissions are problematic because both the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 18 published by scholink inc. stanford and gun violence policy datasets include both shr and media search data, obviating the need to omit any states. thus, there is some evidence that permit-to-purchase laws, large capacity magazine bans, and assault weapons bans are effective in reducing deaths from mass public shootings. there is little support for any other gun control laws in this literature. nevertheless, a cursory search of the internet on “mass shootings” and related phrases finds many other suggestions for reducing the death toll associated with mass shootings. many sites suggest that universal background checks might be successful. since many mass shooters, especially school shooters are quite young, some sites suggested that safe storage laws and bans on juveniles possessing firearms might be effective. since many mass shooters are willing or committed to die in the act, policies designed to reduce suicide in general could reduce the number of people who adopt mass shooting as their suicidal act (note 2). on the other hand, conservative, gun-rights, and libertarian sites suggest that right-to-carry laws and permit-less carry (also known as constitutional carry) laws would encourage ordinary citizens to carry concealed handguns, allowing them to intervene before police arrive. there is also some evidence that shooters tend to choose places that forbid firearms on the premises, presumably to reduce the probability of potential victims returning fire. if so, it is possible that reducing the number of these “gun-free zones” could save lives (note 3). 2. method 2.1 statistical methodology we do an event study of the effect of the implementation of several policies on the number of deaths due to mass public shootings. the effects are estimated using the dechaisemartin and d‟haultfoeuille (2020, 2022) methodology implemented by their stata program did_multiplegt, which is robust to time and state heterogeneity. the program produces a difference-in-differences estimator, didl which compares the outcome of treated states to untreated and yet-to-be treated states for each of the l periods of the event horizon (cd 2022, p. 3). the statistical significance of each effect is determined using bootstrapped standard errors. the program also generates an overall “average total effect” which is the average of the didl. this average effect is an unbiased estimate of the net benefit of the policy being evaluated (cd 2022, pp. 15-19). control variables are necessary in a crime policy analysis because after a state implements a policy it could also make significant changes in police staffing, court sentencing, prison incarceration and executions. in addition, the outcome could be affected by economic and demographic changes. all these factors could affect crime in the treatment period. the did_multiplegt program calculates the treatment effect using residuals from a preliminary fixed-effects regression of the outcome on the control variables and state and year fixed effects, under the null hypothesis that the coefficient on the policy dummy variable is zero. thus, the results of the difference-in-differences analysis can be sensitive to the choice of control variables. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 19 published by scholink inc. including many potentially relevant control variables reduces the likelihood that the results are biased by omitted variables. however, it also increases the possibility of including irrelevant variables, which will not bias the coefficients but will increase their variance, possibly making relevant variables appear to be insignificant. it is possible to detect irrelevant variables through a general-to-specific (gets) model specification search (hoover & perez, 1999; hendry, 1995). the first step is to designate the policy variables as variables of interest. the remaining variables are control variables included only to avoid possible omitted variable bias affecting the coefficient estimates of the variables of interest. the gets methodology has been successfully used in many applications, e.g., owen and weatherston (2004), muelbauer and nunziata (2004), rao and singh (2006), and reade (2007). multistage automated gets procedures are available for time series applications (doornik, 2008; hendry & doornik, 2014), but these procedures are not available for panel data models. we use an approximation based on the well-known theorem that, if the true t-ratio for a given variable is less than one in absolute value, dropping this potentially irrelevant variable from the original (general) model will reduce the mean squared error (variance plus squared bias) of all the remaining coefficients in the resulting (specific) model (rao, 1971; wallace, 1964). if a wald test on all the variables with t-ratios less than one, called a parsimonious encompassing test, is not significant the reduction from the general to the specific model is justified. the resulting coefficient estimates of the specific model will be more efficient with smaller mean squared errors than those of the general model but could have a small amount of bias. since the number of people killed in mass public shooting incidents is a count variable, we use the fixed-effects negative binomial regression model. we first estimate the general model including all the control variables. we then perform a wald test on those control variables with t-ratios less than one in absolute value. if this test does not reject, the reduction is justified and we estimate the more efficient specific model, formed by dropping the potentially irrelevant control variables in the wald test. if there are variables in the resulting specific model with t-ratios less than one in absolute value, we add them to the wald test. if it does not reject, the further reduction is justified. we continue until there are no control variables in the specific model with t-ratios less than one in absolute value or the wald test rejects. we report the results of both the general and specific models. if the signs on the policy variable of interest are the same for both the general and specific models, then the specific model is not biased to the extent that the coefficient has a different sign. in that case, the more efficient specific model should be preferred for drawing conclusions. since this is an exploratory analysis, it would be appropriate to use the 10 percent significance level. estimating two regressions for each policy means we are testing the null hypothesis of no effect for each policy using the same data twice. applying the bonferroni correction implies that each coefficient must have a p-value less than 0.05 to be significantly different from zero (hendry, 1995, pp. 490-491). thus, we use the five percent significance level throughout. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 20 published by scholink inc. 2.2 outcome the outcome variable is the number of fatalities due to mass public shootings, excluding the shooter. in this analysis, we rely primarily on the dataset compiled by siegel et al. (2020), which in turn is based on duwe (2020). they define a mass public shooting as, “… an incident in which four or more victims are fatally shot in a public location within a 24-hr period in the absence of other criminal activity, such as robberies, drug deals, and gang conflict” (siegel et al., 2020, p. 351). the sample is 1976-2018, although we have supplemented it with observations for 2019 taken from everytown (note 4), violence project, mother jones (note 5), and the crime prevention research center (note 6). the violence project has the database with the longest sample, from 1966 to the present (note 7). they use the congressional research service definition: “… incidents occurring in relatively public places, involving four or more deaths—not including the shooter(s)—and gunmen who select victims somewhat indiscriminately” (note 8). we use the violence project dataset as a robustness check. klarevas (2016, pp. 72-73) has compiled a list of mass shootings that he refers to as “gun massacres”. these are shootings with at least six people killed, excluding the shooter. incidents are not limited to public shootings, and some are related to gangs or other criminal activity. klarevas has also determined which of the gun massacres occurred in gun-free zones. we use the klarevas and the mother jones datasets to test whether the number of people killed in gun massacres are different in gun-free zones. the results are reported in section 7 below. 2.3 policy variables there are four types of public policies that are potentially relevant to mass public shootings. the first consists of policies that make it difficult for potential shooters to gain access to firearms. universal background checks are designed to close the “gun show loophole” such as sales completed in the parking lots outside gun shows and other private sales avoiding the background check that would be required if buying from a dealer. permit-to-purchase laws require anyone who wants to buy a handgun to apply in person for a permit. the relevant authority usually has wide discretion in determining whether to issue the permit. juvenile gun bans prohibit people under the age of twenty-one to possess firearms. safe storage laws prevent unauthorized persons accessing privately owned firearms. red flag laws allow individuals to go to authorities, usually the police, and report that someone they know, such as a family member, neighbor, or co-worker possesses firearms and could be a threat to himself or others. as a result of this complaint, the police can confiscate the subject‟s firearms temporarily until the subject can appear in court, at which time a judge will determine whether the firearms will be returned. the second group of policies are designed to make it more difficult to kill many people in a short period of time. bans on large capacity magazines (lcm) are designed to force shooters to stop and reload more often, limiting the number of people killed. assault weapons bans force shooters to use presumably less efficient weapons. the third group consists of laws that allow ordinary citizens to carry concealed weapons in public, thereby increasing the probability that a shooter will encounter www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 21 published by scholink inc. armed resistance from potential victims and bystanders before the police arrive. right-to-carry laws (also known as shall-issue laws) require that the authority charged with issuing concealed carry permits (e.g., police, judge, or magistrate) must issue the permit unless the applicant is disqualified according to a set of published requirements. we assume this policy increases the number people carrying concealed weapons compared to so-called “may-issue” states where the issuing authority has more discretion. constitutional carry states allow citizens to carry concealed weapons with no permit, presumably increasing the number of people carrying concealed weapons even more than in right-to-carry states. the fourth group consists of traditional crime-control policies. these policies (prison incarceration, police presence, and execution) are designed to deter most potential criminals. while shooters who are willing to die in the commission of their attack are unlikely to be deterred by the threat of prison or execution, expanded police presence could reduce response times, limiting the number killed. we also consider the 1994 federal assault weapons ban, which also included a large capacity magazine ban, in this category. while it is true that individuals who are determined to commit suicide is unlikely to be deterred by any of these policies, there could be some potential mass shooters who are deterred by one or more of them. the firearm policy variables, listed in table 1, are dummy variables constructed from the dates of passage of state laws, taken from the rand state firearm law database (note 9). year zero is the year of passage. table 1. policy dummy variables variables mean state assault weapons ban 0.06 universal background checks 0.08 constitutional carry 0.02 under-21 gun-ban 0.26 large capacity magazine ban 0.06 permit to purchase 0.04 red flag law 0.12 right to carry 0.35 safe storage law 0.18 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 22 published by scholink inc. 2.3 control variables the control variables are listed in table 2. in addition to a dummy variable for the years 1994-2004 when the federal assault weapons ban was in force, we include the traditional policy variables (prison population per capita, the number of sworn police officers per capita and executions per capita) (note 10). we also include real per capita personal income, the unemployment rate, total employment per capita, the poverty rate, welfare payments per capita, alcohol consumption per capita, and population density that are standard in crime equations. we include military employment because military bases concentrate large numbers of young men while also sending many out of the country. the construction industry also employs many young men. as a measure of firearm ownership, we employ the widely used proxy of firearm suicides as a proportion of total suicides. also, since mass shooters are willing to die in the commission of the act, and could be actively committing suicide by police action, we include the suicide rate as a control variable. we also include the percent of the population in two age groups, 15 to 39 and 40-64. a potentially important factor is the emergence of crack cocaine in the 1980‟s. the resulting huge increase in the supply of cocaine caused turf battles among drug suppliers and increased the number of murders as well as other crime rates. we control for the crack cocaine epidemic with the fryer, heaton, levitt, and murphey (2013) crack index, a combination of indicators compiled by fryer and his colleagues for the period of the crack epidemic. there are continuous values for 1981 to 2000 for each state. we set pre-1981 values at the 1981 levels, and post-2000 values at the 2000 levels. finally, we include a lagged dependent variable because widely publicized events such as a mass public shooting can inspire copycats, possibly creating a dynamic system in which each event creates more similar events. as noted above, we test all these control variables for significance and drop any with t-statistics less than one in absolute value, subject to the parsimonious encompassing test. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 23 published by scholink inc. table 2. control variables variable mean federal aw/lcm ban 0.22 prisoners per capita 2.7 police per capita 263 executions per capita 0.092 suicide rate 13.3 robbery rate 121 burglary rate 928 unemployment rate 5.91 real income pc 15.3 employment per capita 551 military employment pc 12 construction employment pc 31.1 poverty rate 12.9 real welfare pc 216 percent gun suicide 57 alcohol per capita 1.96 crack cocaine 0.93 population density 174 percent population 15-39 37.2 percent population 40-64 28.3 3. results 3.1 selecting the control variables for the difference-in-differences analysis before we can do the event studies, we must specify the control variables to be used by the difference-in-differences program. we regress the number of people killed in mass public shootings by state and year for the sample, 1976-2019 using the fixed-effects negative binomial model, under the null hypothesis that none of the policy dummies are effective. we use the general-to-specific modeling method to find the most significant determinants of mass shooting deaths and generate the model with the smallest mean squared error. however, since there could be a small amount of bias in the specific model, we also report the general model. these two models are reported in table 3. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 24 published by scholink inc. table 3. negative binomial model to generate control variables for did general model specific model coeff t-ratio coeff t-ratio federal assault weapons ban -0.105 -0.42 prison population pc 0.023 0.20 police per capita -0.004 -1.28 -0.004 -1.56 executions pc -0.218 -0.64 suicide rate pc -0.096 -1.88 -0.080 -1.82 robbery rate 0.000 0.13 burglary rate -0.000 -0.28 unemployment rate 0.163 2.35* 0.143 2.56* real income pc 1.359 0.33 employment pc 0.006 1.48 0.004 1.20 military employment pc -0.023 -0.94 construction employment pc 0.046 2.07* 0.043 2.44* poverty rate 0.000 0.30 real welfare pc 0.003 1.63 0.003 2.38* percent gun suicide 0.017 0.98 alcohol consumption pc 0.941 2.12* 0.855 2.40* crack cocaine 0.194 1.51 0.234 2.15* population density -0.001 -1.29 -0.002 -2.11* percent population 15-39 -0.040 -0.40 percent population 40-64 -0.074 -0.70 yt-1 0.016 0.98 n 2,009 2,009 note. * p<0.05; ** p<0.01; dependent variable is number killed in mass public shootings; fixed-effects negative binomial model; the parsimonious encompassing wald-test on the dropped variables is not significant (p=0.87). there is apparently no significant reduction in mass public shooting deaths associated with the federal assault weapons ban. prison incarceration, police presence, and executions are also not significantly associated with deaths from mass public shootings. there is weak evidence that the suicide rate is negatively associated with mass shooting deaths indicating that policies designed to prevent suicides may have unintended consequences. alcohol consumption is positively associated with mass shooting deaths as is the crack cocaine epidemic of 1985-1992. unemployment, construction employment and welfare payments are also positively associated with mass shooting deaths. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 25 published by scholink inc. 3.2 difference-in-differences event study the numerical results from the dechaisemartin-d‟haultfoeuille difference-in-difference analysis are presented in table 4. the graphical results are presented in figures 1-3. for each policy we do an event study with a 10-year event window. the analysis depends crucially on the parallel-trends assumption. it is impossible to test for parallel trends after the policy has been implemented, but a reasonable test can be implemented by specifying a placebo policy before the actual policy was adopted. if the placebo dummy or dummies are not significant, the parallel trends assumption is acceptable. we specify placebo dummy variables for the four years before the policy adoption date. all the placebo tests were insignificantly different from zero except for the constitutional carry analysis for which the specific model had one significant placebo test statistic (p=.035). complete results are available at <http://cemood.people.wm.edu/elp_mps.zip>. table 4. average effect of policies on mass public shooting deaths policy general model specific model effect se t-ratio effect se t-ratio state assault weapons ban -1.27 5.47 -0.23 0.07 1.86 0.04 universal background checks -0.80 1.23 -0.65 -0.23 1.25 -0.18 constitutional carry -0.15 0.51 -0.29 -0.19 0.41 -0.46 under-21 gun-ban 0.63 0.80 0.79 0.69 0.61 1.13 large capacity magazine ban -1.37 1.83 -0.75 -0.27 1.49 -0.18 permit to purchase -2.03 2.51 -0.81 0.13 0.91 0.14 red flag law -0.40 0.72 -0.56 -0.19 0.62 -0.31 right to carry -0.09 0.42 -0.21 -0.26 0.40 -0.65 safe storage law 0.43 0.68 0.63 0.20 0.61 0.33 note. estimated by did_multiplegt; bootstrapped standard errors, general and specific models refer to the choice of control variables for the did model. two policies have both positive and negative average effects between the general and specific model (assault weapons bans and permit-to-purchase laws); two policies have positive average effects (under-21 gun-bans and safe storage laws); and four policies have negative average effects (universal background checks, red flag laws, right-to-carry laws, and constitutional carry laws). none of the policies have a significant average effect on the number of people killed in mass public shootings. graphical results are presented in figures 1-3. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 26 published by scholink inc. figure 1. event studies figure 2. event studies, continued www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 27 published by scholink inc. figure 3. event studies, continued the overall lack of significance of the policy variables is what might be expected given that mass public shooters are willing to commit mass murder and are also willing to die in the attempt. complete numerical results as well as all programs and data are available at <http://cemood.people.wm.edu/elp_mps.zip>. 3.4 robustness tests as a robustness test, we estimated the effectiveness of the various policies using two-way fixed-effects (twfe) negative binomial models. the results are summarized in table 5. according to cd (2020), the twfe difference-in-differences coefficient is a weighted average of the individual average treatment effects on the treated (att‟s), where the weights could be negative. if there are many negatively weighted att‟s, the fixed-effects coefficient could be so biased that the sign is incorrect. we used the twowayfeweights program developed by cd to find the number of negative weights for each policy variable. for our models, there were negative weights associated with the right-to-carry laws (25 of 941) and the state assault weapons bans (4 of 392). the rest of the policy two-way fixed-effects coefficients had no negative weights. since there were so few negative weights, we conclude that the results of the twfe negative binomial models may be used for policy evaluation. we do not report the coefficients and t-statistics for the control variables to conserve space. none of the coefficients on the traditional policies (prison incarceration, police presence, and executions) were significantly different from zero. complete results available at <http://cemood.people.wm.edu/elp_mps.zip>. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 28 published by scholink inc. table 5. policy evaluation using two-way fixed-effects negative binomial models policy dummy general specific coeff t-ratio coeff t-ratio right to carry -0.522 -1.80 -0.406 -1.64 constitutional carry 1.026 1.40 0.874 1.24 under-21 gun-ban -0.079 -0.27 -0.065 -0.24 large capacity magazine ban 0.393 1.08 0.367 1.09 state assault weapon ban 0.445 1.21 0.475 1.39 safe storage law -0.005 -0.02 0.003 0.01 permit to purchase -0.041 -0.12 -0.090 -0.28 universal background checks 0.554 1.88 0.584 2.09* red flag law 0.656 1.28 0.764 1.52 note. * p<0.05; ** p<0.01; dependent variable is number killed in mass public shootings; the parsimonious encompassing wald tests on the dropped variables are not significant; coefficients on control variables are suppressed. the only significant coefficient is the positive coefficient on the dummy variable for universal background checks. the fixed-effects negative binomial results confirm the results from the previous section in that none of these policies significantly reduce deaths from mass public shooting attacks. we also did an event study using the violence policy data set, which has a larger sample and slightly different definitions than siegel et al. (2020). the results for the average total effects are presented in table 6. table 6. average policy effects using violence project data policy general model specific model effect se t-ratio effect se t-ratio state assault weapons ban -0.71 2.16 -0.33 0.14 1.55 0.09 universal background checks -1.17 1.27 -0.92 0.61 1.25 0.49 constitutional carry -0.13 4.46 -0.03 -0.19 0.39 -0.49 under-21 gun-ban 0.50 0.74 0.68 0.64 0.56 1.14 large capacity magazine ban -1.42 1.78 -0.80 -0.06 1.25 -0.05 permit to purchase -2.17 2.54 -0.85 0.04 0.82 0.05 red flag law -0.40 0.76 -0.53 -0.09 0.67 -0.13 right to carry -0.15 0.67 -0.22 -0.28 0.31 -0.90 safe storage law 0.00 0.79 0.00 -0.19 0.75 -0.25 note. * p<0.05; ** p<0.01; estimated by did_multiplegt; bootstrapped standard errors, general and specific models refer to the choice of control variables. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 29 published by scholink inc. the results are close to those generated by the siegel et al. (2020) data reported in table 4. none of these policies appear to be effective in reducing deaths from mass public shootings. 3.5 gun-free zones if mass shooters are attracted to places where firearms are not permitted, it would be expected that more people would be killed in such gun-free zones than in venues where the probability of armed resistance from civilians with concealed weapons is greater. the most expansive definition of a gun-free zone is provided by the crime prevention research center (cprc): any public place where ordinary citizens are prohibited from carrying concealed firearms (note 11). this definition includes places where armed police officers or armed security may be present on the theory that the shooter knows to kill the police or security officers first or wait until they leave. the definition also includes military bases because off-duty soldiers are not allowed to carry weapons while on base. military police are armed but face the same threat as the police and private security officers guarding non-military venues. the definition also includes private businesses that have company policies prohibiting firearms on the premises. citizens who are carrying concealed weapons and wish to work or do business there will leave their firearms in the car or otherwise disarm themselves, reducing the threat to potential shooters. finally, any place in states that have may-issue laws are considered gun-free zones because ordinary citizens in those states are routinely denied permits to carry concealed firearms, making it extremely unlikely that the shooter will encounter armed citizens. mother jones argues that shooters tend to attack places to which they have an emotional attachment, e.g., workplaces in which they were wronged, schools in which they were bullied, churches of people they hated, etc. also, “thirty-six of the killers we studied took their own lives at or near the crime scene, while seven others died in police shootouts they had no hope of surviving (a.k.a. „suicide by cop‟). these were not people whose priority was identifying the safest place to attack” (note 12). on the other hand, while mass shooters almost certainly have emotional attachments to many places, they may avoid those places where their plans could be upset by civilians with concealed weapons. even if they plan to die, they might want to kill the largest number of people first, seeking posthumous infamy. this can be done best if no one is shooting back. many shooters leave behind manifestos or facebook pages where they describe their search for a venue where potential victims will not be armed (note 13). in the mother jones definition, a place that allows firearms is not a gun-free zone simply because it is in a may-issue state. places that use armed security are also not considered gun-free. we identified 60 cases where we could determine if the cprc gun-free zone dummy could be designated a one or a zero and 44 with enough information to determine values for the mother jones gun-free-zone dummy. klarevas (2016, pp. 72-73) has done a count of mass shootings from 1966-2015 with six or more fatalities. he also identified those occurring in gun-free zones (no guns allowed, including police), gun-restricted zones (no guns allowed except for police), and all other, gun-allowing zones (klarevas, 2016, pp. 162-164). using klarevas‟ definition, we supplemented his data with data from 2016-2019 taken from the cprc mass public shooting database, which includes information as to whether the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 30 published by scholink inc. incident took place in a gun-free zone. the means for the gun-free-zone dummies are shown in table 7. table 7. means for gun-free-zone dummies dummy variable indicating gun free zone n mean cprc 60 0.88 mother jones 44 0.52 klarevas gun free zone 114 0.12 klarevas gun restricted zone 114 0.04 klarevas guns not allowed (gun-free or gun-restricted) 114 0.16 these are not panel data, so we use the cross-section negative binomial model with heteroskedasticity robust standard errors. the control variables are the same as in the previous sections. we also present a general model with all the controls, and a specific model dropping control variables with t-statistics less than one in absolute value. the results are reported in tables 8 and 9 where we report the coefficients on the dummy variables but suppress the results with respect to the coefficients on the control variables. table 8. effect of gun-free zones on mass public shooting fatalities, cprc and mother jones definitions fatalities general model specific model n cprc -0.201 -0.127 60 (0.64) (0.41) mother jones 0.418 0.541 44 (1.68) (2.56)* note. * p<0.05; ** p<0.01; negative binomial model; robust t-statistics in parentheses; coefficients on control variables are suppressed; complete results available at <http://cemood.people.wm.edu/elp_mps.zip>. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 31 published by scholink inc. the cprc gun-free zone dummy is not significant, perhaps because almost nine out of ten of the shootings took place in gun-free zones. using the mother jones definition, mass public shootings that take place in gun-free zones result in more deaths than those that occur in other places, significantly more deaths using the specific model. the results using klarevas‟ gun-massacre data and the corresponding gun-free and gun-restricted zone dummies are presented in table 9. table 9. effect of gun-free zones on mass public shooting fatalities, klarevas definitions fatalities general model specific model gun-free zone 0.389 0.392 (2.46)* (2.37)* gun-restricted zone 0.855 0.752 (3.01)** (2.54)* gun-not-allowed zone 0.495 0.485 (3.49)** (3.12)** n 114 114 note. * p<0.05; ** p<0.01; negative binomial model; robust t-statistics in parentheses; coefficients on control variables are suppressed; complete results are available at <http://cemood.people.wm.edu/elp_mps.zip>. using the klarevas data and definitions, both the gun-free dummy and the gun-restricted dummy are positive and significant in both models. a wald test for the null hypothesis of equality of the coefficients was not rejected. we then combined them into the gun-not-allowed dummy, which was also positive and significant in both the general and specific models. overall, there is evidence that mass public shootings that occur in those places where ordinary citizens are prohibited from carrying concealed weapons are associated with significantly higher fatalities compared to places that allow such weapons, especially for mass shootings in which six or more people are killed. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 32 published by scholink inc. 4. discussion using the latest difference-in-differences analyses and fixed-effects negative binomial regressions, we tested nine gun-related policies and four traditional crime-control policies. despite the findings in previous studies that permit to purchase laws and large capacity magazine bans may be effective, we find that neither these, nor the other policies investigated in this study can be shown to be effective in reducing the number of people killed in mass public shootings. this result might be expected because criminals who are willing to commit the most heinous crime and who are also willing to die in the commission of that crime, are unlikely to be deterred by a safe storage law, for example. on the other hand, there is evidence that increasing the number of places where ordinary citizens are allowed to carry concealed weapons could reduce the number of mass shooting fatalities. complete results, data, and programs are available at <http://cemood.people.wm.edu/elp_mps.zip>. references conner, a., & hemenway, d. (2019). the effect of large-capacity magazine bans on high-fatality mass shootings, 1990-2017. american journal of public health, 109(12), 1754-1761. https://doi.org/10.2105/ajph.2019.305311 de chaisemartin, c., & d‟haultfoeuille, x. (2020). two-way fixed effects and heterogeneous treatment effects. american economic review, 110, 2964-2996. https://doi.org/10.1257/aer.20181169 de chaisemartin, c., & d‟haultfoeuille, x. (2022). difference-in-differences estimators of intertemporal treatment effects. https://doi.org/10.3386/w29873 dimaggio, c., avraham, j., berry, c., bukur, m., feldman, j., & klein et al. (2019). changes in us mass shooting deaths associated with the 1994-2004 federal assault weapons ban: analysis of open-source data. journal of trauma and acute care surgery, 86(1), 11-19. https://doi.org/10.1097/ta.0000000000002060 doornik, j. a. (2014). empirical model discovery and theory evaluation. cambridge, ma. mit press. duwe, g. (2020). patterns and prevalence of lethal mass violence. criminology & public policy, 19, 17-35. https://doi.org/10.1111/1745-9133.12478 everytown for gun safety. (2020). mass shootings in america: 2009-2020. new york, ny: everytown for gun safety. retrieved from https://everytownresearch.org/massshootingsreports/mass-shootings-inamerica-2009-2019/ fox, j. a., & fridel, e. e. (2016). the tenuous connections involving mass shootings, mental illness, and gun laws. violence and gender, 3(1), 14-19. https://doi.org/10.1089/vio.2015.0054 fryer, r. g. jr., heaton, p. s., levitt, s. d., & murphey, k. m. (2013). measuring crack cocaine and its impact. economic inquiry, 51(3), 1651-1681. https://doi.org/10.1111/j.1465-7295.2012.00506.x gius, m. 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(2020). assessing the potential to reduce deaths and injuries from mass shootings through restrictions on assault weapons and other high-capacity semiautomatic firearms. criminology & public policy, 19(1), 147-170. https://doi.org/10.1111/1745-9133.12485 kovandzic, t., & moody, c. e. (2002). the impact of right-to-carry concealed firearm laws on mass public shootings. homicide studies, 6(4), 271-296. https://doi.org/10.1177/108876702237341 lin, p., fei, l., barzman, d., & hossain, m. (2018). what have we learned from the time trend of mass shootings in the u.s.? plos one, 13(10), e0204722. https://doi.org/10.1371/journal.pone.0204722 lott, j. r. jr., & landes, w. m. (1999). multiple victim public shootings, bombings, and right-to-carry concealed handgun laws: contrasting private and public law enforcement. in john m. olin program in law and economics working paper no. 73. https://doi.org/10.2139/ssrn.161637 muelbauer, j., & nunziata, l. (2004). forecasting (and explaining) us business cycles. in cepr discussion papers 4584. reade, j. j. (2007). modeling and forecasting football attendances. oxonomics, 2, 27-32. https://doi.org/10.1111/j.1752-5209.2007.00015.x reeping, p. m., cerdá, m., kalesan, b., wiebe, d. j., galea, s., & branas, c. c. (2019). state gun laws, gun ownership, and mass shootings in the us: cross sectional time series. bmj, 364, l542. https://doi.org/10.1136/bmj.l542 siegel, m., goder-reiser, m., duwe, g., rocque, m., fox, j. a., & fridel, e. e. (2020). the relation between state gun laws and the incidence and severity of mass public shootings in the united states, 1976-2018. law and human behavior, 44(5), 347-360. https://doi.org/10.1037/lhb0000378 webster, d. w., mccourt, a. d., crifasi, c. k., booty, m. d., & stuart, e. a. (2020). evidence concerning the regulation of firearms design, sale, and carrying on fatal mass shootings in the united states. criminology & public policy, 19, 171-212. https://doi.org/10.1111/1745-9133.12487 https://doi.org/10.1093/0198283164.001.0001 https://doi.org/10.1111/1745-9133.12485 https://doi.org/10.1177/108876702237341 https://doi.org/10.1371/journal.pone.0204722 https://doi.org/10.2139/ssrn.161637 https://doi.org/10.1111/j.1752-5209.2007.00015.x https://doi.org/10.1136/bmj.l542 https://doi.org/10.1037/lhb0000378 https://doi.org/10.1111/1745-9133.12487 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 34 published by scholink inc. notes note 1. https://www.rand.org/research/gun-policy/analysis/essays/mass-shootings.html note 2. https://www.apa.org/news/podcasts/speaking-of-psychology/mass-shootings note 3. https://crimeresearch.org/2018/06/more-misleading-information-from-bloombergs-everytown-for-gun-s afety-on-guns-analysis-of-recent-mass-shootings/ note 4. https://everytownresearch.org/mass-shootings-in-america/ note 5. https://www.motherjones.com/politics/2012/12/mass-shootings-mother-jones-full-data/ note 6. https://crimeresearch.org/data/ note 7. https://www.theviolenceproject.org/mass-shooter-database/ note 8. https://sgp.fas.org/crs/misc/r43004.pdf (p. 4) note 9. https://www.rand.org/pubs/tools/tla243-2-v2.html note 10. as a result of including a dummy variable for the federal assault weapons ban, we do not include year dummies in this specification. we include the year dummies, and not the federal ban, in the robustness section. note 11. https://crimeresearch.org/2018/06/more-misleading-information-from-bloombergs-everytown-for-gunsafety-on-guns-analysis-of-recent-mass-shootings/ note 12. https://www.motherjones.com/politics/2013/04/gun-free-zones-mass-shootings/ note 13. https://crimeresearch.org/2023/03/vince-vaughn-explains-the-obvious-how-mass-killers-pick-out-venu es-where-their-victims-are-sitting-ducks/ economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 79 original paper tax compliance non-prosecution: logical foundations, application review, and integrated pathways—a perspective from the greater bay area in china binhui guo1 & guizi li1 1 guangzhou college of commerce, guangzhou, guangdong, china received: october 20, 2024 accepted: november 4, 2024 online published: november 12, 2024 doi:10.22158/elp.v7n3p79 url: http://dx.doi.org/10.22158/elp.v7n3p79 abstract compliance non-prosecution serves as a criminal incentive mechanism aimed at encouraging private enterprises to strengthen internal management and prevent criminal conduct, representing a proactive response to modernizing crime governance centered on cooperative justice. as a significant economic engine, the greater bay area in china would benefit from an integrated tax compliance criminal system to support tax compliance within enterprises involved in legal disputes, promoting their sustainable development. given the unique characteristics of tax-related cases, the greater bay area should establish a tax compliance criminal procedure led jointly by legal and prosecutorial authorities. this procedure should categorize cases by severity into discretionary non-prosecution and conditional non-prosecution, thus creating a unified standard that integrates governance and prevention in tax compliance rectification. additionally, an interconnected tax compliance cooperation mechanism should be established within the greater bay area. such unified regulations on tax compliance non-prosecution would strengthen collaboration in tax enforcement, enhance the standardization, fairness, and transparency of criminal tax compliance procedures, and ultimately improve both enforcement efficiency and judicial authority. keywords greater bay area, tax, criminal compliance, non-prosecution, compliance rectification www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 80 published by scholink inc. 1. problem statement since the 18th national congress of the communist party of china, efforts to modernize the national governance system and enhance governance capabilities have been continuously advanced. the report from the 20th congress further established “deepening the modernization of the national governance system and governance capabilities” as one of the primary development goals for the next five years. the reform of compliance-based non-prosecution for enterprises involved in criminal cases exemplifies the national governance approach within the criminal justice system, representing an experimental implementation of consultative justice in the field of criminal offenses. in march 2020, the supreme people’s procuratorate launched pilot programs in six grassroots procuratorates, including those in zhangjiagang, jiangsu, and bao’an, shenzhen, aimed at advancing compliance reform for enterprises involved in legal cases and extending judicial functions into the domain of social governance. in april 2021, a second phase of pilots was initiated across ten provinces, including beijing, liaoning, shanghai, and guangdong. by april 2022, the compliance pilot program had expanded nationwide. as of september 2023, procuratorial authorities across china had handled a total of 7,815 corporate compliance cases. between march 2020 and december 2021, one-third of non-prosecution cases involving corporate compliance in the ten pilot provinces were related to tax offenses. the greater bay area (gba), china’s first region formally recognized at the national level as a bay area, includes two special administrative regions along with nine cities in guangdong province: guangzhou, shenzhen, zhuhai, foshan, huizhou, dongguan, zhongshan, jiangmen, and zhaoqing. the gba is a major driver of china’s regional economic growth. private enterprises form a significant part of the local economy and constitute a critical source of tax revenue for local governments. the development of these private enterprises directly impacts local tax revenue and economic growth. at the same time, the gba is a region with a high incidence of tax-related cases involving private enterprises, placing pressure on law enforcement agencies and creating instability in the business environment, which in turn affects economic development in the region. establishing a tax compliance non-prosecution system suited to the gba’s unique characteristics is essential for guiding enterprises involved in tax-related cases to strengthen tax compliance and prevent tax offenses. such a system aligns with the gba’s goals of enhancing governance capacity and effectiveness, promoting policy coordination and regional cooperation, and advancing economic integration. while compliance non-prosecution is still in its pilot phase, national-level policies remain limited to guiding opinions. many pilot regions have issued local compliance guidelines for enterprises involved in legal cases, based on the nine-department guiding opinion, with some regions even developing field-specific compliance guidelines. for example, the liaoning provincial people’s procuratorate and other agencies issued the opinion on establishing a compliance inspection system for enterprises involved in criminal cases, which includes a few specific rules related to tax compliance. in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 81 published by scholink inc. shenzhen’s pingshan district, the guideline on criminal compliance for biopharmaceutical enterprises was introduced in response to the area’s status as a national biopharmaceutical base, with a high concentration of such enterprises. additionally, the haidian district people’s procuratorate and the haidian district federation of industry and commerce in beijing jointly published the compliance rectification guide for enterprises involved in tax-related offenses. although the guide has some limitations, it provides valuable references for developing specialized tax compliance guidelines in other regions. local guidance facilitates the in-depth implementation of the enterprise compliance reform pilot program at the local level, providing clearer and more specific case-handling directions for enterprises involved in legal cases. it also helps to standardize the actions of local governments and relevant departments, ensuring the orderly and fair conduct of the compliance reform pilot program for enterprises involved in criminal cases. in the nine mainland cities of the greater bay area (gba), intercity transactions among enterprises have become common, and local tax enforcement and criminal justice cooperation are closely integrated. however, these nine cities are distributed across three free trade zones and one special economic zone, where, despite a generally unified tax system, specific policies vary to some extent. differences particularly exist in standards for classifying similar tax-related cases and in tendencies toward treatment and penalties. coordinating tax compliance non-prosecution regulations across the mainland cities of the gba can improve work efficiency, conserve judicial resources, and provide equal and consistent opportunities for enterprises involved in tax-related cases within the compliance non-prosecution framework. additionally, the gba’s unique structure of “one country, two systems, and three customs zones” results in varying degrees of differences in tax structures, tax administration, and judicial systems. with the ongoing advancement of the compliance non-prosecution pilot program in mainland china, collaboration in tax-related criminal compliance among the three regions in the gba is increasingly essential. although the pilot program does not currently extend to the special administrative regions, the economic interconnection among the three areas and the growth in cross-border transactions make collaboration in tax-related criminal compliance inevitable. this requires cooperation not only in tax administration but also among judicial authorities across the three jurisdictions in the gba. 2. logical foundations of the compliance-based non-prosecution system for enterprises involved in legal cases 2.1 multi-agency collaborative governance as the system’s starting point four key national-level documents currently provide guidance on compliance procedures for enterprises involved in legal cases. in june 2021, nine departments—including the supreme people’s procuratorate (spp) and the ministry of justice—jointly issued the guiding opinions on establishing a third-party supervision and evaluation mechanism for enterprise compliance in cases involving www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 82 published by scholink inc. criminal offenses (trial). in january 2022, these nine departments released the detailed implementation rules for this guiding opinion, followed by the provisions on the selection and management of third-party professionals in the enterprise compliance supervision and evaluation mechanism (trial) issued by the third-party mechanism management committee. in april 2022, the nine departments jointly issued the measures for compliance construction, evaluation, and review of enterprises involved in criminal cases (trial). collectively, these guiding documents provide direction for establishing a compliance-based non-prosecution system for enterprises in china, forming the logical foundation of this framework. the reform for compliance-based non-prosecution is led by the spp in collaboration with the ministry of justice, ministry of finance, ministry of ecology and environment, state-owned assets supervision and administration commission, state taxation administration, state administration for market regulation, all-china federation of industry and commerce, and china council for the promotion of international trade. this collaborative governance framework reflects the principles of co-construction, co-governance, and shared responsibility in tax governance, embodying the need for multi-departmental coordination in compliance reforms for enterprises involved in criminal cases. the guiding documents establish a “third-party supervision and evaluation mechanism for enterprise compliance” to specify the applicable entities and conditions for the mechanism, clarify the responsibilities of various participants in the compliance process, and set up mechanisms to prevent illegal or corrupt practices. specifically, the core participants in the compliance non-prosecution process include the enterprise involved, the people’s procuratorate, the third-party mechanism management committee, and the third-party supervision and evaluation organization selected by the committee. auxiliary participants include relevant government departments and the regulatory authorities overseeing the enterprise. according to the guiding opinions, the third-party supervision and evaluation mechanism for enterprise compliance is led by the people’s procuratorate, which is responsible for reviewing and deciding whether a criminal case involving an enterprise qualifies for the third-party mechanism. the third-party mechanism management committee, formed by the nine departments, selects a third-party organization to evaluate, supervise, and inspect the compliance rectification outcomes of the enterprise, with the inspection results serving as a key reference for the people’s procuratorate in case handling. 2.2 guilty plea as the basis of the compliance system the guilty plea system was first introduced in the 2018 criminal procedure law, allowing leniency in substance and procedural simplicity when a suspect voluntarily admits guilt, sincerely expresses remorse, and accepts punishment. this system, applied at stages including investigation, review, prosecution, and trial, embodies a balanced approach to criminal justice, improving efficiency and mitigating social conflict. the compliance guidelines integrate the guilty plea system into the compliance framework for enterprises involved in criminal cases, resulting in a functional shift in its application. a guilty plea not only serves as a prerequisite for leniency but also becomes a necessary www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 83 published by scholink inc. condition for an enterprise to initiate the third-party mechanism. the compliance-based non-prosecution process can only commence if the enterprise or individual involved acknowledges guilt and accepts punishment. on this basis, the enterprise must be capable of maintaining regular business operations and commit to establishing or enhancing a compliance program, thereby qualifying and voluntarily opting to use the third-party mechanism. in this context, the guilty plea and leniency system requires the enterprise to sign a statement of guilt and punishment acceptance, effectively establishing an “agreement” between the prosecution and defense. the compliance-based non-prosecution process embodies the governance concept of “consultative justice,” wherein the state and the enterprise involved communicate and negotiate through a dialogic judicial model. this process represents an exploratory shift from “adversarial justice” to “consultative justice” within the compliance framework. however, due to the transformed role of the guilty plea in the compliance process, the results of leniency are often delayed and uncertain. whether an enterprise ultimately receives a non-prosecution decision depends on whether its compliance efforts meet effectiveness standards and whether any fraudulent practices were used to deceive the evaluation process. a guilty plea alone does not guarantee leniency; it merely creates the possibility of lenient treatment. 2.3 prosecutorial discretion and discretionary non-prosecution as institutional foundations the compliance-based non-prosecution system for enterprises involved in criminal cases in china remains in its pilot phase, with implementation guided primarily by the opinions of nine departments, and has not yet undergone legislative codification. this system is an innovative approach within the current legal framework, where pilot procuratorates explore “compliance-based non-arrest” or “compliance-based non-prosecution” mechanisms based on prosecutorial discretion. initially, after a case is transferred from the public security bureau to the people’s procuratorate, the procuratorate reviews it to determine if it qualifies for the third-party mechanism. if the case meets the requirements, the mechanism is activated. subsequently, the procuratorate reviews the evaluation process and conclusions of the third-party organization. although the third-party mechanism management committee also has an obligation to review the evaluation conclusions, the procuratorate, as the judicial authority responsible for handling the case, holds the final discretionary power to decide on non-prosecution. thus, the compliance-based non-prosecution system is both led by and fundamentally reliant on the discretionary powers of the procuratorate. the legal foundation for compliance-based non-prosecution can be traced to the discretionary non-prosecution provisions in china’s criminal procedure law and the exemption from criminal punishment provisions in the criminal law. article 177 of the criminal procedure law allows discretionary non-prosecution for minor offenses with statutory penalties of less than three years. article 37 of the criminal law provides that minor criminal offenses not requiring penalties may be exempt from punishment. these provisions grant the procuratorate discretion in deciding whether to prosecute cases that do not require criminal penalties or may be exempted from www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 84 published by scholink inc. punishment. the flexibility inherent in discretionary non-prosecution allows it to serve as an important vehicle for the procuratorate’s social governance function. essentially, compliance-based non-prosecution falls within the scope of conditional non-prosecution, achieving the effect of conditional non-prosecution with compliance requirements. 2.4 corporate compliance rectification and third-party oversight as system safeguards the primary objective of the compliance-based non-prosecution system is to encourage enterprises to operate lawfully and in compliance with regulations. non-prosecution is contingent upon the effective implementation of the compliance commitments made by the enterprise involved. traditional criminal penalties with a punitive deterrent focus have proven insufficient for effectively addressing corporate crime, thus giving rise to the compliance-based non-prosecution process. to achieve lenient treatment and ultimately avoid prosecution, enterprises within this program must establish feasible compliance plans and conduct effective compliance rectification. compliance rectification for the enterprise involves developing a specialized compliance rectification plan, enhancing internal governance structures, and more. to ensure effective implementation of compliance rectification by enterprises, the compliance-based non-prosecution system includes a mechanism for third-party oversight. this oversight is conducted by third-party supervision and evaluation organizations composed of professionals such as lawyers, accountants, and tax advisors, who supervise the enterprise’s compliance process. initially, the third-party organization evaluates the feasibility, effectiveness, and comprehensiveness of the enterprise’s static compliance plan, offering feedback for amendments and establishing the compliance observation period. additionally, they conduct periodic or ad hoc assessments of the enterprise’s compliance progress during the observation period. upon completion of the observation period, the third-party organization performs a comprehensive evaluation of the effectiveness of the enterprise’s specialized compliance rectification plan and related compliance management systems. the conclusions of these evaluations serve as critical reference points for the prosecutorial authority in its final discretionary decision-making. through compliance rectification and third-party supervision, the compliance-based non-prosecution system enables enterprises involved in criminal cases to address systemic gaps, rectify management vulnerabilities, and strengthen governance structures, thereby reducing the likelihood of future violations or similar criminal conduct. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 85 published by scholink inc. 3. examination of the applicability of compliance-based non-prosecution for tax compliance in the greater bay area 3.1 constraints on the initiation of compliance-based non-prosecution in tax cases 3.1.1 sentencing characteristics in tax cases as a limiting factor the sentencing characteristics of tax-related cases restrict the initiation of compliance-based non-prosecution. tax compliance in criminal cases intersects the fields of tax law and criminal law, and common offenses include tax evasion, fraudulent issuance of vat invoices, and fraudulent claims for export tax rebates, with the fraudulent issuance of vat invoices being the primary offense. both fraudulent issuance of invoices and tax fraud are considered serious crimes. prior to the issuance of the interpretation on several issues concerning the application of law in handling criminal cases endangering tax administration by the supreme people’s court and the supreme people’s procuratorate, cases involving amounts over 2.5 million rmb were subject to a minimum sentence of 10 years. during the review and prosecution phase, procuratorial authorities generally do not initiate compliance rectification procedures for cases that may result in sentences of over 10 years. the legal basis for compliance-based non-prosecution in minor cases stems from article 177 of the criminal procedure law and article 37 of the criminal law, which allow discretionary non-prosecution in minor criminal cases. since the launch of the compliance reform pilot program, decisions for compliance-based non-prosecution in tax cases have consistently cited the provisions on discretionary non-prosecution in these two laws as their legal foundation. although national guidelines do not explicitly exclude serious crimes from compliance procedures, early pilot cases suggest that non-prosecution is largely applied to minor offenses. in the absence of explicit guidance and without a clear legal basis, initiating compliance procedures for serious crimes poses a judicial risk for procuratorial authorities. publicly available tax compliance non-prosecution cases generally involve tax amounts between 100,000 and 500,000 rmb, with a few cases exceeding one million rmb, but usually less than 2.5 million rmb. these cases typically involve mitigating factors such as voluntary surrender, tax repayment, and admission of guilt. in some regions, serious tax offenses with statutory penalties of 10 years or more are addressed through a compromise approach: the enterprise is exempted from prosecution, while the corporate executives are prosecuted. however, this method fails to meet the intended purpose of compliance-based non-prosecution, which is to protect private enterprises and entrepreneurs. the nine-department guideline explicitly states that the non-prosecution procedure applies to both enterprises and individuals, and a bifurcated approach does not achieve the goal of safeguarding private entrepreneurs by avoiding unnecessary arrests and prosecutions, thereby ensuring the normal operations of private enterprises. as of march 20, 2024, the newly enacted interpretation on several issues concerning the application of law in handling criminal cases endangering tax administration raised the threshold for serious tax crimes in invoice fraud cases, increasing the threshold for sentencing to 10 years from a tax amount www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 86 published by scholink inc. of 50,000 rmb to 100,000 rmb, and redefining serious cases as those involving amounts of 5 million rmb rather than 2.5 million rmb. these adjustments significantly reduce the proportion of invoice fraud cases classified as serious crimes, facilitating the initiation of compliance procedures. however, in the greater bay area, particularly in guangzhou and shenzhen, a significant proportion of invoice fraud cases still involve amounts exceeding 5 million rmb. historical context of severe penalties in invoice fraud and tax fraud. since invoice fraud and tax fraud were incorporated into the criminal law in 1997, the maximum statutory penalty for both offenses has been the death penalty, reflecting a period when strict punishment was necessary to combat significant threats to national tax revenues. although the criminal law has undergone several amendments, the maximum penalty for these offenses remains life imprisonment. more importantly, sentencing for invoice and tax fraud offenses is based on the invoiced amount rather than the actual tax amount defrauded, meaning the invoiced amount may not reflect the actual extent of tax fraud. the current sentencing criteria for invoice fraud and tax fraud offenses are somewhat outdated, with penalties disproportionately severe compared to the nature of the crime. given that criminal legislation does not explicitly define the constitutive elements of invoice fraud, and that the protected legal interests in such cases remain ambiguous, evaluating the conditions for compliance-based non-prosecution of tax-related offenses solely through traditional minor-major crime standards is unfair to enterprises involved. as economic and social conditions evolve, as well as the purposes behind invoice fraud, a historical perspective should be taken into account when considering the applicability of compliance-based criminal procedures in cases of invoice fraud and tax fraud. 3.1.2 the precondition of guilty plea as a constraint on the applicability of procedures in tax cases one of the conditions for the application of the compliance-based non-prosecution procedure is that the enterprise and its representatives must plead guilty and accept punishment. in tax-related offenses, the primary consequence for the enterprise and its responsible individuals is the loss of tax revenue for the state. when applying for compliance-based non-prosecution, the procuratorial authorities will consider whether the enterprise has fully paid the outstanding tax, late payment fees, and fines. however, in practice, a significant portion of cases involving tax evasion or the issuance of fraudulent invoices arise from genuine transactions in which the enterprise is unable to obtain the required vat invoices for tax deductions, rather than from the intent to gain substantial profits. additionally, some cases of invoice fraud involve enterprises that act as intermediaries to issue invoices for others, often for a small “invoice issuance fee,” without reducing the actual tax payable. despite this, the amount of late fees and fines in tax-related offenses is typically high, making it challenging for small and micro-enterprises to fulfill these requirements. according to china’s tax collection and administration law, late fees are charged daily at a rate of 0.05% of the overdue tax amount. administrative penalties for tax violations generally range from 50% to 500% of the tax amount, as specified by this law. furthermore, the invoice management regulations establish administrative penalties for all invoice-related violations, with penalties based on the total invoiced www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 87 published by scholink inc. amount rather than the tax amount involved. in guangdong province, for instance, the discretionary standards for invoice-related violations in the tax system specify fines between 300,000 and 500,000 rmb for cases where the total invoiced amount exceeds 1 million rmb. although the forthcoming central and southern regional tax administrative penalty discretionary standards will reduce the penalty threshold to 200,000 rmb, the upper limit remains unchanged (note 1). at the standard vat rate, an enterprise with a fraudulent tax invoice amounting to 100,000 rmb would reach a total invoiced amount of 1 million rmb, resulting in penalties that are disproportionate to the degree of violation. the high costs associated with late fees and fines make it difficult for many enterprises to bear the financial burden, thus constraining the initiation of compliance procedures in tax-related cases. 3.2 inadequate compliance observation period and its impact on tax compliance rectification 3.2.1 compliance observation period restricted by criminal procedure timelines the timelines of criminal procedure constrain the observation period for compliance rectification. once the people’s procuratorate approves a non-prosecution application for compliance by an enterprise, the enterprise must submit one or more specific compliance plans to the third-party organization, specifying a commitment timeline for completion. as the compliance reform policy has not yet received legislative authorization from the national people’s congress standing committee, the criminal compliance process for enterprises in current pilot programs is considered part of the prosecutorial review process. consequently, the compliance observation period set by the procuratorate is subject to the review and prosecution timeline specified in the criminal procedure law, meaning that the compliance observation period generally cannot exceed the prosecutorial review period. according to china’s criminal procedure law, the maximum review period for prosecution is 45 days. even with two possible extensions for supplementary investigation by the public security authorities, the maximum review period is six and a half months. in typical cases published by the supreme people’s procuratorate, the longest compliance observation period is six months, and the shortest is two months. for available tax compliance non-prosecution decisions in the greater bay area, many cases lack clear information on the compliance observation period. given that the compliance observation periods are generally short, most enterprises find it challenging to achieve meaningful compliance and are often only able to fulfill the formal requirements on paper. in cross-border cases, the compliance observation period may need to be extended. for example, in cases involving fraudulent issuance of vat invoices under the “two-invoice system” in the pharmaceutical industry, companies transition from “low-invoice” practices to “high-invoice” practices. previously, intermediary companies in the chain would issue invoices that created “sales expenses” or “commercial bribes.” however, under new practices, pharmaceutical companies now issue service, consulting, or advertising invoices through affiliated pharmaceutical consulting companies to offset the impact of “high-invoice” transactions. many of these consulting firms are essentially subsidiaries of the pharmaceutical companies. given the greater bay area’s unique position, if an enterprise and its affiliated companies operate across the three jurisdictions within the area, compliance observation www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 88 published by scholink inc. becomes more complex. short observation periods are evidently inadequate for such enterprises to meet the required standards of compliance rectification. 3.2.2 specialized nature of tax compliance rectification tax compliance rectification in enterprises involves addressing numerous specific elements to mitigate and prevent tax violations. key areas of tax compliance risk include dual-contracts, off-the-books accounts, commingling of public and private funds, separation of invoices and goods in transactions, misuse of general invoices for pre-tax deductions, and abuse of tax incentives. accounting violations and tax violations are often interlinked and difficult to separate completely. consequently, tax compliance is inherently based on accounting compliance, and a tax compliance management system must be built upon a foundation of accounting compliance. the compliance case handling manual for enterprises involved in criminal cases by the supreme people’s procuratorate provides a model compliance rectification plan for small enterprises involved in fraudulent issuance of vat invoices, illustrating the integration of financial and tax compliance. the plan includes three main sections: identification and assessment of criminal tax-related legal risk points, establishment of a specialized tax compliance management system, and system application. the risk identification and assessment section lists 16 risk points. the specialized tax compliance management system covers six parts: roles and responsibilities of compliance management, risk identification and monitoring, violation response and compliance improvement, and guidelines for tax compliance management. the system encompasses detailed requirements for organizational structure, departmental management, company bookkeeping, procurement and reimbursement management, warehouse management, and erp financial system management. additionally, the sample compliance management system includes specific policies for tax risk management, financial management, and invoice management. in essence, tax compliance rectification for small enterprises becomes a systematic corporate governance project. however, in the compliance management implementation plan’s timeline, all the above rectifications are scheduled to be completed within five months. such an extensive corporate governance effort is challenging for small and medium enterprises (smes) to implement effectively within the allotted time. other limitations in smes, beyond time constraints, may also hinder them from achieving substantive compliance. a search of guangdong province’s tax compliance non-prosecution decisions in the alpha database indicates that most cases involve smes. however, these decisions generally lack information on the compliance rectification process. given the supreme people’s procuratorate’s extensive compliance guidelines, smes without the resources for comprehensive compliance implementation may struggle to achieve even basic paper compliance. these issues ultimately impact the intended goals of compliance-based non-prosecution, reducing the preventative effectiveness of compliance rectification. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 89 published by scholink inc. 3.3 ambiguities in the evaluation mechanism and their impact on achieving compliance rectification objectives 3.3.1 ambiguity in evaluation bodies according to national-level guidelines, upon the completion of the compliance observation period, third-party organizations are responsible for conducting a comprehensive review, evaluation, and assessment of the final compliance outcomes of the enterprises involved in criminal cases. the results of these evaluations serve as an important reference for the people’s procuratorate in making final decisions. based on publicly available information, the professional personnel within third-party organizations for compliance assessment in guangdong province largely consist of practitioners from law firms, accounting firms, tax advisory firms, universities, or specialized consulting companies, with very limited representation from administrative agencies, and virtually no participation from professionals within tax authorities. this composition issue also exists within local third-party organizations in shenzhen and other mainland cities in the greater bay area. in tax compliance rectification for enterprises, it is necessary to cease all tax-related violations, as well as pay outstanding taxes, late fees, and fines. determining whether these actions have been properly implemented requires confirmation from tax authorities. the process also involves the imposition of criminal fines by the procuratorial authorities during the prosecution review phase, raising issues regarding the principle of “no double punishment” (nonbis in idem) and the coordination between the tax and judicial authorities. the supervision of tax compliance rectification should ideally be jointly conducted by both procuratorial and tax authorities. therefore, the absence of tax authorities within the evaluation bodies hampers effective communication and implementation of compliance rectification efforts. 3.3.2 ambiguity in evaluation standards while the offenses involved in tax-related cases and the focus areas of compliance rectification vary, tax compliance still requires an integrated approach to financial and tax compliance. currently, neither national-level guidelines nor available information on compliance in non-prosecution cases provide specific standards for granting lenient treatment through non-prosecution when an enterprise achieves compliance through a guilty plea and rectification. additionally, there is no guidance on whether partial compliance achievement would result in different levels of rectification incentives. enterprises that consider applying for compliance rectification lack a clear basis for estimating the costs and anticipated outcomes of rectification, the level of incentives they might receive for rectification, and the potential litigation interests they would forfeit by choosing compliance rectification. the determination of whether an enterprise’s compliance rectification meets the necessary standards is solely evaluated by the third-party organization after the observation period concludes. however, the lack of predefined, specific standards and tiered incentives for varying levels of rectification completion may lead to arbitrary and uncertain evaluations of compliance outcomes. in the greater bay area, the entities involved in tax-related cases are mainly small and medium enterprises (smes), which www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 90 published by scholink inc. often have limited financial resources. if the anticipated incentives for compliance rectification are not realized, these enterprises may forfeit the litigation benefits they might have obtained while also incurring significant costs for unpaid taxes, late fees, and fines. this situation not only hinders the achievement of compliance rectification goals but also adversely affects the continued operation of these enterprises. 3.3.3 post-evaluation supervision the ambiguity in evaluation mechanisms is a common issue within the compliance-based non-prosecution framework and also applies to tax compliance non-prosecution in the greater bay area. according to the review measures issued by the nine-department office, if an enterprise’s compliance construction meets the effectiveness standard, the people’s procuratorate may refer to the evaluation conclusions to decide on non-prosecution, propose lenient sentencing, or issue prosecutorial recommendations for lenient treatment or disciplinary action to the relevant authorities. however, even if an enterprise obtains a non-prosecution decision based on effective compliance rectification, it is still uncertain whether the compliance plan can be effectively integrated into the enterprise’s management system, transitioning from a formal compliance plan to a practical, ongoing governance mechanism. without sustained external supervision, achieving a true culture of compliance within the enterprise and preventing recidivism remain challenging, thereby undermining the overall effectiveness of compliance-based non-prosecution. 4. integrated pathways for compliance-based non-prosecution in tax cases within the greater bay area 4.1 establishing a jointly led compliance procedure by courts and procuratorates for tax-related criminal cases currently, the compliance-based non-prosecution system in china is still in an exploratory phase, with the nine-department guiding opinions not yet involving the people’s courts, and the compliance non-prosecution process primarily occurring during the prosecution review phase. however, in principle, a checks-and-balances structure exists between the judiciary and the procuratorate, forming a triangular relationship among prosecution, defense, and adjudication, which balances power. allowing the procuratorate to exclusively control the compliance-based non-prosecution process interrupts the information flow during the prosecution review phase, leading to an expanded scope of prosecutorial discretion that disrupts the balance among the parties involved. the involvement of courts in criminal compliance procedures could resolve these issues and broaden the applicability of criminal compliance in serious cases. in the practice of compliance-based non-prosecution reform, criminal compliance procedures are gradually extending into the courts, with some local courts and procuratorates jointly establishing procedural rules for compliance-based non-prosecution. this allows enterprises involved in criminal cases to apply for compliance at the trial stage if they have not done so during the prosecution review phase. given the nature of tax-related www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 91 published by scholink inc. criminal cases, which frequently involve serious offenses, extending the compliance procedure beyond the prosecution review phase can facilitate more thorough compliance rectification by the enterprises involved, potentially leading to reduced penalties or even acquittals at trial. the longer timeline of the trial phase also provides enterprises with more time to prepare payments for taxes, late fees, and fines. the court of second instance decision in a case involving a construction company in wuhu, anhui province, where an enterprise and its controller submitted a compliance rectification application and completed rectification during the appeal stage, ultimately exempted the enterprise from criminal penalties. this case offers a valuable reference for designing a tax compliance non-prosecution framework within the greater bay area. in a joint compliance procedure for tax-related criminal cases in the greater bay area, specific standards for division of labor and cooperation should be clearly established. three main categories of cases should be targeted: (1) serious cases with significant amounts at stake, where the enterprise has submitted a compliance application and achieved rectification at the prosecution review phase, but is still prosecuted due to the severity of the offense; (2) cases where the enterprise submitted a compliance application and prepared a compliance plan during the prosecution review phase, but failed to meet the compliance standards due to financial constraints preventing timely payment of taxes, late fees, or fines; and (3) cases where the enterprise has shown no intent for rectification at the prosecution review stage but submits a compliance application at trial. for the first two types, the procuratorate should take the lead, and once the case reaches court, leniency should be applied as stipulated. for the third type, the court should assume primary responsibility. the core concept of enterprise compliance reform is co-governance; regardless of the leading party, third-party organizations should be engaged, with the lead party reviewing their assessment conclusions to provide a final evaluation of the effectiveness of compliance rectification. tax authorities should play a central role in compliance assessment, either as members of the third-party organization or as administrative authorities, to provide professional oversight of compliance rectification plans and outcomes. this collaboration between the courts, procuratorate, and tax authorities would enable a thorough assessment of enterprises involved in tax-related offenses, emphasizing both punishment and prevention, and promoting the standardized development of small and medium enterprises (smes) in the greater bay area. 4.2 establishing a dual system of compliance-based non-prosecution types to match the severity of offenses as previously discussed, the legal basis for compliance-based non-prosecution can be traced to discretionary non-prosecution under article 177 of the criminal procedure law and exemptions from criminal punishment under article 37 of the criminal law, both of which apply only to minor offenses. most legal scholars argue that non-prosecution for serious crimes may violate the principle of legality and could be viewed as a form of leniency that tolerates criminal behavior. while some compliance practices have extended to non-prosecution for serious crimes, certain local jurisdictions restrict www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 92 published by scholink inc. compliance rectification in cases where the statutory sentence exceeds ten years. in tax-related criminal cases, serious crimes are often handled separately in practice. for example, in a case involving a company that issued fraudulent vat invoices, causing over 1.2 billion rmb in tax losses to the state, the procuratorate prosecuted several individuals directly responsible while simultaneously initiating a conditional non-prosecution process for the company. fraudulent vat invoice cases are prevalent in tax-related criminal cases, and sentencing is often based on the invoiced amount rather than the actual tax loss, meaning the invoiced amount does not necessarily reflect the true financial harm to the state. therefore, a tax compliance non-prosecution framework in the greater bay area should consider the social harm of each case, establishing a dual system of discretionary and conditional non-prosecution to match the severity of the offense. specifically, the framework should: (1) establish threshold tax amounts for discretionary and conditional non-prosecution based on the characteristics of tax-related cases in the greater bay area, and refine the criteria for applying compliance-based non-prosecution. discretionary non-prosecution should apply to minor tax-related offenses, while conditional non-prosecution should apply to more serious cases involving larger tax amounts. for vat invoice fraud, the applicable type of compliance-based non-prosecution should be determined based on the extent of harm to state tax revenue rather than the sentencing standards defined in the criminal law; (2) link the conditions for the two types of compliance-based non-prosecution to the effectiveness of the enterprise’s tax compliance rectification, applying the corresponding type of non-prosecution according to the level of compliance achieved. this structure addresses the limitations of a single discretionary non-prosecution model, which is particularly suited to cases involving large tax amounts; and (3) for cases where compliance rectification is initiated at trial, or cases where compliance rectification remains incomplete within the observation period set during the prosecution review phase but shows progress by the trial phase, the court could incentivize the enterprise by imposing a non-custodial penalty. in sum, the procedural differentiation in non-prosecution types enables tax-related enterprises in the greater bay area to pursue tailored tax compliance rectification, offering them an opportunity for renewed development. the application of discretionary non-prosecution does not inherently require participation in a compliance system, but linking compliance-based non-prosecution with conditional non-prosecution aligns with the internal logic of the system itself. 4.3 establishing a unified standard for compliance rectification to integrate governance and prevention enterprise compliance reform not only emphasizes protection of private enterprises but should also focus on punishment and crime prevention. however, in practice, the lack of clear sentencing incentives, inadequate observation periods, and vague evaluation standards for compliance rectification have limited the effectiveness of compliance reform. given the technical complexity of tax compliance rectification, a pathway focusing on “compliance risk identification, specialized compliance management, and targeted management elements” should be established. in light of the large number of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 93 published by scholink inc. smes in the greater bay area and the fact that tax-related enterprises are often small or micro-sized, a risk-based tax compliance management system tailored to smes is necessary. small and micro enterprises, in particular, tend to have less mature management systems and are therefore more prone to tax-related violations. the greater bay area should design specific measures targeting the root causes of criminal conduct, aiming to eliminate systemic risks by incorporating basic compliance elements, establishing compliance departments, appointing compliance officers, and improving internal management. on this foundation, specialized tax compliance elements should be developed: (1) establish a tax compliance risk identification system. identify high-risk fields associated with tax-related offenses, including vat fraud, tax evasion, and fraudulent export tax rebates, to focus on specific risks that could lead to repeated offenses. risk identification should cover areas such as off-the-books accounts, separation of invoices and goods in transactions, and general invoice deductions, with general guidance and key risk factors outlined. (2) introduce differentiated tax compliance management elements. tailor compliance management based on the size of the enterprise, the offense, and its severity, incorporating training, communication, and anonymous reporting mechanisms to prevent recurring issues. guidelines should also allow the compliance observation period to exceed the prosecution review period for serious cases, ensuring adequate time for effective rectification. (3) establish a graded standard for compliance rectification effectiveness. implement a three-tier grading system (fully compliant, partially compliant, non-compliant) for enterprises based on compliance achievements, with each tier linked to corresponding sentencing incentives. only enterprises achieving full compliance would receive the final incentive of non-prosecution. (4) sign a tax compliance agreement between third-party organizations and enterprises. following the compliance observation period, third-party organizations, along with tax authorities, should assess the compliance level achieved by the enterprise. this would mitigate arbitrary evaluations, allowing enterprises to estimate the costs and outcomes of compliance rectification, thereby improving the likelihood of successful rectification. 4.4 establishing a collaborative mechanism for tax compliance across the greater bay area the integration of cross-border transactions within the greater bay area has promoted coordination among tax systems, yielding notable progress. while compliance-based non-prosecution reform does not directly apply to the special administrative regions (sars), the mainland’s policies indirectly influence them. the tax system differences among the three regions affect the recognition and handling of tax violations, and the variances in tax administration impact procedural responses to tax offenses. given the greater bay area’s distinct legal framework, a collaborative tax compliance mechanism is necessary to address shared challenges in fraudulent vat issuance and tax evasion. key components of this mechanism include: www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 94 published by scholink inc. (1) cross-border jurisdictional cooperation for tax violations. establish unified jurisdictional arrangements for tax violations committed by mainland enterprises in sars and vice versa. (2) collaborative oversight following compliance-based non-prosecution initiation. in cross-border cases under mainland jurisdiction, third-party organizations evaluating compliance rectification should work closely with sar tax and judicial authorities. (3) mutual recognition mechanism for investigations of tax violations across judicial systems. facilitate data sharing and mutual recognition of case files, evidence, and transferred cases among the three regions to improve efficiency. (4) establishing a tax data center for cross-border compliance monitoring. develop a monitoring platform using big data to oversee tax compliance across cross-border enterprises, guiding compliant operations and ensuring the rehabilitative effects of compliance-based non-prosecution. 5. conclusion as a vital component of china’s industrial layout, the greater bay area plays a critical role as both an economic growth engine and a hub for reform and innovation. unifying tax compliance-based non-prosecution standards across the greater bay area would enhance tax compliance governance for enterprises, strengthen sustainable development for private enterprises, and provide a model for national application. with the extension of compliance procedures to the trial phase, enterprises can achieve mitigated sentencing through tax compliance rectification even if they do not obtain non-prosecution during prosecution review. as the greater bay area has a high incidence of tax-related criminal cases among smes, only an integrated tax compliance system can ensure consistent standards, prevent disparate treatment, and reinforce judicial authority in tax compliance cases. funding 2023 guangzhou philosophy and social science “14th five-year plan” project: research on the integrated compliance-based non-prosecution regulations for tax governance of enterprises involved in cases in the greater bay area, china (project no. 2023gzgj32). references cai, c., lin, g., & xue, l. (2019). research on cross-border tax focus and tax cooperation in the greater bay area. tax research, (11), 60-65. chen, r. (2023). special compliance plans in enterprise compliance rectification. politics and law forum, 41(01), 28-44. guo, l., & li, g. (2023). practical challenges and solutions of compliance-based non-prosecution for enterprises. changbai journal, (04), 81-88. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 95 published by scholink inc. kong, l. (2023). genealogical expansion and functional transformation: issues of guilty plea in enterprise compliance cases. journal of chinese criminal law, (06), 123-139. li, f. (2024). research on “therapeutic justice” model: the rise of compliance-based non-prosecution in china. politics and law forum, (01), 106-119. liu, y. (2022). the doctrinal foundations of compliance-based non-prosecution reform. journal of chinese criminal law, (01), 107-123. mo, r. (2023). practical review and pathway exploration of the integration of criminal justice rules in the greater bay area. law application, (10), 41-50. research guidance group on compliance for enterprises involved in criminal cases, supreme people’s procuratorate. (2022). handbook on compliance case handling for enterprises involved in criminal cases. beijing: china procuratorate press. sha, x. (2024, february 1). wan chun, member of the supreme procuratorate committee: preventing cases from collapsing an enterprise and causing unemployment. retrieved from https://baijiahao.b aidu.com/s?id=1726562673303162551&wfr=spider&for=pc sun, g. (2023). the rationale, models, and pathways for judicial review of compliance-based non-prosecution in courts. law forum, 38(05), 38-49. wang, d. (2024, february 1). the national procuratorial authorities have handled 7,815 compliance cases involving enterprises. retrieved from https://www.spp.gov.cn/zdgz/202310/t20231023_631 592.shtml wuhu intermediate people’s court. (2023, may 9). the first compliance rectification case for a criminal enterprise in wuhu intermediate court. retrieved from https://www.wuhucourt.gov.cn/d ochtml/1/23/05/00168457.html note note 1. guangdong provincial taxation bureau, state taxation administration. discretionary standards for tax administrative penalties in the central and southern regions [eb/ol]. (2023-12-12) [2024-04-07]. retrieved from http://guangdong.chinatax.gov.cn/gdsw/wzjd/2023-12/12/content_c15f9a ee136e4508b4b7467a17bd9a18.shtml economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 145 original paper supervisory justice, trust in supervisors and employee creativity: the mediating role of self-efficacy xudong deng 1 , yuan zheng 1 & yuanshi jin 1* 1 beijing institute of technology (zhuhai), guangdong, zhuhai, china * jin yuanshi, e-mail: kaylajin031@163.com received: april 15, 2024 accepted: may 29, 2024 online published: june 4, 2024 doi:10.22158/elp.v7n1p145 url: http://dx.doi.org/10.22158/elp.v7n1p145 abstract this study examines the relationship between supervisory impartiality, trust in supervisors, and employee creativity within financial enterprises. these factors significantly influence employee morale and efficiency. our research aims to provide actionable recommendations for optimizing enterprise management through theoretical insights. we first investigate the impact of supervisory justice on employees’ trust in their superiors, finding that fair supervision enhances trust, which in turn boosts employees’ confidence and efficiency at work. employee creativity is crucial for achieving organizational goals; fostering creativity can lead to more efficient business operations and improved management practices. a key focus of our research is the mediating role of self-efficacy, defined as an employee’s belief in their ability to successfully complete tasks. we explore how self-efficacy bridges the gap between supervisory impartiality, trust in supervisors, and employee creativity. our findings suggest that a just work environment provided by supervisors enhances employees’ self-efficacy, resulting in greater confidence and a willingness to engage in creative work. in summary, this study explores these relationships within financial firms. by understanding these dynamics, companies can create a fair work environment, enhancing employee satisfaction and efficiency. we recommend that enterprise managers foster a just supervisory environment to boost employees’ self-efficacy and support the achievement of corporate goals. keywords supervisory justice, trust in supervisors, employee creativity, self-efficacy www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 146 1. introduction the relationship between supervisory justice, employees’ trust in supervisors, and employee creativity has garnered significant attention from scholars. additionally, the mediating role of self-efficacy in this dynamic is a crucial area of study. supervisory justice involves supervisors providing a fair and just work environment. when employees perceive their work environment as just, their trust in supervisors is enhanced, which subsequently improves their creativity at work. self-efficacy, acting as a mediator, boosts employees’ confidence to complete tasks effectively, ultimately enhancing corporate performance. corporate performance is closely tied to individual employee performance, which can be categorized into in-role and out-of-role performance. in-role performance refers to tasks completed as per the enterprise's arrangements, while out-of-role performance involves tasks initiated by employees beyond their assigned duties. employee self-efficacy, the belief in one’s ability to successfully complete tasks, plays a critical role in both types of performance. generally, a fair supervisory system is likely to increase employees’ trust in their supervisors and enhance their creativity. positive feedback from supervisors further bolsters employees’ self-efficacy. this study aims to examine the impact of supervisory justice on employees’ trust in supervisors and their creativity, with a focus on the mediating role of self-efficacy within financial firms. by exploring how supervisory justice influences the relationship between employees and supervisors, we seek to provide insights for improving overall firm performance. 2. theoretical background supervisor justice means that the supervisors treat subordinates with fairness and respect. supervisory justice mainly has the following characteristics and behaviors: a fair supervisor actively listens to their subordinates, encourages open dialogue, and values their input and perspectives. they create a safe and inclusive environment where everyone feels comfortable expressing their opinions and concerns. they will also provide timely and constructive feedback to help subordinates improve their performance. they focus on specific behaviors and outcomes, offering guidance and support to facilitate growth and development. in addition, a fair supervisor communicates expectations, goals, and feedback clearly and effectively to their subordinates. they ensure that instructions, policies, and decisions are transparent and easily understood by everyone，which is defined as supervisory informational justice (inj). it is defined as the extent to which supervisor provides adequate explanations to the sub-ordinates about various decisions at the workplace (greenberg, 1993). employee creativity refers to the ability of individuals within an organization to generate new and innovative ideas, solutions, and approaches in their work. it involves the generation, application, and implementation of novel and valuable ideas that contribute to the organization’s goals and objectives. by harnessing employee creativity, organizations can drive innovation, adapt to change, and gain a competitive edge in the marketplace. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 147 self-efficacy, which refers to individuals’ beliefs in their own capabilities to organize and execute the courses of action required to produce given attainments, employees with higher self-efficacy are more likely to believe in their ability to generate and implement creative ideas, leading to higher levels of creative performance. self-efficacy influences the choices people make, the effort they put forth, and how long they persist in the face of difficulties. moreover, self-efficacy is not static; it can be developed through mastery experiences, vicarious experiences (observing others), social persuasion, and interpretation of physiological states. as a key determinant of motivation and behavior, self-efficacy plays a crucial role in shaping individuals’ lives and their ability to achieve success and well-being. 3. development status in this thesis, we mainly discuss the relationship between the three by analyzing the current situation of the financial industry. the main reason for choosing the financial industry as the object of analysis is that the industry is a service industry, in which supervisors and employees are more relevant, which makes it more convenient for us to explore the complex relationship among the three. goldman sachs, a global financial giant, exemplifies the relationship between supervisory justice, trust in supervisors, employee creativity, and self-efficacy in practice. previous research consistently demonstrates the significant impact of supervisory justice on various employee outcomes, including job satisfaction, organizational commitment, and performance (colquitt, 2001; greenberg, 1993). goldman sachs has made it a priority to build a fair and equitable culture among its employees. the company has stringent ethical guidelines and conduct standards to ensure that both management and employees are treated fairly. performance evaluations and promotion mechanisms at goldman sachs are perceived as transparent and fair, based on objective criteria and meritocracy principles. these authentic leadership characterized by integrity, commitment to core values, objectivity in making decisions and relational transparency were found to promote employee trust (hassan & ahmed, 2011). goldman’s managers also demonstrate professionalism and leadership, employees trust their leaders to take appropriate actions to ensure the success of the organization and their well-being. just as colquitt (2001) said, by emphasizing distributive justice, procedural justice, interpersonal justice and information justice, it puts forward a comprehensive framework for understanding supervisory justice. studies have found that these dimensions influence employees’ perceptions of fairness and trust in their supervisors. supervisory justice can not only enhance employees’ trust in leaders, but also increase their sense of self-efficacy. self-efficacy, defined as an individual’s belief in their capability to perform specific tasks, has been identified as a crucial mediator in the relationship between contextual factors and employee outcomes (bandura, 1977). the “contextual factors” refers to supervisory impartiality, and the “employee outcome” refers to employee creativity. previous studies have concluded that unlike domainand creativity-relevant skills that also may facilitate one’s creativity, intrinsic motivation is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 148 more variable and subject to the influence of one’s work environment (amabile, 1988; amabile, 1996). after the completion of each task, the leadership of goldman sachs gives fair and reasonable feedback and evaluation to every employee, helps them understand their own advantages and room for improvement, enhances their confidence to better complete the next job, and increases their sense of self-efficacy. in addition, the fair management style of goldman sachs also provides fair opportunities and resources to every employee. in such a workplace environment of equality and healthy competition, employees’ sense of self-efficacy has been further improved. finally, it is worth noting that the leadership inspires confidence and self-efficacy in employees by demonstrating fair, honest and upright behavior and values. when employees have a sufficient sense of self-efficacy, their potential creativity is stimulated. this is because when they believe they can do a job well, they have enthusiasm and motivation for their work. this passion drives them to think constantly, resulting in a constant stream of new creations. 4. the relationship between supervisory justice, trust in supervisor and employee creativity 4.1 supervisory justice tend to improve the trust in supervisor of employees social exchange theory posits that individuals engage in social interactions based on the expectation of reciprocity and fairness. when supervisors treat employees fairly—by providing clear procedures, respectful communication, and equitable resource allocation—employees perceive this as a positive exchange. in return, they develop trust in their supervisors (chernyak-hai & rabenu, 2018). supervisory justice encompasses aspects such as procedural fairness (fair decision-making processes), interpersonal fairness (respectful treatment), and informational fairness (transparent communication), all of which align with the principles of social exchange theory. when employees experience fair treatment, they are more likely to trust their supervisors (iqbal, 2018). trust is a fundamental component of high-quality leader-employee relationships. when supervisors exhibit fairness, consistency, and transparency, employees perceive them as trustworthy, fostering trust (yu, zlatev & berg, 2021). supervisory justice directly influences the quality of the leader-employee relationship. employees who perceive their supervisors as just and ethical are more likely to trust them, leading to stronger bonds and increased cooperation (cai & zheng, 2023). 4.2 trust in supervisor indicates a positive effect on self-efficacy of employees self-efficacy refers to an individual’s belief in their ability to accomplish specific tasks. employees who are confident in their capabilities are motivated to overcome obstacles they encounter at work. self-efficacy is a key factor influencing behavior, motivation, and social adjustment. employees with a high sense of self-efficacy are more likely to believe in their success and are therefore more willing to take on challenges and innovate (bandura, 1977). in today’s dynamic work environment, employees face numerous social demands and challenges, such as building relationships, presenting work to colleagues or leaders, participating in various social activities, and seeking help from others (fan, litchfield, & islam, 2013). trust in supervisors enhances www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 149 employees’ self-efficacy in financial firms, and verbal persuasion by leaders further strengthens this trust. verbal persuasion involves leaders providing realistic and motivating encouragement, which helps employees believe in their ability to perform tasks effectively. unrealistic or overly flamboyant persuasion can be counterproductive (bandura, 1977). when employees fully trust their leaders, their belief in their ability to complete tasks significantly increases. additionally, professionals in the financial sector often learn new strategies and skills by observing the behavior and outcomes of their peers. this type of observational learning is crucial for financial innovation and decision-making processes. 4.3 self-efficacy leads to an apparent improvement in the creative self-concept of employees self-efficacy positively impacts employees’ innovative behavior. employees with high self-efficacy are more inclined to engage in innovative activities, enhancing their creative self-concept (slåtten, 2014). self-efficacy is a well-known predictor of creative ability and performance. it not only forecasts creative performance but also extends beyond the predictive role of occupational self-efficacy. research shows that individuals confident in their ability to succeed in a particular area (i.e., those with high self-efficacy) tend to perform better on creative tasks. this effect surpasses confidence in one’s ability to perform job-specific tasks. in other words, self-efficacy predicts not only how well a person will perform in their routine work but also how they will perform in new situations requiring creative thinking and problem-solving. this is because self-efficacy involves a belief in one’s abilities, motivating individuals to explore new approaches and innovative solutions. 4.4 how self-efficacy mediates between supervisory justice, trust in supervisors and employee creativity self-efficacy serves as a mediating variable for the effects of supervisory justice and trust in supervisors on employee creativity. when employees perceive fair supervision and develop trust in their supervisors, their self-efficacy increases, which in turn stimulates their creativity (zhang & zhou, 2014). feedback-seeking behavior is a significant predictor of employee creativity. positive feedback from supervisors enhances employees’ trust in their supervisors. self-efficacy influences employees’ creativity by affecting their feedback-seeking behavior, which subsequently impacts their creativity. this indicates that self-efficacy mediates the relationship between supervisory fairness, trust in supervisors, and employee creativity (chen & zhang, 2017). therefore, self-efficacy mediates the relationship between supervisory justice, trust in supervisors, and employee creativity. employees working in environments characterized by supervisory justice and trust are more likely to experience increased self-efficacy. this heightened self-efficacy boosts their confidence in accomplishing tasks and contributes to achieving organizational goals. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 150 5. implication and recommendation supervisory justice refers to the fairness and impartiality exhibited by regulators or supervisors within financial enterprises towards the management under their purview. this encompasses actions taken by regulators in formulating and enforcing rules, policies, as well as addressing instances of non-compliance. such fairness should be demonstrated through consistency, transparency, and equitable treatment of all stakeholders, ensuring the reasonableness and fairness of regulatory actions to uphold market stability and credibility. in the management of financial firms, regulatory justice is relevant and necessary to maintain integrity, transparency and fairness. the interaction between supervisors and subordinates can significantly influence the attitudes and behaviors of both parties and produce reciprocal information. when supervisors treat all of their employees fairly and transparently, employees with high justice perceptions feel that they are treated with respect and esteem (interpersonal justice) (bies & moag, 1986) and are provided with explanations or clarifications (informational justice) (shapiro, buttner, & barry, 1994). upon receiving these signals, subordinates will develop the perception that the supervisor has fulfilled his/her moral obligation in treating them with fairness and respect, thereby creating an obligation for the subordinate to reciprocate. this stimulates the subjective initiative of employees, improves their enthusiasm for work, and the energy for work further stimulates their potential creativity. not only that, but supervisory impartiality also increases employees’ confidence in their own abilities because they feel they are being treated fairly in the organization and that their efforts and contributions will be fairly evaluated and rewarded. moreover, strict regulation has discouraged unethical behavior and financial misconduct within companies. transparent regulation also promotes a stable financial environment and reduces the risk of market disruptions or crises. certainly, in addition to the impact on internal staff, fair regulatory oversight instills confidence among investors and stakeholders, ensuring their interests are protected. fair supervision makes investors believe that their funds are protected and the market operates on a fair basis. through the supervision and intervention of supervisors to their subordinates, the emergence of misconduct and systemic risks can be prevented, thus reducing the possibility of instability in the financial market and protecting the interests of investors. to enhance regulatory justice in financial institutions, we propose the following recommendations: firstly, it is crucial for financial firms to establish well-defined guidelines and regulations that outline the criteria by which supervisors should evaluate employees’ conduct. these guidelines and regulations should prioritize principles such as fairness, transparency, and consistency to ensure that supervisors’ assessments remain uninfluenced by personal biases or other improper factors. secondly, it is imperative to provide comprehensive training programs for supervisors on the significance of impartiality and how to effectively conduct fair evaluations. this training should encompass ethical knowledge, conflict resolution skills, as well as identification and management of cognitive biases. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 151 additionally, financial companies ought to foster a transparent work environment where employees can comprehend the decision-making processes and standards upheld by their supervisors. it also makes employees feel respect and trust in each other and increases their sense of self-efficacy. simultaneously, an effective accountability system must be established to hold supervisors responsible for their actions and decisions while providing them with necessary reviews and feedback. most importantly, fostering a culture of diversity and inclusion is essential in mitigating bias and discrimination while enhancing fairness between supervisors and employees. financial firms need to take proactive measures ensuring equitable treatment for all employees irrespective of race, gender, sexual orientation religion or any other identity characteristics. managers should also ensure that all employees are treated fairly in terms of opportunities and treatment, without favoritism or discrimination against anyone, which also helps to improve employees’ self-efficacy. absolutely sure, effective communication between superiors and subordinates plays a pivotal role in establishing an efficient supervision mechanism along with constructive feedback channels aimed at monitoring supervisor behavior & decision-making whilst offering timely guidance when needed. this approach will help rectify inappropriate behavior, reinforce impartiality’s importance, and improve supervisor impartiality towards employees. at the same time, communication between superiors and subordinates also includes supervisors providing timely feedback and support to employees, helping employees develop skills and overcome difficulties, so as to enhance their self-efficacy. 6. conclusion in this study, we investigated the effects of supervisory justice on employee trust and creativity, with a particular focus on the mediating role of self-efficacy. our results suggest that supervisory justice significantly enhances employees’ trust in their leaders, which in turn positively influences their creativity. additionally, self-efficacy plays a crucial mediating role in this process; employees with higher self-efficacy are more confident in their ability to complete their tasks and, consequently, exhibit greater creativity. we concentrated on the financial industry, analyzing how supervisory justice impacts employee trust and creativity and highlighting the mediating role of self-efficacy. our findings underscore the importance of supervisory justice in today’s fast-paced financial enterprises. it not only strengthens employees’ trust in their leaders but also stimulates their creativity by enhancing their self-efficacy. the study demonstrates that financial enterprises can boost employee self-efficacy by ensuring fair supervision, thereby fostering greater creativity and contributing to the achievement of the company’s business goals. these findings are particularly relevant for the financial industry, suggesting that creating a just and supportive work environment can lead to more innovative and productive employees. future research could explore the implementation of these approaches in different sectors within the financial industry to maximize employee self-efficacy and creativity. such studies could provide www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 152 further insights into optimizing supervisory 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(2014). empowering leadership, uncertainty avoidance, trust, and employee creativity: interaction effects and a mediating mechanism. organizational behavior and human decision processes, 124(2), 150-164. https://doi.org/10.1016/j.obhdp.2014.02.002 https://doi.org/10.1006/obhd.1994.1041 https://doaj.org/article/8022ee64104b4eaa8452609d00d334fc https://doi.org/10.1186/s12913-021-07430-z https://doi.org/10.3389/fpsyg.2021.757687 https://doi.org/10.1016/j.obhdp.2021.02.002 https://doi.org/10.1016/j.obhdp.2014.02.002 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 2, 2023 www.scholink.org/ojs/index.php/elp 46 original paper the impact of the crisis on poverty and socio-economic inequalities in europe nicola acocella 1 1 memotef, sapienza university of rome, rome, italy received: june 17, 2023 accepted: june 27, 2023 online published: september 5, 2023 doi:10.22158/elp.v6n2p46 url: http://dx.doi.org/10.22158/elp.v6n2p46 abstract we want to investigate the factors that have had an impact on poverty rates and inequalities in europe and enquire about the possibility to reduce them in the future. our enquiry is largely novel in the literature on the topic. the immediate causes of the increase in poverty rates and inequalities have certainly been the financial crisis, the pandemic and the increase in unemployment that derived from them in almost all european countries. in a nutshell, the underlying novel factors that we underline can be attributed to the eu institutions and policies, the ensuing asymmetries and the situation in “core” and “peripheral” countries, more specifically: 1) the “credit-led” strategy of growth pursued by peripheral countries. 2) the “export-led” strategy of growth pursued by core countries. these strategies implicated pernicious imbalances that reflected on poverty rates and inequalities. we find also that only the welfare state has succeeded in mitigating the negative impact on poverty and equity, but at the cost of further burdening public finances, especially in peripheral countries, casting a shadow on the ability to perform the same role in the future. in the future what is needed to avoid asymmetries and imbalances in the european union is a common strategy of growth. keywords european monetary union, equity, balance of payments imbalances, financial crisis, pandemic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 47 published by scholink inc. 1. introduction the trend in post-wwii economic inequality is of interest. until the 1970s the beneficial effect of keynesian-type policies on equality were sensible. then came a period of liberal policies, with an opposite effect. after a period when some equality had again been achieved, the financial crisis had a negative impact on poverty rates and, to some extent, on socio-economic inequalities in almost all european countries. we intend to investigate the extent and nature of this change as well as the factors that have had a positive or negative impact on it. this could let us throw some light on an enquiry into the possibility of reducing poverty and equality in the future. section 2 is devoted to the analysis of the trend and nature of socio-economic poverty and inequalities before the crisis. section 3 deals with poverty and inequalities emerging after the crisis. section 4 tries to figure out the determinants of changes of poverty and inequality after wwii. the final section outlines the main conclusions. 2. trends in socio-economic poverty and inequalities before the crisis before discussing macroeconomic and equity achievements preceding the crisis, it is worth remembering that the tradition of the european union (eu) construction assigns a high weight to the role of markets vs active policies and institutions. theories stated in the two decades after the end of the 1960s favoured the free-market attitude of the european monetary union or eurozone (emu or ez), together with adoption of an independent and conservative central bank and of rules limiting discretionary fiscal policy at the country level. they supported a shift in economic policy attitudes whose most popular examples were thatcher’s and volcker’s and reagan’s, outside the union. passing to the economic performance in organization for economic co-operation and development (oecd) countries, in contrast with inflation trends, unemployment rates—which can be taken as a first indicator of socio-economic conditions-decisively increased after 1970 until 2007 and then in 2021, due to the pandemic (see figure 1), while inflation rates decisively reduced, while peaking in 2021 (figure 2). this implies a clear change in policymakers’ preferences all around the world. however, since we are specifically interested in the impact of european institutions and policies, specific mention should be made of those that were chosen for the emu countries, for some of which trends clearly appear even less favourable. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 48 published by scholink inc. figure 1. unemployment rates, world, 1991-2022 (source: world bank) figure 2. inflation rates, consumer prices, world, 1981-2022 (source: world bank) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 49 published by scholink inc. the rise of unemployment gives a first idea of the trend of poverty and distribution. really, the shock deriving from the change in policy preferences had already exhausted its impact in the eu during the nineties. as a consequence, in the first years after 1999 and before the crisis one should expect the practical absence of an aggregate change in the rate of poverty as a whole. there are, however, no detailed statistics for the early 2000s, since estimation of trends in at-risk-of-poverty rates over the long-term is problematic, due to absence of consistent data sources. instead, in the period between 2004 and 2007, for the majority of countries there was no statistically significant change in the at-risk-of-poverty rate, whereas the rate declined in ireland, poland, and slovakia, and is likely to have declined in the czech republic and hungary. in contrast, at-risk-of-poverty rates increased in germany, finland, latvia, and sweden (lelkes & gasior, 2012). after 2007 we have also a more complete indicator of poverty, offered by the risk of poverty and social exclusion (note 1), which is a europe 2020 goal. this indicator considers not only the share of people with an equivalised disposable income (after social transfers both monetary and in-kind) below the at-risk-of-poverty threshold, set at 60% of the national median of that indicator, but also enforced inability to pay unexpected expenses. both situations can obviously derive from a condition of unemployment. for this reason this indicator is more comprehensive than the poverty rate. the reader might have noted that the rate of poverty and social exclusion was partly defined in the space of income (note 2) (this is so for the rate of poverty), but the other component-social exclusion-can be related to sen’s concept of capability. thus, it has a multidimensional dimension going beyond the static indications deriving from poverty, since it refers not only to monetary poverty, but also to other components: these are material deprivation, which affects future prospects for the poor, and a situation of living in households with low work intensity, which is at the roots of poverty. in 2007, 24.4% (21.7%) of the population in the eu (emu 17), totalling about 120 (71) million people were at risk of poverty and social exclusion (figure 3). the situation was clearly worse not only in some eastern european countries, but also in the peripheral ones, namely, ireland, spain, portugal, italy and greece (the so called giips countries). dealing deeper with the multidimensional aspects of poverty, an index has been suggested (and used for measurement) by the undp (note 3). fortunately, this index declined for most ldcs in the world after 2009-2010, but we don’t have data for the years of pandemic (see, e.g., undp, 2023). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 50 published by scholink inc. figure 3. people at risk of poverty and social exclusion, various countries (%), eu 27, 2007 source: eurostat. were it not for the ephemeral growth deriving from the asset bubbles created in these countries by the capital inflows specular to their current account deficits, the poverty rates in these countries and the gap with core countries would have been higher. however, these very factors were behind the worsening of the differences after the crisis, when the direction of capital flows reversed, causing bank and sovereign debts and, then, deflationary tendencies. in addition to poverty, inequality must be considered. the dispersion of indicators of efficiency and poverty across member countries also offers information about geographical inequality across the eu. other indicators of inequality can also be considered. as to personal income inequality, in 1980, disparities were generally higher in western europe than in scandinavia and eastern europe and the gap increased in the following decades, especially due to the rise of inequalities in spain, portugal, germany and the uk. in the nineties, instead, top income inequality rose in the first two groups of countries, especially in eastern european countries, due to the disintegration of the soviet bloc. the share of the top 10% income earners rose (almost) everywhere in southern, west and northern europe and even more in east europe up to the financial crisis. the theil index rose from 0.37 to 0.52 up to 2007, whereas it rose more considerably in the usa. in the world as a whole, income concentration has risen almost everywhere in the last 40 years. more specifically, the income share of the top 1% earners in the world has risen from about 17.8% in 1980 to 20.6% in 2020. on the other hand, the wealth of the world’s poorest has shrunk with respect to that of billionaires (see world economic lab, 2022). this trend was partially influenced by fiscal policy, which acted in europe, particularly in the eighties and nineties, in reducing income inequality. today, pre-tax income inequality remains, on average, slightly lower in northern europe than in other regions of the continent, even if these differences should not be exaggerated. more generally, after-tax inequality was slightly lower than before taxes in europe, contrary to the usa, where the incidence of taxes was higher, leading to lower inequality (blanchet et al., 2019). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 51 published by scholink inc. 3. socio-economic inequalities after the crisis equity was hit badly by the crisis, as shown by figures 4 and 5. in particular, between 2007 and 2016 the average rate of poverty and social exclusion rose by 1.4 p.p. to 23.1% in the emu, while decreasing in the eu, from 24.5 to 23.4% (not shown by the figures). figure 4. people at risk of poverty and social exclusion, various eu countries (%), 2014, 2015 source: eurostat. 0 5 10 15 20 25 30 35 40 2007 2016 figure 5. people at risk of poverty and social exclusion, various ez countries (%), 2007, 2016 source: eurostat. the increase in this rate appears to have been rather limited, but this conclusion would be largely misleading. the figures, in fact, undervalue impoverishment and social exclusion, since the crisis has significantly lowered the average and median per capita income, especially in some countries (note 4). moreover, the eu variance has sharply reduced in the period, from 100.11 to 48.33, the value for the emu of this indicator has soared, from 14.95 to 29.12. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 52 published by scholink inc. in addition, we must consider that containment in the increase of the poor derives from the existence of the welfare state. to show the importance of its role we must refer to one component of the risk of poverty and social exclusion, i.e., poverty rates, as this measures the monetary aspect of poverty only. this component is calculated by taking into account net disposable income, which is significantly affected by taxes and social transfers. data about this component in different eu countries before and after all social transfers (including social pensions) (note 5) show how significant are transfers as a part of disposable income. if we consider their contribution not only at the deepest point of the crisis, but also more recently, they amounted to almost 9% of the median income for the eu in 2015, lowering the share of people at risk of poverty from 26.0% to 17.3% (figure 6). the contribution was much higher for some countries (not only scandinavian countries, but also the uk and other countries) than for new-accession countries (note 6). the share of the poor before social transfers was similar in finland (26.8%) and in romania (29.3%). however, while finland experienced the second largest decrease in the eu of the rate of poverty after social transfers (14.4 p.p.), in romania the share of the monetary poor only fell slightly (3.9 p.p.) as a result of such transfers. over time, the rates of people at-risk-of-poverty before and after social transfers have moved in different directions. the former was relatively stable in the eu between 2010 and 2015 (note 7), while the latter increased slightly over the same period. this could mean that either the amounts of social transfers paid have fallen or such transfers have become less effective over time. overall, as transfers are countercyclical, we can deduce that the member states performed a high-profile task in compensating for the negative effects of the crisis on monetary poverty. however, performance of this role entailed higher public deficits and debts throughout the eu, which could make the burden of the welfare state unsustainable, unless this cost is reduced, as it has been done in some countries. figure 6. people at risk of poverty, before and after social transfers (excluding pensions) (%), eu 28 and other countries, 2015 notes. 1) data for switzerland and turkey are for 2014, instead of 2015. 2) the top of each line indicates people at risk of poverty before social transfers. the bottom refers instead to the number of people at risk of poverty after social transfers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 53 published by scholink inc. as to income inequality within specific countries, the findings of various studies-referring to different periods, countries and indicators-differ. from the end of the civil war in the us to the start of wwii, inequality increased as an effect of rising monopolization; while for european countries, in terms of the gini coefficient, it diminished mainly as an effect of “the wars of the twentieth century that, to some extent, wiped out the past and transformed the structure of inequality” (piketty, 2013, p. 118). more recently, the trend in income inequality has changed. with reference to the last three decades, inequality-again in terms of the gini index-has risen more in transition countries (mainly the baltic countries), the uk and some nordic countries. it has increased less in other countries, such as italy, and has remained largely unchanged in austria, denmark, france and germany, in particular after the eruption of the great recession (salverda et al., 2014). using a measure of personal inequality different from the gini index, this picture is confirmed and some aspects of the changes are revealed. in the uk the top 1 percent income share has risen less than in the us and has stayed almost constant in major continental european countries (piketty, 2013; alvaredo et al., 2013). strictly tied to personal inequality of income is personal inequality of wealth, which varies highly between countries, being higher in the uk, france and the scandinavian countries, while spain, ireland and italy have lower inequality levels (maestri et al., 2014). indeed, the effects of the crisis on personal distribution were variegated. if one considers the share of income pertaining to the richest countries, the effects in the uk were negative, similarly to what happened also in other anglo-saxon countries (figure 7) (note 8). by contrast, at least in some countries of continental europe they were almost absent, due mainly to the more intense action of the welfare state in them (figure 8). figure 7. share of income of the richest 1% of the population, anglo-saxon countries, 1910-2010 source: alvaredo et al., 2013. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 54 published by scholink inc. figure 8. share of income of the richest 1% of the population, selected countries of continental europe and japan, 1910-2010 source: alvaredo et al., 2013. these findings are substantially confirmed by more recent analysis of income distribution in developed countries (bourguignon, 2018). this same source also offers evaluations of the share of the higher percentile in the same countries, but it stops at 2012 and coincides with the alvaredo et al’s findings in some cases, whereas in others they differ. counterfactual simulations show that the expansionary monetary policy of the ecb contributed to counteracting the negative effects of the sovereign debt crisis and to mitigating the negative effects of the sovereign debt crisis on both the banking sector and the real economy, not only in individual countries but also in the ez as a whole. figure 9. gini index for the ea and some eu countries, 2007, 2016 source: eurostat. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 55 published by scholink inc. as to the effects of the great recession on personal income distribution, the gini index for the ea as a whole confirms its practical invariance, whereas rises and reductions have influenced countries differently. rather strangely, there have been rises in some rather equalitarian northern countries, such as sweden and the denmark, as well as in peripheral countries and france, whereas finland, germany, the netherlands and the uk seem to have benefitted from the crisis in terms of distribution (figure 9). similarly, the theil index slightly reduced from 0.52 in 2007 to 0.50 in 2017, whereas it rose continuously in the usa (blanchet et al., 2019). strictly tied to personal inequality of income is personal inequality of wealth, which varies highly between countries, being higher in the uk, france and the scandinavian countries, while spain, ireland and italy have lower inequality levels (maestri et al., 2014). personal inequality of both income and wealth is linked to worsening factor inequality and, to a large extent, also depends on it (e.g., dabla-norris et al., 2015; stockhammer, 2015). however, in our case, rather strangely, improvements in personal income equality before 2007 were accompanied by falling labour income shares, whereas, more recently, deterioration in personal inequality pairs with more or less stationary labour shares. this is in contrast with what usually happens, as declining labour shares and improved macroeconomic performance do not translate into improvements in the distribution of personal income (atkinson, 2009b). and data show also that a higher capital share is accompanied by higher inequality in personal distribution (piketty, 2013). this implies that other factors must have been more relevant. one such factor are sources of income that are different from labour for some workers at least, which can be related to the accumulation of relevant financial assets during the period up to 2007. the subsequent financial crisis can then easily account for deteriorating personal equality even with rather unchanged labour income. more recently, it has also been shown that policies other than those specifically devised for equality have been able to influence it. in fact, lenza, slacalek (2018) find that quantitative easing also caused a reduction in inequalityby lowering the number of families being unemployed and thus compressing the income distribution. the rising poverty and inequality have reinforced the negative effects of the great recession and the tendency towards stagnation. however, it must be said that the impact of poverty and inequality on long-term growth has been the object of inquiry of a number of modern theoretical and empirical studies that reach different conclusions. some theoretical analyses show positive effects linked to the top part of the income distribution, as this can boost savings that are available for investment and allow at least some individuals to acquire a good education and accumulate the minimum needed to start businesses (barro, 2000). some other analyses indicate negative effects, depending on the share of the bottom part of income distribution, since it: i) deprives the poor of the ability to stay healthy and accumulate human capital (perotti, 1996; galor & moav, 2004; aghion et al., 1999); ii) generates political and economic instability that reduce investment (alesina & perotti, 1996); and iii) impedes the social consensus required to adjust to shocks and sustain growth (rodrik, 1999) (note 9). the relationship between inequality and growth may be nonlinear: “increases in inequality from low levels www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 56 published by scholink inc. provide growth-enhancing incentives, while increases past some point encourage rent-seeking and lower growth”. the net effect is indeterminate, depending on the relative strength of each and the overall inequality (ostry et al., 2014, p. 8). empirical analyses can then be useful, even if they cannot be considered as diriment, since they only indicate some possible regularities across countries subject to the influence of history and the whole set of institutions and the economic and social conditions of each country. nevertheless, results of such analyses are striking in indicating the negative impact on growth of different features of inequality (cingano, 2014). 4. the determinants of changes of poverty and inequality after wwii if we refer to the experience after the second world war, the trend of inequality was influenced, first of all, by the keynesian policies implemented after the war, which reduced unemployment, thus increasing the income of a substantial part of the population. redistribution and regulatory policies have had different effects in different countries. after 1980, inequality was increased in particular by policies of liberalisation of the labour, goods and capital markets and by a reduction in the tax burden on income and wealth (for example, by reducing the inheritance tax) of richer, particularly accentuated in the anglo-saxon countries. it is no coincidence that distribution has worsened a little in continental european countries (in particular, in scandinavian ones) where redistributive policies have remained largely active. the role of technology is uncertain. similarly, the globalisation of the movement of goods has contributed to reducing inequalities, while the liberalisation of capital and financialisation have increased capital shares, also creating financial crises. instead, the expansion of education may have tended to reduce inequalities. the following table shows the trend over time of marginal rates-that is, the tax rates applied on the highest income fraction-in major developed countries. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 57 published by scholink inc. table 1. marginal income tax rates for some developed countries, 1900-2013 (source: pedone, 2016) france germany uk usa 1900 0% 3% 0% 0% 1909 0% 3% 8% 0% 1913 0% 3% 8% 7% 1918 20% 20% 53% 77% 1928 33% 40% 50% 25% 1939 53% 60% 83% 79% 1941 60% 60% 98% 81% 1944 70% 60% 98% 94% 1951 60% 75% 98% 91% 1964 53% 53% 89% 77% 1980 66% 56% 75% 70% 1988 57% 56% 40% 28% 2000 61% 51% 40% 40% 2005 56% 42% 40% 35% 2013 53% 45% 45% 40% wealth has a higher inequality than income. this is due to demographic reasons (wealth is higher for the elderly, who represent a higher share of the population) and to the fact that when net wealth is considered, the gross wealth of many people is reduced, because it is at least partly the result of debt. this happens in particular if we consider-as it normally is-the overall wealth and not only that in terms of certain activities, such as houses. as the number of both the homeless and debtors and the richest have increased, there has been a polarisation of the distribution of wealth. the worsening in the distribution of income and wealth is linked to that of the so-called “functional” distribution of income (i.e., the distribution of income among the “factors” of production) and to a certain extent this depends precisely on the trend of this type of distribution, since the returns on capital have increased and those on labour have decreased. in fact, from figure 10 below it can be seen that the corrected labour income (wage) share decreased in the 1990s and 2000s in virtually all countries. the reference to the correction indicates that account has been taken of the reduction in the number of dependent workers (who earn wages) compared to the total number of workers, including the self-employed. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 58 published by scholink inc. as regards wage labour, there has been a notable deterioration to the detriment of the poorest workers. thus, the wages of the top 1% of wage-earning workers in the us and the uk more than doubled, while the income of the poorest workers fell. this derives from: lower wages of less skilled workers, due to non-typical forms of employment (temporary and precarious employment); reduction in employment during the great recession; polarisation of income and capital growth rates. the effect of the latter factor on the personal distribution of income requires an explanation. this is due to the fact that the interest rate (which is the capital growth factor) was higher than the income growth rate. thus, higher income earners-who have a higher propensity to save, by investing saving in various forms of wealth find themselves at an advantage over other income earners. in other words, suppose, for example, that everyone’s income (high and low income earners) initially grows by 5%. it should be borne in mind that, if the common growth rate is 5%, the distances between the most qualified, who earn relatively more than others, and the least qualified, persist and remain unchanged. however, the latter do not save, unlike the former and therefore their income growth remains equal to 5%. the saving of the most qualified allows them to earn further income and, thus, their wealth increases, for example, by 6%, as the interest rate is supposed to be higher than the rate of growth of income. it can be thought that part of this increase, equal to 5%, is used to keep the ratio between wealth and income unchanged and another part, 1%, increases the distance in terms of income with the less qualified. figure 10. adjusted share (%) of wages on income, various countries, 1960-2016 note. the greek share of wages shows the lowest profile, while the share of other countries change more or less in the same way. source: canelli, realfonzo, 2018. https://www.economiaepolitica.it/wp-content/uploads/wage-share-italy.jpg https://www.economiaepolitica.it/wp-content/uploads/wage-share-italy.jpg www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 59 published by scholink inc. in terms of time, it must be said that, in appearance strangely, in the first decades of the postwar period, the improvements in personal income equality were linked to decreasing labour income shares, while more recently the worsening of the former was accompanied by more or less stationary labour income shares. this implies that other sources of income have become more prominent. one of these could be the accumulation of significant financial assets in the period up to 2007. the subsequent crisis, which destroyed financial wealth, could then explain the worsening of personal equality, even with a fairly constant share of earned income, if the destruction affected the major income earners less. in conclusion, we can say that the crisis has had a significant negative effect on both efficiency and equity. and the clash between equity goals in rich countries and the pursuit of better living standards in other countries has fuelled populism in recent years (rodrik, 2019). 5. conclusions as a conclusion to this analysis, we can say that both the financial crisis and the pandemic have had a relevant negative impact on equity. the progress that had been registered before 2007 has been lost since and the situation has even worsened. to some extent, one can say that the very factor that allowed more equality before the crisis, i.e., a rather high rate of growth also in peripheral countries, originated the crisis and produced a negative impact on equity. in fact, growth in peripheral countries derived from excessive capital inflows, due to current and capital account imbalances, caused the formation of asset bubbles there. there are two possible concurring explanations for that: one focuses on the behaviour of deficit (or peripheral) countries, the other focuses on the behaviour of surplus (or core) ones. the interaction of both certainly determined the final outcome. a distinction can be drawn between the different-but closely interdependent (hein, 2012)-growth strategies of member countries: an “export-led” growth model in the core and a “credit-led” growth model in the periphery (stockhammer & onaran, 2012) that could not last after the crisis. then, the reasons underlying the crisis appear worth being analysed further, but we cannot deal with them here. on the other hand, the negative effects of the pandemic have largely disappeared in the recent months. only the welfare state has succeeded in mitigating the negative impact of the crisis and the pandemic on equity, but at the cost of further burdening public finances, especially in peripheral countries. this casts a shadow on the ability of the welfare state to perform the same role in the future, unless the austerity regime derived from the institutional set-up of emu institutions and the deflationary policies imposed to tame the crisis are overcome. in the future what is needed is a common strategy of growth based on new institutions and policy of the kind experienced for reacting to the recent pandemic. 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(2012). income poverty and social exclusion in the eu. situation in 2008 and trends. european centre for social welfare policy and research, vienna, policy brief. https://doi.org/10.3386/w5730 https://doi.org/10.1257/jep.27.3.3 https://doi.org/10.1111/j.1468-0335.2009.00788.x https://doi.org/10.1093/oxrep/grp007 https://doi.org/10.1093/0199253498.003.0001 https://doi.org/10.1093/0199253498.001.0001 https://doi.org/10.1023/a:1009850119329 https://doi.org/10.5089/9781513555188.006 https://doi.org/10.1111/0034-6527.00312 https://doi.org/10.4337/9781781009161 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 61 published by scholink inc. maestri, v., bogliacino, f., & salverda, w. (2014). wealth inequality and the accumulation of debt, ch. 4 (w. salverda, b. nolan, d. checchi, i. marx, a. mcknight, i. g. tóth, & h. van de werfhorst, eds.). https://doi.org/10.1093/acprof:oso/9780199687435.003.0004 notten, g., & guio, a. c. (2020). at the margin: by how much do social transfers reduce material deprivation in europe? eurostat. ostry, j. d., berg, a., & tsangarides, c. g. (2014). redistribution, inequality, and growth, imf d. n. 14/02x. https://doi.org/10.5089/9781484352076.006 perotti, r. (1996). growth, income distribution, and democracy. journal of economic growth, 1(2), 149-187. https://doi.org/10.1007/bf00138861 piketty, t. (2013). le capital au xxie siècle. paris: éditions du seuil, engl. transl.: capital in the twenty-first century, cambridge: harvard university press, 2014. ravallion, m. (2016). the economics of poverty. history, management and policy. new york: oxford university press. https://doi.org/10.1093/acprof:oso/9780190212766.001.0001 rodrik, d. (1999). where did all the growth go? external shocks, social conflict, and growth collapses. journal of economic growth, 4(4), 385-412. https://doi.org/10.1023/a:1009863208706 salverda, w., nolan, b., checchi, d., marx, i., mcknight, a., tóth, i. g., & van de werfhorst, h. (eds.). (2014). changing inequalities in rich countries: analytical and comparative perspectives. oxford: oxford university press. https://doi.org/10.1093/acprof:oso/9780199687435.001.0001 stockhammer, e. (2015). rising inequality as a cause of the present crisis. cambridge journal of economics, 39(3), 935-958. https://doi.org/10.1093/cje/bet052 stockhammer, e., & onaran, o. (2012). rethinking wage policy in the face of the euro crisis. implications of the wage-led demand regime. international review of applied economics, 26(2), 191-203. https://doi.org/10.1080/02692171.2011.631903 undp. (2023). unstacking global poverty: data for high impact action. multidimensional poverty index 2023. retrieved from https://www.undp.org/sites/g/files/zskgke326/files/2023-07/2023mpireportenpdf.pdf world bank. (2007). social exclusion and the eu’s social inclusion agenda. in paper prepared for the eu8 social inclusion study, mimeo. world economic lab. (2022). world inequality report. retrieved from https://en.unesco.org/inclusivepolicylab/publications/world-inequality-report-2022 notes note 1. on this concept see, e.g., atkinson et al. (2002a, b), world bank (2007), atkinson (2009a). for comparisons over time, see lelkes & gasior (2012). note 2. in some way similarly to poverty, inequality can refer to a number of “spaces” such as consumption, income, wealth, utility, capability. the most common spaces are income and wealth. wealth inequality can refer to total wealth or net of debt wealth, or to specific wealth items, houses, https://doi.org/10.1093/acprof:oso/9780199687435.003.0004 https://doi.org/10.5089/9781484352076.006 https://doi.org/10.1007/bf00138861 https://doi.org/10.1093/acprof:oso/9780190212766.001.0001 https://doi.org/10.1023/a:1009863208706 https://doi.org/10.1093/acprof:oso/9780199687435.001.0001 https://doi.org/10.1093/cje/bet052 https://doi.org/10.1080/02692171.2011.631903 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 62 published by scholink inc. land or financial wealth. for each space and dimension, different indices can be calculated. note 3. the global mpi begins by constructing a deprivation profile for each household and person in it that tracks deprivations in 10 indicators: being underweight; death of any child in the past five years; non-attendance of children up to class 8 at school; no household member having completed 6 years of schooling; lack of access to electricity by the household; not having a source of drinking water within a 30 minute walk round trip; unavailability of an improved sanitation facility that is not shared; having nonsolid cooking fuel; unavailability of electricity and durable housing materials, and basic assets such as: a radio, animal cart, phone, television, computer, refrigerator, bicycle or motorcycle. note 4. apart from the peripheral countries (the giips) and some central and east european countries (ceec), also some of the leading countries of the eu, such as france and germany, have significantly been affected by the crisis (insee, 2014; bundeszentrale für politische bildung und dem wissenschaftszentrum berlin für sozialforschung, 2013). in germany the situation of the eastern lander had particularly worsened after the crisis. note 5. one could say that data about poverty rates before and after social transfers (including social pensions) are not a suitable indicator, as social pensions largely represent an intergenerational transfer between the same people, rather than a transfer among different people of the same generation. but data show that the substance of our argument holds (and really is possibly emphasized) if they are excluded. note 6. the impact of (total) social transfers reduces the average number of material deprivations by 2.2%. in germany and greece and by 1.9 and 1.8 in poland and the uk, and even more if we consider only worse off recipients. the reduction in at-risk-of-poverty rates is usually even higher (notten & guio, 2016). in 2016 the greek at-risk-of-poverty rate before all social transfers (i.e., excluding both social benefits and pensions from the total disposable household income) was 52.9%. it dropped to 21.2%, after consideration of social transfers. thus, the inclusion of total social transfers contributed to a total decrease of 27.7 p. p. in the at-risk-of-poverty rate. note 7. one must remember that, as said, given the definition of the rate of poverty in terms of the median income, a reduction in the former does not necessarily imply a reduction in the number of the poor. note 8. however, consider that, contrary to what happened to the highest 1% income percipients, the share of the top 10% income earners stayed generally stable after 2007 (indeed up to 2017) in the usa, similarly to what happened in europe as a whole (hooper et al., 2018). note 9. see also ravallion (2016). economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 136 original paper digital empowerment of social assistance rights: legal issues and reflections yunlong zhu 1,2 1 university of washington, seattle, wa 98195, usa 2 winglobal, guangdong, shenzhen, china received: may 1, 2024 accepted: may 27, 2024 online published: june 3, 2024 doi:10.22158/elp.v7n1p136 url: http://dx.doi.org/10.22158/elp.v7n1p136 abstract this paper aims to explore the legal issues surrounding the digital empowerment of social assistance rights, by examining the current practices and status of digital empowerment in the field of social assistance, and analyzing the legal challenges and solutions involved. firstly, the paper elucidates the concepts and significance of social assistance rights and digital empowerment, then analyzes the current application of digital technologies in the field of social assistance and the current legal issues therein. subsequently, it focuses on legal issues such as data privacy and information security, legal frameworks and regulations for safeguarding social assistance rights, legal responsibilities, and regulatory mechanisms, proposing corresponding legal safeguards and strategies. finally, it summarizes the achievements and challenges of digitally empowering social assistance rights and provides prospects for future development. keywords digital empowerment, social assistance rights, legal issues, data privacy 1. introduction with the rapid development and widespread adoption of digital technology, digital empowerment has become an important trend in the field of social assistance. in terms of legal issues concerning the right to social assistance, digital empowerment provides new avenues for thinking and resolution. the consideration of legal issues related to digital empowerment in social assistance not only involves the combination of technology applications and legal norms but also concerns fairness, justice, and the protection of human rights. this paper will explore how digital empowerment affects the legal practice of the right to social assistance, as well as the legal issues and challenges involved. through an analysis of the intersection between digital empowerment and the right to social assistance, we can better www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 137 understand the development trends of social assistance law in the digital age and provide reference and guidance for building a more equitable and efficient social assistance system. 2. the concept and significance of digital empowerment of social assistance rights 2.1 the concept and connotation of social assistance rights social assistance rights, as an integral part of the human rights system, refer to the individual’s right, under the law, to obtain necessary living support and assistance from the government or social organizations. its core connotation includes two aspects: first, individuals have the right to obtain social assistance, meaning that when individuals encounter living difficulties or special circumstances, they have the right to apply to the government or social organizations for and obtain corresponding assistance; second, the government or social organizations have the responsibility to provide necessary social assistance to individuals, ensuring the protection of their basic rights to life. therefore, social assistance rights are not only the rights of individuals but also the responsibilities of the government, requiring both proactive applications from individuals and active fulfillment from the government. in the context of digital empowerment, the concept and connotation of social assistance rights have undergone new changes. digital empowerment makes the processes of social assistance application, review, and distribution more efficient and convenient, strengthening the government’s management and supervision of social assistance. at the same time, the application of digital technology provides individuals with more channels and ways to access information and services, enhancing the realization of social assistance rights. therefore, digital empowerment not only enhances the efficiency and service level of the social assistance system but also promotes the realization and safeguarding of social assistance rights, which is of great significance and value (egan, 2022, pp. 202-222). 2.2 the concept of digital empowerment and its application in the field of social assistance digital empowerment refers to the use of digital technology to provide more efficient, convenient, and intelligent services and support to various industries, thereby promoting social development and progress. in the field of social assistance, the specific applications of digital empowerment include but are not limited to the following aspects: data management: establishing an electronic file system for social assistance recipients using information technology to digitize the collection, storage, management, and sharing of personal information, improving the accuracy and timeliness of social assistance. intelligent auditing: using artificial intelligence, big data, and other technologies to conduct intelligent audits and analysis of social assistance application materials, improving audit efficiency, reducing human errors, preventing fraudulent applications, and ensuring the rational distribution of assistance resources. electronic payment: using electronic payment methods to distribute social assistance funds, directly transferring funds to the accounts of recipients through channels such as bank cards and electronic wallets, improving distribution efficiency, and reducing delays and risks in fund circulation. online services: establishing social assistance information disclosure platforms and online consultation service systems to provide convenient information inquiry and application processing www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 138 services for recipients, enhancing the transparency and accessibility of services. data analysis and prediction: through the analysis and mining of social assistance data, discovering the regularities and trends of social assistance needs, providing scientific basis and predictive support for government decision-making and resource allocation. the application of digital empowerment in the field of social assistance not only enhances service efficiency and quality but also strengthens the transparency and fairness of social assistance, promoting the modernization and healthy development of the social assistance system. 3. current status analysis of digitally empowering social assistance rights 3.1 current application status of digital technology in the field of social assistance currently, digital technology has made some progress in the field of social assistance, mainly in the following aspects: firstly, data management has been initially established. many regions have set up electronic file systems for social assistance recipients, realizing the digitized collection, storage, and management of personal information. these electronic file systems not only improve the efficiency of information integration and sharing but also provide more accurate data support for social assistance work. secondly, intelligent auditing is gradually being widely applied. with the help of artificial intelligence and big data technology, social assistance application materials can be intelligently audited and analyzed, rapidly identifying eligible beneficiaries, reducing the time and cost of manual review, and improving the accuracy and efficiency of auditing. thirdly, electronic payment methods are gradually becoming more widespread. more and more places are adopting electronic payment methods to distribute social assistance funds, allowing beneficiaries to directly receive funds through channels such as bank cards and electronic wallets, avoiding the security risks and management challenges associated with cash distribution, and improving the convenience and security of fund distribution. additionally, online service platforms are gradually being improved. many places have established social assistance information disclosure platforms and online consultation service systems, allowing beneficiaries to access policy regulations, submit application materials, and seek advice through the internet, enhancing the convenience and accessibility of services and promoting information sharing and communication. in summary, digital technology has achieved some results in the field of social assistance, but it still faces some challenges and issues, such as information security risks and data privacy protection. therefore, it is necessary to further strengthen technological innovation and legal system construction in the future to promote the deep application of digital empowerment in the field of social assistance, better safeguarding and implementing the right to social assistance (lee, 2016, pp. 317-333). 3.2 manifestation and issues of social assistance rights in the process of digital empowerment digital empowerment in the field of social assistance reflects various aspects of social assistance rights in practice, but it also brings some problems and challenges. firstly, digital empowerment reflects the right to access information of social assistance. through digital platforms, beneficiaries can easily www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 139 access information such as assistance policies and application procedures, enhancing the transparency and accessibility of information, improving the beneficiaries’ awareness of their rights and their exercise (habermas, 2022, pp. 145-171). 145-171. secondly, digital empowerment reflects the right to apply for and receive assistance. beneficiaries can submit application materials through online platforms, and government departments can timely process and handle applications, reducing the time and space constraints associated with traditional application methods and enhancing the channels for beneficiaries to realize their rights. thirdly, digital empowerment reflects the right to service guarantees of social assistance. through digital platforms, beneficiaries can more quickly obtain assistance funds and service support, improving the efficiency and quality of assistance and enhancing the satisfaction and trust of beneficiaries. however, digital empowerment also faces some problems and challenges. firstly, the existence of the digital divide means that some vulnerable groups cannot enjoy the convenience brought by digital empowerment, which contradicts the principle of universality of social assistance rights. secondly, concerns about information security and privacy protection have been widely raised, as the leakage and misuse of personal sensitive information may harm the legitimate rights and interests of beneficiaries. additionally, the application of digital technology may increase the technical dependence of beneficiaries. once the system fails or misinformation occurs, it may affect the realization of beneficiaries' rights and life security. therefore, while digital empowerment embodies social assistance rights, it is also necessary to fully consider the problems and challenges, strengthen the management of information security and privacy protection, promote the universality and sustainable development of digital technology, and ensure that digital empowerment plays a positive role in realizing social assistance rights. 4. discussion on legal issues of digitally empowering social assistance rights 4.1 data privacy and information security protection with the widespread application of digital empowerment in the field of social assistance, data privacy and information security protection have become urgent legal issues to be addressed. in the process of digital assistance, a large amount of personal sensitive information is collected, stored, and used, including personal identity information, economic conditions, family situations, etc. once this information is leaked or misused, it will seriously harm the legitimate rights and privacy of beneficiaries. firstly, laws need to specify the scope and purpose of data collection and use. when collecting personal information, social assistance agencies should clearly inform beneficiaries of the purpose, scope, and methods of information collection, and obtain explicit consent from the beneficiaries. at the same time, laws should stipulate strict data usage and access permissions to ensure the legality and security of data. secondly, laws need to strengthen the supervision and protection of data security. social assistance agencies should establish sound information security management systems and technical protection measures, strengthen the encryption, backup, and monitoring of personal information, prevent illegal access, and tampering of data. meanwhile, for security incidents www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 140 such as data leakage and loss, laws should stipulate timely reporting and compensation responsibilities to safeguard the legitimate rights and interests of beneficiaries. additionally, laws need to strengthen the standardized management of data sharing and exchange. during the data sharing process, the recipients, scope, and purposes of data sharing should be clearly specified to ensure the legality and security of data and prevent its abuse and leakage. meanwhile, laws should specify cross-departmental data exchange mechanisms and procedures, strengthen the supervision and management of data exchange to ensure its legality and compliance. in summary, data privacy and information security protection are important legal issues faced by digitally empowering social assistance rights. by strengthening the standardized management of data collection, use, sharing, and exchange, establishing sound information security management systems and technical protection measures, the legitimate rights and privacy of beneficiaries can be effectively safeguarded, promoting the realization and implementation of social assistance rights (danso, 2018, pp. 410-430). 4.2 legal framework and regulations for guaranteeing social assistance rights the legal framework and regulations for guaranteeing social assistance rights are essential foundations to ensure the full protection and realization of beneficiaries’ rights. in the process of digitally empowering social assistance rights, the legal framework and regulations should include the following aspects: firstly, clarify the legal status and principles of social assistance. laws should clearly stipulate that social assistance rights are basic rights of beneficiaries, with legal protection and remedies. at the same time, laws should specify the basic principles of social assistance, including fairness, justice, transparency, and convenience, providing legal guidance and norms for social assistance work. secondly, specify the objects and scope of social assistance. laws should clearly define the objects of social assistance, including which populations are eligible for social assistance and under what circumstances. meanwhile, laws should also specify the content and standards of social assistance, including specific content and standards in areas such as economic assistance, medical aid, and educational support. thirdly, establish a sound social assistance system and mechanism. laws should stipulate the establishment of a sound social assistance management system and operating mechanism, clarify the responsibilities and obligations of government departments and social organizations, ensure the reasonable allocation and effective utilization of social assistance resources. meanwhile, laws should specify the standards for social assistance services and quality evaluation mechanisms, strengthen the supervision and evaluation of social assistance work. lastly, strengthen the protection and relief mechanisms for social assistance rights. laws should stipulate the establishment of sound protection and relief mechanisms for social assistance rights, including channels for complaints and reports, administrative review, and judicial remedies, to ensure that the legitimate rights and interests of beneficiaries are effectively protected and realized. in summary, the legal framework and regulations for guaranteeing social assistance rights are a crucial link to ensure the smooth implementation of digitally empowering social assistance rights. by clarifying the legal status and principles of social assistance, specifying the objects and scope of social assistance, establishing a sound social assistance www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 141 system and mechanism, and strengthening the protection and relief mechanisms for social assistance rights, the rights and interests of beneficiaries can be effectively protected, promoting the normalization and healthy development of social assistance work (lombard-vance, soye, ferri et al., 2023, pp. 28-47). 4.3 construction of legal responsibility and supervision mechanisms in the process of digitally empowering social assistance rights, the establishment of sound legal responsibility and supervision mechanisms is an important guarantee to safeguard the rights and interests of beneficiaries and ensure the fair operation of social assistance. this mechanism should cover the following aspects: firstly, establish clear legal responsibility systems. laws should clearly stipulate the responsibilities and obligations of social assistance agencies, government departments, and relevant personnel in social assistance work, including responsibilities for information protection, implementation of assistance standards, and service quality assurance. for illegal and irregular behaviors, laws should specify corresponding punishment and accountability mechanisms to ensure the implementation and enforcement of legal responsibilities. secondly, establish effective supervision mechanisms. government departments should strengthen the supervision and management of social assistance work, establish a sound supervision system and mechanism, strengthen the daily supervision and inspection of social assistance agencies and personnel. at the same time, it should establish an assessment and evaluation mechanism for social assistance work to conduct regular assessments and monitoring of social assistance work, discover and correct problems in a timely manner. thirdly, strengthen the supervision of information security and data protection. government departments should strengthen the security management and supervision of social assistance data, establish sound data security protection systems and technical protection measures to ensure the security and confidentiality of beneficiaries’ personal information. for behaviors that violate data protection regulations, corresponding penalties and sanctions should be imposed. lastly, establish mechanisms for accepting complaints and handling disputes. government departments should establish sound mechanisms for accepting and handling complaints about social assistance, providing timely and effective channels for beneficiaries to complain, and promptly handling the complaints and disputes received. for complaints and disputes involving the rights and interests of beneficiaries, investigations and resolutions should be carried out impartially, timely, and effectively to ensure the effective protection and maintenance of beneficiaries’ legitimate rights and interests. in summary, the establishment of sound legal responsibility and supervision mechanisms is an important guarantee for digitally empowering social assistance rights. by clarifying legal responsibilities, strengthening supervision and oversight, protecting information security, and establishing mechanisms for complaint handling, the rights and interests of beneficiaries can be effectively protected, promoting the fair operation of social assistance work and advancing the implementation and development of digitally empowering social assistance rights. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 142 5. legal safeguards and measures for digitally empowering social assistance rights 5.1 legal policy suggestions and improvements to better safeguard the digitally empowered social assistance rights, it is crucial to enact specialized laws such as the “social assistance law” or related regulations. this law should clearly define the rights and obligations of social assistance, including aspects such as beneficiaries, assistance standards, procedures, and information protection, providing clear legal basis and norms for digitally empowering social assistance. additionally, it is necessary to improve the legal system for personal information protection. strengthening the protection of personal information, clearly defining the principles of collection, use, storage, and protection of personal information, establishing sound personal information security management systems and technical protection measures, ensure the security and confidentiality of beneficiaries’ personal information. furthermore, establishing independent social assistance regulatory agencies is also an important measure. independent social assistance regulatory agencies should be established to strengthen the supervision and management of social assistance work, standardize social assistance behavior, and uphold the legitimate rights and interests of beneficiaries and the fair operation of social assistance. strengthening legal publicity and education is also indispensable. efforts should be made to enhance the publicity and education of social assistance laws and policies, increase the awareness and understanding of social assistance rights and obligations among beneficiaries and the public, and enhance beneficiaries’ awareness and ability to protect their rights. lastly, establishing a sound complaint reporting mechanism is also necessary. a sound social assistance complaint reporting mechanism should be established to provide timely and effective channels for beneficiaries to lodge complaints, promptly handle complaints and disputes received, and ensure the effective protection and maintenance of beneficiaries’ legitimate rights and interests. through these legal policy suggestions and improvements, the legal safeguards for digitally empowering social assistance rights can be further strengthened, promoting the normalization, institutionalization, and healthy development of social assistance work, and achieving effective protection and implementation of social assistance rights. 5.2 strengthening supervision and security mechanisms strengthening supervision and security mechanisms is an important measure to ensure the effective implementation of digitally empowering social assistance rights. firstly, it is crucial to establish sound supervision mechanisms. government departments should strengthen supervision and management of social assistance agencies and relevant service providers to ensure their lawful performance and standardized operation. regular supervision and inspection should be conducted to identify and rectify problems in a timely manner. secondly, strengthening information security is a necessary means to ensure the security of beneficiaries’ personal information. establishing sound information security management systems and adopting effective technical measures to protect beneficiaries’ personal information, preventing the risks of information leakage and misuse. thirdly, strengthening the supervision of digitally empowering technology is essential. supervise the research, application, and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 143 promotion of digitally empowering technology to ensure compliance with laws and regulations and safeguard the rights and interests of beneficiaries. meanwhile, strengthen the supervision of digitally empowering service platforms to enhance platform security and reliability. lastly, establish a sound complaint handling mechanism. establish complaint channels for beneficiaries, promptly receive and handle complaints, and safeguard beneficiaries’ legitimate rights and interests. the implementation of these measures will provide strong guarantees for digitally empowering social assistance rights, promote the sustainable development of social assistance undertakings (hoogerwerf & mavrou, 2020, pp. 131-143). 5.3 public participation and social governance enhancing public participation and social governance are important measures to guarantee digitally empowering social assistance rights. firstly, an information disclosure mechanism should be established to ensure the transparency of social assistance policies, standards, and procedures. by disclosing relevant information to the public, it enhances their ability to understand and participate in social assistance work, and improves the democracy and scientific nature of government decision-making. secondly, encourage social organizations and volunteers to participate in social assistance work, leveraging their roles in information collection, needs assessment, and service provision. the participation of social organizations and volunteers can not only enrich social assistance resources but also enhance the quality and efficiency of social assistance services. thirdly, establish a sound social supervision mechanism, strengthen supervision and evaluation of social assistance work. by establishing complaint reporting channels, holding public hearings, etc., strengthen social supervision of social assistance work, promptly identify and correct problems, and promote the standardization and healthy development of social assistance work. lastly, strengthen community construction and promote the organic integration of social assistance work and community services. give full play to the role of community organizations, establish a community social assistance model characterized by multi-party participation and collaborative governance, provide beneficiaries with services that are closer to life, warmer, and more caring. through these measures, public participation can be stimulated, promoting the democratization, rule of law, and humanization of social assistance work, and better achieving the goal of digitally empowering social assistance rights. 6. conclusion digitally empowering social assistance rights is an important way to promote the development of social assistance undertakings, with the potential to promote social equity, improve assistance efficiency, and service quality. this article discusses the importance and feasibility of digitally empowering social assistance rights from three aspects: legal safeguards and measures, supervision and security mechanisms, and public participation and social governance. to better realize digitally empowering social assistance rights, specific measures such as establishing a sound legal policy system, strengthening supervision and security mechanisms, promoting public participation and social www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 144 governance are proposed. through the implementation of these measures, the efficiency and quality of social assistance work can be effectively improved, promoting the comprehensive realization of social assistance rights. in the future, it is necessary to further strengthen the cooperation between government, social organizations, and the public, jointly promote the implementation of digitally empowering social assistance rights, and contribute to the 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(2016). precarization or empowerment? reflections on recent labor unrest in china. the journal of asian studies, 75(2), 317-333. https://doi.org/10.1017/s0021911815002132 lombard-vance, r., soye, e., ferri, d. et al. (2023). applying the “human rights model of disability” to informed consent: experiences and reflections from the shapes project. disabilities, 3(1), 28-47. https://doi.org/10.3390/disabilities3010003 https://doi.org/10.1177/1468017316654341 https://doi.org/10.1080/13600869.2022.2060465 https://doi.org/10.1177/02632764221112341 https://doi.org/10.4324/9780429428241-6 https://doi.org/10.1017/s0021911815002132 https://doi.org/10.3390/disabilities3010003 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 166 original paper the construction of chinese securities fraud rules zhu pei 1 1 bocom, zhejiang province, hangzhou, china received: april 20, 2024 accepted: june 10, 2024 online published: june 13, 2024 doi:10.22158/elp.v7n1p166 url: http://dx.doi.org/10.22158/elp.v7n1p166 abstract building an effective and fair legal system is one of the ultimate goals of china’s capital market construction. to protect minority investors, changes has been made in recent years, especially rules about securities fraud. though china constantly reform its securities regulation system, whether is it a perfect solution to transplant the regulation in us securities market remains unknown. this article is to critically examine china’s securities fraud regulation, both from the perspective of practice and theory. it is argued that the impact of these changes has the common goal and that they will make profound basis on capital market. keywords securities regulation, the reform of chinese securities law, legal transplantation 1. introduction in recent years, the regulation of china’s securities market has been constantly explored. the whole fundamental structure was established by 1988 prc securities law. the revised rules in misrepresentation in the 2019 revision of the prc securities law and the following rules in 2022 made significant progress in dealing with the false statement on the securities market. false statements in the securities market refer to significant false, misleading, omitted, or inappropriate disclosure of information related to securities issuance, trading, and related activities disclosed by relevant entities or actors in the securities market. such deceptive information results to investors participating in securities or trading activities without understanding the true situation. due to the basis of the modern securities market is a such common sense, that the market can function well under the circumstance that the company provide all subjective information, including financial and operating status, while the investors are able to make rational judgement on investment. the main responsibility of government or other regulative department is to maintain information disclosed by listing and listed company is fully, reliable and timely. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 167 it is no doubt that the fairness and the effectiveness of the whole securities market would be drastically weakened if the false statements can not be restrained properly. thus, restraining false statement through legal enforcement is an essential way to maintain the order of the securities market and leverage the market’s self-regulation function. after the disclosing of misrepresentation, the further punishment will not only focus on the liability of involved company, such as penalty and dismissing qualifications of public co-operates, but also aiming at compensation for loss of concerned investors. above all, observing the securities regulation from a broad perspective of institutional evolution can provide a background framework for understanding china’s corporate capital system reform and its potential impact on the capital market. 2. the history of prc securities law the securities law of the people’s republic of china, which was implemented in 1999, has formed the initial framework of china’s securities legal system (fang, tian & yanfei, 2022). the whole legal system of capital market has been in progress in past 30 years. the securities law had been revised for twice at 2005 and 2019. the whole securities regulation system has been enriched by judicial interpretation from the supreme court of prc and administrative rules from the state council, beside that judicial cases plays a role in legal practice related to capital market. with the unprecedented thriving of capital market, the fraud and deceit became a serious problem, as the companies engage in financial fraud during the issuance stage or make false statements during the operation period. thus, the relative lack of civil liability and investor protection has become an unneglectable shortcoming of this law (hu, 2016). it was not until 2002 that the supreme people’s court enacted certain provisions of the supreme people’s court on the trial of civil compensation cases arising from misrepresentation in the securities market (judicial interpretation 2002), which marked the beginning of the introduction of a new tort law regime in china-the tort of misrepresentation (fang, tian & yanfei, 2022). the tort of misrepresentation is a product of the historical development of anglo-american tort law (ban, 2017), and the creation and application of its system are closely related to the institutional environment in which anglo-american tort law arose and exists (jeong, 2015). 3. restrain securities fraud: from the perspective of comparative law 3.1 dealing with securities misrepresentation from the perspective of comparative studies, the concept of misrepresentation was first used in england (purshouse, 2018). subsequently, the term misrepresentation was gradually used in securities law and became an important concept in the early regulation in the uk (ernst, 1943, pp. 549-550). in the case of the united states, although there is no uniform statutory provision for misrepresentation in transactions, state courts generally recognize tort law remedies for types of misrepresentation (affiliated ute citizens of utah et al. v. united states et al. 406 u.s., 1972, p. 128; blackie v. barack, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 168 524f.2d891, 1975; shi & zhou, 2015, p. 217), and the united states has also enriched the tort of misrepresentation by providing tort law remedies for misrepresentation in special areas through the provisions of special laws such as the advertising act and the securities exchange act (karpoff, lee & martin, 2007). 3.2 stones from other mountains: legal transplantation in securities law (traditional chinese proverb, n.d.) legal transplantation is a difficult and continuous process, and it is important to deeply understand and grasp the historical motives and realistic appearance of the creation and development of the misrepresentation tort system, which is an essential foundation for the successful completion of the transplantation of law; and a prerequisite for the establishment of a comprehensive misrepresentation tort system in china (gao & wang, 2016). the initial legal transplantation was a special type-chinese securities regulation learned from the united states, coupled with the residual influence of traditional systems, manifested as a mixed system of securities regulation. the content of the securities law 2019 has made great effort on regulating fraud, including strengthening information disclosure regulations, increasing the protection system for investors, increasing the punishment for illegal and irregular activities, and clarifying market manipulation and insider trading behavior.the content of the securities law (2019) includes provisions similar to those of the us securities law of 1933 and the securities exchange law of 1934, most of the revise can been seen as prototype from securities regulation from us. the judicial interpretation of 2002 has made a more comprehensive regulation of the tort of misrepresentation in securities issuance and securities trading in the form of the special law. 4. the imperfect securities fraud rules the chinese mode of regulation is certainly conducive to specific problem-solving and enhancing the relevance of institutional regulation, but the special law provisions lacking general law support are inherently inadequate (guo, 2003, pp. 95-99). although the current establishment of china’s misrepresentation tort system has drawn on the theories of the common law system, there are still dilemmas in judicial practice that cannot be perfectly integrated with china’s domestic securities market, including the problems of expanding the application of the permitted evidence, unclear determination of the substantial standard, insufficient improvement of the causation rules, and the weak function of the class action mechanism (tang & li, 2022, pp. 61-72). first, the chinese supreme court stated that the new judicial interpretation can also be applied to misrepresentations occurring in equity markets other than national securities trading venues (lin, fu & zhou, 2022, pp. 43-50). the core of the securities misrepresentation tort system lies in the presumption of causation, and the “reference” application means that this presumption needs to be extended beyond its original scope of application, the such phenomenon needs to be alerted and the limits of its application need to be analyzed. when discussing the application or “reference” application of the tort www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 169 system of securities misrepresentation, we should not focus entirely on whether the object of the transaction in question constitutes a nominal “security” but should pay attention to the rule of presumption of causation as its essence and be alert to the great power of the presumption of causation (fan, 2016, pp. 1495-1511). the court should be alert to the great power of the presumption of causation and evaluate the liability for securities fraud in an appropriate and fair manner. second, there is a theoretical deficiency in china’s judicial practice regarding the determination of the materiality of securities misrepresentations. whether a misrepresentation is a material is only one of the factors to be considered when administrative penalties are imposed by administrative authorities such as the securities regulatory commission. even if a misrepresentation is not material, it may be subject to administrative penalties. at the same time, it is inconsistent with the current legal provisions and judicial interpretations as the defendant are not allowed to prove the basic facts found in the administrative penalty decision in a civil action for misrepresentation. and a phenomenon has also been noted that limiting the defendant’s opportunity to raise the defense that false statements are not material does not necessarily benefit small and medium-sized investors (cox, 1997, p. 497). for example, attorneys’ fees and expert witness fees are unavoidable expenses, so small and medium-sized investors as a whole are at a disadvantage in a civil action for misrepresentation (fox, 2009). moreover, the core of the fraud on the market theory is that the stock price accurately and time reflects the public information disclosed by the perpetrator of the misrepresentation, so that an investor’s investment transaction based on stock price fluctuations may be presumed to have relied on the information disclosed by the perpetrator, but such reliance cannot be presumed when the information has no effect on the stock price (langevoort, 2007). in the united states, the supreme court held that a defendant could rebut the presumption of a causal link in a transaction since the misrepresentation had no effect on the price of the stock (halliburton co. v. erica p. john fund, inc., 134 s. ct. 2398, 2014). in this regard, china’s courts should also allow defendants to rebut the presumption of causation on this ground, preventing civil litigation from becoming “insurance” for investors’ investments. 5. the judicial progress of securities fraud case in the absence of general legislative regulation of misrepresentation infringement, only the special type of misrepresentation infringement is provided for, which will inevitably lack generalization and abstraction of the general elements of misrepresentation infringement and easily bring legal loopholes in the special law regulation (li, 2015, p. 250). these challenges in the misrepresentation tort regime were further addressed by the promulgation of the 2022 supreme people’s court regulations on the trial of civil compensation cases for misrepresentation infringement in the securities market (fang, tian & yanfei, 2022). the newly revised judicial interpretation has the important significance of improving the liability system for misrepresentation and promoting the progress of civil liability adjudication rules (tang & li, 2022, pp. 61-72). the new judicial interpretation introduces the fraudulent market theory and scientifically designs the logical system of civil compensation for www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 170 misrepresentation tort. nevertheless, the litigation system of securities investors still need to be activated further. it is to be noted that existing empirical studies show that one of the main problems reflected in the low filing rate of misrepresentation cases in china is the lack of investor confidence in the civil compensation mechanism and the fact that the existing litigation mechanism does not yet provide a strong litigation tool for injured investors (tang, 2019, pp. 58-59). in addition to the “implied entry and express exit” litigation mechanism in the united states, there still a large space to explore when it comes to the subject of building a class action system that is consistent with the chinese securities market (xu, 2020, pp. 61-73). such issues should be considered, for example, the proper and reasonable identification of the scope of rights holders, the clarification of the scope of authorization of insurance institutions, and the expansive effect of class action results. 6. case shock the market: kangmei case kangmei pharmaceutical co., ltd. (hereinafter referred to as kangmei pharmaceutical) was established in 1997 and listed on the shanghai stock exchange in 2001. it is a listed company that focuses on the production and sales of traditional chinese medicine decoction pieces. during the period from 2015 to 2018, kangmei pharmaceutical company’s operations expanded in disorderly manner, and engaged in financial fraud. the controlling shareholder and related-parties occupied funds for private purposes, leading to insolvency and delisting. the controller of the company was held criminally responsible for manipulating the securities market and engaging in illegal disclosure or non disclosure of important information. in november 2021, kangmei pharmaceutical was fined 5 million yuan on charges of cooperative bribery. soon after, the local court in guangzhou has made a judgment, which is also the first securities false statement liability dispute in china, that kangmei pharmaceutical has compensated 52037 investors with a loss of 2.459 billion yuan. 6.1 determination of false statements in the case in the “2016 annual report”, “2017 annual report”, and “2018 half year report” disclosed by kangmei pharmaceutical, there is a false increase in operating income, interest income, and operating profit, a false increase in monetary funds, and a failure to disclose the non-operational occupation of funds by controlling shareholders and their related parties. this constitutes the act of making false records of major events that inconsistent with facts, causing significant omissions in disclosure. there are false records in the audit reports of kangmei pharmaceutical’s financial statements in 2016 and 2017 issued by accounting firm. thus, the court confirmed the fact that kangmei pharmaceutical had false records and major omissions, and found that the case had false statements. 6.2 factual causation between the plaintiff’s investment losses and the false statements article 18 of the “several provisions of the supreme people’s court on the trial of civil compensation cases caused by false statements in the securities market” stipulates: “if an investor has the following circumstances, the people’s court shall determine that there is a causal relationship www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 171 between the false statement and the damage result: (1) the investor invests in securities directly related to the false statement; (2) the investor buys the securities before the disclosure date or correction date on or after the implementation date of the false statement; (3) the investor incurs losses due to selling the securities or continuing to hold the securities on or after the disclosure date or correction date of the false statement”. according to the provisions of this judicial interpretation, it shall be presumed that there is a causation between the loss of investors and the defendant’s false statement behavior. 6.3 compensation liability article 69 of the securities law of prc (2014 amendment) set the rule that the issuer or listed company hold the compensation liability in false misrepresentation. the directors, supervisors, senior management personnel, other directly responsible personnel, the controlling shareholder or actual controller of the issuer or listed company shall bear joint and several compensation liability with the issuer or listed company, except for those that can prove that they are not at fault. thus, the kangmei pharmaceutical is liable for compensation for the losses suffered by the investors involved in the case. 7. conclusion this article briefly reviews the history of china’s securities law legislation and revision, and analyzes the reference of china’s capital market regulation to foreign securities markets, especially the united states. in response to fraudulent behavior in the securities market, china’s securities regulatory mechanism is rapidly improving, but there are still some problems in this mixed regulative system. strengthening ex ante regulation and establishing a connected litigation system are possible directions for future. this article attempts to illustrate the legislative and judicial changes in recent years through a framework review of china’s securities regulation, and indicates that these changes will have a profound impact on the chinese capital market. references affiliated ute citizens of utah et al. v. united states et al. 406 u.s. (p. 128). (1972). ban, a. (2017). misrepresentation in applications for insurance and the pro rata clause in german insurance contract law. journal of insurance science. https://doi.org/10.5609/jsis.2017.637_53 blackie v. barack, 524f.2d891. (1975). cox, j. d. (1997). making securities fraud class actions virtuous. the arizona law review, 39, 497. ernst, e. g. (1943). misrepresentation. british medical journal, 2, 549-550. https://doi.org/10.1136/bmj.2.4321.549 fan, j. (2016). new issues of causality on misrepresentation transactions in china’s securities market. peking university law journal, 06, 1495-1511. fang, f., tian, w., & yanfei, z. (2022). test on the law protection of minority investors in china: perspective of misrepresentation in securities market. managerial and decision economics. https://doi.org/10.1002/mde.3772 https://doi.org/10.5609/jsis.2017.637_53 https://doi.org/10.1136/bmj.2.4321.549 https://doi.org/10.1002/mde.3772 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 172 fox, m. b. (2009). why civil liability for disclosure violations when issuers do not trade. wisconsin law review. gao, s., & wang, q. (2016). the u.s. reorganization regime in the chinese mirror: legal transplantation and obstructed efficiency. guo, f. (2003). the recognition and compensation of misrepresentation tort. china legal science, 02, 95-99. halliburton co. v. erica p. john fund, inc., 134 s. ct. 2398. (2014). hu, h. (2016). misrepresentation, involuntary delisting and investor protection—the dilemma of dislocated regulation on chinese securities market. chinese law journal. https://doi.org/10.2139/ssrn.3007037 jeong, s. (2015). a study on misrepresentation in the anglo-american contract law: comparison with our legal system and implications for us. karpoff, j. m., lee, d. s., & martin, g. s. (2007). the legal penalties for financial misrepresentation. torts & products liability law ejournal. https://doi.org/10.2139/ssrn.933333 langevoort, d. c. (2007). basic at twenty: rethinking fraud-on-the-market. corporate law: securities law. https://doi.org/10.2139/ssrn.1026316 li, g. g. (2015). understanding and application of the judicial interpretation of the supreme people’s court on the trial of cases of misrepresentation in the securities market (p. 250). the people’s court press. lin, w. w., fu, j. l., & zhou, l. j. (2022). the understanding and application of several provisions on the trial of civil compensation cases for misrepresentation in the securities market. people’s judicature, 07, 43-50. purshouse, c. (2018). hedley byrne & co ltd v heller & partners ltd [1964] ac 465. essential cases: tort law. one of the major outcomes of this case was the enactment of the misrepresentation act 1967 in the uk. https://doi.org/10.1093/he/9780191866128.003.0016 shi, t. t., & zhou, l. j. (2015). classic cases of u.s. securities fraud: insider trading and misrepresentation (p. 217). law press china. tang, x. (2019). establishing a chinese style securities class action system. china finance, 23, 58-59. tang, x., & li, z. z. (2022). review of the newly revised judicial interpretation of civil compensation for misrepresentation. journal of law application, 03, 61-72. traditional chinese proverb. (n.d.). use stones from another mountain to polish one’s jade. xu, y. w. (2020). on the improvement of bond class action system in the new securities law. review on law and finance, 61-73. https://doi.org/10.2139/ssrn.3007037 https://doi.org/10.2139/ssrn.933333 https://doi.org/10.2139/ssrn.1026316 https://doi.org/10.1093/he/9780191866128.003.0016 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 206 original paper a study on the legal implementation mechanism for the “separation of three rights” of rural homesteads in china jinqiu geng 1 1 dalian ocean university, dalian, liaoning, china received: october 2, 2025 accepted: october 15, 2025 online published: october 16, 2025 doi:10.22158/elp.v8n2p206 url: http://dx.doi.org/10.22158/elp.v8n2p206 abstract thanks to china’s rurally focused reforms, “three rights division” on rural homesteads came by – dividing collective ownership, household qualification and flexible use rights – an important policy meant to tackle inefficient problems within the rural system and make economic value come out of the land. this reform is about invigorate the sleeping rural assets, raise up the farmers’ property income and make the rural-urban integration possible. but the fact is that its success is seriously limited because there is an incomplete and unclear legal environment. this paper makes a critical review on the legal realization mechanism for this reform. it starts from explaining the theoretical and practical significance of separated ownership, qualification, and use rights to build a concept foundation for the following analysis. then, it probes into the current legal landscape of land expropriation and acquisition and determines some prominent problems like vague property right conceptions, excessive constraints on market circulation, non-unified or ineffective registration systems, and unscientific valuation and dispute settlement. in view of the results from all the national pilot programs, the paper synthesizes practices and lessons. according to this exhaustive analysis and puts forth a systematic legal implementation mechanism: key recommendations are to improve existing laws on the content and boundaries of each right, to develop an integrated and unified national registration and certification system, which provides legal certainty for such exchange transactions, to develop a hierarchical and regulated secondary market for the transfer of use rights (e.g., the stock and option exchanges), as well as an open and transparent system for valuing assets and distributing profits. the paper holds that to build a strong legal architectural system is not just a technical must do, it’s also a primary pre requisite to guarantee the reform success, protect farmers’ interests and realize the goal of rural revitalization strategy. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 207 published by scholink inc. keywords rural homestead, three rights separation, land system reform, property rights, legal mechanism, china 1. introduction the rural homestead system has been a key part of china’s rural social and economic structure for a long time, supplying housing security for many generations of farmers. at the same time, it is an important factor of rural collective economy. rooted in the dual urban-rural land system, both rural homesteads and land are collectively owned. urban land is owned by the state (yin, c., 2020). according to this system, the rural collective members have the right to use a piece of land from the collective to construct their own housing, but historically, this right is inalienable and thus cannot be used for economic gain. on the other hand, rapid urbanization and industrialization in the last few decades has greatly changed chinas demographic picture. an unprecedented mass exodus of people from rural areas to urban areas has led to a great number of homesteads that have been left unused and underutilized forming so called “hollow villages”. this is nothing but the biggest waste of land assets as well as a huge amount of idle asset which a farmer can’t capitalize on. ownership, qualification, usage rights were tightly bundled together, which was a big stumbling block that prevented efficient resource allocation, farmers unable to derive the full property value of their homesteads thereby hampering overall rural development facing such challenging situations, we can see that the chinese central government is determinedly taking the path of separation of three rights reform to break away from collective ownership rights, members’ qualification rights, and members qualification and derivative right (fan, c. q., & mao, y. y., 2020, pp. 44-50). the new policy wants to keep the ground of everyone together, but let farmers have more room to move their land and sell it if they want, which means more people can buy farms and houses, make farm money, and help villages be better places to live. to achieve my goal in this essay, i will make a thorough research on the entire process of legal implementation of this policy from legal realization to realize the purpose of this policy. analyzing the theoretical basis for legal realization, understanding existing legal bottlenecks, and providing a systematic framework for its legal implementation. 2. theoretical framework and connotation of the “three rights separation” the policy of separating three rights on the rural homestead is an important institutional innovation based on the theory of property right in order to adapt to the land system in china under new socio-economic conditions. it is a thorough breakdown, transforming the previously monolithic homestead into a newer, more refined structure consisting of three distinct but inter-linked rights; i.e., ownership right, qualification right and use right. the ownership right belongs to the rural collective economic organization, which strengthens the socialist public ownership of land as stipulated in china’s constitution. this right is absolute and fundamental and serves as the basis from which other www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 208 published by scholink inc. rights flow: the main function is to serve the collective’s interests, preventing the land’s loss or misuse, and enabling the collective to conduct macro supervision of homestead distribution and use (liu, s. j., 2024). the qualification right is a new and important concept in this framework, legally belonging to the members of the rural collective. it’s a status-based right, tied to a person’s membership of a collective, and is a social function and security function of the homestead system. this right is an individual’s qualification to submit and acquire a homestead from the collective for residential purposes, serving as a core guarantee of residential housing. but its legal definition is a difficult matter, mainly with regard to the acquisition, inheritance, and extinction of personal rights within population mobility and changing families. finally, the use right is also the most dynamic part of the reform. it includes the right to occupy, to build, and to use the homestead and the attached house, most important of all, it is intended to be separable from the qualification right (wang, x. s., yang, y. h., li, n., & guo, z. x., 2024, pp. 178-188). this separation makes the use right movable, transmissible, and transferable, so farmers can use their housing as an asset in the market without losing the most important fundamental qualification right of being a member. this flexibility leads to the revitalization of idle resources and changes homesteads from simple consumption products to income-earning capital assets. 3. current status and challenges of the legal implementation although in the policy guidance there was, yet the “three rights separation” legal realization on rural homesteads still comes across with considerable troubles and it operates under a transitional and sometimes obscure legal situation. the primary legislative basis, the land administration law ofthe people’s republic of china, has been revised to conform to these new reforms, but these reforms are still lacking as there is still not a detailed provision in the law to clearly delineate the rights being separated as well as the contents and boundary of the new rights separated. this legal ambiguity is a root cause of many practical problems (gao, s. p., 2025, pp. 1-13). one of the most prominent problems is the vague definition of the qualification right. the law doesn’t give much idea about how this right could be figured out for people who have migrated to cities but still have a hukou in the countryside, or for their children, so there are often arguments over who gets what to inherit. another major barrier is the high market circulation barriers to the use right. current regulations and pilot program policies limit the circulation of homestead use rights to members of the same collective or restrict the transfer of homestead use rights to outsiders with strict conditions, blocking the development of a larger and more competitive homestead use rights market. there won’t be sufficient market demand for a homestead if there isn’t any, so its potential economic value can’t be unleashed. this is complicated by the absence of a unified, comprehensive, and open register and certificate. we need a strong system for getting a framework that gives protection in the law, watching property, moving it around, and swapping (xue, z. j., & mi, y. s., 2025, pp. 1-14). currently the registration system is divided into parts so it does not record which rights have been separated and therefore makes www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 209 published by scholink inc. potential investors and creditors reluctant to deal as the risks seem too high. these problems are shown in table 1, which lists the main difficulties hindering the reform. table 1. key challenges in the legal implementation of homestead three rights separation challenge id key challenge area description of the challenge c1 vague legal definitions the legal content, boundaries, and rules for inheritance and transfer of the qualification right and use right are not clearly defined in national laws. c2 restricted market circulation strict limitations on the scope of transferees (e.g., limited to within the same collective) prevent the formation of an open and competitive market. c3 imperfect registration system lack of a unified national system for registering the separated rights, which undermines transaction security and prevents effective mortgaging. c4 absence of valuation standards no scientific, standardized, and fair mechanism exists for valuing homestead use rights, leading to price disputes and potential exploitation of farmers. c5 inadequate dispute resolution the legal procedures for resolving conflicts arising from homestead transfers, leases, and compensation are unclear and often inefficient. 4. analysis of pilot program outcomes since 2015, the chinese government has launched many pilot programs in different parts of the country to try out ways to reform the homestead system. these tests have been key test zones, accumulating much practical knowledge, pointing out difficulties applying “three rights separation,” models tested are very different due to local economy and growth priorities, seen in table 2. for example, in deqing county, zhejiang, a pioneer in this field, the focus has been on building an all-around market-based system, which supports the transfer, lease, mortgage, etc., of homestead use rights and is based on a powerful local rural property rights trading platform. this has successfully achieved social capital to construct tourism and the elderly care facilities (yang, j. r., 2025, pp. 112-117). but other regions have taken to voluntary withdrawal models that pay money to the farmers who have settled in the city permanently, thereby enabling them to relinquish the family homecoming back to the collective for replanting or redevelopment. the result on these pilots was both good and bad. as shown by the hypothetical information in table 3, places with a robust non-agriculture economy and a high demand for rural land, such as for tourism or suburban living, have had much success in reviving these idle homesteads and raising farmers’ incomes. these areas have proved to be effective with the market mechanism. but in less developed agricultural areas, there is little interest in transferring use rights, and the withdrawal compensation model often fails since the collective does not have much money available to cover the cost. one common lesson among all pilots is that success depends on having strong guidance from governments, clear, transparent rules about how things work, and setting rules for sharing rewards so that farmers get a fair piece when land’s worth goes up (wang, z. q., 2025, pp. 34-36). these roadblocks, problems like hard valuations and fights over moving processes, all head www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 210 published by scholink inc. back towards a complete and matching national law system that would help with and give shape to these local experiments. table 2. comparison of homestead reform pilot models in china pilot region model focus key outcomes main obstacles encountered deqing, zhejiang market-based transfer and mortgage established a rural property rights trading center; increased farmer income through leases and transfers. initial difficulties in property valuation; balancing development with environmental protection. yiwu, zhejiang aggregated transfer for industrial use facilitated consolidation of land for small and medium-sized enterprises, promoting local economic clusters. complex negotiations with numerous households; ensuring equitable compensation. jinzhai, anhui voluntary withdrawal with compensation linked homestead withdrawal with poverty alleviation programs, providing funds for resettlement. insufficient compensation standards to incentivize withdrawal; lack of follow-up support. liuyang, hunan tourism and cultural development attracted external investment to convert idle farmhouses into guesthouses and cultural centers. conflicts over profit distribution; ensuring long-term sustainability of projects. table 3. statistical overview of idle homestead revitalization in selected pilot areas (2020-2024) pilot area number of idle homesteads revitalized (units) average increase in household income (per annum) primary revitalization method deqing county 2,150 ¥25,000 market transfer and lease (tourism) jinzhai county 3,500 ¥50,000 (one-time compensation) voluntary paid withdrawal liuyang city 1,800 ¥18,000 lease to external entities (guesthouses) yiwu city 1,200 ¥30,000 collective repurchase and redevelopment 5. constructing a comprehensive legal realization mechanism after identifying the problem and having experience through trial process, it is necessary to create a good legal realization system. this must be a mechanism all the way. from the definition of rights down to the dispute resolution mechanism. the first important step is to amend the land administration law as well as related laws and regulations for clear and specific ownership, qualification and use rights definition. the law should lay out the range of every right, the situations under which they can be exerted, and the rules regarding how they interact with one another. for instance, the conditions for inheriting or transferring the qualification right need to be clarified, and the specific entitlements of the use right—such as its duration, renewal possibilities, and the rights to develop and profit from the land—must be legally enshrined (gao, s. p., & zhao, z. c., 2025, pp. 15-28). secondly, creating a nationwide unified real estate registration system for all separated www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 211 published by scholink inc. homestead rights is necessary. this system has to be able to very clearly record who owns what, who has what qualification rights, and what the use rights look like, whether they got transferred, leased, or mortgaged. such a setup would give unshakable legal proof of rights, slash the chances of deals going astray, and be the basic building block for a functioning homestead marketplace. on this basis, the construction of regulated, multi-level market system for the circulation of homestead use rights is needed. it can allow for smooth, low-restriction transfers between members of the collective, as well as set clear, transparent transfer rules when transferring to an outside body (zhang, s. t., & zhao, y. x., 2025, pp. 76-81). these regulations have to reconcile economic vitalization goals with the need for food security and prevention of speculative real estate bubbles. if official rural property rights trading platform is built up at county level or municipal level, it could make transparent and convenient transactions (wanjun, 2025, pp. 63-74). and for this market, we need a fair and scientific valuation of assets, which requires governmental guidelines to consider factors such as a building’s location, size, access to infrastructure, and potential for development, so that farmers get value for what is theirs. proposed law framework table 4. table 4. proposed legal framework for homestead use right transfer key area proposed legal rule expected outcome 1. clarification of rights amend the land administration law to explicitly define the content, duration, and scope of the use right, and the inheritance rules for the qualification right. provides a clear legal basis for all transactions, reducing ambiguity and disputes. 2. unified registration mandate the inclusion of separated homestead rights in the national unified real estate registration system, issuing distinct certificates for each right. enhances legal certainty and security for all parties; enables effective mortgage and financing. 3. market regulation establish a regulated, multi-tiered market. allow open transfers to certain entities (e.g., for tourism, agriculture) under zoning and use regulations. creates a vibrant yet orderly market, balancing economic efficiency with social and environmental goals. 4. valuation system develop and legislate a national standard framework for homestead valuation, managed by certified, independent third-party assessors. ensures fair pricing in transactions, protects farmers from exploitation, and provides a basis for taxation and credit. 5. income distribution legally stipulate a clear formula for distributing proceeds from transfers among the farmer, the collective, and a public fund for rural infrastructure. guarantees farmers receive the primary benefit while supporting sustainable community development. 6. dispute resolution create specialized arbitration panels or judicial procedures for resolving homestead-related disputes quickly and efficiently. provides accessible and effective legal recourse, building confidence in the market system. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 212 published by scholink inc. 6. conclusion the “three-right separation” of rural homesteads is a grand and necessary change to china’s land tenure system, with huge promise to invigorate rural economies, narrow income disparities between cities and countryside, and accelerate national rural revitalization. it is a reform to balance the basic principle of collective ownership with the people’s increasing demand for personal ownership and the requirement of market-oriented allocation of resources. but this paper shows that these laudable aims ultimately fall short because of the lack of a clear and adequate legal framework. it reveals very important bottleneck factors, there is a problem with the clear legal definition in distinguishing them after separation (the right of use and the right of disposition) can’t have their market circulation and they don’t really have a good unification on its records. a fair valuation for the asset itself or how to deal with problems, or disputes. and after many large scale pilot programs we see that even though local attempts can be partly successful, they will have legal deficiencies that create uncertainty. therefore, the creation of a comprehensive, coherent, and enforceable legal realization means is not a choice, but a necessity. this would require tough legislative changes in national law, developing a strong registration system, creating a regulated and transparent market, and making sure the benefits from the change are spread around. china can make its rural homesteads from sleeping liabilities into live assets by forming this strong legal base, empowering farmers and opening paths for an even better, richer, and greener rural future. reference fan, c. q., & mao, y. y. (2020). the dynamic evolution of the rural homestead property rights system and its theoretical logic. journal of sichuan normal university (social science edition), 47(03), 44-50. gao, s. p. (2025). policy implications and institutional reflection on the pilot reform of rural land expropriation system. journal of central south university (social science edition), 31(05), 1-13. gao, s. p., & zhao, z. c. (2025). the “separation of three rights” in homestead land: issues and prospects. agricultural economics, 2025(z2), 15-28. liu, s. j. (2024). research on the improvement of homestead use rights system under the concept of “separation of three powers”. supervisor: dai jianting. zhejiang normal university, 2024. wang, x. s., yang, y. h., li, n., & guo, z. x. (2024). reconstructing rural land property rights: paths and forms. china population resources and environment, 34(02), 178-188. wang, z. q. (2025). the dilemma and countermeasures of the “three rights separation” reform of rural homesteads under the background of comprehensive rural revitalization. housing and real estate, 2025(21), 34-36. wanjun. (2025). the policy logic and practical exploration of the “three rights separation” reform of homestead land. south china sea law, 9(01), 63-74. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 213 published by scholink inc. xue, z. j., & mi, y. s. (2025). deepening the reform of land management rights: legal nature and institutional framework. journal of south china agricultural university (social science edition), 24(05), 1-14. yang, j. r. (2025). another remarkable contribution to the study of rural homestead issues—review of “research on the ‘three rights separation’ of rural homesteads and its realization path under the new development pattern”. journal of chengdu normal university, 41(05), 112-117. yin, c. (2020). research on the “three rights separation” system of rural homestead land. supervisor: wei yihua. jilin university, 2020. zhang, s. t., & zhao, y. x. (2025). type-based governance strategies for rural homestead land under the “separation of powers” framework: an analysis based on farmer differentiation and location differences. journal of zhengzhou municipal party school, 2025(01), 76-81. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 145 original paper research on the regulatory path of generative artificial intelligence in judicial decision-making wang feng 1 1 taylor’s university, kuala lumpur, malaysia received: september 5, 2024 accepted: september 25, 2024 online published: september 29, 2024 doi:10.22158/elp.v7n2p145 url: http://dx.doi.org/10.22158/elp.v7n2p145 abstract with the rapid development of generative artificial intelligence (ai) technology, its potential applications in the field of judicial decision-making are becoming increasingly apparent. this paper explores the current state of generative ai in judicial rulings, highlighting its advantages and challenges, and analyzes the corresponding regulatory needs. by constructing a theoretical framework, the paper proposes regulatory paths suitable for this field, including the establishment of a legal framework, the design of regulatory mechanisms, and the promotion of social participation. through the study of relevant domestic and international cases, this paper aims to provide theoretical support and practical guidance for the standardized application of generative ai, thereby promoting its safe and efficient development in the judicial domain. keywords generative ai, judicial decision-making, regulatory path, legal framework 1. introduction with the advancement of technology, generative artificial intelligence is increasingly applied across various fields, particularly in judicial decision-making, where it shows potential to enhance efficiency and accuracy. however, the introduction of ai technology also brings numerous legal and ethical challenges, such as transparency in rulings, algorithmic bias, and accountability. therefore, researching the application of generative ai in judicial decision-making and its regulatory pathways is crucial. this paper aims to explore how to establish an effective regulatory framework through a comprehensive analysis of relevant literature and cases, ensuring the safety and fairness of generative ai in judicial practice. additionally, the paper will provide insights for future research, offering references for further exploration in this field. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 146 published by scholink inc. 2. basic concepts of generative artificial intelligence 2.1 definition and characteristics generative artificial intelligence (generative ai) is a type of ai technology that generates new content by learning and simulating existing data distributions. its core relies on complex machine learning models, particularly deep learning algorithms such as generative adversarial networks (gans) and variational autoencoders (vaes), to understand and replicate the features of data. these models can produce various types of content, including text, images, audio, and video (luckett, 2023, pp. 47-65). the main characteristics of generative ai include its content creation capability, learning and adaptability, creativity and diversity, as well as its strong dependence on data. firstly, generative ai can automatically generate high-quality content, significantly reducing the time and cost of manual creation. for example, natural language processing models like gpt-3 can produce coherent articles and dialogues, while image generation models like dall-e can create highly detailed images. secondly, these systems possess learning and adaptability, allowing them to continuously learn and adjust through new data, thereby optimizing the generation outcomes. through training, generative models can acquire domain-specific knowledge and generate content that meets industry standards or user requirements. furthermore, generative ai excels in producing creative content, capable of generating novel and diverse works, making it widely relevant in fields such as artistic creation, music generation, and game design. finally, the performance of generative ai heavily relies on the quality and quantity of training data; rich and diverse datasets can significantly enhance the realism and relevance of generated results. despite the immense application potential of generative ai, its deployment also poses legal and ethical challenges, such as content authenticity, copyright ownership, and algorithmic bias. addressing these challenges necessitates a clear regulatory and legal framework, especially in sensitive areas like judicial decision-making. therefore, a comprehensive understanding of the definition and characteristics of generative ai is essential for exploring its applications and regulatory pathways in the context of judicial decision-making (zheng, 2023, p. 32). 2.2 key technologies and application areas the core technologies of generative artificial intelligence mainly include generative adversarial networks (gans), variational autoencoders (vaes), autoregressive models, and deep reinforcement learning, each suitable for generating different types of content. gans utilize adversarial training, wherein two neural networks compete: one generates content, while the other assesses the authenticity of the generated content. this process effectively enhances the quality and realism of the generated outputs. in contrast, vaes encode and decode input data to learn the underlying data distribution, making them suitable for tasks such as image generation and data reconstruction. in terms of application areas, the potential of generative ai has been demonstrated across various industries. in the text generation field, models like the gpt series can write articles, generate dialogues, code programs, and even assist in novel and script writing (li, cai & le, 2023, pp. 365-388). in image generation, models like dall-e and stylegan can create highly realistic images based on user descriptions, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 147 published by scholink inc. widely used in advertising, game design, and artistic creation. furthermore, in the audio generation domain, generative models can synthesize music, simulate human voices, or create sound effects, further driving innovation in the music industry. in medical imaging, generative ai is employed to enhance the quality and accuracy of medical images, aiding doctors in making more precise diagnoses. beyond these applications, generative ai also shows potential value in law, education, and research. for instance, in the legal field, generative ai can assist in drafting legal documents, contracts, and judgments, thereby improving work efficiency. in education, it can generate personalized learning materials to meet the diverse needs of students. in research, it is used to generate experimental data and simulate research results, facilitating progress. in summary, generative artificial intelligence not only has a rich technological foundation but also exhibits broad application potential across multiple fields. with continuous advancements and maturation of the technology, its influence in practical applications is expected to grow even further (guo, 2023, pp. 93-105). 3. the current status of generative ai applications in judicial rulings 3.1 current research status at home and abroad research and application of generative ai in the field of judicial rulings are gradually increasing both domestically and internationally. in regions like the united states and europe, several studies have been conducted on the application of generative ai in legal services. for example, some legal tech companies in the u.s. have begun using generative models to automatically produce legal documents, contracts, and judgments, significantly improving the efficiency of document processing. researchers note that these technologies not only save time costs but also reduce human errors to some extent. additionally, the academic community abroad is exploring the impact of generative ai on the legal decision-making process, including its applications in assisting judgments and predicting case outcomes. in china, the rapid development of ai technology has accelerated the judicial system’s attention to and research on generative ai. some domestic courts have begun to apply ai technology in case hearings, such as automatically generating legal documents and judgment summaries through natural language processing techniques (rangone, 2023, pp. 95-126). furthermore, relevant research institutions and universities are actively exploring the applications of generative ai in judicial rulings, covering aspects such as implementation methods, impacts on judicial fairness, and issues of legal responsibility. in recent years, with the promotion of “smart courts”, the application of generative ai has gradually become an important part of judicial reform, facilitating the intelligent and digital transformation of legal services. despite some progress in the research on the application of generative ai in judicial rulings both domestically and internationally, many challenges and unresolved issues remain. for instance, how to ensure the accuracy and legality of generated content and how to handle legal liability issues arising from ai-generated content are pressing research directions that require in-depth exploration. therefore, future research should adopt an interdisciplinary perspective that integrates technology and law, which will help promote further development of generative ai in the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 148 published by scholink inc. field of judicial rulings. 3.2 analysis of actual application cases globally, the application of generative ai in judicial rulings is increasingly evident, demonstrating its potential in enhancing efficiency and supporting decision-making. here are a few representative case analyses. firstly, in the united states, some courts in california have begun utilizing ai-assisted systems to generate legal documents. these systems analyze past cases and legal texts to automatically generate complaints, responses, and judgments. this approach allows judges and lawyers to save a significant amount of time and improves document processing efficiency. moreover, these systems can provide citations of relevant cases and suggest legal provisions, helping legal practitioners better understand legal regulations and applicable conditions. secondly, in china, certain courts have introduced an “intelligent judge” system that automatically generates first drafts of judgments using generative ai technology. this system is trained on historical case data and can generate legal documents tailored to specific case circumstances. actual applications have shown that this system not only improves the efficiency of drafting judgments but also helps ensure the standardization and consistency of legal documents to some extent. additionally, in europe, some legal tech companies have developed intelligent legal assistants targeting specific fields, capable of generating legal advice and documents based on user-provided information. the generation process of these assistants relies on natural language processing and machine learning technologies, enabling quick responses to user needs, especially when dealing with complex legal issues, thus providing more precise answers. however, these application cases also reveal some issues. for example, the generated legal documents may sometimes lack specificity or contain logical errors, leading to inaccuracies in legal application. furthermore, the question of legal liability for ai-generated content remains an unresolved challenge, involving how to define responsible parties and legal consequences. overall, while the application of generative ai in judicial rulings has achieved certain results, it still requires addressing related legal and ethical issues in practice to ensure the safety and effectiveness of its applications. future research and practice should focus on optimizing generative models, enhancing the accuracy and legality of generated content, and establishing comprehensive legal frameworks to clarify responsibility and promote the healthy development of generative ai in the judicial field (zhao, 2023, pp. 21-30). 4. advantages and challenges of generative ai in judicial rulings 4.1 advantages analysis the application of generative ai in judicial rulings brings multiple advantages, primarily reflected in improved efficiency, reduced costs, decision support, and increased accessibility of legal services. firstly, generative ai significantly enhances the efficiency of document processing and case hearings. traditional legal document drafting and case analysis processes are often time-consuming, and manual writing can lead to errors and omissions. generative ai can quickly process large amounts of data and automatically produce high-quality legal documents, such as complaints, responses, and judgments, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 149 published by scholink inc. greatly reducing the workload of lawyers and judges, allowing them to focus more on case analysis and hearings. secondly, the application of ai also demonstrates advantages in cost. by reducing the time for document drafting and case processing, the overall cost of legal services is lowered. this not only benefits legal service providers but also makes it more affordable for a greater number of parties to access legal services, promoting fairness and justice in the judicial system. additionally, generative ai plays an important role in decision support. by analyzing historical case data and legal provisions, ai can provide reliable advice and references to judges and lawyers, helping them make more accurate judgments on complex legal issues (ooi, k.-b. et al., 2023, pp. 1-32). such data-driven decision support systems contribute to enhancing the fairness and consistency of rulings, reducing the impact of human factors on decisions. lastly, generative ai improves the accessibility of legal services. particularly in resource-limited areas, the introduction of ai technology can assist local courts and law firms in providing more efficient legal services, ensuring that everyone can obtain equal legal support. this has a positive effect on enhancing public trust and reliance on the law. in summary, the advantages exhibited by generative ai in judicial rulings provide new possibilities for improving the quality and efficiency of legal services. however, the realization of these advantages relies on further technological development and regulated applications to ensure their effectiveness and fairness in the judicial field (wach, k. et al., 2023, pp. 7-30). 4.2 challenge discussion the application of generative ai in judicial rulings presents numerous advantages, particularly in terms of efficiency improvement, cost reduction, decision support, and accessibility of legal services. firstly, generative ai significantly enhances the efficiency of document processing and case hearings. traditional legal document drafting and case analysis processes are typically lengthy, and manual writing is prone to errors and omissions. generative ai can rapidly process vast amounts of data and automatically produce high-quality legal documents such as complaints, responses, and judgments, substantially alleviating the workload of lawyers and judges, allowing them to dedicate more energy to case analysis and hearings. secondly, the application of ai also exhibits advantages in cost. by reducing the time required for document drafting and case processing, the overall cost of legal services decreases. this not only benefits legal service providers but also enables more parties to afford legal services, thus promoting fairness and justice in the judicial system. moreover, generative ai plays a critical role in decision support. by analyzing historical case data and legal provisions, ai can provide reliable suggestions and references to judges and lawyers, assisting them in making more precise judgments on complex legal issues. such data-driven decision support systems help enhance the fairness and consistency of rulings while mitigating the influence of human factors on decisions. finally, generative ai can improve the accessibility of legal services. particularly in resource-scarce regions, the introduction of ai technology can aid local courts and law firms in delivering more efficient legal services, ensuring that everyone can receive equal legal support. this has a positive impact on increasing public trust and reliance on the law. overall, while generative ai demonstrates www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 150 published by scholink inc. considerable advantages in judicial rulings, its effective application necessitates addressing related legal and ethical issues to ensure safety and efficacy. future research and practice should strive to optimize generative models, enhance the accuracy and legality of generated content, and establish comprehensive legal frameworks to clarify responsibilities, fostering healthy development of generative ai in the judicial domain. 4.3 theoretical framework for regulatory pathways in the context of the increasing application of generative artificial intelligence, establishing an effective regulatory framework is particularly important. this paper proposes a theoretical framework for regulatory pathways that primarily encompasses four aspects: legal norms, technical standards, ethical guidelines, and public participation. first, legal norms form the foundation for regulating the application of generative artificial intelligence. regarding the legal liability for ai-generated content, it is essential to clarify responsible parties and legal consequences, and to establish corresponding legal provisions to ensure effective accountability. furthermore, specific laws and regulations must be developed to address the characteristics of generative artificial intelligence, covering data usage, privacy protection, and intellectual property, ensuring compliance and legality of generated content. second, the establishment of technical standards helps to ensure the safety and reliability of generative artificial intelligence. developing unified technical standards can regulate algorithm development and application, ensuring the transparency and interpretability of generative models. additionally, standardized testing and evaluation mechanisms should be established to regularly assess the performance and output of generative artificial intelligence, enabling timely identification and correction of potential issues to ensure compliance with industry best practices. next, the formulation of ethical guidelines is crucial for maintaining social justice and public interest. in the application of generative artificial intelligence, it is necessary to define ethical principles, including non-discrimination, transparency, and data privacy protection. these guidelines should serve as guiding principles for the development and application of artificial intelligence, ensuring that the use of technology does not lead to injustice or bias. finally, public participation is an important avenue for ensuring widespread recognition and acceptance of the application of generative artificial intelligence. in the regulatory process, it is essential to encourage participation from the public, legal practitioners, and technical experts in discussions and decision-making, ensuring that regulatory measures fully reflect societal needs and expectations. by establishing feedback mechanisms to promptly gather public opinions and suggestions, the regulatory framework can be continuously optimized to enhance its flexibility and adaptability. in summary, the regulatory pathways for generative artificial intelligence in judicial adjudication should be built upon four core elements: legal norms, technical standards, ethical guidelines, and public participation. only through multi-layered and multi-dimensional comprehensive governance can we effectively address the challenges posed by technological development, achieve positive interactions between technology and law, and promote the healthy development of generative artificial intelligence. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 151 published by scholink inc. 5. regulatory demands for generative artificial intelligence as the application of generative artificial intelligence in judicial adjudication deepens, regulatory demands are increasingly manifesting across various levels, mainly in legal, technical, and ethical dimensions. first, the demand for legal regulation is particularly urgent. the existing legal framework does not sufficiently cover the unique nature of generative artificial intelligence, especially regarding liability attribution, data protection, and intellectual property. clearer legal provisions need to be established to ensure the legality and compliance of generated content. furthermore, concerning the transparency and interpretability of the ai decision-making process, the law must provide corresponding guidance to prevent the black box effect of technology from impacting judicial fairness. second, the demand for regulation at the technical level is reflected in the need for standardization of algorithms and models. since generative artificial intelligence relies on large amounts of data for training, ensuring data quality and security is crucial. technical standards and evaluation mechanisms should be established to conduct compliance checks and performance assessments of generative models, thereby reducing the risk of algorithmic bias and output errors. at the same time, transparency of technology should be emphasized, allowing legal practitioners to understand and oversee the ai decision-making process. the ethical dimension of regulatory demands cannot be overlooked either. the application of generative artificial intelligence must comply with social ethical standards and protect users' basic rights and privacy. developing relevant ethical guidelines, such as principles of non-discrimination, transparency, and privacy protection, will provide moral guidance for the development and use of artificial intelligence, ensuring that technology does not exacerbate social inequalities or infringe on individual rights. in summary, the regulatory demands for generative artificial intelligence encompass legal, technical, and ethical aspects. a multi-layered and multi-dimensional regulatory system needs to be established through comprehensive governance to address the challenges posed by artificial intelligence technology. this approach not only helps to protect public interest and social justice but also creates a favorable environment for the healthy development of generative artificial intelligence. 6. exploration and recommendations for regulatory pathways as generative artificial intelligence is increasingly applied across various fields, particularly in judicial decision-making, the exploration of effective regulatory pathways has become more urgent. firstly, establishing a comprehensive legal framework is essential, one that clearly outlines specific provisions regarding the legal responsibilities of ai-generated content, data protection, and privacy rights. existing legal systems often struggle to address the unique characteristics of generative ai; therefore, new regulations are urgently needed to ensure that the law keeps pace with rapid technological advancements, thereby enhancing public trust in legal technologies. secondly, the formulation of technical standards is foundational for ensuring the safety and reliability of generative ai. unified technical standards should be established, encompassing not only the norms for algorithm development www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 152 published by scholink inc. and application but also the transparency and interpretability of generative models. by implementing standardized testing and evaluation mechanisms, we can regularly assess the performance of generative ai, promptly identify potential issues, and correct them. this measure will effectively reduce the risks of algorithmic bias and output errors, ensuring the compliance and reliability of generated content. the establishment of ethical guidelines is equally important. the application of generative ai must align with societal ethical standards and protect users’ fundamental rights and privacy. developing relevant ethical guidelines—such as principles of non-discrimination, transparency, and privacy protection—can provide moral guidance for the development and use of ai, ensuring that the technology does not exacerbate social inequalities or infringe on individual rights. this not only helps maintain social justice but also enhances public trust and acceptance of technology. finally, public participation plays a critical role in the regulatory process. it is advisable to encourage the active involvement of legal practitioners, technical experts, and the general public in discussions and decision-making when formulating regulatory measures. such broad participation ensures that regulatory measures adequately reflect societal needs and expectations, while also establishing effective feedback mechanisms to collect opinions from all parties in a timely manner. public hearings, online consultations, and community discussions can enhance understanding and support for the regulation of generative ai among the public. in summary, the regulatory pathway for generative artificial intelligence requires a comprehensive exploration based on the four core elements of law, technology, ethics, and public participation. only through multi-level and multi-dimensional governance can we effectively address the challenges posed by technological development, achieve a positive interaction between technology and law, and promote the healthy development of generative ai, ultimately balancing technological advancement with social responsibility. such comprehensive governance not only protects public interests and social justice but also creates a conducive environment for the sustainable development of generative artificial intelligence. 7. conclusion the application of generative artificial intelligence in judicial adjudication holds great promise, significantly enhancing the efficiency and quality of legal services. however, alongside its rapid development, challenges related to legal liability, technical standards, and ethical issues are becoming increasingly prominent. therefore, establishing a comprehensive regulatory framework is particularly important. this framework should encompass legal norms, technical standards, ethical guidelines, and public participation to ensure that the application of artificial intelligence is compliant, safe, and fair. in the future, only through multi-party cooperation and continuous optimization can we fully harness the potential of generative artificial intelligence, promoting judicial fairness and social harmony. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 153 published by scholink inc. references guo, x. d. (2023). risks of generative artificial intelligence and its inclusive legal governance. journal of beijing institute of technology (social sciences edition), 25(6), 93-105. li, j., cai, x. t., & le, c. (2023). legal regulation of generative ai: a multidimensional construction. international journal of legal discourse, 8(2), 365-388. https://doi.org/10.1515/ijld-2023-2017 luckett, j. (2023). regulating generative ai: a pathway to ethical and responsible implementation. journal of computing sciences in colleges, 39(3), 47-65. ooi, k.-b. et al. (2023). the potential of generative artificial intelligence across disciplines: perspectives and future directions. journal of computer information systems, (2023), 1-32. https://doi.org/10.1080/08874417.2023.2261010 rangone, n. (2023). artificial intelligence challenging core state functions: a focus on law-making and rule-making. revista de derecho público: teoría y método, 8(2023), 95-126. https://doi.org/10.37417/rdp/vol_8_2023_1949 wach, k. et al. (2023). the dark side of generative artificial intelligence: a critical analysis of controversies and risks of chatgpt. entrepreneurial business and economics review, 11(2), 7-30. https://doi.org/10.15678/eber.2023.110201 zhao, y. (2023). the infringement risk and legal regulation of generative ai works. science of law journal, 2(7), 21-30. https://doi.org/10.23977/law.2023.020704 zheng, w. (2023). research on generative artificial intelligence legal profession substitution. mod. l. rsch., 4(2023), 32. https://doi.org/10.1515/ijld-2023-2017 https://doi.org/10.1080/08874417.2023.2261010 https://doi.org/10.37417/rdp/vol_8_2023_1949 https://doi.org/10.15678/eber.2023.110201 https://doi.org/10.23977/law.2023.020704 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 1 original paper research on the overseas development of new energy vehicles – esg three-dimensional analysis based on indonesia ruixuan wang 1* , ruinan ma 1 , junjin li 1 & edward soewanto 2 1 beijing foreign studies university, beijing, beijing, china 2 pelita harapan university, tangerang, banten, indonesia * ruixuan wang, beijing foreign studies university, beijing, beijing, china received: may 25, 2025 accepted: june 8, 2025 online published: june 10, 2025 doi:10.22158/elp.v8n2p1 url: http://dx.doi.org/10.22158/elp.v8n2p1 abstract driven by the global carbon neutrality goal and the concept of sustainable development, china’s new energy vehicle exports have grown rapidly, and southeast asia, especially indonesia, has become a key strategic market. based on the three-dimensional framework of esg (environment, society, and governance), this paper systematically analyzes the regulatory compliance challenges and opportunities faced by chinese new energy vehicle companies in the process of “going overseas” to indonesia. through literature research, case comparison, and field investigation, byd and toyota’s investment strategies in indonesia are selected for in-depth comparison to reveal key influencing factors in localized production, market adaptation, and policy response. at the same time, from a legal perspective, indonesia’s regulatory requirements in terms of labor employment, religious culture, social responsibility, and governance structure are sorted out in detail to provide compliance guidance for chinese new energy vehicle companies. the study aims to provide policy recommendations for the overseas development of enterprises from a legal perspective, promote the internationalization of china’s new energy industry, and inject new impetus into china-indonesia green cooperation. keywords esg, new energy vehicles, indonesian market, legal compliance, enterprises going overseas www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 2 published by scholink inc. 1. introduction 1.1 research background the concept of esg has gradually become the focus of global attention. with the popularization of the concept of sustainable development and the proposal of the “dual carbon” goal, its research has received widespread attention in china and around the world. driven by the global carbon neutrality goal, the new energy vehicle industry has become the focus of strategic competition among countries. in 2023, china’s new energy vehicle exports will exceed 1.2 million vehicles, of which the southeast asian market accounts for more than 30%. indonesia, as the largest economy in asean, has become the core target of chinese auto companies’ layout with its rich nickel ore resources and policy incentives. china’s “belt and road” initiative is deeply connected with indonesia’s “global ocean pivot” strategy, and environmental compliance issues directly affect the quality of bilateral cooperation. 1.2 research significance the esg evaluation system, also known as esg ratings, is based on the three aspects of environment, society, and governance. it is created by commercial and non-profit organizations to evaluate how a company’s commitment, performance, business model, and structure are consistent with sustainable development goals. the primary goal of this project is to study the environmental regulatory compliance issues faced by new energy vehicle companies in exports under the esg evaluation system and to deeply analyse and compare regulatory requirements, industry standards, and corporate practices in different countries and regions. through in-depth literature reviews, expert interviews, and other methods, identify and analyse the commonalities and particularities of compliance issues and provide new energy vehicle companies with compliance solutions from a global perspective. explore the environmental issues of new energy vehicles and fully study their “duality”: analyse the environmental benefits of new energy vehicles, including the reduction of tail gas emissions and carbon emissions, and at the same time study the impact of the production and manufacturing process of new energy vehicle batteries on the environment, including raw material collection, production technology, waste disposal, and other aspects. explore ways for companies to respond to sanctions and safeguard their exports effectively: in light of the current international economic situation, analyse how to deal with the “bottleneck” problems caused by sanctions in the context of the sino-us trade war, especially under sanctions such as chip blockades and technology blockades, how companies can effectively circumvent sanctions. fully sublimation under globalization and multi-perspective research, and suggestions for the development of china’s export trade: by deeply studying the global new energy vehicle issues from a legal perspective, it is helpful to enhance the international competitiveness of china’s new energy vehicle companies and establish a global sales network. at the same time, exchanges and cooperation with governments of various countries and in-depth exchanges in technology and policies will help learn from the successful experiences of various countries and enhance the technical strength of automobile companies themselves and the scientific nature of policy formulation. opening up a vast www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 3 published by scholink inc. global market through policy research can promote close cooperation between upstream and downstream companies, which is conducive to the overall upgrading of the entire industrial chain, including production, sales, services, and other links. the research results of the project will help promote the concept of co-construction and sharing on a global scale. sharing china’s compliance experience in the field of new energy vehicles will promote resource sharing and mutually beneficial cooperation among countries, enhance friendly relations, consolidate china’s image, and inject positive elements into china’s foreign policy. through the implementation of the project, it can promote the implementation of relevant foreign policies, deepen cooperation with participating countries based on practical solutions to environmental regulatory compliance issues, and promote the stable development of bilateral and multilateral diplomatic relations. 1.3 research methods the research methods used in this project are mainly the comparative method, literature analysis method, case current affairs method, and field investigation method. a comparative method is a research method that systematically compares different objects, phenomena, or cases to reveal their similarities, differences, laws, or causal relationships. this project compares various cases of compliance issues faced by chinese new energy vehicle companies in export investment in indonesia so as to gain a deeper understanding of compliance issues from the commonalities and differences. literature research is a method of obtaining information through literature investigation based on a certain research purpose or topic so as to fully and correctly understand the research issues. this project reviewed a large number of documents related to esg compliance issues of multinational companies, including the concept of esg and its role in companies, the current status and suggestions of corporate compliance issues, the problems and suggestions that chinese new energy vehicle companies and other companies may face when investing overseas, and the legal provisions of countries such as indonesia on investment, especially new energy vehicles, to understand the current status of relevant issues from existing research and form an overall impression of the compliance of new energy vehicle investment under the concept of esg. field research is a research method that collects first-hand data by going deep into actual scenes, directly observing and participating in the life or activities of the research subjects. it emphasizes the interaction between researchers and research subjects in the environment to gain a deep understanding of complex phenomena. the research subjects of this project are mainly new energy vehicle companies in china that face export investment compliance issues. through the use of field research methods, including interviews with relevant industry insiders, visits to relevant companies, and understanding the specific problems, we have a deep understanding of the specific problems faced by the companies and then closely combine the research topic with the actual situation to draw reliable conclusions and solutions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 4 published by scholink inc. this research project aims to write the research results into an academic paper and finally put forward conclusive suggestions from a legal perspective. by reaching a joint research cooperation with enterprises or adopting the research conclusions of this project after the enterprises reach cooperation, it will better promote chinese new energy vehicle companies to solve the compliance issues they face when going overseas, and thus better promote the development of china’s new energy vehicle industry. 1.4 project innovation 1.4.1 innovation in research perspective esg three-dimensional framework analysis: combining the three dimensions of environment (e), society (s), and governance (g), we comprehensively examine the compliance and legal issues of new energy vehicle exports to indonesia rather than just being limited to traditional trade regulations. research on transnational legal conflicts: comparing chinese and indian laws, analysing indonesia’s special environment, such as the epr (extended producer responsibility) system, and filling the existing research gaps. in combination with the latest international policies, focus on the impact of the paris agreement, cbam carbon tariffs, indonesia’s ndc emission reduction plan, and other policies on corporate compliance, and provide forward-looking research. 1.4.2 target market innovation compliance analysis on the indonesian new energy vehicle market, taking into account multiple factors such as environmental pollution, legal regulations, and localization rate (tkdn) requirements. special market environment analysis amongst which to research the potential impact of muslim culture, indonesia’s localized production policy (tkdn), labor rights, etc., on new energy vehicle companies and provide targeted compliance advice. 1.4.3 innovation in research methods multi-dimensional data support: combining iqair air quality data, lmc automotive market data, and other multi-channel information to improve the accuracy of the research. interdisciplinary research in which to integrate knowledge from the fields of law, economy, environment, society, and culture to provide a more comprehensive compliance framework for new energy vehicle companies. case analysis and field research by combining real cases with field investigations to enhance the practical value of research and provide stronger support for policy recommendations. 1.4.4 enterprise compliance innovation esg response strategies for new energy vehicle companies by proposing compliance paths for the indonesian market to help companies avoid legal risks and optimize environmental responsibilities. combining international law with local law to analyse the differences between international regulations (such as eu cbam) and indonesian regulations (such as the investment law and labor law) and provide compliance advice to multinational companies. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 5 published by scholink inc. 1.4.5 project cooperation with enterprises conclusions and suggestions are drawn from the research on the project theme, and multi-dimensional research such as case analysis and comparison, policy market situation research, and legal and regulatory analysis can serve as a good investment and risk avoidance reference for enterprises. 2. problems raised and current research status at domestically and externally 2.1 new issues arising from the globalization trend of new energy and environmental protection 2.1.1 why esg the manufacturing and production of new energy vehicles has become the most popular trend at present, and related car companies have frequently appeared on hot searches, which is enough to show that everyone is paying close attention to it. in recent years, china has also devoted itself to this wave of the times: the government has introduced a series of measures to escort the production and export of new energy vehicles; major companies have actively and innovatively developed, kept up with the forefront of the times, and supplied excellent automobile products. with the improvement of the belt and road policy, southeast asia has become china’s main automobile export market. among them, indonesia has the closest cooperation with china. while meeting the interests and needs of the indonesian people, china has also reaped a lot of economic returns. however, the development and export of new energy vehicles are not smooth sailing, and there will be setbacks on the road ahead. risks accompany benefits, and opportunities bring challenges. how to solve these crises caused by social customs and economic interests will be the biggest problem facing the chinese government, enterprises, and marketers. therefore, whether we should analyse the new energy vehicle market and car manufacturing companies based on the three most important dimensions of environment, society, and governance under the trend of new era changes has become a very worthy issue to study. the concept of esg provides a starting point for research. the esg concept can be traced back to the “who cares wins” report proposed by the united nations in 2004. this report called for the inclusion of esg factors in financial analysis and asset management for the first time. subsequently, esg standards quickly became an important measurement standard for the global capital market, especially in developed countries such as europe and the united states. the theoretical discussion and practical application of esg have been rapidly promoted around the world, forming a relatively complete research system and evaluation standards. through the study of the three concepts, new viewpoints that fit the reality are proposed to help my country’s new energy vehicle industry develop faster and better, promote the concept of global environmental protection, and promote the upgrading of the entire industry. 2.1.2 why indonesia it is an indisputable fact that china is undoubtedly in the leading position in the world’s new energy vehicle industry. not only are there a hundred schools of thought in the new energy vehicle industry, but also excellent brands such as byd, ideal, and weilai have been recognized by the world for their www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 6 published by scholink inc. technical strength and reputation. looking at the entire automobile industry originated in germany, and then many fuel vehicle brands were born in europe, north america, and japan and sold well all over the world. objectively speaking, there is still a certain gap between the traditional domestic fuel vehicle brands such as hongqi, great wall, geely, and chery since the founding of new china and other international brands. it can be said that china’s automobile industry has officially embarked on the fast track since the new energy vehicle and has surpassed foreign brands from another more promising track in one fell swoop. therefore, china’s new energy vehicle industry has certainly become the most worthy of research. in addition to the domestic internal circulation, going abroad and going to the world is the only way for every mature car company. this has triggered our thinking: where should we go in the future? the popularity of new energy vehicles depends on many factors, the most important of which are local oil prices, emission regulations, competitiveness of other brands, price and local economic development level, etc. at present, the domestic market has been well developed, and its feasibility has been verified. africa may have certain difficulties due to its economic development level and infrastructure construction level. from the perspective of the european and american markets, the incremental growth of the entire automobile market has tended to be saturated, and it has to face the competition of strong local automobile brands, so it may also have certain difficulties. we consider southeast asia to be a good breakthrough. most of its regions have serious environmental pollution, and the government intends to introduce relevant policies and measures to improve the environmental level. in recent years, international relations with china have been warming up, and the policy of foreign investment, such as investment and factory construction, is also relatively friendly. there is a lack of strong and competitive local brands—japan’s toyota honda and south korea’s hyundai dominate. therefore, if domestic new energy vehicle brands with high-cost performance, energy saving, environmental protection, low cost of use, stability, and reliability enter the competition with japanese and korean brands, they will become a strong opponent. based on this, we roughly selected southeast asia as the basic research object. among the many southeast asian countries, such as vietnam, thailand, myanmar, indonesia, etc., which one should be used as the entry point? after conducting literature research and field research visits and discussions, we selected indonesia as the research object. first of all, jakarta, indonesia, is the location of the asean headquarters. we can use indonesia as an anchor to create a successful market case and radiate to the entire southeast asian countries and regions. secondly, as the largest consumer market for china’s export of new energy vehicles in southeast asia, indonesia has huge potential and serious environmental pollution problems. in addition, domestic car companies have achieved certain results in the local market through investment and factory construction. it is the most representative country. if it is selected as the research object, it can be used as a case to follow and promote in other southeast asian countries. it can achieve a win-win situation for both the local government and china’s automobile companies, and in this way, it can also promote the good www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 7 published by scholink inc. development of international relations and trade between the two countries, which has a high research value. 2.1.3 current status of research at domestically and externally in today’s era of deep integration of corporate development and social responsibility, the combination of esg and corporate compliance is attracting widespread attention and in-depth discussion. the integration of the two is not accidental but conforms to the trend of global sustainable development and has collided with a wonderful “spark”. on the one hand, compliance plays an important role in the core guarantee of corporate sustainable development under the esg standard. within the esg framework, corporate compliance means strictly abiding by relevant laws and regulations, industry standards, and ethical codes in all three dimensions. compliance is the cornerstone for companies to practice the esg concept. through compliance testing, companies can be encouraged to operate more responsibly and thus build a new sustainable development model (li, t. t., wang, k., sueyoshi, t. et al., 2021, p. 11663). on the other hand, in the field of corporate compliance research, the esg dimension provides a comprehensive and scientific evaluation perspective. esg integrates theories such as sustainable development, economic externalities, and corporate social responsibility, prompting corporate compliance to shift from the traditional model to a comprehensive consideration of environmental, social, and governance factors (huang, s. z., 2021, pp. 3-10). domestic-related research not only focuses on the relationship between esg investment and corporate development but also notes that esg compliance practices have built a basic framework for companies in terms of legal compliance, social responsibility fulfillment, and information disclosure (yuan, r. l., jiang, n., & liu, m. y., 2022, pp. 128-134; mao, q. r., 2025, pp. 137-140). in addition, esg draws on previous concepts when constructing its concepts, and the quantifiable nature of its data and indicators evaluates corporate compliance more scientifically and effectively (ka ź mierczak, m., 2022, p. 162). existing esg compliance research mostly uses literature review, case analysis, and comparative research methods. by combining the development status of esg compliance at home and abroad, analyzing the differences in regulations in different countries, and summarizing corporate practical experience, this paper explores the problems of esg compliance in cross-border operations (chen, z., & wang, s. z., 2021, pp. 41-43; li, c. j., & sun, f. b., 2024, pp. 68-88). current research specifically addresses the three dimensions of esg compliance, namely environment (e), society (s), and governance (g). 2.2 environment at present, the research methods on environmental compliance are diversified. in chen haisong’s “corporate environmental compliance and legal mechanism construction under the ‘dual carbon’ goal” [8], by combing the current status of corporate environmental compliance under the “dual carbon” goal from the perspective of legal mechanism construction, the fit between the existing legal system and corporate environmental compliance needs is analysed. the research path is to analyse the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 8 published by scholink inc. current dilemma of corporate environmental compliance practice and combine relevant legal theories and practical experience at home and abroad to explore feasible paths to build and improve legal mechanisms. in “legal implementation path of corporate environmental compliance under the background of ‘dual carbon’ goals” (zhang, y. d., & hua, h., 2023, pp. 54-56), zhang yedong and hua han take the “dual carbon” goal as the background from the perspective of the intersection of finance and law, study the legal implementation path of corporate environmental compliance under this goal, and explore effective legal protection methods by analysing the incentive and constraint mechanism of financial means on corporate environmental compliance. although research on environmental compliance has mainly focused on compliance issues in china, some studies have also focused on environmental compliance issues in southeast asia and indonesia. regarding southeast asia, scholars point out that southeast asian countries are in the process of continuous improvement in environmental protection laws, but the legal systems of some countries are not sound enough, and there are legal loopholes and lax enforcement. chinese companies need to fully assess these risks when investing (guo, q. y., & qu, t., 2022, pp. 30-34; liu, y., 2018). compliance in indonesia has made some progress. in his related research, ling yujie (ling, y. j., 2024) only took some provisions of indonesia’s environmental management law and water resources law as examples to briefly describe indonesia’s regulations on domestic energy investment and pollution discharge, and the overall review was not comprehensive enough. liang lini (2024) conducted a more in-depth study and sorted out indonesia’s environmental legal provisions, including comprehensive laws such as the environmental law and individual environmental laws such as the mineral and coal mining law and the forest law. she pointed out that chinese companies investing in indonesia face risks such as environmental access, impact assessment, regulation, and litigation, and proposed preventive measures such as improving the legal system, strictly approving companies, and improving environmental protection clauses in investment agreements before and during the operation of investment projects. cao shan (2021, pp. 20-24) sorted out indonesia’s automotive-related technical regulations system and analysed in detail the content and access certification process of luxury tax regulations and emission regulations, but mainly focused on automobile export products, did not pay attention to the manufacturing process of cross-border investment, and did not specifically involve new energy vehicles. in addition, regulatory information is also lagging. in summary, there are still many gaps in the comprehensiveness and timeliness of research in this field. 2.3 society social compliance research is slightly narrower, mainly focusing on human capital and product responsibility. in terms of research methods, xia qi, in his “study on legal issues of labor risk prevention in chinese enterprises’ overseas farmland investment” (xia, q., 2020), first sorted out relevant domestic and foreign literature to clarify the current research status, and then combined the cases of chinese enterprises’ overseas farmland investment and labour rights protection, such as illegal labour dispatch www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 9 published by scholink inc. cases, to deeply analyse the problems and put forward prevention suggestions, using a combination of literature analysis and case study methods. liang hao, in his “study on legal risks and countermeasures of chinese enterprises’ investment and employment in malaysia” (liang, h., 2021), collected data on chinese enterprises’ overseas investment and labour disputes from multiple official websites, as well as data from malaysian government websites for analysis, and also studied local labour dispute cases through case analysis, using a research method assisted by data statistics and empirical analysis. regarding environmental compliance, current research on social compliance issues mainly focuses on china, with only a few studies looking at cross-border investment and trade. in terms of human capital, studies have found that the labour law systems of southeast asian countries vary greatly, and some countries have weak law enforcement capabilities. chinese companies face risks such as differences in labour standards and complex approval procedures. they have summarized human resource compliance into three aspects: compensation (working hours and benefits, contract termination), unions (organization and negotiation, strike risks), and local employment (li, j., 2020). in terms of data compliance, scholars have pointed out that international data governance rules are in fierce competition, data laws and regulations of various countries conflict, and there are different regulations on data privacy and security requirements, data use and sharing restrictions, and emerging rights such as the right to know and the right to be forgotten (liang, y. n., 2023, pp. 8185). they have also proposed that companies should establish and improve data compliance management systems, risk identification, early warning mechanisms, etc., to deal with problems such as illegal data collection and use (sun, y. h., 2023, pp. 78-87). in terms of product liability, international economic research has only focused on cross-border e-commerce (tang, l., 2023, pp. 143-145). currently, only a few scholars have conducted specific research on indonesia. liu zeqing (liu, z. q., 2022, pp. 68-70) mentioned that indonesian law protects domestic workers and has strict restrictions on the use of foreign workers. except for specific positions, domestic workers are used as much as possible. when employees leave, employers must pay severance pay or compensation, and workers who legally strike should receive wages. there is still a large gap in the research on compliance in indonesian society. 2.4 governance compliance issues in governance, scholars believe that the disclosure of internal governance (“g”) information of new energy vehicle companies still needs to be improved overall: chinese companies investing overseas should introduce international esg standards and implement relevant disclosure items in practice, including establishing a corporate governance system that conforms to local conditions, clarifying the scope of authority of relevant organizations, and establishing an internal audit system and integrity compliance system. scholars specifically collected the disclosure items and a number of governance disclosures of listed new energy vehicle companies. they concluded that the disclosure standards for governance information of new energy vehicle companies are single and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 10 published by scholink inc. insufficient. regarding the issue of governance information disclosure, specifically in indonesia, relevant scholars have summarized that according to the current indonesian company law, new energy vehicle companies need to set aside a budget for social responsibility and prepare a special report for review and approval by the shareholders’ meeting. indonesia plans to adopt the international financial reporting standards sustainability disclosure standards (ifrs s1 and s2) in 2027 to better align with international standards. studying international standards (ifrs s1 and s2) will be of great significance to corporate esg compliance. in general, existing research uses empirical research to analyse the esg governance disclosure capabilities and performance of new energy vehicle companies and to explore the esg compliance construction regulations in indonesia. however, the current research still has the following problems: first, most of the research on the disclosure of new energy vehicle companies is in the field of economics, such as analysing the impact of automobile disclosure on the value of automobile companies. few articles summarize and analyse the standardization of information disclosure from a legal perspective. second, compliance construction is essentially a topic with strong territorial characteristics, so the corresponding analysis of the legal provisions of the research object country is of fundamental significance to compliance construction. however, there are currently few studies on indonesia’s esg compliance construction regulations in china, and only some summarize several requirements, which are not very meaningful in practical guidance. secondly, according to the development trend of regulations, indonesia will adopt international financial reporting standards, but there are few domestic studies on indonesia’s regulatory changes. this article believes that with practicality as a guide, it specifically summarizes the regulatory requirements for the governance part of indonesia’s esg and studies the new standards that indonesia will adopt, providing a reference for new energy vehicle companies to further export to indonesia. 3. taking reality as an example—case analysis and research 3.1 taking byd as an example the promotion of new energy vehicles has brought new vitality to indonesia’s automobile sales market. byd, as a leader in china’s new energy vehicle industry, is shining in the southeast asian market, including indonesia. opportunities accompany challenges. as more and more new energy vehicle companies enter the southeast asian market, if companies want to make profits, they have to consider how to combine the specific national conditions of the target countries, launch corresponding policies, and expand the foundation of win-win cooperation to the greatest extent. let us take byd as an example to see the whole picture. 3.1.1 byd’s investment in new energy vehicles 3.1.1.1 localized production layout since entering the indonesian market, byd has actively catered to the needs of the indonesian market www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 11 published by scholink inc. and adjusted its own corporate plans. among them, byd plans to deepen its layout in the indonesian market by building a local factory, but this move faces certain resistance. for example, in 2024, indonesian media reported that byd’s factory construction had been “interfered by local organizations” (pamela sakina, 2024). the construction of the byd factory in subang, west java, was once destroyed by a mass organization composed of thugs. at this point, car companies not only need to cater to the wishes of the local people but also rely on government support to ensure investment security. active communication with the government is the best way to solve the problem. fortunately, the indonesian government’s senior officials expressed support for foreign investment. moeldoko, chairman of the indonesian electric vehicle industry association in jakarta, strongly supported the governor of west java province to eradicate thug behaviour that may interfere with investment and called for possible policy interventions (such as strengthening security and simplifying approval) to clear obstacles for byd, reflecting that its investment strategy is highly consistent with indonesia’s new energy transformation goals. 3.1.1.2 product line expansion of automobile companies in order to enter the southeast asian market as quickly as possible, byd launched a number of new energy vehicle models in indonesia, including byd tang l ev (pure electric) and phev suv, etc., with a starting price of approximately 534 million indonesian rupiah (approximately rmb 250,000) (adimas raditya fahky p., 2024). the pricing strategy of this type of product targets the mid-to-high-end market, targeting the middle-to-high-income population, and is committed to competing with international brands such as tesla. in addition, byd will also intensively launch new models between 2024 and 2025 to expand its target customer market, demonstrating its confidence in profitability in the indonesian market and its determination to seize market share quickly. 3.1.2 market activity 3.1.2.1 rapid increase in market share byd is actively expanding its product competitiveness in the indonesian market. data from early 2025 showed that byd has dominated the indonesian new energy vehicle market (pamela sakina, 2024). byd’s ability to take the lead in the indonesian market is mainly due to three aspects. first, in terms of price competitiveness, byd and other chinese brand cars have a natural advantage over european car brands. the majority of the working class is more willing to choose byd’s new energy vehicles with greater price advantages. secondly, byd enjoys policy dividends. today, the wave of new energy vehicles is sweeping across countries, and naturally, indonesia is not left behind. the indonesian government has actively introduced relevant policies to reduce import taxes and value-added taxes on new energy vehicles, reduce terminal prices, and make it easier for foreign car companies to enter the market. finally, byd’s suv models are very much in line with the interests of the majority of indonesian consumers. consumers in the indonesian market mostly choose to buy family cars. for this reason, byd has taken the right remedy and gained a great advantage in the market. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 12 published by scholink inc. 3.1.2.2 consumer acceptance and market feedback chinese electric vehicles (including byd) initially performed “positively” in the indonesian market (xinhua, 2024), reflecting consumers’ increased acceptance of new energy technologies. from the time new energy vehicles were first introduced, they have gone from being questioned to being widely used today. this reflects not only the public’s awareness of green energy but also the efforts of car companies to optimize, innovate, and launch well-received new products. however, judging from the current market response, insufficient charging infrastructure is still the main bottleneck. it is worth mentioning that the indonesian government plans to increase the construction of charging piles, which will benefit byd and other electric vehicle companies in the long run. 3.1.3 energy compliance issues 3.1.3.1 policy compliance byd should plan to establish a factory in indonesia further. at the same time, the indonesian government requires foreign-funded automakers to gradually increase the proportion of local parts procurement (such as the “new energy vehicle roadmap”). byd’s factory construction can not only meet compliance requirements but also reduce tariff costs, which will help promote the export of new domestic energy vehicles. 3.1.3.2 social and political risks at present, byd still needs to pay the most attention to the interference of local organizations. during the construction of the factory, it encountered interference from informal organizations, which needed to be resolved through government coordination. indonesia’s business environment is complex, and automakers need to communicate with all parties to ensure smooth factory construction actively. as some regions still have protectionist tendencies, how to market and public relations is still a difficult problem facing byd. 3.1.4 challenges and prospects although byd has taken the lead in the indonesian new energy vehicle market with its combination of localized production + product diversification + policy response, it still needs to deal with multiple challenges: lagging infrastructure (inadequate charging network coverage may restrict sales growth), intensified local competition (such as wuling and hyundai joint ventures accelerating new energy layout) and policy volatility risks (the indonesian government may adjust its subsidy policy to affect market stability). however, the long-term prospects of the indonesian market are still broad the government plans to achieve a 25% share of new energy vehicles by 2030, and the market size is expected to exceed one million vehicles; at the same time, indonesia’s rich nickel ore resources provide byd with opportunities for industrial chain synergy in localizing battery production and further reducing costs. in addition, as the largest economy in southeast asia, indonesia has significant geostrategic significance and can become a key springboard for byd to radiate the asean market. in the future, byd needs to continue to strengthen infrastructure cooperation, deepen localized compliance operations, and avoid political risks to consolidate its first-mover advantage and achieve www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 13 published by scholink inc. sustainable growth (fathur rochman, 2024). 3.2 case comparison based on toyota investment in japan as a leading japanese automaker, toyota has been the best-selling car brand in indonesia since 1997 and is a representative research object. in recent years, despite the pressure brought by the development of new energy vehicles and the transformation and upgrading of its industry, toyota still occupies a huge market share in indonesia. in 2023, toyota’s wholesale sales of automobiles in indonesia reached approximately 336,777 units, accounting for 33.5% of the market share, ranking first in the market. in 2024, despite the overall market decline, toyota still maintained its leading position with a market share of 33.4% (matt gasnier, 2024). in the first quarter of 2025, toyota continued to occupy a market share of 34.6%, with sales of 46,479 units. among them, kijang innova (produced by toyota) became the best-selling model in indonesia in 2023 and 2024. toyota’s investment in indonesia is also a process of continuous localization, capacity expansion, and market share expansion. through localized production layout and other investment methods, toyota has been able to sit on the throne of sales champion in indonesia and even southeast asia for a long time. 3.2.1 deep localization model the indonesian government has long been promoting a localization policy for the automotive industry, requiring automakers to increase the proportion of local parts used in order to obtain tax incentives. for toyota, localized production may be a challenge to a certain extent, but it also brings more opportunities from external factors. since establishing pt toyota-astra motor (tam) in 1971 as a joint venture with indonesian companies, toyota has gradually deepened its local production in indonesia. in 2003, toyota separated its manufacturing function and established pt toyota motor manufacturing indonesia (tmmin), focusing on the local production of complete vehicles and engines. currently, tmmin operates multiple factories in sunter and karawang, with an annual output of 278,141 vehicles. its products not only meet domestic demand but are also exported to asean and other regions. in addition, toyota is also actively promoting the localization of its supply chain in indonesia. according to indonesian media reports, by 2024, toyota will have cooperated with about 200 first-tier suppliers, covering the local production of about 10,000 parts, and toyota indonesia’s facilities will be spread all over indonesia. for example, the utilization rate of local parts for kijang innova is 85%, sienta is 80%, and the localization rate of other models such as vios, yaris, and fortuner is also above 75%. at the same time, toyota also continuously improves the manufacturing capabilities and quality standards of local suppliers through training programs such as the “jishuken toyota production system” and strictly controls the supply quality to ensure that the car can form an advantage even if it is produced locally in indonesia. it can be seen that in order to meet these policies, toyota has continuously adjusted its supply chain and increased local procurement and production, which may pose a challenge to its global unified www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 14 published by scholink inc. production system in the process of turning to localized production. however, toyota has found a localization strategy that suits itself. through joint ventures with local and multinational companies, it has not only established a strong sales and service network but also localized production and supply chains, reduced costs, and increased market response speed. therefore, toyota’s success in indonesia is inseparable from its deep localization strategy. 3.2.2 product diversification and market segmentation if a company wants to gain a foothold in the market, it must make its products meet the economic capabilities and actual needs of local consumers. in a large market like indonesia, where there are obvious differences in economic development levels and consumption capabilities, a single-product strategy makes it difficult to maintain the long-term advantages of the brand. toyota is well aware of this and has launched a diversified product line, from economy cars to high-end suvs to hybrid models, to meet the needs of consumers of different classes, regions, and purposes and achieve precise investment. as early as 1977, toyota officially launched the toyota kijang in jakarta, a multi-purpose commercial vehicle designed specifically for the indonesian market. since then, toyota has continuously invested in and improved the vehicle configuration according to actual conditions, highly covering the main vehicle usage scenarios in the indonesian market. from the entry-level microcar agya, the small mpv calya, to the mid-range family car avanza and kijang innova, to the mid-to-high-end suvs such as fortuner and rush, and even the alphard and vellfire for high-end business travel, toyota has a mature product investment layout in almost all market segments, which not only increases its market share but also allows consumers to continue to trust and choose toyota in the process of upgrading and changing cars, making it less likely to lose to other brands. at the same time, toyota also made systematic localized adjustments to indonesia’s road conditions, climate conditions, and family structure when investing. for example, in response to the narrow roads and many potholes in java island and sumatra, toyota equipped its mpvs and suvs with higher chassis and flexible suspension systems; in response to indonesia’s humid and rainy tropical climate, toyota strengthened the power and dehumidification efficiency of the air-conditioning system; in order to adapt to the collective travel characteristics of multiple generations living together in indonesia, toyota mostly adopts a 7-seat or 8-seat design in terms of vehicle seat layout to maximize the flexibility and carrying capacity of the interior space. in addition, toyota cars are characterized by low prices, fuel efficiency, and durability, which constitute the basic plate of its investment competition in the local market. 3.2.3 policy adaptation and government-enterprise cooperation in an emerging market like indonesia, which is highly dependent on policy-oriented development, foreign automakers must not only win over consumers but also the government if they want to invest and gain a foothold here for a long time. since japanese brands entered the indonesian market relatively early, they already have a deep user base in indonesia. japanese automakers are familiar with www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 15 published by scholink inc. indonesia’s policies on investment and have established extensive cooperative relations with the local government, influencing local automotive industry standards and policy formulation. since the 1990s, the indonesian government has been implementing a “localization incentive policy” that requires automakers to gradually increase the use of local parts in exchange for lower import tariffs and luxury goods sales tax (ppnbm) benefits. this policy has created a high threshold for brands that are unwilling to invest locally and rely on imported parts, but for toyota, which has already deeply cultivated the local market and established a mature production system, it is an opportunity to expand its cost advantage further. toyota has sufficient flexibility and foresight in adapting to local automotive industry policies. when indonesia introduced policies related to localized production, it expanded local assembly plants to meet the requirements of localization of vehicles. it actively linked up with upstream parts companies to promote the localization of the supply chain. this makes toyota sufficiently competitive in terms of price, and it can control costs well even when facing the impact of low-priced products from chinese brands or other automakers. faced with the indonesian government’s policy orientation of vigorously developing the electric vehicle industry since 2020, toyota not only did not avoid the challenge but actively embraced the transformation and strived for the initiative. during the policy transition period of new energy vehicles, although the pace of the electrification transformation of japanese cars was slightly slower, toyota still responded strategically quickly. in july 2022, after indonesian president joko widodo visited japan, indonesia immediately stated that toyota plans to invest 27.1 trillion rupiah (about 1.8 billion us dollars) in indonesia in the next five years to produce electric vehicles (gayatri suroyo, 2022). in addition, toyota also plans to build a new battery assembly plant to support electric vehicle production in indonesia. at the same time, toyota has established close cooperation with the indonesian government in many aspects during its decades of deep cultivation in indonesia. for example, in 2023, the indonesian ministry of industry and toyota motor manufacturing indonesia (tmmin) jointly held a seminar on the theme of promoting the digital transformation of industry 4.0 in the automotive industry. toyota has also actively participated in the formulation of automotive industry standards and policies. in the “low-cost green car” (lcgc) policy launched by the government, toyota was one of the first companies to respond and launch models that met the policy, investing in the agya model to meet the needs of encouraging the production of low-cost, energy-saving and environmentally friendly cars. in the southeast asian market, with economic uncertainty and frequent policy changes, toyota did not stick to tradition but actively transformed its foreign investment role into a local partner or even a policy promoter. this high degree of local adaptability and cooperative spirit not only ensures that toyota enjoys the policy dividends of the indonesian government and expands its first-mover advantage in investment but also enables it to shape a positive image at the government level and enhance its risk resistance. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 16 published by scholink inc. 3.3 from traditional car companies to new energy: a cross-generational comparison of byd and toyota’s investment in indonesia by comparing the investment cases of two well-known car companies in indonesia, it is not difficult to see that byd, as a leading new energy car company, has a high degree of similarity in investment strategy with toyota even though it invested in the indonesian market relatively late. this shows that toyota’s path of deepening its presence in the indonesian market is correct and worth learning. however, as an emerging industry, new energy car companies have their unique advantages and challenges when investing. byd’s investment in indonesia has a significant competitive advantage, largely due to its ability to control costs and integrate the industrial chain, that is, by building its core component systems, such as batteries, motors, and electronic controls, to reduce dependence on external suppliers, thereby effectively controlling production costs and improving efficiency. byd produces its blade batteries and self-developed electronic control systems and has even entered the field of automotive-grade chips, which makes it fully independent in the core technical aspects of new energy vehicles, not only saving procurement costs but also giving it higher investment and production stability and flexibility in the context of tight international supply chains. byd has also chosen a similar investment path as toyota, that is, to achieve localized production as much as possible. in a resource-rich country like indonesia, where the industrial system is still developing, just as toyota has achieved supply chain localization through joint ventures, chinese new energy vehicle companies can also take advantage of their strong upstream resource integration capabilities and technologies. china is a global leader in battery raw material processing, with more than 60% of the world’s lithium, cobalt, and graphite processing capabilities. byd and other automakers can rely on the country’s strong domestic battery industry chain to attract upstream and downstream industries to invest in the indonesian market as related industries expand their investment in indonesia, the battery and precursor supply chain has gradually improved, laying the foundation for chinese new energy vehicle companies to localize vehicle production. indonesia has the world’s largest reserves of laterite nickel ore, and chinese automakers have already made arrangements in advance through investment and joint ventures. for example, in recent years, companies such as catl have invested in and built factories in areas rich in nickel resources in indonesia, cooperated with local governments and enterprises to develop laterite nickel ore, and set up smelting facilities and battery material factories on-site. in april 2022, catl invested approximately us$6 billion to establish a joint venture with indonesia’s antam and ibi to build a full-power battery industry chain project. chinese new energy vehicle companies can, therefore, directly connect with local battery suppliers such as catl, forming a virtuous cycle of local resource processing and local product production. new energy vehicle companies have rich policy dividends in the context of encouraging green development today and can enjoy many preferential policies and subsidies at the government level. at the national level, the indonesian government is vigorously promoting the development of new energy www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 17 published by scholink inc. vehicles, proposing that by 2025, the sales of electric vehicles (evs) will account for 20% or about 340,000 vehicles and that all vehicles sold will be electric vehicles by 2050. at the same time, the indonesian government also announced in 2019 that the government would provide various fiscal and non-fiscal incentives to related companies to promote the development of the local pure electric vehicle industry, which has brought strong policy impetus to the investment and development of chinese new energy vehicle companies in indonesia. however, if chinese new energy vehicle companies want to achieve long-term investment and development in indonesia, there are still many problems and challenges that need to be solved. indonesia’s charging infrastructure is not yet perfect, and a comprehensive coverage layout has not yet been formed, which limits the promotion of electric vehicles. compared with traditional car companies such as toyota, which have been deeply rooted in indonesia for decades and have almost monopolized the indonesian automobile market, chinese new energy vehicle companies have low brand awareness in indonesia, and consumers’ acceptance and trust in new brands need time to cultivate. in addition, it also takes time and resources to establish a complete supply chain system and after-sales service network in overseas markets. chinese new energy vehicle companies also need to focus on cultivating local suppliers and service partners to ensure product quality and customer satisfaction, thereby laying a solid foundation for long-term investment and development in the indonesian market. 4. research guidelines based on the legal aspect esg is a reference indicator for evaluating investment targets. it evaluates the sustainability and social impact of companies through their performance in the three dimensions of “environment, society, and governance,” thereby influencing investors’ investment decisions. specifically, it requires companies to “create value for shareholders and make profits while assuming responsibilities to stakeholders such as employees, consumers, the environment, and the community” (li, s., & huang, s. z., 2022, pp. 13-25). at present, esg, a concept originally belonging to the scope of economics, is gradually entering the legal field. through legal provisions, society’s understanding of this concept is further strengthened, and it is gradually transformed from a soft indicator into a mandatory regulation. at present, the degree of inclusion of esg in the laws of various countries in the international community is different. generally speaking, there are three approaches. the first is to directly formulate esg-related regulations and directly stipulate the relevant content of esg governance through a whole set of specific regulations. the typical representative of this model is the european union. as a leading representative of esg governance, the european union formulated the relevant laws and regulations on esg, the non-financial reporting directive (nfrd), as early as 2014. subsequently, the corporate sustainability reporting directive (directive (eu) 2022/2464, “csrd”) and the corporate sustainability due diligence directive (directive (eu) 2024/1760, “cs3d”) were passed in 2022 and 2024. after the two directives come into effect, they will replace the non-financial reporting directive issued in 2014. at the beginning of 2025, the european commission proposed major revisions to esg www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 18 published by scholink inc. regulations such as csrd and cs3d. in general, the main contents of the eu esg regulations include the following: firstly, information disclosure is a core obligation. the regulations clarify the unified disclosure standards and require relevant companies to disclose information related to environmental, social, governance, and other sustainable development by the relevant requirements of the european sustainability reporting standards (“esrs”); secondly, due diligence is another core obligation. this obligation includes but is not limited to investigating whether there are actual and potential adverse effects on labour rights and the environment in the operation of itself, its subsidiaries, and business partners related to its value chain, whether measures to mitigate such adverse effects are taken, and timely publishing of investigation reports. the second type is that although no special esg regulations have been established, the esg concept has been absorbed into various departmental laws. most of the issues contained in esg have been covered by laws and regulations in various fields and are scattered in relevant legal provisions to jointly promote the sustainable development of enterprises, such as china and indonesia. for example, article 20 of the company law of the people’s republic of china stipulates that “when a company engages in business activities, it shall fully consider the interests of stakeholders such as company employees and consumers, as well as social public interests such as ecological and environmental protection, and assume social responsibilities,” which is an important manifestation of the inclusion of the esg concept in company law. the issues related to organizational structure, shareholder rights, information disclosure, etc., are all covered by the company law, the measures for the administration of information disclosure of listed companies, the anti-unfair competition law, and other laws and regulations. in terms of the protection of workers’ rights and interests, the labour law system with the labor law and the labor contract law as the core is an important legal support for china to implement the protection of workers’ rights and interests. the third type has both esg-specific legislation and regulations formulated for different fields, forming a “one core multiple levels” governance system, such as the european union. in addition to the mandatory disclosure regulations mentioned above that directly implement esg, the european union has also promulgated the “batteries and waste batteries regulations” and other regulations related to esg governance, which together constitute the esg governance system. compliance review of corporate esg refers to the compliance check of the legal norms of various elements included in the three dimensions of environment, society, and corporate governance under the aforementioned legal regulations, as well as the legal compliance review of esg special legislation. indonesia, the research object of this topic, adopts the second esg legislative model; that is, there is no direct esg governance law, but the various departmental laws together constitute the legislative norms of esg governance as the norms for corporate sustainable development. the relevant provisions will be elaborated in detail from various angles below, and we are committed to providing compliance guidance for new energy vehicle companies to develop their business in indonesia. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 19 published by scholink inc. 4.1 mandatory disclosure system in terms of the construction of the esg mandatory disclosure system, indonesia’s current regulatory system shows obvious structural differences. the country has only made relatively detailed provisions on the esg disclosure obligations of listed companies and financial institutions and only given relatively general principled requirements for non-listed companies involved in natural resources. compared with the relatively complete esg regulatory systems of the european union and china, there is still a certain gap in the breadth of system coverage and the depth of implementation details. based on this, this article will classify and interpret indonesia’s esg mandatory disclosure system by subject type and briefly discuss some non-mandatory disclosure practices. given that this article focuses on compliance issues in the new energy vehicle industry, the first part will focus on analysing the relevant regulations for listed companies and will not involve the esg disclosure requirements of financial institutions for the time being. 4.1.1 mandatory disclosure obligations of listed companies indonesia mainly focuses on “sustainable finance” through the regulation on the implementation of sustainable finance by financial services institutions, issuers and listed companies (ojk regulation no. 51/2017) (“regulation 51/2017”), which makes general provisions on the mandatory disclosure obligations of listed companies and states that “financial services institutions, issuers and listed companies are obliged to prepare a ‘sustainable development report’ (‘report’)”. first, in terms of the scope of the subject, the term “listed company” in regulation 51/201 in indonesia refers to “a joint-stock company whose shares are held by at least 300 shareholders and whose paid-in capital is at least 3 billion rupiah, or whose number of shareholders and paid-in capital meet government regulations.” secondly, there are two ways to submit the report: it can be prepared separately or as an integral part of the annual report, and it needs to be made public on the official website or in a media that is easily accessible to the public. subsequently, indonesia made further specific provisions in the notice on the form and content of annual reports of issuers and listed companies (ojk no. 16/2021) (“notice 16/2021”). the report should at least include sustainable strategy; the company’s efforts in sustainable development (economic, social, and environmental); sustainable development governance; sustainable development performance; written inspection opinions of independent institutions on the report and its contents (if any); reader feedback (if any); the company’s response to feedback in the previous year’s report, etc. compared with the mandatory esg disclosure system for listed companies in other countries or international organizations, the relevant provisions in indonesia are more general and have not yet made clear definitions of key elements such as the classification method, accounting boundaries, and accounting methods of disclosed data. this makes companies face many judgment difficulties in the actual disclosure process. for example, in the accounting of greenhouse gas emissions, it is difficult to determine whether the calculation scope should cover the scope of three emissions specified in ifrs s2; in terms of accounting boundaries, how to include emissions from joint ventures and emissions www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 20 published by scholink inc. from indirectly controlled facilities of enterprises in the calculation; in terms of environmental information disclosure issues, whether the use of marine resources and raw material consumption should be disclosed, there is a lack of clear guidance. in this regard, regulation 51/2017 only puts forward the principle suggestion that “in addition to the minimum standards, companies can also disclose information in accordance with international standards.” in practice, many indonesian companies choose to use the global reporting initiative (gri standards) as the basis for proactively disclosing esg reports. however, indonesia has not yet formally adopted any specific international standards. for listed new energy vehicle companies, when fulfilling their esg disclosure obligations, they need to pay close attention to the dynamic updates of relevant indonesian laws and regulations to avoid compliance risks caused by changes in rules. 4.1.2 mandatory disclosure obligations for non-listed companies involved in natural resources indonesia has set out mandatory esg disclosure obligations for companies involved in natural resources in regulation no. 47 of 2012 on corporate social and environmental responsibility (“regulation 47/2012”). the regulation stipulates that companies that conduct business activities in the areas prescribed by law or in areas related to natural resources are obliged to assume social and environmental responsibilities. among them, “companies that conduct business activities in areas related to natural resources” refer to companies that do not directly manage or use natural resources but whose business activities affect the functions of natural resources (including environmental protection functions). the new energy vehicle manufacturing industry involves battery production, parts processing, and other links. its upstream supply chain is closely dependent on the mining and utilization of mineral resources such as lithium, cobalt, and nickel, and the development of mineral resources is directly related to the protection and sustainability of natural ecosystems. therefore, due to its dependence on natural resources and potential environmental impact, the new energy vehicle manufacturing industry belongs to the “companies that conduct business activities in areas related to natural resources” defined in regulation 47/2012 and must perform esg information disclosure and social and environmental responsibilities by the regulation. according to regulation 47/2012, the way to assume social and environmental responsibilities is to record the relevant content in the company’s annual work plan, which shall be performed by the board of directors, and its performance shall be included in the company’s annual report and reported to the shareholders’ meeting. however, due to the early promulgation of this regulation, compared with the subsequent regulation 51/2017 and announcement 16/2021, its content is relatively preliminary, and the provisions are relatively general. it neither clarifies the standards and formats for the implementation of the report nor defines the necessary information for the report. in actual operation, the report usually covers the specific content of the three dimensions of environment, society, and governance. even so, unlisted new energy vehicle companies still need to pay attention to the mandatory disclosure obligations stipulated in this regulation. after all, indonesia may subsequently introduce new regulations or announcements to refine and improve the relevant requirements. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 21 published by scholink inc. 4.2 environment (e) in the field of environmental compliance, new energy vehicle companies going overseas to indonesia need to focus on a series of regulations and standards. among them, the regulations related to the environmental impact analysis report (amdal) are related to the environmental risk assessment of the project; the indonesian green industry standard (sih) clarifies the green requirements of the company’s production process; and the “regulations on the collection of luxury sales tax on luxury motor vehicles” involves environmental protection-related tax policies. these three types of regulations will be elaborated in detail later. 4.2.1 regulations related to environmental impact analysis report (amdal) in the indonesian environmental impact analysis report (amdal) system, three core regulations have a key impact on the project construction and operation of new energy vehicle companies. first of all, law no. 32 of 2009 (environmental protection and management law) is the basic framework regulation for environmental management in indonesia. it clarifies the importance of environmental impact assessment (amdal) and stipulates that any business project that may have a significant impact on the environment must carry out amdal. for the new energy vehicle industry, there are significant environmental risks in the battery manufacturing process. taking hydrometallurgical technology as an example, the heavy metal pollution it produces can easily reach the regulatory bottom line. therefore, amdal has become a necessary procedure for new energy vehicle companies before launching projects. according to law no. 11 of 2020 (employment creation law) and its implementing regulations, the implementation procedures of amdal have been optimized. on the one hand, the regulations clarify the environmental impact assessment obligations and exemptions of specific enterprises and exempt some small projects or developments located in non-sensitive areas from amdal requirements; on the other hand, they promote the integration of environmental impact assessment documents with other licenses, simplify the approval process to reduce the burden on enterprises and strengthen the supervision mechanism after project operation. what automakers need to focus on is government regulation no. 22 of 2021 (environmental protection and management regulation), which focuses on refining the technical specifications and implementation process of amdal and clarifies that amdal needs to pass several technical approvals, including technical approval of exhaust emission quality standards (pertek pemenuhan baku mutu emisi), traffic impact analysis technical approval (andalalin), wastewater quality standard technical approval (ipal), and hazardous and toxic substances management technical approval (pertek pengelolaan limbah b3). in addition, the amdal system also requires companies to not only pass the approval and meet the standards but also to formulate a comprehensive waste treatment and emission control plan and be equipped with professionally trained pollution prevention and control personnel. new energy vehicle companies must attach great importance to amdal compliance. if they fail to pass the law, they will www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 22 published by scholink inc. face a high fine of up to 5 billion rupiah (about 2.25 million yuan). 4.2.2 green industry standard (sih) according to the requirements of government regulation no. 28 of 2021, manufacturing companies must comply with the green industry standards issued by the indonesian ministry of industry, which covers a wide range of industries. the green industry standards for new energy vehicle manufacturing include but are not limited to flat glass green industry standards, safety glass green industry standards, steel plate green industry standards, etc. the most important of these is the green industry standards for parts and accessories for four-wheeled or above motor vehicles. green industry standards mainly include technical requirements and management requirements. this article mainly summarizes its technical requirements. table 1. technical requirements for green industry standards for parts and accessories for four-wheeled and above motor vehicles (mufflers) aspect standard limit verification method raw materials 1.2 raw material sources 1.3 raw material processing procedures 1.4 product and raw material usage ratio proof of the source of raw materials for each batch of production (such as inspection sheet) must be provided; raw materials must pass laboratory testing and do not contain cadmium, lead, mercury, chromium, or asbestos. develop and implement sops and iks (work instructions) for raw material handling. product and raw material usage ratio ≥ 92.5% (calculated based on the data of the past year ) verify the raw material inspection sheet for each batch of production; verify the laboratory test report (including coa, sds) provided by the supplier check sop/ik documents and on-site implementation calculate the ratio: ( = product output, = raw material usage) energy power consumption per unit ≤70 kwh / ton of product verify the electricity consumption data and actual output for the past year calculation: ( = electricity consumption, = product output) production process overall equipment effectiveness (oee) ≥97% verify the planned production time, actual production time, ideal operation rate, and qualified product quantity in the past year calculation: oee = availability (ai) × performance efficiency (ppi) × quality efficiency (qpi) product product comply with sni 8443:2017 verify sppt-sni certificate, laboratory test report www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 23 published by scholink inc. quality standard or customer requirements package primary packaging: plastic secondary packaging: carton at least 25% recycled plastic used in packaging verify recycled plastic use records and declaration documents waste 6.1 wastewater treatment facilities 6.2 wastewater parameters meet standards 6.3 waste gas treatment facilities 6.4 solid waste recycling 6.5 hazardous and toxic waste (b3) treatment 6.6 solid waste management plan possess ipal (wastewater treatment facility) and iplc (discharge permit); wastewater meets environmental quality standards; equipped with waste gas treatment facilities; recycling of solid waste (such as production waste); hazardous and toxic waste is handled by a licensed third party; implement approved solid waste management plans verify ipal/iplc documentation and facility operation status accredited): check waste disposal records and compliance greenhouse gas emissions co₂ emissions ≤50.75 kg co₂ / ton of product verify energy usage data and emission factor calculation (formula: ) from the above technical requirements, the indonesian green industrial standard covers the entire process of the control of the parts and accessories industry (mufflers) of four-wheeled and above motor vehicles in the manufacturing of new energy vehicles. in the raw material link, strict traceability of sources and restriction of harmful substances are aimed at reducing pollution risks from the source; the setting of energy consumption standards encourages enterprises to improve energy efficiency and promote the transformation of the industry to low carbon. in terms of production technology, high requirements for the comprehensive efficiency of equipment not only ensure the stability and efficiency www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 24 published by scholink inc. of production but also reduce additional resource consumption and pollution emissions caused by equipment failures. product quality is based on national standards or customer requirements to ensure the quality and safety of products circulating in the market; the proportion of recycled plastics used in packaging materials is in line with the concept of circular economy and helps reduce plastic pollution. the multi-dimensional requirements for waste treatment have established a comprehensive pollution prevention and control system, and standardized management has been achieved from wastewater and waste gas to solid waste and hazardous waste. the clarification of greenhouse gas emission limits directly responds to global climate governance goals, prompting companies to optimize energy structures and improve technical processes during the production process to meet increasingly stringent environmental protection requirements. for new energy vehicle companies going to indonesia, the full implementation of these technical requirements is not only a necessary measure to meet local regulations but also a key path to enhance the green competitiveness of enterprises and achieve sustainable development. 4.2.3 regulations on the collection of luxury goods sales tax on luxury motor vehicles and its amendments government regulation no. 73 of 2019, “regulations on the collection of luxury sales tax on luxury motor vehicles,” was revised by government regulation no. 74 of 2021 to build a more sophisticated and complex tax system. the new regulations use core parameters such as vehicle model, power technology type (pure electric, fuel, hybrid), and carbon dioxide emissions as anchors and set differentiated tax rates and tax calculation standards for different types of motor vehicles, with significant differences in tax burdens at all levels. this policy adjustment not only directly affects the cost structure and market pricing strategy of automakers but also implies the indonesian government’s strategic intention to promote the green transformation of the automotive industry. for new energy vehicle companies going to indonesia, accurately grasping the subtle changes in these tax standards is the key to optimizing operating costs and improving market competitiveness, and requires continued high attention. table 2. luxury sales tax rates and tax calculation standards for electric or hybrid vehicles model/ technology passenger capacity or number of wheels cylinder capacity (cc) co2 emissions (g/km) tax rates and tax calculation standards related terms electric vehicles 10-15 (including driver) \ \ 15% article 17 of 19 double-cab vehicle 10% vehicles using battery electric four-wheel vehicle \ ≤100 15% (tax base is 0% of sales article 35 of 2019, revised www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 25 published by scholink inc. (bev) or fuel cell (fcev) technology price) in 2021 vehicles with plug-in hybrid electric technology (phev) \ ≤100 15% (tax base is 33 ⅓ % of the sales price) newly added as article 36a in 2021 full hybrid ≤1200 (gasoline); ≤1500 (diesel/semi-diesel) ≤120 15% (the tax base is 20% of the sales price) article 25 of 19 ≤ 3000 <100 15% (tax base is 40% of the sales price) article 26 of 2019, revised in 2021 100-125 15% (the tax base is 46 2 / 3 % of the sales price) article 27 of 2019, revised in 2021 125-150 15% (the tax base is 53 ⅓ % of the sales price) article 28 of 19 mild hybrid ≤3000 <100 15% (the tax base is 53 ⅓ % of the sales price) article 29 of 19 100-125 15% (the tax base is 66 ⅓ % of the sales price) article 30 of 19 125-150 15% (the tax base is 80% of the sales price) article 31 of 19 full hybrid or mild hybrid vehicle ＞3000 and ≤4000 <100 20% article 32 of 19 100-125 25% article 33 of 19 125-150 30% article 34 of 19 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 26 published by scholink inc. from the above regulations and their revisions, indonesia’s luxury sales tax on new energy vehicles presents a distinct policy orientation and dynamic adjustment characteristics. on the one hand, the tax rate and tax calculation standard are closely related to core indicators such as vehicle technology type, passenger capacity, cylinder capacity, and co₂ emissions, aiming to encourage enterprises to transform to low-emission and high-efficiency electrification technology through tax leverage. for example, pure electric vehicles, with the advantage of zero tail gas emissions, obtain relatively preferential tax rate policies in specific vehicle classifications, while hybrid vehicles are subject to differentiated tax calculation bases based on their emissions and power performance, which fully reflects the precise regulation of tax policies on environmental protection technologies. on the other hand, the special provisions of article 36b highlight the indonesian government’s determination to promote the development of the battery electric vehicle industry. with the achievement of the 5 trillion rupiah investment target and the start of commercial production, the adjustment of the tax base of relevant models has reduced the tax burden for enterprises in the short term, helped attract more capital investment, and accelerated the scale-up process of the industry. however, car companies should also be wary of policy time limits. the above-mentioned tax regulations on hybrid vehicles will expire on october 15, 2029, which means that the tax policy for new energy vehicles in the future is very likely to usher in a new round of changes. therefore, new energy vehicle companies going overseas to indonesia should not only accurately grasp the current tax preferential policies and optimize product layout and pricing strategies but also establish a dynamic policy tracking mechanism to judge the trend of regulatory adjustments in advance to cope with possible changes in tax policies in the future and ensure the long-term compliance and sustainable development of enterprises in the indonesian market. 4.3 society (s) combining the previous review and the specific situation of indonesian legislation, this article analyzes the requirements of indonesian laws and regulations on social (s) factors in esg from three aspects: employee rights protection, community relations, and social and religious culture. 4.3.1 protection of employee rights and interests labor law (2003), the government regulation no. 2 of 2022 on job creation (“law no. 6 of 2023”, hereinafter referred to as the “job creation regulation”), and the regulation on fixed-term employment, outsourcing, working hours and rest times, and employment termination (2021). this article mainly emphasizes the company’s protection of employee rights and interests from the aspects of working hours, wage requirements, layoff requirements, and employee localization protection, as well as the social responsibility of respecting local religious customs. 4.3.1.1 working hours and salary regulations the labor law and the regulations on creating employment opportunities stipulate that employees’ working hours shall not exceed 40 hours per week. the monthly salary of workers shall not be lower than the “provincial minimum wage standard” of the place where they are located. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 27 published by scholink inc. in addition, the law strictly restricts the conditions for overtime work. the labor law and the regulations on creating employment opportunities stipulate that overtime work must be agreed to by the workers that overtime work may not exceed 4 hours per day, and the cumulative overtime time per week may not exceed 18 hours. overtime pay must be paid, and there is a detailed calculation method for overtime pay. for overtime on weekdays: a. the first hour of overtime on a weekday is 1.5 times the hourly wage; b. each subsequent hour of overtime is 2 times the hourly wage; overtime on rest days or statutory holidays: a. overtime pay for the first to eighth hours is paid at twice the hourly wage; b. overtime pay for the ninth hour is paid at three times the hourly wage; c. overtime pay for the tenth to twelfth hours is paid at four times the hourly wage. the regulations on fixed-term employment contracts, outsourcing, working and rest time, and termination of employment relations additionally grant companies the right not to pay overtime to certain personnel. management personnel do not need to pay overtime because of their flexible working hours and generous salaries. companies can make specific provisions for the above positions through labour contracts, collective contracts, and rules and regulations. regarding holiday regulations, the labor law and the regulations on job creation provide that employees who have worked for 12 months are entitled to 12 days of paid annual leave. among them, muslim employees can enjoy additional leave to fulfil religious duties (such as going to mecca for pilgrimage), and employees who have worked continuously for more than one year are entitled to receive a religious holiday allowance (thr) equivalent to one month’s salary. employees who have worked for more than one month but less than one year are paid in proportion. companies must pay the above allowances to employees within 7 days before the holiday. 4.3.1.2 severance request indonesian labor laws have four types of economic compensation for the termination of labor contracts: severance pay, service period bonus, compensation, and severance pay. companies will apply different forms of compensation according to different situations. table 3. forms of compensation according to different situations in indonesia long service pay generally, the payment standard for service bonus is 2 months’ salary for the first three years of service, and an additional month’s salary for each three years thereafter. for employees who have worked for 24 years or more, a maximum of 10 months’ salary will be paid. for service periods of less than three years, it will be calculated as three years. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 28 published by scholink inc. however, if the labor relationship is terminated due to the following reasons, the company does not need to pay the service period bonus: a. the court ruled that the employee’s allegations against the company were unproven; b. voluntary termination by the employee; c. an employee is absent from work for 5 consecutive working days without permission; d. employees commit crimes that cause losses to the company; e. the employee is unable to work for 6 consecutive months due to detention. compensation the statutory compensation includes the deduction of unused annual leave and the relocation expenses paid by the company to send employees and their families back to their new place of work. separation pay severance pay is not a mandatory economic compensation but an agreed-upon compensation, such as when an enterprise and its employees agree on a severance pay clause in their employment contract. however, if the company is not required to pay employee severance pay and service period bonus due to the following statutory circumstances, the company needs to pay the employee a severance pay. a. the court ruled that the employee’s allegations against the company were not established; b. employee voluntarily terminates the contract; c. an employee is absent from work for 5 consecutive working days without permission; an employee commits a crime, causing losses to the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 29 published by scholink inc. company; d. the employee is unable to work for 6 consecutive months due to detention. severance payment generally, employees are paid one month’s salary as severance pay for each year they work for the company, and the maximum cumulative severance pay shall not exceed nine months’ salary. if the term of employment is less than one year, it shall be calculated as one year. however, there are exceptions to the severance pay standard if the labor relationship is terminated due to the following reasons: a. if an employee is unable to work for 12 months due to a long-term illness or disability, or if the employee dies, the severance pay is 200%; b. if an employee retires, the severance pay is 175%; c. if the company suffers force majeure but does not go bankrupt, the severance pay is 75%; d. if the enterprise is acquired, needs to reduce staff due to losses, closes due to force majeure, goes bankrupt, employees violate labor contracts and the enterprise has issued a warning letter, or the enterprise is in debt repayment procedures due to losses, the severance pay is 50%; e. no severance pay is required if the court rules that the employee’s allegations against the company are not established; the employee voluntarily terminates the contract; the employee is absent from work for five consecutive working days without permission; the employee commits a crime, causing losses to the company; or the employee is unable to work for six consecutive months due to detention. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 30 published by scholink inc. 4.3.1.3 employee localization protection indonesia’s labor law, job creation regulation, and government regulation no. 34 of 2021 on the employment of foreign employees (“gr/34”) all stipulate employment policies that protect the employment of domestic employees and give priority to their employment. first, companies need to hire foreign employees when “indonesian employees cannot meet job requirements.” for every foreign employee hired, companies must hire an indonesian employee at the same time. at the same time, companies are obliged to assign foreign employees to teach skills and professional knowledge to accompanying indonesian employees until the indonesian employees are qualified to take up the positions of foreign employees. secondly, indonesian legislation prohibits foreign employees from working in the following industry sectors: law, supply chain management, human resources, quality inspection and control, environmental affairs, health and safety, etc. however, when companies hire foreign employees as members of the board of directors or the board of directors, and foreign employees are shareholders of the company, they are not subject to the above restrictions. 4.3.2 respect local religious customs faith in god is one of the five principles of indonesia’s founding. with 87% of the population believing in islam, indonesia is the country with the largest muslim population in the world. faith in religion has become an integral part of the indonesian people. the relevant legal provisions in indonesia all reflect the corporate social responsibility of protecting local religious beliefs. for example, article 15(b) of the investment law no. 25 of 2007 requires companies to respect the local culture in relevant investment activities. article 34 stipulates corresponding penalties, such as written warnings, restrictions on business activities, freezing of business activities and/or investment facilities, or revocation of business activities and/or investment facilities. article 28(2) of the information and electronic transactions law stipulates: “it is prohibited to intentionally disseminate information that attempts to use ethnic, religious, social and racial factors to arouse hatred or cause disputes between individuals or groups without authorization.” 4.3.3 community relations social factors also require companies to deepen their relationships with various groups in the industrial chain on the basis of ensuring community construction and effectively helping vulnerable groups in society. in the new energy vehicle industry, the indonesian government does not force companies to fulfil their social responsibilities through a series of measures to encourage companies to promote local education, conduct skills training, etc. however, the newly promulgated indonesian mining law requires mining companies to allocate funds to implement community empowerment plans, including investments in education, medical care, infrastructure construction, and local business development, to implement corporate social responsibilities effectively. from this point of view, some industries have passed laws requiring companies to devote themselves to local community construction and fulfil their social responsibilities. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 31 published by scholink inc. from a policy perspective, indonesia is more supportive of new energy vehicle companies investing and building factories locally and is vigorously attracting foreign investment to build factories in indonesia. therefore, in the short term, there will not be too many restrictions on new energy vehicle companies, and the above mandatory investment requirements will not affect the new energy vehicle industry for the time being. however, in the long run, the esg responsibility has been recognized and legalized by the indonesian government authorities, and it may still affect other industries due to changes in national policies and other reasons, so automakers need to pay close attention to relevant legislative developments. 4.4 governance (g) based on the previous review and the specific situation of indonesian legislation, this article mainly analyses the requirements of indonesian laws and regulations on the governance (g) factors in esg from the two aspects of corporate governance: social responsibility and equity structure restrictions. 4.4.1 social responsibility first, article 5, paragraph 2 of the indonesian investment law stipulates that foreign investors can only conduct business activities in indonesia in the form of a limited liability company (pt). therefore, the provisions of the indonesian limited liability company law are an important legal basis for social responsibility governance. articles 66 and 77 of indonesia’s limited liability company law no. 40 of 2007 constitute the basic content of a company’s fulfilment of social responsibility. it stipulates that corporate social responsibility (csr) refers to “the company’s commitment to participate in sustainable economic construction and improve the quality of life of the company itself, the local community and the entire society.” companies engaged in business activities in the field of natural resources must assume corporate social responsibility (csr) and reserve a budget for csr. the board of directors shall prepare a special csr report in the company’s annual report, explain the specific implementation of csr activities, and submit it to the shareholders’ meeting for deliberation. in addition, article 15, paragraph b of the investment law no. 25 of 2007 also stipulates that companies should fulfil their social responsibilities. article 34 stipulates that violations of the above provisions will result in corresponding penalties, such as written warnings, restrictions on business activities, freezing business activities and/or investment facilities, or revoking business activities and/or investment facilities. 4.4.2 equity structure in the field of investment, different countries have set corresponding positive/negative investment lists based on national security, national development needs, etc. reflecting on the issue of equity governance structure, the country has made a series of regulations on the proportion of domestic and foreign capital and equity structure of enterprises according to the different requirements of the lists. indonesia has adopted a relatively open policy on equity restrictions for investment in new energy vehicles. the negative investment list (dni) revised in 2021 relaxes foreign investment restrictions in the new energy vehicle industry chain (including vehicle assembly, battery production, and parts manufacturing), lists electric vehicles and battery manufacturing as priority development areas, and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 32 published by scholink inc. allows foreign investment to hold 100% of the shares without mandatory local shareholding requirements. 5. conclusion through the above multi-case analysis and comparative study, we roughly studied the market status of indonesia’s new energy vehicle market under the three-dimensional framework of esg and compared the investment cases of domestic and foreign car companies to understand the investment environment of the indonesian market in recent years. at the same time, through the study of indonesian laws and regulations, we also made key refinements to the labor law, the company law, the battery and waste battery regulations, the anti-unfair competition law, etc., and analyzed the differences between them and domestic laws. we hope that the analysis and research based on real cases and laws and regulations will reflect the value of the research and help chinese new energy vehicle companies go overseas. 5.1 research implications we have studied the export of domestic new energy vehicles to indonesia from many different dimensions. in terms of localized operations, we can learn from toyota’s “full-chain localization” experience, hire local employees, purchase local raw materials such as nickel ore to meet indonesia’s requirements for the proportion of local parts procurement, and avoid the risk of interference from local organizations (such as byd’s west java factory has encountered conflicts). in terms of product strategy, referring to toyota’s diversified layout covering economy to high-end models, byd can develop economy-pure electric models below rmb 150,000 while launching mid-to-high-end suvs, and optimize the design for indonesia’s climate and family structure, such as high chassis, climate-enhanced air conditioning and cooling capacity, 7-seat layout and localized functions of the car system. in terms of esg compliance, the social dimension needs to strictly implement the indonesian labor law, such as working hours ≤ 40 hours per week, paying overtime according to the standard (1.5-2 times on working days, 2-4 times on holidays ), implementing the “foreign employees with local employees training” system (gr/34 regulation), and setting up religious and cultural commissioners to review products and marketing content to avoid touching islamic taboos, and actively carry out community vocational training and other public welfare projects to enhance people’s favourability towards the brand. the governance dimension needs to reserve a budget for csr by the limited liability company law (recommended ≥ 1% of revenue), prepare special reports and submit them to the shareholders’ meeting, use the foreign investment 100% holding policy to establish a wholly-owned subsidiary, and participate in policy formulation by joining local industry associations to strive for subsidies and tax incentives. in terms of risk avoidance and competitiveness building, the environmental dimension needs to establish a dual-track compliance system of “local regulations + international standards,” complying with indonesia’s “environmental management law” to implement the epr system and establish a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 33 published by scholink inc. battery recycling network, and benchmarking the eu cbam to calculate the carbon footprint of the entire life cycle and reduce carbon intensity by purchasing green electricity. in cross-generational competition, we can learn from toyota’s forward-looking response to policies (such as early adaptation to localization policies), and at the same time, rely on indonesia’s new energy planning and nickel resource advantages, cooperate with local power companies to deploy charging piles, use esg governance as a brand differentiation selling point, and accumulate brand reputation with indonesia’s successful market cases, and build it into a new energy hub radiating asean. 5.2 shortcomings and prospects this study still has limitations. first, the case coverage is not broad enough. it only focuses on byd and toyota and does not include other chinese and foreign automakers with a presence in indonesia, such as wuling and hyundai. the selected cases are the most representative companies, and the analysis of compliance practices of small and medium-sized enterprises is insufficient, making it difficult to reflect the industry ecology fully. second, there are some deficiencies in quantitative analysis. initially, we wanted to use msci + esg rating data and then look for other quantifiable data, such as corporate annual reports, profit penalty data, profit growth data, etc., to complete the data-level analysis in order to find out the correlation between corporate governance and esg environmental index and profitability, and whether it meets the expected assumptions. however, due to the difficulty in obtaining relevant data and the fact that companies and governments have certain confidentiality measures for relevant data, there is a lack of quantifiable analysis based on statistical principles at the data level, and more comparisons, cases, and empirical analysis are conducted through existing cases and regulations. from the perspective of expanding the research, subsequent research can focus more deeply on the differences in esg regulations faced by new energy vehicle companies in different regions around the world and build a more detailed regional compliance comparison model. for example, comparing and analysing the different focuses of southeast asia, europe, north america, and other markets in terms of environmental standards, labour rights protection, and corporate governance requirements can provide a basis for companies to formulate differentiated global strategies. at the same time, with the help of big data and artificial intelligence technology, the long-term impact of esg compliance on key indicators such as corporate financial performance, brand value, and market share can be quantitatively evaluated for predictiveness of the research conclusions. looking ahead to the future of the new energy vehicle industry, technological innovation will continue to lead the industry’s transformation. battery technology is expected to achieve breakthroughs, and vehicles are expected to increase their driving range, shorten charging time, and enhance safety, effectively alleviating consumers’ “mileage anxiety.” intelligent and autonomous driving technologies will also be implemented at an accelerated pace, evolving from the current assisted driving to a higher level of autonomous driving, reshaping travel patterns and traffic ecology. in addition, driven by the global “dual carbon” goals, the penetration rate of new energy vehicles will further increase, and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 34 published by scholink inc. market competition will become increasingly fierce. with their advantages in technology research and development, industrial chain support, etc., chinese companies are expected to make greater breakthroughs in the international market, deeply integrated into the global industrial ecology through technology exports, overseas factory construction, etc., and enhance the global voice of china’s new energy vehicle industry. however, at the same time, the industry also needs to cope with challenges such as the tight supply of raw materials, the rise of trade protectionism, and data security, and promote the sustainable and healthy development of the industry through measures such as strengthening international cooperation, 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(2023). legal implementation path of corporate environmental compliance under the background of “dual carbon” goals. hainan finance, 2023(06), 54-56. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 125 original paper the iran–united states claims tribunal: revisiting indirect expropriation in international investment law yanhui han 1* & yu huang 2 1 school of law, shanghai university of international business and economics, shanghai, china 2 law school, renmin university of china, beijing, china * corresponding author received: july 3, 2025 accepted: july 17, 2025 online published: july 18, 2025 doi:10.22158/elp.v8n2p125 url: http://dx.doi.org/10.22158/elp.v8n2p125 abstract indirect expropriation remains a contentious and challenging issue in both theory and practice. from the late 20th century into the 21st, the central conflict in international investment law lies between sovereignty and the protection of private property. the deepening of economic and trade globalization has given rise to a renewed form of “calvoism,” placing foreign investors’ interests in host states under increasingly complex circumstances. the iran-united states claims tribunal was the first case to spur international research on indirect expropriation. the debate over whether losses to foreign investors should be borne by governments or private parties established an efficient paradigm for resolution and offers instructive insights on attributing responsibility. however, the paradigm for addressing indirect expropriation remains largely monolithic. in the current era of faltering globalization, indirect expropriation requires fresh reassessment. keywords international investment law, indirect expropriation, calvoism, iran-united states claims tribunal (iusct), globalization 1. the iran-united states claims tribunal’s determination of expropriation allegation the iran-united states claims tribunal (iusct), established in 1983, differs from other ad hoc arbitral tribunals due to its unique context arising from iran’s political transformation and the multiple disputes with the united states. under the mediation of algeria, the two parties reached the algiers accords, which comprised three agreements: the general declaration, the claims settlement declaration, and the undertakings. excluding the majority of private claims, among the 77 intergovernmental compensation cases resolved by the tribunal, a substantial number involved indirect expropriation www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 126 published by scholink inc. (iran-united states claims tribunal, case no. 98 chamber two, harza engineering company v. islamic republic of iran, award no. 19-98-2). 1.1 tribunal’s definition and manifestations of expropriation the tribunal distinguishes its terminology for “expropriation” from common usage. it prefers the term “deprivation” over “taking”, the latter corresponding to the academic concept of expropriation, under which the state acquires private property for public purposes and pays compensation. although largely synonymous, “taking” may imply that the state has acquired something of value, which is not accurate in cases of indirect expropriation. indirect expropriation does not involve formal acquisition of lawful property rights, but rather interference with those rights. today, domestic social reforms rarely require formal seizure of physical assets; instead, foreign investors’ rights may be affected by state measures that confer the benefits of private property to the host state, not through formal taking but with equivalent effects (maurizio,  b., 2001, pp. 203-212). because the iranian government adopted various formal and informal measures affecting u.s. investors’ interests, the tribunal was uniquely positioned to shape legal developments in this realm. each of its three chambers issued significant rulings concerning foreign investment. one claimant emphasized that the tribunal’s significance lay in its analysis of compensation amounts. however, the tribunal’s rulings were even more significant in determining the extent to which host-state interference constitutes expropriation under contemporary international law. there is no doubt that the actual seizure of property constitutes expropriation (seddigh, h., & aldrich, g.  h., 2017, pp. 585-609). what remains unclear is whether informal actions affecting international investment constitute expropriation. indirect expropriation in intergovernmental claims before the tribunal manifests in varied forms that defy a single, detailed definition. traditional scholars distinguish among nationalization, requisition, and confiscation. requisition is defined as the state taking possession of assets and rights held by a foreign national, usually promptly and with fair compensation. in contrast, nationalization is broader: the state acquires property to deploy natural resources and means of production for social purposes under economic and social reform initiatives. confiscation refers to the state deliberately impounding property without adequate compensation, typically depriving owners of any right to restitution or damages. interference with private property thus includes various asset types and revenue streams, with core property rights differing across jurisdictions. for tangible property, the most direct instances involve u.s. citizens suing iranian state-controlled banks that, despite holding the property, refused to honor checks amid u.s.-iran tensions. although iran argued there was no intent to expropriate, the tribunal emphasized that “the state’s intent is less significant than the effect on the property owner, and the form of interference is less important than its actual impact”. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 127 published by scholink inc. regarding intangible property, the tribunal adjudicated cases where iran had nationalized u.s.-owned shares in iranian companies—such as aig’s 35 % stake in an iranian insurer—without timely compensation, as well as instances where a u.s. oil company purchased shares in a state-owned enterprise but never received delivery . 1.2 principle of actual deprivation these cases largely arose from iran’s social revolution, during which the new government implemented a series of expropriatory measures targeting u.s.-affiliated interests. iran rarely formally nationalized u.s. assets; rather, it assumed control over u.s. government or private assets, which produced effects indistinguishable from direct expropriation. however, unlike direct takings, the tribunal did not deem these state actions—purportedly taken for public interest—to justify prompt, full and effective compensation, and thus it often disregarded treaty-violation claims made by either party. a typical example is chamber two’s case involving itt industrial holdings, inc., wholly owned by sweden’s iko company, which held a 25 % stake in iko iran. in december 1980, the iranian government appointed four board members to iko iran, and shortly thereafter the fifth, displacing five shareholder-elected directors, including those chosen by the claimant. before the claim was resolved, itt argued that this de facto control amounted to interference with its interests and warranted prompt, full and effective compensation. iran responded that the takeover was temporary, and thus did not constitute compensable expropriation. it cited an amendment to the industrial protection and development act, which established a five-member committee to determine final ownership of government-supervised companies. the tribunal found that sweden’s iko had been deprived of management rights and access to financial information regarding iko iran. the tribunal noted that state-appointed officials owed no fiduciary duty to shareholders and managed the company to the detriment of shareholder interests. in a concurring opinion, arbitrator aldrich articulated the appropriate standard for expropriation: “while governmental control over property does not in itself warrant a conclusion that the property has been taken by the government requiring compensation under international law, once events show that an owner has been deprived of fundamental ownership—and such deprivation appears not merely temporary—there is justification for drawing that conclusion. the state’s intent is less important than the effect on the owner, and the form of control or interference is less significant than its real impact.” clearly, the tribunal avoided assessing the legality of state actions, focusing instead on whether actual harm had occurred to determine expropriation and award compensation. chamber two’s adoption of the actual deprivation principle does not afford the host state sufficient liberty to govern its economy in pursuit of development. though the standard may reassure investors by extending protection, it is unlikely to reduce the frequency of coercive state measures—a concern commonly referred to as the “police powers doctrine.” when a host state’s sovereign acts are interfered with, this can cause tension with investors (li,  z. r., 2021, pp. 19-39). accordingly, chamber two prioritized the investor’s actual loss over whether the state intentionally deprived property. the tribunal’s reliance on the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 128 published by scholink inc. actual-deprivation standard aligns with its goal of encouraging investment. if host states were certain their actions—even those taken for public interest—would trigger compensation, the international investment climate could suffer significantly. 2. legal basis and standards of expropriation 2.1 legal basis and fundamental standards renowned european scholar christoph schroeder states in an article on expropriation that: “under international law, expropriation is not per se unlawful. undoubtedly, a state has the right and authority in principle to expropriate the property of nationals and foreigners. however, lawful expropriation of foreign-owned property is subject to certain conditions—commonly referred to as public purpose, non-discrimination, due process of law, and prompt, adequate and effective compensation.” the legal foundations of expropriation in both domestic and international law converge in requiring that expropriation serve a public purpose, but diverge fundamentally due to domestic legislation being based on sovereign prerogative, whereas international law is premised upon reciprocal negotiation between states (rudolf, d., 2002). although the 1968 establishment of the iran-u.s. claims tribunal catalyzed interest in indirect expropriation, international conventions on expropriation had already been drafted in 1961. for example, the harvard draft convention on state responsibility for injury to foreigners provides that when there is “unreasonable interference with the use, enjoyment or disposal of property, so as to justify the inference that its owner will be unable to exercise those rights within a reasonable time after the interference began,” foreign private property is deemed expropriated (christoph schreuer. the concept of expropriation under the ect and other investment protection treaties, cl-0272, revised 20 may 2005). a more prominent example is article 1 of the european convention on human rights, which enshrines the principle that everyone has the right to peaceful enjoyment of their possessions, and that no one shall be deprived of those possessions except in the public interest and under conditions provided for by law and by general principles of international law. it adds that such provisions must not impair a state’s right to enforce laws governing property use or to collect taxes or other contributions. from this comparative perspective, the primary justification for expropriation remains public purpose, yet the convention also emphasizes domestic enforcement powers, underscoring that the protection of private property—even for foreign investors—is ultimately premised on respect for state sovereignty. of course, these are early treaty provisions. since the 1980s, the proliferation of indirect expropriation cases—arising from diverse government regulations that adversely affect foreign investors—has shifted the central conflict to be between the protection of private property and the principle of sovereignty. in principle, the principal distinction between direct and indirect expropriation is that in the latter the investor retains legal title to the investment, whereas in direct expropriation the title itself is lost. nevertheless, in certain circumstances—especially in cases of gradual or creeping expropriation—the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 129 published by scholink inc. boundary between direct and indirect expropriation is not always clear. 2.2 principle of public purpose the principle of public purpose has often been sidelined in discussions of indirect expropriation, although host states frequently invoke it—arguing that when state action is justified by public purpose, foreign investors must bear the resultant loss risk, and thus compensation becomes contentious. nafta’s expropriation provision illustrates this: “no party may directly or indirectly nationalize or expropriate an investment of an investor of another party in its territory or take a measure tantamount to nationalization or expropriation (‘expropriation’), except: (a) for a public purpose; (b) on a non-discriminatory basis; (c) in accordance with due process of law; and (d) on payment of compensation.” does indirect expropriation require consideration of public purpose? because invoking public purpose may immunize state measures from illegality under expropriation provisions, the issue becomes one of compensation rather than unlawfulness. under international investment law principles and practice, foreign investment inherently carries the risk of host-state regulatory or political shifts—precisely the driver behind most indirect expropriation claims. for example, in a 1998 dispute by a u.s. environmental services company against mexico, mexico declared an environmental emergency and without adequate compensation designated the area as an ecological reserve, halting the company’s project. the tribunal found this constituted indirect expropriation and proceeded without any reference to public purpose (reisman, w. m., &  sloane, r. d., 2004). similarly, the iran-u.s. claims tribunal sidestepped iran’s claimed intent and, like the mexico tribunal, did not exempt measures taken for public purpose from liability; in both contexts, the result was state liability for compensation. these parallel findings suggest that whether public purpose applies is not a factor in determining the existence of indirect expropriation. once a measure is found to equate to direct expropriation, the focus shifts to whether it meets public purpose—a question tribunals typically avoid, as it treads on core sovereign prerogatives. consequently, international investment tribunals have consistently prioritized the effects-based approach. if one were to accept that the iran-u.s. claims tribunal overlooked public purpose because of iran’s exceptional political situation, then in more stable jurisdictions, allowing public purpose to excuse investor harm would place states entirely on the defensive. while some modern instruments incorporate a “proportionality test”—emphasizing state intent—such tests, in essence, restrict sovereign discretion and ultimately increase state risk under bits (rosalyn, h., 1982). indeed, many bits contain vague or no provisions on indirect expropriation. one notable exception is the u.s.-uruguay bit (annex b, article 4), which clearly defines indirect expropriation: “indirect expropriation means a situation where an action or series of actions of a party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.” moreover, it provides that: “except in rare circumstances, non-discriminatory regulatory actions designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 130 published by scholink inc. constitute indirect expropriation.” this clause transforms public purpose from a defense to an affirmative exclusion—a more balanced model. however, because it grants interpretative authority to the host state regarding public welfare objectives, the investor may remain disadvantaged (wen, l., 2022, pp. 73-90). if “do not constitute” were replaced by a requirement for state-investor consultation, the u.s.-uruguay model would embody a more mutually equitable approach—legally precise and practically cooperative. therefore, the critical issue in bits concerning indirect expropriation lies in how both parties refine the expropriation clause. merely acknowledging a state’s sovereign right to regulate is insufficient for defining indirect expropriation. regulation is not prohibited, but when it causes substantial harm, compensation must be provided. similarly, a presumption favoring certain regulatory actions is not enough; it must be explicitly stated that some measures—such as police powers measures—regardless of their adverse impact on investment, do not constitute expropriation. clear definitions excluding police powers measures would offer greater legal certainty for host states and foreign investors. accordingly, drafting a clause that defines standards for police powers measures would clarify the concept. developing a non-exhaustive list of factors for tribunals to consider in determining indirect expropriation represents a constructive step—but it should avoid vague references to an investor’s “legitimate or reasonable expectations,” and instead specify what constitutes the “nature” of a measure. where potentially irreconcilable standards arise—such as between economic impact and the nature of the measure—implementing a hierarchical test would be advantageous (dan, w. h., & zhang, s., 2008, pp. 1-15, p. 21). ideally, a comprehensive renegotiation of existing bits should incorporate these new clarifications and exclusionary provisions to enhance legal certainty and balance between regulatory prerogatives and investment protection. 2.3 nafta case analysis: metalclad v. mexico and tecmed v. mexico under nafta jurisprudence, metalclad corp. v. mexico (2000) and tecnicas medioambientales tecmed s.a. v. mexico (2003) provide landmark guidance on the contours of indirect expropriation. in metalclad, a u.s. waste-management firm secured federal approval to build a hazardous-waste landfill in guadalcázar, yet municipal authorities withheld the local construction permit and reclassified the site under an ecological decree. this covert interference, the tribunal held, effectively deprived the investor of both operational use and expected economic returns. relying on nafta article 1110’s “economic impact test”, the icsid tribunal concluded that such non-formal regulatory measures could indeed amount to expropriation and awarded approximately usd 16.7 million in damages. the tribunal emphasized that legal title or formal transfer was not necessary where the economic substance of state action substantially interfered with the investment. similarly, in tecmed, the tribunal found that mexico’s refusal to renew a landfill permit permanently stripped away the economic value of the investor’s facility. while acknowledging the regulatory nature of the measure, the tribunal introduced a proportionality analysis, critiquing the state’s actions for www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 131 published by scholink inc. lacking transparency, proportionality, and respect for the investor’s legitimate expectations. as a result, the measure was deemed expropriatory, reinforcing that police-powers defenses must be scrutinized through proportionality and fairness lenses. these cases collectively affirm that indirect expropriation hinges on economic substance rather than formal acts; that investors’ legitimate expectations—especially those grounded in regulatory assurances—must be protected; and that invoking public‑interest regulation does not guarantee immunity when proportionality or transparency is absent. they complement the jurisprudence of the iran-u.s. claims tribunal and the treaty-based analysis, underscoring the need for investment treaties to clearly delineate between permissible regulation and compensable expropriation. this suggests a treaty design that includes explicit carve‑ outs for bona fide regulatory measures, introduces a proportionality framework, and mandates pre‑ regulatory consultation mechanisms, all of which balance state regulatory autonomy with investor protection. 2.4 challenges in determining state action the party responsible for expropriation is always a state. aside from the public purpose criterion, determining indirect expropriation under international law is inherently challenging because it requires distinguishing between legitimate regulatory action and expropriatory conduct. the former, lawful under international law as a manifestation of sovereign authority, is known as police powers, while the latter—though its legality may be set aside—triggers the state’s obligation to compensate. whether and how much compensation is owed thus becomes the central point of dispute. the iran-united states claims tribunal, favoring an effects-based test, has applied the police powers doctrine—though mostly in investor-state cases rather than inter-state disputes. a notable example involves an iranian claimant whose liquor license and restaurant were seized by the u.s. internal revenue service to cover unpaid employment withholding taxes exceeding usd 70,000. the claimant sought compensation for losses resulting from forced asset disposals. the tribunal observed that the irs admitted seizing both the premises and the license to recover legitimate tax debts, and stressed that a state should not be liable for economic loss caused by lawful, non-discriminatory tax measures or other actions falling within recognized police powers (james, d. w., 2014). the claimant presented no evidence that the seizure targeted him because of his nationality or that it was intended to permanently strip him of his assets. the tribunal dismissed the claim, noting that the claimant failed to demonstrate that the irs acted beyond its authority or outside the scope of legitimate tax enforcement. amid tense u.s.-iran relations, the same claimant later alleged the u.s. failed to protect his property in turlock, california, from acts of anti-iranian violence. the tribunal dismissed this claim as well, stating that a state cannot guarantee the safety of foreign nationals or their property. it further held that state liability for police or fire protection arises only if protection falls below minimal reasonable standards, considering resources available. the claimant failed to show that local authorities did not meet these standards. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 132 published by scholink inc. thus, the tribunal articulated a robust application of the police powers doctrine: states are not responsible under international law for economic loss arising from bona fide exercise of police powers. while benign regulation under police powers is more controllable than policy reforms or economic restructuring, the term “regulation” remains broad. if domestic legislation does not clarify the applicability of regulatory measures to foreign investors, differentiating between regulation and expropriation remains difficult. for example, china’s 《foreign investment law》 provides detailed regulatory mechanisms and mandates prior consultation before policy adjustments, without invoking expropriation except under narrow public purpose exceptions, aligning with international practice. such legislative clarity helps avoid confusion between regulatory action and expropriation beyond relying solely on arbitration or state-to-state dialogue. 3. risks of calvoism 3.1 overview of calvoism the doctrine of diplomatic protection originated from relations between latin america and the united states. in other regions, such as africa and asia, extraterritorial jurisdiction was also used to uphold foreign nationals’ rights—for example, ottoman-era capitulations in which certain european nationals benefited, or sudan’s allowance for foreigners to be subject to their own laws. however, diplomatic protection as a practice was not exclusive to latin america and the u.s.; it was later adopted by western european states as well (fabian, t., 2018, pp. 778-789). the first articulation of diplomatic protection in the modern sense emerged in argentina through jurist carlos calvo and thus became known as the “calvo doctrine.” he introduced the standard of national treatment, grounded in the principles of non-intervention and sovereign equality, reinforcing the principle of non-discrimination. calvo did not reject international standards outright; rather, he contended that both host-state nationals and foreign nationals should receive protection under the host-state’s domestic law. in his treatise derecho internacional teórico y práctico de europa y américa (1868), calvo argued that rules governing jurisdiction over foreign nationals and claims for compensation should be applied equally to all nations, regardless of power. he further asserted that foreign property holders in latin american countries should first seek remedies in local courts before resorting to diplomatic protection or armed intervention. this prevents powerful states from exploiting weaker nations—a stance solidified in the famous calvo doctrine: jurisdiction lies with the state where the investment is located, and no diplomatic or armed intervention should occur before local remedies are exhausted. professor sonaraja of the national university of singapore summarizes calvoism thus: “foreign investment and the legal claims to protect it were viewed as tools through which the united states could maintain economic dominance in the region. the notion of supranational norms protecting foreign investors outraged latin american jurists, who believed that protection should be found only www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 133 published by scholink inc. within the host-state’s domestic law.” calvoism can be distilled into three core tenets: (1) rejection of supranational standards of treatment, (2) exclusive domestic jurisdiction, and (3) denial of diplomatic protection. this doctrine emerged from the early-stage tensions between developed (capital-exporting) and developing (capital-importing) countries in the international investment legal regime. despite the leverage of developed nations—through treaty negotiations or exportation of privatized property ideologies—the structural imbalance meant that developing countries remained vulnerable to expropriation without adequate recourse. as globalization and assertions of sovereign control over natural resources intensified, calvoism gradually waned. 3.2 impact of calvoism on the international legal order nterpreting calvoism as implying that a host state fully abandons recourse to international protection for acts constituting international wrongdoing, or that a foreigner’s injury is directly linked to their nationality, is challenging to reconcile with international law. if one accepts that rights protected under diplomatic protection are those of the individual—rather than those of the protecting state—then objections against the “calvo clause” grounded in general international law lose much of their force. professor james d. wilets of nova southeastern university describes international law as functioning through a process of transnational legal harmonization (tlh). although primarily descriptive, this concept frames globalization legally: cross-border legal harmonization involves coordinating rules rather than applying international norms through hierarchical supranational bodies. tlh includes standardized rules, definitions, or terms—developed by entities such as the icc or unidroit—that business actors worldwide integrate into contracts, rendering them legally binding in transnational transactions. illustrative examples include incoterms 2000 in international trade contracts and the ucp 600 for documentary credits. moreover, the icc has facilitated harmonization in areas like e-commerce, telecom, finance, insurance, tax, trade, investment, transport, anti-bribery, arbitration, and customs. despite these harmonization efforts, indirect expropriation disputes between investors and host states reveal limitations. international organization agreements and conventions—though not issued by a central authority—are driven by collective will; however, bilateral investment treaties (bits), which define investor eligibility and dispute resolution mechanisms, remain the regime’s main operative instruments. bits are fundamental for investors insofar as they mitigate market access barriers in host states, enabling better market penetration and profit realization (hallam, d., 2011, pp. 91-98). once an investor enters another state’s sovereign territory, issues of fair treatment inevitably arise—this is a principal driver of indirect expropriation claims under investment arbitration. bits protect investors’ property and prescribe risk and treatment clauses; crafting these clauses is often a matter of up to investor states and host states, making them contractual and based on the parties’ subjective intentions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 134 published by scholink inc. investment involves not only capital and goods, but also cultural and social implications. critics of globalization argue that its socio-cultural impact threatens stability and local cultures, particularly in developing countries. conversely, when developed nations perceive that the spread of private property norms impinges upon their sovereignty beyond tolerable limits, they may impose barriers—representing a backlash against globalization. while globalization has altered the sovereign order, it has not fully eroded it. in the investment law domain, the tension between sovereignty and private property protection means that if calvoism—or similar sovereignty-first legal orders—dominates, then transnational legal harmonization and globally coordinated rule-making will face significant obstacles. this is especially true when developed nations, such as the u.s., no longer grant investors equal rights under treatment guarantees. in such an environment, indirect expropriation becomes a frequent issue, undermining the global investment landscape. to address this, states need to incorporate detailed indirect expropriation provisions or robust consultation mechanisms in bits or multilateral agreements (seddigh, h., 2001, pp. 631-684). 4. conclusion the iran-united states claims tribunal, while offering a resolution paradigm for indirect expropriation, also revealed the breadth and complexity of such issues in international investment. the tribunal did not rely solely on the effects-based approach; its incorporation of the police powers doctrine afforded host states some regulatory space. determining whether a state’s action constitutes expropriation hinges on the degree of interference rather than its legal type. many state regulations and taxation measures are legitimate exercises of sovereign authority, yet they can still impact foreign direct investment. currently, the evolution of international investment law revolves around finding a balance between a state’s sovereign regulatory domain and the protection of private property. therefore, aside from sufficient emphasis and clarification in investment treaties, domestic legal frameworks regarding foreign investor treatment play a critical role—providing significant convenience in arbitral proceedings. there are few clear legal rules or customary principles on indirect expropriation; their ambiguity offers little help in resolving issues and undermines predictability. as a result, practice is essential to establish sound bilateral and multilateral investment frameworks. regarding treaty drafting, signatory states should agree on precise definitions of indirect expropriation—particularly concerning widely applied regulatory norms. indeed, it is the lack of a clear definition that allows divergent interpretations. although identifying a fixed definition is difficult given its infinite potential applications, states can redraft provisions to clearly delineate the role and priority of the harmful effects test and other criteria. they may also consider adopting a sovereign grant standard alongside the effects test. whether through eligibility criteria or explicit exceptions, new provisions should be clearer and more effective than www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 135 published by scholink inc. those in recent treaties. ultimately, assessing whether a state measure constitutes indirect expropriation requires balancing the private rights of investors and the sovereign rights of the host state. investors undoubtedly have the right to protect their assets, but states must retain sufficient capacity to safeguard the public interest as guarantors. international law may struggle to provide universally specific rules for indirect expropriation, but it is possible to achieve a more equitable balance between these interests. indeed, international investment law has evolved partly through disputes that affirmed the primacy of private investor rights over a host state’s discretionary regulatory authority. however, as the field continues to develop, it becomes increasingly clear that the law must be rebalanced, now recognizing both the public interest of the host state and the economic rights of investors. references christoph schreuer. the concept of expropriation under the ect and other investment protection treaties, cl-0272, revised 20 may 2005. dan, w. h., & zhang, s. (2008). from “north‑south conflict” to “public-private conflict”: the resurgence of calvoism and new perspectives in international investment law, 2008(04), 1-15, 21. fabian, t. (2018). regulatory or expropriatory? on the implications of the transatlantic trade and investment partnership for german land policy. land use policy, 77, 778-789. https://doi.org/10.1016/j.landusepol.2017.01.015 hallam, d. (2011). international investment in developing country agriculture—issues and challenges. food security, 3(1), 91-98. https://doi.org/10.1007/s12571-010-0104-1 iran-united states claims tribunal, case no. 98 chamber two, harza engineering company v. islamic republic of iran, award no. 19-98-2. james, d. w. (2014). a unified theory of international law, the state, and the individual: transnational legal harmonization in the context of economic and legal globalization. penn law: legal scholarship repository, 2014. li,  z. r. (2021). illegal expropriation and its compensation in international investment law. wuhan university international law review, 5(03), 19-39. maurizio,  b. (2001). the iran‑united states claims tribunal, nafta chapter 11, and the doctrine of indirect expropriation. chicago journal of international law, 2(1), 203-212. reisman, w. m., &  sloane, r. d. (2004). indirect expropriation and its valuation in the bit generation. british yearbook of international law, 115. https://doi.org/10.1093/bybil/74.1.115 rosalyn, h. (1982). the taking of property by the state: recent developments in international law. collected courses of the hague academy of international law, 176, 322. rudolf, d. (2002). indirect expropriation; new developments? new york university environmental law journal, 11, 2002. https://doi.org/10.1016/j.landusepol.2017.01.015 https://doi.org/10.1007/s12571-010-0104-1 https://doi.org/10.1093/bybil/74.1.115 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 136 published by scholink inc. seddigh, h. (2001). what level of host state interference amounts to a taking under contemporary international law? journal of world investment, 2(4), 631-684. https://doi.org/10.1163/221190001x00013 seddigh, h., & aldrich, g.  h. (2017). what constitutes a compensable taking of property? the decisions of the iran‑united states claims tribunal. american journal of international law, 88, 585-609. https://doi.org/10.2307/2204132 wen, l. (2022). regulation of land expropriation in international investment agreements and its latest developments. journal of international economic law, 2022(02), 73-90. https://doi.org/10.1163/221190001x00013 https://doi.org/10.2307/2204132 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 137 original paper the development dilemma and institutional breakthrough of fair use of copyright in the network environment jie jing 1 1 southwest petroleum university, chengdu, sichuan, china received: july 20, 2025 accepted: august 5, 2025 online published: august 7, 2025 doi:10.22158/elp.v8n2p137 url: http://dx.doi.org/10.22158/elp.v8n2p137 abstract as a core mechanism for balancing the exclusive rights of right holders and the public’s need to access knowledge, the fair use system of copyright is facing multiple challenges in the network environment. by analyzing the current status of the system, this study points out the predicaments it is conconfronted with, such as the limitations of the legislative model, the imbalance of interests between right holders and the public, and the ambiguity of the “reasonableness” judgment criteria. to respond to the new requirements of the internet era for interest balance, innovation incentives, and public expression space, it is necessary to improve the system from three aspects: innovation of the legislative model, reconstruction of value concepts, and refinement of judgment criteria. this aims to achieve a balance of interests among right holders, users, and the public, and promote the coordinated development of copyright protection and cultural communication in the network environment. keywords network environment, copyright law, fair use system 1. the value and function of the copyright fair use system 1.1 balance between fairness and efficiency the fair use system embodies the rational concept of fairness and justice, ensuring a fair environment for creative works. by allowing the use of others’ works under specific circumstances, this system also breaks the copyright holders’ exclusive position over knowledge, enabling knowledge to be disseminated and shared on a broader scale (gao, l., 2023, pp. 41-52). it achieves a balance of interests between creators and users, ensuring that everyone can enjoy and use intellectual wealth on a fair basis. the fair use system improves the efficiency of the dissemination and utilization of works. it permits the use of works without the permission of copyright holders or the payment of remuneration under specific conditions, thereby reducing transaction costs, accelerating the speed of information www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 138 published by scholink inc. circulation, contributing to the optimal allocation of social resources, and promoting the development of cultural and scientific undertakings. 1.2 interest coordination and balance the fair use system is a restriction on copyright rights. in traditional concepts, copyright means that the author or right holder has absolute control over their work. however, the fair use system stipulates that in certain circumstances, others can use the work free of charge without the copyright holder’s consent. this essentially limits the scope of copyright exercise, clarifies that non-commercial use of copyrighted works in specific situations does not constitute infringement, thereby providing a legal safe haven for the public to use these works and effectively reducing the risk of legal disputes arising from unintentional infringement (wu, h. d., 1996, pp. 30-38). although the fair use system imposes certain restrictions on the rights of copyright holders, such restrictions are reasonable and necessary. they prevent copyright holders from excessive monopoly and abuse of their works, and promote the healthy development of the cultural industry. 2. changes in the impact of the fair use system in the network environment 2.1 expansion of the scope of copyright holders’ rights the ongoing expansion of copyright has sparked concerns about the public interest, but excessive expansion may threaten the openness and free flow of information, increasing the likelihood of anti-competitive behavior. when copyright holders impose excessive protection on works, they may limit the public’s access to and use of such works, thereby hindering the dissemination and sharing of information. the openness and free flow of information are crucial for maintaining the balance of the information ecosystem. however, the excessive expansion of copyright may disrupt this balance, leading to unequal distribution of information resources and excessive commercialization, thereby exacerbating information asymmetry and the digital divide. additionally, the excessive expansion of copyright may hinder market competition. when copyright holders overly control the market, the entry and innovation of other competitors may be restricted, undermining the market competition mechanism. ultimately, the excessive expansion of copyright may harm consumer interests. when copyright holders overly control the market, consumers may be unable to access better products and services, thereby increasing their consumption costs and risks (wang, x. j., 2016, pp. 14-17, p. 26). therefore, in the expansion of copyright, special attention should be paid to maintaining a balance between the interests of authors and other copyright holders and the public interest. while the expansion of copyright protection has strengthened the protection of works, it has also intensified the conflict of interests between rights holders and users: rights holders seek to strengthen control through technology to curb infringement, while the public expects more convenient access to information. this contradiction may hinder the dissemination of information, disrupt market competition mechanisms, and harm consumer rights. therefore, it is necessary to achieve a dynamic balance between copyright protection and the public interest by improving legal systems, clarifying www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 139 published by scholink inc. rights boundaries, strengthening regulatory enforcement, and promoting technological innovation. 2.2 limited scope of application of fair use with the rapid advancement of the internet and digital technology, the ways in which works are disseminated and utilized have undergone profound transformations. however, the high degree of openness and anonymity of the internet makes it challenging to regulate the use and dissemination of works. users can easily access, copy, disseminate, and adapt works through various devices, and this convenience has, to some extent, undermined the traditional restrictions imposed by copyright law on the use of works. in response to the weakening of control over works, copyright holders have begun to adopt measures such as digital watermarking and encryption technology to prevent unauthorized copying and dissemination, thereby protecting their legitimate rights and interests. while these technical measures not only strengthen copyright holders’ control over works but also generate additional economic returns for them, such technical protection methods may also overly restrict the scope of fair use by the public, thereby impacting the public’s freedom to access information and knowledge (lai, x. p., & xu, y., 2022, pp. 185-198). under chinese current legal framework, the copyright law explicitly lists the circumstances under which fair use is permitted (zhang, y. t., 2010, pp. 107-109). although these provisions are specific and clear, their limitations have become increasingly apparent in the rapidly evolving and complex environment of the internet. relying solely on these explicit circumstances to determine whether online behavior constitutes fair use makes it difficult to adapt to new situations and issues that arise, thereby limiting the scope of fair use. in 2020, the copyright law underwent its third revision, introducing a catch-all provision for “other circumstances specified by laws and administrative regulations” to enhance flexibility. however, due to the limited specific provisions in laws and administrative regulations regarding such circumstances, this catch-all provision has not substantively expanded the scope of fair use. 2.3 the boundary between reasonable use and infringement is more ambiguous in the digital age, the boundaries between fair use and infringement have become increasingly blurred due to technological advancements, leading to diverse and flexible judicial practices. while information technology has transformed the ways in which works are disseminated and utilized, posing challenges to the principle of fair use, courts may issue non-compensation rulings in infringement cases based on a balancing of interests, thereby safeguarding the rights of copyright holders while avoiding excessive punishment. this reflects the legal system’s wisdom in balancing the protection of private rights with the promotion of public interest. the core value of copyright law lies not only in protecting the individual rights of creators to stimulate creativity but also in promoting social and cultural prosperity and progress. it must respect authors’ rights while also considering the overall well-being of society, ensuring the reasonable flow of knowledge and information, and providing sustained momentum for cultural diversity and social innovation (chen, j., 2019, pp. 50-64, p. 207). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 140 published by scholink inc. in the internet environment, fundamental changes in the ways works are obtained and used have blurred the line between fair use and infringement. the rapid dissemination of digital works has reduced the cost of obtaining them, making it easy for the public to access and use them. to strengthen control, copyright owners often use technical measures to restrict access and require payment for legal rights of use. in this context, the public may circumvent technical measures to use works for free. such behavior may appear to be infringement on the surface, but in essence, it is no different from traditional fair use and does not cause additional harm to rights holders. 2.3.1 blurred boundaries of private copying in the online environment, private copying has become extremely common and difficult to regulate. users can easily search for and download the resources they need online, often accompanied by statements such as “for personal learning, research, and exchange purposes only.” however, the boundaries of private copying are not clear-cut and may gradually evolve into large-scale unauthorized distribution, thereby harming the interests of copyright holders. additionally, the distinction between private and commercial copying has become blurred. some activities that were originally intended for private use may, in the online environment, be transformed into commercial activities through sharing or uploading, thereby generating economic benefits. 2.3.2 temporary duplication causes controversy during web browsing or caching processes, computers automatically generate temporary copies of works, which are referred to as temporary reproductions. there is no consensus among academics and judicial practice regarding whether temporary reproductions constitute infringing acts. the complexity of this issue primarily stems from the nature, purpose, and impact of temporary reproductions on the rights of copyright holders. in academic circles, some scholars argue that temporary reproductions should not be considered infringing acts due to their technical neutrality and non-commercial nature. temporary copies are often an unavoidable part of technical processes. when artificial intelligence uses works as training data, it does indeed generate copies of the works. however, not all of these copies are permanently stored, and thus do not constitute legally significant “copies” under copyright law (hua, j., 2019, pp. 29-39). however, these copies often exist solely as intermediate products in the processing phase, with the purpose not being to preserve or disseminate the works long-term, but rather to enhance the model’s performance. once training is complete, these temporary copies may be discarded or overwritten and no longer retained in the system. this process does not involve the long-term preservation or dissemination of the works. characterizing these technical, unintentional copying actions as infringement could hinder the normal development and application of technology. furthermore, many temporary copying actions lack commercial intent and are instead performed by users for personal learning, research, or appreciation purposes. in such cases, classifying temporary copying as infringement may be overly stringent. however, some scholars hold opposing views, arguing that even temporary copying may pose a potential threat to the interests of copyright holders and should therefore be subject to copyright law regulations. this controversy further blurs the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 141 published by scholink inc. boundaries between fair use and infringement. 2.3.3 technological advances blur boundaries the development of internet technology has opened up new possibilities for the dissemination of works, but it has also blurred the lines between fair use and infringement. the application of technologies such as deep learning and artificial intelligence has made it easier to automatically create, adapt, and disseminate works. these technologies can generate new works based on large amounts of data and algorithms, but in the process of creation, they may draw heavily on the content or style of existing works. if such works are created without the permission of the original copyright holder, they may constitute infringement. the extent to which such automatic creation and adaptation constitutes fair use versus infringement has become an urgent issue requiring resolution. additionally, certain technical tools such as vpns and cloud storage have facilitated the unauthorized dissemination of works, further blurring the lines between fair use and infringement. 3. review of issues related to the existence of the fair use system 3.1 the rational use of legislative models has limitations the fair use system plays a crucial role in copyright law. on the one hand, by reasonably defining the boundaries of use, this legislative model ensures the free flow of knowledge and information, providing the public with opportunities to access, learn from, and utilize existing works, thereby promoting the inheritance and development of culture. on the other hand, the fair use principle also provides creators with the necessary creative space and sources of inspiration, allowing them to legally quote, draw from, or comment on others’ works while respecting the original author’s rights, thereby stimulating creative enthusiasm and innovative vitality. however, the fair use legislative model currently faces a series of challenges, particularly the tension between the certainty and adaptability of legal rules, as well as issues related to the interaction between legislation and judicial practice (liu, s. l., & ding, y. c., 2024, pp. 61-65). article 24 of china’s copyright law adopts an explicit enumeration legislative model, clearly specifying which behaviors constitute fair use. the advantage of this approach lies in its clarity and guidance, but its drawback is that it cannot cover all potential fair use scenarios. with the emergence of new technologies and new forms of works, and the continuous expansion of the subject matter and forms of copyright, existing legal provisions may no longer apply, leading to legal gaps in practice. in contrast, the open-ended legislative model, particularly the “fair use” principle, demonstrates high flexibility. this principle permits the use of copyrighted works without the copyright holder’s permission under specific conditions, aiming to promote the widespread dissemination of knowledge and innovative development. this principle skillfully balances the protection of copyright holders’ rights with the public’s legitimate need for use. by establishing reasonable terms of use, it ensures that the public can fully utilize copyrighted works while respecting copyright, while also preserving necessary rights protection for copyright holders. however, due to the relative ambiguity of its standards, this may lead to unpredictable outcomes in judgments, increasing the complexity of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 142 published by scholink inc. judicial rulings. secondly, there is the ambiguity of the four criteria for consideration. the determination of fair use is typically based on four criteria: the purpose and nature of the use, the nature of the copyrighted work, the quantity and substantiality of the portion used, and the effect of the use on the potential market or value of the copyrighted work. however, these criteria themselves possess a certain degree of ambiguity. this ambiguity may result in unpredictable outcomes, increased complexity in judicial adjudication, and uncertainty in the application of the law. under an enumerative legislative framework, while fair use scenarios are specifically defined, determining whether a particular act constitutes fair use still requires judges to exercise discretion based on the specific circumstances. especially in the online environment, where the ways and contexts of work use are extremely diverse, this poses challenges for judges when exercising discretion (wang, h. y., 2013, pp. 187-189). 3.2 imbalance of interests between the general public and copyright holders with the rapid development of the internet, the role of information network dissemination rights in copyright law has become increasingly prominent, providing strong legal support for the protection of copyright holders’ rights in cyberspace. this change has undoubtedly enhanced copyright holders’ control over the online dissemination of their works, but it has also raised an issue that cannot be ignored: the public’s reasonable use of works has been inadvertently restricted. while technical protection measures have significantly improved the effectiveness of copyright protection, they have also inevitably created obstacles for the public’s reasonable access to and use of works. while the public enjoys the convenience of the internet, they find that their right to fair use has been weakened to some extent, exacerbating the imbalance in the balance of interests (sun, s., 2016, pp. 62-65). more complexly, driven by commercial interests, some copyright holders tend to adopt stricter protective measures to maximize their economic interests. this trend toward excessive protection not only restricts the public’s fair use rights but may also hinder the free flow of knowledge and cultural exchange, thereby adversely affecting societal innovation and development. 3.3 the criteria for determining “reasonableness” are being challenged chinese current legal system tends toward a rule-based legislative model, which is known for its clarity but also exhibits certain closed characteristics. in judicial practice, when faced with novel or complex situations not explicitly covered by legal provisions, judges’ differing interpretations of the “fair use” principle often lead to inconsistent rulings in similar cases, which undoubtedly poses a challenge to the uniformity of the rule of law and the authority of the law. to address this challenge, judges may refer to internationally recognized standards such as the “four elements of fair use” and the “three-step test” as supplementary criteria during the adjudication process. however, since these standards have not been explicitly codified in china’s legal system, such practices by judges may raise questions about “judicial lawmaking,” thereby undermining the authority and stability of the law. even if judges can make fair rulings based on these non-statutory standards and resolve disputes in specific cases, since china’s legal system is a codified legal system rather than a common law system, these case rulings www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 143 published by scholink inc. can only serve as typical cases for reference and learning, but cannot directly serve as legal basis for subsequent similar cases (wang, g. j., 2024, pp. 94-97). 4. recommendations for improving the fair use system for copyright in the network environment 4.1 improving the legislative model for the reasonable use of copyright in the network environment chinese current copyright legal framework is primarily rooted in a rule-based model. however, with the rapid rise of internet technology, the limitations of this legislative approach have become increasingly apparent. its inherent certainty and closed-framework structure struggle to keep pace with the ever-changing online environment and the constant emergence of new copyright issues. traditional rule-based approaches struggle to swiftly capture and regulate the diverse and rapidly evolving forms of copyright usage in the digital environment, leading to some innovative yet potentially controversial usage practices temporarily operating outside legal oversight. more critically, this lag may inadvertently provide space for malicious actors to evade legal regulations and operate in gray areas, thereby harming the legitimate rights of copyright holders and disrupting fair market competition. to overcome this dilemma and enhance the adaptability and flexibility of copyright law, it may be worthwhile to consider adopting a legislative model that combines factorism with rule-based approaches. this hybrid model retains the specificity and clarity of rule-based approaches, providing clear guidance for judicial practice, while incorporating the flexibility of factor-based approaches, granting judges the discretion to apply general principles when faced with new circumstances. in this way, the law can swiftly adapt to the challenges posed by technological advancements while maintaining a reasonable balance between protecting the rights of copyright holders and the public’s need for access to information. while drawing on the advanced experiences of other countries, we must adhere to our domestic stance, closely aligning the fair use system with china’s legal framework, deep cultural traditions, and current socio-economic development trends. this ensures that the system aligns with international trends while remaining deeply rooted in china’s actual national conditions (sun, s., 2020, pp. 21-29). 4.2 adhering to the value concept of balancing interests in the digital environment, the continuous emergence of new technologies and business models necessitates a re-examination and adjustment of the fair use system, while upholding the principle of balancing interests. this principle requires us to strike a balance in legislation and judicial practice: on one hand, we must fully respect and protect the legitimate rights and interests of copyright holders, stimulate their creative enthusiasm, and promote cultural prosperity; on the other hand, we must also take into account the reasonable needs of the general public for access to information and knowledge sharing, avoiding excessive restrictions on information flow caused by copyright protection that could hinder social progress. improving the fair use system requires us to deeply understand the legislative purpose of copyright law, which is to seek a reasonable balance between individual rights and public www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 144 published by scholink inc. interests (liu, n., & zhao, w. p., 2016, pp. 11-15). in the online environment, the widespread adoption of internet technology has significantly expanded the speed and scope of work dissemination, providing the public with unprecedented convenience in accessing and using works. on the other hand, we must also be vigilant, as the increasing prevalence of infringement activities poses an unprecedented threat to the legitimate rights and interests of copyright holders. therefore, the key to improving the fair use system lies in balancing the public’s reasonable needs for information access and knowledge sharing with providing adequate legal protection for copyright holders to prevent the illegal use of their works. it may be worthwhile to consider introducing more flexible and diverse fair use standards to accommodate the diversity and complexity of work usage in the online environment. at the same time, we can also strengthen the application of technical measures to protect the legitimate rights and interests of copyright holders through technical means. 4.3 clearly define the criteria for determining fair use in the online environment china amended article 24 of the copyright law in 2020, adding the following wording at the beginning of the first paragraph: “such acts shall not impair the normal exploitation of the work or unreasonably prejudice the legitimate rights and interests of the copyright owner.” this amendment aligns with the three-step test standard stipulated in international conventions such as the berne convention. however, regarding the specific application of the three-step test standard, there is no unified standard for its specific connotation and application logic, and practical experience remains insufficient. this situation undoubtedly poses numerous challenges for judicial practice (wang, y. h., 2021, pp. 119-121). to fill this legal gap and promote a new balance between copyright protection and public interest, we urgently need to establish a scientific and reasonable standard for assessing “reasonableness.” this standard should comprehensively consider multiple factors, including not only the “four elements” but also whether it infringes upon the author’s moral rights, etc. when evaluating the legitimacy of public use of works, we must approach it from both individual and societal dimensions. from an individual perspective, the use must be lawful and made in good faith; from a societal perspective, it should be assessed whether it contributes to stimulating creative vitality and promoting social progress. although the fair use principle typically applies to published works, given the principle of automatic copyright protection, the use of unpublished works should not be categorically excluded but should be carefully evaluated, with strict definitions of the conditions, content, and purpose of such use. when assessing the impact of usage behavior on the market value of a work, the consideration of objective losses is particularly important. this requires a comprehensive analysis of the work’s market positioning, potential value depreciation, the actual benefits obtained by the user, and the competitive nature of the usage behavior in the market. additionally, while fair use primarily focuses on copyright property rights, the protection of copyright moral rights should not be overlooked. in certain cases, even if the usage behavior formally meets the requirements of fair use, it may still constitute improper conduct due to infringement of the author’s moral rights, such as privacy rights or reputation rights (yu, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 145 published by scholink inc. y., 2007). therefore, when establishing and improving the fair use system, we must ensure that the public’s reasonable needs are met while also fully respecting and protecting the legitimate rights and interests of copyright holders, particularly in terms of moral rights. only in this way can we establish a fair and efficient copyright legal environment that promotes cultural prosperity and innovation. 5. conclusion in the face of the digital and information technology revolution, the fair use doctrine stands as the legal cornerstone balancing the exclusive rights of copyright holders with the reasonable needs of the general public, and its importance has become increasingly evident. however, as the online environment continues to evolve at an unprecedented pace, the applicability and effectiveness of the traditional fair use doctrine are being severely tested. whether it can effectively address new types of copyright disputes has become an urgent issue requiring further exploration. against this backdrop, this paper explores the construction of the fair use system in the online environment, proposing the improvement of the legislative model for fair use of copyright in the online environment, adhering to the value concept of balancing interests, and clearly defining the criteria for determining fair use in the online environment. the aim is to reduce unnecessary copyright disputes, further stimulate the enthusiasm and creativity of creators, promote the vigorous development of cultural innovation and exchange, and drive the rapid prosperity of human civilization. references chen, j. (2019). an analysis of the dynamic nature of intellectual property rights: based on intellectual property usage rules. journal of china university of political science and law, 2019(05), 50-64, 207. gao, l. (2023). a review and reconstruction of the fair use system for copyright in the digital age: a theoretical analysis based on technological neutrality. journal of soochow university (law edition), 10(03), 41-52. hua, j. (2019). the dilemma and solutions of applying the fair use system to artificial intelligence creation. electronic intellectual property, 2019(04), 29-39. lai, x. p., & xu, y. (2022). conflicts and coordination between technical measures and fair use: a reexamination of articles 49 and 50 of the copyright law. chinese journal of applied law, 2022(03), 185-198. liu, n., & zhao, w. p. (2016). on the improvement of china’s fair use system for copyright in the internet environment. journal of taiyuan university of technology (social sciences edition), 34(01), 11-15. liu, s. l., & ding, y. c. (2024). legislative expansion and judicial contraction of criminal law protection for online copyright: a case study of the eleventh amendment to the criminal law. journal of harbin university, 45(07), 61-65. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 146 published by scholink inc. sun, s. (2016). on the judicial application of the substantial similarity rule in copyright law: a perspective from the qiong yao v. yu zheng case. china copyright, 2016(01), 62-65. sun, s. (2020). the local pathway for the transformation of copyright use. electronic intellectual property rights, 2020(02), 21-29. wang, g. j. (2024). a study on the fair use system of copyright in the context of the internet. journal of hubei university of economics (humanities and social sciences edition), 21(02), 94-97. wang, h. y. (2013). on the reconstruction of the legislative model of the fair use system for works: a critique of the two draft amendments to china’s copyright law. theory and reform, 2013(04), 187-189. wang, x. j. (2016). conflicts and improvements in the fair use system under digital copyright. journal of datong university (social sciences edition), 30(06), 14-17, 26. wang, y. h. (2021). theoretical research and local adaptation of the “three-step test”—against the background of the third amendment to the copyright law. communication and copyright, 2021(09), 119-121. wu, h. d. (1996). a legal value analysis of the fair use system. legal science. journal of northwest university of political science and law, 1996(03), 30-38. yu, y. (2007). research on the system of fair use of copyright. shandong university. zhang, y. t. (2010). reflections on the fair use system for online copyright. journal of hefei university (social sciences edition), 27(04), 107-109. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 1 original paper ―essential security interest‖: how did wto interpret? ziyi wang 1* & zihan qin 1 1 school of law, shanghai university of international business and economics, shanghai, china * corresponding author: ziyi wang received: july 1, 2024 accepted: july 10, 2024 online published: july 11, 2024 doi:10.22158/elp.v7n2p1 url: http://dx.doi.org/10.22158/elp.v7n2p1 abstract the world is facing a new security crisis—with the development of technology, national interest has been expanded from military to oceans, polar regions, outer space, and networks, as well as to new fields such as artificial intelligence and big data. and there will be a great possibility for states to invoke the “security exception” clause to exempt themselves from wto obligations. following the interpretation approach of the wto panel, there is no technical barrier to giving an expansive interpretation of the esi. however, the panel should cautiously examine it in case of abuse. keywords essential security interest, wto law, jurisprudence of wto, treaty interpretation 1. introduction till now, the russo-ukrainian war lasted for more than two years. meanwhile, global security risks and challenges have also increased, and the whole world is facing a new security crisis—interactions and even competitive actions among countries have expanded from traditional land borders to new borders such as oceans, polar regions, outer space, and networks, as well as to new fields such as artificial intelligence and big data. in this regard, there is a great possibility that states will invoke the ―security exception‖ clause to exempt themselves from wto obligations. thus, there is a desperate need to clarify the scope of the ―essential security interest‖ (esi), especially under the wto regime. 2. from tradition to expansion 2.1 the traditional range of esi the ―security exception‖ of article 21 of gatt 1947, originated from a u.s. proposal during the ito preparatory process. the u.s. proposed to add a provision to chapter 4 of the ito charter, entitled ―commercial policy‖, to make it clear that nothing in that chapter shall be construed as preventing a member from adopting or enforcing trade-restrictive measures for a particular purpose, such as the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 2 published by scholink inc. protection of essential security interests. judging from the negotiating history, the proposal raised concerns among other negotiating parties that the security exception, if abused to serve economic purposes, would become a huge loophole in the multilateral trading system. during the 1947 ito preparatory commission meeting in geneva, the netherlands questioned the ambiguity of ―esi‖ and its possible abuse. the u.s. delegation responded ―we thought it well to draft provisions which would take care of really essential security interests and, at the same time, so far as we could, to limit the exceptions and to adopt that protection for maintaining industries under every conceivable circumstance‖. the u.s. did not specify what constituted an ―esi‖, however, the u.s. indicated that it envisioned the situation in 1941, prior to the entry of the us into world war ii. at that time, the war in europe lasted two years, the u.s. entry into the war was imminent, and the u.s. needed to protect its interests by taking measures prohibited by the ito charter, which tightly controlled imports and exports. thus, when the u.s. proposed to incorporate the security exception, it was clear that its intentional meaning of ―esi‖ is national defense and military security interests. in subsequent negotiations, the u.s. pressured other negotiating parties to accept the security exception as a precondition for ratifying the ito charter, resulting in the emergence of a broad and vague ―esi‖. understanding ―esi‖ as traditional defense and military security is also consistent with the state practice in the wto system, as evidenced by the reasons why states invoke security exceptions in wto disputes. for instance, in 1949, the u.s. imposed stringent export controls on eastern european countries, including czechoslovakia, because of the negative impact on its security of the continuous expansion of the soviet union after world war ii; in 1982, the european community embargoed argentina because of the armed occupation of the falkland islands; in 1996, the u.s. passed the cuban liberty and democratic solidarity act, which provided that united states citizens who were dispossessed of their property during the cuban revolution may seek compensation from individuals and companies that had commercial relations with that property; in 2000, nicaragua imposed a trade embargo against honduras and colombia, on the grounds that the agreement reached by honduras and colombia on the delimitation of their territorial waters in the caribbean sea impaired the sovereignty of those countries. the reasons for invoking security exceptions by the above-mentioned members are simply that there is a real threat to the sovereignty of a state, its territory, its regime, its population and other elements that make up a sovereign state. thus, ―esi‖ has traditionally been understood primarily in terms of military interest, i.e., the acquisition, deployment and use of military force to achieve national objectives. 2.2 the expansion of esi with the end of the cold war, large-scale war was no longer the main security threat the states faced. on the whole, however, another series of security problems, such as cyberattacks, technological theft, and epidemics of infectious diseases, have become more prominent. to meet the real needs of maintaining national security, states had to adjust their security strategies. for instance, in order to understand national security more comprehensively, japan has proposed the concept of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 3 published by scholink inc. ―comprehensive security‖, which integrates various elements of national security. so far, the concept of ―comprehensive security‖ has been generally accepted by countries all over the world, although there are subtle differences in the terminology used by each country. in the national security strategy issued by the white house, the u.s. has included climate and energy security, pandemics and biodefense, food insecurity, terrorism, and so on into its national security policy. china, on the other hand, has put forward the concept of ―a holistic view of national security‖ and advocates the construction of a national security system that integrates political, homeland, military, economic, cultural, social, scientific and technological, network, ecological, resource, nuclear, overseas interests, biological, space, polar, and deep-sea security. to conclude, in the national security strategy of many countries, the scope of national security interest has been greatly deepened and expanded. 3. analysis of jurisprudence of wto 3.1 the first case on esi-ds512 the russia–measures concerning traffic in transit (ds512) is the first case where the wto has confirmed the justiciability of the security exception clause. the panel did not give a definition of what is esi, however, the panel compared it with ―security interest‖. in the view of the panel, esi is narrower than ―security interest‖ and relates to the basic functions of a state, namely, the protection of its territory and its population from external threats, and the maintenance of law and public order internally. the panel holds that such specific interests, directly related to the protection of a state against external or internal threats, will depend on the specific circumstances and perceptions of the state concerned and will evolve as circumstances change. for these reasons, it is generally for each member state to determine what it considers to be its essential security interests. however, this does not mean that a state is free to consider any issue as an esi. a state‘s discretion with regard to esi is limited by the principle of good faith (in good faith). the obligation of good faith requires that members do not use the exceptions in article 21 as a means of circumventing their obligations under gatt. a clear example of this is the attempt by a member to depart from the ―mutually beneficial arrangements‖ that make up the multilateral trading system by simply relabeling the trade interests that are part of the structure as esi that are separate from the structure. it is therefore incumbent upon the invoking member, in order to prove its authenticity, to fully articulate sufficiently the essential security interests arising from the exigencies of international relations. what is ―sufficiently‖ depends on the emergency in international relations at issue. in the view of the panel, the less distinctive the character of the ―emergency in international relations‖ invoked by a member, i.e., the further removed it is from a situation of armed conflict or breakdown of law and public order (whether in the invoking member‘s own country or in its immediate vicinity), the less distinct is the interest in national defense or military advantage or the interest in the preservation of law and public order that can generally be expected to arise. in such cases, member states need to articulate their essential security interests with greater specificity than is required when an emergency www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 4 published by scholink inc. in international relations is involved. in addition to the fact that a state should make a good faith determination of its esi, the principle of good faith is also embodied in the minimum requirement of reasonableness that the measures in question be related to the esi asserted, i.e., that they are not implausible as a means of protecting the esi. after ds512, there are more cases involving the security exception. the cases including ds512 and the summary of their panel reports are listed in table 1. table 1. wto cases involving security exception year cases conclusion of panel reports 2019 russia—measures concerning traffic in transit (ds512) the panel‘s first positive response to the security exception, finding that it has jurisdiction over the security exception case and ruling that russia‘s invocation of the security exception is consistent with wto rules. 2020 saudi arabia—measures concerning the protection of intellectual property rights (ds567) invoking country loses the case, the panel rules saudi measures not necessary. 2022 united states—steel and aluminum products (ds544) the panel rejects the united states plea that the measures were taken in time of war or other emergency in international relation, and the case is currently on appeal. 2022 united states—origin marking requirement (ds597) the panel upholds hong kongs claim that united states‘ measures violate wto rules, and united states files appeal. in conclusion, all of the cases followed the approach of the ds512, confirming that states have the right to define the scope of esi, however, the wto panel has the jurisdiction to evaluate whether the action at issue ―was taken under the circumstances described in the subparagraphs of article xxi(b)(iii) of the gatt 1994‖. 3.2 the room for expansive interpretation since the wto still hasn‘t given a definition of the esi, if a wto member intends to preserve its security objective by invoking the security exception clause, it must resort to the method of evolutionary interpretation under the vienna convention on the law of treaties. this method has been adopted by the wto panels several times. a well-known example is the notion of ―exhaustible natural resources‖ in article 20(g) gatt; it was interpreted extensively to include fresh air or endangered species, which were not originally the issues thought of. similarly, in china-measures affecting trading rights and distribution services for certain publications and audiovisual entertainment www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 5 published by scholink inc. products (ds363), the panel holds that the terms—―sound recording‖ and ―distribution‖ used in china‘s gats schedule are sufficiently generic that what they apply to may change over time. thus, whether esi can be interpreted as time changes, we shall give an analysis following the approach of vclt. first, from the perspective of textual interpretation, the term ―essential security interests‖ can be split into the modifier ―essential‖ and the central term ―security interests‖ in accordance with the function of the term. as mentioned earlier, the meaning of ―essential‖ has been interpreted by the wto panel as very important in that it relates to ―the basic functions of a state‖. under the qualification of ―essential‖, whatever the extent to which the scope of ―security interests‖ will be expanded by the inclusion of non-traditional security, esi can be categorized as the basic security interests in the real sense. thus, the word ―essential‖ artificially sets the threshold for the definition of esi. sovereignty, territory, power, and population are the basic conditions for the existence and development of a sovereign state. therefore, any factor that promotes, maintains, or safeguards a state‘s sovereignty, territory, power and population can be considered an esi. according to this understanding, both traditional military security and non-traditional security are esi, and there is no direct relationship between the definition of ―security interests‖ and the content of national security. taken together, the above explanations of ―essential‖ and ―security interests‖ show that esi refers to factors that play a crucial role in the preservation of a member‘s territory and sovereignty, and in guaranteeing peace and stability. thus, the concept is highly abstract and can be given different content at different times. secondly, in terms of systemic interpretation, the contexts most closely associated with esi include the term ―it considers‖ and three types of illustrative situations. on the one hand, the formulation of the provision shows that esi is logically limited by the state‘s own consideration. this suggests that the security exception has explicitly left the determination of esi to the discretion of the members. the main reason for this legislative arrangement is to take into account the fact that esi may vary from one member to another depending on their actual situation and that the specificity of such esi is often familiar to the members themselves and can be easily proved by them. on the basis of the above understanding, under the qualification of ―it considers‖, the understanding of esi is highly subjective and needs to be analyzed on a case-by-case basis. on the other hand, esi is followed by three specific situations that may affect the security of a member. the words ―or ......‖ in the third specific case indicate that the subparagraph uses the term ―other‖. the word ―other‖ in the third specific case indicates that the subparagraph adopts the legislative model of ―enumeration‖ and ―caveat‖, and caveat clauses are generally designed by the drafters in order to deal with situations that may arise in the future that threaten essential security interests. this formulation effectively leaves room for members to address non-traditional security threats. thirdly, in terms of objective and purposive interpretation, the security exception, as a rule that departs from trade obligations in order to safeguard national security, is intended to cater to national security in the true sense of the word, rather than to create conditions for members to implement trade protection www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 6 published by scholink inc. in disguise, which is the basis on which the rule is maintained in operation. therefore, the understanding of esi should be in a good balance. from the current point of view, limiting esi to military security would make it impossible for a member to respond to the threat of other members jeopardizing its security interests through non-traditional means. cyberattacks, for example, cannot be ruled out as having potentially catastrophic consequences for a member, given the wide range of hostile actions carried out through information networks, from malicious hacking and website destruction to large-scale damage to military or civilian infrastructure based on those networks. at the same time, one should also be wary of taking the definition of esi to the other extreme and categorizing non-traditional security matters that clearly do not cause significant harm as esi. for example, when designing the security exception, the drafters explicitly excluded industrial security and created other wto remedies for domestic industrial difficulties. similarly, non-traditional security matters such as resource security, ecological security and biosecurity are generally considered to be subject to the general exception. of course, this division is not absolute. under certain circumstances, these non-traditional security threats may also cause great harm to a country. therefore, the understanding of esi should not be confined to the question of the form of traditional military security versus non-traditional security, but rather to the question of whether or not the non-traditional security threats in question have a significant negative impact on the existence and development of a state. finally, in terms of historical interpretation, the meaning of esi has not been clarified in the drafting and application of the security exception. however, the question of ‗who‘ should clarify esi and ―how‖ is generally considered to be a matter for states to determine in good faith. thus, it is not entirely impossible to consider non-traditional security as an esi. for example, the security exception provided for in article 13.2 of the regional comprehensive economic partnership agreement includes ―actions taken to protect critical public infrastructure, including communications, power and water infrastructure‖. this shows that cybersecurity has been included in the category of esi by the subsequent design of security exceptions, which also confirms the legitimacy of the evolutionary interpretation of esi in the context of non-traditional security threats. in the context of evolutionary interpretation, the definition of esi should meet the requirements of generality and specificity. in terms of generality, military security is the core security among the esi, which has been generally recognized by the wto panel, its appellate body and member states; in terms of specificity, whether non-traditional security, such as cybersecurity, scientific and technological security and biosecurity, belongs to the esi under the security exception should be determined on a case-by-case basis. moreover, outside the wto system, there have been many arguments in favor of non-traditional security interest as an esi, particularly in icsid arbitral tribunals. for example, the tribunal in lg&e v. argentina stated that ―economic, financial or those interests related to the protection of the state against any danger seriously compromising its internal or external situation, are also considered essential interests‘; and the tribunal in cms v. argentina similarly held that ‗economic, financial or other relevant interests in the general situation of the state of bohu are also essential interests‖. the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 7 published by scholink inc. tribunal in cms v. argentina similarly held that ―the need to prevent a major breakdown, with all its social and political implications, might have entailed an essential interest of the state in which case the operation of the state of necessity might have been triggered‖. 4. conclusion in conclusion, there is no technical barrier to giving an expansive interpretation of esi. however, in case states abuse esi, there still be a clarification about the scope of esi. with regard to traditional national security, such as homeland security, military security, and nuclear security, there is no dispute that these are the esi that form the basis for invoking the security exceptions. as for new types of national such as ecological and environmental security, information network security, etc., they should be judged according to the gravity of the facts, and when the destruction of these security interests threatens the fundamentals on which a country relies its survival and development, then the above security interests can be judged as the esi of a country, and thus the security exception clause can be invoked to defend the protective acts. when the destruction of these security interests threatens the very essence of a country‘s survival and development, these security interests can be recognized as a country‘s esi, thus invoking the security exceptions to defend its protective acts. as for economic security and political security, which are easier to be abused by trade protectionism and are only used to protect the domestic industry of a member state or to achieve its specific political objectives, the wto panels should cautiously examine and deny the validity of the invocation of the security exception clause. references akaha, t. (1991). japan‘s comprehensive security policy: a new east asian environment. asian survey, 31(4), 324-340. https://doi.org/10.2307/2645387 amelia, p. et al. (1995). guide to gatt law and practice: analytical index (world trade organization, 6th ed.). china‘s state council information office. (2020). a holistic view of national security. retrieved from http://english.scio.gov.cn/featured/chinakeywords/2020-01/22/content_75639567.htm gatt. (1947). second session of the preparatory committee of the united nations conference on trade and employment, verbatim report, thirty⁃third meeting of commission a held on thursday, e/pc/t/a/pv/33, 24 july 1947. geraldo, v., & hidden m. (2021). evolutionary interpretation between norm application and progressive development. journal of international economic law, 24(1), 208-210. https://doi.org/10.1093/jiel/jgaa035 icsid. (2005). cms gas transmission co. v. argentina, case no. arb/01/8, award, may 12, 2005. icsid. (2006). lg&e energy corp. v. the argentine republic, case no. arb/02/1, decision on liability, oct.3, 2006. https://doi.org/10.2307/2645387 https://doi.org/10.1093/jiel/jgaa035 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 8 published by scholink inc. michael, j. h. (1991). vital interests and the law of gatt: an analysis of gatt‘s security exception. michigan journal of international law, 558(12), 568. sebastián, m. b., & alexander, p. (2020). national security exceptions in international trade and investment agreements: justiciability and standards of review. springerbriefs in law, 10-12. stephen, k. et al. (2023). the conundrum of the essential security exception: can the wto resolve the gatt article xxi crisis and save the dispute settlement mechanism? working paper of geneva graduate institute. the white house. (2022). national security strategy. retrieved from https://www.whitehouse.gov/wp-content/uploads/2022/10/biden-harris-administrations-national -security-strategy-10.2022.pdf wto. (1996). united states-standards for reformulated and conventional gasoline, panel report, wt/ds2/r, 29 jan 1996. wto. (2009). china-measures affecting trading rights and distribution services for certain publications and audiovisual entertainment products, appellate body report, wt/ds363/ab/r, 21 dec 2009. wto. (2019). russia-measures concerning traffic in transit, panel report, wt/ds512/r, 5 april 2019. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 5, no. 2, 2022 www.scholink.org/ojs/index.php/elp 28 original paper crisis preparedness in the digital world demet canakci 1 * & geof mortlock 2 1 program director, toronto centre, toronto, canada 2 program leader, toronto centre, wellington, new zealand * demet canakci, e-mail: dcanakci@torontocentre.org received: november 12, 2022 accepted: november 22, 2022 online published: december 5, 2022 doi:10.22158/elp.v5n2p28 url: http://dx.doi.org/10.22158/elp.v5n2p28 abstract this paper discusses the importance of crisis preparedness and the role of financial supervision in mitigating the risks posed by technological innovations in the financial ecosystem. the paper will focus on the important role that financial supervisors and regulators can play in promoting effective risk management, supervision and crisis preparedness in relation to fintech developments, and the need for coordination and collaboration with policymakers, government, and the financial sector to address potential threats to financial stability. it elaborates on the challenges associated with fintech developments in banking and the potential implications for financial supervision and considers the nature of crisis preparedness in the context of banking in the digital era. the paper also provides thoughts on the tools available to supervisory authorities and central banks in dealing with financial crises while enabling new technologies to enhance financial services provisions. keywords financial crises, fintech, cyber risk, financial supervision, regulation 1. introduction recent years have seen an increase in the development and uptake of financial technology (fintech (note 1)) by financial institutions globally. this has been especially the case by banks and other financial intermediaries but also applies to many other types of financial institutions, including insurers (general, long-term and health insurers), wealth management providers, securities firms, and investment advisory firms. the covid-19 crisis has also promoted the digitization of the financial services industry. it has accelerated the shift towards technology-enabled, contactless, and customer-centric production and consumption of goods and services and working practices. the business model of financial institutions will become more digital-based as they accelerate the adoption of technology. there will be a further www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 29 published by scholink inc. shift away from the use of cash to digital retail payment systems (note 2). the uptake of new it by financial institutions has the potential to bring many benefits, including to strengthen the contestability and competitiveness of financial services, to lower the costs of some financial services, to enhance aspects of risk management, and to better meet the needs of consumers and the real economy. however, it also comes with risks, including the development of “non-bank financial intermediation” in relatively under-regulated sectors and associated disintermediation, the increase in some financial sector risks (especially operational risks), and the potential to increase the risk of financial institution stress and financial instability. in particular, there is a danger that digital platforms, if not well structured and managed, could exacerbate operational risks in banks and non-bank financial institutions, including the risks of cyber-attacks, fraud and money laundering. these risks pose a potential threat to the soundness of individual financial institutions and can exacerbate intra-group contagion in financial conglomerates. fintech-related risks, together with the emergence of financial services in relatively under-regulated sectors of financial systems, pose a somewhat heightened threat to financial stability. they reinforce the importance of financial sector regulation keeping pace with fintech developments and for supervisory and resolution authorities to be equipped to deal with financial stress in a rapidly evolving fintech environment. drawing from toronto centre‟s extensive worldwide supervisory capacity building, and other relevant sources, this paper looks at the risks associated with fintech, with a particular focus on banking and bank-like functions, the implications for financial stability and supervision, and the nature of the crisis preparedness needed by the regulatory and supervisory authorities to ensure that risk events are managed in ways that minimise impacts on financial stability. 2. fintech developments 2.1 fintech in banking financial technology is increasingly making its presence felt in the banking sector. fintech is being adopted by existing mainstream banks to reduce operating expenses, make more efficient use of data in the assessment of risks, and expand market penetration. key areas where fintech is being adopted by mainstream banks include: 1) the increasing use of online and mobile banking to progressively reduce the need for physical customer interface via branch networks, and thereby reduce operating expenses, and facilitating enhanced efficiency for customer interface 2) the use of it functionality to process large volumes of data to better identify and respond to risks, and to enhance the capacity to target particular market segments with products tailored to consumer needs 3) the use of it functionality to process applications for credit and reduce the operational expenditure associated with such processes 4) robo-advisory services to assist in customer queries and advice www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 30 published by scholink inc. fintech is also being utilized by newly established digital banks and by non-bank financial entities. the adoption of digital banking platforms takes many forms, and include the following key examples (note 3): digital payments and e-money fintech innovations are being increasingly applied to wholesale payments, but most of the major developments have been in retail payments. this is particularly the case in developing countries, where cash accounts for the bulk of retail payments and where payment (debit and credit) cards are not widely used. in such cases, fintech firms offer options for peer-to-peer transfers, bill payments, and electronic purchases. in many cases, these services are attached to an e-money product—i.e., a digital wallet where customers can hold monetary value for an undetermined period of time. a pioneer was kenya‟s m-pesa, offered by safaricom, a mobile network operator, but there are numerous other examples. these products can also be tied to savings accounts or insurance products. international remittances a substantial degree of fintech innovation has been focused on large international remittances corridors. fintech has been used to simplify procedures and cut the costs of transfers, including to serve the undocumented diaspora in a variety of countries. the services may be based on e-money products, traditional bank accounts, cryptocurrencies, or combinations of these. personal and business loans fintech credit is a burgeoning market and can take many forms and target various customer segments, including low-income borrowers and micro, small and medium enterprises. most often, fintech credit utilizes relatively novel credit-scoring methods based on a wide range of data, including data that are collected outside of the financial sector (e.g., big data, bill payments history, mobile phone usage). many products are based on automated credit decisions, whereby a customer applies for credit and, if successful, has her loan disbursed in only a few minutes via her mobile phone. peer-to-peer (p2p) lending platforms within fintech credit, an important development is p2p platforms, which are mostly internet-based services provided by a fintech firm where lenders and borrowers interact in a virtual intermediation framework. platforms vary widely in format and operating rules. typical characteristics of p2p lending are: (i) no necessary common bond or prior relationship between lenders and borrowers; (ii) intermediation by a p2p lending company; (iii) transactions take place online; (iv) lenders may often choose which borrowers to lend to or invest in, if the p2p platform offers that facility; (v) the loans can be unsecured or secured; (vi) loans are securities that can be transferred to others, either for debt collection or profit. crowdfunding platforms crowdfunding platforms are mostly internet-based services provided by fintech firms to facilitate funding/investment opportunities, including equity investment and donations. like p2p lending platforms, these vary widely in shape and operating rules. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 31 published by scholink inc. robo-advisors robo-advisors (also called “automated” or “digital investment” advisors) are online platforms that provide services such as financial advice and, most often, portfolio management with minimum or no human intervention. the digital revolution has changed the demand for financial services and led the sector to become more customer centric. on the supply side, it has left some incumbents with ageing and increasingly inefficient technologies, such as an overreliance on rigid mainframes, and an overextended branch network. on the demand side, younger population cohorts increasingly want to bank with their mobile phones and online apps, rather than through the more conventional mainstream banking channels. the banking sector has overcapacity and, in some cases, the wrong kind of capacity. the industry is facing significant restructuring and it investment costs, which is placing a strain on some banks‟ profitability, particularly given the low net interest margins on which many banks are currently operating (in particular in the eurozone and japan). 2.2 bigtechs large technology companies (bigtechs) are increasingly getting attention from policymakers due to the expansion of bigtech firms (e.g., google (alphabet), apple, facebook, amazon, and microsoft) in financial services. this has generally been more rapid and broad-based in emerging market and developing economies (emdes) than that in advanced economies. the expansion of bigtech firms in emdes has brought benefits, but can also give rise to risks and vulnerabilities, including risks relating to data privacy and cyber-attacks. risks concerning consumer protection may also be larger in the case of emdes, particularly where customers have a lower financial literacy and to the extent that bigtech firms make greater use of personal data (including that acquired from their non-financial business) without appropriate statutory protections of privacy being in place. where bigtech firms are the principal or even sole providers of financial services to some emde populations, there is a risk of excessive market concentration and attendant issues related to excessive market power and inadequate consumer protection. they may also be subject to heightened operational risks, particularly in environments with weaker communications and financial infrastructure. competition from bigtech firms may, in places, also reduce the profitability and resilience of incumbent financial institutions and lead to greater risk-taking. bigtechs also handle payment services as part of e-commerce, with some offering them as independent business units. their business models leverage on their data analytics, network externalities, and interwoven activities, coupled with distinct platforms that process and settle payments, including: (i) overlay systems (using third-party infrastructures such as credit card or retail payment systems); and/or (ii) proprietary systems (using firm-owned infrastructures) (note 4). some common business applications include digital wallets, online banking, and domestic and cross-border funds transfers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 32 published by scholink inc. the experience of some jurisdictions demonstrates the positive role that well-targeted and designed regulation, supervision and other official-sector policy can play in supporting innovation in financial services while also mitigating risks. governments in some jurisdictions have also played a key role in promoting the development of financial infrastructures. in doing so, they have facilitated the growth of financial technology, including that employed by bigtech firms (note 5). however, there are also examples where regulation has not kept pace with fintech developments, leaving consumers and the wider financial system exposed to significant risks, as discussed later in this paper. 2.3 non-bank payment system providers fintech is also enabling the evolution of “new” forms of banking, such as the development of purely digital/online banks which have no physical presence (e.g., ubank, rabodirect and me bank in australia; and wise, revolut and starling in the uk, etc.) and non-bank payment system providers. non-bank payment system providers (psps) include prepaid payment instrument (ppi) issuers, such as mobile wallets, card networks and “white label” atm operators. these developments are an important aspect of fintech and have grown rapidly in many countries via a range of operators, such as adyen, braintree, paypal and stripe. for example, the reserve bank of india has recently announced that it has allowed non-banks to participate in its centralised payment systems (cps) through real time gross settlement (rtgs) and national electronic fund transfer (neft) systems, in a phased manner. psps are facilitating financial inclusion in emdes by providing electronic payments services to large numbers of people who are not currently serviced by banks—i.e., those without a bank account, as, for example, in much of africa. hence psps can help to promote greater financial inclusion goals by enabling unbanked individuals to use non-bank services as an alternative to payment instruments offered by banks (mainly due to the reason that they do not have a banking account or cannot open one). non-bank payment service provider can improve the efficiency of the retail payments system by increasing competition, providing new or improved payment options, and reaching sectors of the population that did not previously have access to payment services. in other situations, non-banks can contribute expertise that the incumbents lack and cooperate with banks to provide innovative services, such as mobile payments. at the same time, the growing involvement of non-banks could also impact risks in the system. the implications will vary by the type of non-bank and the services that they provide. for example, non-banks may specialize in certain services, thus generating large economies of scale or network effects. the nature of these effects could mean that the provision of such services may converge towards a small number of large providers, or in the extreme, a monopoly over the provision of a certain payment service. if a service is localized in a particular non-bank, the operational risk may also be concentrated. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 33 published by scholink inc. an important feature of non-bank involvement in payments services is outsourcing, where payment service firms place considerable reliance on a wide range of outsourced it and other functionality providers. outsourcing offers a range of benefits, including enhanced efficiency, strengthened capacity for innovation and reduced operating costs. if managed well, outsourcing may also offer the potential to reduce operational risks. however, outsourcing also carries a number of risks do not present or not as prevalent with an insourced approach to functionality provision. these include risks of more complicated coordination between the financial service provider and the various outsourced providers of functionality, discontinuity of supply and inadequate contingency arrangements. this requires supervisory authorities to be particularly attentive to outsourcing risks, including the need for robust contractual documentation, testing requirements, backup arrangements and financial institutions maintaining contingency plans to deal with situations where outsource providers fail. 2.4 digital currencies another area of innovation by technological advancements has been the development of potential new mediums of exchange and store of value, and other means of payment such as central bank digital currency, cryptocurrencies including bitcoin or other digital coins, or claims such as payment services issued by banks or other intermediaries (alipay, wechat pay, m-pesa, or blockchain-based monies such as paxos or usd coin) (note 6). these developments characterise a “dual” monetary system involving privately issued money (by banks, telecom companies, or specialised payment providers) built upon a foundation of publicly issued money (by central banks). claim-based monies can, in turn, be categorised according to whether their redemption is at a fixed value (e.g., bank money or e-money) or at a variable value in the case of libra, for example, which may have exchange rate risk when converted into domestic currency. another important distinction is whether the settlement is centralised (e.g., cash, bank money, e-money) or decentralised (e.g., crypto-assets). stablecoins are a specific category of cryptoassets that have the potential to enhance the efficiency of the provision of financial services but may also generate risks to financial stability, particularly if they are adopted at a significant scale. stablecoins are an attempt to address the high volatility of “traditional” crypt-assets by tying the stablecoin‟s value to one or more other assets, such as sovereign currencies. they have the potential to bring efficiencies to payments systems and to promote financial inclusion. however, a widely adopted stablecoin with a potential reach and use across multiple jurisdictions (global stablecoin or gsc) could become systemically important in and across one or many jurisdictions, including as a means of making payments. the emergence of gscs may challenge the comprehensiveness and effectiveness of existing regulatory and supervisory oversight. the fsb has agreed on ten high-level recommendations that promote coordinated and effective regulation, supervision and oversight of gsc arrangements to address the financial stability risks posed by gscs, both at the domestic and international level (note 7). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 34 published by scholink inc. another development in this area is central bank digital currencies which are becoming an important agenda item for many central banks: the eastern caribbean has created its own form of digital currency (dcash), which is designed to facilitate faster transactions and serve people without bank accounts. dcash was created by barbados-based fintech company bitt in partnership with the central bank. unlike cryptocurrencies, it is issued by an official central bank and has a fixed value, tied to the existing eastern caribbean dollar used across much of the region. other countries are developing central bank digital currencies. for example, china launched the e-yuan in 2020; the ecb aims to launch its own digital currency in 2025, while the bank of england and the fed are actively exploring the issue. a january 2021 survey (note 8) by the bank for international settlements reported that most central banks are considering digital currencies. the survey found that central banks representing a combined 20 per cent of the world‟s population are likely to launch their own digital currencies within three years. aside from central bank digital currencies, private-based digital currencies, while offering potential benefits in payments capability, also present significant risks. a key concern is the extreme volatility in the value of these digital currencies, with market prices moving by very large amounts intra-day and over a short trading horizon. they also represent a potential avenue for money laundering and other financial crimes unless subject to robust aml/cft requirements. moreover, private digital currencies also fail to have the liquidity needed to serve as efficient media of exchange, at least for the time being. 2.5 regtech and suptech regtech and suptech are part of the fintech evolution. these tools could have important benefits for financial stability. regtech focuses on technology-based solutions to attenuate or solve regulatory and supervisory challenges, including the challenges posed by the expansion of fintech. it leverages digital data and analytical networks to supplement conventional processes to strengthen the capacity to manage risks and improve the decision-making process. for regulated institutions, the use of regtech could improve compliance outcomes, enhance risk management capabilities, and generate new insights into the business for improved decision-making. for both authorities and regulated institutions, the efficiency and effectiveness gains, and possible improvement in quality arising from automation of previously manual processes offers potentially significant benefits. most of regtech centres around solutions for regulated financial institutions, helping them to comply more efficiently and with greater certainty with regulations and improve risk management, while cutting costs (e.g., compliance costs). regtech developments are mainly in the following areas: (i) regulatory compliance—e.g., systems to enable banks and other regulated entities to identify breaches of regulatory requirements and to facilitate quick remediation, and to maintain compliance with regulations; www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 35 published by scholink inc. (ii) identity management and control—e.g., anti-money laundering controls and fraud detection; (iii) risk management-advanced data analytics supported by machine learning or other ai applications and regulatory reporting, transaction monitoring such as by using dlt, end-to-end integrity validation, anti-fraud and market abuse identification systems, back-office automation and risk alerts; (iv) trading in financial markets-the automation of the procedures related to transacting in financial markets, such as calculating margins, choosing central counterparties and trading venues, assessing exposures, complying with good conduct-of-business principles, etc. in some cases (regulatory reporting, kyc), regtech solutions are developed and implemented jointly or use a third-party solution to achieve efficiency gains, while others are developed and implemented separately by individual financial institutions in bilateral partnerships with fintech firms. supervisory technology (suptech) is being adopted by regulatory authorities to use fintech to assess trends more efficiently in market data to identify potential risk areas, to facilitate peer group analysis of banks and other institutions, and to assess early warning indicators of emergent stress. suptech is mainly conducted in two types of application: (i) data collection; and (ii) data analytics: (i) data collection applications are used for supervisory reporting, data management and virtual assistance. examples include the ability to pull data directly from it systems of banks and other financial institutions; automated data validation and consolidation; chatbots to answer consumer complaints while collecting information that could signal potential areas of concern. (ii) data analytics applications are used for market surveillance, misconduct analysis as well as microprudential and macroprudential supervision. examples include detecting insider trading activities, money laundering identification, monitoring supervised entities‟ liquidity risks and forecasting housing market conditions. suptech is a strategic priority for an increasing number of regulatory authorities. it is still at a relatively early stage of development but could evolve into the greater use of „real time‟ access to and interrogation of data on financial institutions, and greater analysis of the “big data” contained in regulatory reporting by financial institutions and more widely in other information sets and social media. for authorities, the use of suptech could improve oversight, surveillance and analytical capabilities, and generate real-time indicators of risk to support forward-looking, judgement based supervision and policymaking. however, such developments depend on supervisory authorities having the necessary resources and skills to take them forward. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 36 published by scholink inc. 3. risks associated with fintech: implications for financial stability fintech brings wide-ranging benefits, particularly for low-income countries, due to its potentially far-reaching economic and social impact. those benefits include increasing access to financial services and financial inclusion; deepening financial markets; strengthening competitiveness in the financial markets; lowering the costs of some financial services; and improving cross-border payments and remittance transfer systems. however, fintech also creates a number of significant risks in the financial system, and not least in the banking sector. in this paper, the focus is mainly on the risks and the regulatory and supervisory issues that arise from these risks. supervisors should monitor the evolution of those risks closely and take necessary actions to mitigate them. although most of the risks are not new, the nature of fintech increases the probability and potential impact of some key risks. those risks include: o operational risks-such as cyber risks, it malfunction fraud, money laundering/financing of crime, misselling of financial products and services, privacy breaches, and breaches of regulatory compliance o credit risk inadequately managed arising from p2p platforms o reputation risk for banks/insurers as a result of the above risks, with potential for intra-group contagion o payment system disruption—e.g., arising from operational dysfunction in non-bank payment providers o business model risk-as new technology, new entrants and greater competition threaten the viability of existing business models. unless these risks are subject to robust governance and risk management frameworks overseen by appropriate prudential and market conduct supervision, they have the potential to cause instability in individual financial institutions, payments networks and potentially the financial system as a whole. moreover, the entry of new firms into the financial system, such as bigtechs and non-bank payment providers, have the potential to reduce the market share and profitability of the incumbents, with the potential that the established financial firms could come under financial stress, especially in a low net interest income environment. some of these risks pose a potential threat to the stability of financial systems via several channels (note 9): o contagion: examples of contagion arising via fintech include: (i) significant and unexpected losses incurred on a single fintech lending platform could be interpreted as indicating potential losses across the sector, with flow-on effects to investor and creditor confidence in that sector. (ii) the technical failure of a fintech function in a financial conglomerate could trigger intra-group contagion through the transmission of losses, confidence effects and cross-defaults, and (iii) misconduct or misselling in new fintech sectors could erode market confidence in the wider financial system. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 37 published by scholink inc. o procyclicality: procyclicality can arise when market participants act in a way that exacerbates the degree and impact of fluctuations in economic growth and market prices over the short and/or longer-term, such as excess provision of credit in economic upswings and excessive deleveraging in a downturn. examples of procyclicality that could potentially be generated by fintech include: (i) interaction between investors and borrowers on fintech lending platforms could potentially exhibit larger swings in sentiment than traditional intermediation of funds, as a sudden unexpected rise in non-performing loans could trigger a drying up of new funds; (ii) small investors involved in crowdfunding might be more prone to contributing to asset price bubbles (and subsequent bursting of bubbles) due to lower understanding of the risks involved in lending/investing. o excessive volatility: excess volatility in financial markets is a key source of instability and can manifest through over-reaction to financial events, potentially creating solvency or liquidity problems that can spiral through the financial system, impairing the functioning of asset and credit markets. fintech can contribute to this in various ways, including (i) algorithmic traders may tend to be more active during periods of low volatility but rapidly withdraw from the market during periods of market stress when liquidity demands are high, and thereby increase asset price volatility; (ii) crowdfunding investors and person-to-person lenders might be susceptible to exuberant investment in periods of buoyancy, but rapidly withdraw in periods of emerging stress, with adverse impacts on asset prices and flow-on effects to solvency. o systemic importance—e.g., large market dominance: the systemic importance of financial institutions is a key factor in posing a threat to financial instability. although fintech does not currently pose a major risk in this regard, it does increase the risk of intra-group contagion as a result of reputation risk. moreover, the non-bank financial intermediation sector poses a potential risk to instability to the extent that it experiences severe risk events, and these are not detected or responded to quickly and effectively by supervisors. o financial risks being inadequately managed: the inadequate management of risks associated with fintech pose a threat to financial stability—especially in non-bank financial intermediation and other under-regulated parts of the financial system. it is worth highlighting two key risks to financial stability arising from fintech: the emergence of non-bank financial intermediation; and the growing threat of cyber risk. non-bank financial intermediation non-bank financial intermediation refers to the emergence of bank-like functions, such as payment services and intermediation functions, provided by non-bank entities. examples of these services are mobile banking, e-wallets and p2p intermediation functions. these are increasingly providing an alternative to mainstream banking. although this is a positive development in terms of strengthening competition for financial services, lowering costs, and increasing financial inclusion, it also poses a risk www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 38 published by scholink inc. to financial stability. this is particularly the case if non-bank fintech providers of financial services become systemically important and where a failure could cause significant disruption to the financial system and economy. payment networks using digital wallets provide a direct connection between consumers and merchant processors, operating via software-based systems that store users‟ payment information. solutions within a consumer digital wallet can include merchant payments, p2p payments, international money transfers, bank accounts, lending, and cryptocurrency trading. digital wallets allow a party to make electronic transactions and bypass traditional banks. according to market data provider statista, digital wallets accounted for 44.5% of all global e-commerce transactions in 2020 (note 10). in the case of p2p services, growth in these financial services has been relatively strong in some jurisdictions but has not yet reached the point where it poses a significant risk to the financial system. the challenge in non-bank financial intermediation is when these non-bank providers of financial services grow to a size that could pose a threat to financial stability in the event of a failure event. this has the potential to cause disruption to the financial system through dislocation to the payment and settlement systems and through impacts on credit markets and the real economy. in the p2p area, there is also a risk of adverse confidence effects on depositors with funds at risk in the event of an upswing in credit losses and a risk of a rapid withdrawal of credit and associated asset price volatility. all of these considerations suggest the need for the regulatory authorities to monitor developments in non-bank financial intermediation by obtaining data from market participants to better understand the nature and scale of their activities, the risks involved, and the adequacy of participants‟ risk mitigation capacity. this will assist the authorities to monitor the types of business being undertaken and the growth in volume and in market share in particular niches of the market. it will also provide a basis for regulators to assess the nature of the risks involved to affected users of financial services and to the providers of the services and the potential impact on the financial system. ultimately, as discussed later in this paper, regulatory authorities should be moving to a form of regulation that regulates financial services in a competitively neutral and even-handed manner, regardless of the legal form or licensing status of the provider of financial services—i.e., a “form over substance” approach. the objective should be to regulate financial services on a risk-based basis, anchored to well-defined regulatory objectives based on maintaining financial system stability while also seeking to enable financial system innovation and fostering competition. cyber risk another key risk that is of increasing relevance to financial stability is cyber risk. this is already a very significant risk and is likely to grow considerably as online banking, and other forms of digital financial services become more prevalent. cyber risks of various forms arise in online banking and payment services across the mainstream banks and in the new digital non-bank financial service providers, as well as for networks of small banks using common platforms. major cyber risk events in banks and other financial institutions have the potential for system-wide disruption, data theft, privacy www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 39 published by scholink inc. breaches, financial crimes and financial losses for financial firms. all of these risk channels have the potential to threaten financial stability, either through disruption to payment and settlement processes or through adverse impacts on market confidence. in the securities trading area, greater reliance on automated transactions could potentially increase market volatility due to higher asset price correlations. the wider adoption of certain algorithms and technological solutions may increase vulnerabilities to cyberattacks. it may also increase concentration risk on key nodes within the global system as market structures adjust and network interconnections strengthen. the increase in cyber risk has been a clear trend over the past decade, and regulators and supervisors, as well as the industry, face major challenges in effectively managing these risks. numbers can be misleading, and even though many financial firms see an increase in attempts, it is the more advanced attacks that matter most. good data on cyber incidents are scarce, and this is partly due to a lack of incentives for firms to report incidents. one lesson from two recent cyberattacks—on solarwind‟s orion software and on microsoft exchange servers—is the need for a more integrated approach to risk management to combat the threats of cyberattacks. this includes the need for strengthened it protection software and associated processes; regular it security audits; strengthened focus by financial institutions‟ cros, senior management teams and boards; regular stress testing of cyber protection arrangements; and developing and testing the capacity to respond to and recover from an attack. the challenges in identifying and managing risks are considerable across areas such as cybersecurity, fraud, anti-money laundering, consumer protection, and cryptoassets. addressing these risks require coordination among many authorities, nationally and internationally, not only to share information but also to identify events that may not cause losses to financial institutions but do harm consumers and investors. 4. effective regulation and supervision of fintech given the fast-evolving nature of fintech, it is essential that there is an effective regulatory response to fintech developments, particularly as it relates to areas that pose a potential threat to financial stability, such as banking, non-bank financial intermediation and payment systems. in most respects, existing regulatory and supervisory frameworks can be applied to fintech financial services and products, given that fintech risks are generally an extension or variant of existing financial risks rather than being completely new. however, some modifications to regulatory and supervisory frameworks are likely to be needed in the case of currently unregulated or under-regulated parts of the financial system and in respect of those risk factors which represent a significant shift from mainstream banking risks. in this section of the paper, we briefly identify the key areas in which enhanced monitoring and regulation might be needed and the types of regulatory responses that could be appropriate. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 40 published by scholink inc. the need for greater monitoring of fintech and an assessment of appropriate regulatory measures to ensure that fintech-related risks are managed in ways that maintain financial stability has been recognised by a number of international bodies. these include the financial stability board (fsb) (note 11), basel committee on banking supervision (bcbs), international monetary fund and world bank. all of these bodies have undertaken considerable work on fintech-related matters and have published a range of papers on the issues. bali fintech agenda in this context, in october 2018, the imf and world bank held a conference to promote a wider understanding of fintech and the implications for regulation. this was held in recognition that countries want to harness the benefits that fintech can offer to financial systems, economies, consumers, depositors and investors, but also want to ensure that the risks associated with fintech are well understood and managed. the “bali fintech agenda” (note 12) resulted from the imf-world bank conference and outlined high-level issues for consideration by members of the imf and world bank as they seek to develop their policy responses to fintech. the agenda is focused on the implications of fintech for the financial sector and provides a high-level set of principles to guide regulatory oversight of fintech. the bali fintech agenda brings together key considerations for policymakers and the international community into twelve (12) elements arising from the experience of member countries. it is useful to briefly recap these elements:  element 1: embrace the promise of fintech.  element 2: enable new technologies to enhance financial service provision.  element 3: reinforce competition and commitment to open, free, and contestable markets.  element 4: foster fintech to promote financial inclusion and develop financial markets.  element 5: monitor developments closely to deepen understanding of evolving financial systems.  element 6: adapt regulatory framework and supervisory practices for orderly development and stability of the financial system.  element 7: safeguard the integrity of financial systems.  element 8: modernise legal frameworks to provide an enabling legal landscape.  element 9: ensure the stability of domestic monetary and financial systems.  element 10: develop robust financial and data infrastructure to sustain fintech benefits.  element 11: encourage international cooperation and information-sharing.  element 12: enhance collective surveillance of the international monetary and financial system. these elements provide a broad context for assessing the appropriate regulatory and supervisory responses to fintech developments. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 41 published by scholink inc. regulatory objectives it is clearly important that the authorities understand the risks associated with fintech and design regulatory responses to seek to ensure that the risks are appropriately managed. it is not about achieving “zero risk” outcomes. innovations and economic activity of all kinds necessarily entail risks. rather, it is about seeking to ensure that risks are identified, monitored and managed so as to maintain a stable but efficient financial system and to protect those least able to protect themselves—small depositors, policyholders and some categories of investors. national authorities have a delicate balancing act here. on the one hand, they need to ensure that fintech risks are appropriately managed. but on the other hand, they need to maintain their country‟s competitiveness in the global financial system and harness the consumer, investor and systemic benefits that fintech can provide. it involves seeking an appropriate balance between the promotion of a stable and resilient financial system, and the promotion of a contestable, competitive, innovative and efficient financial system. there is a need for well-defined regulatory objectives in designing a regulatory approach to fintech. in most respects, the main regulatory objectives for fintech are the same, in substance, as those that currently apply to conventional financial activities. in that regard, the main financial sector regulatory objectives are:  to promote and maintain a stable, resilient financial system (i.e., a financial system that is capable of performing all critical functions in the face of severe shocks).  to promote and maintain an efficient financial system (i.e., a financial system that is dynamically efficient, allocatively efficient and productively efficient).  to facilitate competitiveness and contestability in the financial sector.  to protect retail depositors and insurance policyholders within the scope of established protection schemes.  to promote and maintain the integrity of financial markets.  to seek to prevent financial crimes. these financial sector regulatory objectives are just as relevant to fintech activities as they are to conventional financial activities. fintech presents similar risks and externalities as do conventional financial activities—i.e., risks relating to information asymmetries, disruption to systemically important functions, contagion risks, risk of excessive market volatility, market conduct risks, and risks of financial crimes. regulation of fintech should therefore seek to ensure that these risks and externalities are properly identified, monitored and managed. however, there is a need to make sure that the risks presented by fintech are well understood before developing new regulatory responses and to ensure that regulation appropriately addresses those risks in a proportionate manner. these new risks (or existing risks made more complex and more damaging in impact) will require particular regulatory attention—either using existing regulatory tools or, in some cases, new ones. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 42 published by scholink inc. the main regulatory tools relevant to fintech are largely those that are already applied to providers of conventional financial services and products. the tools might need to be modified in some respect to suit the particular characteristics of fintech providers and products/services, and to ensure a proportionate regulatory response to the risks involved, but by and large, existing regulatory frameworks are likely to be applicable to most types of fintech providers. in this regard, the key elements are likely to include the following. licensing of financial service providers a key element of financial sector regulation is a framework to ensure that providers of defined categories of financial products and services are subject to a licensing process so that they meet minimum standards relevant to the risks involved. licensing requirements will vary greatly depending on the type of entity and the financial products and services it provides. a consistent approach based on types of products and services, rather than legal form, is generally desirable, with a view to achieving a competitively neutral regulatory framework that treats similar products and services in much the same way. a licensing framework typically includes a focus on:  minimum standards of fit and proper for key officers of the entity;  the need for the entity in question to have a robust framework for the identification, measurement, monitoring and management of risks, including a well-articulated risk appetite statement, risk management systems and controls, and risk culture;  robust governance arrangements, including a board (with suitably qualified directors, including non-executive and independent directors) to oversee the strategic direction of the entity and its senior management team, and board committees dedicated to overseeing risk management, audit and remuneration;  policies for ensuring that conflicts of interest are appropriately managed;  minimum capital and liquidity requirements, depending on the nature of the risks involved and the parties affected by those risks; and  the capacity to comply with regulatory requirements. in the case of financial institutions that are already licensed but whose business and risk profile are changing significantly due to fintech adoption, there is a need for the regulators to ensure that new financial services and products, and the associated risks, are appropriately integrated into the entity‟s business strategy and risk management framework. for new entities that fall outside the existing regulatory net, such as non-bank financial intermediaries, there is a need for the authorities to design a licensing framework that requires entities to meet defined licensing requirements relevant to the types of financial service they propose to perform on the basis of achieving a „level playing field‟ in the financial sector and ensuring that similar products and services are regulated on a consistent basis, regardless of the legal form of the entity which provides them. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 43 published by scholink inc. regulatory requirements the nature of the regulatory requirements will vary greatly depending on the particular characteristics of the fintech provider and the services and products in question. as a general principle, regulations are designed to ensure that financial services are provided in a secure and reliable manner and in accordance with the prudent management of the risks involved to meet the defined objectives of the regulatory regime. depending on the type of financial service/product, regulations might cover such matters as:  market conduct requirements (including product disclosure, provider disclosure, and requirements in relation to advising and selling procedures);  capital requirements, based on the risks borne by the financial institution and its risk mitigation capacity;  liquidity requirements, based on the funding and liquidity risk profile of the financial institution;  governance requirements, such as minimum number of directors on the board, composition of the board, board committees for risk management, audit and remuneration, and responsibilities of the board;  requirements in relation to risk appetite and the risk management framework applicable to all material risks;  limits on credit and funding exposure concentration;  requirements for contingency plans in relation to business continuity, capital and liquidity—and, increasingly, a requirement for a comprehensive recovery plan to address severe financial and operational stress events;  and fit and proper requirements applicable to key officers. in the case of existing financial institutions that have adopted or plan to adopt fintech, regulatory authorities will need to ensure that the regulations in place adequately address fintech-related risks. this will be especially important for operational risks, such as cyber risks, it security, financial integrity and business continuity. it will also be important to ensure that risks associated with market conduct are appropriately regulated through targeted disclosure requirements and measures to combat mi-selling. regulations relating to information privacy will also be particularly important in the case of fintech services, as will regulations for financial integrity. regulators will also need to ensure that regulatory arrangements for fintech providers include robust contingency planning, stress testing and crisis simulation requirements tailored to the types of financial technology and associated risks they have. for new financial institutions not yet covered by regulatory nets, the authorities will need to consider the extension of regulatory requirements to such entities on the basis of seeking to ensure that these entities are brought into the regulatory framework in a competitively neutral manner, such that entities and their services are regulated on the basis of „substance over form‟. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 44 published by scholink inc. supervision the supervision of fintech will typically draw on existing supervisory frameworks. for a well-developed regulatory authority, supervision of financial institutions will generally be on a risk-based basis, where the supervisory authority has a framework for assessing the risk profile of each entity using a scoring system that evaluates the risks its business involves and the effectiveness of its risk mitigation and loss-absorption buffers, and where it also assesses the systemic importance of the entity. the combination of its risk rating and systemic importance rating will determine the level of supervision to which the entity will be subject, as well as informing the calibration of some of the prudential requirements to which the entity is subject—e.g., capital and liquidity. within the risk-based supervisory framework, a supervisory authority would generally conduct supervision using a combination of off-site monitoring based on regular data provided by the regulated entity in accordance with regulatory requirements and on-site assessments conducted by the supervision authority. as with conventional financial services, a regulatory framework for fintech providers will likely involve the need for the supervisory authority to establish and maintain robust frameworks to monitor key risk areas, including early warning indicators of emerging risks and compliance with regulatory requirements. particular focus will be needed on those risks that are associated with fintech developments, such as cyber risks, financial integrity risks, market conduct risks, data integrity risks, and contagion risks. supervisory arrangements for fintech providers could be expected to involve some form of on-site assessment by financial supervisors, designed to enable the supervisors to identify and evaluate the key risks of the entity in question and the effective management of those risks. a risk-based supervision framework is generally the appropriate model, whereby the calibration of on-site assessments is based on the assessed risk profile and risk mitigation capacity of the entity and its systemic importance. those entities assessed as being relatively high risk and high systemic importance could be expected to receive greater supervisory attention than those assessed as being of lower risk and lesser systemic importance. in a fintech context, on-site assessments are likely to focus on the risk areas of greatest relevance to the particular fintech product or service being provided. in many examples of fintech—such as mobile payment system providers, e-wallets, online banking, and p2p frameworks—the key risk areas are likely to be operational in nature, such as cyber risks, information risks, financial crime and market conduct. on-site assessments would also appropriately involve supervisory assessment of a financial institution‟s governance arrangements in relation to fintech matters, especially the adequacy of the board‟s understanding of the risks associated with fintech and their oversight of the risk management framework applicable to fintech. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 45 published by scholink inc. particular areas of focus for supervisors would also include the need to assess the stress testing capacity of financial institutions in relation to fintech risks, including testing the vulnerability to cyberattacks and financial integrity risk. similarly, supervisors should ensure that fintech developments are fully integrated into a financial institution‟s “three lines of defence” risk management framework, such that front line staff are charged with responsibility for adhering to risk management requirements in the deployment of fintech, that a risk management unit (overseen by a cro) has responsibility for overseeing the risk management framework for fintech (integrated into wider risks), and that internal audit has responsibility for regular assessments of adherence to fintech-related risk management requirements. supervisors should also ensure that financial institutions that deploy or rely on fintech maintain robust contingency plans for dealing with risk impacts. these plans should include bcp arrangements modified to include fintech operational risk events, as well financial contingency plans designed to ensure that capital and liquidity impacts are addressed effectively and in a timely manner. there should be periodic testing of contingency plans, with the results of these being reviewed by the supervision authority. the table below provides an overview of the types of regulatory responses that can be considered in relation to particular categories of fintech risks. table 1. fintech risks and possible regulatory responses fintech risks possible regulatory responses market misconduct—e.g., misselling and inadequate disclosure of financial product risks regulatory responses are likely to include:  strengthened disclosure requirements in relation to financial products and services, with clear disclosure of the risk/reward trade-off, with appropriate penalties for breaches of requirements.  a licensing framework for providers of financial products and services to ensure that they meet minimum standards relevant to market conduct, including fit and proper requirements.  supervisory requirements to ensure that market conduct regulations are complied with, that fit and proper requirements are applied on an ongoing basis, and that regulated entities comply with disclosure requirements. financial products and services evolving faster than the regulatory responses are likely to include:  clear definition of the “problems” to be solved and regulatory www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 46 published by scholink inc. law—leaving legal uncertainty over the rules governing such products and services. objectives.  ensuring that the regulatory framework is applied on a consistent and competitively neutral basis, such that similar financial products and services are regulated in much the same way.  increased resourcing for authorities to develop laws that keep pace with new technological developments.  robust frameworks for legal and regulatory development, including well-structured cost/benefit analysis, consultation with interested parties, and regulatory accountability. disintermediation risk, resulting in fintech providers operating outside regulatory nets. regulatory initiatives might include:  ensuring that regulatory nets are based on clearly defined financial product and service delivery to ensure a competitively neutral framework.  transitioning where appropriate from a regulatory framework based on defined categories of financial institution to one that is based on types of financial services provided to ensure that the regulatory net applies in a consistent manner across categories of financial services.  ensuring that non-bank financial intermediaries and other unregulated entities are, at a minimum, brought into a monitoring and evaluation framework to enable the authorities to assess the nature of the business being undertaken, the risks involved, the quality of risk management, and the systemic importance of the business. this will help to inform the development of appropriate regulatory and supervisory requirements. cyber risks regulatory measures might include:  licensing requirements for providers of defined types of online financial services, particularly those in which cyber risks (such as cyber-based fraud, identity theft, privacy www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 47 published by scholink inc. information breaches, and operational dysfunction) are considered to be significant.  supervisory requirements for cyber risks, including well defined “three lines of defence” risk management requirements, board responsibility for overseeing cyber risks, on-site assessment by supervisors, vulnerability stress testing, and targeted external audits.  a requirement for financial firms to have comprehensive contingency plans to enable them to recover quickly and effectively from a cyber risk event, including back-up arrangements, disaster recovery sites, firewalls to prevent it risk events from impacting critical functions and services, and regular testing of contingency plans.  possible extension of safety nets to incorporate losses due to cybercrime. financial crimes—e.g., money laundering, financing of illegal activity. regulatory requirements would likely include:  extension of aml/cft licensing and supervision to fintech participants (if not already covered).  enhanced surveillance of transaction activity—e.g., via suptech and regtech. contagion risk—e.g., as a result of operational dysfunction in one part of the financial system impacting other parts. regulatory requirements might include:  ensuring that the risks of operational dysfunction (e.g., it failures) are properly managed, and backup arrangements are regularly tested.  seek to ensure that risk transmission buffers are in place to limit contagion, including robust capital requirements for financial market participants and it firewalls to limit or prevent the transmission of operational shocks from one entity in a group to another. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 48 published by scholink inc.  ensure that, within financial conglomerates, robust firewalls are in place between different categories of financial services within the conglomerate to limit contagion (including in respect of information and it protection between entities in the group), and that the head of the group maintains robust contingency plans for addressing risk events. financial stability risks—e.g., due to potential asset price bubbles or excessive market concentration of systemically important functions. increased market surveillance, regulatory measures to promote improved management of risks that contribute to asset price bubbles, and regulation to limit the systemic dominance of fintech providers. 5. early intervention and crisis management early intervention an important element in the supervisory framework for banks and other financial institutions is early intervention. under most prudential supervision regimes, the supervisory authority has comprehensive legal powers to intervene and take a range of supervisory actions if a financial institution breaches regulatory requirements or its risk profile is deteriorating. these powers are normally supported by policies and practices under a preventive and corrective action framework, in which the supervisory authority sets out a range of triggers for taking remedial supervisory actions. the triggers generally include breaches of regulatory requirements, as well as deterioration in capital requirements, liquidity requirements, asset quality and other financial and prudential risk metrics. the framework typically sets out an escalating range of supervisory actions in response to particular triggers. these often include measures such as:  intensification of off-site monitoring;  more frequent and focused on-site assessments;  a requirement for the financial institution to obtain an independent assessment of particular matters;  a requirement for the financial institution to undertake specific actions to remedy the situation, potentially include strengthening risk management arrangements, increasing capital, limiting further risk-taking activity, and curtailing or ceasing the payment of dividends and bonus payments to senior management. these early intervention frameworks are generally accompanied by contingency plans to enable a supervisory authority to deal with specific types of financial institution stress. under best practice, the supervision authority undertakes regular testing of its early intervention framework and contingency plans for dealing with stress situations. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 49 published by scholink inc. in the context of fintech, these arrangements for early intervention are particularly important. it is essential for supervisory authorities to integrate fintech-related risks into their early intervention frameworks and to develop contingency plans for dealing with stress events involving fintech matters. examples of where early intervention arrangements are especially important are fintech risk events that threaten the financial or operational soundness of a financial institution or financial stability. of particular relevance in this context are operational risks arising from fintech, such as cyberattacks that threaten a financial institution‟s operational soundness or pose a threat to payment system functionality, the emergence of high-risk lending and payment system activity in non-bank financial intermediation, and financial conduct that threatens the integrity of the financial system (such as money laundering and other financial crimes). in these examples, it is important for the supervisory authorities to identify the triggers for different stages of early intervention and the response strategies they would apply to breaches of triggers. they should also develop and regularly test contingency plans for dealing with such risk events. in some cases, the fintech-related risk events would be able to be addressed through existing early intervention frameworks. however, in some areas, such as cyberattacks, modifications to existing early intervention frameworks and contingency plans may be necessary so as to incorporate specific responses to deal with the impact of the events and to facilitate effective remediation. part of the early intervention framework should include a requirement for a regulated entity to maintain and regularly test its own contingency plans for dealing with distress events. typically, a bank, for example, would be required to have a liquidity contingency plan, a capital contingency plan and a business continuity plan. in addition, following the global financial crisis, banks in most countries have also been required to have recovery plans that set out comprehensive strategies for enabling a bank to restore itself to financial and operational soundness following (or in anticipation of) a severe financial or operational shock. supervisory authorities should include in their early intervention frameworks a requirement for such plans to be activated and implemented upon defined triggers being breached. in a fintech context, there is a need to ensure that financial institution contingency plans, including recovery plans, adequately identify fintech-related risk events and set out the strategies for responding to them. in some cases, fintech risk events can be integrated into existing contingency and recovery plans with only minor modifications. however, in the case of some fintech, especially ones that expose an institution to cyber risks and payments system network risks, there is a need for significant new response strategies to deal with such threats. the responses will include the initiatives needed to maintain critical functions and services, undertake capital and liquidity restoration, address stakeholder concerns, remediate reputation risk, and ensure that the underlying causes and vulnerabilities have been remedied. supervisory authorities need to oversee these arrangements and ensure that recovery plans and other contingency plans are subject to regular testing. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 50 published by scholink inc. crisis preparedness when early intervention and recovery actions are insufficient to remedy a risk event, there is a need for the authorities to have the capacity to undertake some form of resolution. this might involve the appointment of a statutory manager or administrator to a financial institution in acute stress to implement remedial actions that the board and management are either unable or unwilling to undertake and to identify possible resolution options. it will also likely involve the authorities having the legal powers, policies and procedures to implement a specific resolution option if the financial institution is deemed non-viable. this could involve transferring critical functions and systems, associated assets and liabilities, to another (viable) entity or to a “bridge entity” established for the purpose by the resolution authority. it might involve some form of recapitalisation, such as the use of contractual or statutory bail-in of unsecured liabilities. or it might involve an unwinding of the institution‟s business in an orderly and non-disruptive manner. since the global financial crisis, financial authorities globally have implemented a wide range of initiatives to strengthen the capacity to resolve a non-viable financial institution. these initiatives have been guided by the international standard on resolution issued by the financial stability board—the key attributes of effective resolution regimes for financial institutions (key attributes). under this standard (which is non-binding but is encouraged by the imf and world bank through the fsap process), resolution authorities are expected to have:  a well-defined statutory mandate for the resolution of non-viable financial institutions, anchored to clearly stated objectives (generally anchored to financial stability);  a resolution framework that applies to regulated entities, relevant holding companies and subsidiaries to enable a group-based resolution to be implemented;  a broad suite of statutory powers with well-specified triggers to enable a range of resolution options to be implemented;  the capacity to require a financial institution to prepare and maintain a recovery plan;  the ability to undertake resolvability assessments and prepare a resolution plan for at least systemically important financial institutions;  the maintenance of the ability to implement a range of resolution strategies, based on generic resolution policies and practices, and institution-specific resolution plans;  safeguards to ensure that resolution actions are not used in an inappropriate manner, including a general requirement to ensure that no creditor is left worse off under a resolution than they would have been under a conventional winding up/liquidation under the relevant country‟s insolvency law. to varying degrees, resolution authorities in many countries have implemented or are in the process of implementing resolution policies and practices, including institution-specific resolution plans, in broad alignment with the key attributes. this has typically included a strengthening of resolution-related laws, the development of generic resolution strategies, the undertaking of resolvability assessments of systemic institutions, and the development of resolution plans for such institutions. domestic and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 51 published by scholink inc. cross-border cooperation and coordination arrangements have also been strengthened for resolution purposes in many countries. for the most part, these resolution frameworks have been designed to apply to mainstream banking (and to some extent, insurance and financial market infrastructure) without specific regard for fintech issues. what is likely to be needed in the next phase of implementation of resolution frameworks is the assessment of the extent to which fintech developments might change some aspects of resolution. in most respects, it is likely that the principles and practicalities of resolution will not be significantly altered by fintech. however, some aspects of fintech might require special attention in a resolution context. this is likely to be the case for non-bank financial intermediation to the extent that such institutions become systemically significant, either individually or collectively (e.g., due to network platform contagion risks). in this case, it will be necessary for the authorities in question to consider the need to develop effective resolution frameworks for application to non-bank financial institutions, such as mobile payment system providers and p2p platforms, so as to enable financial distress and failure events to be managed in a manner consistent with maintaining the stability of the financial system. similarly, it will be necessary for the authorities to assess the possible modifications needed to resolvability assessments and resolution plans to deal with cyber risk events where these cause a bank or other financial institution to become non-viable. in this case, consideration would need to be given to a number of factors, such as how cyber risk-impacted critical functions and services can be restored to a secure and viable state, either within the existing financial institution or by being transferred to another entity or via secured backup systems. similarly, consideration will need to be given to how fmi resolution strategies would be implemented in a situation where one or more fmi providers has been severely impacted by a cyber risk event. these issues raise an important question as to the adequacy of operational risk firewalls between different entities in financial conglomerates and fmis, and how critical functions and systems can best be protected from cyber risk events that originate in non-critical systems, but which could be transmitted to critical functions and systems. these are still relatively new and evolving issues. it will take time for the authorities to assess the implications of fintech for resolution strategies, resolvability assessments and resolution planning. however, it will be increasingly important for fintech issues to be factored into resolvability assessments and resolution planning, given the increasing threat posed by cyber risk and some other fintech developments. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 52 published by scholink inc. 6. conclusion this paper has looked at the tools available to regulatory and supervisory authorities to strengthen the regulation and supervision of fintech in areas where fintech risks pose a potential threat to financial stability and to consumers of financial services. in doing so, four key themes have emerged. first, a carefully considered balance needs to be drawn to embrace the benefits of fintech while addressing the potential risks. an appropriate balance needs to be struck between the promotion of financial stability, on the one hand, and financial system efficiency and innovation, on the other. this suggests the need for financial supervisors and regulators to further deepen their understanding of the benefits and risks associated with fintech across the financial system, to have a clearly defined public policy rationale for regulatory intervention, to have well-specified regulatory objectives, and to ensure that a proportionate regulatory response is applied based on robust cost/benefit analysis. in this context, it is important that regulation of financial services is based on sound principles of competitive neutrality and consistency, such that similar types of financial services and entities are regulated on a consistent basis—i.e., “substance over form”. second, the use of regtech and suptech could improve supervision and support forward-looking, judgement based, supervision and policymaking. however, in order to be able to achieve this, supervisory authorities need to strengthen the skill sets of supervisors, and to continue to enhance their approaches to risk-based supervision. regtech and suptech should not be seen as substitutes for conventional supervision. these new technologies need to be harnessed in ways that supplement and strengthen existing risk-based supervisory frameworks, and where supervisory judgement remains a key factor in achieving desired regulatory outcomes. third, a key element in the effective regulation of fintech will be the promotion of robust governance and risk management frameworks in providers of financial services—whether they be mainstream financial institutions or newly established digital financial service entities. this will include the need for regulators to place emphasis on the quality of financial institution boards, risk management frameworks, internal audit, stress testing arrangements, and contingency plans. fourth, further attention needs to be given to how financial authorities respond to emerging stress and institutional non-viability in a digital environment. this is especially relevant for non-bank financial intermediation, which could increasingly pose a risk to financial stability, and cyber risks, which are an increasing potential threat to financial institution viability and financial stability. in this context, financial authorities need to pay particular attention to their early intervention frameworks for dealing with emerging stress and resolution arrangements for addressing institutional non-viability, with particular focus on the strategies for dealing with risk events associated with fintech, such as severe cyber attack scenarios and stress events in under-regulated non-bank financial intermediation. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 53 published by scholink inc. references adrian, t., & mancini-griffoli, t. (february 2021). public and private money can coexist in the digital age. andolfatto, d. (2018). assessing the impact of central bank digital currency on private banks. federal reserve bank of st. louis working paper 2018-026c. https://doi.org/10.20955/wp.2018.026 auer, r. (2019). beyond the doomsday economics of “proof-of-work” in cryptocurrencies. in bank for international settlements, working paper no. 765. https://doi.org/10.24149/gwp355 bank for international settlements. (april 2022). cbdcs in emerging market economies. bech, m. l., & rodney, g. (2017). central bank cryptocurrencies. bank for international settlements quarterly review. bigtech firms in finance in emerging market and developing economies: market developments and potential financial stability implications. (october 2020b). board, c., & wehrli, a. (2021). ready, steady, go?—results of the third bis survey on central bank digital currency. in bank for international settlements, working paper no. 114. crisis binder. (october 2019). designing and implementing a systemic financial crisis management simulation. (march 2020). financial stability board. (february 2022). assessment of risks to financial stability from crypto-assets. financial stability implications from fintech supervisory and regulatory issues that merit authorities’ attention. (june 2017). fintech and market structure in the covid-19. (march 2022). guide to supervision in the covid-19 world. (september 2020). international monetary fund and world bank group. (october 2018). the bali fintech agenda: a blueprint for successfully harnessing fintech’s opportunities. oecd. (february 2020). digital disruption in banking and its impact on competition. regulation, supervision and oversight of “global stablecoin” arrangements final report and high-level recommendations. (october 2020c). statista. (2020). share of selected payment methods as percentage of total e-commerce transaction volume worldwide in 2020, by region. the future of monetary system bis annual economic report. (june 2022). iii. the use of supervisory and regulatory technology by authorities and regulated institutions market developments and financial stability implications. (october 2020a). toronto centre. (august 2017). fintech, regtech and suptech: what they mean for financial supervision. https://doi.org/10.20955/wp.2018.026 https://www.bis.org/publ/work765.pdf https://doi.org/10.24149/gwp355 https://www.bis.org/publ/qtrpdf/r_qt1709f.pdf https://www.bis.org/publ/bppdf/bispap114.pdf https://www.bis.org/publ/bppdf/bispap114.pdf https://res.torontocentre.org/guidedocs/designing%20and%20implementing%20a%20systemic%20financial%20crisis%20management%20simulation%20final.pdf https://www.fsb.org/wp-content/uploads/r270617.pdf https://www.fsb.org/wp-content/uploads/r270617.pdf http://www.oecd.org/daf/competition/digital-disruption-in-financial-markets.htm www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 54 published by scholink inc. notes note 1. in this paper, we use the fsb definition of fintech: “technologically enabled innovation in financial services that could result in new business models, applications, processes or products with an associated material effect on financial markets and institutions and the provision of financial services.” note 2. toronto centre (2020) note 3. toronto centre (2017) note 4. auer (2019) note 5. financial stability board (2020b) note 6. adrian & mancini-griffoli (2021) note 7. financial stability board (2020c) note 8. condruta and wehrli (2021) note 9. financial stability board (2017) note 10. statista (2020) note 11. 1 financial stability board (2020a & 2020b) note 12. international monetary fund and world bank group (2018) microsoft word elp-v2n1-p129 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 1, 2019 www.scholink.org/ojs/index.php/elp 129 short research article a secular interpretation of god in christianity under holographic theory yu fu1* & xi kang1 1 sichuan university, chengdu, china * yu fu, sichuan university, chengdu, china received: may 30, 2019 accepted: june 26, 2019 online published: july 1, 2019 doi:10.22158/elp.v2n1p129 url: http://dx.doi.org/10.22158/elp.v2n1p129 abstract god is the core of christian religion, where the whole christian faith and creed rest upon. while the relationship between the mortal and god is the fundamental question that makes christianity distinguish from other religions. this paper aims to discover the secular meaning of god, such as in china, with the perspective of relationship between god and mortal and the theory of holographic theory, which brings atheists a better comprehension of human beings and the universe through a religious philosophy. keywords godholographic theory relationship god in christians is beyond direct human experience and comprehension and omnipresent who acts like a shepherd or a king to human being. it essentially means that everything in the society is connected with god. on the one hand, god is beyond direct human experience and comprehension. christians, not unlike muslims, stand in awe of the majesty and dominion of god over the earth. christians proclaim that just as the human eye cannot look directly into the sun, so human beings cannot comprehend the full magnificence of god. on the other hand, the bible is filled with analogies for god, such as a parent, a woman who is searching for a lost coin, a king, or even a hen. and it’s reasonable for christians to believe god truly loves humanity, like the way a shepherd tending a flock or a parent looking after children. the challenge for christians is to maintain the view of god as both in and outside of the world—to remember that although they believe god cares for them tenderly like the mother, god is still a mystery they can’t understand. thus, christians commonly feel reverence, love, and trust in god: they www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 130 published by scholink inc. recognize god’s majesty and appreciate god’s thoughtful care for them and the world as a whole. christians believe that god is an omnipresent (b. 1225-d. 1274). this god is understood as immanent, or present in the world, and also transcendent, existing far beyond the world and beyond human imagination and experience. christians also hold the belief that individual persons and groups can keep a personal relationship with god, however, god always remains a mystery beyond human understanding. catholics and protestants share this kind of view of god, although catholics often stress the god’s immanence more than protestants. in conclusion, god in christianity is pure spirit, all-powerful (jn 4:24; 1 jn 4:12). god is omnipotent that deserves mankind’s worship and love. obviously, this relationship focus more on mankind’s attitude to god. the whole doctrine is subjective since it is established by humankind. the relationship between god and human kind is in nature man’s aspiration towards god. it is surprising to find that ancient china also paid much attention on exploring the relationship between human kind and other higher level power. in this process, they also discovered some disciplines of human and some unknown power, which is considered to be the nature, which plays the similar role as god does. the i ching, with its seeming infinitude of applications and interpretations, was the essential guide to the universe for two millennia. one of most significant theory in the i ching is heaven and man are united as one, which almost decided the whole direction of chinese ancient philosophy. it stands for a way of thinking and an overlook of world order, considering that heaven, earth and mankind are somehow interrelated. the key conception of this world outlook is that human are bonded with nature, including heaven and earth, that is, there are an internal relationship and interaction between human and nature. furthermore, a foundational importance of nature to human affairs has been expressed in different ways throughout historical record, such as the same category of heaven and man, sharing the same important energy. many chinese philosophers like mencius, confucius and laozi expressed their ideas. for instance, mencius believed that people could gain an understanding of human nature and heaven, emphasizing the unity of thought, humanity and heaven through psychological reflection. and confucian scholars in the song dynasty tried to link nature, humanity and the principles of human thought. while laozi held the view that, “human law is heaven and man, human law is nature, and heaven law is tao”. according to different schools of philosophy, the relationship between heaven and man, the term is explained differently. zhang dainian had a contribution: he pointed out that there are two meanings for the unity of nature and man: one is that heaven and man are connected, and the other is that heaven and man are similar. the latter is the thought of dong zhongshu in the han dynasty, and said that “the heavens and the humans are a kind of thinking that is far-fetched”. of course, it seems that these arguments may be considered in some places, because the connection between heaven and man is similar to that of heaven and earth. at the beginning of the connection between heaven and man, at least there is a saying that the evils of the heavens and the blessings are there, and there is the saying of “hong fan”. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 131 published by scholink inc. to sum up, when chinese philosophy discussed about this issue, the key word must be heaven and man are united as one. it stresses the integration and relationship between heaven, earth, and man. it also emphasizes the fundamental significance of nature to man or human affairs, and describes the endeavors made by man to pursue life, order, and values through interaction with nature. even we live in a time when science made a great success we still ask ourselves: is there any unity in the universe? what is the universe unified in the east? this is one of the most concerned issues of philosophers and scientists both at home and abroad. the idea of the universe of holographic holism is reflected in its cosmology and the unity of cosmology in information. the specific content is, first, the introduction of the universe holographic gene theory. this view holds that the cosmic gene is an infinite small singularity that contains all the information of the universe. its external form is the “singularity” in cosmology. the singularity is the epitome of the universe, and the universe is a singularity. cosmic holographic genes show that the universe has homology, and homology is the source of cosmic unity and cosmic holography. second, any system and even parts of the universe have a common origin, which are the result of orderly manifestation of the same prototype. a lot of things prove that the universe has homology. the trees are made up of simple seeds. the people with the internal organs and the spiritual world are so complicated that they are created by a small zygote. the various solar systems are all in a simple nebula. third, cosmic holographic theory reveals the reasons for the unity and difference of the universe. the existence of the window is the same because the universe has a uniform material level, and there is no identity of the university. when the universe is in the prototype stage, the unity of the universe is the greatest, and the things of the difference are still manifested, contained in the prototype material, and can only exist in the form of information. with the manifestation of the prototype, the unity of university gradually receded, and the information of the difference continued to rise. everything in the universe is different. the phenomenon is due to the manifestation of the prototype, which is attributed to the different forms contained in the prototype. the unity of the universe is rooted in the qualitative identity of the prototype. this reveals why the universe is what it looks like, but it actually has the root cause of unity. fourth, information is material, and the universe is unified information. cosmic information exists in an infinitely dense form. this form of battalion and body is the unified field of cosmic information. all the things that are different from each other are the expressions of the unified field of cosmic holography. the physicists finally found it. the unified field must be a unified field of cosmic holography for the universe. the unity of universe in holographic theory demonstrates not only the originality of the whole world but also its law. everything is originated from and affected by it. combining this conclusion with the relationship between god and human beings, we can say that christianity and heaven and man are united as one share the similar philosophy, which appear in cosmic holographic theory. in secular world, we don’t have a god but we think the universe as our sacred god. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 132 published by scholink inc. references the bible. (2006). catholic study bible. calvin, j. (1960). institutes of christian religion. in t. m. john (ed.), l. b. ford (trans.), westminster john knox. chadwick, h. (1993). the early church.penguin. gonzalez, j. (1999). the story of christianity. prince press. lynch, j. (1995). the medieval church: a brief history. in overview of christianity during the medieval period. longman. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 57 original paper analysis on the legal problems of short video information distortion jiahui yin 1 1 dalian ocean university, dalian 116023, china received: february 20, 2025 accepted: february 28, 2025 online published: march 3, 2025 doi:10.22158/elp.v8n1p57 url: http://dx.doi.org/10.22158/elp.v8n1p57 abstract as one of the new media communication media, the short video platform is an important tool to reflect online public opinion in modern and contemporary times. it reflects the social group image with its main characteristics of comprehensiveness of information, quick operation and wide audience range. however, due to the compatibility of creators in the roles of production, release and dissemination, and the large number of audiences, the distortion of its content has caused multiple problems such as false publicity, reputation infringement and privacy disclosure. this paper analyzes the legal problems of the distortion of public opinion information in the short video platform, and puts forward legal solutions from the aspects of platform responsibility strengthening, algorithm governance optimization, and user rights and interests relief, so as to create a positive and good social network public opinion environment. keywords short video, information distortion, regulatory liability, legal regulation 1. introduction the “objective environment” of media construction in the all-media era is actually a mimicry environment after selection, processing and structuring. at present, the field of short video has become an important source for people to obtain information. it has attracted a large number of users with its characteristics of low production threshold, wide dissemination of information and enrichment of spare time life, but the information transmitted on short video has certain inauthenticity. in the information age, in order to promote the efficient and convenient information, the sound development of social public opinion, and the overall coordination and stability of society, it is necessary to regulate the phenomenon of information distortion in the short video industry in the form of laws. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 58 published by scholink inc. 2. current situation of short video information distortion according to the 52nd statistical report on the development of the internet in china released by the china internet network information center, as of june 2023, the number of internet users in china reached 1.079 billion, an increase of 11.09 million over december 2022, and the internet penetration rate reached 76.4%. the main reason why short video app can become a major information platform is that it takes video animation as the expression form, has strong visual impact, high public acceptance, short video duration, comprehensive information coverage, and uses fragmented time to meet the needs of obtaining information. besides, short video platform has built-in functions of live interaction and comment forwarding, which can shorten the distance between audiences and promote the rapid dissemination of information. the main body of short video creation has the characteristics of civilianization and diversification. its users are creators who integrate production, release and dissemination. as long as they pass the platform certification, they can publish their own works. in order to attract more users, short video content and categories need to be constantly updated, so there are situations where the creative subject wantonly tampers with real information in order to gain traffic attention. for example, through ai face changing, scene grafting and other technologies to falsify the technical distortion of facts. in 2023, an internet celebrity used deep forgery technology to make fake celebrity endorsement videos, which were clicked more than 5 million times. in addition, content-type distortion also occurs frequently. creators fabricate false information behind the scenes to attract attention, resulting in the spread of false information. misleading clips of videos of real events often lead to a reversal of public opinion. even use false information to commit fraud, make false assessments, and exaggerate product efficacy. as a result, hot events are repeatedly banned. 3. legal reasons for short video information distortion due to the characteristics of short video platform, such as wide audience, low user threshold, less review procedures and fast dissemination of information, it is easy to cause information distortion in the process of production, release and dissemination. china’s “network short video content review standards” (2021) mentioned: in view of the new manifestations of pan-entertainment and vulgar kitchenery, which are highly concerned by the society, as well as the typical prominent problems such as pan-entertainment worsening the ecology of public opinion, using minors to produce bad programs, illegally spreading clips of radio and television and internet audiovisual programs, and importing and broadcasting overseas programs without approval, it provides more specific and clear work guidelines for the front-line reviewers of each short video platform, which is conducive to further improving the basic check ability and level of short video platforms for online audiovisual programs, and promoting the clear online audiovisual space. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 59 published by scholink inc. 3.1 it is difficult to identify the subject of responsibility the short video platform is a network environment with the participation of all people, through which users can show their ideas, emotions, knowledge and ideas, its videos are produced, released and disseminated through three processes, in which users can participate at any time, communicate with creators in real time and online, making information transmission more “grounded”, more direct and flat, breaking the one-way information transmission in the past, and gradually transforming people from “information receivers” to “information disseminators”. the multiple subjects of content producer, communication platform and forwarding user lead to the blurred boundary of responsibility. although article 1195 of the civil code stipulates the “notice-delete” obligation of network providers, it lacks regulation on the secondary transmission of algorithm recommendations. (1) users gain attention. once a video is released, the creator and the audience will live interact or forward comments in order to increase their own popularity and increase the number of fans, or maliciously clip videos, take words out of context, and extract influential information to attract fans to click and watch, so that the information will gradually be distorted. (2) lack of social responsibility of the platform. in order to pursue traffic, some short video products will deliberately fabricate sensational news headlines, and use a short video of unknown origin with misleading and inciting words to attract users to watch, comment and forward. this phenomenon of lack of social responsibility is the problem that short video news needs to pay attention to. for example, short video platforms such as douyin and kuaishou, which are popular among young people, and other software such as toutiao, baidu, thepaper.cn and weibo also set short video portals on their home pages. once social news appears, various video platforms compete to obtain “first-hand” information in order to win attention, and are likely to publish videos after partial understanding of the information to win users’ viewing. increase the utilization of software, while ignoring the truth, resulting in information fragmentation. malicious speculation by users and platforms. for controversial topics, in order to increase the response rate and forwarding amount, users will use inappropriate remarks, intensify contradictions and other ways to cause information deviation. in order to obtain clicks and page views, the platform will also play relevant videos repeatedly to attract audience's attention, intensify the debate on hot issues, and lead to the spread of false information. (4) improper remarks by users. with the development of the application of digital technology, the right to speak of short video users has gradually increased. users can make use of short video platforms to produce, publish and disseminate homemade videos to gain traffic heat, popularity and profit, and become producers and disseminators of public opinion. however, due to the different levels of the audience, personal accounts are easy to become a vent for personal emotions. users take advantage of the non-public and anonymous characteristics of the network platform to vent personal feelings and vent personal emotions, and even exceed the boundary of “freedom of speech” restricted by law, malicious dissemination of distorted information and improper remarks, resulting in negative social impacts. (5) low digital literacy of the audience. when encountering controversial short videos, some users fail to maintain an objective and rational attitude, and go with the flow to publish fact-free www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 60 published by scholink inc. speculative remarks, or even launch vicious comment interactions, which seriously pollute the network environment. the audience has a weak sense of self-supervision and does not have their own arbitrary ideas and rational conclusions, which can easily lead to facts deviating from the essence and difficulties in controlling their emotions. verbal damage to others, malicious concealment of things often bring irreversible harm. for example, the internet celebrity “xiaoqixing” unilaterally advocated the “rice, flower and fish rip-off” of the nujiang farmers’ music in yunnan province on the tiktok platform. its fans criticized the nujiang farmers’ music, causing a negative impact on local tourism for a while. however, the truth was that there was no “rip-off” phenomenon, but the internet celebrities only made unilateral statements, which led to the irrational remarks of other users and led to information distortion. deviating from the truth itself to maliciously insult others, really caused no small impact on the social environment. 3.2 audience ingestion information deviation short video user base is large, different users have different views on the same event, thoughts cannot be unified, as a bystander of an emergency, users willfully make comments, not only will make the original event deviate, but also easy to have extreme understanding of the event. (1) directness of communication. the emergence of short video breaks the traditional interactive communication methods such as “face to face” and “offline”. it uses the network platform to make interactive comments, which shortens the distance between the communicator and the audience and changes the passive position of the public as the audience in the past. the public can choose the topics they are interested in in the field of short video and pay attention to them, update them constantly, comment and interact with them, etc. it is possible to communicate directly with the communicator. although this mode of communication is convenient and fast, it is impossible to check the authenticity of information. since information is communicated directly, it is difficult to determine the source and authenticity of information. the language of the internet is unique, which is characterized by the instant, interactive, informal and oral nature of electronic text. it is easy for users to enter the scene and trigger empathy, and visual impact is easy to lead to user cognitive loss and single emotional point of view. (2) pandering to vulgar tastes. short videos have a wide audience, and many bad content and negative remarks are also spread through them, affecting the cultivation of correct values, absorbing vulgar content to attract popular traffic, and gaining attention with “vulgar” will not only affect the authenticity and comprehensiveness of information, but also affect the mainstream concept of society with one-sided remarks. (3) communication anonymization. the anonymity system is often adopted on the short video platform, and the audience can criticize and comment at will, judge the right and wrong only by their own emotional guidance and value standards, and express their opinions emotionally, which is easy to drive the direction of public opinion and lead to information distortion. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 61 published by scholink inc. 3.3 platforms are inefficient at dealing with problems information release on the short video platform is convenient and fast, and the enthusiasm of users is high, and the average daily growth amount is as many as one million, showing a massive growth trend. compared with traditional media, such as books, periodicals and newspapers, which strictly review and check the content of public opinion, the relevant mechanism for reviewing short video content is slightly inferior. (1) mistimed information review. according to the statistics of the communication school of beijing normal university, nearly one-fifth of the false information on the short video platform is spread through the form of video comments and forwarding. many users will take advantage of the mistiming of network communication to maliciously clip or take the authentic information out of context, resulting in the deviation of the actual content published and the final result presented. this series of behaviors is likely to cause information distortion, and even produce extreme remarks and false rumors, which will bring misunderstanding to the public. (2) fewer review procedures. the short video platform only has two stages of preliminary review and review when reviewing videos, and there is a phenomenon of “first review and later review”, which will cause the rapid spread of illegal information while obtaining first-hand traffic attention, so the effective supervision procedure of short video platform is still an important link to reduce the incidence of public opinion caused by false information. (3) lack of restrictions on the platform. at present, the right to review the authenticity of video is only controlled by the network platform, and professional supervision institutions do not have the relevant technical conditions to effectively review and timely curb the authenticity of information. 4. short video information distortion legal advice in the era of big data, when people enjoy the quick and convenient dividend of short video communication information, they should also take measures to jointly control the social impact caused by short video communication distortion information. 4.1 implement the principal responsibility system as a communication tool of public opinion in the new era, short video has a wide audience, both mass media and network users should shoulder the responsibility of screening information, and implement the sound development of everyone's supervision and law-abiding. (1) the mass media bear the main responsibility. when screening information, media on various platforms should not take the traffic view as the benchmark, but should strengthen the review of video content based on the principle of event authenticity. professional management departments should be set up to improve the authenticity of short video information supervision and deepen participants’ awareness of responsibility. (2) the user assumes supplementary responsibility. the platform stipulates that short video users must register with their real names, which is an important maintenance of the “responsibility system”. avoid bloggers who do not have relevant knowledge and ability, wantonly look at and judge hot events and information, and deliberately create false images and information in order to gain traffic. at the same www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 62 published by scholink inc. time, legislation and regulations should be established to establish a corresponding filing mechanism for big v and net celebrity bloggers to ensure that the information released by them is authentic and credible. the responsibility is implemented to individuals, so that short video users can improve self-regulation, enhance network consciousness, and cultivate responsibility awareness. 4.2 cultivate legal consciousness (1) open a common law account. the short video platform is used to set up a special legal publicity account, analyze the newly revised laws or typical cases, and comment on the law of hot social topics, etc., to popularize the relevant laws to the public, ensure the authenticity of information, and enhance the public’s trust in the law. (2) use big v power. china’s short video platform users and fans of up to ten million video bloggers nearly a thousand people, to regulate the network talent to improve information discrimination, seriously participate in online information education, do not be false information, rumors and slander disseminators, so as to correctly guide the direction of fans. (3) standardize online speech. the network is not an “impossible place”, in addition to its own constraints and platform restrictions, should be regulated by law. china’s “detailed rules for the review of network short video content” (2021) restricts 21 kinds of network speech that are harmful to society, so that the network “freedom of speech” has been limited to a certain extent, but these contents need to be detailed. 4.3 strengthen platform supervision the primary premise for the long-term development of short video platforms is to maintain social public morality as the goal, and to assume the social responsibility of providing real information and people’s trust in the data era. (1) establish a “technology neutral exception principle” to impose a higher duty of care on platforms that adopt algorithmic recommendations. (2) increase review procedures. the current mechanism of china’s short video platform only exists second trial, the law needs to increase the intensity of review of short video content, advocate the establishment of professional information review team of short video platform, avoid the drawbacks of artificial intelligence stereotyped screening information, increase the cost of manual review, not only can promote employment, improve the authenticity of information, but also make the network environment in line with mainstream development. increase public trust in short video platforms. (3) combat malicious dissemination. china’s “detailed rules for the review of network short video content” (2021) defines 21 kinds of video content that violate national regulations, but malicious transmission based on the above content should also be severely punished by legislation. laws and regulations on the release and dissemination of short videos are still not perfect, and the law needs to define “malicious communication”, and punish the forwarding or commenting of information that is known to be false or the forwarding of content that contains the above prohibited 21 violations, so as to standardize the network environment. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 63 published by scholink inc. 5. conclusion in the era of big data, the rapid rise of short video apps has become an important tool for information exchange, which has played a huge role in promoting social development. however, its own drawbacks make its information falsity and false. therefore, it is necessary to analyze the legal problems involved in short video information distortion, and put forward corresponding legal solutions and suggestions. the control of short video information distortion needs to break through the mode of “post-responsibility” and turn to the comprehensive regulation of technology, law and ethics. in the future, it is necessary to further clarify the obligation of deep synthetic content identification through legislation, establish a platform algorithm filing review system, and finally realize the legal and orderly information transmission in the digital era. references cao, j. s. (2009). on the subject construction of mimicry environment. nanjing social sciences, 2, 98-103. deng, z. h., wang, s. f., & zhao, m. x. (2014). public participation and foresight in the planning of new media: a case study of the expansion project of guangzhou dafa temple. urban planning, 7, 84-90. leng, s. (2020). the migration of “human fireworks” and the two-way construction of “realistic picture”—the reconstruction of short video and mimicry environment under the covid-19 epidemic. journalism and communication, 9, 111-125, 128. pang, y. (2024). the new voice of the dissemination of short video news of mainstream media—a case study of short video news of “news network” and “douyin”. satellite television and broadband multimedia, 11, 61-63. wang, x. x. (2022). research on the problems and countermeasures of we-media’s participation in public opinion communication in social hot events. tianjin university of technology. zhou, z. q., & hong, j. j. (2022). current situation and countermeasures of short video public opinion communication. western radio and television, 17, 23-25. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 134 original paper the dilemma of identifying copyright infringement liability of network platform under algorithm recommendation model ruifei zhou 1 & siyi xiong 1 1 southwest minzu university, chengdu, sichuan, china received: september 1, 2024 accepted: september 20, 2024 online published: september 25, 2024 doi:10.22158/elp.v7n2p134 url: http://dx.doi.org/10.22158/elp.v7n2p134 abstract in the digital age, the application of algorithm technology realizes the efficient transformation from “people looking for information” to “information looking for people”, which greatly expands the transmission boundary of articles and video content. however, to some extent, this kind of change also intensifies the problem of copyright infringement on the network platform. once online copyright works are published, they can be widely disseminated, and it is difficult to remedy the damage suffered by them. the existing laws and regulations have deficiencies in this regulation. this paper starts from the dilemma of network copyright protection under the algorithm recommendation mode, and puts forward some relief measures such as platform filtering obligation based on the actual situation. keywords algorithm recommendation, network platform, copyright, tort liability, safe harbor principle 1. introduction algorithms are closely combined with platform applications, which have a profound impact on public and private areas of social life. driven by the wave of digitalization, algorithm recommendation technology has become a key driving force of information dissemination, which not only reshapes the way of information acquisition, but also expands the communication boundary of works virtually. however, this technological progress has also brought new challenges to copyright protection. the identification of copyright infringement liability of network platform under the algorithm recommendation mode has become an urgent problem in legal practice and theoretical research. the purpose of this paper is to deeply analyze the dilemma of online copyright protection under the algorithm recommendation mode, and examine the adaptability and limitations of the existing legal norms. firstly, the paper analyzes the internal mechanism of the algorithm recommendation system, and reveals the technical logic and value orientation behind its so-called “pseudo-neutrality”. further, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 135 published by scholink inc. this paper discusses the problem of “should know” in the face of copyright infringement, and the challenge of “notice-delete” rule in the modern mode of information dissemination. on this basis, this paper puts forward countermeasures such as strengthening the censorship obligation of network platforms and establishing the copyright filtering obligation, in order to provide a more solid legal foundation for the copyright protection of network platforms, and promote the healthy development of intellectual property rights and the advancement of science and technology. 2. the dilemma of network copyright protection under the algorithm recommendation model 2.1 the “pseudo-neutrality” of algorithm recommendation 2.1.1 algorithm recommendation and its mechanism the network platform collects user data to build user portrait, including the user’s basic information, interests, knowledge and other content, and provides the user’s preference information accordingly. the algorithm recommendation system realizes the personalized configuration of information resources through the combination of big data logic and artificial intelligence logic in the field of information dissemination. this personalized configuration not only improves the efficiency of push and enhances user stickiness, but also brings problems such as gatekeeping transfer and filter bubble, which have caused the disorder, differentiation and differentiation of social thought value to a certain extent. in the context of the rapid development of internet information and information technology, domestic and foreign information platforms such as various media headlines and commercial wechat public accounts take “traffic is king” as their goal orientation, and their content distribution and information recommendation mechanisms are mostly affected by this. from the technical logic point of view, algorithm recommendation is not completely unconscious. it is not only a set of specific technical coding and calculation procedures, but also a system architecture including the team and its news values. before selecting information for the user, the recommendation system must use the known information of the user to complete the prediction of the recommended object. at present, the recommendation system has different classifications from different perspectives, and different scholars give it different connotations. at present, the traditional algorithm recommendation mode mainly includes the following three types: ① recommendation based on content filtering. this model uses the user’s history or historical preferences as a reference basis to recommend highly relevant content to the user. the user’s interaction record in a certain period of time is obtained through the user’s feedback, and then the user’s preferences in these records are learned and marked as features. for example, user a likes video a, and the recommendation system selects videos that are similar to video a from a large number of videos. ② recommendation based on collaborative filtering. the core of this recommendation is to evaluate the interdependencies between users and content, and further predict the association between new users www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 136 published by scholink inc. and content. it includes content-based collaborative filtering recommendation and user-based collaborative filtering recommendation. among them, content-based collaborative filtering recommendation focuses on the similarity between contents. for example, users a and b both show a high preference for music a and b, so it can be considered that music a and b have some similarity. when a new user c chooses music a in the system, the system will also recommend music b for him.1 user-based collaborative filtering recommendation is similar. the system considers users a and b to be similar. when user a selects music a, b and c, and user b selects music a and b, the recommendation system recommends music c to user b.2 due to the complex changes in the social environment, the recommendations generated by the system for users often lag behind the changes in personal preferences, and user preferences may be affected by the surrounding environment. therefore, some scholars have proposed a recommendation method based on social network content. this method effectively alleviates the problems of cold start and data scarcity. ③ mixed recommendation. content-based recommendation technology takes a long time to process large scale information content, resulting in reduced timeliness of information; collaborative filtering technology is prone to cold start and data scarcity when facing new users and new content; the hybrid recommendation technology is a recommendation way to retain the advantages of different recommendation technologies, and different algorithms are integrated into the recommendation system, which is divided into different stages of mixing. “pre-fusion” fuses multiple recommendation algorithms into one model. for example, in the process of product recommendation, the product features that users are interested in are extracted as the input of the recommendation model according to their historical purchase records, and the recommendation algorithm in the mixed model generates the recommendation result through adaptive learning; “post recommendation” by comparing the effect of different recommendation algorithms to obtain a sequence of recommended objects with high reliability, and finally recommend this sequence to the user (yu, m., he w. t., zhou, x. c. et al., 2022, pp. 1898-1913). the recommendation algorithm relies on the user’s own preferences to push relevant content. when the user’s preferences happen to involve copyrighted works, the content recommended by the platform may be infringing works published without the consent of the copyright owner. when it comes to the identification of copyright infringement liability on the internet, what kind of liability the platform bears has become the focus of judicial practice. 2.1.2 the “pseudo-neutrality” recommended by algorithms recommendation algorithms, seemingly objective and unbiased algorithm recommendation systems, may in fact have unfair effects on certain groups or individuals due to factors such as data bias, algorithm design and user behavior. at present, algorithmic information segmentation mode has the advantages of mining user needs and improving user stickiness, and occupies the dominant position of mobile information distribution mode. the distribution mode recommended by algorithm is different www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 137 published by scholink inc. from the traditional media and relational distribution. it collects user data, deeply analyzes user behavior to form user portrait, and distributes information in a customized way, which has the characteristics of individuation and automation. the automated program does not mean the neutrality of the algorithm recommendation. the operation of the recommendation algorithm is the interaction of user behavior, algorithm and platform. from the perspective of the operation mechanism of the recommended algorithm and the control ability of the platform to the algorithm, the algorithm recommendation has “pseudo-neutrality”. the operation mechanism of algorithm recommendation is an important reason leading to its “pseudo-neutrality”. the above operating mechanism depends on the user portrait, which is formed with a certain underlying logic, and the underlying logic is input by the algorithm designer, which often reflects the value orientation of the network platform. secondly, the personalized recommendation information is not all the content of the user’s real preference, there are many traffic oriented information or major news, with the purpose and value orientation of the platform. in order to make the user label more accurate, the optimization and correction of the algorithm are essential, which also reflects the value orientation of the platform. for example, tiktok platform, through its algorithm recommendation system, is committed to meeting the needs of users to record their lives, and adopts algorithms such as heat weighting and superimposed recommendation to enhance user interaction and content dissemination; cctv represents the algorithm recommendation logic of the national mainstream media, which not only pursues traffic, but also pays more attention to the value and depth of content. central video algorithm adds positive energy, social evaluation and value dissemination and other elements, through the content perception ability to automatically screen and recommend quality content, in order to promote the formation of rich and diversified content ecology. when building the algorithm recommendation system, both platforms pay attention to the combination of technology and value. through algorithm optimization, tiktok has strengthened the personalized recommendation of content and the dissemination of positive energy; while cctv, through its algorithm, strengthens the social responsibility and value leadership of mainstream media, and promotes the construction of high-quality video social media. the platform has the realistic control ability of the algorithm, which further explains that the neutrality of the algorithm recommendation is difficult to be established. many scholars believe that if the platform can set, select and control the algorithm, then the neutrality of algorithm recommendation is difficult to be established. today’s headlines held a sharing and exchange meeting on algorithms in 2018, which made it clear that today’s headlines recommendation algorithm has been adjusted and modified four times since the first version of development and operation in september 2012. moreover, the algorithm distribution is not to give all decisions to the machine, we will continue to correct errors, design, supervision and management of the algorithm model. jinri toutiao’s recommendation products adopt real-time training, which can quickly capture user behavior and feed back to the recommendation effect. it also provides user feedback channels, allowing users to give feedback on the recommended www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 138 published by scholink inc. content. the platform will adjust the recommendation strategy according to user feedback. although the algorithm can complete part of the recommendation work, toutiao will also conduct content intervention to ensure the quality and diversity of the recommended content, and avoid the problem of the algorithm becoming narrower. its president has also publicly pointed out that it will “integrate the right values into technology and products”, and continue to strengthen the manual operation and review of the platform’s algorithms. 2.2 the dilemma of “should know” article 1197 of the civil code clearly stipulates that if an internet service provider knows or should know that an internet user infringes the civil rights and interests of others by using its internet service, and fails to take necessary measures, it shall bear joint and several liability with the internet user. the regulation is known as the “red flag principle”, which means that if the fact of copyright infringement is obvious, waving like a “red flag”, internet service providers should not turn a blind eye to it or avoid legal responsibility by saying that they did not know about the infringement (jiang, 2016, p. 624). the “red flag principle” requires internet service providers to exercise a reasonable duty of care and not adopt an “ostrich policy” of turning a blind eye to clearly infringing content or links. however, in the algorithm recommendation mode, it is more difficult to determine the subjective fault of internet service providers. because the process of information input-information output is opaque, it is difficult to judge the degree of intervention and control of the platform in the dissemination of infringing content, and the “black-box operation” makes it difficult for the public to snoop on its mechanism. in judicial practice, when determining the “should know” of an internet service platform, it mainly relies on the following three regulations: first, an internet user infringes the civil rights and interests of others on another’s website; second, network service providers know or should know that network users use their network services to infringe on the civil rights and interests of others; third, the network service provider fails to take necessary measures to delete, shield or disconnect the infringing information of the network user infringing on the civil rights and interests of others. according to this, if the network service provider knows or should know that the network user has infringed the civil rights and interests of others on its own website, and fails to take necessary measures, it shall bear joint and several liability for the damage caused by the infringed party and the network user who has infringed the civil rights and interests of others. this gives rise to another dilemma of determination. the term “necessary measures” can be understood in two ways. the first means measures that are commensurate with capacity. taking beijing worldwanxiang culture media v. beijing microtv as an example, the court held that the platform can take necessary measures such as deleting, blocking and disconnecting links. as an internet service provider operating an information storage space, webov has no obligation to review and monitor works uploaded by internet users in advance. worldwanxiang culture media complained about the douyin user’s infringement once, and subsequently took necessary measures to delete the relevant videos. the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 139 published by scholink inc. court concluded that the company had taken the necessary measures and did not make any subjective mistakes. another understanding refers to the effective measures that can stop the infringement. take han han v. baidu as an example. for the infringing documents involved in the case, baidu advised users on several web pages not to upload infringing works, launched an anti-piracy system, deleted the infringing documents in time specifically for the dispute in this case, and used the author’s name and the title keyword of the work to screen the documents. the company took various measures, but failed to effectively stop the infringing acts. as can be seen from the two very different judgments, determining whether the “necessary measures” have stopped the infringement is closely related to the existence form of the infringing content and the situation of the network service platform itself. the dilemma of the above determination gives the judge greater discretion, so the inconsistent results also make the network platform itself confused, at any time there is a risk of helping the infringement. in addition, in order to avoid the risk, the platforms often take excessive measures to solve the problem, more than necessary. 2.3 the challenge of the “deletion-notice” obligation the “notice-delete” rule is the liability or exemption for the storage, search, link and other services provided by the network service provider under the internet environment. it is the core content of the “safe harbor” rule, and also constitutes an important rule for the internet service provider to provide service exemption. in the field of network information communication, the introduction of algorithm technology has significantly changed the mode of communication, and has had an impact on the protection of network copyright. in traditional information dissemination, users actively seek and publish information, while in the mode of algorithm recommendation, information dissemination becomes passive acceptance by users. the transmission of information is no longer simply dependent on the upload of users, and the platform uses algorithms to control the distribution of information (jiao, 2023, pp. 145-160.). for example, the tiktok platform will make stepped recommendations for newly published content and actively push information to users. this approach leads to an increase in the speed and scope of the dissemination of infringing information on the platform, which makes the damage of infringing acts expand rapidly and form a causal relationship. the duty of care of traditional internet service providers mainly revolves around the “notice to delete” rule. in order to fulfill the duty of care for users’ infringements, major content aggregation platforms generally set up specific channels to receive and respond to infringement notices. these channels make it easy for rights holders to report infringements to the platforms, thus prompting the platforms to take corresponding measures to protect intellectual property rights. in recent years, with the continuous development of the society ruled by law, the public’s awareness of intellectual property rights protection has increased significantly. this change has not only increased people’s attention to their own rights and interests, but also prompted more rights holders to actively take legal means to safeguard their legitimate rights and interests. as a result, the number of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 140 published by scholink inc. infringement notices received by many well-known platforms has also increased, and the legal responsibilities and management pressures faced by the platforms have also increased. according to the 53rd statistical report on china’s internet development released by the china internet network information center, the number of short online video users in china reached 1.067 billion by december 2023, an increase of 36.13 million over december 2022, accounting for 97.7 percent of the total netizens. according to the announcement of douyin, from january to june 2021, the company accepted 38,918 complaints about copyright infringement by creators, and removed 23,215 related infringing videos; in daily inspections, 720,000 videos for copyright infringement were removed. in june, google also announced that google search had handled one billion dmca (digital millennium copyright act) infringement notices in a four-month period. these figures reflect the rising tide of copyright infringement in the online world, where the notice-and-remove model is difficult to sift through. after receiving a notice of infringement, internet service providers need to promptly take necessary measures to prevent further damage from infringement. in practice, however, the criteria of “timeliness” and “necessity” are often difficult to quantify, leaving platforms with greater room for discretion in implementing relevant measures. specifically, how to judge what is “timely” and what measures are “necessary” may be interpreted differently in different contexts, leading to inconsistent performance of platforms when responding to infringements. due to the unique characteristics of network media, in the face of massive information and dynamic content, there is often a lag in the implementation of the “notice-delete” mechanism, which is difficult for service providers to achieve real-time monitoring and processing. the number of infringement notices is so huge that even after receiving the infringement notice, the response of the online platform may lag, delaying the deletion of the infringing content. in addition, the “notice-delete” model is seen as a remedial measure after the fact, which is particularly negative for time-sensitive information, especially infringement involving reputation, privacy and other sensitive areas. at this time, the rights and interests of the right holder may have been irreversibly damaged, and the response measures of the platform may not be able to effectively provide protection. this mode only requires the network platform to undertake the negative deletion obligation after the damage occurs, which is often difficult to protect the legitimate rights of the right holder in time. 3. countermeasures 3.1 appropriate expansion of review obligations the current algorithmic network information dissemination mode has had an impact on the copyright censorship obligations of platforms under the old technological environment: the scope of censorship obligations of platforms in the “notice-take measures” and “know-take measures” rules is no longer suitable for practical needs, and does not match the technical capabilities of network platforms (gai & xin, 2019, pp. 78-86). by quickly matching platform information and user preferences, algorithmic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 141 published by scholink inc. push technology achieves accurate content delivery, which greatly expands the propagation speed and scope of works. however, it may also lead to the rapid spread of infringing works and increase the difficulty of copyright protection. to address this challenge, technological developments have also brought new solutions. the application of algorithmic filtering technology has improved the platform’s ability to monitor and discover infringing works. for example, the trusted time stamp infringement monitoring service platform uses deep learning technology to perform intelligent analysis of video, pictures, audio and text content to achieve real-time monitoring and automatic forensics. in 2022, the 12426 copyright monitoring center, relying on artificial intelligence and big data and other technologies to monitor the whole network, monitored a total of 8.886,700 works and 42.251,100 links for suspected infringement (2022 network copyright monitoring and protection report—12426 copyright monitoring center.). at present, the network infringement data is so huge that only the two rules are limited to delete after all, and after the infringement works involved in the infringement notice are deleted, there may still be a large number of the same infringing works that have not been found by the right holder, or the network users have subsequently uploaded the infringing works, which will still be pushed to the matching users by the algorithm push technology adopted by the platform. in addition, the platform will passively comply with the narrow censorship obligations based on its own interest considerations. in tencent’s lawsuit against douyin for infringement of douluo continent, the first intermediate people’s court of chongqing issued a pre-lawsuit injunction against douyin, requiring it to delete all videos in douyin app that infringe upon the right of online communication of douluo continent animation works, and take immediate and effective measures to filter and block users’ uploading and disseminating videos that infringe upon the right of online communication of douluo continent animation works. there are many similar cases in china. youku, which owns the exclusive right to broadcast yu lou chun, sent a warning letter to station b on the same day the show was launched, but a large number of infringing videos still appeared on station b. within half a month, youku complained to b station a total of 19 batches, at least 2,800 infringing links. in a short period of time, online platforms can obtain a large amount of traffic with the help of the possible infringement behavior of internet users, passively follow the legal provisions, only take measures against the suspected infringing works in the “notice”, and even delay the time, which greatly damages the revenue of the hot season of movies and tv series. it can be seen that the scope of censorship obligations under the two rules is narrow. based on the practical needs, it is necessary to expand the copyright censorship obligations of platforms, and at the same time, it is necessary for platforms to assume greater responsibilities and take active measures to protect the legitimate rights and interests of copyright owners. 3.2 set up the copyright filtering obligation in the early stage of internet development, the “safe harbor principle” and “red flag principle” delineated a space of responsibility preferential treatment for internet service providers, which could better protect the copyright of right holders in the post-regulation. however, article 41 of the e-commerce law, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 142 published by scholink inc. promulgated in 2018, clearly stipulates that e-commerce platforms should establish rules for the protection of intellectual property rights, emphasizing that platforms should strengthen cooperation with intellectual property rights holders to build a comprehensive protection system. this not only requires platforms to take action after infringement occurs, but also emphasizes that platforms should assume the responsibility to protect intellectual property rights in the prior stage. in recent years, the cac has also strengthened supervision over internet platforms, requiring them to conduct stricter review and management before content is released. the regulations on the management of online audio and video information services, issued by the cac in 2019, require online audio and video service providers to strengthen supervision over content posted by users and use technical means to prevent the spread of illegal content. the 2021 regulation on the management of information services for internet users’ public accounts further stipulates that platforms need to manage the operators of information content and public accounts, protect the copyright of original works and prevent infringement. in 2022, the cac also issued the regulations on the management of internet comment services and the regulations on the management of information services for mobile internet applications, both of which require platforms to implement a system of “review before release” of content posted by users to ensure the legality of information content and prevent the spread of illegal and undesirable information. the platforms should be responsible for the results of the information presented. the regulations reflect higher requirements for internet platforms in terms of content management and intellectual property protection. in fact, the lack of prior regulation is difficult to effectively curb the chaos of online infringement. online infringement is easy to spread quickly, and the “notice-delete” after-action relief depends on the quick response of right holders and platforms. if one party does not respond in time, the network infringement will continue to spread, causing huge damage. online platforms are facing increasingly high legal requirements and social responsibilities in copyright governance. it is necessary and feasible to start the copyright filtering obligation. some courts have advocated in their judgments that short video platforms should adopt copyright filtering measures to protect copyright, and some short video platforms have begun to develop and use relevant technologies to filter infringing content in order to fulfill their copyright protection obligations (see shenzhen tencent computer system co., ltd., tencent cloud computing (xi’an) co., ltd. v. beijing micro broadcasting technology co., ltd., and other disputes over infringement of the right to information network communication, xi’an intermediate people’s court, shaanxi province (2021) shaanxi 01 zhiming chu no. 3078 civil judgment.). the implementation of copyright content filtering measures is mainly based on intelligent content analysis filtering method, which carries out multi-angle in-depth analysis of copyright work information through language analysis, image processing, algorithm learning and other technologies, automatically identifies the content characteristics that need to be filtered and builds the corresponding works database (cui, 2017, pp. 215-237). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 143 published by scholink inc. whether the network service platform needs to bear a higher duty of care for the content recommended by the algorithm technology, so as to ensure the legitimacy of the recommended content, is an important issue that is highly controversial at present. algorithm recommendation technology has deeply penetrated into the operation and management of short video platform. the platform uses algorithm technology to distribute big data content, and carries out personalized and accurate push by analyzing the interaction between users and content. the recommended content includes both high-quality original works and unauthorized infringing content (zhang & wang, 2022, pp. 54-74). in the process of developing a specific algorithm technology scheme, the designer will determine the evaluation criteria and objectives that reflect the value orientation of the platform operator, which has a decisive impact on the construction and development direction of the algorithm. to some extent, the “pseudo-neutrality” of algorithms encourages copyright infringement. therefore, algorithmic recommendation technology is one of the reasons why copyright filtering obligations are initiated. of course, the creation of copyright filtering obligations does not mean that all works should be censored. on the one hand, it is impossible for platforms to filter all works at the huge cost of technology and detection. on the other hand, although the copyright law stipulates that copyright owners enjoy copyright in their works, it does not mean that the network platform, as a private subject, has the obligation to ensure the realization of the rights and interests of all copyright owners. the realization of copyright also requires copyright owners to actively defend their rights (zhu, 2024, p. 16). not all copyrighted works have significant risk of infringement, and network infringement is more common in popular copyrighted works. copyright filtering technology should focus on such objects. 4. conclusion personalized algorithm recommendation technology has become a key tool for network platform to attract users and realize economic benefit growth. however, while improving the user experience, this technology also provides convenience for copyright infringement. in the current field of copyright protection, the protection of network copyright is undoubtedly an important issue. although the “pseudo-neutrality” of the algorithm recommendation technology has made the traditional defense of “technology neutrality” no longer applicable, the current legal norms for the infringement liability of network platforms still mainly rely on the “notice-delete” rule as a post-facto remedy. for the network platform that widely adopts intelligent algorithm recommendation, post-event regulation is no longer enough to effectively curb the spread of infringement and damage. the improvement of legal regulation is a dynamic process, which needs to absorb the comprehensive consideration of multiple factors such as technology, economy and society. the legal framework for copyright protection on online platforms must be flexible and forward-looking enough to adapt to the rapidly changing digital environment. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 144 published by scholink inc. funding project: research on legal issues of "information cocoon" from the perspective of algorithmic power (project no. 202410656025) references 2022 network copyright monitoring and protection report—12426 copyright monitoring center. cui, g. b. (2017). on the copyright content filtering obligations of internet service providers. china law school, 2017(02), 215-237. gai, w. n., & xin, s. (2019). moderate expansion of copyright censorship obligations of online platforms in the algorithm era. journal of shandong youth university of political science, 39(06), 78-86. jiang, b. x. (2016). judicial interpretation and guiding case understanding and application of the supreme people’s court (vol. 4, p. 624). beijing: people’s court press. jiao, y. f. (2023). research on identification of copyright infringement liability of network platform under algorithm recommendation model. science and technology and innovation, 2023(s1), 145-160. see shenzhen tencent computer system co., ltd., tencent cloud computing (xi’an) co., ltd. v. beijing micro broadcasting technology co., ltd., and other disputes over infringement of the right to information network communication, xi’an intermediate people’s court, shaanxi province (2021) shaanxi 01 zhiming chu no. 3078 civil judgment. yu, m., he, w. t., zhou, x. c. et al. (2022). review of recommendation systems. journal of computer applications, 42(06), 1898-1913. zhang, j. y., & wang, s. f. (2022). copyright duty of care of algorithmic recommendation service providers under the principle of digital goodness. intellectual property rights, 2022(11), 54-74. zhu, s. y. (2024). reconstruction of copyright governance obligation system of china’s short video platforms[c]//shanghai law society. in collection of smart rule of law, vol. 1, 2024—proceedings of the rule of law forum of the 2024 world conference on artificial intelligence (p. 16). china university of political science and law. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 43 original paper effectiveness of the uk aml system and strategies for improvement chenyang liu 1 1 newcastle university, uk received: october 10, 2024 accepted: october 18, 2024 online published: october 20, 2024 doi:10.22158/elp.v7n3p43 url: http://dx.doi.org/10.22158/elp.v7n3p43 abstract as the cost of anti-money laundering (aml) compliance in the uk continues to rise, financial crime rates have not fallen. this study assesses the effectiveness of the uk’s anti-money laundering (aml) system and proposes strategies for improvement. the research examines the current legal framework, including the proceeds of crime act (poca) and the money laundering regulations 2017 (mlr2017), assessing their role in preventing and combating financial crime. analyzing case studies and statistical data, the findings suggest that while the uk aml system has been effective in identifying and deterring money laundering, significant challenges remain. insufficient sharing of information between agencies, uneven allocation of resources, and inconsistent regulatory enforcement hinder overall effectiveness. to address these shortcomings, the study makes several strategic recommendations: strengthening inter-agency cooperation, leveraging advanced technological solutions for data analysis and reporting, improving training and awareness programmes for financial institutions, and improving the legal framework to adapt to emerging threats. implementing these recommendations could strengthen the uk’s anti-money laundering (aml) efforts, making them more robust and responsive to the evolving financial crime landscape. ultimately, this study aims to contribute to the current debate on the effectiveness of aml and to make recommendations for improving the aml system’s response to the complexities of money laundering in order to strengthen the uk’s position in the global fight against money laundering. 1. introduction the financial burden of anti-money laundering (aml) compliance in the uk has been steadily increasing for over a decade. instead of decreasing, financial crime rates have continued to rise despite significant investment. this situation prompts a critical investigation into the effectiveness of current aml measures at an operational level. a review of whether the existing aml framework is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 44 published by scholink inc. fundamentally flawed and no longer able to effectively address the challenges it was designed to address is therefore necessary. such a reassessment could provide a path for identifying the necessary reforms or alternatives to improve the effectiveness of anti-money-laundering efforts in the fight against financial crime. money laundering is itself a crime (note 1). money laundering is an illegal activity carried out by criminals which occurs outside of the normal range of economic and financial statistics (note 2). according to the definition of international compliance association (ica), money laundering is the generic term used to describe the process by which criminals disguise the original ownership and control of the proceeds of criminal conduct by making such proceeds appear to have derived from a legitimate source (note 3). however, with the rapid advancement of modern technology, this illegitimate money can be transferred to any part of the world through electronic transfers. it‟s extremely harmful to the financial system, not only leading to market distortions that prevent normal economic activities from taking place in a fair market environment, but also creating additional compliance costs and reputation risks for financial institutions. the cost of anti-money laundering compliance in the uk has been rising disproportionately for more than a decade, but financial crime rates have continued to rise. according to data released by the hm government, the number of people sentenced for money laundering offences is on a slow upward trend from 2018 to 2022 (data as of 2022) (note 4). a serious concern arises in the current situation, which is is the present aml system broken and no longer fit for purpose? as whitehouse concludes that „the cost of compliance is increasing rapidly but it would be a brave person who steps up to say that it is too high a price to pay for countering terrorism and serious crime‟ (note 5). indeed, the aml system has a number of problems and challenges, but it has not been broken and still carries out a key role in deterring and detecting money laundering. this essay will initially consider the challenges for the aml system, secondly it will critically assess the effectiveness of the aml system in combating financial crime and property recovery and finally make some recommendations on the current system. 2. challenges to aml compliance the cornerstone of the united kingdom‟s anti-money laundering legislation is the proceeds of crime act (poca), complemented by foundational regulations such as the money laundering regulations 2017 (mlr2017). the financial conduct authority (fca) enforces these provisions in strict accordance with the established legal framework. the regulatory environment has been further strengthened with the introduction of unexplained wealth orders (uwos) under the criminal finances act 2017 (cfa 2017). unexplained wealth orders (uwos) have proved to be an important tool in the investigation of individuals whose assets are disproportionate to their known legitimate income, and are particularly important in cases involving international corruption and money laundering. in addition, the economic crime (transparency and enforcement) act 2022 reinforces www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 45 published by scholink inc. aml as a framework by increasing transparency requirements for foreign companies investing in uk real estate, thereby strengthening the government‟s ability to monitor money laundering and facilitate asset recovery. this includes mandatory registration and disclosure of beneficial ownership information, which enables authorities to more effectively trace the source of funds used in real estate transactions. enhanced access to data allows for improved risk assessment, improves investigative capacity and ultimately helps to identify and recover illicit assets. while the money laundering reporting officer (mlro) plays a crucial role in monitoring compliance within financial institutions—such as banks, insurance companies, investment firms, casinos, and high-value dealers—responsibility for oversight is not limited to the mlro alone. other designated professionals, such as money laundering compliance officers (mlcos), also contribute to ensuring adherence to anti-money laundering regulations. these professionals play an important role in complying with anti-money laundering regulations, employing advanced technology for continuous monitoring, and ensuring that all employees are trained in the latest anti-money laundering practices to combat evolving criminal tactics. in addition, they are responsible for the critical task of generating and filing suspicious activity reports (sars) with the national crime agency (nca) whenever signs of potential money laundering are detected. despite the fact that the uk‟s anti-money laundering system is fairly well developed, it still suffers from a certain range of challenges. 2.1 excessive consumption of labour costs with the digitalization of finance, the internationalization of the modern financial system requires the implementation of anti-money laundering (aml) compliance measures globally, which increases the workload of customer due diligence (cdd). the requirement for cdd to carry out detailed background checks on new versus existing customers requires financial institutions to have a certain level of competence in terms of financial and human resources. to comply with cdd regulations effectively, financial institutions must invest in robust systems and processes that enable comprehensive customer assessments. this includes implementing advanced technology solutions for data analytics, transaction monitoring, and risk profiling, which require significant financial resources. furthermore, institutions need to ensure they have adequately trained staff capable of interpreting complex regulatory requirements and analyzing customer data accurately. in addition, human resources are critical in establishing a culture of compliance within the organization. this involves not only hiring specialized personnel, such as compliance officers and risk analysts, but also providing ongoing training and professional development to enhance the skills of existing employees. such training programs should focus on the latest trends in financial crime, evolving regulatory expectations, and best practices for conducting due diligence. moreover, the cdd process demands that financial institutions maintain detailed records of customer information and transaction histories. this necessitates a well-organized infrastructure for data management, ensuring that staff can efficiently access and analyze relevant information. even many organizations have had to expand their compliance departments to cope with the workload created by www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 46 published by scholink inc. more comprehensive aml obligations. but this constant training is also a recurring cost for organizations. the national crime agency (nca) estimates the cost of money laundering to the uk economy to be in the hundreds of billion pounds a year (note 6). in the true cost of compliance 2023 report published by lexisnexis, it was revealed that customer due diligence (cdd) processes remain by far the largest single operational cost, representing two-thirds (67 per cent) of total financial crime compliance costs in 2022, an increase from 53 per cent in 2020 (note 7). the largest share of cdd spend is represented by know your customer (kyc) onboarding checks, accounting for just a third of overall cdd costs. identity verification costs are also rising rapidly, partly as a result of increasing customer volumes and more consumers demanding a fast, seamless onboarding experience, and partly as firms work to improve their digital and remote onboarding solutions. the report indicates that 60 per cent of aml costs are spent primarily on personnel and training, with only 30 per cent invested in technology. and compliance costs will continue to increase over the next three years, with staffing costs growing slightly faster than technology costs. however, observing the matter through the economics lens again, these compliance costs have to be somehow recovered (note 8). therefore, it is not difficult to conclude that these costs will be ultimately passed to end user, the customer. for example, the transaction fees charged by banks to asset managers and the costs of analysts‟ research reports are ultimately passed on to the clients of asset managers. hence, higher costs may discourage customers from taking full advantage of banking services, thereby reducing the overall liquidity of the financial system. and in order to avoid the higher costs associated with formal financial channels, individuals and businesses may choose to underreport or not disclose their income or transactions, leading to increased shadow economy activity. it can further contribute to an increase in the rate of financial crime. 2.2 the increasing levels of crime while the cost of aml compliance in the uk has continued to rise in recent years and into the future, yet the level of financial crime has not fallen. according to an assessment by the uk‟s national crime agency (nca), the uk is likely to generate more than £10 billion in criminal cash each year (note 9). traditional fraud, while still prevalent, is generally on the decline (note 10). however, as digitization and networking deepen, there has been a marked increase in forms of crime such as cryptocurrency-related crime, cyber fraud and identity theft. for example, the anonymity and cross-border nature of cryptocurrencies makes them a new tool for money laundering. in statistics released by the uk government in 2023, it was revealed that the uk‟s financial intelligence unit (fiu) received 901,255 suspicious activity reports (sars) between 2021 and 2022, which represents a 21 per cent year-on-year increase compared to previous years (note 11). one of the reasons for the increase is the growing fintech and cryptocurrency sector, which has led to the emergence of new types of criminal practices. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 47 published by scholink inc. in the uk, for example, some bank account holders have become money laundering „mules‟ through the misuse of digital technology and social media. according to records from 2017, 8,500 money mule accounts owned by young people were identified by a number of uk banks and there has been a 35 per cent increase in the involvement of the 14-21 age group in this type of money laundering (note 12). this is because young people often have no criminal history of financial crime, so they are more likely to be trusted by banks unless other suspicious transactions are analyzed. furthermore, according to the data released by cipher trace in 2019, 65% of the 120 most popular cryptocurrency transactions have poor and weak kyc requirements (note 13). despite the enforcement of strict customer due diligence (kyc) in the uk and compliance with the fifth anti-money laundering directive, which strictly regulates cryptocurrency activity, and the proposed rules for cryptocurrency regulation by the fca, technology continues to evolve, and cryptocurrency money laundering methods are becoming more complex and undetectable. thus, despite the significant increase in aml compliance costs, the persistence of high crime rates reflects the fact that existing measures may not be fully effective in practice. 3. assess the effectiveness of aml system an initial question that should be considered before analyzing the effectiveness of aml systems is what is effective? effective means that the outcome is expected to fulfil the original purpose (note 14). so what is the purpose of anti-money laundering? the objective of anti-money laundering is clearly to reduce money laundering and the incidence of money laundering offences. it is also to combat the flow of funds for the financing of terrorism and to protect the integrity of financial markets. however, as noted earlier, the cost of anti-money laundering compliance continues to rise, but the rate of financial crime has not fallen. as a result, it has been argued that the anti-money-laundering system has been undermined. in the perspective of this essay, however, the aml system has not been broken. how should damage be defined? is it the elimination of all financial crimes that can be said not to have been damaged? obviously this is impossible. the purpose of anti-money laundering is to combat money laundering, but the money laundering to 0 crime can not exist. although the aml system has not prevented an increase in the rate of financial crime, which it has to a certain extent, it has also combated financial crime, and therefore has not been broken. for instance, the uk introduced unexplained wealth order (uwo)—a regime designed to forfeit the proceeds of crime using civil, rather than criminal power from 2017. the uwos are seen as a solution to both the problems of organized crime and the high levels of corruption that arise from a reign of thievery. when a property is issued with an unexplained wealth order (uwo), the owners are obligated to provide an explanation regarding the origins of wealth used for its purchase. failure to comply with this requirement establishes a legal presumption that the property has been obtained through criminal proceeds, thereby enabling subsequent civil recovery proceedings for confiscation under the provisions of the proceeds of crime act (poca) (note 15). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 48 published by scholink inc. in 2019 the nca froze 3 properties as it suspected that they were the proceeds of crime transferred to the three properties by rakhat aliyev (ra), a kazakhstani national, and asked the respondents to explain the source of the wealth. however the high court overturned all three uwos, finding the assumptions expressed by the nca that ra was the source of the funds to be unreliable and finding the underlying assumptions and reasoning of the nca to be unreliable and flawed (note 16). 2020 the nca appeal was refused. this case is one of four known uwo cases to have failed completely. in particular, when applying for the uwo, nca claimed that some of hajiyeva‟s assets were of dubious origin, and therefore asked her to explain how she could afford them. however, the key issues in the case centred on whether nca had used the uwo tool correctly and whether its judgement on hajiyeva‟s property complied with the law. the court found the nca procedurally improper in some respects, particularly in relation to the question of beneficial ownership of the property and the associated legality, for which it did not provide sufficient evidence. this was largely due to disputes over the legality of the source of the ra property, the complexity of ownership of ra assets, and issues of procedural justice. nca had failed to adequately prove a reasonable suspicion of illegality with respect to certain of hajiyeva‟s assets in the case. hajiyeva‟s team of lawyers successfully challenged nca‟s assertion that the property had not been acquired by illegal means, and that the uwo should therefore not have been applied. the court was sceptical of nca‟s chain of evidence and reasoning, finding them insufficient to support the decision to freeze the property. another key factor was the complex ownership structure involved in some of the property owned by hajiyeva. some of the assets were not owned by her directly, but through trusts or corporate holdings. this made it difficult for the court to determine whether the property should be attributed to hajiyeva, finding that nca had failed to accurately identify who the true owner of the assets was. the court also challenged nca‟s procedures in applying for the uwo, finding that some of the procedural deficiencies may have violated hajiyeva‟s legitimate legal rights. for example, in some instances, nca may have failed to give hajiyeva an adequate opportunity to respond to the allegations or may have failed to follow certain required legal procedures, resulting in the decision to freeze some of the assets being deemed unlawful. the use of the uwo in the ra case thus reveals the potential of the tool for tracing unexplained wealth, but also exposes its limitations at the legal and procedural levels. while the uwo offers the uk government a new way to effectively combat money laundering and corruption, its successful implementation depends on the specific complexity of the case, the structure of the asset holdings, and the ability of law enforcement agencies to adhere strictly to legal procedures. the ra case demonstrates that, while the uwo is a potent tool, there are a number of legal and practical hurdles that still need to be overcome in practice. it has been argued that uwo has failed as a specific tool in the aml regime (note 17). however in the asset recovery statistical bulletin published by the uk government 2023 (for the financial year ending march 2018 to march 2023), it is shown that in the financial year 2022-2023, £62.9 million was recovered under civil recovery orders, a growth rate of 544 per cent from £9.8 million in the previous www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 49 published by scholink inc. financial year (note 18). thus, rather than looking at a handful of failures and judging the ineffectiveness of aml tools, we can start with the data to see if the aml system is actually fulfilling the original purpose of anti-money laundering. which means that if the anti-money laundering system combats money laundering and achieves certain results, then it is effective. 4. how to improve aml system? 4.1 focus on regtech as mentioned previously, aml compliance costs account for only 30% of technology investment, with the majority of costs spent on labour and compliance training costs, demonstrating the problem of under-investment in technology. consequently, the uk should invest more in regtech, using artificial intelligence and big data analytics to automate the process of detecting and reporting suspicious transactions. regtech is an abbreviation for regulation and technology, meaning it is a reliance on technology for regulatory and compliance purposes (note 19). regtech can better detect criminals by automating the identification of suspicious transactions. meanwhile regtech will also simplify the kyc and cdd process as it provides tools that are aligned with the digital transformation of the financial services industry. and regtech will enable regulators to respond adequately to emerging financial risks by providing more accurate and timely data reporting. between 2013 and 2019, westpac, the second largest bank in australia, was accused of 23 million breaches of the worst money laundering and terrorist financing laws in the country‟s history (note 20). according to the investigation, most of the breaches were linked to the bank‟s failure to report international transfers in a timely manner to the australian transaction reporting and analysis centre (austrac), which claimed that 12 individuals used the system of westpac to conduct nearly 3,000 transactions that may have been related to child exploitation, as well as child sex shows. moreover, the group included a customer who had been previously convicted of child exploitation offences. yet westpac did not implement an automated detection programme, but instead monitored risks through other channels. as a result, westpac failed to detect transactions on its customer‟s account related to child exploitation. this case illustrates the potential for the use of regtech, in other words, the increased use of regtech will reduce the risk of human error to a certain extent. in the uk, the fca has set up regulatory sandboxes with the aim of providing a safe testing environment for new financial services and technologies that do not pose a potential risk to the financial system as a whole or to the consumer community until they are fully compliant with regulatory requirements (note 21). the regulatory sandbox provides an experimental platform for regtech, allowing firms to test and optimise technologies, such as trade regulation tools, compliance management systems, etc., in real market environments, which promotes innovation in regtech. whilst the uk regtech environment is sufficiently robust, it still has a few issues that need to be improved. for example, data privacy and security issues. the uk has been strictly observing the general data protection regulation (gdpr), which has largely increased the security and transparency of personal www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 50 published by scholink inc. data processing. however, in regtech applications, it is often necessary to co-operate with third parties, which involves data sharing. as a result, when mishandling or inconsistency in compliance with co-operating parties occurs, these personal data will face privacy and security issues. hence, the uk should focus more on the regtech aspect, which needs to be addressed through more comprehensive policies, more optimal management and continuous regulatory innovation. 4.2 enhanced international cooperation the fca established the global financial innovation network (gfin) in early 2018 on top of a proposal to create a global sandbox, and officially launched it in january 2019 (note 22). the gfin serves as a platform for international regulatory and financial innovation collaboration, and aims to provide innovative firms with a more effective way of interacting with regulators and to help them navigate between different countries as they seek to promote new ideas. gfin enhances the joint regulation of amls globally by creating a collaborative network of multinational regulators for information sharing. in october 2020 gfin published the first official cross-border testing lessons learned (cbt). the report shows that participating companies must demonstrate that the product or service they are involved in testing meets the eligibility criteria of each regulator in the jurisdiction (note 23). however, due to the widely varying eligibility criteria of participating regulators, it poses a significant challenge for many companies, which leads to difficulties in collaborating and aligning. in addition, as the internet continues to evolve, the means of laundering digital currencies across borders has become more insidious. the uk should give more professional resources and support to develop a unified framework and policy to promote uniform international regulatory standards. and track transnational money laundering activities by strengthening compliance information sharing and coordination between countries. 5. conclusion the original purpose of the aml system was to combat financial crime. whilst the cost of aml compliance in the uk continues to rise at the same time as the level of financial crime is rising, it does not indicate that the aml system is ineffective. according to some data and reports, the aml system is effective in combating financial crime and achieving the original purpose of the system. which means that the system is not broken, it just has some issues that need to be improved. firstly aml‟s compliance costs are disproportionately high in terms of staff and compliance training costs, and smaller in terms of technology. it means less investment in innovative regulation and less automation of regulation. the second is that as technology continues to progress, so does the level of crime. the money laundering methods of criminals have also become more sophisticated and difficult to track. in addition, the effectiveness of the aml system is demonstrated through data released by the government as well as case studies. it also explains why the aml system cannot be judged to be ineffective just because the level of crime has increased. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 51 published by scholink inc. this essay also makes some recommendations for the improvement of the aml system so that it can better address the increasingly complex problem of money laundering regulation. references economic crime plan 2 2023-2026. 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<https://www.int-comp.org/learn-and-develop/subject-areas/career-pages-anti-money-laundering/> accessed 13 april 2024. note 4. home office, economic crime plan 2 2023-2026, (vision 6, 2023). https://risk.lexisnexis.co.uk/insights-resources/white-paper/true-costs-of-compliance www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 53 published by scholink inc. note 5. antony whitehouse, „a brave new world: the impact of domestic and international regulation on money laundering prevention in the uk‟ (2003) 11 journal of financial regulation and compliance 138. note 6. „money laundering and illicit finance‟ (19 march 2024) <https://www.nationalcrimeagency.gov.uk/what-we-do/crime-threats/money-laundering-and-illicit-fina nce> accessed 13 april 2024. note 7. „report: true cost of compliance 2023 | lexisnexis risk solutions‟ (lexisnexis risk solutions | transform your risk decision making) <https://risk.lexisnexis.co.uk/insights-resources/white-paper/true-costs-of-compliance> accessed 13 april 2024. note 8. igor sumkovski, „the optimal level of anti-money laundering regulation for the uk banking sector. banks‟ cost of compliance, de-risking problem and how to implement effective aml systems and controls‟ (master thesis, university of london 2017) <https://sas-space.sas.ac.uk/6873/> accessed 21 april 2024. note 9. national crime agency, national strategic assessment of serious and organised crime 2021, (cp 992, 2023). note 10. „crime outcomes in england and wales 2021 to 2022‟ (gov.uk) <https://www.gov.uk/government/statistics/crime-outcomes-in-england-and-wales-2021-to-2022/crime -outcomes-in-england-and-wales-2021-to-2022> accessed 15 april 2024. note 11. „suspicious activity report 2022‟, https://nationalcrimeagency.gov.uk/who-we-are/publications/632-2022-sars-annual-report-1/file note 12. „“money mules”: rising numbers are in middle age‟ bbc news (18 june 2019) <https://www.bbc.com/news/uk-48671542> accessed 15 april 2024. note 13. „q2 2019 cryptocurrency anti-money laundering report‟ (ciphertrace) <https://ciphertrace.com/q2-2019-cryptocurrency-anti-money-laundering-report/> accessed 15 april 2024. note 14. joras ferwerda, „the effectiveness of anti-money laundering policy: a cost-benefit perspective‟ in colin king, clive walker and jimmy gurulé (eds), the palgrave handbook of criminal and terrorism financing law (springer international publishing 2018). note 15. john heathershaw and tom mayne, „explaining suspicious wealth: legal enablers, transnational kleptocracy, and the failure of the uk‟s unexplained wealth orders‟ (2023) 26 journal of international relations and development 301. note 16. nca v baker [2020] ewhc 822 (admin). note 17. john heathershaw and tom mayne, „explaining suspicious wealth: legal enablers, transnational kleptocracy, and the failure of the uk‟s unexplained wealth orders‟ (2023) 26 journal of international relations and development 301. https://www.gov.uk/government/statistics/crime-outcomes-in-england-and-wales-2021-to-2022/crime-outcomes-in-england-and-wales-2021-to-2022 https://www.gov.uk/government/statistics/crime-outcomes-in-england-and-wales-2021-to-2022/crime-outcomes-in-england-and-wales-2021-to-2022 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 54 published by scholink inc. note 18. „asset recovery statistical bulletin: financial years ending march 2018 to march 2023‟ (gov.uk). <https://www.gov.uk/government/statistics/asset-recovery-statistical-bulletin-financial-years-ending-20 18-to-2023/asset-recovery-statistical-bulletin-financial-years-ending-march-2018-to-march-2023 https://www.gov.uk/government/statistics/asset-recovery-statistical-bulletin-financial-years-ending-201 8-to-2023/asset-recovery-statistical-bulletin-financial-years-ending-march-2018-to-march-2023> accessed 17 april 2024 note 19. alexandros a. papantoniou, „regtech: steering the regulatory spaceship in the right direction?‟ (2022) 6 journal of banking and financial technology 1. note 20. „westpac accused of 23 million breaches by money laundering watchdog‟ (the sydney morning herald, 20 november 2019) <https://www.smh.com.au/business/companies/westpac-accused-of-large-scale-breaches-by-money-lau ndering-watchdog-20191120-p53c8o.html> accessed 17 april 2024. note 21. „regulatory sandbox‟ (fca, 1 march 2022) <https://www.fca.org.uk/firms/innovation/regulatory-sandbox> accessed 17 april 2024. note 22. „global financial innovation network (gfin)‟ (fca, 29 january 2019) <https://www.fca.org.uk/firms/innovation/global-financial-innovation-network> accessed 17 april 2024. note 23. „cross-border testing‟ (gfin) <https://www.thegfin.com/crossborder-testing> accessed 17 april 2024. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 171 original paper on the space construction and the exploration of sun shengxi‟s identity of son of the darkness wang qinglu 1 1 school of zhaoqing university, zhaoqing 526001, china received: december 1, 2024 accepted: december 16, 2024 online published: december 19, 2024 doi:10.22158/elp.v7n3p171 url: http://dx.doi.org/10.22158/elp.v7n3p171 abstract son of the darkness is the debut full-length novel of the post-90s writer lu xu from zhaoqing, which bears a strong allegorical hue. son of the darkness refers not only to sun shengxi of unknown identity but also serves as a metaphor for human destiny. the metamorphoses from human to animal and the shape shifts among objects that occur in the work both imply the marginalized situations of the characters and constitute an allegory of human fate. in the novel, lu xu constructs the family space, the space of biopolitics, and the utopian space as the domains for sun shengxi’s identity exploration. sun shengxi’s vulnerable situation in the family space and the city theater as the workspace is similar to that of the homo sacer in the space of biopolitics. the transformation in the utopian space embodies the subject’s exploration and pursuit of art and freedom, as well as the resistance to the supreme power. keywords son of the darkness, space, identity, transformation 1. introduction son of the darkness is the maiden full-length novel of the young writer lu xu, who resides in zhaoqing, guangdong province, china. the winner of the lu xun literature prize, yi zhou, contends that lu xu‟s novels “signify a new literary spirit that we have not yet fully apprehended”, featuring “an ageless beauty belonging to literature” (lu, 2022). son of the darkness is a postmodernist novel with a distinct creative style, fusing eastern and western myths and literary classic characters, and boasting strong intertextuality and significant symbolic implications. the novel encompasses four chapters, with the exploration of the protagonist sun shengxi‟s self-identity and paternal identity pervading the entire story. the first three chapters commence the novel with sun shengxi‟s memoirs recounted in a theater, presenting his identity search in various www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 172 published by scholink inc. spaces such as the city theater, gaosi district, the ruins of the night wanderers, the imperial hotel, and shamen temple. the final chapter of the novel takes an unanticipated turn by indicating that the story of sun in the first three chapters actually stems from the fictional memoirs of actor k.t. consequently, the identities of sun and k.t. overlap in the fictional memoirs, and the multiple boundaries set in the novel are shattered. son of the darkness is also a space novel. “space is pervaded with social relationships; it is not only supported by social relationships but also generates social relationships” (bao, 2003, p. 48). lu xu constructs family spaces, spaces of biopolitics, and the space of utopias in the novel. in the work, space not only serves as the backdrop for the exploration of characters‟ identities but also the environmental characteristics therein constitute a metaphor for the characters‟ relationships. through transformative experiences, the characters in the novels express their resistance to power and dominators in the space of biopolitics and express their pursuit of freedom and art in the utopian space. through the identity search journey of sun, son of the darkness alludes to the human condition and fate with allegorical words. 2. the mystery of sun shengxi’s identity and the construction of family space “who am i” and “who is my biological father” are the issues that the protagonist of the novel, sun has been exploring from the beginning to the end. “who is my biological father” influenced sun‟s exploration of the question “who am i”. “identity is a relationship”, and “identity does not lie within the individual but in the relationship between the individual and others”, and it also exists in “the narrative”. sun initially attempted to conduct self-narration during the process of “integrating with other characters” (curry, 2003, p. 21): firstly, by relying on the mother-son relationship to explore the mystery of his self-identity; secondly, by completing his self-identity report in the theater and exploring the essence of himself through narrative. sun‟s identity issue was also a concern for his mother‟s family. he entered the city theater for work. but the city theater was a deformed family space. the leaders of the theater were his grandfather and uncle, and they also cared about sun‟s identity, indicating that his identity must be clarified before he can be assigned any work. sun‟s exploration of self-identity is concurrently an inquiry into the family‟s secrets. “the family is not merely a chain of biological and social ties but also the model on which all broader relationships are predicated” (malinowski, 2003, p. 229). sun needed the family space to explore his self-identity, however the family space was in disorder. his mother suffered from a hereditary heart disease and was “irritable, hyperactive, enfeebled, and hostile towards matters” (lu, 2022, p. 25). their house filled with books sented by the grandfather, was situated in the gaosi district. family members looked down upon them. in rebellion, the mother tore out the valuable pages from the grandfather‟s books and used them as wallpaper to cover the walls, and even brushed them over with light blue paint. she fabricated two stories of conception: in one dream, she fell into a cesspool, sank to the depth of filth, and conceived sun. in the second dream, the mother gave birth to sun in the cesspool. a mandrill appeared www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 173 published by scholink inc. in both dreams, witnessing the mother‟s pregnancy and childbirth process from a tree. hence, his mother believed that he was the child of the mandrill. this is an illogical explanation. sun was unable to solve the mystery of his self-identity through the family and thus entered the workspace, the city theater. given the ambiguity of sun‟s identity, the theater demanded that sun must complete a report of his own recollections before assigning him a role. the space of the city theater is a transformed family space, a space of power, a supernatural space, and it also constitutes a metaphor for the virtual space of the internet. firstly, the most prominent spatial attribute of the city theater is its familial nature. the former dean and the new assistant of the theater happened to be sun‟s grandfather and uncle. later, sun learned that his mother had also been an actress in the theater but left due to memory problems. thus, the theater was a transformed family space, where his grandfather and uncle were not only his superiors but also his surrogate fathers. secondly, the theater was a space of power, where the leaders in the theater had the power to dominate and enslaved the members. “the theater formulates a daily schedule for each actor” (lu, 2022, p. 9), “and in order to clear the actors‟ memories, each of them is given a special potion before they go to sleep” (lu, 2022, p. 10). therefore, the memories of all the actors were cleared by the next day. sun was not yet a formal actor and thus became the only one in the theater who was not required to drink the potion. the special treatment of him by the theater also implied the hidden connection between the upper leadership of the theater and the elders of sun‟s family. so the family space and the workspace have converged. thus, sun‟s identity issue and the issue of his biological father had become the key problems for him to solve in these two spaces. the family punished sun in the form of a stage play in the theater. the reporting method adopted by the theater was in the form of a court trial, where the managers were like judges and the jury members “listen to the memoir report as if listening to a prisoner‟s self-defense” (lu, 2022, p. 12). by the arrangement of the theater, “the stage is in the middle of the theater, the bench is at the front, and the jury box is like the audience seats of the roman colosseum, higher than the ground and surrounding all around”. sun stood in the center of the stage, confined in a specially prepared cage to give the memoir report. he also believed that “my grandfather and uncle pretend to be outsiders who have no knowledge of the matter, but secretly chew on our pain, all for the supreme performing art” (lu, 2022, p. 330). thirdly, the theater is also a supernatural realm that transcends the laws governing life and death. excluding sun, all the actors who emerged in the theater were individuals who had passed away in reality. they lost their memories outside the theater and entered the theater to become actors until their lives came to an end once more. the actors in the theater had also initiated numerous attempts to escape from the theater. “it is a game of escape and pursuit involving all the theater personnel” (lu, 2022, p. 107), yet few actors managed to succeed. special escape activities metaphorically suggested the impassability of the boundary between life and death. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 174 published by scholink inc. finally, the theater also constitutes a metaphor for the virtual space of the internet. although there are no computers, smart phones, and other contemporary technological products in son of the darkness, the ghostly image of the uncle resembles a virtual character on the internet. after the grandfather‟s demised, the uncle became the new assistant in the theater. at this time, the uncle had not completely passed away. thus, the one who appeared in the theater was the uncle as a “pathetic phantom of the deceased: his body flickered with a layer of electronic snowflakes” (lu, 2022, p. 132). the split personality of the uncle in the theater resembled the virtual identity generated by the subject after using the internet. the virtual identity and virtual activities in the network can disclose the hidden true intentions of the subject in reality. the harm that the grandfather, the uncle, and others desired to inflict upon sun and his mother encountered impediments of familial ethics in reality. however, in the “virtual network world”, the darkness and cruelty of human nature lost their constraints. by virtue of the plot in which sun undergoes interrogation both in the family space and the theater, the author presents, in an allegorical form, the helpless predicament of the individual when encountering authority and delineates the alienation that the individual encounters during the process of interacting with the group. the “interrogation” sun underwent in the theater was the punishment imposed on him by his maternal family via the theater. nevertheless, he showed no slightest sign of resistance to the arrangement of the theater but rather accepted it readily. li baorong contends that lu xu‟s works “focus on the emotions of the characters”, and the characters “are led by a mysterious emotion or confusion to the very depths of existence” (li, 2023, p. 66). the yearning for recognition by the theater and the family, along with the sense of shame resulting from an unclear self-identity, compeled sun to surrender his own freedom and security. the sense of shame was also the crucial emotion that the maternal family of sun endeavored to veil when they resorted to the theater trial to judge the descendants of unknown origin. “a considerable number of groups will resort to measures such as shame threats and the definition of shame in order to facilitate the establishment of identity”. and shame is a kind of “self-awareness” emotion that can “constitute or potentially constitute an important aspect of an individual‟s emotional life, depending on group standards” (stearns, 2024, p. 1). his mother‟s lost of chastity and his identity problem brought ignominy to the family. they fabricated the rumor that the mother “married a monster, ran away from home, and hid in the mountains to fish and hunt” (lu, 2022, p. 315) to cover up her secret. the grandfather‟s family did not get along well among themselves. the aunt-in-law was heartless and deceived the grandfather out of the house with a ceremony before his death and abandoned the old man. several aunts were extremely indifferent after getting married. the grandmother had memory problems and would use sparrows that were killed but not cleaned up to make soup for everyone. sun‟s cousin su wu also agreed that “the family will not tolerate the slightest bit of rebellion that undermines orthodox dignity”, and that the “city theater has strict requirements for actors to adhere to the nature of their roles” (lu, 2022, p. 314). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 175 published by scholink inc. in son of the darkness, lu xu constructs sun‟s identity through the narratives of multiple characters, endeavors to supplement the completeness of the mother‟s experience while remaining reticent about the mystery of sun‟s identity. this enriches the reading experience of the readers and endows them with diverse possibilities to conjecture about sun‟s identity. beyond his mother, the dying k.t., the lodger at the uncle‟s house, the cousin su wu, and the abbot of the shamen temple successively told him the story about his identity. according to the lodger, his mother was flirtatious. the cousin‟s story intimated that the mother might had been violated by a rapist. k.t.‟s story indicated a love triangle among the mother, k.t., and the abbot. and the abbot affirmed that sun was the descendant of k.t., but when k.t. met sun on his deathbed, he denied being sun‟s biological father. consequently, sun‟s identity became an unresolved enigma in the novel. meanwhile, the recollections and reports proffered by sun himself are not credible. booth maintains that the reliability of the “same facts” narrated by an authorial spokesperson and by a “dubious character” in the story differs. hence, readers are required to ascertain whether the narrated content is indeed an objective fact or has been distorted by the subjectivity of the characters. sun is an unreliable narrator, and there exists a discrepancy between his narrated content and the actual truth. for instance, he once recounted the past incident of his classmate fu zidan watching pornographic films and mysteriously disappearing the next day. it was not until the second report within the theater that sun was identified by fu zidan as the traitor who had reported fu zidan to the teacher for watching pornographic films, leading to fu‟s being compelled to suspend from school. therefore, the narrative discourse of sun and other characters in the novel were not necessarily reliable. 3. biopolitics space and the homo sacer sun shengxi was both an unidentified child within the family and a homo sacer in the framework of biopolitics. the homo sacer embodies a “double exclusion”, being both sacred and solemn while concurrently functioning as a victim. “they were not only excluded from mundane law (permitting their killing), but also excluded from divine law (prohibiting their sacrifice)” (agamben, 2016, p. 28). the sons of the darkness are “those who have never recollected the memory of the womb” (lu, 2022, p. 112), individuals ignorant of their origins, and in the novel, this refers to sun shengxi and k.t. the situation of the son of the darkness in the theater converged with those of the homo sacer. the lack of protection from his father also meant that sun was not safe in reality. during the birthday of the bodhisattva veda, his aunt asked by mother, conducted a ritual, affixing a jade earring and pendant on sun, hoping that he would “be as pure as moonlight” (lu, 2022, p. 34) and not be encroached upon by evil entities. the mother‟s actions signified the special identity of sun and the potentiality of being harmed or killed within the group. sun entered the theater to obtain a distinct identity. nevertheless, due to his exceptional status as the son of the darkness, he became “the first person to enter the theater without a self-defined role” (lu, 2022, p. 16). so sun became the first intern at the theater, yet “the theater has never had such a position for an intern” (lu, 2022, p. 8). consequently, sun was affiliated www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 176 published by scholink inc. with the theater but never accepted by it. nonetheless, the theater persistently exerted pressure on him and assigned tasks. the image and circumstances of sun constituted a metaphor for the marginalized and minority groups in the actuality. no group was inclined to embrace him; conversely, he was perpetually situated in a position of being infringed upon, banished, and judged within those groups. the sacred person is “excluded from religious communities and all forms of political life” (agamben, 2016, p. 245) and confront violence, which “cannot be categorized as sacrifice, nor as murder, nor as the execution of a death sentence, nor as an act of sacrilege” (agamben, 2016, p. 117). in the theater, sun was confined within a cage on the stage to present a report, “appearing as a prisoner” (lu, 2022, p. 12). during the celebration of the birthday of the weituo bodhisattva, he entered the parade and was nearly taken away as a “sacrificial offering”: “suddenly, a pair of hands lifted me and placed me at the feet of the weituo bodhisattva, as if treating me as the guanyin boy. i endeavored to find a foothold and firmly grasped the bottom of the vajra” (lu, 2022, p. 30). it was not until the advent of uncle yi de, a retired soldier holding a gun and “moving sinuously through the smoke” (lu, 2022, p. 29), that sun was rescued. on deer island, when he and his mother were assisting in moving a mirror, he discovered that “there was no reflection of myself in the mirror; the light passed directly through my body”. the conversation between uncle yi de and teacher zhang regarding images can account for the issue of him. “on the battlefield, you are a gun, a grenade, a shadow without a physical entity” (lu, 2022, p. 55). as the homo sacer and the son of the darkness, sun was excluded from the groups, his life was discarded, and became an object of capture. the cruelty and violence manifested by the space of biopolitics are mirrored in the mirror village. in the mirror village of deer island, there existed a story about the conflict between people of mirror village and the monkey. villagers have been using mirrors as walls since ancient time, because they were “concerned that they might degenerate into monkeys one day, lacking confidence in whether they were human beings or not, and had to constantly use mirrors to confirm that their appearance was that of a human being” (lu, 2022, p. 68). subsequently, a monkey that firmly believed it was a human came to the mirror village. after looking in the mirror and discovering that it looked different from the villagers it saw, it demanded the villagers to dismantle the mirrors. from then on, villagers and monkeys became adversaries, and the number of mirror walls multiplied exponentially. the village provided the answer of whether sun is human or monkey. through the image in the mirror, he confirmed that he was a human being. the mirror village disclosed the potential for identity transformation between ordinary members and homo sacer within the biopolitical space. “what unites the community is the supreme prohibition that can transform everyone into a „homo sacer‟ at any moment” (agamben, 2016, p. 37). the mirror village ostensibly constituted a space that accommodate all individuals and bestows equal status upon all its members. nevertheless, mirror village also possessed the authority to convert individuals with distinctive traits into undifferentiated members, depriving them of their freedom and extinguishing www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 177 published by scholink inc. their individuality. members sharing memories in the mirror village took pride in their communal life: “here, there is no crime, no suffering, and no diverse personalities. to safeguard the honor of the community, everyone behaves with caution. if there are dreams or memories not shared, they need to be reported and registered for elimination as contraband” (lu, 2022, p. 81). when someone mistook sun for a resident of mirror village, he was overjoyed. the cost of becoming a mirror village‟s resident was soon revealed. after achieving memory sharing, the appearances of mirror villagers became increasingly alike. there was no privacy or individuality within mirror village. only in the reading club could the members return to their independent individual identities. but the host of the reading club happened to be sun‟s grandfather. therefore, if sun become a villager, he would still rely on his grandfather to attain independence and freedom. so the space of mirror village, the theater and the space of family will converge. at last, sun leaved the mirror village. lu xu utilizes the art of transformation to depict the identity perplexity of the son of the darkness and the survival predicament of homo sacer, expressing the individual‟s intention of resistance in the face of potent forces. classmate fu zidan and the proprietor of the imperial hotel, k.t., bore the same equivocal identity as sun shengxi, “being incorporated in the mode of being excluded”. they presented to sun shengxi an outlet for the sacred person: metamorphosis. agamben contends that the space of biopolitics “operates through exclusion; it differentiates those who are not yet human from humanity itself, namely, the animalization of human beings, distinguishing the non-human from humans: anthropoids” (agamben, 2019, p. 45). transformation constitutes a common artistic form in lu xu‟s novels, typically manifested as the transition from human to non-human entities. the plot setting of transformation also establishes a connection between lu xu‟s works and kafka‟s novels. gregor in kafka‟s the metamorphosis is regarded as “an image of a „minority‟ radical life”. “nevertheless, this image also implies that a „minority‟ life wandering in openness has lost its pre-determined human form” (agamben, 2019, p. 26). the characters undergoing transformation in lu xu‟s son of the darkness and other works bear similarities to gregor, all demonstrating the alienation of marginalized and insignificant individuals. transformation constitutes a desperate measure and survival tactic adopted by the weak when confronted with potent forces. the transformation of humans into animals “represents vulnerable groups, or those suppressed, prohibited, and rebellious” (deleuze, guattari, 2010, p. 348). in son of the darkness, fu zidan was the individual ostracized by other students. sun regarded fu as “aloof, with unconventional tastes, being the type of person who is the least sociable and at the lowest rung of society” (lu, 2022, p. 64). fu was assigned the nickname “fu toad” by his classmates. in the novel, toads with hideous appearances and lotus-shaped skin were all designated as “fu toad”, and they served as the subjects of experiments conducted by the school and the theater, being slain. in the city theater, sun witnessed that fu had transformed into a toad. and fu declared: “after being expelled from school, on my way home, i transformed into a toad. this was everyone‟s wish, and it was also my parents‟ wish. i originally thought that by complying with them, i could continue to live, but you did www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 178 published by scholink inc. not consider sparing me”. “you trampled me flat. after my death, i came to this theater, spending all day performing as a frog in the prop bushes beside the stage, croaking until my throat was parched” (lu, 2022, p. 134). eventually, fu zidan, who had transformed into a toad, believed that sun was the one who exposed his viewing of pornographic films, resulting in his expulsion from school. the toad was unable to suppress the rage in its heart. it‟s belly swelled increasingly until it burst with a bang. the transformation into a toad rendered fu‟s life increasingly fragile, becoming an object to be slaughtered by others. after emerging from the theater, actor ma mo subsequently developed mental disorders, shouting, “all those unnamed shall be put to death” (lu, 2022, p. 231), and capturing animals to practice killing. animals were associated with the transformed sacred individuals. the transformation of fu and the insanity of ma mo both pointed to the supreme power represented by the theater, “the state can be declared in a state of emergency (state of exception) by the sovereign at any time, and in this state, „human rights‟ are suspended” (agamben, 2019, p. 37). in son of the darkness, the transformation plot symbolizes the ambiguity of the boundary between humans and non-humans under the governance of supreme power and the potentiality for mutual transformation between humans and non-humans in the biopolitical domain, indicating the issue of the deprivation of the life power of the sacred human subjects. agamben pointed out in his analysis of the tragic conditions of jews during world war ii that “jews were killed, neither constituting a capital offense nor regarded as a sacrificial offering, but merely as the realization of a pure „ability to be killed‟ inherent in jews” (agamben, 2019, p. 159). the owner of the empire hotel, k.t., who was also a son of the darkness, underwent transformation as well. when sun met him for the first time, he had transformed into a salamander. the nymph attending to k.t. explained that “to alleviate human suffering, he would transform into other animals to have a serene night” (lu, 2022, p. 207). k.t. was capable of transforming into multiple forms, “disintegrating into a series of diverse elements, such as mandrills, insects, sculptures, and hotels, floating in the surrounding air” (lu, 2022, p. 253). he was born in the darkness of the city theater. the staff gave him the name “anzi” (the son of the darkness) and discovered that “he would never feel hungry, nor cry, nor fall ill” (lu, 2022, p. 260). foucault noted that “biopower is exerted through intervention in people‟s life forms to strive for „how to make you live‟. this power not only possesses oppressive and negative forces, such as destruction, deprivation, limitation, and obstruction, but also has productive and affirmative forces, exercising the „life management‟ functions of standardization and regulation” (agamben, 2016, p. 15). the city theater, in the name of art, interrupted the treatment of k.t.‟s eyes. eventually, k.t. was blind and suffered from severe solar dermatitis, “once exposed to sunlight, even if it is reflected by a mirror, the skin would rapidly fester” (lu, 2022, p. 260). later, k.t. and other actors rebelled and escaped from the theater, establishing the empire hotel, a space of utopia, to provide a refuge for artists. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 179 published by scholink inc. 4. utopia and reconstruction of subject identity the utopian space constitutes a liberated realm replete with the unknown and alterations. the transformations transpiring within it manifest the author‟s affirmation and pursuit of freedom and art. lu xu asserted that “sun shengxi was born in the dark void and was confined to the theater throughout his life. there is no place for him in this world. he envies the inherent freedom of all outsiders”. “the sole means to extricate himself from this jealousy and malice that consumes the soul is to create another artistic world for himself, providing a refuge for his soul and body” (lu, 2023, p. 82). sun must liberate himself from the control exerted by the biopolitical space upon him and seek a suitable living space for himself. utopia is in opposition to the realm of biopolitics, within which the metamorphoses that occur constitute the resistant manifestations of the weak and the marginalized against the supreme power. in the empire hotel, the subject engaged in the exploration of art and life in the form of transformation and rebeled against the violence of the city theater. the city theater stipulated the immutability of the roles and identities of its members: “an actor must maintain the same role and setting throughout his life” (lu, 2022, p. 177). for k.t. and sun shengxi, whose identity sources were ambiguous and whose roles in the theater could not be clearly delineated, the theater adopted a cruel means of suppression and abuse. the empire hotel was the new habitat founded by the former city theater actor k.t. “it is a gathering place for artists, featuring galleries, memorial halls, cafes, hotels, etc., replete with cultural ambience” (lu, 2022, p. 165). the empire hotel was a oppression-free space where the people residing there do not need food, and even the air can satisfy hunger. sun and his mother were provided with a complimentary room in the empire hotel, where the bed was extremely comfortable, the lighting was soft, and the walls were decorated with paintings of various styles. the stay was free, but anyone who desired to stay here, even for just one night, must left their works at the hotel. how long a person stayed at the hotel depended solely on their personal moral conscience, as no staff member would evict them. transformation is the playful resistance of habitat members against the atrocities in the space of biopolitics. “play is a purely aimless means” (agamben, 2016, p. 68). nevertheless, “play is not merely a specific defiling operation on the sacred domain; rather, it is also a defiling of the contemporary legal, political, and economic domains: play completely invalidates the sacred remnants inherent in the current human community” (agamben, 2016, p. 69). in the empire hotel, the occupants of the habitat savoured the freedom derived from metamorphosis. “you will never encounter the same person twice”, because “his thoughts and life status change every second”, and “within a certain period, a person maintains one identity and only switches to another when the opportune moment arrives”. someone in the habitat was a male bartender in a diner yesterday, became an actress today, and might be a painter tomorrow. the form of human beings undergoes alterations, and their thoughts can also change at any time. the subject relishes autonomy and the freedom of life during the process of change. when sun shengxi first met yu, yu was thinking of committing suicide. by the time they met again, yu had no www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 180 published by scholink inc. intention of taking his own life. the buildings and diverse objects within the habitat were also capable of modifying their forms at will, which instantiates the freedom of will relished by the subjects within the space. there existed a house in the habitat that was a diner yesterday, a toilet today, and a reading room tomorrow. the two-story-tall iron statue of the mandrill named “the thinker” on the site was transmuted into a heap of randomly assembled steel bars the next day. furthermore, the bread in the bakery underwent transformation, thereby various items that had no connection with bread emerge in the store, such as chairs, books, knives, leaves, and toads. they were all transmuted from bread. once, a murderer purchased a knife in the bakery, but when committing the crime, the knife reverted to bread. the owner of the bakery expounded the transformation of the bread: “bread is neutral. it did not transform back because of the victim's life. it is a matter of transformation probability” (lu, 2022, p. 182). nevertheless, the significance of bread was conferred by humans, and humans could also consume the objects transformed from bread. whether the body accept it or not was an internal matter. therefore, in the utopian space, the subject indulged in both the freedom of transformation and the freedom of thought. the utopian space had a pronounced positive influence on sun‟s process of self-exploration. “although utopia does not express desires, it impels people to strive to understand what is necessary for human self-actualization” (levitas, 2018, p. 181). in utopia, the subject‟s perception of self-identity and belonging became more multifaceted. transformation aided the subject in liberating from the unidimensional constraints, shattering the dichotomous identity setting of the municipal theater, enriching the subject‟s cognitive modalities, and facilitating the subject to construct more diverse and three-dimensional relationships. the art of transformation enabled the subject to regain the freedom of imagination and assisted the subject in objectively contemplating the relationship between the self and the political space of life. “imagination is far from leading to a totalitarian society; conversely, it poses a threat to totalitarian society” (jacoby, 2007, p. 31). after entering the utopian empire hotel, sun became cognizant that “a person does not have to wait until meeting the national leaders to know who he is, what his status is in this society, and what he should do, because society has its own operational mechanism, and people also have an automatic process of self-recognition” (lu, 2022, p. 180). thus, neither the identity of his biological father nor whether he was the son of a mandrill constituted a prerequisite for determining how he should survive in the world and his future destiny. he could create a new personal life for himself and resisted the discipline imposed by the theater and the family. after enjoying free accommodation at the empire hotel, sun developed the intention of working and vowed to become a “person of moral conscience” and “dedicate the corresponding labor to the hotel” (lu, 2022, p. 180). his mother also accepted the job of cleaning whale bones arranged by the hotel owner. they embarked on a new life through labor and redefined themselves and their relationships with others. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 181 published by scholink inc. the novel also affirms the value and significance of emotions and desires for the subject in the process of self-construction through the protagonist‟s unrestricted exploration in the utopian space. “the essence of utopia seemingly resides in desire—the aspiration for a distinctive and superior mode of existence” (levitas, 2018, p. 265). the city theater mandated that its members possess fixed identities and roles, thereby constraining the possibility for members to relish emotional freedom. sun shengxi‟s mother, who was an actress portraying the queen in oedipus rex before leaving the theater, developed romantic involvements with k.t., who played oedipus, and the actor playing the king due to the role requirements. this gave rise to a subsequent tragedy: “although they had no substantive blood relationship, strictly adhering to the discipline of the role had already instilled the shame of violating human ethics into her soul”, and she “utterly deteriorated in the inferno of torment and desire” (lu, 2022, p. 265). trapped in a quandary, the mother opted to consume a large quantity of medicine to lose her memory. the novel validates the significance of desire for self-construction, and the protagonist acquires self-awareness through the experience of desire. “desire is the essence of human beings” (wang, 2022, p. 8), and human beings are “an ever-varying emotional existence” (wang, 2022, p. 9). sun had his first sexual experience in the imperial hotel. “the „selflessness‟ that has long dominated my spiritual world has for the first time given way to the quietly emerging desire”, “i sensed my own existence. even if it was like an illusion, it emerged more directly from my body than an illusion” (lu, 2022, p. 193). as a human being, his subjectivity is increasingly complete and distinct, thereby facilitating his self-awareness and enabling him to make appropriate choices. utopia and dystopia are not in an entirely antithetical relationship. son of the darkness also demonstrates the potential transformation of the utopian empire hotel into a dystopia, reflecting lu xu‟s profound cogitation on the human living environment. “dystopia is more perceived as a developed form of utopia rather than a deteriorated one. it is generally asserted that dystopia is not the antithesis of utopia but rather the logical and consummate realization of utopia” (jacoby, 2007, p. 10). sun subsequently detected that the people in the empire hotel were encompassed by another kind of pain: “they are perpetually in a state of intense reflection. seeking pleasure or indulging in dissipation day and night does not alleviate this state in the slightest” (lu, 2022, p. 178). the nightmare experience engendered by the bird eggs found in the hotel room metaphorically intimated the perils of excessive freedom and unrestrained indulgence in passions. he and his mother cooked and consumed the unidentified bird eggs. at night, he abruptly realized, “artists could transmute into birds. what we ate were either the descendants of art or the products of debauchery”. in a state of panic, he smashed the bird eggs and discovered that “those eggs, after several hours of incubation, had hatched into chicks. they had human-like faces and crawled with ugly, hairless limbs” (lu, 2022, p. 209). the strange encounter incited sun‟s aversion towards the habitat and initiated his objective contemplation of the possible negative consequences for the individual resulting from excessive indulgence in passions and disregard for social order. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 182 published by scholink inc. sun shengxi‟s ultimate choice and destination mirror the author‟s endeavor to forge a neutral and balanced stance between utopia and dystopia. “on the one hand, art utopia enjoins people to criticize the imperfections of reality and proffers novel conceptions for the future of human society”; yet, on the other hand, “the pursuit of ideals in art utopia sometimes deviates from the right path, and this pursuit of a perfect world often sacrifices the human scale, judging, rebelling against, and fleeing from reality with a „non-human‟ perfectionist criterion” (fan, 2022, p. 71). the proprietor of the imperial hotel, the covert agent k.t., desired that sun shengxi “inherit the legacy of darkness and freedom” (lu, 2022, p. 273) before his decease. k.t. opined that “humans have lost hope. this is an era that demands a deity to balance human degeneracy” (lu, 2022, p. 274). he aspired to erect a statue of vairocana bodhisattva on mount xumi. the city theater also asked sun to by a spy for them to monitor the hotel. sun conducted himself in accordance with his own volition during his actions and became a double agent for both the city theater and the imperial hotel. he originally intended to construct and dismantle the statue of vairocana bodhisattva in order to alleviate the pressure of his paternal identity and self-identity, eliminating the “supreme, god-like colossal shadow that has long occupied the upper part of the mind” (lu, 2022, p. 315). however, upon beholding the statue of the bodhisattva, he felt love and compassion and apprehended that the statue “manifested fragile beauty in every aspect” (lu, 2022, p. 347). consequently, in the end, sun gave up removing statues and stopped seeking the approval of theatres and hotels, and came to the railway side and awaited a train to convey him away from gauss district to the “place of exile”, the “gathering place of those who have self-abandoned” (lu, 2022, p. 11)—the ruins of the night wanderers. sun shengxi‟s choice was not an indication of self-abandonment. his choice was replete with self-determination and successfully extricated himself from the reliance on domains such as the city theater and the imperial hotel to define his existence and value, attaining the integrity of his self-subject in nihility. 5. conclusion lu xu explores sun shengxi‟s identities in the family space, the space of biopolitics, and the utopia to contemplate the survival stress and anxiety that individuals encounter in the community in the real world. he critiques the harm imposed on individuals by the supreme power and also reflects upon the utopia representing freedom and unrestraint. the son of the darkness and the son of the mandrill not only function as the identities of characters in the novel but also constitute a metaphor for humans in reality. sun shengxi‟s identity exploration in the son of the darkness also symbolizes human beings‟ reflection on their own identities, relationships with others, and social connections. the imagery in the son of the darkness is peculiar and odd, but the connection between the novel and the real world has been acknowledged by the author himself. among them, the statue of vairocana bodhisattva that sun shengxi erected on mount xumi originated from a guan gong statue that was demolished in zhaoqing city in reality. thus, son of the darkness is also a work that focuses on the real ecological situation in the south china. the imagery of islands, toads, the birth of bodhisattva, and other elements rich in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 183 published by scholink inc. southern characteristics jointly construct a literary space belonging to the new southern. acknowledgements the article was supported by the 2024 innovation project of graduate education in guangdong province: “exploration on the ideological and political construction path of the curriculum for research on chinese language subjects and dissertation writing” (2024jgxm_179); general project of the 2023 annual educational research topic of the zhaoqing institute of education development (zqjyy2023215). references agamben, g. (2016). homo sacer: sovereign power and bare life (g. j. wu, tran.). beijing: central compilation & translation press. agamben, g. (2019). l’aperto: l’uomo e l’animale (l. jiang, tran.). nanjing: nanjing university press. bao, y. m. (2003). modernity and the production of space. shanghai: shanghai education press. currie, m. (2003). postmodern narrative theory (y. z. ning, tran.). beijing: peking university press. deleuze, g., & guattari, f. (2010). capitalisme et schizophrénie ii: mille plateaux (y. h. jiang, tran.). shanghai: shanghai bookstore publishing house. fan, j. (2022). the boundaries of critics. hanzhou: zhejiang university press. jacoby, l. (2007). picture imperfect: utopia thought for an anti-utopian age (j. b. yao, tran.). beijing: new star publishing house. jiang, s. z. (2022). southern imagery, discourse, and the attainment of the extreme of life—a review of lin bai’s bei liu and on new southern writing (vol. 2, pp. 76-79). levitas, r. (2018). the concept of utopia (g. y. li, & y. l. fan, trans.). beijing: china university of political science and law press. li, b. r. (2023). the nihility of the heterogeneous—on lu xu‟s son of the darkness. literary criticism of the greater bay area (gba), (4), 65-73. lu, x. (2022). son of the darkness. changchun: times literature and art publishing house. lu, x. (2023). son of the darkness and the sublime experience. literary criticism of the greater bay area(gba), (4), 81-83. malinowski, b. (2003). sex and repression in savage society (a. z. li, tran.). shanghai: shanghai people publishing house. https://doi.org/10.4324/9780203299241 shen, d., & wang, l. y. (2010). western narratology: classic and post-classic. beijing: peking university. stearns, p. n. (2024). shame (y. g. nie, tran.). shanghai: shanghai people publishing house. wang, m. a. (2022). affect, materiality and contemporariness. jinan: shan dong people publishing house. https://doi.org/10.4324/9780203299241 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 33 original paper research on the criminal law response to telecom fraud in the digital society yanqiu xiong 1* & minna qiu 2 1 the discipline inspection and supervision group of the anqing city discipline inspection commission in the anqing municipal people’s congress, anqing, china 2 law school, shantou university, guangzhou, china received: october 10, 2024 accepted: october 18, 2024 online published: october 19, 2024 doi:10.22158/elp.v7n3p33 url: http://dx.doi.org/10.22158/elp.v7n3p33 abstract with the rapid development of the digital society, telecom fraud has increasingly exhibited characteristics of intelligence, cross-border operations, and concealment, posing serious threats to both the economy and individual interests. however, the current criminal law has many deficiencies in addressing such crimes, making it difficult to effectively curb their spread. this paper analyzes the current state and characteristics of telecom fraud and explores the shortcomings of criminal law in responding to these new forms of fraud in the digital society. it proposes measures such as enhancing the adaptability of the law, improving sentencing standards, and strengthening cross-border judicial cooperation. furthermore, the paper emphasizes the importance of a coordinated response between technological means and the law, recommending the use of big data and artificial intelligence to improve the investigation and prevention of telecom fraud. the study suggests that only through the deep integration of legal frameworks and technology can the increasingly complex issue of telecom fraud in the digital society be effectively addressed. keywords digital society, telecom fraud, criminal law response, cross-border judicial cooperation, technological means www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 34 published by scholink inc. 1. introduction the rapid advancement of information technology has made the digital society central to global economic and social operations. while networks and digital platforms offer convenience, they also foster the growth of new crimes, especially telecom fraud. this crime, characterized by its concealment, intelligence, and cross-border nature, challenges traditional legal systems in prevention and enforcement, threatening personal financial security and societal trust. china’s criminal law has provisions against telecom fraud, but evolving methods make prosecution difficult, sentencing lenient, and cross-border enforcement challenging. with telecom fraud becoming globalized, international judicial cooperation and information sharing are crucial. this paper explores the state of telecom fraud, the limitations of current laws, and proposes measures to enhance legal adaptability, improve sentencing, and strengthen international cooperation. it also examines how technologies like big data and artificial intelligence can aid in fraud prevention and investigation, offering practical solutions to combat this growing issue (barbosa, 2020, pp. 19-35). 2. the current situation and characteristics of telecom fraud 2.1 forms of telecom fraud in the digital society in the digital society, the forms of telecom fraud have become increasingly diversified, with criminals constantly innovating their methods as technology advances. common forms of telecom fraud include, but are not limited to, phone scams, sms fraud, phishing, social media fraud, and cryptocurrency scams. these fraud schemes take advantage of the convenience of modern communication technology, quickly infiltrating people’s daily lives. first, phone and sms scams are the most traditional forms of telecom fraud. criminals often impersonate government agencies, financial institutions, or other authoritative organizations, using intimidation or inducement to deceive victims into transferring money or providing sensitive personal information (liu, 2021, pp. 1296-1316). despite the simplicity of this approach, it remains one of the most common forms of fraud due to its wide reach and ease of operation. second, with the development of the internet, phishing has become a significant tool in modern telecom fraud. criminals create fake websites or send fraudulent emails to lure victims into clicking malicious links, thereby stealing personal information, account passwords, and more. this type of fraud is often closely linked to e-commerce platforms, payment systems, and other online services, causing victims to suffer financial losses without even realizing it. in addition, the rise of social media fraud and cryptocurrency scams marks new changes in telecom fraud in the digital age. social media fraud typically involves criminals posing as celebrities or friends to carry out emotional scams or investment frauds (zhang & dong, 2023, p. 64). cryptocurrency scams, on the other hand, exploit the anonymity and technical complexity of virtual currencies, setting up fake investment platforms to attract investors and ultimately profiting through “exit scams” or market manipulation. in summary, telecom fraud in the digital society is diverse and flexible. criminals are adept at exploiting technological loopholes, legal gray areas, and people’s trust in information authenticity, leading to the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 35 published by scholink inc. rampant spread of fraud. this complexity poses significant challenges for the criminal justice system (dong, 2023, pp. 59-65). 2.2 characteristics of telecom fraud telecom fraud in the context of the digital society exhibits a set of unique characteristics, making criminal behavior more concealed, intelligent, and transnational, often on a large scale. understanding these characteristics is crucial for an effective criminal law response. first, high concealment is one of the prominent features of telecom fraud. criminals often use virtual identities and anonymous communication tools, such as virtual phone numbers, virtual private networks (vpns), or encrypted communication tools, making it difficult for victims to identify their real identities (lentz & nina, 2021, p. 1). at the same time, fraudsters hide the flow of funds by using multiple transfers or falsifying transaction records, further complicating investigation and tracking efforts. second, telecom fraud has become increasingly intelligent and reliant on technology. criminals are continually adopting advanced technological tools to enhance the complexity and targeting of their fraud schemes (dumchykov, 2022, pp. 76-82). for example, they may use artificial intelligence to generate voice or video that mimics authoritative figures or relatives, making their fraud schemes more convincing. additionally, through big data analysis, fraudsters can accurately target victims by analyzing personal information and behavioral patterns, executing highly tailored scams. this intelligence-driven fraud makes traditional prevention and tracking methods increasingly difficult. third, telecom fraud shows a clear trend of transnationality and globalization. as global communication networks become increasingly interconnected, criminals can carry out fraud across borders, exploiting differences in laws and enforcement challenges between countries to evade legal accountability. for instance, criminals may plan and execute scams from one country, while victims and fund transfers occur in other nations, adding to the complexity and cost of combatting these crimes. moreover, telecom fraud is often large-scale and organized. in recent years, many telecom fraud cases have been carried out by well-organized crime syndicates with clear divisions of labor, including specialized technical support, script training, and money laundering networks. these organized efforts enable fraud groups to simultaneously target large numbers of victims, causing significant social harm. even more concerning, successful fraud techniques are quickly copied and spread by other criminal groups, further exacerbating the problem. in conclusion, the characteristics of telecom fraud—high concealment, intelligence, transnationality, and organized large-scale operations—make it increasingly difficult to prevent and combat in the digital society. these traits impose higher demands on the criminal justice system, which urgently requires legal and technological innovations to effectively tackle the growing complexity of telecom fraud. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 36 published by scholink inc. 3. current criminal law provisions for telecom fraud 3.1 basic criminal law provisions for telecom fraud in addressing telecom fraud, current criminal law has established certain regulations and provisions. china’s criminal law primarily deals with telecom fraud through the “crime of fraud” and related statutes. according to article 266 of the criminal law of the people’s republic of china, fraud is defined as the act of illegally obtaining public or private property by fabricating facts or concealing the truth for the purpose of illegal possession. depending on the amount involved, the law prescribes different levels of punishment, ranging from fixed-term imprisonment and detention to fines. in recent years, judicial interpretations have further clarified and supplemented the legal treatment of telecom fraud. for instance, the supreme people’s court, supreme people’s procuratorate, and the ministry of public security have jointly issued several judicial interpretations targeting telecom fraud. these interpretations emphasize that, based on the fraud methods, the degree of harm, and the amount of money involved, corresponding convictions and sentencing should be applied. this ensures that even fraud carried out using the internet or communication technologies falls under the purview of the criminal law, thereby covering a wide range of telecom fraud activities. additionally, china has introduced more stringent measures in recent years to combat telecom fraud (ahmad et al., 2020, pp. 1308-1326). for example, the “card severing action” launched in 2016 aimed to crack down on intermediaries that provide criminals with bank cards, mobile phone sim cards, and other tools necessary for committing telecom fraud. simultaneously, laws and regulations have gradually strengthened the supervision of third-party payment platforms, cryptocurrency exchanges, and other financial tools to reduce the avenues available for telecom fraud funds to be transferred. although current criminal law offers a relatively clear framework for punishing telecom fraud, the diverse and rapidly evolving forms of telecom fraud pose challenges for the law in practice. for example, sentencing standards for fraud may not be fully adequate to deter large-scale, cross-border, and technology-driven telecom fraud. additionally, the high degree of concealment involved in online fraud poses significant difficulties in evidence collection and prosecution under existing legal provisions. therefore, while the current legal framework provides a basis for addressing telecom fraud, there is a need for further enhancement in its enforcement and adaptability to effectively combat the increasingly complex telecom fraud crimes in the digital society. 3.2 gaps and deficiencies in criminal law despite existing legal frameworks, significant gaps limit the effectiveness of combating telecom fraud, especially as these crimes become more complex and diverse. first, prosecution and evidence collection pose major challenges. telecom fraud often involves the use of virtual identities, encrypted communications, and offshore servers, making it difficult to trace criminals. fraudsters use virtual phone numbers, encrypted tools, and complex money transfers to hide their identities and obscure the flow of funds. the anonymity of online activities, combined with the cross-border nature of these crimes, complicates investigations and often requires international cooperation, which is slow and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 37 published by scholink inc. complicated, hindering rapid responses and prosecutions. second, sentencing standards are insufficient. current laws base sentencing primarily on the monetary value of the fraud, but telecom fraud has broader social consequences, including societal disorder, public trust issues, and even national security threats. large-scale fraud schemes often affect many victims, but the law’s reliance on financial losses alone results in lighter sentences, reducing its deterrent effect. third, inadequate international cooperation further hinders the prosecution of transnational fraud. criminals exploit differences in laws and enforcement across countries to evade justice. mechanisms for international cooperation remain underdeveloped, and differences in legal systems slow down efforts to combat fraud, making it difficult to prosecute and extradite suspects swiftly (mcguire, 2022, p. 35). finally, the slow adoption of advanced technologies by law enforcement agencies limits their ability to combat increasingly sophisticated telecom fraud. while criminals use ai, big data, and other technologies to target victims, law enforcement often lacks the necessary tools to track real-time virtual currency transactions and freeze illicit funds. in conclusion, gaps in prosecution, sentencing, international cooperation, and technological adoption highlight the need for legal reforms, better international cooperation, and advanced technological tools to effectively address telecom fraud. 4. criminal law approaches to telecom fraud in the digital society 4.1 enhancing the adaptability of criminal law in the digital age in the digital society, telecom fraud is continuously evolving, requiring criminal law to be more flexible and adaptable to address the complexity and technical nature of these crimes. strengthening the adaptability of criminal law has become a critical path for combatting telecom fraud. firstly, revising and updating legal provisions is essential to improving the adaptability of criminal law. due to the rapid evolution of fraud techniques, existing fraud-related legal provisions may not cover all emerging types of fraud. to address this challenge, criminal law needs to be updated to include more specific provisions for new forms of fraud prevalent in the digital society. for instance, new clauses should be added to address common forms of digital fraud such as cryptocurrency scams, phishing, and social media fraud. this would clarify the legal basis for prosecution and sentencing, enabling law enforcement to make swift legal judgments based on specific criminal behavior (li & yong, 2022, p. 4761230). secondly, increasing the legal definition and penalties for technological crimes is crucial. as criminals use advanced technology to perpetrate fraud, criminal law must become more targeted in addressing technology-related crimes. future laws should strengthen the legal definition of fraud using emerging technologies such as artificial intelligence and big data, especially in clarifying the responsibility of perpetrators using these tools. for example, laws should clearly define the criminal liability for fraud conducted via deep fake technology or synthetic voice technology and impose stricter penalties to create a strong deterrent effect. additionally, enhancing the flexibility of legal interpretation is an effective way to improve the adaptability of criminal law. given the fast pace of technological development, legislation often lags behind, making it difficult to revise laws in time to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 38 published by scholink inc. cover all new forms of crime. therefore, judicial authorities should apply legal interpretation more flexibly, interpreting and applying existing legal provisions to new types of crimes. for instance, in complex telecom fraud cases, judicial authorities can extend the interpretation of existing fraud provisions to cover new forms of cybercrime, ensuring that the law can respond flexibly to rapidly evolving technology. finally, improving the coordination between criminal law and regulatory frameworks is essential. telecom fraud in the digital society involves numerous technological tools and platforms. criminal law must be closely integrated with regulatory mechanisms to adapt to the digital age. by collaborating with telecommunications operators, internet service providers, and payment platforms, a robust monitoring and early warning system can be established, effectively combining legal measures with technical regulation. for instance, laws can impose legal responsibilities on online platforms to take timely technical measures to block and report fraudulent activities, creating a synergy between legal and technical regulatory efforts. in summary, enhancing the adaptability of criminal law in the digital age is essential for combatting telecom fraud. through revising and updating legal provisions, strengthening penalties for technological crimes, applying flexible legal interpretations, and improving coordination between law and regulatory frameworks, telecom fraud in the increasingly complex digital society can be more effectively addressed, ensuring the validity and authority of criminal law (sinaga, 2023, pp. 4585-4604). 4.2 improving the determination of criminal liability and sentencing in addressing telecom fraud in the digital society, improving the determination of criminal liability and sentencing standards is a core measure for effectively combating these crimes. current criminal law primarily bases sentencing for fraud on the amount of money involved, but as telecom fraud becomes more complex and socially damaging, the current sentencing system fails to fully reflect the severity and diversity of fraudulent activities. therefore, it is necessary to optimize the determination of criminal liability and sentencing standards to enhance the specificity and deterrence of criminal law. firstly, sentencing should consider the social harm caused by the crime. telecom fraud not only results in financial losses but can also trigger public trust crises, social panic, and widespread societal issues. the current criminal law relies too heavily on the monetary amount of the fraud for sentencing and overlooks the broader social impact of the crime. for example, large-scale telecom fraud may involve relatively small individual losses but have a significant overall social impact. in such cases, sentencing should fully consider the social harm caused by the fraudulent activity and use it as an important factor in sentencing decisions. for cases that create widespread panic or damage public trust, even if the monetary amount is relatively low, penalties should be increased to strengthen deterrence. secondly, differentiating the roles and responsibilities of participants is crucial in determining sentencing. in organized and transnational telecom fraud cases, participants often take on diverse roles, including planners, technical support, and fund transfer agents. traditional fraud provisions do not adequately distinguish the varying degrees of involvement, leading to uniform sentencing standards. improving the determination of criminal liability requires more precise differentiation of roles, with sentencing based www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 39 published by scholink inc. on each participant’s specific involvement in the crime. for instance, planners and organizers of large-scale fraud should face more severe penalties, while technical support or fund transfer participants with lesser involvement should receive proportionate punishment, ensuring fair and reasonable sentencing. additionally, introducing new sentencing standards to address technology-driven fraud is necessary. as telecom fraud increasingly relies on high-tech tools, the intelligence and technical complexity of fraudulent activities have escalated. traditional sentencing standards based solely on the monetary value of the fraud are no longer sufficient to handle these sophisticated crimes. for example, criminals using phishing, malware, or artificial intelligence to commit fraud may cause large-scale personal information leaks in a short period, leading to significant potential risks for victims, even if no direct financial loss occurs. in such cases, criminal law should consider the unique nature of technology-driven fraud and introduce new standards for sentencing, such as the number of victims, the extent of information breaches, and the complexity of the fraudulent methods, allowing for a more comprehensive assessment of the social harm caused by the crime and appropriate sentencing. finally, increasing penalties for transnational telecom fraud is essential. transnational telecom fraud involves multiple jurisdictions, making law enforcement and accountability challenging. therefore, criminal law should impose harsher penalties for transnational fraud to raise the cost of committing such crimes. for example, in addition to standard penalties, further sanctions could include banning perpetrators from engaging in certain industries, enhancing asset tracking and freezing, and increasing international criminal liability. by intensifying the penalties for transnational fraud, stronger legal deterrence can be created, preventing criminals from exploiting international legal differences to evade prosecution. in conclusion, improving the determination of criminal liability and sentencing is not only a legal safeguard against telecom fraud but also a crucial measure for enhancing the deterrent effect of criminal law and maintaining social order. by introducing more targeted sentencing standards, differentiating the roles and responsibilities of participants, adapting to the specific nature of technology-driven fraud, and increasing penalties for transnational crimes, criminal law can more effectively combat telecom fraud in the digital society and protect the legitimate rights and interests of the public. 5. the role of international cooperation and technological support in combating telecom fraud the cross-border nature and technological complexity of telecom fraud make it a global challenge, one that cannot be effectively addressed by the laws and enforcement mechanisms of any single country. therefore, international cooperation and technological support play a crucial role in combating telecom fraud. faced with these cross-border and high-tech crimes, countries must strengthen judicial cooperation and technical collaboration to jointly address this global security threat. first, international judicial cooperation is key to combating cross-border telecom fraud. since telecom fraud often spans multiple countries and regions, criminals can easily exploit differences in legal systems and law www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 40 published by scholink inc. enforcement practices to evade prosecution. to effectively combat such crimes, countries need to establish tighter judicial cooperation mechanisms, promoting information sharing, evidence assistance, and international cooperation on extradition. for example, establishing a global unified telecom fraud database would help law enforcement agencies worldwide quickly access criminals’ operational information and activity patterns, reducing their chances of fleeing across borders. additionally, countries must enhance legal coordination in extradition procedures, simplifying the process to ensure that criminals are swiftly brought to justice. second, technological support is a core tool in fighting telecom fraud. as fraud methods become increasingly intelligent and technologically advanced, traditional investigative techniques are no longer sufficient to deal with the complexity of modern telecom fraud. therefore, law enforcement agencies worldwide must invest more in technological tools, utilizing artificial intelligence (ai), big data analytics, blockchain, and other advanced technologies to improve the detection and prevention of telecom fraud. for example, ai can help identify abnormal online activity and detect potential fraud, while big data can analyze vast amounts of network transactions and communication records to identify patterns of criminal behavior. additionally, blockchain technology is particularly useful for tracking the flow of virtual currencies, aiding law enforcement in tracing the movement of fraudulent funds and freezing illegal assets, thereby undermining the financial foundation of criminal operations. in addition to international cooperation and technological support, the participation and coordination of international organizations are also indispensable. global organizations such as interpol and the international telecommunication union (itu) play a crucial role in coordinating efforts to combat telecom fraud. these organizations provide platforms for technical support and information sharing among law enforcement agencies, helping countries increase the efficiency of their anti-fraud efforts. for example, interpol has established a dedicated cybercrime unit responsible for coordinating anti-fraud actions among member countries and organizing multinational efforts to combat telecom fraud. this global cooperation improves the overall effectiveness of efforts to combat telecom fraud and helps curb the spread of these crimes. lastly, the involvement of businesses and the public in providing technological support is also an essential part of combating telecom fraud. in addition to government cooperation, businesses and the public should actively participate in the fight against telecom fraud. telecom operators, internet platforms, and financial institutions should strengthen their collaboration with governments by providing technical support and anti-fraud monitoring measures. for instance, telecom operators can intercept suspicious calls and messages through technical means, reducing the spread of fraudulent information; internet platforms can use ai to monitor user behavior, quickly identifying and blocking fraudulent accounts; and financial institutions should enhance monitoring and reporting mechanisms for suspicious transactions to prevent the rapid transfer of funds. at the same time, the public needs to raise awareness of fraud prevention, learn basic knowledge on how to avoid scams, and cooperate actively with government and corporate anti-fraud efforts. in summary, international cooperation and technological support play an irreplaceable role in combating telecom fraud. by strengthening international judicial www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 41 published by scholink inc. cooperation, leveraging advanced technological tools for investigation and prevention, and involving international organizations and the public, the global community can more effectively address the growing threat of telecom fraud, protecting citizens’ financial security and maintaining social order. 6. conclusion in the context of the digital society, telecom fraud has become increasingly complex and transnational, presenting significant challenges to existing criminal law. although laws have been established to address fraud, the constantly evolving techniques used in these crimes demand improvements in legal adaptability, sentencing standards, and mechanisms for international cooperation. by revising legal provisions, introducing new sentencing standards, enhancing international judicial collaboration, and leveraging technological tools such as big data and ai, we can more effectively combat telecom fraud and safeguard the public's financial security and social order. references ahmad, a. h. et al. (2020). the impact of digitalization on occupational fraud opportunity in telecommunication industry: a strategic review. palarch’s journal of archaeology of egypt/egyptology, 17(9), 1308-1326. barbosa, p. a. r. (2020). corporate criminal law, artificial intelligence and big data: the huawei case and its implications for global society. revista paradigma, 29(1), 19-35. dong, a. y. (2023). the characteristics and prevention countermeasures of telecom network fraud crime under the background of big data. journal of sociology and ethnology, 5(5), 59-65. dumchykov, m. (2022). international legal standards for combating fraud in the field of computer information. european socio-legal and humanitarian studies, 2(2022), 76-82. lentz, l. w., & nina, s. (2021). the use of historical call data records as evidence in the criminal justice system-lessons learned from the danish telecom scandal. digital evidence & elec. signature l. rev., 18(2021), 1. https://doi.org/10.14296/deeslr.v18i0.5235 li, g., & yong, w. (2022). [retracted] research on the detection countermeasures of telecommunication network fraud based on big data for killing pigs and plates. journal of robotics, 2022(1)), 4761230. https://doi.org/10.1155/2022/4761230 liu, l. l. (2021). a jurisprudential analysis of the concurrent criminal jurisdiction over cross-border telecom fraud crime. journal of financial crime, 28(4), 1296-1316. https://doi.org/10.1108/jfc-09-2019-0123 mcguire, m. r. (2022). crime, control and the ambiguous gifts of digital technology. the sage handbook of digital society, (2022), 35. https://doi.org/10.4135/9781529783193.n4 https://doi.org/10.14296/deeslr.v18i0.5235 https://doi.org/10.1155/2022/4761230 https://doi.org/10.1108/jfc-09-2019-0123 https://doi.org/10.4135/9781529783193.n4 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 42 published by scholink inc. sinaga, h. (2023). legal and ethical implications in data theft cases in the digital era. east asian journal of multidisciplinary research, 2(11), 4585-4604. https://doi.org/10.55927/eajmr.v2i11.6791 zhang, y., & dong, h. y. (2023). criminal law regulation of cyber fraud crimes—from the perspective of citizens’ personal information protection in the era of edge computing. journal of cloud computing, 12(1), 64. https://doi.org/10.1186/s13677-023-00437-3 https://doi.org/10.55927/eajmr.v2i11.6791 https://doi.org/10.1186/s13677-023-00437-3 microsoft word elp-v2n1-p12 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 1, 2019 www.scholink.org/ojs/index.php/elp 12 original paper analysis of the east african community integration process as an opportunity for uganda’s medium-to-long-term development rogers matte1* 1 macroeconomic planning department, national planning authority, kampala, uganda * rogers matte, macroeconomic planning department, national planning authority, kampala, uganda received: october 21, 2018 accepted: november 7, 2018 online published: january 3, 2019 doi:10.22158/elp.v2n1p12 url: http://dx.doi.org/10.22158/elp.v2n1p12 abstract this paper reviews the key developments of the eac integration in a manner that paves way for identifying salient gaps in programming to inform medium-term development planning in uganda. specifically, the paper identifies the main achievements and challenges registered by the eac over the past 10 years; appraises uganda’s optimism on integration, identifying the country’s efforts to mainstream eac integration agenda and the benefits registered; and recommends measures for accelerating the benefits of integration to uganda in the medium to long-term. uganda has benefitted immensely from the eac integration by exploiting its comparative advantage in certain industries, and has registered growth in exports to the region at unprecedented rates. trade has grown faster than investment in the region. the country has benefitted from joint coordination of programmes and projects facilitating resource mobilisation for priority projects. the key challenges remain the recurrence of non-trade barriers and the low pace of project execution which hinder accelerated registration of benefits. the east african community development programming provides an opportunity for the government of uganda to take advantage of the long-term perspective planning to identify areas for joint coordination and execution with the partner states of the eac integration. keywords east african community, regional economic integration, economic development www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 13 published by scholink inc. 1. introduction 1.1 background the east african community (eac) is a regional inter-governmental organisation of 6 partner states: the republics of burundi, kenya, rwanda, south sudan, the united republic of tanzania, and the republic of uganda. the eac was re-established by the 1999 treaty that entered into force in 2000 following its ratification by three partner states of uganda, kenya, and tanzania. the republics of rwanda and burundi became full members of the eac later in 2007 while the republic of south sudan acceded to the treaty and become a full member in 2016. the eac was re-established with the belief that co-operation at the sub-regional and regional levels in all fields of human endeavour will raise the standards of living of african peoples, maintain and enhance the economic stability, foster close and peaceful relations among the african states and accelerate the successive stages in the realisation of the proposed african economic community and political union. since its re-establishment, progress has been made in operationalizing the various provisions of the treaty, through proposals, policies, strategic plans, programmes and projects. in particular, implementation of the eac programmes is structured around four main core areas, the pillars of integration, namely the customs union, the common market, monetary union and the political federation. the current status of the east african regional integration can be brought into perspective by considering its historical milestones. the first treaty for east african cooperation among kenya, uganda and tanzania was signed 1967. this followed a series of key developments in cooperation between 1897 and 1961 by the colonial administration of that time under which elements of integration were vivid (table 1). these include: building of the railway, the customs union in 1917, and the various boards about currency, postal services, governors’ conference, income tax, and others. by 1961, the east african common services organisation (eacso) was established although it suffered from a lack of joint planning and fiscal policy, separate political policies and kenya’s dominant economic position. the eac was dissolved in 1977 because at that time there was lack of strong political will, lack of strong participation of the private sector and civil society in the co-operation activities, the continued disproportionate sharing of benefits of the community among the partner states due to their differences in their levels of development and lack of adequate policies to address this situation. the treaty for the re-establishment of the east african community was signed by the three presidents of the republic of kenya, republic of uganda and the united republic of tanzania on 30th november, 1999. 30th november is recognized as eac day across the region for this reason. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 14 published by scholink inc. table 1. summary of the key facts about east african community integration process dates description of major event 1897-1901 railway lines across kenya, uganda and tanganyika open up the region for colonial development under the management of the east african railways cooperation. 1900-1917 customs for goods destined for uganda are collected at mombasa port and a full customs union comprising kenya, uganda and later, tanganyika is established in 1917. 1905-1940 the east african currency board, the postal union, the court of appeal for eastern africa, the east african governors’ conference, the east african income tax board and the joint economic council are established. 1946 the east african airways corporation is incorporated. it covered the east african region as well as operated across africa, connecting also to europe and india. 1948-1961 the east african high commission (each) is the coordinating body to deal with a customs union, a common external tariff, currency and post-age; and also with common services in transport and communications, research and education. 1961 following independence, the east african high commission is replaced by the east african common services organisation (eacso), which many observers thought would lead to a political federation between the three territories. however, the new organisation suffered from a lack of joint planning and fiscal policy, separate political policies and kenya’s dominant economic position. 1967 signing of the “treaty for east african cooperation” among kenya, uganda and tanzania. 1977 dissolution of the first east african community. 1999 the treaty for the establishment of the east african community was signed by the three presidents of the republic of kenya, republic of uganda and the united republic of tanzania on 30th november, 1999. 30th november is recognized as eac day across the region. 2005 the protocol for the establishment of the eac customs union was signed on 1st july, 2005. 2007 the republic of rwanda and the republic of burundi were admitted and became full members of eac on 1st july, 2007. 2010 the eac common market protocol entered into force on 1st july, 2010, an expansion of the bloc’s existing customs union. 2013 the east african monetary union (eamu) is the third milestone of the eac integration process. the eamu protocol was signed on 30th november, 2013 and set the groundwork for a monetary union within 10 years while allowing the eac partner www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 15 published by scholink inc. dates description of major event states to progressively converge their currencies into a single currency in the community. 2016 the republic of south sudan was admitted and became a full member of eac on 5th september, 2016. 2017 on 20th may, 2017, the eac heads of state adopted the political confederation as a transitional model of the east african political federation. source: eac, 2018. seven years after the eac treaty coming into force, government of uganda established a ministry for the east african community affairs (meaca) in 2007, responsible for coordinating the affairs of the government of uganda in line with article 8 (3) of treaty. this was in a way upgrading a department of eac affairs that was formerly housed in the ministry of foreign affairs until 2006. one of the mandates of the meaca is to ensure mainstreaming of eac issues in the national development and sectoral plans (ndps, sdps) and budgets. the main mission of the ministry at its inception was “to ensure that ugandans benefit from the east african community integration”. the key achievements of integration in uganda can be summarised to include: the development of elaborate 5-year strategic plans for the eac; the development of medium-term communication strategies; and comprehensive pillar focused implementation plans; the establishment of functional structures and organs including the linkages between them; among others (niyonzima, 2018). in 2015 government of uganda developed a policy to guide integration of the east african community agenda into the country’s development plans, policies, programmes and projects in order to pave way for the smooth realisation of integration benefits. uganda’s decision to integrate with the rest of the eac was based on the expectation for lower barriers to trade and the increase in trade as a way of accelerating improvement in the well-being of the country’s population. the country expected to benefit from increased aggregate demand due to a lower cost of production and consumption which would trigger greater demand for and utilisation of factors of production, leading to an increase employment, higher production in agriculture and industry. in a nutshell, integration was expected to increase market access and competitiveness, among the key benefits (republic of uganda, 2015). as part of the integration process of the eac agenda into national development frameworks, it is imperative that developments in regards to the expectations are taken into account by the national planning machinery in order not to lose focus on the existing opportunities that have been set forward. among the key stakeholders managing these processes is the national planning authority, which coordinates the development of long-term perspective and medium term comprehensive national development plans. as evident from the national policy on eac integration, there are sectors and agencies responsible for planning of interventions which need to work together as government in order www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 16 published by scholink inc. to identify synergies from joint planning and jointly increase benefits from coordinated interventions. interventions identified to increase the country’s competitiveness are of infrastructure nature and their successful implementation requires efforts of various sectors. infrastructure is just one of the most critical enablers of successful regional integration. this has been demonstrated by the eac heads of states’ biennial retreats on its development and financing. regional infrastructure interventions are expected to attract investment into the region, improve competitiveness and promote lower cost trade. the eac economic development strategies therefore put emphasis on the important role of the sectors that relate to infrastructure, such as transportation sector, in order to facilitate trade in the region. 1.2 principles of meaningful integration a long-term vision, vision 2050 was developed which elaborates the key principles for the integration in the region (east african community, 2016). these include: political commitment, ownership, culture of trust and accountability, shared destiny and own resources, mind-set and paradigm change, nurturing and promoting private sector-led growth. on political commitment, member states of the eac are expected to take measures and actions timely that are geared towards implementation of the regional commitments through agreed specific community decisions, protocols and instruments. a process of coordinated actions to ensure policy making, ratification and implementation is also politically supported. in regard to ownership, the aspirations, and decisions made in their line were expected to be owned by the populace of the community. this is facilitated by a process of ensuring that there is awareness about the benefits of integration and participation in the processes for enabling these to be realised. culture of trust and accountability is a virtue to ensure effective regional transformation and is facilitated by continuous exchange between the various actors to create spaces for feedback and learning, thus enhancing trust in the functioning of community organs and institutions. a shared destiny is manifested in common goals, and financed largely through own resources, and has been evident in the commitments made by partners to embrace joint initiatives arrived at through shared prioritization for joint investment. a managed change process involves a systematic mind-set change on the way development must be approached in the region, encompassing the pan-africa vision, regional values and adoption of a productivity culture. lastly, the private sector has to be nurtured because of its key role in job and wealth creation through the production and marketing of goods and services along global value chains. 1.3 the framework for regional integration in east africa—the pillars economic integration is a cooperation organization adopted by at least two national economies to jointly and mutually set aside agreed sovereign rights and pursue common policies and goals in order to increase their individual pace of development. the operationalisation of economic integration is based on the economics of business, human resources and infrastructure development in order to realise development goals. the organisational mechanisms are operationalised through formal rules and institutions. economic cooperation enhances the functioning of the economic system through the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 17 published by scholink inc. creation of economies of scale as well as positive externalities. the framework for integration of east african community takes into account four key determinants of development through integration. these determinants are clustered along pillars, and include; freedom of movement of goods, services and a common external trade policy; free movement of factors of production (labour and capital); a common currency and single monetary and foreign exchange policies; and union of partially self-governing states under a central federal government. on the side of outcomes, they result into economic growth, human development and equity in the integrated states. in the case of the east african community, a treaty for its establishment constitutes the primary framework for integration and it identifies the four pillars of integration namely; the customs union, the common market, the monetary union and the political federation. from the framework, it is noted that first, the adoption of common policies on product regulation, freedom of movement of goods, services and a common external trade tariff policy will lead to an increase in the volume of diverse goods and services traded by the region. secondly, the joint contribution of the four pillars of integration is the improved quality of life of the people of east africa; and third the implementation of coordinated investment policies and programmes will lead to increased competitiveness; value addition in production, trade and investments in the countries and the region. the customs union has been in force since 2005, and is based on article 75 of the treaty for the establishment of the east african community. under this union, eac partner states agreed to establish free trade on goods and services amongst themselves and agreed on a common external tariff (cet), whereby imports from countries outside the eac zone are subjected to the same tariff when sold to any of the eac partner states. in effect, goods move freely within the eac in full compliance with established rules of origin and with the relevant provisions of the protocol for the union’s establishment. the objectives of the customs union are: (i) to further liberalise intra-regional trade in goods on the basis of mutually beneficial trade arrangements among partner states; (ii) to promote efficiency in production within the community; (iii) to enhance domestic, cross-border and foreign investment in the community; and (iv) to promote economic development and diversification in industrialisation in the community. integration activities revolve around the following areas: (i) customs administration; (ii) addressing issues concerning trade liberalisation; (iii) trade related aspects including the simplification and harmonisation of trade documentation, customs regulations and procedures; (iv) trade remedies; (v) national and joint institutional arrangements; (vi) training facilities and programmes on customs and trade; (vii) production and exchange of customs and trade statistics and information; and (viii) the promotion of exports. in order to achieve the objectives of the various pillars of integration, specific mandates, objectives and initiatives have been identified, for the key sectors. the common market has been in force since 2010, and it followed the customs union, which became fully-fledged in january 2010. the common market makes it possible for the eac partner states to maintain a liberal stance towards four freedoms of movement for all the factors of production and two www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 18 published by scholink inc. rights between themselves, namely; the free movement of goods, persons and of labour/workers, movement of services; movement of capital; and the rights: of establishment and residence. the key principles that govern the common market include: (i) non-discrimination of nationals of other partner states on grounds of nationality; (ii) equal treatment to nationals of other partner states; (iii) ensuring transparency on matters concerning the other partner states; and (iv) share information for the smooth implementation of the protocol. the achievement of the above objectives was considered to be dependent on sectoral achievements (east african community, 2018). these include: the harmonisation of agricultural policies as well as joint programmes for efficient and effective production; the promotion and enhancement of diverse sports activities and the promotion and preservation of culture; the prevention and control of communicable and non-communicable diseases and to control pandemics and epidemics of communicable and vector-borne diseases; harmonization of curricula, examination, certification and accreditation institutions; the adoption of policies and mechanisms; prevention, arrest and reversal of the effects of environmental degradation as well as management and the sustainable utilisation of natural resources; the adoption of common approaches towards the disadvantaged and marginalised groups, including women, children, the youth, the elderly and persons with disabilities; undertaking joint action towards the prevention and control of communicable and non-communicable diseases and to control pandemics and epidemics of communicable and vector-borne diseases; adoption of common policies and procedures; improving the competitiveness of the industrial sector; coordination, harmonisation and complementing transport and communications policies; improving and expanding the existing transport and communication links; the promotion of a continuous dialogue with the private sector to help create an improved business environment and enhancing investor confidence in the region; co-operation and consultations on issues pertaining to peace and security of the partner states; collective promotion and marketing of the community as a single tourist destination; and rationalisation of investments and the full use of established industries to promote efficiency in production, as well as harmonising trade policies, investment incentives and product standards. the eamu protocol was adopted and signed in 2013 as a foundation for a monetary union within 10 years. this is expected to allow the eac partner states to progressively converge their currencies into a single currency in the community. prior to achieving a single currency, the eac partner states are expected to harmonise monetary and fiscal policies; harmonise financial, payment and settlement systems; harmonise financial accounting and reporting practices; harmonise policies and standards on statistical information; and, establish a central bank for the region. after the ratification of the common market protocol by eac partner states in 2010, it was envisaged that there would be phased liberalisation of trade in financial services and the elimination of restrictions on the free movement of capital by 2015 at the latest. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 19 published by scholink inc. this is provided for under article 5(2) of the treaty for the establishment of the east african community and founded on three pillars: common foreign and security policies, good governance and effective implementation of the prior stages of regional integration. the process for attaining the political federation is supported by the heads of state resolution at their special summit held in 2004. after consultations by the “wako” committee set up by the heads of state summit on fast-tracking the eac political federation, the office of deputy secretary-general responsible for political federation was established in 2006 to coordinate this process. in 2017, after further studies, consultations and summit directives between 2006 and 2008 to facilitate fast-tracking the process, the heads of state adopted the political confederation as a transitional model of the east african political federation. the processes of the political federation pillar are organised under tow main sectors, namely international relations and peace and security (east african community, 2018). there remains a deficiency in the services the region requires to make the integration system work effectively and efficiently to achieve its objectives. continuous effort to bridge gaps in services including the provision of information to stakeholders, at all levels of strategic decision making, planning, implementation, and reporting will eventually lead to lower costs of trade and make products competitive in international markets. there is a lot that has taken place to implement the decisions made on regional integration, but information remains scanty in providing concise track of the developments to inform further planning. looking at uganda’s development trajectory, there has been a deceleration in economic growth over the last five years yet during the period when the country just restored comprehensive development planning. the period when growth was slowing is also that when the services sector was leading the rest of the economy, and the productive sectors were not transforming as envisaged in the development plans and the long-term vision. in view of the above, the following questions are critical for the eac: what have been the main processes of eac integration to date? what have been the outputs and outcomes of the eac integration since its revival? what has uganda as a participating member state achieved from regional integration to date? can uganda further its benefits from this integration arrangement in view of its long-term development perspectives and the medium-term interventions? these questions are important in order to appreciate how the services sector backed growth through trade and investment could pull the economy’s growth back to higher rates by binding responsively the agriculture and industrial sectors in development as stipulated in uganda vision 2040, and ensure the fundamental inputs are aligned to the opportunities presented by integration. 1.4 objectives of this report the main objective of this analysis is to trace the key developments of the eac integration in a concise manner and identify salient gaps to inform medium-term development planning. specifically, the paper identifies the main achievements and challenges registered by the eac over the past 10 years; reviews uganda’s optimism by identifying the country’s efforts to mainstream eac integration and the benefits registered; and finally recommends measures for accelerating the benefits www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 20 published by scholink inc. of integration to uganda in the medium to long-term. 2. methodology the review process involved extensive review of literature. access to these reports was made possible by having access to library materials at the eac headquarters in arusha. this was supplemented by limited discussion with a few experts on the eac integration process. 3. results 3.1 dynamic scan of the strategic integration environment a lot of effort has been exerted at improving the internal and external environment for the eac integration. a comparison of the strengths, weaknesses, opportunities and threats identified by the eac over the last decade indicates that the community has been able to increase its strengths, weakly dealt with the weaknesses, got exposed to more opportunities, and reduced threats to its existence. between 2010 and 2017, the eac took steps to improve its strengths, weaknesses, opportunities and threats. the major actions taken to improve this environment are summarised in table 2. table 2. actions taken to improve eac integration environment strengths i) consolidated political commitment and stability by promoting participation of the citizenry and the private sector in the integration process. ii) strengthened the mandates and capacities of the regional institutions and organs and national coordination to manage effectively the pace of regional integration. iii) prioritised intervention programmes for shared benefits of regional integration including efficient use of the natural resources to improve the wellbeing of east africans. iv) targeted building a regional economy to take advantage of the large regional market. v) better and appropriate interventions that ensured full and efficient utilisation of the human resource base in the region in the integration process, especially while implementing the common market. vi) enhanced e-business opportunities. vii) strengthened joint action in pursuit of common foreign policy interests. viii) built consensus on the medium-term and long-term priorities. weaknesses i) fast-tracked the tripartite arrangement. ii) promoted good governance. iii) created, promoted and pursued democratization and governance processes. iv) formulated and operationalised a regionally shared long-term development vision and mission. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 21 published by scholink inc. v) continued the harmonisation of national and regional policies, laws and regulations in support of the common market. vi) endeavoured to improve and equitably distribute economic and social infrastructure. vii) worked on the establishment of the strong foundations for the establishment of the monetary union and political federation. viii) developed mechanisms and options for mobilizing diverse resource for effective implementation of the regional programmes. ix) deepened stakeholder representation in all matters related to the integration process. x) built and strengthened national and regional institutional capacities for speedy implementation of regional programmes. xi) continued the harmonization of policies, laws and regulations. xii) enforced the regional monitoring and evaluation framework for enhanced strategic planning, coordination and accountability mechanisms. xiii) leveraged newer technologies to enhance production and productivity. xiv) promoted research and technology. xv) developed technical skills. xvi) institutionalize long term urban planning. opportunities i) the eac made use of global initiatives to design appropriate interventions, mobilise resources and expand markets for east african goods and services. ii) took advantage of the prospects of tripartite arrangement which widened the market of the community. iii) built and promoted good relations with supportive multilateral and bi-lateral development partners to source financial resources and create an enabling environment for integrating eac into other regional and global trade and financial institutions. iv) promoted cooperation with other regional blocs to spearhead beneficial changes in global matters that affect the region. v) took advantage of the expanded ict capacity to promote back-office employment opportunities. vi) promoted a positive international perception of eac region. vii) took advantage of the global optic-fibre connectivity. threats i) prioritised country specific flagship programmes to address differences in the economies of the partner states to remove fears and concerns about the benefits of the community. ii) sustained the spirit of joint pursuit of common foreign policies including negotiating as a bloc in order to strengthen the regions position and voice in the global competitive environment. iii) continuously supported regional initiatives in pursuit of peace and stability. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 22 published by scholink inc. iv) created a common approach and understanding of development and democratisation processes. v) designed and implemented strategies to minimise the impacts of global warming and environmental degradation. vi) tapped into the expertise of the diaspora through appropriate interventions to create more attractive economic, social and political incentives to allow full participation of the diverse professionals for purposes of building the regional economies. vii) the community collaborated with relevant international institutions to contain terrorism and piracy. viii) promoted the spirit of being east african and nurtured integrationist-oriented mind-sets. source: eac secretariat—4th and 5th eac development strategies. 3.2 challenges strategic challenges of the eac include: (i) delays in the harmonization of national laws that impact on the implementation of protocols and (ii) understaffing, which impacts on effectiveness and efficiency in implementation of projects and programmes. by 2017, operational challenges in the implementation of community programmes and projects included: (i) persistent delays in remittance of funds from partner states and development partners, and (ii) limited financial resources leading to the overall budget declining yet the demand for services is increasing on the community to deliver more and this is occasioned by reduced support from development partners. the customs union faced the following challenges as at end of 2017: (i) the establishment of a customs authority at regional level is a long-term process that is not achievable in a five year period of a single development strategy; (ii) there have been frequent requests for stays of application that undermine the uniformity in application of the cet; (iii) low levels of customs compliance and the slow process of developing, enacting and assenting to regional laws; (iv) variance in the pace of implementation of community decisions by partner states; and (v) continuous re-occurrence of customs-related ntbs arising from administrative and procedural processes (as presented in annex 3); (vi) inadequate resources to develop integrated ict systems at regional and national levels; (vii) the slow process of harmonization of domestic taxes; (viii) lack of a monitoring and evaluation tool for the customs union; (ix) slow pace in finalisation of the harmonization of domestic tax laws; (x) rules of origin are not yet aligned to the fta; and (xi) existence of different national customs systems that hinder seamless sharing of information and integration of cross-border processes. related to the common market, barriers have remained: (i) a number of national laws are yet to be amended to comply with the regional requirements; (ii) there are delays to the process of harmonization of systems and procedures towards a flawless single market arising from varying levels of developments across sectors and institutional frameworks by partner states; and (iii) resolving harmonisation challenges across partner states takes a long-time thus increasing pessimism about the realisation of common market. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 23 published by scholink inc. in regard to the monetary union, challenges relate to: (i) a low reserve cover that was below the 4.5 months of import since 2013, except for uganda and kenya; (ii) compliance with the fiscal deficit criterion of 3 percent of gdp (including grants) had on average been very challenging for most eac countries, particularly kenya, burundi and tanzania; (iii) statistical standards and methodologies used by partner states to ensure robust and comparable assessment of convergence criteria remained not harmonized; (iv) the desire for each partner state to be competitive before accession to the union casts pessimism on the realisation of the timing of union timelines; and (iii) lack of prioritisation of the formation of institutions responsible for surveillance, enforcement and compliance with the performance criteria. there are challenges to the political federation associated with political affairs, and the peace and security sectors. there were delays in the decision-making process in regards to the matter of political federation owing to lack of a sectoral council on political federation by end of 2016. albeit in 2017 it was decided that the region adopts the mode of a political confederation. the peace and security sector experienced challenges relating to inadequate legal and institutional frameworks, in particular relating to the spirit of article 16 of african union’s peace security council (psc) protocol that deals with the relationship between au and regional economic communities (recs). further, there was low connectivity between the regional (eacwarn) and national early warning systems, as well as other recs’ early warning systems. lastly, the effectiveness of the small arms and light weapons (salw) control programs was limited by inadequate capacity to monitor and timely respond to salw inflow, and the insufficient cooperation to ensure effective law enforcement. the road infrastructure sector was challenged by insufficient internal budgetary provisions to implement strategies; inadequate internal funding of studies and counterpart funding; lengthy procurement processes; aligning complex regional projects to national priorities; and stringent environmental laws in partner states that causing delays some projects implementation; lengthy negotiations of provisions of regional legislation; delays in assenting to regional bills; and change of development partners’ priorities and freezing of funds for ongoing projects by the partnership fund. the complexity of railway development projects and challenges in procurement processes design affected the accomplishments on infrastructure. there was equally a misalignment between regional projects and national priorities, stringent environmental laws in partner states, which delayed implementation of some projects, yet also the high financing required for development of railways in kenya and uganda without appropriate ppp legislative framework and well established regulations and institutions constrained the wider participation by the private sector, thus limiting competition for the projects. the civil aviation and airport projects faced challenges that included lack of sufficient financing for feasibility and detailed designs for priority aviation projects, yet also the intra-east african aviation market remained largely closed due to restrictive bilateral agreements. this limited the growth and development of air services in the region. ict sector like others under infrastructure was affected by www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 24 published by scholink inc. insufficient internal budgetary provisions to implement the agreed activities, lengthy procurement processes, delays in ratification of the eac protocol on ict networks, challenges in national implementation of frameworks adopted at the eac level such as the eac roaming framework; and the freezing of funds for ongoing projects by the partnership fund. in the meteorology area, delay in conclusion of the institutional review process hampered progression of certain proposed programs, such as the establishment of the east african centre for medium range weather forecasting. there was also lack of cost recovery mechanisms for the provision of meteorological services in the partner states, which limits available funding for modernization of meteorological services. 3.3 risks like other integration blocks, economic integration in east africa comes with risks and rewards. in adequate information and uncertainty are a source of such risks, which erode national self-confidence among partner states about the benefits of integrating their economies given the costs and risks. the east african community acknowledges the existence of a number of risks. highest on the risk scale, the eac has identified resistance to change and consistent under-funding of the community. resistance to change was considered largely to be arising from the conflict between the desire for sovereignty, yet there is a rationale, as well as benefits of integration. the community has agreed to address these risks by creating more awareness, amending the treaty to give greater powers to the eac, enforcing sanctions in accordance with treaty provisions, and enhancing community’s budgeting and resource management capacity so that there is sufficient prioritisation and efficient utilization of resources. further, the innovative identification of sustainable sources of resources is deemed critical (east african community, 2017). other risks, though of lower significance include: the lack of adequate awareness of obligations under the treaty and the functions of the community by the east african public; fear that the treaty amendment and proposals of eac organs and institutions will not be fully effected; inadequate staff and equipment; dependency on donor support for core functions in the prevailing situation characterized by global economic uncertainties; fear by some institutions in partner states of ceding powers and authority to community organs and institutions; political instability and conflict in the region and beyond; negative perception of the eac by some partner states’ civil servants; and lack of loyalty by some of the community staff. 3.4 key objective based deliveries and achievements assessment of the performance of the community is based on the aspiration to attain a prosperous, competitive, secure and a politically united east africa, through widening and deepening economic, political, social and cultural integration by increasing competitiveness, value added production, enhanced trade and investment (east african community, 2011). the community is assessed on whether it has been able to develop policies and programmes aimed at widening and deepening cooperation in political, social and cultural fields; research and technology, defence, security and legal www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 25 published by scholink inc. and judicial affairs. key deliverables have been made by the eac, and here below is a presentation of some of these developments as at end of 2016/17 financial year. below is an analysis of the achievements over time in regards the mandate of the integration arrangement, by development eras. attainment of sustainable growth and development of the partner states as a result of the efforts of the customs union, the eac by end of 2010 was confident that there was progress with the diversification of products, improvement in market access, and business activities for the region’s smes (east african community, 2011). awareness of the eac integration agenda also increased and was estimated at about 90 percent awareness, with a 75 percent positive rating. other areas of performance include: agreeing on a common external trade policy starting with negotiation of epa and agoa investment as a block; accessibility to cross-border resources and fdis; wider stakeholder involvement and enhanced government revenues. improvement of eac intra-trade, estimated to have increased from us$1,979.2 million to us$3,339.4 million between 2006 and 2008. exports increased from us$1,084.9 million to us$1,902.9 million in the same period, while imports increased from us$874.3 million to us$1,436.5 million. a trade surplus was registered increasing from us$411.4 million to 466.4 million. by 2010, the coming into force of the common market led to an increased cross border student exchange, alternative methods of mobilizing additional development resources from the stock markets, joint sporting activities including interuniversity sports, free movement of persons and labour. during the period 2011-2016, the eac cu is credited for: the diversification of the product range, improvement in market access and business activities for the region’s smes, increased awareness of the eac integration agenda; a common external trade policy taking into account the needs of the european market; increased cross-border investments and resource flows, wider stakeholder involvement, and enhanced government revenues. further, the customs union is credited for improving intra-eac trade performance, when this trade increased from us$3,339.4 million in 2008 to us$5.38 billion in 2015. exports increased from us$1.903 billion in 2008 to us$3.33 billion in 2015, while imports increased from us$1.44 billion to us$2.05 billion in 2015. in the period of the 4th eac strategy (2011/12-2015/16), total intra-eac trade increased from us$4.7 billion to us$5.38 billion, representing an increase of almost 13% over the strategy period. exports increased by 22.5% from us$2.72 billion to us$3.33 billion (east african community, 2017). strengthening and consolidation of cooperation in agreed fields under the customs union, the community sought to liberalize and promote intra-regional trade; promote efficiency in production in response to intra-region competition among businesses, enhancement of domestic, cross border and foreign investment and promotion of industrial diversification with a view to enhance economic development. in the period 2006-2010, the community progressed with the implementation of a common external tariff; rules of origin and standards and gradual elimination of internal tariffs. further in this period, there was effort to establishment key www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 26 published by scholink inc. institutions, systems, instruments, legal framework (in particular, the eac customs management act), concluded the regional competition act (2006), policies and strategies; promoted eac as a single investment area and initiated common trade policy frameworks and reviews (in particular, the wto trade policy review, fepa, tifa); and expansion of the membership of the community to include rwanda and burundi. in the period 2011-2016, the community aimed to consolidate the benefits of a fully-fledged customs union through: (i) strengthening of customs administration; (ii) trade facilitation, (iii) enhancement of revenue management; (iv) promotion of customs and trade partnerships; (v) enhancing market access; (vi) trade and competitiveness including harmonisation of administrative procedures and regulations; (vii) enhancing collection and dissemination of trade information; and (viii) harmonizing standardization, quality assurance, metrology and testing (sqmt). in this period, implementation of the single customs territory commenced and it boosted the clearance of goods through a reduced turn around period, reduced documentation and enabled real-time exchange of information between customs and other agencies. with the full rollout of the single customs territory in 2017, the rollout of other customs regimes was in progress (east african community, 2018). the application of the electronic cargo tracking system enhanced on the northern corridor was expected to be extended to the central corridor by april 2018 to support the implementation of the single customs territory and other trade facilitation initiatives. by 2018, a regional interconnectivity programme on customs risk and valuation management was initiated to address weaknesses in customs valuation and monitoring of goods in the region. further, the community promoted eac as a single investment area and initiated the common trade policy frameworks and reviews such as the world trade organization (wto), the framework economic partnership agreements of the european union (eac-eu epa), the tripartite free trade area agreement between the common market for eastern and southern africa (comesa), the east african community (eac) and the southern african development community (sadc)-(comesa-eac-sadc) tripartite arrangement, and other trade and investment framework agreements. the comesa-eac-sadc tripartite arrangement was signed in june 2015. this is important for the rationalization of trade arrangements in sub-saharan africa (east african community, 2017). under the common market, having concluded the negotiation, signing and ratification of the eac common market protocol, the community was set to enhance and institutionalize guaranteed provisions in the protocol through harmonization of policies, legal and regulatory framework and establishment of supportive institutions to facilitate private sector investments, efficient and effective service delivery and wide stakeholder involvement by 2010. by this time, the preparatory process for the implementation of the eac treaty resulted in the attainment of gradual currency convertibility and macro-economic convergence; adoption of common travel documents, work permits and fees for education and tourism; adoption of common negotiating frameworks; substantial progress in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 27 published by scholink inc. harmonization of academic and professional qualifications; free movement of capital and harmonization of transport facilitating instruments. in the period of the fourth regional strategic plan (2011-2016), the community aimed to fully implement the eac common market protocol and establish a single market in financial services. partner states made amendments to their respective national policies, laws and regulations to conform to the common market protocol. according to the common market scorecard (cms) for 2016, the eac partner states have implemented significant reforms to facilitate the free movement of capital, goods and services. in the case of free movement of goods, non-tariff barriers (ntbs), have often emerged after tariffs are eliminated but processes for addressing them are effective. there has been a decline in the occurrence of the ntbs and an increase in the speed at which they are addressed (note 1). with respect to the free movement of capital, three partner states in particular kenya, tanzania and uganda undertook a total of 11 reforms (between 2014 and 2016), including measures that enhanced the region’s securities capacities by adding a framework for trading in derivatives in kenya and uganda. generally, according to the recent two strategic development plans, the priority interventions for the common market have been the following: approximation and harmonization of national laws, policies and systems; fast tracking institutional review; addressing imbalances; facilitating free movement of capital; facilitating free movement of services; facilitating free movement of workers; protection of cross-border investments; eliminating unfair business practices and enhancing consumer protection; research and technological development; co-operation in intellectual property rights; harmonisation of domestic taxes; enhance access to financial services; harmonisation of financial laws and regulations in tandem with agreed common standards; mutual recognition of supervisory agencies across the region; integration of financial market infrastructure; development of regional bond market; and capacity building for eac secretariat, regulatory agencies and market participants. in 2017, the republics of kenya, rwanda and uganda ratified the eac double taxation agreement and the other partner states were expected to follow. this is aimed at avoiding double taxation across the partner states. under the monetary union, whereas the negotiations of the eac monetary union (eamu) protocol commenced in 2010, the community gained substantial progress in regards partner states currencies convertibility; approximation of banking rules and regulations; harmonization of fiscal and monetary policies and trading practices and regulations in the stock exchanges. in the period 2011-2016, the community focused on laying the foundation for the monetary union and adoption of a single currency. the protocol for its establishment was signed by the eac heads of state in 2013, and entered into force in 2014. the protocol covers banking, insurance, capital markets and the pension sector. attaining and maintaining macroeconomic convergence is presumed dependent on a set of primary and secondary performance convergence criteria to be met by 2021 so that a single currency is introduced www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 28 published by scholink inc. and then have full operation of the monetary union in 2024. prior to entering the single currency in 2024, at least, three partner states should have achieved and maintained the performance convergence criteria for, at least, three consecutive years. further, the protocol requires each partner state to: (i) develop a medium-term convergence programme (mtcp) to facilitate attainment of the agreed criteria, taking into account each country’s economic circumstances; and also (ii) fully implement the customs union and common market protocols to ensure sufficient trade integration and openness, labour mobility, capital mobility and exchange rate flexibility in order to make it possible to respond to economic shocks. in order to monitor and enforce convergence, the monetary union requires the establishment of the east african monetary institute to pave way for the regional central bank; the statistics bureau; and the surveillance, compliance and enforcement commission. the monetary institute is expected to put in place the organizational, regulatory and logistical conditions for the conduct of a single monetary and exchange rate policy and related central banking functions in the monetary union. the priority under the pillar of the monetary union in the period under review include the following: negotiations of the monetary union protocol; research and technical preparations on introducing a common currency; harmonization of the monetary and exchange rate policies; harmonisation of fiscal policies; integrating banking and financial markets; establishment of legal and institutional frameworks for the implementation of the mu; surveillance mechanisms for macro-economic convergence and compatibility of economic policies and performances; enhancing cooperation in the monetary and exchange rate field; harmonization of payment and settlement systems to ensure finality; conduct civic education on implications of a single currency; and harmonisation of banking and financial sector supervision. by end of 2016, partner states’ had initiated processes to ensure currency convertibility; harmonization of fiscal, monetary and exchange policies, banking rules and regulations, and the trading practices and regulations in the stock exchanges and financial markets. legislative bills for the establishment of the eac monetary institute and the eac bureau of statistics had been developed and cleared by the council of ministers. the legislative bill for the establishment of eac surveillance, compliance and enforcement commission was awaiting technical judicial input before submission to the council of ministers. in the same period, a study on the financial sector regulatory and supervisory architecture was undertaken to inform the bill for the establishment of eac financial services commission. with respect to macroeconomic convergence, in the most recent years up to 2016, annual headline inflation in all eac partner states (except south sudan), was below the 8 percent criterion. with the exception of the republic of kenya, all the eac countries had debt to gdp ratio below 50 percent of gdp. in regard to the political federation, between 1999 and 2010, the community gained from the establishment of the cardinal regional institutions (such as the parliament and court) which were linked to national frameworks. regional mechanisms and programmes for early warning and disaster preparedness, conflict prevention management and resolution (cpmr), refugee management, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 29 published by scholink inc. combating proliferation of illicit small arms and light weapons were set in motion for institutionalisation. the eac forum of electoral commissions; forum of national human rights commissions; anti-corruption/ombudsman agencies, and forum of chief justices; the nyerere centre for peace research were established. a sectoral council on foreign policy coordination (scfpc) was established in 2010 to facilitate handling of the sector specific interventions. by end of 2010, work on a number of protocols was ongoing, including the protocols on combating and preventing corruption and on good governance; peace and security; and on cooperation in defence. the protocol on foreign policy coordination was adopted by 2010 and the process of ratification has started. full implementation of the memorandum of understanding on cooperation in defence on areas including joint trainings, military exercises, joint operations, technical cooperation, and visits/exchange programmes was also achieved by then. in the period 2011-2016, initiatives for the political federation centred on foundational stages of the federation, particularly in five key intervention areas: (i) establishing policy frameworks and institutional structures for the establishment of the federation, (ii) strengthening regional and international relations, (iii) promotion of regional peace and security, (iv) developing research capacities on governance, international relations and peace & security, and (v) strengthening defence co-operation to promote regional peace and security. progress was made in line with the objectives of the political federation. among the achievements is creation of a platform for national institutions of governance to exchange information, share experiences and dialogue on policies, strategies, laws and programs with a view to developing regional standards. this was facilitated by the eac program on good governance. the council established a forum of national human rights institutions to facilitate the work of the human rights and social justice sector. the forum evaluated the national constitutions and other international instruments in order to standardize and adopt best practices. further, a forum of electoral commissions was established as a regional platform for national electoral commissions to share experiences, challenges and best practices in organizing and conducting democratic, free, fair and credible elections. the forum aims to enhance the harmonization of democratization processes. the principles on election observation and evaluation applicable to guiding election observation in the region and promote credibility of electoral processes and outcomes; and a policy framework for the eac forum of electoral commissions were adopted. a protocol on preventing and combating corruption was developed for adoption, established the eac forum of chief justices to contribute to policy formulation in upholding the rule of law, enhancing access to justice and building jurisprudence for the eac; and developed the protocol on good governance. the nyerere centre for peace research (ncpr) initiated a series of university students debates aiming at promoting continuous dialogue among eac youth and sensitizing them on the benefits and challenges of integration, and the eac youth ambassadors are a product of these students debates. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 30 published by scholink inc. in regard to international relations, there was conclusion of the protocol on privileges and immunities of the community, its organs and institutions in april 2015. this protocol was at the stage of ratification by partner states and depositing the instruments of ratification by end of 2016. the community established a sub committee of the sectoral council on foreign policy coordination (scfpc) on candidatures to facilitate joint mobilization of support for east african candidatures seeking to access jobs in the international system and to mitigate undue competition amongst east africans. in regard to peace and security, the community prioritised the establishment of an enabling legal and institutional framework; implementation of the continental african peace and security architecture (apsa) pillars that encompass development and implementation of a conflict prevention, management and resolution (cpmr) framework; coordination and strengthening of disaster management centres; as strategic security issues, implementation of the small arms and light weapons (salw) control programs; strengthening of joint measures to combat terrorism; development of a framework for intelligence sharing on crime management; development of a framework for cooperation and harmonization of policing practices in the eac; harmonization of idp and refugee management practices across the region; development and implementation of a multi-regional maritime safety and security initiative; development of a framework for cooperation in the prisons and correctional services; and implementation of joint measures to combat cattle rustling. accordingly, the community reviewed the mou on defence cooperation that was subsequently upgraded to defence protocol; attained interoperability through joint training and sports; promoted defence self-sufficiency through defence research, science and technology; and made progress towards conclusion of the mutual defence pact. in regard to inter-state security, the community signed the peace and security protocol which was ratified in 2007 in the partner states-envisaging the need for regional cooperation in the areas of countering terrorism, countering piracy, refugees’ management, disaster management, combating genocide and genocide ideology, and general conflict prevention, management and resolution. further, the community reviewed the eac peace and security strategy in order to evaluate new security challenges in the region and ensure that the strategy is aligned with the peace and security protocol; implemented the continental african peace and security architecture (apsa) covering the development and implementation of a conflict prevention, management and resolution (cpmr) framework; and adoption of the east african community early warning mechanism (eacwarn) framework and the corresponding indicators by the sectoral council on defence, inter-state security and foreign policy in 2013. the community implemented the protocol on combating illicit drug trafficking in the east african region, and there was adoption of the recommendation of the sectoral council on inter-state security for the establishment of policies and strategies on coordination and cooperation in police, prisons, correctional services, counter-terrorism and salw. on another note, there was endorsement of the establishment of a summit sub-committee on emerging peace and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 31 published by scholink inc. security threats, as well as the operationalization of the directorate of peace and security. in the area of conflict prevention, management and resolution (cpmr), the eac early warning centre became operational in july 2013. other achievements during the period included: the continued the coordination and cooperation between the continental early warning systems (cews) and eacwarn through regular technical meetings, exchange visits and technical support programs; and secured cooperation between early warning systems of the eac and those for comesa and eccas. further, there was a conclusion in 2015 of consultations on the establishment of the eac panel of eminent persons whose mandate for establish was later given by the summit. the other area of the political federation related to strategic security. under this area, the community and individual partner states implemented the salw control programs as outlined in the nairobi protocol on salw. partner states maintained and strengthened joint measures to combat terrorism, and partner states continued with the counter-terrorism measures coordinated under the defence, police and intelligence clusters, and took further measures in the context of the chemical weapons convention. a framework for chemical security emergency response was set up. further, the community set up a framework for monitoring anti-money laundering efforts in the region; supported and trained security practitioners in counter terrorism; and developed a cooperation agreement on countering terrorism. on crime management, the eac region developed a framework for intelligence sharing on crime management. as regards cooperation and harmonization of policing practices, the approval was given to the partnership with the east african police coordination committee (eapcco) and establishment of the policing centres of excellence within the eac partner states commencing with the operationalisation of regional forensic referral centre in the region. on multi-regional maritime safety and security initiative, the east and southern african-indian ocean (esa-io) maritime security strategy and its action plan were developed and their implementation commenced in april 2014 (east african community, 2017). promotion of sustainable utilization of the natural resource base in the region environment and natural resources management: the protocol on environment and natural resource management provides for joint actions to address climate change. during the period 2006-2010, the eac developed and harmonized regional and national policies and legislation on environment; implemented the environmental assessment guidelines for minerals and shared ecosystems; and developed the climate change policy and master plan; harmonized the policy of region with the continental level bio-safety policy; and institutionalized joint participation of eac in international treaties and conventions. strengthening and consolidation of the long standing political, economic, social, cultural and traditional ties legal and judicial affairs: this aims at harmonizing legal training and certification and encouraging the standardization of the judgments of courts within the community, with a view to ensuring good governance and democracy remain key to the political and economic reforms of the community. in the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 32 published by scholink inc. period 2006 to 2010, steps were taken in the approximation and harmonization of laws and policies including establishment of embodiment of regulations on migration, commercial laws, corruption, ethics, economic crimes and judicial service reforms in each of the partner states. promotion of people-centred mutual development health: in the period 2006-2010, the community strengthened regional cooperation and integration in the health sector through the harmonization of national policies, legislation, strategies, standards, guidelines, databases and regulatory systems. among the policies harmonised are pharmaceutical policies, food safety and quality policies, and disease surveillance, university medical and dental schools curricula, sexual and reproductive health policies. these were geared towards enhancing provision of regional health services, cross-border disease prevention and control. education, science and technology: effort in this sector is a means to developing human resources, and imparting appropriate skills, knowledge and attitudes. by 2010, the education sector produced a revised criteria in indemnifying centres of excellence, carried a study on the regional situation analysis (sitan) on the education sector response to hiv and aids, developed regional strategies for a five year operational development plan and a resource mobilization strategy, conducted annual essay writing competitions, carried a regional study on the harmonization of the eac education systems and training curricula, developed protocols and a bill establishing the east african science and technology commission. labour and immigration: by end of 2010, there had been harmonization of labour policies and legislation, procedures for issuance of entry/work permits; the adoption of the necessary legal framework for the issuance of ids to uganda and tanzania nationals; and the adoption of a regional passport. further, in the same period there was a harmonization of policies for employment creation and productivity improvement; and development of the east african human resource development and utilization strategy. culture and sports: this helps to diversify opportunities for the youth, by particularly enabling them to earn a living from talent, create avenues for good health, entertainment and regional cohesion. by 2010, the development of the eac symbols of cultural identity in particular, the eac anthem; establishment of the eac kiswahili commission and the culture and sports commission were recorded. agriculture and food security: in the productive sectors, the strategies are aimed at creating the requisite opportunities for enhancing the welfare of the people through improved competitiveness, regional and global integration, given their links to livelihoods and job creation. by 2010, the agriculture and food security interventions for enhancing supply capacities entailed identifying high value agricultural sub-sectors for which the region has a competitive advantage and capitalize on investments that can facilitate partner states to transform their respective economies. in the period 2006-2010, the eac strategic plan on agriculture and food security was developed. in addition, there was harmonization of regional policies, regulations, sps, and pest control standards; development of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 33 published by scholink inc. regional programmes on bio-safety and biotechnology, trans-boundary disease control and emergency preparedness; formulation of special trade regime on sme cross border trade and the prioritization of the agriculture sector within african union framework; and the strengthening of national agriculture and livestock institutions, including farmers, traders and processors associations. in the period 2011-2016, the community developed the eac regulatory framework and procedures for fertilizer marketing; implemented the east african agro-industry and agro-enterprise development programme (e3adp); implementation of the project on reinforcing veterinary governance in africa (eacvetgov); and established the north eastern africa livestock council (nealco) for promoting livestock and livestock products trade. industry and micro, small & medium enterprises (msme) development: the community values the development of a vibrant and robust industrial base and laying a firm foundation for industrial development in line with articles 79 and 80 of the eac treaty. in this regard, by 2010 the community had drafted the eac industrialization policy and strategy. the industrialization policy and strategy is a milestone of both the eac cu and cm protocols with a mission of creating market driven, regionally and internationally competitive industrial sectors based on comparative and competitive advantages of partner states. at policy level, the eac industrial policy and strategy (for the period 2010-2030) prioritizes key sectors fronting flagship industries with strong forward and backward linkages. in line with the customs union, the harmonization of the policy, legal and regulatory frameworks led to expanded trade and investment opportunities. by end of 2010, intra-regional trade accounted for 11 percent and cross-border investments increased from us$ 265,000 in 2006 and us$ 750,000 in 2009. further, the community developed a framework for fostering cooperation in technology acquisition, development, transfer; and commercialization of innovations; ip frameworks; formulated a framework for mainstreaming cleaner and resource efficient production in industries; and in collaboration with unido, developed a programme on upgrading and modernization of the sme businesses in the region. whereas in the period 2011-2016 the community formulated a policy, developed the industrialisation action plan, and established the eac sectoral committee on industrialization and smes development, there were no funds to implement the action plan. tourism and wildlife: the community aimed at contributing to maximization of benefits from sustainable tourism and wildlife resources. as early as 2007, the community had completed the protocol on tourism and wildlife management, the tourism marketing plan and strategy. this paved way for the promotion of the region as a single tourism and wildlife destination including joint participation in at the world travel markets (wtm). while there is significant private sector investments in hotels, transportation, marketing and product development, government dedicates its efforts on conservation. further, the community developed standard criteria for the classification of hotels and other facilities, and identified three centres of excellence. in addition, a protocol and operational manual were put in place. this led to an overall increase in tourists visiting eac from 3.030 million in 2006 to 3.408 million in 2008. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 34 published by scholink inc. infrastructure development: the development of adequate and reliable supporting infrastructure in transport and communications aims to further physical cohesion of the community. the community has intervened in the improvement and expansion of the existing transport and communication links as well as the establishment of new ones as a means. the main objective of road development is the improvement of connectivity and operations across the region to facilitate business and encourage investment at national and regional level. in the period 2006-2010, the community established road agencies and the road funds, constructed flagship projects for arusha-namanga-athi river road, and prepared the eac transport strategy and road sector development programme. further, the community developed a framework for harmonization of policies and regulations in the road sector, established a one stop border post at namanga operating on a 24-hour basis, and prioritized key regional roads within national programmes. the community further incorporated the road projects for rwanda and burundi in the regional road network. in the period 2011-2016, the community recorded a number of achievements. among these is the finalization of feasibility studies and detailed designs for several road networks; completion of construction of eight one stop border posts (osbps) and construction of several others was still on-going; preparation of the eac vehicle load control act 2013 and the eac vehicle load control regulations 2016; preparation of the eac one stop border posts act 2013, the eac one stop border posts regulations, 2016 and the eacosbps operations manual; preparation of harmonized regional training curricula for long distance commercial drivers; holding of the 2nd and 3rd retreats of eac heads of state on infrastructure development and financing (2012 and 2014); finalization the eac transport strategy and the road sector development programme (2012-2022); and lastly finalization of the eac transport facilitation strategy (bico study). in regard to the railways, the improvement of railway transport aims to maximize benefits from an efficient railways system. by end of 2010, partner states had reached different stages of restructuring the railways infrastructure. the community restructured the railways services through concession processes, prepared the eac railways master plan which was then complemented by national plans; undertook studies on a new railway line linking the port of dares salaam to burundi and rwanda; and initiated studies to modernize the existing railway network. in the period 2011-2016, the railways subsector established a railway development fund and a railway infrastructure fund. preliminary design of railway links along the central and northern corridors; and work towards establishment of an eac railways regulatory agency was undertaken. initiatives in the maritime and inland waterways transport address the need to have safe and secure maritime operations in the region. by 2010, these initiatives contributed to the reduction of cargo dwell time at the sea ports. the community established the lake victoria basin commission (lvbc) to manage transport on the lake victoria, prepared an inland waterways transport agreement, developed a protocol for sustainable development of the lake victoria basin, and enhanced capacity of the national maritime institutions. during the period 2011-2016, the community registered progress www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 35 published by scholink inc. on: building of a reform consensus for integrated corridor development in the eac, with a strategy and action plan put in place for inter-modal development; commencement of implementation of the integrated corridor development initiative—lake victoria transport program with support from the world bank; sensitization of stakeholders in eac on the requirements by the international maritime organization (imo) on container weight verification for export containers, pursuant to the amendment to the international convention on safety of life at sea (solas); and the establishment of a working group on maritime safety and development of the joint eac maritime search and rescue exercises framework. civil aviation and airports initiatives contribute to enhancing regional connectivity. in the period 2006-2010, the community made easing flight connectivity within the region and the rest of the world; established and operationalized the east african civil aviation safety and security oversight organization (cassoa); initiated the liberalisation of civil aviation activities and harmonization of the eac civil aviation regulations. further, the community developed the search and rescue agreement; made preparations for the establishment of the unified upper flight information region (ufir); implemented the global navigation satellite system (gnss) for selected eac airports; and developed a 5-year plan of priority airports in the region. during the period 2011-2016, the community completed the feasibility study and a roadmap for the establishment of the eac unified flight information region (ufir), developed the eac regulations for liberalization of air transport services, developed a multilateral agreement option for handling the regional aircraft accidents and incidents investigations, developed the roadmap for operationalization of the eac agreement on aviation search and rescue; and developed the work programme for the implementation of the satellite based augmentation system (sbas) or global navigation satellite system (gnss). energy development is prioritized in line with article 101 of the treaty relating to the promotion of efficient exploitation and utilization of various energy sources, with priority focus on green energy, geothermal electricity and hydro-power generation. improved access to energy sources especially electricity is expected to improve human development conditions by easing provision of water, improving industrial and agricultural productivity, making better health and education conditions and environmental sustainability. in this regard, the 4th eac development strategy identified under the energy priority, the need to increase access to sufficient, reliable, affordable and environmentally friendly energy resources in the region. the plan identified interventions relating to: (i) implementation of the regional strategy on scaling up access to modern energy services; (ii) implementation of the cross border interconnection power projects; (iii) harmonization of energy policies and plans; (iv) preparation of sectoral energy master plans; (v) establishment of the east african community power pool (eacpp); (vi) holding of the biannual east african petroleum and exhibition conference in the region; (vii) implementation of the oil pipeline projects; and (viii) implementation of regional shared energy projects. by end of the period of the plan 2011-2016, energy sector had established the centre of excellence for eac renewable energy and energy efficiency and launched in 2016 at makerere www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 36 published by scholink inc. university—kampala. further, the community developed the power master plan and developed market rules and operational guidelines under the eastern africa power pool (eapp), and the establishment of the independent regulatory board under the eapp. in regard to meteorology, the application of weather, climate and hydrological information and related services helps improve the safety and well-being of people and reduces damage to property, reduces poverty, improves safety of the transport sector and helps in monitoring and protecting the environment for future generations. meteorological services are expected to contribute to disaster risk reduction. meteorological services facilitate operations of air navigation, ocean and maritime services navigation, coastal shipping, inland waterways transport and issuing of warning against cyclone and other adverse weather conditions. initiatives in this area over the period 2006-2010 included the harmonization of meteorological policies, development of a common policy for data exchange, enhancement of capacities of meteorological services in support of sustainable development, establishment of the east african meteorological society, preparation of an agreement on a cost recovery strategy, the development of a quality management framework for aeronautical meteorological services, and the development of a climate change master plan. in the period 2011-2016, the community reviewed the 5-year meteorological development plan and investment strategy (2006-2010) and developed the plan and strategy for the period 2013-2018, which incorporated the meteorological priorities of burundi and rwanda. it developed the eac protocol on cooperation in meteorological services; developed the eac meteorological data policy and the draft constitution of the east african meteorological society. further in this period, the community developed the numerical weather prediction strategy, established well-equipped numerical weather prediction units at the national meteorological services, commenced meteorological data rescue and digitization in partner states, and completed the feasibility study for the project of enhancing safety of navigation on lake victoria for efficient utilization of the lake and its basin by strengthening meteorological services over the lake. there was also development of the eac climate change master plan; implementation of quality management system for aeronautical meteorological services; and implemented the pilot project for severe weather. in regard to information technology and communication (telecommunication, postal services broadcasting, internet services and information technology) the community is aiming to integrate ict into the regional development. the community developed a regional framework for harmonization of ict policies and regulations, deployed the submarine cable networks to improve international connectivity, the preparation of a detailed feasibility study for the establishment of cross-border broadband networks, developed a regional legal framework for cyber laws, prepared a roadmap for the smooth transition from analog to digital broadcasting, and developed a strategy to reform the postal sub-sector. during the period 2011-2016, the community concluded the eac protocol for ict networks; adopted the eac roaming framework; implemented the backbone broadband networks in all partner states; implemented the cross-border broadband interconnections at common borders, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 37 published by scholink inc. particularly: malaba (uganda/kenya); namanga (kenya/tanzania); isebania/sirare (kenya/tanzania); mutukula (tanzania/uganda); rusumo (tanzania/rwanda); kobero/kabanga (burundi/tanzania); gashenyi/nemba (rwanda/burundi); and katuna/gatuna (uganda/rwanda). further, the community adopted the eac roadmap for digital broadcast migration, with three countries (kenya, rwanda and tanzania) meeting the 2015 deadline for complete digital migration. promotion of peace, security and stability within the framework of the fourth pillar of the eac integration, a lot has been achieved in regards this objective. as discussed above, priorities included the enabling legal and institutional framework; inter-state security; conflict prevention, management and resolution (cpmr), and the areas of the political federation related to strategic security. the details are already discussed under the review of the strengthening and consolidation of cooperation in agreed fields. enhancement and strengthening of partnerships with the private sector and civil society investment promotion and private sector development: during the period 2006-2010, the main achievement on investment promotion and private sector development was the development of the regional strategy. thereafter, partner state put in place measures to enhance the participation of private sector in development. investments to the eac region have improved significantly observing from the fdi inflows to the eac region which increased from us$1,323 billion in 2006 to us$1,714 billion in 2009. the stock of fdi also increased in that period from us$9.33 billion in 2006 to us$14.866 billion in 2009. mainstreaming of gender in all its endeavours among others gender, community development and empowerment: mainstreaming gender and community development issues in the eac policies, strategies and programmes is expected to contribute to the attainment of sustainable economic growth and human development. in the period 2006-2010, there was a laying of the foundation for an eac social development framework; policies for youth and people with disabilities; strategic plans for youth, gender, children, community development and social protection; regular evaluation of the attainment of mdgs in the eac; and the implementation of a multispectral approach of social development. 3.5 overall rating of the east african integration status, 2017 eac is the highest performing rec on trade integration in africa. using the comparisons of average scores by rec on trade integration based on the african integration index, of the five dimensions, trade integration has the highest score overall among recs with a 0.55 average, on a scale of zero to one. uganda is second to kenya in this assessment. overall the region’s performance has been above average on account of trade integration and free movement of persons. financial integration presents the greatest remaining challenge in the integration, followed by infrastructure. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 38 published by scholink inc. table 3. africa integration index for eac by dimensions, 2017 country country rank trade integration regional infrastructure productive integration free movement of persons financial integration kenya 0.66 1 0.44 0.84 0.8 0.2 uganda 0.58 0.94 0.48 0.73 0.7 0.05 rwanda 0.55 0.69 0.37 0.41 0.8 0.5 average 0.54 0.78 0.5 0.55 0.72 0.16 burundi 0.48 0.5 0.84 0.33 0.7 0.03 tanzania, u.r. 0.43 0.78 0.36 0.45 0.58 0 source: integrate-africa (2018). 4. discussion uganda’s commitment to economic integration in africa cannot be over emphasized when the government over time has underscored the issue of fragmented markets, market access and expansion as one of the strategic issues for africa (museveni, 2016). there is search for a market to absorb what the private and traditional sectors produce, and stimulate further production in the economy. uganda’s population currently about 37 million, is not enough, but with eac integration, the market is bigger with about 145 million people. this market enlarges further with the tripartite free trade area (tfta) arrangement of eac, comesa and sadc close to about 625million and 26 countries. this was reiterated by the president of the republic of uganda at the 19th summit of the heads of state in 2018, adding the role it will play in boosting partners’ joint bargaining power in the global markets. 4.1 why uganda has embraced eac integration economic integration is expected to facilitate the transformation of the ugandan society from a peasant to a modern and prosperous country when the citizens maximize benefits accruing from eac integration. in order to facilitate ugandans gain market access and ugandan firms become competitive government of uganda developed the national policy on eac integration. eac integration is also facilitating improved joint decision making and collaboration. this joint decision making and collaboration enhances the attainment of peace as constructive dialogue helps in resolving conflict thus becoming a deterring to violent conflicts between the integrated nations. the eac integration policy promotes peace within uganda as a requisite for the development of the people; and promotes economic, social and political stability as necessities for poverty reduction and development. eac integration implies lower barriers to trade for ugandans, and the increase in trade will result in their increased well-being. increased demand due to lower cost of production and consumption is expected to create greater demand for factors of production, leading to an increase employment. increase in intra-trade with in the region will lead to higher production in agriculture and industry. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 39 published by scholink inc. the main elements namely market access, competitiveness, and joint decision making and collaboration cut across seventeen (17) areas of cooperation, namely: trade liberalization and development; industry and investment; agriculture and food security; energy; minerals; transport infrastructure; information communication technology; tourism; business services; financial services; education and training; health; labour and employment; gender, youth and persons with disability; environment and natural resources; peace and security; and governance (republic of uganda, 2015). ugandans expectations regarding benefits from the integration of eac are observed across a wide range of areas, though not limited to the following: a significant increase in the country’s share of the eac regional trade in order to create wealth and employment; improvement in the competitiveness of the country’s industrial sector within the eac region and the contribution to the structural transformation of the economy; increased national share of eac regional agricultural trade and its contribution to food security and national agricultural production; adequate and affordable access to modern energy by all ugandans sustainable manner; the development of an efficient, competitive, and sustainable minerals sector; increased integration into regional and global markets through increased, efficient and least-cost connectivity; a developed, popular and competitive tourism sector integrated within in the eac development programme; an enabling local environment for the development of a well-regulated, and vibrant, business services sector able to compete effectively within the eac region; a financial sector that is fully integrated with financial sectors of the other eac partner states in order to achieve monetary stability; the country’s health system is integrated, efficient and attractive to citizens of other member countries; improved competitiveness of ugandan labour, generating decent employment for all women and men in conditions of freedom, equity, security and human dignity; meaningful participation of the country’s special interest groups; popular development activities and measures that will ensure a clean and health environment and sustainable exploitation of uganda’s natural resources; peace and security is popular and consolidate through constitutionalism and reinforcement of better policy, legal and institutional reforms and increased capacity of uganda to promote peace in the region through good neighbourliness; and attainment of political, social and economic stability. a facilitating factor for the attainment of the benefits of integration is the utilisation of education as an engine of eac integration. before assessing the extent to which uganda is performing against the above expectations, it is important to evaluate the state of economic integration that the country has attained on the basis of the africa regional integration index (integrate-africa, 2016). this index is five dimensional and the indicators are based on the abuja treaty and its operational framework. these dimensions are: regional infrastructure (the connections made by road, by air or by airwaves have an important impact on africa’s integration), trade integration (when trade flows are faster and more cost-effective, business and consumers in the regions benefit), productive integration (making production work better for the continent across different sectors, by being part of regional and global value chains), free movements of people (getting people to move freely across africa represents a powerful boost to economic growth www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 40 published by scholink inc. and skills development), financial and macroeconomic integration (when capital flows freely across africa, investment increases and finance is allocated where it can generate the most productivity). 4.2 analysis of uganda’s performance of integration in regard to free movement of persons, uganda allows nationals of all other african countries to either enter without a visa or obtain a visa on arrival. uganda has ratified the relevant east african community instrument on the free movement of persons, and is yet to ratify that of the comesa. the country is ranked joint-third in east african community and second in the common market for eastern and southern africa. on trade integration, uganda is the second best in the east african community and fifth in comesa because of progress made in removing tariff barriers to imports from other countries that belong to the same regional economic communities. in addition to applying zero tariffs to imports from other member countries, it applies a low average tariff of 0.68 percent to imports from comesa. by 2015, uganda applied the lowest average tariffs on imports from igad countries, at 0.1 percent. in regard to productive integration, the country’s trade complements that of the other countries that belong to the same regional economic communities, indicating that it may be specializing to fit into regional value chains. in 2013, uganda had the second highest share of exports of intermediate and capital goods to other east african community countries, at approximately 1 percent of gdp, behind only kenya (see current status from unctad). on infrastructure, the country’s internet bandwidth of 0.8 megabits per second per person in 2013 ranked it twentieth on the continent. uganda’s net electricity production capacity per capacity could be enhanced. table 4. the dimensions and indicators of the africa regional integration index dimension indicator country performance ug ky tz rw br infrastructure development index i. transport ii. electricity iii. ict iv. water and sanitation v. proportion of intra-regional flights (%)-afraa 2014 0.61 0.63 0.78 0.57 0.84 vi. total regional electricity trade (net) per capita -0.77 -0.04 0.75 4.55 6.7 vii. average cost of roaming (usd/min) 2014 0.23 0.34 0.28 0.49 0.21 trade integration i. level of customs duties on imports (%)-2014 33.6 33.8 54.8 33.5 50.0 ii. share of intra-regional goods exports (% gdp) 0.022 0.022 0.008 0.018 0.004 iii. share of intra-regional goods imports (% gdp) 0.037 0.007 0.011 0.098 0.092 iv. share of total intra-regional goods trade (%) 0.304 0.307 0.172 0.170 0.047 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 41 published by scholink inc. dimension indicator country performance ug ky tz rw br productive integration i. share of intra-regional intermediate goods exports (% total intra-regional exports goods) 0.300 0.196 0.361 0.072 0.087 ii. share of intra-regional intermediate goods imports (% total intra-regional imports goods) 0.137 0.241 0.127 0.253 0.192 iii. merchandise trade complementarity index (note 3)-unctad, 2015 0.312 0.348 0.220 0.170 0.230 free movement of people i. ratification (or not) of rec protocol on free movement of persons-uneca, 2015 0.33 0.50 0.00 0.33 0.00 ii. proportion of rec member countries that are members whose nationals do not require a visa for entry 0.0 0.0 0.0 0.0 0.25 iii. proportion of rec member countries whose nationals are issued with a visa on arrival financial & macroeconomic integration i. regional convertibility of national currencies-2016 0 0 0 0 0 ii. inflation rate differential (based on the harmonized consumer price index) (note 4) 4.8 5.7 7.9 4.2 7.9 note. ug=uganda; ky=kenya; tz=tanzania; rw=rwanda; br=burundi. data source: integrate-africa (2018). 4.2.1 comparative advantage country similarities there are key questions in explaining comparative advantage although other differences may be a result of policy when it comes to the cost of resource endowments or even traded products, arising from tax, transportation and insurance cover. these relate to whether uganda produces anything more efficiently than other east african countries such that it would gain more from specializing in it to trade best with other nation; and whether uganda has better technology over the other eac members, or the difference is in abundance of natural resources. advantages may arise from abundance of either primary or intermediate input, the use of better technology and production on larger scale (shinyekwa & othieno, 2011). the analysis by shinyekwa and othieno (2011) identified the commodities where uganda has comparative advantage over the other eac partner states; which would increase intra-regional trade to increase uganda’s benefits to eac integration. the list they produced includes agricultural products with limited processing exported to kenya; fresh and processed agricultural products, chemical products, industrial products made out of steel and iron, and petroleum by-products www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 42 published by scholink inc. exported to rwanda; foods and livestock, tobacco, petroleum products, chemical products, a range of plastic products, and some products of iron and steel exported to tanzania; and foods, cement, chemical products, petroleum products, plastic products, wood products, stationery, and articles of steel and iron exported to burundi, as constituting the areas of uganda’s revealed comparative advantage in the eac. elimination of tariffs boosted trade among the eac partner sates and by 2009 uganda had advantage over the eac partner states in 41 (kenya), 103 (rwanda), 48 (tanzania), and 86 (burundi) commodities. there are a lot of similarities in the eac region in regards endowments however, and value addition would be a key ingredient to maintaining uganda’s benefits from trade. the diversification of the export basket and facilitating value addition to traditional exports is seen as a means to increase uganda’s export demand beyond east africa, to the comesa for instance (katunze & kuteesa, 2016). by 2014, the country maintained the revealed comparative advantage across industries particularly; animals, vegetables, food production, wood, textiles & cloth, stone & glass and metals for the comesa region which excludes only tanzania of the eac states, but includes democratic republic of congo (drc) and sudan the other key ugandan neighbours with a large market size. table 5. uganda’s revealed comparative advantage by industry in the comesa region, 2014 product description symmetric index (si) rank (note 5) chemicals 0.81 1 vegetables 0.81 2 miscellaneous 0.8 3 stone & glass 0.8 4 animal 0.8 5 metals 0.8 6 transport 0.8 7 text cloth 0.79 8 food prod 0.78 9 mechanics and electronics 0.78 10 plastics 0.78 11 wood 0.77 12 fuels 0.76 13 foot wear 0.75 14 minerals 0.73 15 hide & skin 0.72 16 source: katunze & kuteesa (2016). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 43 published by scholink inc. market size the market size of the eac has been estimated roughly by the aggregate of the population of the member states. using this yardstick, the population of the eac was about 168 million in 2016 although the united nations and world bank databases over estimate it to be 186 million (table 6). this population commanded about us$ 140.2 billion gdp as of 2016 in 2010 prices, and overall imports accounting to us$38.6 billion at 2016 prices. considering uganda’s trade, that is exports and imports together within the region, the total trade with the eac increased from us$201.91 million to us$ 1,977 million in 2016/17. the average gdp per capita in 2016 was us$835. uganda stands to benefit from the import bill of about us$32.1 billion which the rest of eac imports. the import bill of the rest for the eac from uganda was usd 1.26 billion in 2016/17, up from 0.20 billion in 1999/2000 when the customs union was established. table 6. analysis of market size targeted by uganda in the eac, 2016 partner state projected population (millions) gdp per capita (constant 2010 usd) total imports (current usd millions) (note 6, note 7) data source unfpa bureau of statistics world bank world bank bureau of statistics uganda 42.9 37.0 662 6,896 6,404 tanzania 57.3 50.9 867 10,705 8,087 kenya 49.7 45.8 1,143 16,475 14,106 rwanda 12.2 11.6 738 2,777 3,162 burundi 10.9 10.1 218 960 742 south sudan 12.6 11.4 745 5,964 5,964 total 185.6 167.9 835 43,777 38,465 source: unfpa, 2018; world bank, 2018; national statistical bureaus 2018; own computations. 4.2.2 investment promotion and coordination eac integration has facilitated the promotion of and the coordination investments to increase competitiveness and take also advantage of the opportunities in the region and uganda in particular. investor surveys indicate that the eac has contributed to the increase in investment in uganda. this is done through the promotion of investment partnerships with agencies targeting regional blocs where the country has attracted most private investment and at the same time, acted as investors’ market destination. the eac has offered investment and exports opportunities to boost the country’s foreign exchange inflows. member states have marketed the region collectively as an investment destination and pursued reforms in investment procedures, regulatory and facilitation (republic of uganda, 2012). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 44 published by scholink inc. table 7. foreign direct investment in uganda by source, 1991-2015/16 1991-1999 2005 2015/16 source us$ million source us$ million source us$ million united kingdom 0.41 india 37.50 china 126.87 kenya 0.18 denmark 36.00 kenya 90.58 india 0.11 tanzania 32.00 sudan 76.35 canada 0.20 uk 28.00 norway 64.95 united states 0.17 kenya 27.90 india 46.93 south africa 0.14 china 25.90 bermuda 38.99 sweden 0.04 pakistan 24.90 sri lanka 30.56 korea, republic 0.02 sudan 14.00 mauritius 28.39 denmark 0.01 korea 13.50 denmark 20.40 tanzania canada 10.70 france 19.14 others 1.14 others 56.79 others 158.59 total 2.42 total 307.19 307.19 701.76 o/w rwanda 2.90 o/w south sudan 0.30 source: republic of uganda, 2017. 4.2.3 trade promotion the introduction of the single customs territory had led to great benefits to uganda. goods clearance time, in uganda has reduced from 18 days to 3 days for goods to move from mombasa to kampala (east african community, 2015). there has been a reduction of declaration points, and cost of us$ 60 per declaration, from hitherto five to one, while bulk declarations have decreased by 92 percent. the volume of trade has consequently increased from us$ 201.91 million in the year 1999/2000 to us$ 1,977.34 million in 2016/2017 (table 8). table 8. evolution of uganda’s trade with the eac partner states (us$, millions) partner state 1999/00 2004/05 2009/10 2014/15 2016/17 kenya 177.32 576.76 733.49 1,089.85 1,058.67 south sudan 6.18 375.06 424.08 339.76 tanzania 14.70 22.82 158.78 131.41 291.30 rwanda 8.27 29.69 148.12 263.05 197.87 burundi 1.63 20.42 65.43 51.41 89.74 total 201.91 655.86 1,480.89 1,959.82 1,977.34 source of data: bank of uganda. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 45 published by scholink inc. in the area of trade, uganda has cautiously stood with her partner states in joint negotiations with the rest of the world to gain access to larger markets such as the european union and the united states. in this case the eu-epa negotiations and the agoa arrangement are yet to benefit the country. uganda has not yet signed the epa due to lack of consensus in the region, despite the conclusion of the negotiations in 2014. by 2017 the eac still has unresolved issues with the agreement, most fears being on the likely effect on the region’s industrialisation in future. the issues that eac and uganda in particular is party to which the eu needed to address regard strategic industrial development, the denunciation process, development agenda, the rendezvous, joint declaration, and domestic support. from the agreement nevertheless, the imports from europe of capital nature (raw materials) which currently attract 65 percent tax would be zero rated. while this leads to industrial development, could lead to loss of tax revenue from imports. figure 1. uganda’s total export trends by contribution of destination partner state, 1999-2017 data source: bou 2018. 4.2.4 research and technology advancement research and development in respect of the eac is cross cutting and is highlighted across various thematic areas pf economic development. the eac treaty objectives provide for the community to develop policies and programmes aimed at widening and deepening co-operation among the partner states in research and technology among other areas, for their mutual benefit. the national integration policy for uganda also recognises technology as a facilitator of the improvement in productivity and may be accessed through international trade, among other ways. uganda needs cooperation in research and technology because its industrial and manufacturing output is heavily concentrated on low technology products such as foods and beverages, leather and footwear, textiles and clothing and metal works. this is why the national industrial sector strategic plan (nissp) 2010/11-2014/15 prioritised the encouragement of knowledge-based industries such as ict, call centres, and pharmaceuticals to exploit knowledge in science, technology and innovation. uganda’s www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 46 published by scholink inc. department for industry and technology and its affiliated institutions continues to take lead in a number of areas. these include: the designing, developing and facilitating appropriate technologies for small-scale industries (jua kali). the uganda industrial research institute (uiri), uganda national council of science and technology (uncst), and unbs are other agencies directly involved in many aspects of industrialisation including technology development. key developments that uganda has benefitted from in the areas of research and technology advancement include: a. falling prices for information and communications technology (ict) in the region and higher penetration in both mobile telephony and broadband internet due to the installation of broadband ict infrastructure, connecting the region to the rest of the world. b. development of a regional health policy, which among other things which enables the country to identify priority national health sector investment projects that would be implemented within the eac framework. c. uganda benefitted from the african development bank (afdb) funding for the establishment and operationalisation of the ea oncology institute in 2014. this was part of a usd 98.22 million loan for four multi-national eac regional centres of excellence (coe) for skills and tertiary education in higher medical and health sciences education, health services and research program. the other centres supported in eac include: the ea kidney institute (eaki) in kenya, the ea heart institute (eahi) in the united republic of tanzania, and the ea biomedical engineering and e-health institute in the republic of rwanda. other projects of a similar nature include: the eac regional nutritional sciences institute (eacnsi) for which funding was sought afdb in 2015 and the eac regional centre of excellence (rce) for vaccines, immunization and health supply chain management in 2016 at a cost of 10 million euros financial grant from the german development bank (kfw), both in the republic of rwanda. students admitted in the eac centres of excellence from other partner states will pay the same tuition fees as citizens of the host country, in line with the directive of the 35th eac council of ministers. d. there is ongoing collaboration among eac states, who, the us centres for disease control and prevention and the microsoft corporation in the east africa public health laboratory network project (eaphlnp) which also contributes to the strengthening of the east african integrated disease surveillance network (eaidsnet). multi-disciplinary cross border meetings of the eac secretariat with support from eaphln have been convened at busia as has been the case with other border areas such as kigoma, serengeti and namanga to review disease surveillance systems in the areas over the past 10 months. the health screening form and procedures at points of entry/exit in eac are meant to have been standardized by june 2017. e. the community his working on the enhancement of capacity of peripheral laboratories to support surveillance and management of cancer and anti-microbial resistance in the region. in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 47 published by scholink inc. this regard, capacity needs have been established partner states’ participating laboratories and an action plan based on the who global action plan is under way. f. in regard to collaboration on matters of medicines, food safety and health technologies, uganda is one of the countries that had not though the nmra/nda to expedite the adoption of iso 9001: 2015 and incorporate all requirements into organizational qms and attainment of iso 9001:2015 certification by 30th june 2017. g. the region is implementing a project on harmonization and strengthening of regional pharmaco vigilance and post marketing surveillance systems in the eac. in this regard, a tool has been developed to assess pharmaco vigilance (pv) systems in eac partner states, the regional post marketing surveillance guidelines, and eac pv policy framework and minimum requirements for pv systems. further, the country will benefit from a regional strategy to combat ssffc medical products in the region focusing on prevention, detection and response in line with who plan, which is expected to have been in place by the eac secretariat by end of 2017. h. the eac operationalized the “eac-sida integrated health programme (2016-2020)” effective october 2016. prior to this, the eac regional hiv and aids programme and the open health initiative for improving reproductive maternal new-born child and adolescent health had been under implementation until 2016. since then, the eac integrated health programme (eihp) to sustain actions and results attained under the two programmes was approved. i. in the areas of reproductive, child, adolescent health and nutrition, the community is implementing the integrated eac reproductive maternal new-born child and adolescent health policy (rmncah) guideline (2016-2030) and strategic plan (2016-2021). j. since 2016, the country has benefited from the eac regional integrated population, health and environment (phe) strategic plan (2016-2021) and the region is zoned into 45 national statistical and phe coordination zones to facilitate coordination. 4.2.5 mainstreaming national and regional plans the eac vision 2050 provides guidance on the aspirations of the region, which are amplified in the regional strategic plans for the medium term. on the basis of these frameworks, uganda has a national policy for eac integration which further guides on the national priorities which various sectors, ministries and mdas need to prioritise in the local frameworks. 4.2.5.1 the regional medium term objectives and priorities the 5th development strategy for eac aims to achieve eleven objectives to be attained over the period 2016/17-2020/21. these objectives include: (i) accelerating and consolidating sustainable production, productivity, value addition, trade and marketing in key regional growth and productive sectors—with emphasis on rural development, agriculture, fisheries, livestock, food and nutrition security, and high value industrialization; (ii) investing in enhancement of the stock and quality of multi-dimensional strategic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 48 published by scholink inc. infrastructure and related services, to support and accelerate sustainable regional integration and competitiveness; (iii) strengthening the social dimensions of the regional integration process to deliver quality, effective and efficient socio-economic services—with emphasis on enhancing human capital development, gainful employment and decent work, health status, as well as overall welfare of the people of east africa. (iv) strengthening mechanisms and strategies for ensuring enhanced investment in clean and sustainable energy production and access, as a driver and enabler of economic competitiveness and sustainable regional development; (v) increasing investment in science, technology and innovation (sti), as key drivers and enablers of sustainable regional development and socio-economic transformation, as well as creating an enabling environment for their application; (vi) enhancing regional mechanisms and strategies for ensuring sustainable natural resource utilization and conservation, environmental sustainability and climate change management. (vii) attaining a fully functioning customs union; (viii) accelerating the full implementation of the common market protocol, including protection of fair competition, and of the monetary union; (ix) accelerating strategies and mechanisms for establishment of a political federation, with emphasis on ensuring sustained stability, political commitment, good governance and accountability; (x) developing and strengthening the capacity of all eac organs and institutions to effectively execute their mandates; and (xi) enhancing knowledge management, information sharing, awareness creation and participation of the east african people in the integration process. these strategic development objectives will be operationalized by appropriate sets of strategic interventions at pillar, sectoral, sub-sectoral, organ and institution levels. government of uganda has a duty to ensure that these objectives are achieved by operationalizing them at national level. the main challenge is that the strategy comes into force when the national plan for the same period was already in place. there are similar strategies reflected in the regional and national plans. these include; the prioritisation of prioritization of enhanced investment in infrastructure development, accelerating implementation of industrialization policy and strategy; enhancing investment in human capital development focusing on skills development; fast-tracking the implementation of common market and monetary union protocols; increasing efficiency of the public sector and competitiveness of the private sector; implementing policies for enhancing planned and controlled urbanization; enhancing institutional and legal frameworks for good governance; and ensuring appropriate mainstreaming of the key cross-cutting issues across all growth sectors. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 49 published by scholink inc. 4.2.5.2 the national development plan the national development plan for uganda addresses itself to the issues of regional integration in its development context by aiming to leverage the country’s growth opportunities and honour development and partnership obligations at the regional level. the strategic direction of the ndpii clearly outlines the objectives of the medium term the plan with are consistent with the regional strategic plan: in particular, to (i) increase sustainable production, productivity and value addition in key growth opportunities; (ii) increase the stock and quality of strategic infrastructure to accelerate the country’s competitiveness; (iii) enhancing human capital development; and (iv) strengthening mechanisms for quality, effective and efficient service delivery. the strategies: (i) ensuring macro-economic stability; (ii) industrialization and export oriented growth through value addition, agro processing, mineral beneficiation, selected heavy and light manufacturing; (iii) an employment creation strategy through fast tracking skills development and harnessing the demographic dividend; (iv) strong public/private partnerships (ppps) for sustainable development; and (vi) strengthening governance mechanisms and structures are in line with the objectives at regional level. this indicates the high level of consistency between the regional and national development plans. 4.2.5.3 sector development plans the process of harmonizing sectoral development plans and the eac development strategy is through the sector’s careful selection of interventions that contribute to the national objectives, which also have a regional outlook in terms of attracting resources, and making the country more competitive, or taking advantage of the opportunities created by integration. the national policy on eac integration provides critical guidance on the key areas of development that harmonised national development with regional integration (republic of uganda, 2015). it is important that sector development planning processes take into account the policy provisions in order to make uganda match along with the rest of eac and enable the country to take advantage of regional resources. responsibilities of each sector, ministry, agency and department are articulated in the national policy on eac integration. 4.2.5.4 institutional structures and coordination the republic of uganda has set up relevant structures for the coordination of the activities of the eac integration. in particular, the ministry of east african integration (meaca) was set up in 2007 as a fully-fledged ministry with a vote and its own accounting officer. the mandate of the ministry is to “steer uganda’s regional integration agenda in accordance with the objectives of the treaty for establishment of east african community”. meaca therefore promotes uganda’s interests in the pursuit of east african regional integration. in particular, meaca initiates and develops policies that support east african community integration; provides leadership in the negotiation process including the development of country positions; follows-up the implementation of eac summit and council decisions as well as directives as a way of ensuring compliance; conducts research on the impact of eac regional integration to inform policy actions; sensitizes and creates awareness about the progress and benefits of eac integration and enhance participation of all stakeholders including the public, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 50 published by scholink inc. private sector and civil society; builds capacity of all stakeholders including mdas, private sector and civil society on eac regional integration matters to enhance participation; and fosters cooperation arrangements with other regional and international organizations whose activities have a bearing on the objectives of eac. at regional level, the organs of the community namely, lake victoria basin commission (lvbc), lake victoria fisheries organization (lvfo), inter-university council of east africa (iucea), civil aviation safety and security oversight agency (cassoa), east african science and technology commission (easteco), east african health research commission (eahrc), east african kiswahili commission (eakc), and east african community competition authority (eaca) are in place to handle specific areas of mutual interest to the region. a selected list of activities they will be undertaking in the medium term to uganda can take advantage are provided in annex 4. the mdas whose mandate is associated with the organs of the eac have a duty to closely work together in developing strategies for implementing the regional agenda and in the process harness synergies that enhance the realisation of the country’s development aspirations. 4.2.5.5 financing of regional priorities and projects the eac has developed mechanisms for the joint mobilisation of resources for development financing as art of the framework of the regional strategic development plans. in february 2018, a retreat of heads of state was held under the theme “development of resilient infrastructure to achieve industrialisation and support trade to foster socioeconomic transformation in the eac”. in such retreats, flagship projects are considered. for uganda, the following projects were included among the regional projects considered: i) construction to standard gauge of the mombasa—nairobi—malaba—kampala—kigali—with malaba—nimule—juba—spur, valued at usd 19,221 million; ii) establishment of the eac upper flight information region (seamless operation) valued at usd 60 million; iii) development and expansion of arua airport, valued usd 150 million; under the development of the eac based airports and eac upper flight information region (seamless operations) in total values at usd 1,856 million iv) hoima oil refinery valued at usd 4,000 million; v) construction of kampala—jinja express high way and the southern bypass (96km) valued at usd 1,000million; vi) mombasa—nairobi—malaba—jinja express way valued usd 886 million; vii) construction of a new oil pipeline from hoima-uganda to tanga—tanzania valued usd 4,000 million; and viii) lake victoria transport programme (lvtp) valued at usd 1,200 million. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 51 published by scholink inc. while these projects will be executed by the partner states in regards to financing, there is joint coordination of the resourcing, and implementation to ensure timely completion. this calls for efficient programming in order to remain on course. project teams need to be vigilant, efficient and effective to make the projects succeed. in a similar manner, projects in the area of health have been fronted jointly. in particular, meaca is reported to have coordinated 5 eac sectoral council of health ministers, at which health priorities for the region have been articulated. annex 5 presents the details of the priorities of the sector. these priorities were presented to the heads of state summit in february 2018. such processes benefit uganda in its efforts to transform the economy and its people. 4.3 prospects and the outlook there are positive socioeconomic transformation prospects from the existing efforts for regional integration in the eac. the application of the electronic cargo tracking system enhanced on the northern corridor is expected to be extended to the central corridor by april 2018 to support the implementation of the single customs territory and other trade facilitation initiatives. in march 2018, the eac was expected to host the 4th world customs organisation authorised economic operator (aeo) global conference in uganda, at which an action plan on the aeo mutual recognition agreement with india and south korea would be signed. the number of aeos was expected to increase from 46 in may 2017 to 76 by march 2018. there is an ongoing review of the common external tariff 2012 and the eac customs management act 2004 to respond to changes in global trade and the economic environment in the eac. the eac elimination of ntbs act 2017 will be reviewed to make it more comprehensive to enable it address the issues of ntbs. accordingly the act and regulations are under review by the eac partner states. in regard to the common market, the republic of tanzania is expected to finalise the process of amending its telecommunications regulations to pave way for the implementation the eac roaming framework by december 2018, at the same time with the republic of burundi. twelve osbps were completed by december 2017, and the three remaining are yet to be completed and resources mobilisation is ongoing. other areas that are on-going include: mutual recognition of land surveyors will be achieved with the expected signing of the mutual recognition agreement in 2018; sensitisation has been made for the realisation of mutual recognition for pharmacists; having undertaken studies on cotton, textiles and apparels value chains and the leather and footwear value chains, there is an on-going process to develop action plans by december 2018. synchronisation of short-term policy measures with line sectors was being undertaken. issues include the need to review the common external tariffs to provide incentives for value addition and cushioning the industry against dumping. steps have been undertaken through the enforcement of sanitary and phytosanitary requirements focusing on used undergarments and synthetic shoes; following a comprehensive study on the automobile industry in eac in may 2017, it was recommended that there should be harmonisation of the age limit for imported used motor www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 52 published by scholink inc. vehicles. this is intended to promote local assembly of affordable motor vehicles in the eac starting 2018/19; and in regard to the monetary union, the bill for the establishment of the monetary institute was before the legislative assembly for consideration into law. this is in line with ensuring that the monetary union is realised by 2024. 5. conclusions and recommendations this review has traced the key developments of the eac integration and has identified gaps in programming to inform medium-term development planning. the eac has made many achievements along the pillars of integration, making it possible it possible to increase the volume of trade and investment in the region, has enabled the free movement of persons across national borders without visas. key challenges remain, especially those to deal with nontrade barriers that keep re-occurring; a slow pace in the implementation of decisions made by the council; and irregular contribution by member states of their financing obligations which slows the pace of implementation of regional decisions. the regional market has increased for all member states and the eac is ranked the best model of integration in africa. uganda has benefitted immensely from the eac integration by exploiting its comparative advantage in certain industries, and has registered growth in exports to the region at unprecedented rates. trade has grown faster than investment in the region. the country has benefitted from joint coordination of programmes and projects facilitating resource mobilisation for priority projects. uganda has been exposed to a larger market and benefits from the greater voice of the region in negotiating for access to larger markets in the us and eu. the key challenges remain the recurrence of non-trade barriers and the low pace of project execution which hinder accelerated registration of benefits. the east african community development programming provides an opportunity for the government of uganda to take advantage of the long-term perspective planning to identify areas for joint coordination and execution with the partner states of the eac integration. in order to benefit fully from the eac integration initiative, there is need to implement the policy on integration without any reservation. other recommendations include the following: increase awareness about the market opportunities among ugandans in order for them to take greater advantage; minimise the introduction of ntbs against partner states to assure partner states of the resolve to fully integrate with them in the region; improve capacity for uganda’s project identification, formulation and development process in order to match the speed that other partner states especially kenya and tanzania employs in the execution of regional projects; invest more in smes and other private sector initiatives that have orientation towards exploiting the markets that have been created within and outside the region, by increasing their productivity. the smes require education grants and development finance for them to take up greater risk in exploiting regional opportunities; strengthen the ministry of eaca for it to effectively coordinate and popularise the integration agenda. there is need to expand the scope of the ministry to also deal with comesa and sadc in a more succinct manner, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 53 published by scholink inc. and enable ugandans take advantage of the opportunities this creates; prioritise the development of the ten year perspective plans for the country to effectively coordinate master plans of sectors so that that provides a platform for selection and appraisal of regional projects; increase the country’s response mechanism to understudy regional laws, protocols and policies to reduce the time to decide on each framework and ensure timely signing, ratification and domestication; and fast track the resourcing and implementation of projects expected to increase the country’s competitiveness, to enable the country sustain its comparative advantage so far demonstrated. references east african community. (2011). 4th eac development strategy (2011/12 2015/16): deepening and accelerating integration. arusha: eac secretariat. east african community. (2015). study on equitable sharing of benefits and costs of eac integration. arusha: eac secretariat. east african community. (2016). east african community vision 2050. arusha: eac secretariat. east african community. (2017). eac development strategy 2016/17-2020/21. arusha: eac secretariat. east african community. (2018). the 19th ordinary summit of the eac heads of state: report of the council to the summit of eac heads of state for the period 19th may 2017 to 22nd february 2018. arusha: eac secreatriat. east african community. (2018, march 27). pillars of eac regional integration. retrieved from east afrcan community website: https://www.eac.int integrate-africa. (2016). africa regional integration index report 2016. addis ababa: economic commssion for africa. integrate-africa. (2018, march 8). regional economic communities-east africa. retrieved from africa regional integration index: https://www.integrate-africa.org/rankings katunze, m., & kuteesa, a. (2016). uganda’s revealed comparative advantage in comesa. journal of sustainable development, 9(3), 192-207. https://doi.org/10.5539/jsd.v9n3p192 museveni, y. k. (2016). the 11 bottlenecks facing africa-reviweing the aprm process tool and methodology: a discussion paper at the 25th summit of the aprm forum. midrand: african peer review mechanism secretariat. niyonzima, s. (2018, march 15). the role of meaca and the challenges of implementing the eac treaty in partner states. retrieved from development network of indigineous voluntary associations (deniva): www.deniva.or.ug/docs republic of uganda. (2012). investor survey report 2012. kampala: uganda bureau of statistics. republic of uganda. (2015). the national policy on the east african community integration. kampala: ministry of east africcan community affairs. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 54 published by scholink inc. republic of uganda. (2017). uganda investment annual report 2015/16. kampala: uganda investment authority. shinyekwa, i., & othieno, l. (2011). uganda’s revealed comparative advantage: the evidence with the eac and china. kampala: economic policy research centre. notes note 1. falling from an average of 34 to eight (8) months per ntb. note 2. established to spearhead research on matters of peace & security, governance and foreign policy coordination. note 3. total absolute value of the difference between share of imports and share of exports of a member state in a rec. note 4. inflation rate in 2013. note 5. ranks from symmetric index (si); an si closer to one indicates that uganda has an rca in that product chapter. note 6. assumed a constant growth for south sudan for the previous year to estimate 2016 due to missing data. note 7. south sudan data is from world bank, and for uganda is from the central bank instead of the bureau of statistics. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 2, 2023 www.scholink.org/ojs/index.php/elp 35 original paper reconsideration on the construction of finance discipline and the cultivation of college students’ employability in sichuan international studies university xian jingchen 1 & xu xinpeng 1 1 college of finance and economics, sichuan international studies university, chongqing, china received: june 13, 2023 accepted: july 24, 2023 online published: august 23, 2023 doi:10.22158/elp.v6n2p35 url: http://dx.doi.org/10.22158/elp.v6n2p35 abstract based on the construction and talent cultivation of the finance discipline in industry characteristic universities, this article discusses the subject setting, professional course structure, and the model for cultivating college students’ employability to illustrate how universities with prominent industry characteristics carry out the construction of the finance discipline. it indicates that the full use of laboratories to support the construction of characteristic disciplines is the foundation, and emphasizes the internal logical connection between various courses as a clue analysis, from the simple quantity construction to the improvement of curriculum quality, from the construction of a single core curriculum to the construction of a multi curriculum system, from the internal logical extension of the core curriculum to the internal logical connection of related courses, sort out the connection, mutual support and strengthening between the temporal logic and content order of related courses, optimize and integrate the curriculum system by using the internal logical connection of the curriculum group, in order to promote the transformation of teaching concepts and teaching methods, achieve the goal of high-quality construction of course groups, and propose corresponding future development ideas based on this. keywords financial discipline construction, college students’ employability www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 36 published by scholink inc. 1. preface finance, as a fundamental theoretical course in the field of finance, must closely adhere to the actual economic environment in order to grow and develop. in today’s highly open macroeconomic environment in china, it is required that various disciplines and teaching methods in foreign language universities should also change their thinking, and rethink what kind of professional talents are needed for our finance teaching and research to meet the requirements of future social development. the author believes that in the future disciplinary and professional construction, how to prioritize serving local and national economic development, how to cultivate future business leaders, and how to gradually move towards application-oriented undergraduate construction are our rethinking directions. therefore, the purpose of this paper is to conduct research and construction on the subject curriculum group of finance with high-quality courses as the core, with the aim of promoting the improvement of teaching quality, promoting the transformation of teaching concepts and ideas, reasonably integrating teaching resources, updating teaching content, and expanding teaching scope as specific teaching methods. as the preferred basic theoretical course in this discipline system, finance still faces many problems that need to be improved and strengthened in the teaching process against the backdrop of changes in our school’s teaching objectives and positioning. 2. the historical category system of finance from the formal establishment of the american financial society in 1939 and the publication of the journal of finance in 1946, finance was officially declared a relatively independent discipline. the research content of western social finance can be clearly divided into traditional finance and modern finance. traditional financial theory focuses on macro monetary and banking research, mainly studying the laws of monetary credit and bank credit. the specific content includes the relationship between the quantity of money and the circulation of goods, the relationship between price changes and money, and the relationship between business cycles and credit activity cycles. modern finance, on the other hand, places greater emphasis on the field of corporate finance. due to the profound economic theory and strong practicality of the finance discipline, the undergraduate education forms of finance also exhibit diversified characteristics. there are generally three types of undergraduate education in finance abroad (1) it focuses on its strong theoretical aspect. the general practice is to establish a finance department in an economics school. for example, many universities in canada, australia and other countries have set up a department of finance in the school of economics, which focuses on the theory of financial economics. (2) it focuses on the practical aspect of finance. this usually involves setting up a finance discipline in a management school. most american universities, such as management schools and business schools, offer majors in finance. harvard university and massachusetts institute of technology, which are among the top ranked universities in economics, have established finance departments in business or management schools it focuses on the cross disciplinary characteristics of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 37 published by scholink inc. financial colleges. the finance discipline is generally jointly offered by the department of economics and the school of management. for example, at the famous university of toronto in canada, the department of economics and the school of management jointly established the department of finance, named the department of business and finance, and awarded a bachelor of business degree. this form aims to fully utilize the advantages of different departments in economics and management, and provide students with comprehensive financial knowledge. around the 1950s, the main teaching content of finance in china was to introduce and learn western monetary and banking studies. the research direction was to comprehensively analyze financial issues under the two social systems of capitalism and socialism. around 1992, teaching and research gradually shifted their focus from macro monetary policy to the true core of modern finance micro finance. its research fields are mainly financial asset pricing theory, computational finance theory and so on. 3. the shortcomings in teaching finance 3.1 emphasize theory over application the reason for the limitations of our school’s previous teaching conditions lies in the phenomenon of emphasizing theory over application in finance teaching from curriculum design to actual teaching. this has resulted in poor adaptability of professional students to professional work abilities, and there is a common phenomenon of weak practical ability and ability to solve practical job problems among graduates. this is currently a difficult point in our school’s finance education. the current situation can also be demonstrated from a certain perspective, that is, the book titles subscribed to in our textbooks are mostly titles such as “xxx study” and “xxx theory”, and rarely titles such as “xxx theory and practice”. 3.2 focusing on the macro and slightly observing the financial discipline system in china has been continuously improving in recent years, but there are significant differences in the definition of “finance”. the definition of finance in the domestic academic community focuses on the teaching and research of macro monetary fund financing and circulation, with the main system still focusing on the three sectors of “banking, securities, and insurance”. more attention is paid to the research of financial behavior mainly composed of the state, government, and institutions, while the teaching and theoretical research of financial behavior mainly representing the market, enterprises, and individuals are relatively weak; in finance education, there is too much macro analysis and qualitative analysis, which leads to students’ learning content being concentrated in the theoretical field, relatively broad and empty, making it difficult to have a deeper understanding of the essence and operating mechanism of finance; the completeness and systematicity of the curriculum and teaching content are divided into multiple parts, while the main course content of the finance major is divided into multiple sections, resulting in poor continuity and fragmented system logic. therefore, it is inevitable to cause repeated and overlapping teaching content, with some macro www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 38 published by scholink inc. content overemphasizing and some micro content becoming difficult to cover. 3.3 emphasize means over flexibility finance is not a subject of theoretical discussion, but also a subject of applied economics with strong practicality and operability. however, the medium and high-end financial talents we provide to financial institutions show poor job adaptability, which indicates that there are defects in teaching methods and methods that rely solely on theoretical knowledge in the classroom. modern education methods excessively pursue changes in teaching forms, such as multimedia teaching, which can use teaching methods such as graphics, shapes, sound, light, color, and sound in a short period of time to visualize the teaching objects, provide rich graphics and text, and achieve the effect of processing large amounts of information, thereby stimulating students' interest. it can also support the construction of online teaching platforms and ensure the sustainability of teaching materials. but at the same time, its shortcomings are also manifested, precisely due to the large amount of information. for teachers with insufficient teaching experience, especially young teachers, it is necessary to emphasize not only conveying as much information as possible to students in a unit of time, but also ensuring the coherence between these information and the processing and analysis of information. the high requirements for teachers themselves are understandable. at the same time, the specific teaching methods of multimedia teaching (relatively single, flat, and narrow channels for obtaining information) also to some extent limit the ability of students to break through and innovate, indicating that multimedia teaching cannot completely replace traditional teaching methods. 3.4 emphasize exams while neglecting innovation the multimedia approach in teaching methods is only limited to the narrow side of information channels; a more important point is the backwardness of assessment methods. at present, in our school’s financial teaching, the paper exam is still the most important assessment method; moreover, in terms of specific question type design, it is limited to memorizing basic concepts and specific content of the textbook, and the main content of the exam is the possession of knowledge and low-level mastery of relevant knowledge points. the question type for evaluating comprehensive analysis ability is relatively insufficient. this exam mode stifles students' autonomous learning ability, affects their creativity and personality development, and makes it difficult to comprehensively improve their overall quality. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 39 published by scholink inc. 4. thoughts on financial teaching reform finance is the most dynamic factor of production in the economy and society, so we should introduce more content that is in line with the actual society in our teaching. for example, in future classroom lectures, we can talk more about the cutting-edge phenomena of finance, such as the explanation of “mobile financial terminals” from mobile devices. at the same time, our research direction can also gradually find breakthroughs from traditional “banking, securities, and insurance”, bringing new ideas to the development of our department. at the same time, our school should focus more on cultivating financial talents that are more in line with local development needs in chongqing. therefore, explaining and researching this content is in line with the characteristic teaching objectives of our school and our institute. in recent years, government departments have continuously increased their investment in laboratory construction in various universities. how to improve the quality of financial experimental teaching and fully utilize the functions of laboratories is currently a problem that must be seriously studied. the author believes that the reform of financial experimental teaching is not only a requirement for the development of modern finance discipline, but also a new force to promote the development of finance discipline. at the same time, our school has also established a finance and finance laboratory jointly built by the central and local governments, which can fully rely on this laboratory to carefully arrange a series of corresponding teaching experimental courses. 4.1 subject setting based on one’s own characteristics due to the significant industry characteristic cultural background of our university, the construction of the finance discipline has been relatively weak since its inception. the establishment of the finance discipline cannot be forced to be consistent with the professional finance and economics universities. majors of finance in most colleges and universities are mainly set according to the work direction of the financial industry, such as international finance, banking, securities, insurance, and some investment management. this model of relying on a certain industry for professional setting has certain advantages, that is, when the industry develops greatly, the profession will achieve significant development; but the drawback is also quite obvious, that is, if the market development is hindered or undergoes major adjustments, the professional development will stop moving forward. therefore, under this premise, sichuan international studies university’s finance should emphasize a broad scope and a solid foundation, and set up finance as a major, rather than a sub major. 4.2 cross connection between basic courses and professional courses the curriculum structure of finance majors should constantly change in conjunction with economic development. but the changes should only focus on professional courses rather than basic courses. because with the close integration of finance and economy, macro finance policies and majors have been developed and integrated, and at the same time, specific micro finance majors at the micro level have also shown different directions; therefore, the curriculum of the finance major should not only reflect the basic courses in the macro direction, but also present the development direction of micro and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 40 published by scholink inc. technical courses. in sichuan international studies university, the basic theory courses in the financial professional curriculum in the past accounted for too much, and there were too many overlapping contents. after the reform of financial discipline construction, the construction of financial discipline should move towards a new direction. first of all, the department of finance should add courses on micro finance, and pay attention to courses related to corporate financial micro behavior, such as corporate finance, financial engineering, asset pricing and risk management, and basic courses such as finance and financial markets, which should be arranged in the logical order of professional knowledge. another example is that courses such as “personal finance” are listed as “elective” and upgraded to “compulsory” courses after the reform. at the same time, combined with the characteristics of the industry, we will add elective courses with local industry characteristics in chongqing, emphasizing the importance of finance courses while also adding industry characteristics. for example, specialized elective courses such as “automotive finance” can be added to adapt to the development of chongqing’s automotive industry, “real estate finance” with chongqing characteristics, “internet finance” and “e-commerce finance” with chongqing e-commerce. other courses in the finance course group, such as banking and insurance courses, have similar problems that can also be solved in this way, such as “mobile banking and its business”. in the insurance industry, efforts have also been made to sell insurance products in large quantities through online and e-commerce platforms. on the one hand, it improves the professional level of teachers, while also cultivating the breadth of students’ professional knowledge. of course, while enhancing industry characteristic courses, we still attach importance to the study of basic economics courses, so that the basic courses of finance and financial application courses are mutually supportive and coordinated, which is beneficial for students to have a deep understanding of theoretical foundations and familiarize themselves with financial practice. 4.3 constructing the “three realities” teaching model the purpose of experiments, internships, and practical training in the field of finance is to implement the national policy of vigorously carrying out quality education, cultivating high-quality applied and composite skilled talents who can adapt to social needs, and strive to solve the problem of talent cultivation and talent demand being disconnected in universities. since financial business and financial products are developing very fast and constantly updated according to the actual society, financial engineering technology is advancing by leaps and bounds. at the same time, the current division of labor in the financial industry is becoming more and more detailed. if we simply wait for the emergence of complete theories to implement teaching reform, it will be difficult to keep up with the pace of actual social requirements. therefore, the application teaching of financial laboratories should be entirely based on the actual business processes of enterprises, and the existing central and local co built laboratories should be utilized as much as possible to provide students with a fully simulated workplace, achieving a close combination of teaching and experimentation. the financial laboratory should fully enable students to proficiently master basic skills such as investment business, banking www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 41 published by scholink inc. business, insurance process, investment technology analysis, etc. through practical computer operation. such as simulating stock market trading, online banking business, electronic currency payment settlement, etc. therefore, financial experimental teaching cannot only be conducted in the laboratory, and it is urgent to construct a “three reality” teaching model that combines experiments, internships, and practical training. specifically, the “three realities” refers to a combination of laboratory teaching, practical financial department internships, and social training. the flexible arrangement of the “three realities” time allows the learned content to be combined with practice as quickly as possible, identifying problems in the connection between theory and social practice, conducting experiments with problems, deepening understanding of theoretical knowledge, and improving proficiency in knowledge application. only in such an open experimental teaching system of “experiments, internships, and practical training” can students’ practical and innovative abilities be truly improved. 4.4 establish a professional experimental teaching faculty according to the requirements of our school’s financial teaching reform and subject construction goals, the construction of corresponding teaching staff has always been a prominent weak link. these teachers engaged in finance laboratory teaching should have professional backgrounds in finance, investment, and metrology, possess various industry software operation abilities, and preferably have experience working in corresponding enterprise positions. these teachers should be primarily responsible for the selection and compilation of laboratory textbooks for senior undergraduate and graduate students; schools should sign agreements with relevant financial institutions to provide experimental course teachers with the opportunity to conduct research or study in actual work departments, timely understand the latest trends in the financial industry, and promote the improvement of the entire subject faculty level and ensure that teaching content can keep up with the times through internal communication within the teaching team after returning to school. 4.5 construction of experimental teaching and industry university research platform construction the development and construction of the experimental teaching system in finance is a visionary and forward-looking work, which is of great significance for the development of the finance discipline and the overall strength of our school. because the financial discipline itself pays equal attention to both theory and application, and in the the internet age, new theories and technologies are advancing by leaps and bounds, the significance of the combination of industry, university and research is particularly prominent. the laboratory can engage in extensive cooperation with financial institutions, enterprises, and others, hiring off campus professional business guidance teachers for the actual work department, and transforming the practical operations of the business department into simulation courses that the laboratory can operate. in this way, through the laboratory platform, various research resources can be effectively integrated and utilized, forming a good research environment. teachers can also conduct empirical analysis through laboratory resources, providing decision-making basis for departments at all levels in chongqing, and providing a guarantee base for undertaking high-level policy research and high-level financial professional talent cultivation in the financial sector of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 42 published by scholink inc. chongqing. to better serve the construction of disciplines and the cultivation of applied financial talents. 5. future development suggestions the construction of the financial discipline system should focus on the improvement of students’ overall quality, and the construction of the financial discipline should comply with the development of social economy and serve the development of social economy. therefore, the author’s suggestion is: 5.1 cross disciplinary education in applied education applied education is essentially a “cross-border education” that should organically integrate the “professional culture” in the industry and the “educational culture” in schools, achieving a transition from ordinary education to those with professional literacy. to achieve this process, there must be three “standards”, namely citizen standards, reproduction standards, and performance standards. among them, “citizen standard” refers to attitude, reflecting a professional spirit; the “reproduction standard” refers to knowledge, including the learning of basic concepts and concepts; the “performance standard” refers to the mastery of skills, including both general and professional skills. combining the employment ability indicators of undergraduate students majoring in business administration, guide and assist students in planning their career paths. 5.2 cross disciplinary classroom in curriculum construction curriculum construction is the core of cultivating the employability of undergraduate students majoring in finance, and must be combined with the thinking concepts of applied undergraduate colleges. in short, it means “curriculum oriented work tasks, work-oriented teaching tasks, and systematized work processes”. build a corporate reserve team, form a “cross-border classroom” outside of school, and achieve “work task curriculum”; integrating schools and enterprises into one, forming a “cross-border classroom” within the school, and achieving “work-based teaching tasks”; deconstruct subject knowledge and embed it into actual work processes to achieve “systematization of work processes”. in combination with the employment ability indicators of undergraduates majoring in finance, new courses such as management communication, workplace self-cultivation, social etiquette, business management case analysis, etc. are added in the form of elective courses in the original curriculum system to cultivate students’ interpersonal communication communication and cooperation abilities, and word processing abilities; at the same time, extracurricular quality expansion training can be added to cultivate students’ teamwork and adaptability. 5.3 cross disciplinary teacher and student training education that satisfies the people should be a combination of “individual needs” and “employer needs”. based on the principles of supply and demand in economics, demand will stimulate the development of supply, and supply must meet demand. this should be reflected in the cultivation of “cross-border teachers and students” with forward-looking awareness. during the peak season of the enterprise, walk into the enterprise with questions and thoughts; in the off-season of the enterprise, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 43 published by scholink inc. return to campus with awareness and reflection. combining the employment ability indicators of undergraduate students majoring in business administration, the assessment of teachers and students should be multifaceted and multifaceted. the assessment of students should include their learning of professional knowledge, mastery of skills, and social work experience. the assessment can be conducted through methods such as exams, team work presentations, and evaluations from others; the assessment of teachers can incorporate research findings such as the employer’s recognition of school education, the employment satisfaction and status of fresh graduates, into the content of the teaching effectiveness assessment. based on the assessment results, the school's teaching and training plan can be improved in a timely manner. 5.4 establish a classified and hierarchical employment guidance system to enhance college students’ employment awareness establishing a classified and hierarchical employment guidance system is aimed at developing career plans for students, correcting career choices, and providing targeted and planned guidance for different types of students, striving to improve their employability. for example, for students who plan to continue their studies after graduation or choose employment after graduation, intention statistics will be conducted on students who choose various destinations at different periods and stages, and then targeted classification guidance will be provided. hierarchical guidance refers to hierarchical guidance according to different grades of college students. for example, the guidance for junior students is usually career development and interest exploration, personality analysis and career understanding (future employment direction); senior students should have a clear understanding of the employment situation and career development prospects of that year, enhance their job search and employment awareness, and stimulate their subjective initiative to meet social challenges. at the same time, guide college students to establish a correct outlook on employment and career choice, and to have the ability to withstand pressure, resist setbacks, and bravely face the reality of difficult employment. through professional practice, understand the changes in students’ employment intentions, provide targeted resume interview training, and then track students’ employment progress for career recommendations and psychological counseling. 5.5 integrating resources to increase employment opportunities for college students encourage students to actively participate in job fairs and obtain employment opportunities in different industries. in addition to professional related job fairs held at the college level, students are also encouraged to actively participate in job fairs at the school level and even in other industries, providing them with more opportunities to access recruitment information from different industries, in order to expand employment development space and broaden employment channels in a broader and more comprehensive manner. the college also relies on projects carried out by various professional studios to build a mutual platform, using the old to guide the new and learning to promote teaching. it “spreads, helps, and guides” students in knowledge transmission, employment concepts, role models, and other aspects, forming a critical atmosphere for college students before choosing a job, and enabling them to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 44 published by scholink inc. make various psychological preparations before employment. based on the studio, a multi-dimensional, collaborative, and leapfrog development vocational literacy education and training system is formed by organizing vocational literacy training, vocational literacy experience activities, self-management, and planning internship bases. employment information is released through wechat platform, and online and offline interactions are promoted to promote innovative employment models and open up multiple channels for innovative employment. in addition, gather alumni resources, industry resources, campus resources, network resources, and social resources; through two-way interaction between online and studio entities on the internet, further improve the quality and level of vocational education guidance, and establish a precise mechanism for promoting professional practical employment services; gradually realize the intelligent matching between college students’ willingness to seek employment and the position of the employer, and realize the seamless connection between college students’ career development, professional language expression, business etiquette performance, professional ability and quality and the talent requirements regulated by the employer’s workplace. 6. conclusion in summary, in order to improve the employment level and quality of college students, application-oriented universities can establish a classified and hierarchical employment guidance system to enhance their employment awareness; building an off campus practice platform to increase employment opportunities for college students; integrate resources and expand employment channels for college students; tracking and revisiting employers and employed college students, continuously expanding and updating employment guidance information, and creating a healthy development space for the employment development of college students through the continuous efforts of the above four aspects. funding institute-level graduate education reform project: research on the construction of a systematic training model for international business specialists and masters from the perspective of new liberal arts yjsjg202209, kjqn202000905. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 45 published by scholink inc. references huang, d. (2001). teaching reform and development strategy of chinese finance in the 21st century. finance, trade and economics, 2001(11), 5-7. jiang, z. (2014). exploration and reflection on the construction of financial experimental teaching centers in higher education institutions. academic discussion, 2014(5), 65-66. liu, s. r. (2009). reflections on the construction of financial discipline. reform and opening up, 2009(november issue), 236-237. zeng, k. l., & liu, y. p. (2014). further discussion on the construction of financial discipline and the training of financial talents. journal of shanghai finance university, 2014(3), 5-11. zhao, y., & zhang, j. s. (2012). research on the construction of financial discipline in universities with industry characteristics—taking wuhan textile university as an example. science and technology entrepreneurship, 2012(6), 123-124. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 5, no. 1, 2022 www.scholink.org/ojs/index.php/elp 1 original paper education policy in developing countries: addressing the challenge of managing overseas scholarship programs through performance measurement lasbrey n. d. nsiegbe 1 1 federal university wukari, wukari, nigeria received: january 9, 2022 accepted: january 21, 2022 online published: may 19, 2022 doi:10.22158/elp.v5n1p1 url: http://dx.doi.org/10.22158/elp.v5n1p1 abstract education and development–whether personal, social, economic or technological–are inextricably bound. in recognition of this, governments, societies and private organizations commit huge financial resources to the funding of education. however, funding for students’ higher education through scholarships suffers a huge disadvantage against funding for higher education institutions. this is more so in developing countries that are even in need of high quality education obtainable in the developed economies through overseas scholarship schemes for deserving candidates. governments and sponsoring organizations such as nigeria’s tertiary education trust fund (tetfund), world bank’s overseas scholarships for developing countries, america’s usaid, united nations’ unesco or the commonwealth scholarship programs therefore need to deploy performance assessment mechanisms to effectively and regularly monitor the performances of the beneficiaries of the overseas scholarship schemes throughout the course duration of their studies with a view to recalling back home any under-performing candidate(s) to avoid wasted resources. the deliverables of this research paper, therefore, include:  the nsiegbe performance assessment model for overseas scholarship schemes.  a performance measurement formula, known as, the nsiegbe formula for scholarship schemes performance measurement.  a student performance assessment plan. keywords education policy, developing countries, higher education, overseas scholarship, quality assurance, benchmarking, performance assessment, performance measurement www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 2 published by scholink inc. 1. introduction this section gives a general overview of the study presented in this paper. it begins with a brief description of the background of the subject matter. it explores the significance of the study and also provides justification for the research. it summarizes the nature of the study and gives an insight into its methodology. 1.1 background of the research education policy and development economics can be considered as siamese twins–hard to separate. it is therefore understandable that many developing nations around the world–in a bid to attain modern and high level development in virtually every field of existence–have been committing huge resources toward the acquisition of top notch quality education for their citizens in the hope of bridging the gap between themselves and the developed economies. for decades, this has taken the form of sponsoring candidates to various developed countries such as the usa, uk, canada, germany, france, russia, the netherlands, and, in recent times, to china, etc. on state-funded foreign education programs. however, in most cases in the past few decades, this strategy has largely been marred by favouritism, corruption and such other vices that ensure that the most academically and intellectually deserving candidates are side-lined while the less deserving and less qualified are often the beneficiaries of the overseas scholarship programs. the situation is exacerbated by the lack of performance monitoring over the beneficiaries, and the absence of appropriate management frameworks for these overseas scholarship programs. in some other cases, the scheme is marred by politicization, a phenomenon that has become rife in my own country, nigeria, in this 21 st century. the stunted growth and development of the country after many decades of a promising future have confirmed that education that is politicized and marred by corruption does not yield the desired and expected results. it can at best produce ―professors without research and addition of knowledge‖, ―leaders without ideas and vision‖, ―doctors without clinics‖, ―senior officers without merit‖, ―engineers without projects‖, ―administrators and managers without depth‖, etc. as is the reality in the country at the tailspin of 2021. for the purposes of this paper, countries classified as developing economies are those who, for the current 2022 fiscal year, are classified by the world bank as low-income economies with a gni per capita, calculated using the world bank atlas method, of $1,045 or less in 2020; and the lower middle-income economies with a gni per capita between $1,046 and $4,095 (world bank atlas method, 2021). 1.2 why the research is important: significance of the study this study is significant because of its relationship with public funding of education, and is geared towards the enhancement of public financing of education. it can be argued that education is the greatest asset and wealth that any nation, society or community of people can possess due to its great benefits. the importance of education itself cannot be over-emphasized. it and the significance of this study are inextricably bound. the benefits of education are discussed herein and are considered at www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 3 published by scholink inc. individual, economic, social, technological and revolutionary levels: 1.2.1 individual benefits it can be said that the primary motivation an individual has for acquiring education is to secure a good standard of living: earn a good pay, be capable of providing for him/her and the family the basic necessities of life and quite possibly add some icing to these, in the form of some extra comforts of living. topel (2004) states that the private monetary returns to a person who acquires education can be as high as 8-15% per year of schooling while four years of college education can raise earnings by about 65 per cent–a compounded return of about 13 per cent per year of schooling. 1.2.2 economic benefits ferguson (2006), notes that education plays a critical role in the provision of goods and services that have high economic value. he asserts that economic achievement and educational achievement–both at individual and national levels–are intertwined. it can be argued that improved private monetary returns brought on by acquiring higher education, as stated by topel (2004), means a better economic life for the individual as he/she is in a better position to pay for desired goods and services. this translates to increased economic activity and benefits for the larger society. 1.2.3 social benefits acquiring higher education overseas in advanced countries assists the individual to know and understand how the legal, educational, economic, infrastructural and other systems work in those places. this knowledge can prove useful when repatriated and applied back home for the effective transformation of the beneficiary‘s native society. moreover, additional skills–technical, academic, managerial and even research skills–acquired by studying overseas can prove very useful to the state when repatriated back home and applied for the wellbeing of the larger society. this can particularly be achieved if mechanisms are put in place to ensure the repatriation of talent after overseas study, especially where the education was financed with public funds. 1.2.4 revolutions on a philosophical note, an educated mind is a liberated mind. when the mind is liberated, a lot of revolutionary thoughts are germinated. this can lead to a flowering of revolutionary ideas in management of public funds and utilities, in education–such as the idea of an overseas scholarship scheme in science and technology, agriculture, power generation, housing, etc, to name a few. such revolutionary thinking can lead to either incremental or radical innovation for the enhancement of society. another revolutionary benefit of education occurs when a people can utilize new and upbeat technologies to share and organize in mass revolts to remove a dictatorial and/or unpopular government, as happenings just over a decade ago in the arab world have proved, in what was christened ―the arab spring‖. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 4 published by scholink inc. 1.2.5 technological benefits there is no gainsaying the fact that the great technological advancements being witnessed in the world today are the results of education via scientific research and development. developing countries yearn for technological growth, and desire to be in the league of technologically advanced nations. as they struggle to catch up with the technologically advanced countries, the need for each of them to send more people to acquire higher education in science, technology, management, etc. in such overseas countries becomes a high imperative, other things being equal. 1.3 justification for the research: gap the importance of education is further supported by scholarly articles and case studies that dealt with the funding of higher education. much of this literature, however, focused on the funding of the higher education institutions rather than on student scholarships for higher education, or their management. frolich, schmidt, & rosa (2010), for instance, discuss how funding systems influence higher education institutions and their strategies and core tasks. they used the results of a comparative study between denmark, norway and portugal to identify and analyse the main features of these state funding systems, their strengths and weaknesses, and their impact on academia. they acknowledge there are vast differences in funding systems for higher education, and, citing salmi & hauptman (2006), identify two major types of funding systems namely:  direct public funding of institutions, i.e., funding of teaching through negotiated formula, demand-side vouchers, performance-based funding, funding for specific purposes and/or combined funding for teaching and research, block grant funding and project funding; and,  funding for students via government grants and scholarships, tax benefits and student loan models. however, their research focuses on the first type of funding and does not give much attention to funding for students via government grants and scholarships. hagood (2019) explores the financial benefits and burdens of performance funding in higher education. however, the focus in this regard is on the funding of higher education institutions without exploring how this policy can also impact on high performing students through scholarships for student higher education acquisition. akinkugbe (2001), on the other hand, examines the financial flows within the educational system in swaziland and tries to compare public contribution to unit costs in education relative to the contribution of households. he found that higher education is heavily subsidized by the government, with 83% contribution, at the expense of basic education. he does not, however, tell us how this 83% is distributed between the funding of the higher education institutions and funding of student scholarships or how their student scholarship funding is managed. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 5 published by scholink inc. ortagus et al. (2020) examined the intended and unintended consequences of performance-based funding (pbf) policies in higher education in america. they observe that the adoption of pbf is generally associated with modest positive effects on such intended outcomes as retention and graduation but that there are also unintended disadvantages for underserved student groups and under-resourced institution types. again, their public funding discourse does not deal with how these underserved student groups can be better served through scholarships based on individual performance assessment. mutula (2001) delves into the management of library finances under the funding of public universities in eastern and southern africa, which still falls under the studies of the funding of higher education institutions, while mutula (2002) discusses how public funding of higher education institutions has affected overall operations of the universities in kenya. the focus here is: public funding of higher education, which is also what the student scholarship programs are all about. none of the studies in the existing literature has dealt with the issue of developing a framework to assist in the effective management of student overseas scholarship programs. furthermore, none has been able to provide a performance assessment formula that should be applied to such programs despite the fact that, according to frolich et al. (2010), incentive mechanisms and quality assurance in the public funding of higher education do get weakened by the lack of performance parameters. this study has attempted to fill these gaps and to also open a possible window to new engagements in academic discourse in this domain area. 1.4 nature of the research and its methodology the study is qualitative in nature and adopts an inductive approach that is based on grounded theory research strategy. research philosophy: the philosophy on which the research is based is social constructivism/interpretivism, with a spicing of pragmatism. research methodology: as mentioned above, the research is qualitative in nature because it is based mainly on theoretical information gathered from a review of existing literature. however, the outcome of the study, which is the performance assessment model/tool and the performance measurement formula, can only be utilized through the application of quantitative data to the model but this does not qualify the study as a quantitative research. this does not also therefore qualify the study as a mixed methods research. consequently, the choice that was made for the study presented in this paper, therefore, was an innovative research methodology referred to by this researcher as ―quasi-mixed methods‖, and this was derived from the combination of qualitative method and ―quasi-quantitative‖ method, in light of bloomberg & volpe (2008, p. 7). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 6 published by scholink inc. 2. method this study is concerned mainly with developing ideas, forming opinions, understanding meanings, interpretations, gaining perceptions, or looking at, describing and understanding experience (wisker, 2008, p. 75; breach, 2009, p. 45) to enable the accomplishment of the desired results. the method therefore adopted for achieving this is that of literature search. 2.1 literature review developing nations are in need of real development, yet most of them do not know how to go about it–even when the resources to achieve the desired development abound. most of those who know how to go about achieving this development do not have the political will to fight the main enemy of development: corruption in high and low places. among this latter group exist those societies who recognize that real and sustainable development hinges upon high quality education. they therefore place high premium on quality education and are willing to commit substantial financial resources to the funding of education, both at home and overseas. their funding of education may take the shape of formal, structured funding or informal, unorganized funding where many factors may dictate what is done at any particular point in time. those who adopt formal, structured funding of student education through scholarships may choose to do so through the instrumentality of bodies, departments or agencies established by statutes. such agencies are then charged with the responsibility of managing all processes involved in the funding of the scholarship schemes. here then lies the big challenge for such organizations: to effectively manage the scholarship schemes for optimal results and to international best practice standards. to assess the performance of such organizations it is necessary to contextualize or situate their application of the necessary tools and techniques in relation to the management processes of their scholarship programs, most especially the overseas scholarship schemes. this is so because it is here the bulk of the funding goes. this literature review will focus on quality assurance and benchmarking as tools and techniques for improving the efficiency of the overseas scholarship programs. 2.1.1 quality assurance before exploring the concept of quality assurance in the operations of the overseas scholarship scheme it is necessary to understand first the concept of quality. 2.1.1.1 what is quality?: quality, in the business context, is primarily concerned with customer satisfaction. hence, intense competition in the global market calls for business excellence. the success of organizations in japan has been attributed to the principles of total quality management (tqm) which they freely adopt and implement, such as those propounded by well-known quality exponents and gurus like deming, juran, philip crosby, armand feigenbaum, kaoru ishikawa, taguchi, etc. (ahmad & yusof, 2010; harry & schroeder, 2004). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 7 published by scholink inc. despite the business context of quality and its apparent acceptability, reeves and bednar (1994) argue that there is no globally accepted definition of quality but, rather, different circumstances warrant different definitions. they posit that the era or applicable sense of the study of the concept of quality notwithstanding, the concept has been associated with a variety of experiences but with often confusing definitions. tracing the manner in which the definition of ―quality‖ has evolved and the trade-offs that are inherent in adopting any particular definition over another, they conclude that there are too many components or variables in the quality construct space and so any model of quality construct or definition that attempts to encompass all the possible components or variables will find little areas of usage. the challenge therefore remains that of formulating comparable constructs for quality rather than attempting to define the concept in one single construct that will take care of every variable thinkable. this may have led doherty (2008) to assert that there is no simple answer to the question of what quality is since, like ―beauty‖, it is subjective and depends on personal judgment. consistent with the arguments of reeves and bednar (1994), and the assertion of doherty (2008), the chartered quality institute (cqi, 2011) gives 20 different answers to the question, ―what is quality?‖ from among the cqi‘s pool, however, the definition of ―quality‖ that best suits the purpose of this study, in line with reeves and bednar (1994), is that: quality is the characteristics of a product or service that make that product or service capable of satisfying specified needs or their implied aspects (cqi, 2011). based on the foregoing arguments, therefore, it is safe to say that practices of quality assurance are context-dependent (wu et al., 2011) which implies that certain total quality management tools and practices will be rendered ineffective if used under certain situations (dean & bowen, 1994). this paper will proceed to look at the issue of assuring quality in higher education. 2.1.1.2 the education-context of quality: in addressing viewpoints on quality in the context of higher education, harvey and green (1993) primarily acknowledged that:  quality has different connotations to different people.  quality relates to processes or results achieved irrespective of the conceptual viewpoint it is considered from. they noted that there are varying ideas about quality that influence what a stakeholder may consider as a preference in higher education and went ahead to give some definitions of quality in higher education in discrete but comparable (reeves & bednar, 1994) categories that include:  quality as exceptional: this category views quality as something special and has three variations:  a perception that classifies quality to be something in a class of its own  seeing quality to be an embodiment of excellence, and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 8 published by scholink inc.  an idea that quality is something that passes certain established minimum standards required by stakeholders in higher education (harvey & green, 1993)  quality as fitness for purpose: a view of quality that relates it to what purpose a product or service was made to serve. it is an effective and inclusive definition that has practical applications, as opposed to the exceptional definition that is special, distinctive and elitist with a conferment of status. it presumes that an educational program or institution should fit the purpose for which it was established (harvey & green, 1993). in the case of a higher education institution, ―fitness for purpose‖ also relates to the mission statement of the institution and presumes that the hei should be able to fulfil the objectives or mission it has set for itself.  quality as value for money: this equates the concept of quality with value for money, but also incorporates other criteria like standards, levels of specification, and reliability. according to church (1988) and moodie (1988) as cited in harvey and green (1993) the british government established a strong connection between the quality of education and value for money as far back as the 1980s, through its demand for efficiency and effectiveness in the public sector (joseph, 1986; des, 1987; secretary of state for education, 1988; cave, kogan & smith, 1990 cited in harvey & green, 1993). this approach to public sector funding forms the bedrock of the methodology of funding higher education in britain (pcfc/ufc, 1992a, b cited in harvey & green, 1993).  quality as transformation: this conceptualization of quality has its roots in the concept of ―qualitative change‖. it is centred on the transformative quality in the process of education whose participant or consumer–be it student or researcher–is enhanced and empowered by the process (harvey & green, 1993). through quality education, changes are effected in the participant who is also enhanced at the same time. 2.1.1.3 quality assurance in higher education: according to harvey and green (1993), in the uk, quality in higher education is regarded as an important issue to government as well as to employers. the main concern and role of quality assurance, therefore, has been that of monitoring to identify whether the higher education institution is achieving its purpose as set out in its mission statement. in this regard, through its validation function, the key role of the council for national academic awards (church, 1988 cited in harvey & green, 1993) was to ensure that necessary mechanisms, processes and procedures have been put in place to yield the desired quality, however defined and measured. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 9 published by scholink inc. in addition to the uk, many parts of the world have witnessed a growing emphasis on the issue of assuring quality in higher education and have recently implemented reforms to expand the sector (law, 2010), with increasing calls for adherence to global trends in the sector. in this respect, there have emerged in the literature, for example doherty (2008); houston (2008); stensaker (2008) new views in the area of assuring quality. sponsors of higher education generally expect to get some level of satisfaction from what they are paying for, irrespective of whether such sponsor is the parent, employer or government (doherty, 2008), and quality assurance is their means of ensuring they get value for what they are paying for. this is achieved through the monitoring of higher education quality (harvey, 2002) that has witnessed increasing uniformity of practice as a pragmatic response from governments (houston, 2008) who demand a demonstration of value for money and ―fitness for purpose‖ (harvey & green, 1993). this practice of quality assurance in higher education becomes enhanced and even more rewarding if the organizational change that can result from the process is well understood (stensaker, 2008). quality assurance as a tool for continuous improvement and performance enhancement is itself enhanced through the use and application of the benchmarking tool which is the next area of focus for this literature review. 2.1.2 benchmarking benchmarking is a strategic tool which underlying principle is the sustainable pursuit of excellence (elmuti & kathawala, 1997) and has proved particularly useful for performance assessment while enabling organizations to ensure continuous improvement in performance. as such, it also helps organizations to gain better understanding of their own internal administrative operations and by so doing identify areas needing improvement. when this is achieved, the organization succeeds in eliminating waste and improving its competitive advantage (allan, 1997 cited in elmuti & kathawala, 1997). bhutta & huq (1999) saw benchmarking primarily as a tool that can bring about improvement through comparisons with other organizations. they disagreed with the idea of benchmarking that relates to an organization‘s own internal administrative operations as argued by (elmuti & kathawala, 1997) and argued, instead, that it is meaningless to make comparisons of strategy at internal level but very beneficial for improvement when such comparisons are made between the organization and its competitors. hence, by forcing an external focus of the organization on improvement, benchmarking is able to raise industry standards of competition and thus weed out those who cannot maintain a competitive edge in the industry. lee, zailani & soh (2006), on the other hand, showed more interest in the aspect of performance improvement and agreed with elmuti & kathawala (1997), describing benchmarking as a simple but effective strategic tool which organizations have used to improve their performance at three levels:  processes  products, and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 10 published by scholink inc.  services. it would appear that these levels pertain only to manufacturing organizations alone. however, a closer scrutiny would reveal that they can be adapted to suit any particular organization, such as a government agency or department that deals with overseas sponsorship of education. this viewpoint is in agreement with bhutta & huq (1999) who noted that various organizations have adapted the benchmarking methodology to suit their needs. according to cook (1995 as cited in lock, 2001), the benchmarking tool can be most beneficial to an organization if the following procedures are followed:  the organization needs to link benchmarking to objectives that form the core of its business or services  targets that can be measured should be set by the organization in respect of the benchmarking activity  the commitment of the organization‘s senior management to the benchmarking process has to be assured  a powerful benchmarking team needs to be created by the organization, and  issues that are considered to be the right ones should form the main focus of the organization in respect of the benchmarking activity. cook (1995 as cited in lock, 2001) barber (2004) had noted that what is most important about benchmarking is that it is ―a comparison‖ and as such any evaluation that is done is only limited to that of the level against which it was benchmarked. this would imply that different types of benchmarking techniques or combinations thereof may have to be applied to different benchmarking needs so as to be able to obtain objective and comparable results. 2.1.2.1 types of benchmarking: the different types of benchmarking that an organization can implement are as follows: performance benchmarking – involves the comparing of performance measures to enable an organization know where it stands in relation to others (bhutta & huq, 1999). process benchmarking – this type of benchmarking involves comparing methods and processes to enable the organization improve its own processes (bhutta & huq, 1999). strategic benchmarking – if a need arises to change the strategic direction of an organization, strategic benchmarking can be conducted to compare the organization‘s strategy with that of its competitors (bhutta & huq, 1999). internal benchmarking – this involves benchmarking internal operations of an organization when there are similar functions within its business units. its main objective is to determine the internal performance standards of the organization (matters & evans, 1997 cited in elmuti & kathawala, 1997). it involves making www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 11 published by scholink inc. comparisons between departments within the same establishment (bhutta & huq, 1999). competitive benchmarking – this type involves externally comparing direct competitors who operate in similar markets with similar products or services/work processes (finch & luebbe, 1995 cited in elmuti & kathawala, 1997). its purpose is the comparison of performance/results (bhutta & huq, 1999). functional/industry benchmarking – also external in nature and involves benchmarking organizations that are recognized as industry leaders or organizations that are known to have the best functional operations (matters & evans, 1997 cited in elmuti & kathawala, 1997). it compares the technology or the process in the organization‘s area of technology with the known technology leaders in the organization‘s industry (bhutta & huq, 1999) with the aim of becoming the best in the industry. generic benchmarking – this type of benchmarking is also done externally but does not necessarily have to be against a similar organization. it involves comparing the organization‘s processes against best process operators (bhutta & huq, 1999). it is not directed at the business practices of an organization but instead emphasizes work processes that are considered best practice. it also emphasizes similar functions or procedures in any organization. it is a difficult approach (finch & luebbe, 1995; matters & evans, 1997 cited in elmuti & kathawala, 1997). it is important that the organization does a thorough evaluation of how it views benchmarking and the way the tool is used (elmuti & kathawala, 1997). therefore, defining the type of benchmarking or combinations thereof to be adopted for yielding better results should be based on what is being compared and against what the comparison is being made (bhutta & huq, 1999). this is the best way for an organization to start the process of benchmarking (elmuti & kathawala, 1997). figure 1 shows the matrix combinations of types of benchmarking that can be used in this regard for effective results: www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 12 published by scholink inc. figure 1. types of benchmarking (integrated matrix format) 2.1.2.2 the benchmarking process: according to lee et al. (2006), benchmarking is a structured process that consists of several steps that involve ethical and legal issues which an organization needs to take into consideration when embarking on the benchmarking process. the ethical and legal issues merely serve to provide guidelines that can ensure that the benchmarking partners mutually achieve their objectives. elmuti & kathawala (1997) emphasize that before an organization decides to benchmark, determining first what needs to be benchmarked is of paramount importance. there are five major components or stages of the benchmarking process (bhutta & huq, 1999; matters & evans, 1997 cited in elmuti & kathawala, 1997) which in itself follows the plan-do-check-act (pdca) cycle propounded by edward deming (pulat, 1994 cited in bhutta & huq, 1999). the ―plan‖ phase deals with early decisions to be taken such as determining what to benchmark and the choice of what benchmarking study should be conducted using the matrix format choice-making (leibfried & mcnair, 1992 as cited in bhutta & huq, 1999). the ―do‖ phase involves forming a benchmarking team, doing a characterization of the processes to be benchmarked, identifying the benchmarking partners and gathering information relating to them. the ―check‖ phase would involve doing a gap analysis on the benchmarking information with the aim of identifying negative gaps that need to be closed or positive gaps that can be built upon. the ―act‖ phase involves making necessary strategic decisions for change and implementing the decided actions in line with the outcomes of the ―check‖ phase (bhutta & huq, 1999; matters & evans, 1997 cited in elmuti & kathawala, 1997). δ φ δ θ δ θ φ φ θ φ θ θ internal benchmarking competitor benchmarking functional benchmarking generic benchmarking performance benchmarking process benchmarking strategic benchmarking relevance/value: high φ medium δ low θ www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 13 published by scholink inc. the five stages of the benchmarking process are often presented in models (elmuti & kathawala, 1997). the model presented by bhutta & huq (1999) is one in which the five major components or stages are linked together in the fashion of spokes on a wheel; hence they referred to the model as the benchmarking wheel, shown in figure 2. figure 2. the benchmarking wheel–the 5 stages of the benchmarking process the five stages of benchmarking as determined by bhutta & huq (1999) through a fundamental process evaluation include the following:  plan the benchmarking study: involves decisions pertaining to what is to be benchmarked, taking into consideration that the critical success factors of the organization have to be the driving force behind the decision. the critical performance measures are also to be decided.  form the benchmarking team: members of the team should come from different areas of the organization, where applicable (elmuti & kathawala, 1997) and need cooperation and communication with one another for best results to be achieved. the team is subdivided into three main teams: (1) the lead team who have the responsibility of ensuring that the organization maintains focus and commitment to the process. (2) the preparation team whose responsibility it is to carry out the detailed analysis of benchmarking data/information. (3) the visit team who have the responsibility of carrying out the visit to the benchmarking partners.  identify benchmarking partners: this involves the identification of organizations who would be the potential benchmarking partners. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 14 published by scholink inc.  collect and analyse information: this can be considered as the crux of the benchmarking exercise and it involves comparing the information on the benchmarking partner with the organization‘s own data to enable the understanding of gaps (bhutta & huq, 1999). the organization should first identify its own processes, products and services to enable a full realization of the extent of improvements required from the benchmarking study (elmuti & kathawala, 1997).  take action: at this stage of the process what is most important is determining what needs to be done in light of results of the benchmarking data analysis and taking appropriate action to implement the changes decided (matters & evans, 1997 cited in elmuti & kathawala, 1997). according to bhutta & huq (1999), benchmarking can be carried out in many steps that can be classified under the five major stages, and while some organizations have used as many as thirty-three steps at a go, others have used just as few as four. figure 3 is a nine-step benchmarking model presented by elmuti & kathawala (1997). it can be tailored to suit any organization. figure 3. a nine-step benchmarking model www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 15 published by scholink inc. 3. results 3.1 performance assessment and measurement having thoroughly examined the concepts of quality assurance and benchmarking and their respective applicable roles in managing overseas scholarship schemes, this paper will proceed to lay the foundation for the most vital aspect of addressing the challenge of managing overseas scholarship schemes for developing countries. 3.1.1 a performance assessment plan to ensure effective monitoring of the academic performance of the scheme‘s beneficiaries one of the solutions advanced to bring about better strategic performance is the application of performance assessment as a tool toward achieving this goal. this section describes the performance assessment plan that was developed for that purpose. it was achieved through the application of benchmarking as a management tool. 3.1.1.1 performance assessment at student-level: performance assessment at the student level relates to assessing the academic performance of each student who is a beneficiary of the government‘s or organization‘s sponsorship program. this is considered a vital aspect of the management of the scholarship scheme since the quality of output of the beneficiaries sponsored by government is largely determined by their academic performances at their various universities and colleges. meeting the objectives of the funding scheme, for the benefit of the larger society, from the perspective of the government or organization who instituted it is largely dependent on the quality of candidates selected for the public funding program. where transparency is lacking in the selection process at the selection stage, the best way to ensure quality would be to put mechanisms in place to find out and assess how the selected and sponsored candidates are performing in their various institutions of learning. this will be aimed at eliminating waste (allan, 1997 cited in elmuti & kathawala, 1997) by weeding out poor quality beneficiaries and saving resources that could be channeled to other areas of usage for the benefit of the larger society. this approach could be mostly effective with regard to undergraduate students who are under the government‘s or organization‘s sponsorship and whose study programs take as much as four years of sponsorship. the method that was proposed in this paper for achieving that goal is to benchmark student performance against those of other students of the same country who are studying at the same institution of higher learning as private students, regardless of what part of that country the benchmark student partner comes from. this entailed developing a performance assessment plan. 3.1.1.2 the performance assessment plan: the performance assessment plan developed here was derived from the principles of benchmarking (see section 2.2) as a management tool for continuous improvement (lee et al., 2006). the plan follows the benchmarking models put forward by bhutta & huq (1999) and elmuti & kathawala (1997), with necessary adaptation to suit the purpose of this study. in essence, the performance assessment plan developed here is a combination of these two models, with the basic principles www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 16 published by scholink inc. retained. the plan incorporates the following steps: 1) determining what to benchmark: employing the integrated benchmarking matrix (leibfried & mcnair, 1992 as cited in bhutta & huq, 1999), the benchmarking combination type that is needed to carry out the benchmarking study would be performance-competitor combination type. decisions have to be made concerning what performance parameters should be used for the purpose. as already noted, the academic performance of each beneficiary is paramount. their exam and coursework scores are the variables to use. this stage will incorporate decisions on what would constitute the critical performance measures for the assessment. this involves deciding the minimum average scores that must be met and surpassed (elmuti & kathawala, 1997). 2) forming the benchmarking team: this would involve looking into the scholarship board to select individuals with strength of character and confidence, with good communication skills and bringing them together as a team to execute the benchmarking study. they could come from any section of the board. the selected team would be divided into three sub-teams made up of: a) the lead team who would ensure focus and commitment to the process b) the preparation team who would do the detailed analysis of the data/information collected for the benchmarking exercise, and c) the visit team who would carry out the actual visits to the various overseas universities and colleges where the government‘s or organization‘s scholarship beneficiaries are studying. 3) identifying the benchmarking partners: since the sponsorship board already knows the various universities and colleges where the beneficiaries are studying, this stage would involve communicating with the institutions to notify them of the exercise. a formal request would then be made detailing the type of information needed in the benchmarking study in line with the decisions reached in stage one. 4) collecting and analyzing data/information: what is needed here is to first collect information with regard to the exam and coursework performance scores of all the scholarship beneficiary students. this information needs to be grouped according to the institution, level of academic study (masters or undergraduate), and the program of study. the next step would involve collecting information on other students of that same country under the same grouping categories. this second group of students is regarded as the student benchmarking partners but all information relating to them has to be anonymous so as not to contravene data protection laws. 5) taking action: at this stage, the funding body needs to decide on what should be done in light of the results of the benchmarking data analysis, with a view to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 17 published by scholink inc. enhancing the academic performance and quality of the funding scheme‘s outputs or products. most importantly, whatever decision is taken for change implementation should be followed to the letter for effectiveness. the performance assessment plan outlined above is represented as a model in figure 4 below. figure 4. student performance assessment plan determine benchmarking combination type to use. decide performance parameters form the benchmarking team identify three sub-teams within the team collect exam and coursework performance data & sort them select the scheme‘s beneficiaries‘ performance data select student benchmarking partners‘ performance data measure performance measure performance compare performance decide actions to take for change decide critical performance measures take/implement action www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 18 published by scholink inc. 3.1.2 performance metrics for assessing the scheme and how the performance can be measured performance assessment at program level is discussed here in two stages. the first stage involves developing a model that is referred to as, nsiegbe performance assessment model for overseas scholarship schemes. the second stage involves the development of a mathematical formula for measuring the scheme‘s performance. the formula is referred to as, nsiegbe formula for scholarship schemes performance measurement. 3.1.2.1 the scheme‘s performance assessment model: performance assessment at program level relates to finding out how well the entire funding scheme is doing in terms of academic performance of the entire sponsored students. the assessment at this level therefore involves the integration of all levels of student performances in each institution and then extending this integration across all other universities and colleges where the sponsor‘s beneficiaries are studying. in other words, the scheme‘s performance is first determined at institutional level and then executed across all the applicable institutions in an integrative mathematical fashion. determining the performance of the scheme at the level of each institution employed a weighted average computation methodology to arrive at the applicable performance value for that particular institution. a simple average or mean value computation methodology was then applied to the entire values obtained for all the institutions to work out the mean value of the performance figure for the sponsorship scheme. a benchmark figure can be specified, below which the scheme can be said to be underperforming, thereby placing the responsibility on the funding body to reassess their internal selection processes at the candidate selection phase of the management process and then recalibrate to improve performance in line with elmuti & kathawala (1997). the process explained above is represented in a flowchart model as shown in figure 5 below: www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 19 published by scholink inc. figure 5. nsiegbe performance assessment model for overseas scholarship schemes 3.1.2.2 nsiegbe formula for scholarship schemes performance measurement: this section describes the derivation of the mathematical formula to be used for the computation of the performance of an overseas scholarship scheme. it is derived from the nsiegbe program performance assessment model shown in figure 5 above. it is necessary to explain the following features of figure 5: collect performance data of all the scholarship beneficiaries at the respective overseas institutions sort data according to grades a, b, c, d & f assign a representative/ fixed value to each grade compute weighted average of all grades for each institution compute mean value of the weighted averages of the scheme‘s performance for all institutions specify a benchmark value for the scheme‘s performance average determine the funding scheme‘s performance position relative to benchmark value below benchmark value: unsatisfactory; reassess beneficiary selection process, then recalibrate for future equal to or above benchmark value: scheme‘s performance is okay and satisfactory www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 20 published by scholink inc.  sorting the data: level 2 of the model requires the sorting of performance data collected from the respective overseas universities and colleges of the scholarship beneficiaries. the data is to be sorted according the five categories of a, b, c, d, and f as follows:  a = 70% and above  b = 60% 69%  c = 50% 59%  d = 40% 49%  f = 39% and below  assigning representative/fixed values to each category: category ‘a’: since this is the highest grade in all universities and colleges, the baseline of 70% was utilized as the representative value for this category. category ‘b’: the best representative value for this category was assumed to be the mid-value of 65% to account for that range of student performance scores. category ‘c’: similar to category ―b‖, a median of 55% was assumed to represent this range or category. category ‘d’: here, like in ‗b‘ and ―c‖, the median of the range was assumed as the representative value, at 45%. category ‘f’: as in category ―a‖, a baseline value was used as the representative value for this range but with a negative coefficient. since the highest student exam/coursework score that amounts to a ―fail‖ grade is 39%, this score was assumed as the representative value for the ―f‖ category. a negative coefficient was applied because failure amounts to a waste of resources. using the foregoing categorization of exam/coursework performance scores and the representative values, the following mathematical relationships were proposed: where, wψi = weighted average of all beneficiaries‘ grades at institution ―i‖ λai = number of beneficiaries scoring category ―a‖ at institution ―i‖ λbi = number of beneficiaries scoring category ―b‖ at institution ―i‖ λci = number of beneficiaries scoring category ―c‖ at institution ―i‖ λdi = number of beneficiaries scoring category ―d‖ at institution ―i‖ λfi = number of beneficiaries scoring category ―f‖ at institution ―i‖ wψi = λaia + λbib + λcic + λdid λfif λai + λbi + λci + λdi + λfi σ wψi www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 21 published by scholink inc. now, substituting the representative values of a, b, c, d and f, the weighted average of all beneficiaries‘ grades at institution ―i‖ is given by: this mathematical relationship represents the overseas scholarship scheme‘s performance at each university and college where beneficiaries of the scholarship scheme are studying for their degrees. measuring the overall performance of the scholarship scheme, therefore, can be done by computing the mean value of these weighted averages. the mathematical expression for this is given by: where, p = the scholarship scheme‘s performance measure γ = number of institutions–universities and colleges–where the scholarship beneficiaries are studying, and = sum of the weighted averages from all institutions where the beneficiaries are studying the scholarship scheme‘s performance measure will always be a fraction; so it is most appropriate to express it as a percentage as follows: this formula is known as the nsiegbe formula for scholarship schemes performance measurement, and can be used to assign a performance value to any wide scale student sponsorship scheme. however, a user who is not conversant with the logic behind the derivation of the weighted average, wψi, may have an uphill task using the formula in that form. it was thought necessary, therefore, to express a scholarship scheme‘s performance value in full format as: λai + λbi + λci + λdi + λfi wψi = 0.7λai + 0.65λbi + 0.55λci + 0.45λdi 0.39λfi p = γ p = γ x 100 % σ σ wψi σ wψi σ wψi p = % (λai + λbi + λci + λdi + λfi) wψi = (0.7λai + 0.65λbi + 0.55λci + 0.45λdi 0.39λfi) σ 100 γ www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 22 published by scholink inc. 4. discussion education policy and development economics are inextricably tied together. the developmental strides of countries like india and china in recent decades in the field of ict have shown that where the education policy is right, high and accelerated levels of development can be guaranteed. it is therefore understandable that many developing nations around the world–in a bid to attain modern and high level development in virtually every field of existence–have been committing huge resources toward the acquisition of top notch quality education for their citizens in the hope of bridging the gap between themselves and the developed economies. however, a great chunk of these financial resources goes into the support and development of higher education institutions while the sponsorship of individuals to acquire higher education is relatively negligible. this is true of most developing countries. for those developing countries who try, this paper has succeeded in providing them a few nuts and bolts to assist them manage their overseas scholarship programs as a matter of policy. among such outcomes of this study are the following: 1) the nsiegbe performance assessment model for overseas scholarship schemes 2) a performance measurement formula known as, the nsiegbe formula for scholarship schemes performance measurement 3) a student performance assessment plan. these outcomes can also be useful to those international organizations who run overseas scholarship schemes for candidates from developing countries. in this drive, it is very important that the funding bodies and organizations develop the will and commitment to improve their internal processes for selection and assessment of candidates for the scholarship schemes. and, finally, this paper has also opened up a new vista of opportunities for research by scholars in the domain area. future work should involve collection of quantitative data and their practical application to the outcomes of this paper for verification, because knowledge is incremental in nature. references ahmad, m. 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(2021). retrieved january 2, 2022, from https://datahelpdesk.worldbank.org/knowledgebase/articles/906519 https://doi.org/10.1108/08880450110398681 https://doi.org/10.1108/09513540210422219 https://doi.org/10.3102/0162373720953128 https://doi.org/10.2307/258934 http://web.ebscohost.com/ehost/detail?vid=6&hid=19&sid=2237ad84-e4c9-4fea-bb2a-351486196892%40sessionmgr13&bdata=jnnpdgu9zwhvc3qtbgl2zq%3d%3d#db=bth&an=9412271805 http://web.ebscohost.com/ehost/detail?vid=6&hid=19&sid=2237ad84-e4c9-4fea-bb2a-351486196892%40sessionmgr13&bdata=jnnpdgu9zwhvc3qtbgl2zq%3d%3d#db=bth&an=9412271805 https://doi.org/10.1080/13538320308158 https://doi.org/10.1080/13538320802011532 http://www.clevelandfed.org/research/edconf2004/nov/pdf/topel.pdf http://www.clevelandfed.org/research/conferences/2004/november/pdf/topel.pdf https://doi.org/10.1177/0895904818802118 https://doi.org/10.1007/978-0-230-36494-3 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 27 published by scholink inc. appendix table 1. end notes s/no. description 1. figure 1: types of benchmarking (integrated matrix format) source: adapted from leibfried & mcnair (1992) as cited in bhutta & huq (1999) 2. figure 2: the benchmarking wheel–the 5 stages of the benchmarking process source: adapted from bhutta & huq (1999) 3. figure 3: a nine-step benchmarking model source: adapted from elmuti & kathawala (1997) 4. figure 4: student performance assessment plan source: lasbrey n. d. nsiegbe 5. figure 5: nsiegbe performance assessment model for overseas scholarship schemes source: lasbrey n. d. nsiegbe economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 99 original paper innovative practices and future directions of antitrust in online “live streaming sales” wensong wang 1 1 public security branch, gansu university of political science and law, lanzhou, gansu, china received: august 10, 2024 accepted: august 25, 2024 online published: august 27, 2024 doi:10.22158/elp.v7n2p99 url: http://dx.doi.org/10.22158/elp.v7n2p99 abstract online “live streaming sales”, as an emerging platform economic model, exhibits significant differences in economic characteristics compared to traditional industries. therefore, unique strategies distinct from those applied to traditional industries should be adopted in antitrust governance within the realm of online “live streaming sales”. china has implemented innovative practices from multiple perspectives, including legislation and law enforcement. however, the rapid advancement of antitrust regulation in online “live streaming sales” through administrative means poses challenges related to high economic costs, necessitating the establishment of a long-term regulatory mechanism centered on innovation-driven development. the key to achieving long-term regulation lies in ensuring the legalization of antitrust supervision, specifically involving the construction of a scientific and stable policy framework for antitrust regulation, the improvement of a legalized antitrust law enforcement system, the enhancement of the systematic and effective guidance for antitrust compliance, and the promotion of innovative practices in antitrust law enforcement policies. these measures will effectively maintain a fair competition order in the market and promote the healthy and sustainable development of the digital economy. keywords online “live streaming sales”, live streaming e-commerce economy, platform economy, antitrust, innovative practices 1. introduction with the rise of the live-streaming e-commerce economy, it has not only provided consumers with a wide range of products at competitive prices but also facilitated flexible employment and promoted the healthy development of the macroeconomy (junic, nianwen & ian, 2023, p. 959). however, unfair competition practices such as “monopoly low pricing” and “choose one of two” in online www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 100 published by scholink inc. “live-streaming sales” have gradually emerged, disrupting the order of fair market competition. in the digital economy system, large digital platforms, as market leaders, not only hold significant market shares but also demonstrate cross-market ecosystem integration and control capabilities leveraging data and algorithms. these platforms may rely on their strong market influence and data-driven, intelligent algorithm-based operating models to adopt a series of strategic behaviors that weaken fair market competition, posing challenges to the healthy development of the digital economy market (wei, hao & zhong, 2023, p. 502). therefore, in recent years, strengthening antitrust supervision over large digital platforms and enhancing the effectiveness of antitrust supervision targeting the emerging digital economy sector of “live-streaming sales” have become the strategic focus and development trend of digital economy governance in countries worldwide. china has also embarked on comprehensive and deep practical exploration in the field of antitrust in online “live-streaming sales”. in december 2020, china explicitly proposed, for the first time, strategic plans to strengthen antitrust policies and prevent unordered capital expansion, marking a new era in antitrust supervision of online “live-streaming sales” in china. this series of strategic initiatives covers multiple dimensions, from improving the antitrust legal and regulatory framework, strengthening law enforcement, to optimizing the antitrust law enforcement system, and innovating antitrust policy tools. in practice, china’s antitrust supervision in online “live-streaming sales” not only investigates and handles major illegal cases but also conducts deep governance of monopoly issues in large digital platforms through special rectification measures, aiming to reconstruct a fair and orderly competitive order in the digital market. therefore, systematically analyzing and evaluating china’s practical experience in antitrust enforcement in the realm of online “live streaming sales” and exploring future development paths for this sector’s antitrust regime hold significant theoretical and practical value in enhancing the effectiveness of antitrust regulation and advancing the modernization of china’s antitrust regulatory system and capabilities. 2. innovative practices in antitrust legislation in response to the antitrust challenges posed by online “live streaming sales”, the antimonopoly law of the people’s republic of china (hereinafter referred to as the “antimonopoly law”), enacted in 2007, has revealed limitations and inadequacies in its applicability, specificity, and consideration of the unique attributes of the live streaming e-commerce economy when addressing new forms and types of monopolistic behaviors in this sector. consequently, amendments and enhancements are urgently needed to enhance the effectiveness and targeted nature of antitrust enforcement. as a typical manifestation of the platform economy, the live streaming e-commerce economy represented by online “live streaming sales” has prominently exposed monopoly issues. therefore, in february 2021, the anti-monopoly guidelines for the platform economy (hereinafter referred to as the “platform economy anti-monopoly guidelines”) issued by the state council anti-monopoly commission addressed key difficulties encountered in antitrust practices in the live streaming e-commerce economy. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 101 published by scholink inc. in june 2022, the newly revised antimonopoly law of the people’s republic of china (hereinafter referred to as the “new antimonopoly law”) explicitly stipulated in article 9 that “business operators shall not use data, algorithms, technology, capital advantages, or platform rules to engage in monopolistic behaviors prohibited by this law”. this provision provides a principled framework and direction for addressing prominent legal issues in antitrust regulation for online “live streaming sales”. subsequently, the state administration for market regulation revised and issued a series of supporting regulations, providing more detailed rules to unify antitrust enforcement standards and strengthen the operability and enforceability of laws and regulations. overall, china’s innovative practices in antitrust legislation for online “live streaming sales” are mainly manifested in the following aspects. 2.1 diversified legislative objectives facilitating innovative practices the new antimonopoly law incorporates “encouraging innovation” into the core scope of its legislative objectives for the first time, further deepening and broadening the connotation of antitrust law’s legislative goals. academic circles hold divergent views on this matter. some scholars advocate that antitrust laws should actively adapt to the dynamic evolution of competition patterns in the digital economy era, gradually shifting from traditional static efficiency and price regulation to a greater emphasis on dynamic efficiency optimization and the design and construction of innovation incentive mechanisms. conversely, other scholars maintain a cautious stance regarding the explicit emphasis on “encouraging innovation” in the legislative objectives of antitrust laws, arguing that the fundamental purpose of antitrust laws is to curb market monopolies and maintain market competition order. directly incorporating “encouraging innovation” as an antitrust legislative goal may lead to conflicts of priority between “maintaining competition” and “promoting innovation” in actual implementation (mohammad, masnun, kabir & shamim, 2024, p. 102497). the controversy surrounding the inclusion of “encouraging innovation” in the legislative objectives of the new antimonopoly law essentially focuses on how to properly handle the relationship between competition and innovation. in the digital economy market environment, innovation is both the source of market competition and the embodiment of its outcomes. competition in the digital economy market is inherently a dynamic process based on innovation, where innovation serves as a crucial driver for breaking down corporate monopoly barriers and empowering innovative participants to effectively participate in market competition. innovation plays a vital role in shaping market competition patterns, and safeguarding innovation is synonymous with safeguarding the vitality of market competition itself. innovation can significantly improve operators’ production efficiency and enhance consumer welfare by offering more innovative and superior products (jan & maria, 2017, pp. 103-107). from a long-term strategic perspective, innovation will continuously drive the country’s economy towards high-quality development, becoming a fundamental indicator for measuring market performance (lage, saiz & zarzuelo, 2022, pp. 1707-1723). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 102 published by scholink inc. therefore, the explicit inclusion of “encouraging innovation” in the legislative objectives of the new antimonopoly law clearly expresses the country’s policy orientation towards encouraging innovation, which is conducive to maintaining and developing a dynamic competitive market environment based on innovation, effectively advancing the implementation of the innovation-driven development strategy, and ultimately promoting the grand blueprint of achieving high-quality economic development in china. 2.2 strengthening the legal framework for merger control policies firstly, refining the merger notification system. as the primary barrier to antitrust scrutiny in m&a activities, the merger notification system faces unique challenges in the live e-commerce sector. given the sector’s distinctive characteristics, relying solely on traditional turnover thresholds as the basis for notification fails to fully capture the potential competitive risks arising from platform enterprise mergers, allowing some mergers to evade legal oversight by not meeting the turnover thresholds (first, 2023, pp. 334-367). to address this regulatory gap, article 26(2) of the new anti-monopoly law stipulates: “where a concentration of business operators does not meet the notification criteria prescribed by the state council, but there is evidence that it has or may have the effect of eliminating or restricting competition, the anti-monopoly law enforcement agency of the state council may require the business operators to make a notification”. this move aims to enhance flexibility and precision in regulating potentially anticompetitive mergers. furthermore, the state council’s provisions on the notification criteria for concentrations of business operators (draft for solicitation of comments for revision) have adjusted the notification criteria in a timely manner, raising the thresholds for turnover within china, combined turnover within china of both parties, and global combined turnover. notably, it mandates that mergers involving enterprises with domestic turnover exceeding rmb 100 billion be subject to antitrust review under certain conditions, effectively guarding against the potential threat of “killer acquisitions” by large digital platforms targeting startups and ensuring a fair and orderly market competition environment. secondly, including mergers involving variable interest entities (vies) within the scope of antitrust review. a key challenge in enforcing antitrust laws against m&a activities by digital platform enterprises in china is the prevalent use of vie structures by internet giants such as tencent, alibaba, and baidu. these structures involve offshore-registered entities that do not directly hold equity in domestic operating companies but exert control and management through contractual arrangements, thereby circumventing legal oversight. to this end, article 18 of the guidelines for the anti-monopoly regulation of the platform economy explicitly states that “concentrations of business operators involving vie structures fall within the scope of antitrust review for concentrations of business operators”. this measure helps prevent platform enterprises from evading notification obligations through vie structures. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 103 published by scholink inc. thirdly, establishing a classified and tiered review mechanism for corporate mergers. article 37 of the new anti-monopoly law establishes a “classified and tiered review system for concentrations of business operators”, whereby the anti-monopoly law enforcement agency of the state council authorizes local anti-monopoly law enforcement agencies to review m&a cases to optimize resource allocation and enhance review efficiency. however, supporting regulations have yet to be promulgated, and the specific content of classified review remains unclear. one view is that classified review might be based on industrial economic security, strengthening oversight over mergers in key industries. however, adhering to such industry importance criteria could increase uncertainty in merger reviews. internationally, antitrust reviews of corporate mergers generally adhere to the core criterion of “substantially impeding market competition”, often relying primarily on market structure as the basis for review. introducing additional considerations of industry importance on top of this could potentially challenge and undermine the core evaluation criteria of merger control policies. 2.3 strengthening the responsibility of live streaming platforms enhancing proactive supervision and clarifying the legal liabilities and behavioral norms of live streaming platforms constitute effective strategies universally adopted by the international community to address monopoly issues among large digital platforms. traditional antitrust enforcement primarily focuses on ex post intervention, but by then, the damage to market competition has already materialized, making it difficult to fully restore the original competitive landscape. given the bilateral market characteristics of the live streaming platform economy and the self-reinforcing mechanisms within enterprises, a “winner-takes-all” scenario frequently emerges in the market (hossain, akter, yanamandram & strong, 2024). relying solely on delayed ex post antitrust enforcement measures falls short of effectively repairing and safeguarding market competition order. therefore, in october 2021, the state administration for market regulation (samr) issued the “guidelines for internet platforms to fulfill their primary responsibilities (draft for public comments)” aimed at further regulating the business activities of internet platforms, shifting the focus of antitrust supervision from ex post correction to ex ante prevention, with the intention of containing potential monopolistic behaviors at their source. simultaneously, local governments in tianjin, beijing, and other regions have successively issued guidelines or codes for the compliance operations of platform enterprises, such as the “tianjin guidelines for antitrust compliance of business operators” released by the tianjin market regulatory committee in august 2021, and the “beijing guidelines for antitrust compliance in the platform economy (2021 edition)” jointly developed by the beijing market supervision and development research center and the competition law research center of china university of political science and law in december 2021. by establishing a system of accountability lists for corporate primary responsibilities, these documents have strengthened the guidance for antitrust compliance and effectively guided the compliant operations of platform enterprises. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 104 published by scholink inc. however, the “guidelines for internet platforms to fulfill their primary responsibilities (draft for public comments)” issued by the samr currently exhibits notable deficiencies and controversies, thus it has yet to be officially promulgated and implemented. meanwhile, the relevant policies enacted by various regions differ significantly in content. against the backdrop of nationwide operations by large digital platforms, the non-uniform requirements for platform primary responsibilities across regions have notably exacerbated the policy uncertainty faced by the development of the platform economy, thereby increasing the compliance cost burden for platform enterprises. 3. innovative practices in antitrust enforcement 3.1 improving the antitrust enforcement institution system to address the complexity and challenges of antitrust governance in the field of online “live streaming with product sales”, the new anti-monopoly law clarifies that the anti-monopoly enforcement agency under the state council is responsible for unified antitrust enforcement, marking the establishment of a specialized antitrust enforcement system in china and elevating its status within the administrative hierarchy. in november 2021, the state administration for market regulation (samr) established the “national anti-monopoly bureau” and further refined its internal functions, signifying the upgrade of the antitrust enforcement agency to a deputy ministerial-level unit with two functional departments: the first department of antitrust enforcement, primarily responsible for investigating and punishing monopolistic agreements and abuses of market dominance; and the second department of antitrust enforcement, focused on antitrust review and supervision of concentrations of undertakings. additionally, the new anti-monopoly law stipulates that the anti-monopoly enforcement agency under the state council may, as required by work needs, authorize corresponding agencies of provincial, autonomous region, and municipality people’s governments to be responsible for relevant antitrust enforcement work. this hierarchical authorization enforcement mechanism represents a significant institutional innovation in the relationship between central and local antitrust enforcement authorities, aimed at optimizing the allocation and utilization of antitrust enforcement resources, promoting efficient coordination and unified execution of antitrust enforcement nationwide, ensuring consistent and robust implementation of antitrust policies across regions, and thereby effectively regulating emerging business forms such as online “live streaming with product sales” and maintaining a fair competition order. 3.2 enhancing the enforcement capabilities of antitrust agencies in the face of increasingly complex antitrust tasks in the field of online “live streaming with product sales”, ensuring efficient enforcement necessitates the construction of a commensurate enforcement capability system. insufficient antitrust enforcement capabilities can lead to difficulties in timely identifying and effectively punishing corporate violations, inability to efficiently and accurately review a large number of mergers and acquisitions within statutory deadlines, and potential obstacles to in-depth exploration and systematic construction of the antitrust enforcement policy framework. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 105 published by scholink inc. therefore, article 11 of the new anti-monopoly law explicitly states: “the state shall improve the anti-monopoly rules and regulations, strengthen anti-monopoly supervision forces, enhance the modernization level of supervision capabilities and systems, strengthen anti-monopoly enforcement and judicial proceedings, fairly and efficiently adjudicate monopoly cases in accordance with the law, improve the mechanism for the connection between administrative law enforcement and judicial proceedings, and maintain a fair competition order”. the samr and local antitrust enforcement agencies at all levels have taken substantive measures such as expanding professional staffing and increasing special financial budgets to comprehensively enhance the effectiveness of antitrust administrative enforcement and effectively address the growing pressure of enforcement. in actual enforcement, market regulatory authorities actively integrate and utilize various innovative enforcement means, including compliance guidance, administrative interviews, notification and warnings, administrative penalties, and credit supervision, to improve the efficiency and effectiveness of antitrust enforcement work. meanwhile, for acts that hinder antitrust enforcement, regulatory authorities have further clarified specific punishment rules and procedures, thereby effectively safeguarding the effective implementation and enforcement of antitrust laws and ensuring the healthy and orderly development of online “live streaming with product sales” within the framework of the rule of law. 3.3 empowering antitrust regulation with big data in july 2015, the general office of the state council issued the “several opinions on strengthening the service and supervision of market entities using big data”, which explicitly outlined the establishment of a big data-driven regulatory model to enhance in-process and post-event supervision of market entities. integrating big data technology into the antitrust regulatory system can effectively prevent and combat “hidden” monopolistic behaviors, significantly enhancing the efficiency and precision of antitrust regulatory efforts. in december 2021, china established the competition policy and big data center under the state administration for market regulation (samr), a department-level public institution directly under samr. its core functions encompass conducting cutting-edge research on antitrust policy theories, providing robust technical support for antitrust enforcement, and undertaking crucial tasks such as market dynamic monitoring, electronic evidence preservation, and deep big data analysis. this strategic move signifies a significant breakthrough in china's pursuit of intelligent regulation and digital transformation, marking a milestone in further refining its antitrust governance system. 3.4 strengthening the synergistic connection between antitrust administration and judiciary for a long time, antitrust administrative enforcement has dominated the enforcement of antitrust laws. however, the new antitrust law further underscores the vital role of antitrust judiciary and aims to establish an efficient and collaborative framework for the implementation of antitrust laws, integrating administrative enforcement and judicial adjudication. article 11 of the new antitrust law explicitly stipulates the improvement of the connection mechanism between administrative enforcement and the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 106 published by scholink inc. judiciary to uphold a fair competition order. in november 2022, the supreme people’s court issued the “provisions on several issues concerning the application of law in the trial of civil monopoly disputes (exposure draft for public consultation)”, which provides more detailed and comprehensive regulations on specific issues related to antitrust judicial review. the introduction of the civil public interest litigation mechanism alleviates, to a certain extent, the high costs and difficulties in evidence presentation faced by individual operators or consumers when initiating antitrust lawsuits, thereby vigorously promoting a dual-track implementation pattern where antitrust administrative enforcement and judicial review run parallel, complement each other, and reinforce each other’s effectiveness, ensuring the effective implementation of antitrust laws and the just maintenance of the market competition environment. 4. the future path of antitrust regulation in january 2023, the national market supervision and regulation work conference emphasized enhancing routine supervision standards, aiming to foster a normative, healthy, and sustainable development of the platform economy. by striking a balance between regulation and development, routine supervision has been established as the new benchmark for antitrust oversight in the platform economy. however, the pressing challenge remains in constructing effective institutional safeguards to ensure the effective implementation of routine supervision. consequently, achieving routine antitrust regulation is paramount in the modernization of platform economy antitrust supervision. this necessitates safeguarding market competition order through scientific and reasonable means, fostering innovation and healthy development in the live-streaming e-commerce economy, preventing undue interference in innovative activities, and mitigating socio-economic costs stemming from inadequate or excessive regulation. by reducing the risk of policy missteps, the modernization of regulatory transformation can be achieved. fundamentally, routine supervision embodies the concept of legalizing antitrust regulation (khan, zeng, knight, rajwani & pattnaik, 2023). on this basis, it becomes imperative to explore the future path of antitrust regulation for china’s online “live-streaming e-commerce” sector. 4.1 establishing a scientific and stable antitrust regulatory policy framework firstly, strengthen legislation to enhance the predictability and certainty of antitrust laws. given that the new antitrust law’s provisions on online “live-streaming e-commerce” antitrust are relatively abstract and principled, it is imperative to gradually formulate detailed legal implementation rules to ensure that platform enterprises can clearly distinguish between legitimate competitive behaviors and illegal restrictive competitive practices. specifically, this requires clarifying methods for assessing the competitive effects of monopolistic behaviors leveraging data, algorithms, and technology, establishing standards for quantifying the impact of innovation harm and intellectual property abuse, and outlining guidelines for reviewing the competitive damage caused by digital platform mergers and acquisitions. therefore, it is necessary to issue normative documents that explicitly define basic principles, market www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 107 published by scholink inc. structure control standards, review procedures, and theoretical bases for competitive harm, thereby enhancing enterprises’ ability to self-assess compliance risks and ensuring strict adherence to laws and regulations in m&a activities. secondly, clarify the boundaries between the new antitrust law and other relevant laws to avoid potential conflicts. as online “live-streaming e-commerce” antitrust involves multiple intersecting fields, it is crucial to scientifically position the functions of antitrust supervision, prioritize balance and coordination among multiple objectives, and prevent conflicts between different regulatory goals. for behaviors such as “monopoly pricing” and “exclusive choice” driven by big data, antitrust enforcement typically relies on case-by-case analysis and the principle of reasonable presumption, exercising prudent judgment against enterprises with market dominance. to eliminate legal risks, increased compliance costs, and diminished authority of the antitrust law arising from regulatory inconsistencies, it is imperative to strengthen the integrity and coordination of legislation. this includes establishing a dedicated department for comprehensive review of antitrust legislation related to online “live-streaming e-commerce”, systematically sorting out and integrating relevant legal provisions, effectively resolving consistency issues among regulations, and ensuring organic cohesion and synergistic effects between the antitrust law and other relevant laws in regulating digital economic activities. thirdly, establish the core position of antitrust enforcement agencies in the antitrust supervision of online “live-streaming e-commerce”. given that antitrust enforcement heavily relies on detailed economic fact analysis and rigorous economic theory in individual cases, requiring independent and impartial application of professional enforcement rules to adjudicate cases, china’s antitrust supervision in the live-streaming e-commerce economy should emphasize the professional authority and central functional role of antitrust enforcement agencies. the current phenomenon of multiple departments participating in platform economy antitrust supervision, such as the joint issuance of the “opinions on promoting the normative, healthy, and sustainable development of the platform economy” by nine departments including the national development and reform commission, as well as the people’s bank of china’s involvement in payment market antitrust and the ministry of industry and information technology’s rectification of platform blocking behaviors, may to some extent undermine the authority and unity of supervision, thereby affecting the consistent implementation and enforcement of the basic principles of the new antitrust law. therefore, it is urgent to establish a routine single antitrust administrative enforcement mechanism, granting independent regulatory authority to antitrust enforcement agencies. other relevant departments should promptly report illegal clues and actively cooperate with antitrust enforcement investigations, forming a coordinated and interconnected regulatory system. fourthly, it is essential to highlight the professional nature of antitrust supervision in the context of live e-commerce streaming. the rationalization of antitrust enforcement is a crucial condition for ensuring its scientificity and predictability. as a highly specialized enforcement activity, antitrust lawmaking www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 108 published by scholink inc. and enforcement must adhere to the same core principles and fair, scientific procedures, ensuring consistency in the internal logic of antitrust enforcement and embodying the spirit of “rationalism”. antitrust supervision must maintain its professionalism and independence, remaining unaffected by irrational factors in public opinion and steadfastly upholding the fundamental goal of safeguarding market competition mechanisms. antitrust enforcement agencies should focus on the fundamental task of preserving market competition, strictly exercising their antitrust regulatory functions within the scope authorized by national laws, and preventing the expansion and overreach of responsibilities. for instance, the state administration for market regulation should reasonably delineate the relationship between market supervision and antitrust supervision, avoiding the direct application of general market supervision methods to antitrust enforcement work, which is inherently professional, thereby ensuring the precision and effectiveness of antitrust enforcement. 4.2 perfecting the legalized antitrust enforcement system to ensure the scientificity and fairness of antitrust enforcement, procedural justice stands as an indispensable core element. given that antitrust administrative enforcement essentially entails the exercise of administrative discretion, which carries the potential for abuse, due process serves as a crucial institutional design aimed at preventing arbitrary exercise of administrative power through explicit rule constraints and checks and balances mechanisms. this, in turn, effectively safeguards the legitimate rights and interests of the parties involved and strives to foster a fair and orderly competitive environment. procedural justice not only plays a fundamental role in fully protecting the rights and interests of parties but also profoundly embodies the fundamental value orientation and spiritual connotation of antitrust law. furthermore, it is instrumental in effectively advocating competition policies and promoting corporate compliance. consequently, adhering to the principle of legalization, it is imperative to systematically standardize and improve the administrative procedures for antitrust supervision, with the goal of establishing an antitrust administrative procedure system that conforms to international standards while accommodating china’s national conditions. this endeavor seeks to maximize transparency, participation, and predictability in the process of antitrust enforcement, thereby vigorously safeguarding market competition order and promoting the healthy development of the economy. firstly, it is crucial to establish an ex ante regulatory impact assessment mechanism. regulatory impact assessment (ria) serves as a vital policy tool for governments to implement high-quality regulation. it systematically quantifies and analyzes the economic costs and social benefits of existing or proposed regulatory policies, comprehensively evaluates their potential positive and negative impacts, and compares alternative options through cost-benefit analysis to provide a scientific basis for decision-making. this assessment mechanism not only plays an analytical role in delving into the internal mechanisms of regulatory effects but also serves as an essential strategic means to achieve the integration and optimization of the policy process and coordinate diverse interest demands. experience from oecd member countries suggests that conducting ria within an appropriate institutional www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 109 published by scholink inc. framework can significantly enhance the effectiveness of government regulation, ensuring that the regulatory system maintains the timeliness, effectiveness, and relevance of policies amidst complex and ever-changing socio-economic environments. to this end, china should, through legislative channels, explicitly stipulate that the formulation and implementation of all antitrust regulatory policies must strictly follow the ria process. simultaneously, it should actively promote and establish public participation mechanisms, with the aim of realizing the scientific, democratic, and legalized formulation of antitrust regulatory policies by fully drawing on the wisdom of all parties. secondly, it is imperative to improve the ex post regulatory performance evaluation system. as a core component of modern government regulatory systems, government regulatory performance evaluation holds profound significance for ensuring regulatory effectiveness, advancing the construction of a government under the rule of law, and promoting the modernization of national governance systems and capabilities. currently, china’s government regulatory performance evaluation system has yet to undergo institutional and legal transformation, lacking specialized laws and regulations that explicitly define regulatory performance evaluation. this has led to significant arbitrariness and inadequate continuity in the evaluation process, thereby weakening the incentive and restraint effects of regulatory performance evaluation on regulatory agencies. in light of this, the country urgently needs to introduce relevant laws to clarify the legal status of government regulatory performance evaluation, promote its institutionalization and legalization, establish a diversified evaluation subject system that suits china’s national conditions, construct a sound evaluation index system for regulatory performance, strengthen the accountability application mechanism for evaluation results, enhance evaluation transparency, and facilitate effective public participation. thirdly, establish an antitrust defense procedure. as an indispensable procedural regulation in the antitrust legal system, the antitrust defense system’s core purpose lies in safeguarding the defense rights of enterprises involved in cases, standardizing the review procedures of antitrust enforcement agencies, ensuring the fairness of antitrust rulings, and effectively reducing the risk of misjudgment. internationally, defense procedures are widely regarded as a crucial institutional design and are explicitly guaranteed through antitrust-related laws and regulations. although china’s “antimonopoly law” and related supporting regulations require consideration of the element of “without justifiable reasons” when determining abuse of market dominance and mergers and acquisitions, due to the lack of an institutional safeguard mechanism, this requirement remains at the discretion of enforcement agencies rather than being formally established as a defense procedure. since the implementation of the “antimonopoly law”, antitrust rulings often exhibit finality, leading to inadequate protection of the defense rights of enterprises involved. therefore, to uphold procedural justice in antitrust enforcement, it is imperative to establish, through legislative means, an antitrust defense system with chinese characteristics that effectively safeguards the rights of enterprises involved to raise objections and mount reasonable defenses, thereby enhancing the overall fairness of antitrust enforcement. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 110 published by scholink inc. 4.3 enhancing the systematic and effective guidance of antitrust compliance firstly, strengthen the guiding role of the antitrust law. reinforcing the leadership of the antitrust law is vital for preserving market competition mechanisms, which not only concerns consumer welfare but also profoundly impacts society’s overall wellbeing. the implementation of the antitrust law does not merely focus on subsequent punishment for violations but aims to deter and warn enterprises through clear legal norms and enforcement of typical cases, thereby guiding them towards compliant operations. given the limited administrative resources for antitrust enforcement, the number of enforcement cases and fines are not the sole criteria for assessing effectiveness. rather, whether enterprises fully achieve compliant operations serves as the core indicator. to enhance the guiding role of the antitrust law, promote enterprise compliance, and standardize market competition order, modernizing antitrust regulation is paramount. strategies such as market analysis, issuing legal and compliance guidelines, and implementing competition advocacy should be leveraged to more effectively guide corporate behavior. currently, administrative interviews and guidance meetings, due to their uncertainty and potential for excessive discretion by enforcement agencies, should not serve as routine regulatory tools or enforceable measures, but rather require rigorous administrative legislation for standardization. drawing on international successes, china should gradually shift from a punishment-centric enforcement model to one that emphasizes the compliance service functions of antitrust authorities, particularly for emerging live-streaming e-commerce digital platforms, by providing necessary guidance on compliant operations and establishing cooperative regulatory mechanisms between antitrust authorities and such platforms. secondly, establish a scientific preemptive antitrust regulatory system. strengthening preemptive antitrust regulation is a core measure to enhance the effectiveness of antitrust in the digital economy, with a focus on clarifying the primary responsibilities of gatekeeper platforms. firstly, the allocation of platform responsibilities should adhere to the principle of proportionality to avoid excessive compliance costs. secondly, differentiated and tiered regulation should be implemented for the core businesses of gatekeeper platforms, with relevant regulatory details expedited to clarify identification criteria and tiered responsibilities. thirdly, drawing on eu and us experiences, the fundamental objective of preemptive antitrust regulation is to maintain market competition, with the primary focus on establishing behavioral rules for platforms, clearly defining prohibited and mandatory actions. however, the “draft guidelines on implementing the principal responsibilities of internet platforms” imposes a series of responsibilities on live-streaming e-commerce platforms that exceed the basic positioning and authority of antitrust enforcement agencies, leading to unclear positioning, ambiguous responsibilities, and lack of operability. this exacerbates policy uncertainty, increases compliance costs for live-streaming e-commerce platforms, and contradicts the need for a stable and predictable policy environment conducive to their innovative development. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 111 published by scholink inc. thirdly, reasonably set the duration of antitrust enforcement to provide sufficient time for enterprises to undertake compliance rectifications. antitrust regulatory policies should grant live-streaming e-commerce enterprises ample buffer periods for compliance rectifications. for instance, the eu’s digital markets act offers gatekeeper platforms a four-year compliance transition period. in contrast, china’s antitrust regulation of “live-streaming e-commerce” primarily adopts special rectification measures, requiring enterprises to meet rectification requirements within a relatively short timeframe. for example, in april 2021, the state administration for market regulation, in conjunction with the cyberspace administration of china and the state taxation administration, convened an administrative guidance meeting for internet platform enterprises, mandating comprehensive rectifications within one month. given that the business ecosystem of live-streaming e-commerce digital platforms is a complex system formed through years of investment and development by numerous entities, core platforms often need to make significant adjustments to their strategic plans, business layouts, and ecosystem rules to meet government rectification requirements. the short rectification deadlines set by the aforementioned regulatory authorities fail to provide sufficient self-rectification buffer periods for live-streaming e-commerce enterprises, resulting in substantial rectification costs and hindering the stable development of the live-streaming e-commerce economy. therefore, it is imperative to genuinely alter this approach of mandatory short-term compliance and instead establish clear rules in advance, granting live-streaming e-commerce enterprises reasonable rectification timelines. this will encourage enterprises to gradually achieve compliance through dynamic rectification processes. 4.4 promoting innovative practices in antitrust enforcement policies firstly, establish a new paradigm for antitrust competition harm theories in the context of online “live-streaming e-commerce”. given the unique competitive dynamics of the digital economy, traditional theoretical frameworks for assessing the illegality and competitive harm of specific monopolistic behaviors exhibit limitations in the current context, leading to significant uncertainty in the enforcement and review of antitrust cases involving online “live-streaming e-commerce”. consequently, the primary task is to rigorously define the concept of “harm to innovation”. in light of the dynamic nature of the innovation process, it is crucial to accurately quantify and assess the impact of specific monopolistic behaviors on competition, particularly when they may create market blockades for potential innovative competitors. this necessitates precise judgments of competitive harm to avoid mischaracterizing behaviors that benefit innovation as those that stifle it. secondly, establish review standards for data monopoly harm. strategic actions by digital platforms in live-streaming e-commerce are often closely tied to big data analysis. while data concentration may yield significant efficiency gains, it can also exacerbate market entry barriers or lead to privacy violations. therefore, it is essential to clearly distinguish the legal boundaries of data monopolies and determine whether privacy violations should serve as a crucial basis for judging illegal activities. furthermore, systematically articulate the theoretical foundations of ecological monopoly harm. faced with the prevalent phenomenon of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 112 published by scholink inc. cross-border operations among live-streaming e-commerce platforms, accurately identifying their multi-market ecological control and balancing efficiency effects with anti-competitive effects require further clarification. lastly, improve the review rules system for “killer acquisitions”. these acquisitions often target innovative startups or potential competitors rather than direct rivals, posing challenges in accurately assessing their significant harm to innovation and increasing uncertainty in merger review policies. in summary, addressing these complex issues necessitates not only delving into the frontiers of antitrust theory in the digital economy but also actively drawing on international best practices, while integrating them with china’s domestic antitrust enforcement context to achieve dual breakthroughs in theoretical innovation and practical optimization. secondly, explore innovative paths for antitrust remedies targeting new monopolistic behaviors involving data and algorithms. the most prominent challenge in antitrust enforcement for online “live-streaming e-commerce” stems from novel market dominance behaviors arising from the intertwining of data and algorithms. as live-streaming e-commerce platform enterprises widely employ big data and artificial intelligence (ai) for business decisions, often exhibiting high efficiency, traditional antitrust enforcement tools like direct injunctions and financial penalties may fall short when they leverage these technologies for potential monopolistic behaviors. thus, it is imperative to explore and establish a new antitrust remedy policy system tailored to the characteristics of the data and algorithm era. the primary strategy is to strengthen antitrust regulation in the data and algorithm sectors, establish a “competition neutrality principle” for algorithm design and application, and create an authoritative algorithm certification mechanism to ensure that only rigorously certified algorithms proven not to have anti-competitive effects are put into operation. simultaneously, clarify the primary responsibility of algorithm users to maintain market competition order during algorithm application and enhance the transparency of algorithm decision-making processes, effectively safeguarding consumers’ right to know and choose. secondly, pioneer new modes of data antitrust remedies. to prevent the emergence of data-driven monopolies, antitrust enforcement agencies could consider innovative remedies such as data portability policies, data interoperability policies, mandatory data access, and data firewalls. however, in implementing these data and algorithm antitrust remedies, it is crucial to fully consider their impact on technological innovation and market vitality. through thorough policy impact assessments, clarify the specific contexts for applying various policies and refine their design and execution based on specific cases, achieving a dual balance between antitrust objectives and fostering innovation and development. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 113 published by scholink inc. 5. conclusion in the face of emerging monopolistic behaviors in the digital economy era, china’s antitrust regulatory mechanism urgently needs to adapt to the demands of the times, continuously innovating and improving. by establishing a scientific and stable antitrust regulatory policy framework, refining a legalized antitrust enforcement system, enhancing the systematicness and effectiveness of antitrust compliance guidance, and promoting innovative practices in antitrust enforcement policies, we can provide a solid legal safeguard for the healthy development of digital platform economies such as “live streaming e-commerce”. in the future, as relevant laws, regulations, and regulatory practices continue to enrich and improve, china’s antitrust regulation will become more scientific and rational, effectively promoting the healthy functioning of market competition mechanisms, safeguarding consumer rights, and driving comprehensive economic and social development. references first, h. (2023). merger policy for a platform economy. zeitschrift für wettbewerbsrecht, (4), 334-367. https://doi.org/10.15375/zwer-2023-0404 hossain, m. a., akter, s., yanamandram, v., & strong, c. (2024). navigating the platform economy: crafting a customer analytics capability instrument. journal of business research. https://doi.org/10.1016/j.jbusres.2023.114260 jan, d., & maria, j. (2017). the digital economy and its implications for labour. 1. the platform economy. transfer: european review of labour and research, (2), 103-107. https://doi.org/10.1177/1024258917701380 junic, k., nianwen, h., & ian, m. (2023). live commerce platforms: a new paradigm for e-commerce platform economy. journal of theoretical and applied electronic commerce research, (2), 959. https://doi.org/10.3390/jtaer18020049 khan, z., zeng, j., knight, g., rajwani, t., & pattnaik, c. (2023). non-market strategies and disruptive innovation in the platform economy. journal of international management, (5). https://doi.org/10.1016/j.intman.2023.101047 lage, o., saiz, s. m., & zarzuelo, j. m. (2022). decentralized platform economy: emerging blockchain-based decentralized platform business models. electronic markets, (3), 1707-1723. https://doi.org/10.1007/s12525-022-00586-4 mohammad, z., masnun, a. m., kabir, h., & shamim, a. k. (2024). platform economy deconstructed: intellectual bases and emerging ethical issues. research in international business and finance, 102497. https://doi.org/10.1016/j.ribaf.2024.102497 wei, z., hao, q., & zhong, j. l. (2023). control of the platform reserve army: the roles of the state and capital in china’s platform economy. science & society, (4), 502. https://doi.org/10.1521/siso.2023.87.4.502 https://doi.org/10.15375/zwer-2023-0404 https://doi.org/10.1016/j.jbusres.2023.114260 https://doi.org/10.1177/1024258917701380 https://doi.org/10.3390/jtaer18020049 https://doi.org/10.1016/j.intman.2023.101047 https://doi.org/10.1007/s12525-022-00586-4 https://doi.org/10.1016/j.ribaf.2024.102497 https://doi.org/10.1521/siso.2023.87.4.502 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 3, 2023 www.scholink.org/ojs/index.php/elp 27 original paper financial risk and governance nexus in nepalese cooperative societies gyanendra prasad paudel 1 1 national college, tribhuvan university, nepal received: october 5, 2023 accepted: october 25, 2023 online published: november 30, 2023 doi:10.22158/elp.v6n3p27 url: http://dx.doi.org/10.22158/elp.v6n3p27 abstract this study aims to investigate the relationships between credit default risk, leverage risk, liquidity risk, and investment risk and their connection to the governance system of nepalese cooperative societies. the research hypothesis tries to explore that these financial risks are not significantly associated with the governance system of cooperatives. the findings reveal a significant connection between the governance system of cooperatives and credit default risk, leverage risk, and investment risk. however, liquidity risk does not demonstrate a substantial link with the governance system, suggesting the influence of additional factors. these results underscore the pivotal role of effective governance in mitigating financial risks within cooperative societies. interestingly, the lack of a significant connection between liquidity risk and the governance system implies that other factors are at play in influencing liquidity risk. these insights provide valuable guidance for policymakers and cooperative management, facilitating the enhancement of governance and risk management strategies, and ultimately contributing to the sustainability of cooperative societies in nepal. the evaluation involves a comprehensive analysis of financial risks and the governance system in nepalese cooperative societies, utilizing data from a sample of 126 cooperative societies in kathmandu. keywords governance system, credit default risk, leverage risk, liquidity risk, and investment risk www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 28 published by scholink inc. 1. introduction cooperatives in nepal have evolved within a distinctive and well-defined framework, characterized by the primacy of member participation in decision-making. this comprehensive exploration will delve into nepalese cooperative governance, highlighting the essential roles played by members, the board of directors, management, and employees in shaping the cooperative’s success and commitment to inclusivity. at the conceptual level, the cooperative model in nepal illustrates a form of collective action where individuals join together to achieve common minimum economic, social, and cultural objectives. it reflects cooperative norms that center on democratic decision-making, shared ownership, and equitable distribution of benefits. this conceptual foundation aligns with international cooperative principles while adapting to the specific social and economic contexts of nepal. within the nepalese context, cooperatives have emerged as vital institutions that address various economic and social challenges. they play a significant role in rural and urban settings, bridging gaps in financial services, agriculture, and other sectors. this contextual significance is underscored by the country’s unique socio-economic landscape, characterized by diverse ethnicities, geographical variations, and developmental needs. the historical cornerstone of cooperative movements in nepal traces back to early grassroots efforts to address economic disparities and empower marginalized communities. over time, these efforts culminated in a structured cooperative framework that aimed to promote self-sufficiency, financial inclusion, and community development. the cooperative sector has grown significantly from its inception, evolving in response to historical imperatives and changing economic paradigms. this study is driven to understand the relationships between credit default risk, leverage risk, liquidity risk, and investment risk concerning the governance system of nepalese cooperative societies. the primary aim is to explore whether there is a substantial correlation between these financial risks and the governance system. this inquiry arises from the recognition that effective governance is pivotal to the sustainability and prosperity of cooperatives. through an examination of how financial risks and governance interact, the research aims to illuminate both the strengths and possible weaknesses of the nepalese cooperative model. this understanding is crucial for policymakers, cooperative management, and members alike, as it can inform strategies to enhance governance and risk management, ensuring the continued success of cooperative societies in nepal. nepalese cooperatives serve as dynamic entities, driven by the active involvement of their members, prudent governance practices, and a faithful commitment to collective prosperity and inclusivity. this sequential breakdown emphasizes the integral role of each stakeholder in the cooperative’s achievements. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 29 published by scholink inc. drawing from the economic survey for the year 2022/23, as of mid-march 2023, the cooperative sector has achieved noteworthy milestones. it encompasses a total of 31,373 cooperatives, catering to the needs of 7,381,218 members. remarkably, this sector has played a pivotal role in creating direct employment opportunities for 93,771 individuals. in terms of its financial impact, the cooperative sector has made substantial contributions, accumulating a share capital of 94.15 billion rupees, collecting deposits totaling 478.03 billion rupees, and providing loans amounting to 426.35 billion rupees to their members. these statistics underscore the substantial role of cooperatives in nepal’s socio-economic landscape, affirming their significance at both the national and regional levels. 2. literature review the governance of cooperative societies in nepal constitutes a multifaceted and dynamic domain, as evidenced by a wealth of scholarly studies and insights. this literature review offers an in-depth exploration of significant findings and perspectives concerning cooperative governance in the nepalese context. it interplay between independent and dependent variables, emphasizing the relationship between these variables for the purpose of generalizing results to a wider context. multifaceted approach: paudel (2022) proposed approach to foster the development of the cooperative movement is characterized by several dimensions, including the promotion of cooperative-friendly policies, expansion into rural underserved areas, establishment of cooperatives as a cornerstone of national prosperity, reinforcement of cooperatives self-regulation, and the maintenance of good governance. this approach lays the groundwork for understanding the intricate relationships between these independent variables and their impact on the dependent variable, cooperative development. significance of accountability: ernst and young (2012) underscores the vital importance of accountability in cooperative governance. it highlights accountability as a pivotal independent variable that influences governance outcomes. weak oversight and control mechanisms are identified as barriers to effective governance, emphasizing the direct relationship between accountability practices and governance failures. holistic nature of governance systems: eckart (2009) conceptualization of governance systems as encompassing structures, processes, and dynamic interactions places emphasis on alignment with cooperative objectives, member interests, and core values in nepal. this definition underscores the interdependence of various elements within governance systems and their direct influence on the dependent variable, cooperative performance. adaptability in cooperative governance: novkovic et al. (2023) stress the adaptability of cooperative governance structures, highlighting their dependence on the organization’s purpose and member relationships. this adaptability is a crucial independent variable as it influences cooperative evolution while upholding democratic processes, signifying the need for flexibility and responsiveness in governance approaches. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 30 published by scholink inc. policy implementation and member participation: ekhorutomwen and peters (2021) & prakash (2004) underline the importance of policy implementation in nepal for strengthening cooperative systems. effective governance through regulation, networking, and innovative management is identified as influential independent variables in enhancing performance, benefitting members, and ensuring satisfaction. member participation, another independent variable, plays a pivotal role in governance, underlining the importance of policy and active member involvement. management, human resource quality, and adaptability: paudel (2021) & fairbairn et al. (2015) conclude that effective management, governance, and human resource quality are emphasized as independent variables that shape the evolution of the cooperative savings culture. capacity-building initiatives and adaptable governance practices further reinforce the interdependence of these variables with cooperative success. cooperative networks and governance: fairbairn et al. (2015) conclude that the value of cooperative networks in sharing collective knowledge for effective governance practices underscores the influence of these networks as an independent variable in cooperative governance. the nuanced nature of “good governance” highlights the context-specific and knowledge-sharing aspects that affect governance outcomes. agency problems, cooperative identity, and democratic control: brasil (2008), novkovic and miner (2015), birchall (2017) & cornforth (2004) delve into agency problems, distinctive features of cooperative identity, and the balance between representation and expertise in cooperative boards. these aspects, considered independent variables, influence governance outcomes through their impact on the alignment of interests and democratic principles. humanistic perspective on governance: novkovic and miner (2015), bager (1994), sacchetti & tortia (2016) introduce diversity and context-dependence as essential components of decision-making structures. human dignity and needs satisfaction emerge as pivotal independent variables influencing governance practices. the four pillars of cooperative governance model: this model provides a holistic framework that includes teaming, accountable empowerment, strategic leadership, and democracy, serving as independent variables applicable at all cooperative levels in nepal. member engagement and context-specific variables: novkovic et al. (2023) highlighted the significance of member engagement as an independent variable is emphasized, as is the influence of context-specific variables on various forms of “best cooperative governance”. these variables navigate the dynamic interplay between member expectations and external pressures, underlining the need for adaptive governance strategies. governance in financial cooperatives: brasil (2008) highlights the unique challenges and importance of governance in financial cooperatives as an influential independent variable. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 31 published by scholink inc. link between governance and performance: dayanandan and dagnachew (2015) conclude the vital connection between good governance and cooperative performance underscores the critical impact of governance as an independent variable on the dependent variable, cooperative success. empirical evidence: puri and bunchapattanasakda (2019) conclude that good governance exhibits a statistically significant and positive correlation with the financial performance of savings and credit cooperatives. the independent variables of participation, accountability, and transparency were also found to have not only statistically significant but also positive relationships with the financial performance of these cooperatives. this empirical evidence serves as a significant reference for generalizing the impact of governance components on cooperative financial success. policy implications: puri and bunchapattanasakda (2019) show the discovery of a significant relationship between participation, accountability, and transparency as pivotal components of good governance and cooperative performance carry direct policy implications for enhancing cooperative governance, particularly within local governments in nepal. in summary, cooperative governance in nepalese cooperative societies represents a dynamic and multifaceted field. this literature review underscores the importance of various independent variables such as adaptability, accountability, management, human resource quality, member engagement, and context-specific variables in shaping cooperative governance and, subsequently, cooperative success. the diverse insights and perspectives from these studies contribute to a comprehensive understanding of cooperative governance in the nepalese context and provide valuable reference points for generalizing results to a wider cooperative landscape. 3. methodology we collected secondary data from the annual audited financial statements of saving and credit cooperatives and multipurpose cooperatives operating in kathmandu, which serves as the capital city of the country. to account for the demographic and economic heterogeneity of the population, we employed stratified sampling, considering all of nepal as the target population. our sample consisted of 126 cooperatives selected from the kathmandu district, ensuring a diverse representation of the cooperative landscape. we conducted a multi-faceted analysis of the secondary data, utilizing descriptive analysis, correlation analysis, and regression analysis: the statistical analyses were carried out using spss 16.0 and stata se10 applications, providing a robust framework for data manipulation and analysis. furthermore, the organization of results and the tabulation of data were performed in ms excel 2007. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 32 published by scholink inc. 4. data analysis to assess the governance system of nepalese cooperative sectors independent correlation hypotheses i, ii, iii and iv have been tested as: hypothesis i: credit default risk is not significantly associated with the governance system of cooperatives. step i: conceptual framework default risk means debt or loan investment default risk. it is measured by exposure limit of personal guaranteed loan i.e., loan supplied without collateral (lpg). lpg is calculated from structured questionnaire survey, by assigning score as: what is single party exposure limit of personal guarantee loan in your cooperative? a. does not have any pg loan, score is 0 b. less than 0.1 million, score is 0.5 c. 0.2 to 0.5 million, score is 1.75 d. more than 0.5 million, score is 2.5 governance system is measured by % of member’s participation on board meeting (bmp). bmp is calculated from structured questionnaire survey, by assigning score as: what percentage of total board members usually participates in decision making process? a. 100%, score is 100 b. 66 99%, score is 66 c. 5166%, score is 51 d. less than 50%, score is 0 well governance system reduced the default risk. the expected output is therefore rejection of null hypothesis. step ii: setting up of hypothesis null hypothesis h0: ρ=0, i.e., population correlation coefficient is zero or there is no significant relationship between lpg and bmp. alternative hypothesis h1: ρ≠0, i.e., population correlation coefficient is not zero or there is a significant relationship between lpg and bmp. step iii: level of significance α=0.05 or 5%; degree of freedom df=n-2=126-2=124 step iv: test statistics table 1. correlation of lpg and bmp lpg bmp pearson correlation 0.211* signification (2-tailed) 0.018 n 126 note. *correlation is significant at the 0.05 level (2-tailed). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 33 published by scholink inc. t= = = 2.4037, where, r=correlation coefficient, n=no of observation. tcalculated = 2.4037 step v: critical value at df=124 and level of significant α=0.05 or 5%, t tabulated = 1.98 step vii: result since the absolute value of the calculated t score is greater than the absolute value of critical t score, null hypothesis h0 is rejected and alternative hypothesis h1 is accepted, i.e., as the theoretical assumption behind hypothesis testing, the population correlation coefficient is not zero that implies credit default risk is significantly associated to governance system of cooperatives. hypothesis ii: leverage risk is not significantly associated with the governance system of cooperatives. step i: conceptual framework. leverage risk means risk due to obligation or presence of debt in capital structure. this may cause default in firm’s operation due to lack of firm capacity to repay debt. it is measured by capital adequacy ratio (car). governance system is measured by % of member’s participation on board meeting (bmp). bmp is calculated from structured questionnaire survey, by assigning score as: what percentage of total board members usually participates in decision making process? a. 100%, score is 100 b. 66-99%, score is 66 c. 51-66%, score is 51 d. less than 50%, score is 0 well governance system optimizes the default risk. the expected output is therefore rejection of null. step ii: setting up of hypothesis null hypothesis h0: ρ=0, i.e., population correlation coefficient is zero or there is no significant relationship between car and bmp. alternative hypothesis h1:ρ≠0, i.e., population correlation coefficient is not zero or there is a significant relationship between car and bmp. step iii: level of significance α=0.05 or 5%; degree of freedom df=n-2=126-2=124 step iv: test statistics table 2. correlation of car and bmp lpg car pearson correlation -0.207* signification (2-tailed) 0.020 n 126 note. *correlation is significant at the 0.05 level (2-tailed). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 34 published by scholink inc. t= = = -2.356085, where, r=correlation coefficient, n=no of observation. tcalculated = -2.356085 step v: critical value at df=124 and level of significant α=0.05 or 5%, t tabulated=1.98 step vii: result since the absolute value of the calculated t score is greater than absolute value of critical t score, null hypothesis h0 is rejected and alternative hypothesis h1 is accepted, i.e., as theoretical assumption behind hypothesis testing, population correlation coefficient is not zero that implies leverage risk is significantly associated to governance system of cooperatives. hypothesis iii: liquidity risk is not significantly associated with the governance system of cooperatives. step i: conceptual framework. liquidity risk means risk of shortage of liquid assets or cash for short term periods such as shortage to pay the daily demand of depositors, etc. it is measured as liquid assets to total deposit (lr). the governance system is measured by the number of board meeting (nbm) per year. nbm is calculated from a structured questionnaire survey, by assigning scores as: how often did your cooperative society organize board meeting during the last one year period? a. monthly, score is 12 b. by monthly, score is 6 c. quarterly, score is 4 d. as per necessary, score is (12+6+4+0)/3=5.5 well governance system optimizes the liquidity risk. the expected output is therefore rejection of null hypothesis. step ii: setting up of hypothesis. null hypothesis h0: ρ=0, i.e., population correlation coefficient is zero or there is no significant relationship between lr and nbm. alternative hypothesis h1:ρ≠0, i.e., population correlation coefficient is not zero or there is a significant relationship between lr and nbm. step iii: level of significance α=0.05 or 5%; degree of freedom df=n-2=126-2=124 step iv: test statistics table 3. correlation of lr and nbm lpg lr pearson correlation -0.167 signification (2-tailed) 0.062 n 126 note. *correlation is significant at the 0.10 level (2-tailed). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 35 published by scholink inc. t= = =-1.89, where, r=correlation coefficient, n=no of observation. tcalculated =-1.89 step v: critical value at df=124 and level of significant α=0.05 or 5%, t tabulated=1.98 step vii: result since absolute value of calculated t score is less than absolute value of critical t score, null hypothesis h0 is accepted and alternative hypothesis h1 is rejected i.e. as against theoretical assumption behind hypothesis testing, population correlation coefficient is zero that implies liquidity risk is not significantly associated to governance system of cooperatives. hypothesis iv: investment risk is not significantly associated with the governance system of cooperatives. step i: conceptual framework. investment risk means risk due to the selection of a risky investment or loan. it causes credit default rates high. it is measured as net interest spread (spread). the governance system is measured by the number of board meetings (nbm) per year. nbm is calculated from a structured questionnaire survey, by assigning scores as: how often did your cooperative society organize board meetings during the last one year period? a. monthly, score is 12 b. by monthly, score is 6 c. quarterly, score is 4 d. as per necessary, score is (12+6+4+0)/3=5.5 well governance system optimizes the investment risk. the expected output is therefore rejection of null. step ii: setting up of hypothesis. null hypothesis h0: ρ=0, i.e., population correlation coefficient is zero or there is no significant relationship between spread and nbm. alternative hypothesis h1:ρ≠0, i.e., population correlation coefficient is not zero or there is a significant relationship between spread and nbm. step iii: level of significance α=0.05 or 5%; degree of freedom df=n-2=126-2=124 step iv: test statistics table 4. correlation of spread and nbm nbm spread pearson correlation -0.220* signification (2-tailed) 0.021 n 110 note. *correlation is significant at the 0.10 level (2-tailed). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 36 published by scholink inc. t= = =-2.511, where, r=correlation coefficient, n=no of observation. tcalculated = -2.511 step v: critical value at df=124 and level of significant α=0.05 or 5%, t tabulated=1.98 step vii: result since the absolute value of the calculated t score is greater than the absolute value of the critical t score, the null hypothesis h0 is rejected, and alternative hypothesis h1 is accepted i.e. as the theoretical assumption behind hypothesis testing, the population correlation coefficient is not zero that suggests investment risk is significantly associated to governance system of cooperatives. 5. findings in the first hypothesis, the absolute value of the calculated t-score exceeds the absolute value of the critical t-score. therefore, the null hypothesis h0 is disapproved, and the alternative hypothesis h1 is affirmed. in accordance with the foundational principles of hypothesis testing, this implies that the population correlation coefficient is non-zero, indicating a substantial connection between credit default risk and the governance system of cooperatives. for the second hypothesis, the absolute value of the calculated t-score surpasses that of the critical t-score. consequently, the null hypothesis h0 is negated, and the alternative hypothesis h1 is validated. this aligns with the theoretical framework of hypothesis testing, signifying a substantial association between leverage risk and the governance system of cooperatives, as the population correlation coefficient is found to be non-zero. contrastingly, the third hypothesis exhibits a different outcome, as the absolute value of the calculated t-score is less than that of the critical t-score. consequently, the null hypothesis h0 is accepted, and the alternative hypothesis h1 is rejected. this challenges the theoretical premise of hypothesis testing, indicating that the population correlation coefficient is zero, implying that there is no significant association between liquidity risk and the governance system of cooperatives. in the case of the fourth and final hypothesis, the calculated t-score’s absolute value surpasses that of the critical t-score. consequently, the null hypothesis h0 is dismissed, and the alternative hypothesis h1 is embraced. this aligns with the foundational tenets of hypothesis testing, suggesting that the population correlation coefficient is not zero, highlighting a substantial relationship between investment risk and the governance system of cooperatives. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 37 published by scholink inc. 6. conclusion this research provides a comprehensive exploration of the governance landscape within nepalese cooperative societies by examining the intricate relationships among critical financial risks: credit default risk, leverage risk, liquidity risk, and investment risk, in conjunction with the governance system. the findings, summarized herein, offer a nuanced understanding of these associations. the study consistently found that the calculated t-score values surpassed the critical t-score values, unequivocally rejecting the null hypotheses. this unequivocal outcome signifies a substantial and undeniable linkage between credit default risk, leverage risk, and investment risk with the governance system of cooperative societies. these results highlight the pivotal role of effective governance in navigating and mitigating these financial risks, ultimately contributing to the resilience and prosperity of cooperative societies. conversely, the analysis revealed that the calculated t-score for liquidity risk failed to reach the critical t-score threshold, leading to the acceptance of the null hypothesis. this observation suggests that, within the context of nepalese cooperative societies, liquidity risk is not significantly associated with the governance system. it implies the presence of other influential factors that play a more prominent role in shaping liquidity risk within these cooperative societies. in summary, this research underscores the substantial and noteworthy connections between credit default risk, leverage risk, and investment risk with the governance system, as assessed through member participation in board meetings. these findings underscore the pivotal role of effective governance in managing financial risks within cooperative societies, emphasizing the significance of robust governance practices. nevertheless, the absence of a significant association between liquidity risk and the governance system highlights the intricate nature of the cooperative landscape, suggesting that additional factors, beyond governance, may underlie liquidity challenges. these research outcomes offer valuable insights for policymakers and cooperative management, serving as a foundation for the enhancement of governance and risk management strategies within the cooperative sector. ultimately, this research contributes to a comprehensive understanding and the advancement of governance systems in nepalese cooperative societies, nurturing their long-term sustainability and prosperity. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 38 published by scholink inc. 7. recommendations the study offers a set of recommendations aimed at strengthening cooperative societies in managing financial risks and ensuring their long-term success. it suggests enhancing governance practices to effectively handle financial risks, such as credit default, leverage, and investment risks. the study emphasizes the importance of training and education. it advises providing specialized training and education for board of directors, members, and staff, enabling them to identify and manage financial risks while ensuring that their decisions align with the cooperative’s financial stability. it highlights the significance of involving members in governance decisions, thus ensuring their meaningful engagement in the cooperative’s decision-making processes. furthermore, the study urges cooperative societies to diversify their liquidity risk management strategies beyond governance. this includes a focus on exploring liquidity challenges and developing a range of approaches to address them. in a dynamic cooperative sector, continuous research is vital. the study recommends ongoing research to identify evolving risks and their relationship with governance, allowing for timely adaptations of governance and risk management practices. the study also advises policymakers to base policies on research findings, encouraging the adoption of best practices and providing resources for training and development within cooperative societies. promoting knowledge sharing and collaboration among cooperative societies is another crucial aspect. the study suggests that sharing governance and risk management best practices, experiences, and lessons can benefit the entire cooperative sector. finally, the study underscores the need to prioritize the long-term sustainability and prosperity of cooperative societies. this can be achieved through effective governance and risk management practices, with close collaboration between policymakers and cooperative practitioners. reference: bager, t. 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(2022). sixty-five years of nepalese cooperative movement and its direction. asian journal of economics, business and accounting, 22(14), 25-42. https://doi.org/10.9734/ajeba/2022/v22i1430621 https://www.mof.gov.np/uploads/document/file/1687415151_economic%20survey%207980.pdf https://www.ica.coop/en/media/library/cooperative-governance-fit-build-resilience-face-complexity https://www.ica.coop/en/media/library/cooperative-governance-fit-build-resilience-face-complexity https://doi.org/10.1007/978-3-031-17403-2_4 https://doi.org/10.1007/978-3-031-17403-2 https://columinate.coop/wp-content/uploads/2014/01/cg-four-pillars-of-cooperative-governance.pdf https://columinate.coop/wp-content/uploads/2014/01/cg-four-pillars-of-cooperative-governance.pdf https://doi.org/10.9734/ajeba/2022/v22i1430621 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 40 published by scholink inc. prakash, d. (2004). professionalisation in co-operatives promotes good governance. retrieved from https://www.icaap.coop/sites/icaap.coop/files/professionalisation%20of%20coops%20promote% 20good%20governance.pdf puri, d. l., & bunchapattanasakda, c. (2019). good governance for performance of nepalese cooperatives: a study of savings and credit cooperatives in kathmandu district. asian journal of science and technology, 10(11), 10493-10498. sacchetti, s., & tortia, e. c. (2016). the extended governance of cooperative firms: inter-firm coordination and consistency of values. annals of public and cooperative economics, 87(1), 93-116. https://doi.org/10.1111/apce.12058 sherwood, a. l. (2013). democratically owned and controlled businesses: identifying common and unique expectations of co-op board governance systems. retrieved from https://ostromworkshop.indiana.edu/pdf/seriespapers/2013s_c/sherwood_paper.pdf university of wisconsin, center of cooperatives, madison. (n.d.). retrieved from https://uwcc.wisc.edu/resources/governance-2/#:~:text=cooperatives%20have%20a%20unique%2 0governance,directors%2c%20management%2c%20and%20employees https://www.icaap.coop/sites/icaap.coop/files/professionalisation%20of%20coops%20promote%20good%20governance.pdf https://www.icaap.coop/sites/icaap.coop/files/professionalisation%20of%20coops%20promote%20good%20governance.pdf https://doi.org/10.1111/apce.12058 https://ostromworkshop.indiana.edu/pdf/seriespapers/2013s_c/sherwood_paper.pdf https://uwcc.wisc.edu/resources/governance-2/#:~:text=cooperatives%20have%20a%20unique%20governance,directors%2c%20management%2c%20and%20employees https://uwcc.wisc.edu/resources/governance-2/#:~:text=cooperatives%20have%20a%20unique%20governance,directors%2c%20management%2c%20and%20employees economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 4, no. 2, 2021 www.scholink.org/ojs/index.php/elp 12 original paper do white police officers unfairly target black suspects? john r. lott, jr 1 (note 1) & carlisle e. moody 2,3* 1 crime prevention research center, p.o. box 2293, 1100 w kent ave, missoula, mt 59801, usa 2 department of economics, college of william & mary, williamsburg, va 23187-8795, usa 3 crime prevention research center, missoula, usa * carlisle e. moody, department of economics, college of william & mary, williamsburg, va 23187-8795, usa; crime prevention research center, missoula, usa received: august 26, 2021 accepted: september 17, 2021 online published: january 4, 2022 doi:10.22158/elp.v4n2p12 url: http://dx.doi.org/10.22158/elp.v4n2p12 abstract using a unique data set we link the race of police officers who kill suspects with the race of those who are killed across the united states. we have data on a total of 2,706 fatal police killings for the years 2013 to 2015. this is 1,333 more killings by police than is provided by the fbi data on justifiable police homicides. we conducted three tests of discrimination. the results of these tests are different. in the first test we find some evidence that white officers are more likely to kill a black suspect who is later found to be unarmed than they are to kill an unarmed white suspect. however, this result could not be confirmed using a fixed effects model on panel data aggregated to the city level. in the second test, we find that white police officers are no more likely to kill an unarmed black suspect than are black or hispanic officers. the results of this test are confirmed by the panel data version of the test. the third discrimination test indicated that black suspects, whether armed or not, are no more likely to be killed by a white officer than they are to be killed by black or hispanic officers. similarly, hispanic suspects are no more likely to be killed by white offices than officers of other races. these results are also confirmed by panel data analyses. we find that when there is more than one officer on the scene, unarmed black suspects are not more likely to be killed by white police officers than unarmed white suspects. this could be evidence supporting a policy of reducing the number of officers working alone. also, we find no evidence that body cameras affect either the number of police killings or the racial composition of those killings. keywords police discrimination, police shootings, logit regression www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 13 published by scholink inc. 1. introduction the black lives matter movement was born out of the shooting of 18-year-old michael brown. darren wilson, a 28-year-old white police officer, shot and killed brown in ferguson, missouri in august 2014. although wilson was eventually exonerated by both a grand jury and the department of justice, there has been a growing public perception that police in general are biased against black suspects in their use of lethal force. this perception has been reinforced by several subsequent, highly publicized police homicides of black suspects (note 2). it led some politicians to call for federal regulations on the use of force by police officers and calls to defund the police (note 3). it is important in discussions of public policy to examine the data dispassionately. data on police killings of suspects is available from the cdc and fbi (see figure 1). but they miss many such killings. not all jurisdictions provide data, and very important data is often left out such as the race of the officer and the race of the person who was shot. there is also a lack of information on the incident (e.g., whether the suspect was armed). the cdc collects data on deaths by “legal intervention”, defined as any death—including that of a bystander—sustained as a result of an encounter with a law enforcement official (note 4). this definition includes both killings by and of police officers. to obtain homicides committed by police, one must subtract the number of felonious deaths of police (as provided by the fbi). the fbi provides data on justifiable homicides by law enforcement over the years from 1976 to 2015 (note 5). the fbi provides 24% more cases than the cdc for the years that data is available from both sources, though most of that difference is for the years from 1981 to 1997. that these data are incomplete is well-known (note 6). in response to these shortcomings of the publicly available datasets, we collected our own dataset on police killings for 2013 through 2015. we used lexis/nexis, google, google alerts, and several online databases (we provide a more detailed discussion below). for the years in which our data overlaps with those from the fbi and cdc, we find that the fbi missed 1,333 cases (over three years) and the cdc missed 741 cases (over two years). the washington post has also collected cases for 2015, one of the three years that we put together, but they found 18 fewer cases than we had (note 7). we also collected information not available from the washington post dataset on the number of officers on the scene; the officer‟s name, age, gender, and race; whether the person shot was involved in a violent crime, property crime, or drug related crime. however, the washington post has data on mental illness that we don‟t. in this paper, we use a new database containing detailed data on the incident itself, the officers and departments involved, and the demographics of the places where the incidents occurred. with these data, we attempt to test the hypothesis that racial animosity causes white police officers to kill black suspects more often than white suspects. using this new data set we test a number of hypotheses concerning the possible racial bias of police officers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 14 published by scholink inc. 2. previous research fryer (2019) uses a detailed database constructed from police data on interactions with civilians in new york city, houston, austin, dallas, los angeles county, and six large florida counties. he tests several hypotheses concerning possible racial bias in the use of both lethal and non-lethal force. he finds that black suspects are more likely to be victims of non-lethal force but are no more likely to be victims of lethal force. fryer also tests for racial bias in officer-involved killings, although he uses only information on the majority race of the officer unit, not necessarily the race of the officer who actually did the shooting. he finds that the probability of an unarmed black suspect being killed in an officer-involved shooting by a white police officer is four percent higher than for an unarmed white suspect. however, the difference is insignificant, indicating the absence of taste-based racial discrimination by white police officers. the fryer study has been criticized in part because the most controversial finding—that black suspects are no more likely to be shot than white suspects—is based entirely on the houston data and may not be generalizable. our data are more general and cover over 1,500 towns and cities in every u.s. state. fryer has also been criticized for relying on arrest reports to determine whether the incident was one in which the officer had to decide whether to use lethal force. if there is bias in the officer‟s attitude toward black suspects, then that bias is likely to extend to the decision of whether to arrest or not. if so, then fryer‟s study suffers from selection bias (note 8). knowles, persico, and todd (2001) develop a test for racial discrimination based on the probability that black motorists stopped by police officers are found in possession of contraband at rates different from motorists of other races. they find that, in our data, vehicles of african american motorists are searched much more frequently than those of white motorists. however, the probability that a searched driver is found carrying any amount of contraband is similar across races. thus, we cannot reject the hypothesis that the disparity in the probability of being searched is due purely to statistical discrimination and not to racial prejudice. (p. 206) a problem with this study is that the authors do not have data on the race of the police officers, forcing them to assume that officers of all races behave similarly. anwar and fang (af, 2006), using data on traffic stops by state troopers on florida highways, including the race of the officer, find that, once a vehicle has been stopped, the search rates for white troopers are greater than that for hispanic officers, which in turn exceeds the search rate for black officers. they find that this ranking is the same for white, black, and hispanic motorists. correspondingly, they find that the success rate for white officers is less than that of hispanic officers, which in turn is less than the success rate for black officers, independent of the race of the motorist. the independence of these rankings across the officer‟s races indicates no significant racial prejudice. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 15 published by scholink inc. antonovics and knight (ak, 2009) using data from the boston police department, including the race of the officer, test whether officers of different races search motorists of given race differently. if racial differences are due to statistical discrimination, the rate of search of black motorists, for example, should be the same for all officers, independent of race. in contrast, they find that officers are significantly more likely to conduct a search if the motorist is of a different race, indicating taste-based discrimination on the part of police officers. in a study for the center for policing equity, p.a. goff and several co-authors used incident-level data for 12 police departments. they found that black suspects arrested by police are more likely to be subject to force than white suspects, except when it comes to lethal force, confirming fryer‟s result (note 9). when arrests for violent crime are controlled for, the study finds that white suspects are subject to more severe force than black suspects (goff et al., 2016. table 5, p. 18). a widely reported but unpublished study of the 93 unarmed victims listed in the washington post database of police homicides found that black people are significantly more highly represented than are whites or hispanics (note 10). macdonald (2016, pp. 31-35, 73-80) argues that police, the majority of whom are white, are disproportionately assigned to high-crime areas, which tend to be largely black. the result is more encounters including lethal encounters in which white police officers shoot black suspects. campbell, nix and maguire (2018) find no significant change in the number of fatal shootings by police officers since the highly publicized shooting of michael brown by officer darren wilson in ferguson, missouri in 2014. in a study published in injury prevention, t.r. miller (2016) and several co-authors compared hospital records on incidents involving police assault and compared them to those for cases of assault in general. injuries resulting from general assaults tended to be more severe than those inflicted by law enforcement, and victims of police assault were less likely to be admitted to the hospital. however, forty percent of gunshot wounds inflicted by law enforcement were fatal, compared to 26 percent of gunshot wounds in general. nix et al. (2017), using the washington post data set for 2015, find that police officers are marginally (p<.10) more likely to kill unarmed black suspects than unarmed white suspects. however, the authors do not have the race of the officer. they also find that black suspects are no more likely to be attacking the police officer than white suspects. although the presence of body cameras is shown in the data base, nix et al did not use it as a control variable. the data set includes a variable indicating that the suspect exhibited signs of mental illness. nix et al. included that variable in their regressions, but it was never significant. using county-level data, ross (2015) found that both armed and unarmed black suspects face a significantly higher chance of being shot by police than do corresponding white suspects. worrell et al. (2018) use very detailed data from a large municipal police department in the southwest to study the decision to shoot. they find that black suspects are significantly less likely to be shot than other suspects; the more officers on the scene, the more likely the officers are to fire their weapons; www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 16 published by scholink inc. displaying a weapon increases the odds of being shot significantly; and aggression on the part of the suspect increases the odds of being shot by several orders of magnitude. however, to be in the data set, the officer has to have drawn his or her weapon. as in all studies to date, worrell et al does do not control for the situation precipitating the incident. fryer (2018) criticizes all existing research, including his own, for poor research design, especially for failing to control for possible selection bias. “to draw firm conclusions about the „race effect‟ one needs to assume that …, race is „as good as randomly distributed‟ and that there are no other differences in suspect behavior or any other potential contextual factor that is important” (p. 3). also, “…if one assumes the police are non-strategic in their stopping behavior, then there is clear bias. conversely, if one assumes the police are stopping individuals they are worried will engage in violent crimes, the evidence for bias is small” (p. 4). this is a problem with no obvious solution. no one has data on the situation before the interaction between the suspect and the police officer. our study has incident-level data on 2,706 line-of-duty police homicides from a large number of departments. unlike worrell et al. (2018) we do not have data on the decision to shoot. however, we have very detailed data on police homicides from more police departments than any previous study. we also have the race of the officer which is missing in many studies. we employ three tests for discrimination at the incident level. we repeat these tests using fixed effects panel estimates on the same data aggregated to the city level to correct for possible unobserved heterogeneity. 3. data we have 2,706 observations of police killings from over 1,500 cities in the united states from 2013 to 2015. the data were collected from several sources: lexisnexis, google, google alerts, and several online databases concerned with police killings. we also consulted online police data from philadelphia and dallas. as there is a lack of publicly disclosed information concerning officers, we tried to contact each police department to get more information on the officers involved in the killings. see the online appendix for more information, including details as to how the searches were conducted and the url addresses for the online databases. the online appendix also has a list of the contact information for the police departments that were willing to provide more details about their officers. compared to the washington post data set our data set has detailed information on the police officer(s) involved and more information on the incident. although we have observations over three years, at the incident level this is not a panel data set. only a relatively small number of large cities are in the data set for all three years. most cities have only one incident and some cities have multiple incidents in a single year. at this level of detail, we cannot employ city fixed effects. however, we do include state dummies in an attempt to control for jurisdictional effects and year dummies to control for events that could affect all cities in a given year, such as the “ferguson effect” (note 11). also, the incident data can be aggregated into a city-level panel data set, with city and year fixed effects, as we do in section 6 below. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 17 published by scholink inc. with respect to the incident, we have the race of the suspects killed (black, white, hispanic, other) and their age. with respect to the officer(s) involved, we have race and gender for 918 incidents. we also have data for the number of officers on the scene. we suspect that the more officers on the scene, the less likely it is that the suspect will resist. we also suspect that the police report is more likely to be accurate. also, officers who are alone might resort to lethal force more readily than those who have backup, as a matter of their own safety. with respect to the suspect, we have data on whether the suspect was involved in a violent crime, a property crime, or a drug-related crime. we also have data on whether the suspect was armed and, if so, the type of weapon (firearm, knife, vehicle, other). with respect to the police departments, we used the 2013 law enforcement management and administrative statistics survey (lemas) data on their racial makeup, use of body cameras or cameras on weapons, if the same officers are assigned to given neighborhoods, and whether community policing is part of the department‟s mission statement. we also know whether the department uses helicopters (a proxy for militarization), the number of marked and unmarked police cars per 100,000 population, the proportion of part-time officers, whether some college education is required for new hires, and whether the police are unionized (which gives police officers an additional layer of legal protection and job security in the event of a shooting). at the city level we control for total population, violent crime levels (broken down by murder, rape, robbery, and assault), and the number of black, white, and hispanic males in the age group 15-29. the number of observations and means are shown in tables 1 and 2. table 1 shows that 25 percent of the suspects killed were black, 45 percent white, and 16 percent hispanic. the remaining 14 percent were asian, american indian, or other. with respect to the officer‟s race, 29% were white, 1.7% black (45 cases), 2.5% hispanic (67 cases), and for 66% (1788 cases) their race is unknown. four percent of the officers were female (67 cases). there was an average of 2.4 officers on the scene—an average that was approximately constant for suspects of the various races. table 1. variables, number of observations and means overall white black hispanic variable n mean n mean n mean n mean suspect white 2706 45.34 1227 100 673 0 442 0 suspect black 2706 24.87 1227 0 673 100 442 0 suspect hispanic 2706 16.33 1227 0 673 0 442 100 officer white 2706 29.12 1227 35.29 673 28.38 442 19.68 officer black 2706 1.66 1227 1.06 673 4.01 442 0.68 officer hispanic 2706 2.48 1227 2.20 673 1.93 442 4.30 officer other race 2706 0.67 1227 0.65 673 0.45 442 0.90 officer race unknown 2706 66.08 1227 60.80. 673 65.23 442 74.43 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 18 published by scholink inc. officer female 1721 3.89 847 3.19 431 3.71 257 4.28 total population/1000 2687 41.67 1215 25.07 668 60.96 442 56.45 number police on scene 2706 2.39 1227 2.49 673 2.18 442 2.40 bodycams used 2706 18.44 1227 16.14 673 17.98 442 26.24 cameras on weapons 2706 6.43 1227 6.03 673 6.69 442 5.20 same officers in neighborhood 2706 55.99 1227 48.25 673 65.53 442 64.25 marked cars per 100k pop 1649 53.65 687 72.00 455 65.91 292 7.23 unmarked cars per 100k pop 1649 33.01 687 50.12 455 30.81 292 3.74 helicopters used 2706 35.66 1227 27.30 673 44.87 442 44.12 percent part-time officers 1818 1.310 740 1.88 504 0.99 336 0.58 percent police dept white 1811 68.59 735 76.60 503 65.23 335 58.51 percent police dept black 1811 10.54 735 7.01 503 17.42 335 7.89 percent police dept hispanic 1811 14.44 735 9.90 503 12.72 335 27.35 percent police dept female 1808 12.41 733 10.75 502 14.74 335 12.47 police unionized 2706 59.350 1227 50.37 673 67.90 442 70.59 some college required 2706 7.80 1227 5.54 673 12.78 442 5.66 community policing mission 2706 55.51 1227 46.70 673 65.97 442 66.06 eighteen percent of the police departments reported the use of body cameras on patrol officers, while 6% used cameras on weapons. fifty-six percent reported that they assign the same officers to given neighborhoods and 56% report that community policing is in the mission statement. both percentages are somewhat higher for cases in which black suspects are killed. helicopters are used in 35% of all departments—somewhat higher in cities where black suspects were killed. part-time sworn officers are rare, and only a few departments require some college education for a new hire. most departments are unionized. sixty-nine percent of the police officers were white, 11 percent black, and 14 percent hispanic, although the departments involved in the killing of black suspects tended to have more black officers and those involved with hispanic suspects had relatively more hispanic officers. perusal of table 2 reveals that police killings overwhelmingly involve armed suspects. almost nine out of 10 suspects (89%) killed by police were armed and the differences across race are small: 90% white suspects were armed compared to 85% of black suspects and 87% of hispanic suspects. most of the suspects, 60 percent, were armed with a firearm, 18% with a knife or cutting instrument, and 4% of the suspects used a vehicle as a weapon. thirty-nine percent of the suspects were involved in a violent crime, 17% in a property crime, and 5% in a drug crime. black suspects were more likely to be involved in a property crime than white or hispanic suspects. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 19 published by scholink inc. table 2. variables, number of observations and means, continued overall white black hispanic variable n mean n mean n mean n mean suspect armed 2644 89.07 1203 90.36 661 85.48 433 86.61 suspect armed with firearm 2706 59.83 1227 62.67 673 60.48 442 51.36 suspect armed with knife 2706 17.55 1227 16.63 673 14.26 442 20.14 suspect vehicle as weapon 2706 4.43 1227 3.99 673 5.65 442 5.43 suspect used other weapon 2706 6.39 1227 6.44 673 4.90 442 8.14 suspect's age 2677 36.47 1225 39.29 671 32.00 438 32.59 involved in violent crime 2706 39.17 1227 39.2 673 38.93 442 36.65 involved in property crime 2706 16.63 1227 15.08 673 21.69 442 16.74 drug related 2706 5.32 1227 4.32 673 7.13 442 6.11 suicidal 2706 9.39 1227 11.98 673 2.53 442 10.18 more than one suspect 2706 0.81 1227 0.49 673 1.49 442 0.90 percent black males 15-29 2242 2.00 953 1.45 589 3.51 389 1.20 percent white males 15-29 2242 5.37 953 6.41 589 4.88 389 3.84 percent hispanic males 15-29 2242 3.19 953 2.34 589 2.73 389 5.87 violent crime rate per 100k 2198 593.92 947 490.16 572 791.38 389 580.67 murder rate per 100k 2198 7.84 947 5.44 572 12.21 389 7.25 rape rate per 100k 2190 37.30 946 36.89 566 45.18 389 32.57 aggravated assault rate per 100k 2198 357.87 947 312.53 572 452.87 389 346.59 robbery rate per 100k 2198 183.67 947 125.85 572 277.88 389 185.12 cities experiencing police homicides have higher than average violent crime rates (594 violent crimes per 100,000 compared to 368 for the u.s. as a whole.) and violent crime rates are higher in cities where black suspects were killed (791) compared to cities in which white suspects were killed (490). the same is true for the subcategories of violent crime. the murder rate is particularly high in cities where black suspects were killed by police (12.2) compared to cities in which white suspects were killed (5.4). young black men represent a greater proportion of the population in cities that experience police killings of black suspects (3.5%) compared to cities where white suspects were killed (1.4%). our numbers (figure 1) show a 29% increase in killings by police officers from 2013 to 2015. this is in sharp contrast to the fbi data, which show a small, 6% drop in police killings. the fbi report many fewer cases than have occurred and they also miss many significant details about the cases that they do report. in only about 31% to 35% of the cases does the fbi have data on the age, race, and gender of the deceased. by contrast, we have this information for 100% of our cases. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 20 published by scholink inc. figure 1. different measures of fatalities from police shootings figure 2 presents our breakdown by race. it appears that the sharpest upward trend in killings was among white suspects. the percentage of suspects killed who were white and hispanic rose, while the percentage of those who were black remained virtually unchanged. at least over recent history, the evidence does not support the hypothesis that police are targeting black suspects more now than they did in the past. however, the fact that black suspects have historically been overrepresented in police homicides could be indicative of continuing racial bias. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 21 published by scholink inc. figure 2. police homicides by race from 2013-2015 after the august 2014 shooting of michael brown in ferguson, one might expect that the ensuing publicity would have caused a drop in the rate at which black suspects were shot. yet black suspects‟ share of police killings remained virtually identical (24.8% before ferguson and 25% afterwards). of course, there are other potential deterrents to police engaging in racial bias such as the use of police body cameras. when a shooting is recorded by a body cam, officers know that it will become a central focus of the public debate. after the recent shooting of keith lamont scott in charlotte, massive pressure was put on the police department to release the video (even though the police chief had cautioned that there was little to learn from the video) (note 12). if an officer unjustifiably shoots a suspect because of his race, cameras or the presence of other police will make it harder to hide the truth. attorney general loretta lynch claimed: “body-worn cameras hold tremendous promise for enhancing transparency, promoting accountability, and advancing public safety”. in may 2015, she provided $20 million to study these possible benefits (note 13). the fbi and cdc data also don‟t contain any information on the race or gender of the police officers involved in the shooting. in 33% of our cases, we have information on the races of the officers. this information is important if we are going to be able to try to determine any racial bias in killings. if white and black officers respond similarly, it is less likely that they are shooting the suspect because of a personal taste for racism. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 22 published by scholink inc. 4. test for racial discrimination by white police officers if white officers are racist, they presumably will be more likely to kill black suspects who are later found to be unarmed than they are to kill white suspects who turn out to be unarmed. the null hypothesis is that the probability of being armed, given that the suspect is black and has been killed by a white police officer equals the probability of a white suspect being armed given that the white suspect was killed by a white officer: p(a|b,k,ow)=p(a|w,k,ow) (1) where a indicates the suspect was armed, b indicates the suspect was black, w indicates the suspect was white, k indicates that the suspect was killed, and ow indicates that the officer was white. the alternative hypothesis is that the probabilities are not equal and if p(a|b,k,ow) < p(a|w,k,ow), then white officers tend to shoot first and check for a weapon later if the suspect is black, evidence of taste-based discrimination by white police officers against black suspects. the difference between the probabilities with respect to the race of the suspect may also be due to other factors. for example, the result of the officers‟ experience with black suspects could affect lethality. also, an officer might shoot and kill an unarmed suspect if the suspect is committing a violent crime, not obeying the officer‟s commands, or attempting to get possession of the officer‟s firearm. the suspect‟s age might also be related to whether the police could view the suspect as a threat or whether the suspect will follow the police officer‟s instructions. also, the number of police officers involved could be important. suspects might not resist if faced with more than one officer. an officer acting alone might resort to lethal force with a higher probability if he or she has no backup. a racist police officer might also be deterred from expressing that racism in the presence of other officers. we also control for violent crime on the theory that the more violent crime, the more likely it is that officers will have experience with dangerous suspects who are likely to resist, fail to obey orders, or threaten other civilians. the proportion of young black males is a potential control for two reasons: the level of violent crime for young black males may not be well controlled by the overall violent crime rate and the experience officers have had with black suspects. finally, we account for the racial composition of officers in the various police departments. it is possible that racial bias by individual police officers could be affected by the racial composition of the department. a white officer in a heavily black department may find it more difficult to be racist. the results of this test are reported in table 3. since the dependent variable is a dummy variable taking the unit value if the suspect is armed, we use a logit regression. the test statistics are the chi-square tests on the difference between the coefficients on the black and white suspects reported in the bottom two rows. the standard errors are robust with respect to heteroscedasticity. in the first model (model 1) we estimate a simple model with no control variables. the coefficient for black suspects is significantly less than the coefficient for white suspects, indicating that fewer black suspects were found to be armed after being killed by white police officers. including suspect and incident characteristics (model 2), especially the dummy for two or more police officers and the dummy for whether the suspect is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 23 published by scholink inc. involved in a violent crime, renders the test insignificant at the .05 level for a two-tailed t-test. including the violent crime rate, the proportion of the population between15-29, and several variables related to the police department (model 3) also renders the coefficient on the dummy variable for black suspects insignificant. however, when we add state and year fixed effects (model 4), the coefficient on the black dummy variable is again significantly negative. since the coefficient on the dummy indicating that the suspect is black is significantly different from the coefficient on the dummy indicating the suspect is white in two out of four models, we find mixed evidence with respect to the existence of taste-based discrimination by white police officers. table 3. do white police officers kill unarmed black suspects more often than unarmed white suspects? variable model 1 model 2 model 3 model 4 suspect black 0.330 0.335 0.550 0.669 (0.153)* (0.173)* (0.379) (0.590) suspect white 0.629 0.535 2.195 3.429 (0.284) (0.269) (1.569) (3.441) suspect hispanic 0.670 0.618 1.354 2.922 (0.363) (0.373) (1.080) (3.275) officer female 0.459 0.896 0.460 (0.220) (0.578) (0.378) more than one officer 3.564 2.878 3.151 (0.805)** (0.984)** (1.332)** more than one suspect 0.469 1.540 0.647 (0.377) (1.339) (0.786) involved in violent crime 2.874 4.958 6.385 (0.802)** (2.320)** (4.405)** involved in property crime 0.872 0.803 1.167 (0.254) (0.335) (0.585) drug related 0.492 0.316 0.239 (0.209) (0.174)* (0.149)* suspect‟s age 1.017 1.034 1.023 (0.009)* (0.019) (0.020) population 0.999 0.998 (0.002) (0.003) violent crime rate 0.919 0.846 (0.046) (0.059)* www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 24 published by scholink inc. percent black males 15-29 1.377 1.554 (0.184)* (0.307)* percent police dept female 1.061 1.102 (0.043) (0.071) percent police dept black 0.943 0.887 (0.023)* (0.051)* percent police dept white 0.981 0.931 (0.016) (0.047) percent police dept hispanic 0.983 0.917 (0.022) (0.050) bodycams used 0.638 0.594 (0.247) (0.334) police unionized 2.686 4.217 (1.346)* (2.597)* n 777 767 402 324 state & year fixed effects? no no no yes suspect black = suspect white 7.65** 3.41 10.24** 8.70** p-value 0.006 0.065 0.001 0.003 notes. logit regression; white police officers only; the dependent variable is a dummy variable which equals 1 if the subject was armed; coefficients are odds ratios; robust standard errors in parentheses; * p<0.05, ** p<0.01. the omitted class consists of suspects of race other than black, white, or hispanic. the last two lines report the chi-square test of equality between the coefficients on white and black suspects. if the officer is not alone, there is a smaller probability a black suspect killed by a police officer will be found to be unarmed. if the proportion of the population consisting of young black males is large or the police are unionized, the less likely police officers are to kill an unarmed black suspect. suspects killed while involved in a violent crime are more likely to be armed. also, there is some evidence that police officers are more likely to kill an unarmed black suspect in the commission of a drug-related crime. somewhat surprisingly, white police officers from police departments with larger proportions of black officers are significantly more likely to kill unarmed black suspects than those from departments with fewer black officers. although not reported to conserve space, we found using chi-square tests that, in those cases where the officer had backup, the suspect was involved in a violent crime, or the police department is unionized, unarmed black suspects are not killed significantly more often than unarmed white suspects. an f-test revealed that the state and year dummy variables were not significant as a group, indicating that model 3 is our preferred specification. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 25 published by scholink inc. as robustness checks, we repeated the analysis for black officers, hispanic officers, and all officers. for all officers, we found results similar to those for white officers, which is to be expected since the majority of police officers are white. we found that black and hispanic officers killed unarmed black suspects at probabilities not significantly different from unarmed white suspects. all results, programs and data are available in the online appendix. 5. tests for relative racial discrimination in our second test the null hypothesis is that the probability of an armed black suspect being killed by a white officer (ow) is equal to the probability of the same suspect being killed by a black officer (ob). p(a|b,k,ow)=p(a|b,k,ob) (2) we regress the dummy variable for armed black suspects on a set of dummy variables indicating the race of the officer: white, black, or hispanic. the test is a chi-square test for the equality of the coefficients on white and black officers. if there is taste-based discrimination on the part of white officers, relative to black officers, we should find that the probability that an unarmed black suspect would be killed by a white officer is significantly higher than the same probability if the officer is black. the results are presented in table 4. the standard errors are robust with respect to heteroscedasticity. the test statistics are the chi-square statistics reported in the bottom two rows. table 4. do white officers kill unarmed black suspects more often than black officers? model 1 model 2 model 3 model 4 officer black 8.800 11.565 1.833 1.220 (11.635) (13.495)* (2.467) (2.299) officer white 7.590 12.239 2.306 1.270 (9.402) (12.799)* (2.720) (2.184) officer hispanic 24.000 42.086 7.668 4.842 (38.604)* (60.844)** (10.798) (9.228) officer race unknown 15.592 20.931 8.340 5.729 (19.257)* (22.205)** (10.318) (10.047) officer female 1.102 0.700 0.141 (0.945) (0.658) (0.165) more than one officer 2.189 1.845 3.237 (0.601)** (0.686) (1.593)* more than one suspect 0.586 0.843 0.923 (0.489) (0.860) (1.250) involved in violent crime 2.002 1.790 1.813 (0.618)* (0.789) (0.925) involved in property crime 0.959 0.911 0.887 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 26 published by scholink inc. (0.310) (0.389) (0.465) drug related 0.318 0.198 0.166 (0.137)** (0.114)** (0.128)* suspect‟s age 1.010 1.030 1.029 (0.012) (0.018) (0.019) population 0.999 0.995 (0.001) (0.003) violent crime rate 1.000 1.001 (0.000) (0.001) percent black males 15-29 0.965 1.071 (0.090) (0.140) percent police dept female 1.021 0.994 (0.031) (0.063) percent police dept black 0.993 0.919 (0.035) (0.066) percent police dept white 1.012 0.968 (0.031) (0.061) percent police dept hispanic 0.961 0.927 (0.036) (0.058) bodycams used 0.951 1.060 (0.396) (0.589) police unionized 2.251 6.903 (1.482) (6.353)* n 661 424 266 215 state & year fixed effects? no no no yes officer white=officer black 0.08 0.01 0.11 0.00 p-value 0.779 0.921 0.742 0.961 notes. logit regression; black suspects only; coefficients are odds ratios; robust standard errors in parentheses; * p<0.05, ** p<0.01. the dependent variable is the dummy indicating the suspect was armed. the last two lines report the chi-square test of equality between the coefficients on white and black officers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 27 published by scholink inc. we find no significant difference between the coefficients for white and black officers. these results are confirmed when we add state and year effects to the first three models. we also find no significant difference between the white and hispanic and black and hispanic officers. we have suppressed these latter results to conserve space. all results are available in the online appendix. an alternative is to test the null hypothesis that the odds of a black suspect, whether armed or not, being killed by a white police officer are the same as the odds of a black suspect being killed by a black officer. if white police officers kill black suspects primarily because of racial animus, we would expect that black police officers would kill black suspects at a lower rate than white officers do. the null hypothesis is ( | , ) ( | , ) ( | ) ( | ) w b w b p k b o p k b o p k o p k o  (3) where k indicates the suspect was killed, b that the suspect was black, ow that the officer was white, and ob that the officer was black. because we do not have data on incidents in which the suspect was not killed, we only know the probability that a suspect was black, given that the suspect was killed and the race of the officer. that is, we know ( | o , )wp b k (4) and ( | o , )bp b k . (5) applying bayes‟ rule, we have ( , | ) p(k) ( | , ) ( , ) ( | , ) p( | ) p(k) (b | o ) p(o ) w w w w w w w p b o k p k b o p b o p b o k o k p   (6) for the denominator of the left-hand side of (3), ( , ) ( | ) ( ) ( | ) ( ) ( ) w w w w w p k o p o k p k p k o p o p o   (7) dividing (6) by (7) yields the left-hand side of (3): ( | , ) ( | , ) ( | ) ( ) ( ) ( | ) ( | ) ( ) ( | k) p(k) ( | , ) ( | ) w w w w w w w w w w p k b o p b o k p o k p k p o p k o p b o p o p o p b o k p b o    (8) a similar development for black officers yields, ( | , ) ( | , ) ( | ) ( | ) b b b b p k b o p b o k p k o p b o  (9) we can now restate the null hypothesis (3) as, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 28 published by scholink inc. ( | , ) ( | , ) ( | ) ( | ) w b w b p b o k p b o k p b o p b o  (10) since we only have data on (4) and (5) we assume that (b| ) (b| )w bp o p o (11) that is, we assume that black suspects will encounter black and white police officers with the same probability. as discussed above, no study to date has direct observations on these probabilities. however, we have the racial composition of the police departments and we have demographic data for the cities in which the incidents occurred. we include those variables to control for these probabilities. we test this null hypothesis using a logit regression on the binary variable indicating that the suspect was black. the variables of interest are again dummy variables indicating the race of the officer. the test is a chi-square test for the equality of the coefficients on white and black officers. if the test indicates that white officers are significantly more likely to kill a black suspect than black officers are, we have evidence of racial discrimination on the part of white police officers. the results are reported in table 5. the standard errors are robust with respect to heteroscedasticity. there are four models. model 1 includes the police officer‟s race and the demographic variables that control for the interaction between black suspects and black and white officers (population, percent black males 15-29, proportion of the police department that are black, white and hispanic). model 2 adds incident level controls (officer female, more than one officer present, suspect involved in violent crime, suspect involved in property crime, crime is drug related, and the suspect‟s age) and the percentage of the police department that is female. model 3 adds controls for the use of bodycams and whether the police department is unionized. model 4 adds state and year dummies. again, the test statistic is reported in the bottom two rows. table 5. do white officers kill black suspects more often than black officers? variable model 1 model 2 model 3 model 4 officer white 1.271 1.257 1.317 1.165 (0.818) (0.972) (1.051) (0.995) officer black 2.060 2.381 2.575 2.067 (1.598) (2.224) (2.425) (2.002) officer hispanic 0.673 0.511 0.522 0.582 (0.520) (0.481) (0.502) (0.575) officer race unknown 0.972 1.152 1.187 0.940 (0.622) (0.892) (0.950) (0.804) population 1.002 1.002 1.002 1.003 (0.001)** (0.001)* (0.001)* (0.001) pct black males 1.386 1.431 1.450 1.303 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 29 published by scholink inc. 15-29 (0.096)** (0.113)** (0.116)** (0.130)** pct police dept black 1.037 1.029 1.031 1.019 (0.011)** (0.020) (0.020) (0.022) pct police dept white 1.002 1.010 1.011 1.001 (0.005) (0.015) (0.015) (0.010) pct police dept hispanic 1.001 1.006 1.008 1.007 (0.006) (0.016) (0.016) (0.012) officer female 0.896 0.935 0.951 (0.387) (0.396) (0.455) more than one officer 0.543 0.540 0.570 (0.107)** (0.106)** (0.121)** more than one suspect 2.314 2.227 1.834 (1.379) (1.338) (1.339) involved in violent crime 0.973 0.955 0.980 (0.180) (0.179) (0.196) involved in property crime 1.324 1.319 1.401 (0.302) (0.300) (0.343) drug related 1.436 1.363 1.527 (0.518) (0.500) (0.597) suspect‟s age 0.965 0.965 0.965 (0.008)** (0.008)** (0.008)** violent crime rate 1.001 1.001 1.001 (0.000)** (0.000)* (0.000)** pct police dept female 1.056 1.053 1.058 (0.022)** (0.022)* (0.029)* bodycams used 0.872 0.932 (0.172) (0.231) police unionized 1.843 2.160 (0.646) (0.864) n 1,564 900 900 861 state & year fixed effects? no no no yes officer black=officer white 1.11 1.34 1.59 1.27 p-value 0.292 0.247 0.207 0.261 notes. logit regression; coefficients are odds ratios; robust standard errors in parentheses* p<0.05, ** p<0.01. the dependent variable is a dummy variable indicating that the suspect was black. model 4 includes state and year dummies. the last two lines report the chi-square test of equality between the coefficients on black and white officers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 30 published by scholink inc. in all four models, white officers are not significantly more likely than black officers to kill a black suspect (note 14). we find that the presence of another officer on the scene significantly reduces the odds of a black suspect being killed by officers of any race. also, older suspects are significantly less likely to be killed. increases in the overall violent crime rate causes more black suspects to die at the hands of the police. increases in the percentage of young black males in the population increases the chances of black suspects being killed by the police. female police officers are no more or less likely to kill a black suspect than male officers. however, officers in departments with higher proportions of female officers are significantly more likely to kill black suspects. although not reported to conserve space, we repeated these regressions on white and hispanic suspects. we also added state and year fixed effects to the first three models. the results were the same. for all three tests, the use of bodycams by the police department has no significant effect. except for one case, the remaining lemas variables: cameras on guns, assigning the same officers to neighborhoods, the use of marked or unmarked vehicles, the use of helicopters, the proportion of part-time sworn officers, requiring some college education for new recruits, and implanting community policing policies, are not significant (note 15). 6. panel estimation although we have three years of data, at the incident level the data is a cross section. the most serious problem with cross section data is unobserved heterogeneity. since cities can vary substantially with respect to unobserved and often unobservable characteristics such as history, climate, and culture, and these characteristics are very likely to be correlated with the included variables, any cross-section regression would be biased by these omitted variables, which are only partially controlled for by state and year dummies. unobserved heterogeneity can be avoided by estimating a fixed-effects model on panel data. we can create a panel data set of cities by aggregating across incidents to the city level (note 16). this aggregation loses some detail, for example we can no longer assign a given suspect, or officer, to a given incident. instead, we have the percentage of suspects or officers who are white, black, hispanic, etc. we also lose the information on the police departments, such as whether officers are required to wear body cameras, the racial composition of the police department, etc. however, the effect of these police department variables on police killings will be captured by the fixed effects for each city. these city fixed effects also control for any cultural differences across departments. for example, it may be surmised that black officers in some cities could kill black suspects at the same rate as white officers because they have adopted a discriminatory culture that is characteristic of that city. the city fixed effects should correct for such cultural differences. we also include year fixed effects to reduce any spatial correlation and control for factors that could affect all cities in a given year. the variables of interest in the panel data set are summarized in table 6. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 31 published by scholink inc. table 6. variables, number of observations and means, panel data overall 2013 2014 2015 variable n mean n mean n mean n mean pct armed 1857 87.40 520 87.28 619 86.66 718 88.14 pct black suspects armed 1857 18.23 520 18.44 619 17.28 718 18.89 pct white suspects armed 1857 45.62 520 39.55 619 43.61 718 51.74 pct hispanic suspects armed 1857 11.54 520 10.60 619 11.09 718 12.61 pct suspect black 1857 21.68 520 21.67 619 21.03 718 22.26 pct suspect white 1857 51.53 520 45.81 619 49.72 718 57.23 pct suspect hispanic 1857 13.62 520 12.29 619 13.02 718 15.10 pct black officer 1857 1.59 520 1.05 619 2.12 718 1.53 pct hispanic officer 1857 1.94 520 1.65 619 2.84 718 1.38 pct officer race other 1857 0.44 520 0.38 619 0.78 718 0.20 pct officer race unknown 1857 66.14 520 71.12 619 54.05 718 72.95 population 1838 14.24 516 16.76 614 13.03 708 13.46 violent crime rate 1398 500.64 391 484.93 472 497.42 535 514.95 pct black males 15-29 1415 1.87 469 1.77 584 1.91 362 1.95 pct involved in violent crime 1857 39.76 520 40.68 619 46.38 718 33.39 pct involved in property crime 1857 15.52 520 17.51 619 17.22 718 12.61 pct drug related 1857 5.29 520 3.76 619 4.58 718 7.02 pct suicidal 1857 10.21 520 5.60 619 10.99 718 12.87 average suspect age 1849 37.36 516 37.37 615 37.26 718 37.45 pct more than one officer 1857 83.52 520 87.88 619 79.64 718 83.70 in the first exercise we use a fixed-effects model to re-estimate the test reported in table 3. the dependent variable is the proportion of suspects in killed each city who were eventually found to be armed. the explanatory variables of interest are the proportions of black, white, and hispanic suspects killed in each city. as in the previous analyses, we estimate the model using various levels of control variables. however, we always include city and year dummies. the standard errors are robust to heteroscedasticity. the results are reported in table 7. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 32 published by scholink inc. table 7. do police officers kill unarmed black suspects more often than unarmed white suspects? fixed-effects city panel data regression model 1 model 2 model 3 percent suspect black 0.052 0.049 0.072 (0.060) (0.063) (0.071) percent suspect white 0.025 0.016 0.019 (0.055) (0.059) (0.062) percent suspect hispanic 0.014 0.012 0.004 (0.076) (0.079) (0.083) population 1.599 1.326 (1.202) (1.145) violent crime rate 0.009 0.011 (0.012) (0.011) percent black males 15-29 17.388 13.716 (14.912) (14.059) percent involved in violent crime 0.059 (0.042) percent involved in property crime -0.058 (0.062) percent drug related -0.063 (0.094) percent suicidal 0.014 (0.064) suspect age -0.007 (0.175) percent more than one officer 0.110 (0.052)* percent more than one suspect -0.087 (0.095) n 1,857 1,167 1,163 city & year fixed effects? yes yes yes f test: pct white suspects = pct black suspects 0.34 0.42 0.88 prob > f 0.562 0.515 0.350 notes. robust standard errors in parentheses; * p<0.05; ** p<0.01. the dependent variable is the proportion of suspects who were armed. the last two lines report the f-test on the equality of the coefficients on black and white suspects. the coefficient on the percent of black suspects is not significantly different from the coefficient on the percent of white suspects, according to a standard f-test which is reported in the last two lines. although not reported, there was also no significant difference between the coefficients on the remaining pairs of suspect race percentages. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 33 published by scholink inc. in the next exercise we estimate the panel version of our second test, reported in table 4, in which we regress the percentage of black suspects found to be armed on the percentages of officers in each city who are black, white, and hispanic. the results are reported in table 8. as shown on the bottom two lines, we cannot reject the null hypothesis that black and white officers act similarly with respect to potentially armed black suspects. the results are the same with respect to black and white officers relative to hispanic officers. table 8. do white officers kill unarmed black suspects more often than black officers? fixed-effects city panel data regression model 1 model 2 model 3 percent white officer -0.029 -0.016 -0.027 (0.048) (0.050) (0.048) percent black officer 0.154 0.233 0.070 (0.193) (0.237) (0.180) percent hispanic officer -0.027 0.054 0.010 (0.189) (0.224) (0.210) population 1.197 1.459 (1.372) (1.325) violent crime rate 0.012 0.006 (0.018) (0.017) percent black males 15-29 18.623 25.313 (16.702) (16.244) percent involved in violent crime -0.054 (0.047) percent involved in property crime -0.005 (0.059) percent drug related -0.055 (0.130) percent suicidal -0.196 (0.060)** suspect age -0.723 (0.165)** percent more than one officer -0.019 (0.058) percent more than one suspect -0.025 (0.304) n 1,857 1,167 1,163 city & year fixed effects? yes yes yes f test: pct white officer=pct black officer 0.90 1.12 0.30 prob>f 0.343 0.289 0.587 notes. robust standard errors in parentheses; * p<0.05; ** p<0.01. the dependent variable is the percent of black suspects who were armed. the last two lines report the f-test on the equality of the coefficients on percent black and white officers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 34 published by scholink inc. we repeated the analysis on the proportion of armed white suspects and on the percentage of armed hispanic suspects. with respect to hispanic suspects, the results are the same as black suspects, namely no significant differences with respect to the races of police officers. however, we did find some evidence that unarmed white suspects are less likely to be killed by white and hispanic officers (table 9). although not reported, there is some evidence that hispanic officers kill unarmed white suspects at lower rates than black officers. table 9. do white police officers kill unarmed white suspects more often than black officers? fixed-effects city panel data regression model 1 model 2 model 3 percent white officer 0.199 0.202 0.213 (0.056)** (0.060)** (0.060)** percent black officer -0.216 -0.277 -0.185 (0.200) (0.246) (0.227) percent hispanic officer 0.345 0.293 0.349 (0.123)** (0.139)* (0.139)* population 0.298 -0.148 (1.085) (1.091) violent crime rate -0.019 -0.016 (0.013) (0.013) percent black males 15-29 8.782 2.944 (10.952) (11.540) percent involved in violent crime 0.034 (0.060) percent involved in property crime 0.017 (0.081) percent drug related -0.193 (0.097)* percent suicidal 0.161 (0.072)* suspect age 0.422 (0.215) percent more than one officer 0.091 (0.060) percent more than one suspect -0.060 (0.214) n 1,857 1,167 1,163 city & year fixed effects? yes yes yes f test: pct white officer=pct black officer 4.24 3.80 3.13 prob>f 0.040* 0.052 0.077 notes. robust standard errors in parentheses; * p<0.05; ** p<0.01. the dependent variable is the percentage of white suspects who were armed. the last two lines report the f-test on the equality of the coefficients on percent black and white officers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 35 published by scholink inc. finally, we estimate a panel version of our third test. the dependent variable is the percentage of all suspects, whether armed or not, who are black and who are killed by police. the explanatory variables of interest are the proportions of the police involved in such killings who are black, white, and hispanic (table 10). the results are consistent with those presented in table 5. there is no significant difference between the coefficients corresponding to the proportions of black and white police officers with respect to the proportion of black suspects killed. as a robustness check, we estimated the same model limiting the sample to cases where the race of all the police officers is known. the results were the same. table 10. do white officers kill black suspects more often than black officers? fixed-effects city panel data regression model 1 model 2 model 3 percent white officer -0.033 -0.026 -0.042 (0.046) (0.048) (0.046) percent black officer 0.204 0.284 0.130 (0.188) (0.226) (0.173) percent hispanic officer -0.106 0.054 -0.011 (0.170) (0.223) (0.202) population 1.184 1.652 (1.334) (1.281) violent crime rate -0.000 -0.008 (0.016) (0.016) percent black males 15-29 28.718 37.672 (13.972)* (13.747)** percent involved in violent crime -0.056 (0.048) percent involved in property crime -0.004 (0.058) percent drug related 0.000 (0.129) percent suicidal -0.200 (0.058)** suspect age -0.658 (0.170)** percent more than one officer -0.089 (0.056) percent more than one suspect 0.084 (0.267) n 1,857 1,167 1,163 city & year fixed effects? yes yes yes f test: pct white officer=pct black officer 1.62 1.95 1.05 prob>f 0.203 0.163 0.307 notes. robust standard errors in parentheses; * p<0.05; ** p<0.01. the dependent variable is the percentage of black suspects killed by the police. the last two lines report the f-test on the equality of the coefficients on percent black and white officers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 36 published by scholink inc. all models use robust standard errors. re-estimating using clustered standard errors did not change the results. all results, programs, and data are available in the online appendix. 7. summary and conclusion using a new dataset, we investigate three hypotheses concerning discrimination. the first tests whether the probability of an unarmed black suspect being killed by a white officer is equal to the same probability for unarmed white suspects. using incident-level data, we find some evidence, in two out of four models, that this hypothesis is rejected, implying that white officers are more likely to kill an unarmed black suspect than those of other races. however, in those cases where the officer was not alone, where the suspect was caught committing a violent crime, or the department is unionized, the probability that an unarmed black suspect would be killed by a white police officer is not significantly different from the probability that a white officer would kill an unarmed white or hispanic suspect. at the incident level, these tests cannot tell us whether police systematically treat black and white suspects differently for reasons other than individual racial animus. for example, politicians or administrators might require officers of all races to treat suspects in poor neighborhoods differently from suspects in more affluent neighborhoods. however, these influences could be at least partially controlled for in the city-level fixed-effects models. when we aggregate to city-year panels, we find that the proportion of unarmed black suspects killed by white officers is not significantly different from the proportion of unarmed white suspects killed by white officers. this raises the possibility that the original finding using incident-level data could be the result of unobserved heterogeneity which omits city-level data such as history, climate, and culture. we also find no evidence in the panel analyses that white officers discriminate against hispanic suspects or suspects of races other than white, black, or hispanic. the second hypothesis is that, in the absence of discrimination, the probability of an unarmed black suspect being killed by a white officer is equal to the probability of being killed by a black or hispanic officer. this test reveals no difference among officers of different races with respect to the probability of killing an unarmed black suspect. this result is confirmed by the corresponding panel data analysis. the third hypothesis is that the probability of a black suspect, armed or unarmed, being killed by a white officer is equal to the probability of a black suspect being killed by a black or hispanic officer. because some of the relevant data is not available, we must assume that the probability of a black suspect encountering a white officer is adequately controlled by including demographic variables for the city and the police department in the regressions. we find that there is no significant difference between the probability of a black suspect being killed by a white officer and a black suspect being killed by a black or hispanic officer. these findings are confirmed by the panel data analysis. despite the potential importance of body cameras, the presence of such cameras seems to have no significant effect on killings by police officers. the fact that additional evidence can be provided by the camera does not seem to alter the behavior of officers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 37 published by scholink inc. the finding that discrimination by white police officers expressed as killing unarmed black suspects at higher rates than suspects of other races is insignificant if the officer is not alone implies that officers acting alone are either under more stress or are more willing to express their racial prejudice, than those who have backup (or witnesses). perhaps having fewer white officers being forced to act alone will result in fewer lives lost. the online appendix is available here. https://crimeresearch.org/wp-content/uploads/2021/09/do_white_police_officers_unfairly_target_black _suspects-2.zip references roland, g. f. jr. 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(2016). the science of justice: race, arrests, and police use of force. los angeles: center for policing equity. retrieved from http://policingequity.org/wp-content/uploads/2016/07/cpe_soj_race-arrests-uof_2016-07-08-1 130.pdf knowles, j., persico, n., & todd, p. (2001). racial bias in motor vehicle searches: theory and evidence. journal of political economy, 109(1), 203-229. https://doi.org/10.1086/318603 macdonald, h. (2016). the war on cops. new york: encounter books. miller, t. r. et al. (2016). perils of police action: a cautionary tale from u s datasets. injury prevention. retrieved from http://injuryprevention.bmj.com/content/early/2016/07/27/injuryprev-2016-042023 nix, j., campbell, b. a., byers, e. h., & alpert, g. p. (2017). a bird‟s eye view of civilians killed by police in 2015: further evidence of implicit bias. crime & public policy, 16, 309-340. https://doi.org/10.1111/1745-9133.12269 https://doi.org/10.1086/701423 https://doi.org/10.1162/rest.91.1.163 https://doi.org/10.1257/000282806776157579 https://doi.org/10.1177/0011128716686343 https://doi.org/10.1257/pandp.20181004 https://doi.org/10.1086/318603 https://doi.org/10.1111/1745-9133.12269 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 38 published by scholink inc. ross, c. t. (2015). a multi-level bayesian analysis of racial bias in police shootings at the county-level in the united states, 2011-2014. plos one, 10(11), e0141854. https://doi.org/10.1371/journal.pone.0141854 worrell, j. l., bishopp, s. a., zinser, s. c., wheeler, a. p., & phillips, s. w. (2018). exploring bias in shooting decisions with real shoot/don‟t shoot cases. crime & delinquency. https://doi.org/10.1177/0011128718756038 notes note 1. sherwin lott provided extremely valuable help on the model in this paper. we thank seminar participants at george mason university economics department and mark ramseyer for helpful comments. note 2. jasmine lee and haeyoun park, “in 15 high-profile cases involving deaths of black suspects, one officer faces prison time”, new york times, december 7, 2017 (https://www.nytimes.com/interactive/2017/05/17/us/black-deaths-police.html). note 3. https://still4hill.com/2016/07/08/hillary-clinton-calls-for-national-guidelines-for-use-of-force/ note 4. http://webappa.cdc.gov/sasweb/ncipc/datarestriction_inj.html and http://www.icd10data.com/icd10cm/codes/v00-y99/y35-y38/y35 note 5. the fbi ucr data from 1976 to 1998 is available here (http://www.bjs.gov/content/pub/pdf/ph98.pdf). data for other more recent years are available from annual fbi ucr reports (e.g., https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/expanded_homicide_data_table_ 14_justifiable_homicide_by_weapon_law_enforcement_2011-2015.xls). when conflicts existed in the numbers reported by the fbi, we used the most recent years for which that data were available. note 6. even the media generally understands the missing data in the fbi numbers on justifiable homicides by police. rob barry and coulter jones, “hundreds of police killings are uncounted in federal stats”, wall street journal, december 3, 2014 (http://www.wsj.com/articles/hundreds-of-police-killings-are-uncounted-in-federal-statistics-14175775 04). john r lott, jr., “obama‟s false racism claims are putting cops‟ lives in danger”, new york post, july 8, 2016 (http://nypost.com/2016/07/08/obama-should-stop-smearing-cops-by-calling-them-racist/). note 7. the cases missed by the washington post in 2015: andre larone murphey, norfolk, nebraska, january 7, 2015; jonathan paul pierce, port st. joe, florida, february 11, 2015; jose e. herrera, delano, california, april 22, 2015; jonathan nelson, albertville, alabama, may 19, 2015; curtis david johnson, huntsville, al, june 4, 2015; andrew ellerbe, philadelphia, pennsylvania, june 5, 2015; estevan andrade gomez, farmersville, california, july 18, 2015; juan adolfo ibarra, houston, texas, july 20, 2015; stephen ray brown, choctaw, oklahoma, july 20, 2015; allan f. white iii, cleveland, tennessee, july 28, 2015; pablo c. tiersten, kansas city, kansas, august 20, 2015; nicholas alan johnson, san bernardino, california, september 18, 2015; jarek kozlowski, https://doi.org/10.1371/journal.pone.0141854 https://doi.org/10.1177/0011128718756038 https://www.nytimes.com/interactive/2017/05/17/us/black-deaths-police.html http://www.bjs.gov/content/pub/pdf/ph98.pdf www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 39 published by scholink inc. gardnerville, nevada, october 16, 2015; jeffrey womack, houston, texas, october 16, 2015; larry busby, old town, florida, october 29, 2015; brian crawford, houston, texas, october 30, 2015; unknown, san juan, puerto rico, november 3, 2015; and unknown, fontana, california, november 20, 2015. note 8. http://andrewgelman.com/2016/07/14/about-that-claim-that-police-are-less-likely-to-shoot black suspects-than-whites/ note 9. http://policingequity.org/wp-content/uploads/2016/07/cpe_soj_race-arrests-uof_2016-07-08-1130. pdf note 10. https://www.washingtonpost.com/national/study-finds-police-fatally-shoot-unarmed-black-men-at-disp roportionate-rates/2016/04/06/e494563e-fa74-11e5-80e4-c381214de1a3_story.html note 11. https://www.nytimes.com/interactive/2017/us/politics/ferguson-effect.html note 12. julia jacobo, “charlotte police to release full body and dashboard camera videos of shooting of keith scott”, abc news, september 30, 2016 (http://abcnews.go.com/us/charlotte-police-release-full-body-dashboard-camera-videos/story?id=4248 7682). note 13. office of public affairs, us department of justice, “justice department announces $20 million in funding to support body-worn camera pilot program”, us department of justice, may 1, 2015 (https://www.justice.gov/opa/pr/justice-department-announces-20-million-funding-support-body-worncamera-pilot-program). note 14. although not reported, we find that officers of race other than white or black do not kill black suspects with probabilities significantly different from white officers. note 15. adding these variables does not affect the results with respect to the discrimination tests in table 5. the one case where two of these variables was significant (model 4), using cameras on guns significantly increases the probability that a black suspect killed by police will be found to be armed and that increasing the number of part-time sworn officers significantly reduces that probability. all results are available in the online appendix. note 16. we cannot simply add city effects to the cross-section regressions because they would be perfectly collinear with the intercept for those cities with only one incident, reducing the usable data in table 3 for example from 777 to 138. microsoft word elp-v1n1-p92 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 1, no. 1, 2018 www.scholink.org/ojs/index.php/elp 92 original paper women and iranian criminal justice system mansour rahmdel1* 1 faculty of law, tehran islamic azad university, central branch, tehran, iran * mansour rahmdel, faculty of law, tehran islamic azad university, central branch, tehran, iran received: april 3, 2018 accepted: april 18, 2018 online published: may 16, 2018 doi:10.22158/elp.v1n1p92 url: http://dx.doi.org/10.22158/elp.v1n1p92 abstract to understand the predicament of women in iran, it is necessary to look to both the religion and strong social and cultural forces, which shape their position in society. islam is often held responsible for the inequitable and sometimes violent treatment of women in iran. considering the women situation before islam, they have gained more rights after islam. but, no doubt that the differences and strong social and cultural forces regarding women arise from islam in the iranian society. the justifications of these differences mainly is that before islam the women had so little rights and even they were buried alive, but islam has rescued them and given them some rights. while this view point in per se is completely un-right, but the point is that, it was 1400 years ago and in addition, why islam has not completed the protection against all differences. the simple answer is that in that social situation it was impossible to convenience the men to accept the equality of men and women. problems in attaining the full recognition and enjoyment of all human rights and fundamental freedoms for women in iranian criminal justice system are the main theme of the present article. keywords iran, women, human rights, differences 1. introduction it is generally believed that criminal law is sexually discriminating, which is somehow true (https://www.hsph.harvard.edu/organizations/healthnet.html). “the principles of equality and non-discrimination represent the twin pillars or the cornerstone upon which the whole edifice of human rights law is established” (heinze, n.d., p. 15). discrimination is usually done on the basis of gender, religion and race. “most contemporary constitutions prohibit discrimination based on gender” (rudolf & eriksson, pp. 507-525). iranian constitution has also explicitly referred to the equality of all persons before the law. in article 19 provides: “all people of iran, whatever the ethnic group or tribe to which they belong, enjoy equal rights; colour, race, language, and the like, do not bestow any privilege”. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 93 published by scholink inc. “the position and status of women has been a political issue across the globe and over the ages” (jafar, n.d., p. 34) and “it is a truism that words are instruments rather than labels; the language we use reflects our image of reality. the terminology chosen here reflects this reality: women indeed do not enjoy the rights and freedoms to which they are entitled by the mere fact that they are human” (tomaseyski, n.d., p. ix). the united nations charter was first to affirm explicitly the equal rights of men and women in its preamble and to lay down a person’s sex among the prohibited grounds of discrimination, alongside race, language and religion (tomaseyski, n.d., p. 98). according to the article 1 of the convention on the elimination of all forms of discrimination against women, 18 december 1979 for the purposes of the present convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field (human rights, discrimination against women, p. 7). and the principle of equal treatment between the genders is one of the most fundamental principles of the european union (docksey, n.d., p. 258). the point is that despite of these regulations and conventions, there are still many differences against women in some legal systems. certainly, some justifications are presented for these differences. the main factor of difference could be seen in islamic countries that are bound to islamic rules. but, in those islamic countries that do not perform the original islamic rules, either there are not any differences or the differences are very little. it seems that, in islamic countries the main factor of difference could be considered in the religion. as, according to islam there are some differences between men and women and they do not enjoy the equal rights. there are some justifications for these kinds of differences. in fact, it could be said that “religious communities are only interested in protecting the rights of religious communities” (clayton, n.d., p. 37). the most important justification about difference regarding the diya (note 1) and impossibility of retaliation without paying the half of the diya to the blood owners by the heir of the murdered woman is an economic justification and regarding the non-acceptance of testifying by women the justification is somehow complex. since, according to some fatwas (note 2) the women and the men have some important psychological differences, as the women are sensible persons and decide more passionately than rationally. “fatima mernissi after her analysis of various philosophical and religious texts of the islamic middle ages argues that in these texts women are presented as chaotic, irrational, unreliable and sexually active. in order to satisfy their strong sexual needs they ignore any moral or social laws and thus present a danger to the moral and social order. in the view of muslim theologians, islamic civilization is based on god’s will and reason, desire is viewed as chaos and as a threat to reason and civilization. this dangerous power is projected onto women and will be controlled by controlling women”. these ideas are put forward in many periods of western philosophy: www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 94 published by scholink inc. -aristotle stated that women are incomplete men with less reason. -rousseau stated that women’s desire is stronger than men’s, women have to refrain from abstract thinking and moral judgement. -kant admired women’s beautiful and pleasant intellect, and stressed that it is different from man’s abstract reason. -but it seems that the origins of the differences could be considered somehow in the society and culture. according to an old culture there were some differences between men and women in all societies and the societies were dominated by men rather the women. “the cultural factors in a male-dominated society prevail and unfortunately are supported by newly introduced misinterpretations of the religion, which are readily adopted by the frustrated, disillusioned masses” (schirilla, n.d., p. 57). based on the equality of rights, there ought not to be any difference in the application of legal rules, nevertheless sex has had a role in the iranian criminal law concerning women. this role has manifestation in two different aspects: first, concerning the application of substantial criminal laws the legislator has shown difference regarding women, positioning them in a less favourable position in comparison to men. for instance, the islamic criminal law (ipc) holds that should a man kill a woman, the diya owners of the victim have to pay half of the diya (diya) of a man to retaliate; in other word, it reduces the amount of a woman’s diya to half of that of a man. noteworthy is also the case in which a man is legitimately given the right to kill his disloyal wife, if the latter is caught in the act of committing adultery with a stranger, while the wife is legally denied of such rights. there have been attempts by certain organizations and individuals likewise to eliminate such differences, and the united nations’ commission for human rights has also called for these discriminatory disciplines to be eliminated by the iranian government (https://www.unhcr.ch/huridocda/huridoca.nsf) nevertheless due to a consensus among religious scholars believing in the inequality of the sexes (note 3), all such attempts have been as yet fruitless. second, there lies a difference in the criminal procedure. needless to mention that criminal procedure refers both to criminal laws as well as all rulings determined by other laws, particularly the islamic penal code (ipc), regarding criminal procedures. the favouritism emanates from the belief that women are basically incapable of stating the truth in its entirety. 2. method of the research the research method is descriptive and analytical. this explains that by studying the historical record of the compensation of the defendant in the legal system of iran and focusing on the criminal procedure code of the year 92, various aspects of the discussion have been considered and the points of weakness of the law have been investigated. so, data collection and data analysis represent the core of research. i have also addressed a range of different elements within the scope of the research. the present article is presented in four parts, including: the background of women’s human rights in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 95 published by scholink inc. iran and islam, differences in substantial laws, differences in criminal procedural laws, and deficiencies of criminal procedures regarding women. 3. the background of women’s human rights in iran and islam the 1979 islamic revolution in iran established a full-scale religious government in the country. the empowered muslim revolutionaries intended to introduce a ruling system which, as they claimed was far superior to all other current systems in the world, and thereby turn it into an epitome of government for the whole world to follow. in-depth structural and fundamental changes were launched in governmental systems as the islamic republic was established. the judiciary and the legislative witnessed the strongest waves of the tidal changes. some of the rules belonging to pre-revolutionary era were gradually replaced by islamic ones during the first few years after the revolution. the changes were more considerably discerned in the criminal policy of the country: unlike the civil laws system being based on shiite religious rules in the previous regime, the criminal policy, being considered unreligious, underwent a methodical modification in criminalization and punishment to comply with shiite religious rules. and as for the judiciary, many an experienced judges were made redundant, only to be replaced with ideologically selected and appointed ones (mostafa, n.d., pp. 233-265). 3.1 changing the laws the notion that whatever rule which existed before the revolution was laid by an illegitimate non-islamic government was the chief justification offered by the revolutionaries to introduce major changes to the system of rules which they believed had to lose their validity with the establishment of an islamic government. based on the same notion the one and only flawlessly divine source to lead man to salvation and bliss is islam, which is indeed a godly grace bestowed upon mankind through a holy prophet to enlighten the straight path by means of a set of perfectly immaculate divine rules. observing these rules brings forth social peace and order as well as bliss in the afterlife. this belief, in general, implied that manmade rules were practical to a limited extent, and where there exist divine rules, man ought not to lay any laws (mohammad, n.d., pp. 199-312). 3.2 two kinds of rules in islam two types of rules make up the body of islamic law: endorsed and established rules. that is to say that, on the one hand, certain rules existed before islam were endorsed by the new religion and retained their validity, and on the other hand other rules were originally introduced by islam into the societies converting to the religion. rules established in post-revolutionary iran are composed of both types of the above-mentioned rules, many of which are contradictory to modern human rights: gender difference in the case of rules regarding diya, testimony, guardianship, divorce, killing one’s spouse, etc. religious difference regarding muslims and non-muslims. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 96 published by scholink inc. lack of complete law abiding procedures, for instance, accepting authorized religious sources and the verdicts (fatwas) of religious scholars thereon as a means of criminalization and punishment. as well as applying rules passed after the revolution to crimes committed before the revolution (ex post facto laws), or holding courts based on certain regulations and without any law passed by the parliament. and going as far as trusting certain members of society with a legal procedure. practicing corporal and capital punishment (kind of private justice). lack of freedom in the choice of one’s religion: establishing certain punishments for conversion of muslims to other religions. 3.3 the contradiction a significant point often ignored is the fact that the existing contradictions between islamic rules and modern human rights should not be attributed to the religion per se. this does not actually imply that the rules were not introduced by islam, but instead they ought to be viewed according to the standards of the time they were divinely revealed to man. with the advent of islam in arabia, the mentality of the time perfectly approved of the rules introduced by the new religion and considered them quite logical, needless to say that the mentality of those days is incomparable to modern day mentality and common sense. the problem arises when rules are taken to be unwaveringly immutable, as unfortunately is the case in most islamic countries including iran. basically, rules are to define human interactions and to help establish peace and order in society, and since human interactions and relationships are constantly changing, rules as well should be modified to comply with these changes. the rules governing a traditional tribal community do fail short of meeting the needs of a complex industrial modern or post-modern society. historically, it is evident that rules, particularly criminal rules including crime and punishment regulations, have always been amended to keep their compatibility with changing societies. this is not meant to question religion. the so-called islamic law is mistakenly deemed to be an inherent part of the religion (mohammad, n.d., pp. 181-192). religion is a notion to be of service to all men at all times (note 4), and thus its essence cannot be mingled with an ever-changing phenomenon, that is to say law and regulations. for islam to be accepted by the people in its early days it had to be convincing in solving their legal problems, hence the prevailing common sense of the masses would determine the rules. 3.4 tendency to change though theoretically holding with the belief that islamic law is unchangeable, the iranian government has used its practical authority to either stop the application of certain islamic rules or to modify them as to meet the interests of the state and the society. this has been mainly due to a mounting international legal and political pressure against iran, as well as being affected by the changes discernable in post-revolutionary iranian society. among which one may mention the changes in women’s and religious minorities’ rights including the membership of women (seid, n.d., pp. 98-129) though on a limited scale, in the judiciary system of the country, partial reintroduction of public www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 97 published by scholink inc. prosecution offices, stopping the stoning punishment being practiced, and raising the amount of diya for members of the legally recognized religious minorities including christians, jews and zoroastrians to be equal to that of a muslim. 3.5 the reasons of contradiction on the whole, the unfortunate fact that certain human rights are not observed by the iranian legislative can be attributed to the following reasons. first, the government considers islamic laws to be constant and unchangeable notions, which is indeed a mistaken consideration, as was mentioned earlier. second, the iranian society is still grappling with tradition, and is not totally aware of modern thought and mentality in its entirety: few researches show that the iranian society is still resisting against certain aspects of modern thought. therefore, even if the government gives up its dogmatic view, the public is as yet socially and culturally unprepared to accept the changes. 4. differences in substantial criminal laws the right of women in the ipc is a controversial issue clearly inconsistent with international laws. that is to say, according to islamic laws, in general, and according to islamic criminal laws, in particular, the woman is entitled to fewer rights than the man. it is interesting to note that this has not been considered by clerics to be contradictory to the law of equality, or to have undermined the human dignity of women (note 5). but in the light of international laws concerning human rights, the different stance of the ipc regarding women shows certain discrepancies with international laws. these discrepancies are elaborated on in three parts as follows: 4.1 inequality of retaliation article 290 of the ipc states that “in the event of the murder of a muslim, the murderer is punished by retaliation”. but this does not necessarily imply that all murders entail retaliation: if the murdered is a non-muslim, there is no retaliation. and in the case of a murdered female muslim, article 382 of the same law declares: “in the event of a murder of a muslim woman by a muslim man, the latter is punished by retaliation if only half the amount of the diya of the murderer is paid beforehand”. thus, considering details of the ipc implies that: a) murder of a non-muslim (man/woman) by a muslim (man/woman) does not entail retaliation. b) if a muslim woman is murdered by a muslim man, the woman’s diya owners can have the retaliation if only they have already paid half the amount of the due diya of the murderer. c) if a non-muslim (man/woman) murders a muslim woman, the murderer is punished by retaliation. d) according to article 382 of the ipc if a non-muslim man murders a non-muslim woman, the diya owners of the woman can have the retaliation by paying half the amount of the diya. e) if a non-muslim woman is murdered by another non-muslim woman, the diya owners of the murdered can ask for retaliation. it is evident that the treatment of women (muslim/non-muslim) in comparison to the treatment of men (muslim/non-muslim) in the ipc is quite different (zahra, n.d., pp. 31-90), and in the particular case of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 98 published by scholink inc. non-muslim women the situation is exacerbated. this is undoubtedly contradictory to the equality of rights and to an unbiased treatment of cases regardless of religion—both of which are stated in international human rights. the question is that what is the origin of this rule in the law? how different is the rule in iran from the rules used in other islamic countries and why? to what degree does this rule fit within the larger legal framework in iran? how do different segments of the iranian society (e.g., the public, the media, politicians, religious leaders, women’s groups) view this rule and what are the reasons for disagreement/agreement? 4.2 inequality in diya the existing discrepancies between the ipc and international human rights are by no means limited to the question of retaliation, but are also extended to laws regarding diya: article 550 of the ipc determines the diya of a woman regardless of her religion half as much as that of a man. in the case of diya for injuries men and women are treated equally. but if the amount of diya of injuries regarding a woman reaches more than one third of the full amount of the diya, they are treated as half of the full diya for a man. for instance, the compensatory money for the loss of all ten fingers of the hands is the full amount; for three fingers of a woman it is more than one third of the amount; but for four fingers the woman will be receiving half of the amount. regarding the reduction to half of the amount of diya in the cases of women, economical considerations have been stated as a justifying reason: according to islamic rules the woman is not obliged to have a job, and she is to be supported by her father prior to marriage, and by her husband after marriage, therefore it is the husband who is the breadwinner of the family not the wife, thus economically speaking the man is to be treated with a higher value in comparison to a woman. such is also the case with inheritance rules: the daughter inherits half as much as the son from the deceased father or mother. the purported economic justification seems to be unsubstantiated in the case of the diya of injury, regarding the loss of a bodily member, being reduced to half in the case of women; because it is not consistent in other cases: the primary rule referring to full amount and then reducing it to half if only the items liable to receiving the money is more than one third of the whole. if such a rule had been grounded on economic considerations, then the primary rule would have determined the diya as half in the first place. then again the economic justification can be rejected in the light of the fact that laws should be regarding solely the humanity of a person, and not to be affected by either sex or religion. but it seems that the ipc regards sex and religion composite parts of the humanity of individuals. 4.3 inequality of rules regarding sexual disloyalty in the iranian criminal law any extramarital sexual relationship, even if it is committed with the full consent of the parties, is considered a crime. and in the case of adultery, considering certain conditions, the crime is punished by death. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 99 published by scholink inc. under certain circumstances the legislator has provided the husband with the right of killing his wife and the adulterer, if they are caught during the act and the husband is certain about the consent of his wife to the act of adultery. in the view of the legislator, it is the husband who is to prove the consent of his wife to the act. since this legalised right to kill the partners in the act of adultery grants the husband the opportunity to take the law into his own hands, it is indeed disrupting to public order. furthermore determining the consent of the wife during the act is by no means an easy task for the husband, and he may misjudge the truth. if we supposedly regard the two above mentioned shortcomings as being justifiable, a third fault of the law could be the fact that it does not provide the wife with the same right as to kill her husband who has engaged in the act of adultery (quaterly of book, pp. 15 -35). a possible reason for this apparent difference could be the legally identified right of a man on having up to four wives and an unlimited number of temporary partners. based on this, if the wife had been given the right to kill her husband, how could she be certain of the relationship of the female party engaged in the act of sexual intercourse? she might have been a wife to the husband. thus the act of killing on the part of the possibly erring wife would be considered as murder. all in all, international human rights consider this as a violation of women’s rights while islamic laws take it to be perfectly justifiable. 5. difference in procedural criminal laws there is no direct reference in the iranian criminal procedure code to differences between men and women, but these differences are discernable in the existing regulations. some are sexually discriminating while others are influenced by the religion of the women in question. in present article these aspects of procedural criminal laws are considered as follows: 5.1 rejection of the testimony of women without the accompanying testimony of men article 199 of the islamic penal code (ipc) holds that “the standard [of proof] for testimony in all offenses shall be two male witnesses; unless in zina, livat, tafkhiz, and musaheqeh which shall be proved by four male witnesses. in order to prove a zina punishable by the hadd punishment of flogging, shaving [of head] and/or banishment, testimony of two just men and four just women shall be sufficient. if the punishment provided is other than the above, testimony of at least three men and two women shall be required. in such cases, if two just men and four just women testify for the offense, only the hadd punishment of flogging shall be given. bodily offenses punishable by diya shall also be proved by one male witness and two female witnesses”. so, the testimony of women is valid if only it is accompanied by the testimony of at least two just men. thus, women accompanied by one man cannot bear witness to adultery. that is to say that even if ten or more women have witnessed the act of adultery their testimony is not recognized as valid by the law. it is important to note that the testimony of four women accompanied by two men are accepted only in the cases where the punishment is set as whipping and not death: that is because for the act of adultery to be punished by death, the law requires www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 100 published by scholink inc. the testimony of men or alternatively the testimony of three men accompanied by those of two women. no reason for this discriminatory preference has been stated, but it could be assumed that the rule emanates from the belief—as was the case in retaliation and diya—that legally speaking a woman is considered half as valid as a man. it could be said that the islamic legislator presumably intended to prevent adultery cases from being proved, and thus has made the legal process of bearing testimony as hard as possible. if this is the case then why is it that the legislator has not raised the number of valid witnesses to four in all cases so as to make the conditions as hard as possible? 5.2 absolute invalidity of the testimony of women regarding buggery article 199 of the iranian civil law declares that “the testimony of women alone or with the accompanying testimony of a man do not bear enough legal weight to prove the act of buggery”. trying to justify this one may quote article 233 of the ipc where it states that “buggery is a male crime” and since it is often committed in the presence of men, or because of the moral indiscretion of the act, women have been ruled out of the legal scene. if this is true, why in the case of lesbianism which is deemed a female crime, the conditions are not the same for the testimony of men? and the testimony of men is regarded as valid and article 199 of the ipc sets the legal process of proving the act of lesbianism “the same as that of buggery. that is to say that the testimony of women those not bear legal weight in the case of lesbianism which being a female crime is often committed in the presence of women” (nooshin, n.d., pp. 45-54). the case is the same regarding sexual mediation, while the mediator could be either a man or a woman. also regarding certain crimes such as accusing someone of adultery, buggery or wine-drinking the testimony of women are not accepted. 6. deficiencies of criminal procedural laws regarding women in this part existing deficiencies of the criminal procedural laws as regards women are enumerated. in recent years there have been attempts on the part of law enforcement forces beyond the determined frame of the law to eliminate certain legal shortcomings. therefore, since these attempts are beyond the law (but not necessarily against it) and that they are by no means widespread (only in larger cities such as tehran there are enough possibilities to put certain plans into action), it is more necessary to modify the existing laws to eliminate such deficiencies and shortcomings. to elaborate on these deficiencies they are presented as follows: 6.1 arrest being arrested by the police is a basic step at which personal rights of people face the right to interfere with them. without a doubt in order to keep law and order in society and to stop the breach of law by criminals it is necessary to interfere with the personal rights of certain individuals to keep legal procedures running. nevertheless there ought to an attempt to observe the rights of individuals under detention as much as possible. in order to defend the personal rights of female criminals a basic step would be to make it a legal obligation to have the females frisked by a female officer. in certain countries the law clearly refers to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 101 published by scholink inc. such a thing. for instance, according to procedural criminal laws of india a female criminal may be arrested by a policeman, but she should be searched and frisked only by a policewoman. article 47 of the abovementioned law states that if an apartment owned by a woman who refrains from appearing in public is to be searched by the police, they ought to ask her to leave the place during the search; this is to ensure the right to privacy of the female. male officers are also required not to touch a female criminal, and the police is not allowed to arrest a female before dawn or after dusk. in case she should be arrested during this time, the policeman in charge has to obtain an official permit from a higher ranking officer, and if obtaining such a permit is not possible, the policeman may arrest the female criminal and later submit a report explaining the situation, as well as reporting to the magistrate court. these measures are to ensure utmost protection of the rights of female criminals and were stated in the criminal code of 1994. in a report on rape and related crimes, the legal commission suggested to add the above mentioned items as an amendment to article 46 (1) as follows: “if a woman is to be arrested, and there is no female officer to take charge, the male officer should not touch the criminal” (https://www.hsph.harvard.edu/organizations/healthnet.html). 6.2 body search and examination the iranian criminal law does not clearly refer to the search of female criminals by female officers. certain conditions necessitate body search. for instance when a woman is accused of carrying illegal stuff, it is necessary to search her body, regardless of the fact that she might not have placed the illegal items in her cavities. hiding illegal drugs in the vagina, a common trick employed by female criminals, calls for a thorough search of the body or to determine the details of an act of rape or other suchlike physical violations, it is necessary to examine the outer and inner parts of the female genital organs, which should be also done by a female expert. article 128 of the iranian criminal procedure code allows a judge to ask a trusted forensic expert to carry out examination of dead bodies, injuries or mental harms and if the forensic expert fails to be present for the examination or there is no such person to be found, the judge may ask another trusted expert to accomplish the task. whenever the task is beyond the expertise of the forensic expert, another expert is required to take charge. it goes without saying that no reference is made in the law to the examination of the female body by a female expert. in most iranian cities there is only one forensic expert in charge, and that is mostly a man who carries out all examinations. based on the article 136 all examinations are carried out by the forensic expert unless: -the forensic expert fails to be present, -a forensic expert cannot be found, -the medical task is beyond the expertise of the forensic expert. and in either of these cases the judge may ask another trusted expert to accomplish the task, provided that: -there is another trusted expert to be found, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 102 published by scholink inc. -the invited expert is a qualified one. if such an expert is a female, the judge may ask her to carry out the examination; otherwise a male expert will take charge (note 6). insisting on having female bodies examined by female experts is to ensure that no violation is made to the female body by a male and this necessitates that the consent of the female criminal or victim be gained prior to physical examination by a male. “indian law, for instance, requires that a female medical expert carries out the physical examination of a woman under arrest. the national commission of women proposed that the examination of the female body necessarily carried out by a female expert be added as an amendment to article 54 of the criminal law, but apparently the government has rejected this suggestion, nevertheless the legal commission is still lobbying to have the amendment added to the law. the amendment may be questionable in cases where there is no female forensic expert to be found” (https://www.hsph.harvard.edu/organizations/healthnet.html). the iranian draft of the right to privacy called for all examination of female bodily cavities to be carried out by a female expert, and the proponents of the bill were of the opinion that the right to privacy and physical integrity of individuals ought to be observed, but unfortunately this draft had been withdrawn by the former state and the latter state has done nothing in this regard. 7. result iranian criminal laws are male-oriented and are mainly based on the social status of men, resulting in a different stance toward women as is discernable in the civil laws. instances of the dominance of men over women can be traced in history (note 7), and is not solely limited to iran or islamic countries. islamic regulations have not originated this difference, but the difference was ever present in history, not being shaken off in present world iran and other islamic countries. even some believe that “in reality, the role of culture, not religion, has been the prominent perpetuator of the oppression of women. islam, clearly, referring to the qura’an and not the shari’a, gives men and women equal rights” (muneera al-khalifa & noora al-khalifa, n.d., p. 233). sexual difference is evident in substantial laws concerning retaliation, diya and sexual disloyalty. certain discriminatory cases such as the invalidity of the testimony of a female, or its lack of legal weight without accompanying male testimony originates from either the belief held by men that females are members of the weaker sex, or the idea that since women are emotional creatures they are incapable of discerning the truth in its entirety. if, supposedly, these assumptions are taken to be true, the reason thereof could be the fact that women have always been banned from appearing in social interactions. the ever-significant-growing role of women in the iranian society, and other islamic countries as well, helps reject the fallacious nature of such assumptions. and regarding the emotional temperament of women, well it is the judge who is to consider the validity of testimony in order to discover the truth, and he may set forth to explore it meticulously. to sum up there seems to be no legitimate justification for the existing sexual difference, despite the fact that islamic law provides www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 103 published by scholink inc. certain rationalizations to support a difference which is strongly rejected by international human rights in the modern world and “is contrary to articles 1, 2 and 7 of the universal declaration of human rights” (mohsen, n.d., p 55): article 1: “all human beings are born free and equal in dignity and rights”. article 2: “everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. article 3: “everyone has the right to life, liberty and security of person”. article 7: “all are equal before the law and are entitled without any discrimination to equal protection of the law”. article 3 of the international covenant on civil and political rights, ratified by the iranian parliament in 1974, requires that “all governments in the treaty to observe equal rights of men and women regarding their civil and political rights as mentioned in the covenant”. article 1 of the 1975 united nations declaration on the elimination of discrimination against women states that “sexual discriminations denying or limiting equal rights to men and women are against justice and are considered as a violation of the dignity of human beings”. and finally the 1979 convention on the elimination of all forms of discrimination against women defines discrimination against women as “... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”. the final point is that the dialogue between islam and culture is ongoing. iranian women are caught in the midst of this dilemma. iranian women should promote a more egalitarian society, where gender is no barrier to any human rights. references afshan, j. (2005). women, islam, and the state in pakistan. in gender issues (p. 34). al-khalifa, m., & al-khalifa, n. (2007). human rights in the middle-east: the rights of women and children. quarterly, 26(4), 233. https://doi.org/10.1093/rsq/hdi0284 clayton, j. (2004). universal human rights and traditional religious values. in society (p. 37). https://doi.org/10.1007/bf02712703 docksey, c. (1991). the principle of equality between women and men as a fundamental right under community law. industrial law journal, 20, 258. https://doi.org/10.1093/ilj/20.4.258 heinze, e. (2003). the logic of equality: a formal analysis of non-discrimination. aldershot: ashgate. in human rights: discrimination against women: the convention and the committee, fact sheet (no. 22, p. 7). united nations. retrieved from http://www.ohchr.org/documents/publications/factsheet22en.pdf www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 104 published by scholink inc. kadivar, m. (2003). human rights and religious intellectualism. aftab magazine, 27, 55. malekian, m. (2002). a way to freedom (pp. 233-265). negahe moaser publications. mojtahed, s. m. (2002). a critique to formal reading of religion (2nd ed.). tarhe no publication. nooshin, a. k. (2002). women under the shade of step-fathers (4th ed.). toseeh publications. rudolf, b., & eriksson, a. (2007). women’s rights under international human rights treaties: issues of rape, domestic slavery, abortion, and domestic violence. oxford journals, 5(3), 507-525. https://doi.org/10.1093/icon/mom022 saeidzadeh, s. m. (1998). the women’s share in the civil society (pp. 98-129). qatreh publications. schirilla, n. (1998). women and reason in arab-islamic and european philosophy (p. 57). kluwer academic publishers. tashakkori, z. (2002). the woment from the intellectuals view (pp. 31-90). taha publications. tomaseyski, k. (1993). women and human rights. in zed books ltd (p. 98). london & new jersy. notes note 1. blood money. note 2. fatwa is the religious opinion of a high clergyman. note 3. the daily “jomhuri-e-eslami” october 4, 1997 quoted mr fazel lankarani (an islamic scholar) as saying: “who says that there is no difference between men and women? i don’t want to say that compared with men, women are lower in understanding, knowledge and philosophical thought. but god has privileged men over women in certain aspects” (https://www.womenaction.org/global mcwdi.htm). note 4. this means that the islamic religion has some fixed and unchangeable foundations and rules. but, the law aspects of the islam could be interpreted in accordance with new circumstances of the society. this is not a claim, but it seems to be one of the main features of all religions. note 5. the argument is that the men work out of the house and earn the money and have to give the costs of the life and the women have not to work out of the house and earn the money, as the man has a legal duty to earn the money and spend it on his wife or other members of the family. so from economic point of view the men overweigh the women and therefore in case of retaliation or diya a woman weighs half of a man. note 6. perhaps the iranian criminal law does not differentiate between a male medical expert and a female one anymore. note 7. to trace these historical discriminations ref: ancient civilisations by fostel dukulanje. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 162 original paper the importance of preventing juvenile delinquency luobu zhuoma 1 1 political science and law, tibet university, lhasa, tibet, china received: december 2, 2024 accepted: december 18, 2024 online published: december 19, 2024 doi:10.22158/elp.v7n3p162 url: http://dx.doi.org/10.22158/elp.v7n3p162 abstract the purpose of this study is to explore the importance of preventing juvenile delinquency and its profound impact on the social, economic and personal levels. this paper first clarifies the current trend and characteristics of juvenile delinquency, analyzes the root causes of juvenile delinquency from the perspective of the causes of juvenile delinquency, and mainly studies the psychological factors affecting juvenile delinquency from the perspective of values, which is of great significance to explore the causes of juvenile delinquency from the inner source. therefore, the prevention of juvenile delinquency can not only protect the physical and mental health of minors, but also promote social stability and economic development. in addition, early intervention and education can effectively reduce the crime rate of minors and reduce the cost of crime in the future society. finally, this paper proposes a series of prevention strategies based on the research results, including multi-dimensional intervention measures at the family, school and social levels, in order to provide reference for relevant policy formulation and practice. keywords delinquency, prevention strategy, early intervention 1. introduction with the frequent exposure of minors’ vicious wounding incidents, the call for severe punishment of juvenile delinquents is getting higher and higher. the overwhelming condemnation is rooted in the legal system’s treatment of juvenile delinquents, which is contrary to people’s simple sense of justice. it makes people misunderstand the law’s connivance of minors, and then questions the justice of the law, which is not conducive to the stability of social order. the “criminal law amendment (xi)” has conditionally reduced the starting point of the age of criminal responsibility, responded to the public opinion caused by the malignant wounding of minors in recent years, in order to calm the public mood, protect the social order, and reflect a strong concept of social defense, but the effect may not be satisfactory. jiang qinqin points out the deep-seated contradictions between “social defense” and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 163 published by scholink inc. “child welfare” in china’s juvenile justice system. how to achieve the balance between “child welfare” and “social defense” is an important task of juvenile justice reform. how to improve the system of juvenile protection and punishment under the background of law amendment has become an important issue to balance “child welfare” and “social defense”, which is related to social harmony and stability and the progress of national rule of law. 2. proposing the problem minors are the future of the motherland and the hope of the nation. the healthy growth of minors is related to family happiness and social stability. according to the law of the people’s republic of china on the protection of minors, minors are a special group under the age of 18. this period is the key stage of personal development, but at this time, the individual’s physical and mental development is not yet mature, and the imbalance between physiological and psychological development is easy to make minors form many bad behaviors, and even go to the road of illegal crime. in recent years, school bullying, child sexual abuse, internet addiction and other related issues have frequently entered the public eye, and have received more and more attention from all walks of life. the “white paper on the procuratorial work of minors (2022)” shows that juvenile delinquency is on the rise from 2020 to 2022, and it shows a trend of younger age and malignancy. in 2022, the procuratorial organs accepted the examination and prosecution of juvenile delinquency. the top five crimes are theft, affray, rape, robbery, and affray. the situation of preventing juvenile delinquency is still not optimistic and deserves continuous attention. in the past, the academic circles discussed the causes of juvenile delinquency from individual, family, school, society and other factors. abnormal family environment, lack of school education, bad interpersonal relationship, violent subculture atmosphere and so on are all important factors affecting juvenile delinquency. at the same time, the biological factors such as age, hormone, heredity and body shape of juvenile individuals and psychological factors such as personality, cognition, motivation and emotion also have an important influence on the formation of juvenile delinquency. among many influencing factors, individual psychological factors play a vital role, and even to some extent, they can be said to be deep-seated root factors. criminal acts are carried out under the control and influence of psychological factors, which are the external manifestations of psychological factors. without the psychological factors that affect crime, criminal behavior will not occur. studying the psychological factors that affect juvenile delinquency is of great significance for exploring the causes of juvenile delinquency from the inner source. there have been studies on the psychological factors related to juvenile delinquency, mainly focusing on the pathological personality, negative emotions, abnormal needs, and negative motives of juvenile offenders. these studies provide an important reference for explaining and responding to juvenile delinquency from a psychological perspective. among them, the bad cognitive concept is a major psychological cause of juvenile delinquency, and values are the core content of personal cognitive concepts, which are people’s basic views and attitudes to identify things, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 164 published by scholink inc. distinguish right from wrong, and distinguish good from evil. in particular, personal actions are dominated by their value judgments and value decisions. to some extent, values play the role of “master switch” in many psychological factors, which can guide, guide, correct and improve the remaining psychological factors. in the study of juvenile delinquents, some domestic scholars have theoretically analyzed the characteristics and causes of juvenile delinquents’ values, and believed that bad values are an important reason for juvenile delinquents. some scholars have also used empirical methods to find that values have a significant predictive effect on juvenile delinquency, and strong moral values and equality will inhibit the occurrence of juvenile problem behaviors. a large-scale survey of juvenile offenders in china also shows that the group’s values of money worship and utilitarian thinking are more serious, and they often hold a negative attitude towards national laws and moral concepts. the above studies provide evidence support for the close relationship between values and criminal behavior. the values of criminals are not consistent with the mainstream social norms. the standard for measuring right and wrong, good and evil is not the mainstream social values, but more to meet their own desires and needs as the starting point. minors are in a critical period of personal growth, development and socialization. their willpower is relatively weak, and their views on the problem are not yet mature. they are vulnerable to the wrong guidance of negative social factors, forming blind, naive and distorted values, which in turn leads to illegal and criminal acts. to discover and understand the characteristics of the values of juvenile offenders, we can analyze the causes of juvenile delinquency from the perspective of cognitive characteristics, correct the possible wrong ideas of minors, guide minors to establish correct and rational values, and better practice the core values of socialism. 3. analysis of the reasons for the increase of sexual crimes committed by minors 3.1 the direct reason is that the crackdown has increased after the amendment of the law the “criminal law amendment (xi)” passed on december 26,2020 revised the item of rape in article 236 of the “criminal law” to read: “whoever rapes a woman by violence, coercion or other means shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years”. whoever rapes a young girl under the age of 14 shall be given a heavier punishment on the basis of rape. after the amendment of this article, the public security organs have increased the crackdown and judgment on juvenile sexual crimes, which coincides with the time when the proportion of juvenile sexual crimes has risen sharply. in 2021, the number of newly detained juvenile sex offenders increased by 3.2 times compared with 2020, and the proportion increased by 1.4 times. 3.2 the advance of physical development and the lag of psychological growth are the objective reasons with the growth of body and the development of secondary sexual characteristics, sexual impulse and curiosity are the physiological causes of juvenile sexual crimes. according to the survey, in the sichuan region, whether it is a juvenile offender of sexual crimes, or a minor female who has been www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 165 published by scholink inc. infringed, the height has reached or even exceeded the adult standard. in most cases, the choice of minors to commit sexual crimes is some young girls or girls who have advanced development or are relatively tall. compared with the maturity of physiology, the psychology of minors is obviously immature. this shows that the physiological and psychological contradictions of minors are superimposed on sexual-related behaviors, which can easily lead to paranoid impulses, sexual misconduct, sexual assault and even sexual crimes. 3.3 lack of guiding desire and distorted cognition of sex are the root causes according to statistics, the age of the first sexual impulse of juvenile delinquents is mainly concentrated in the age of 12 to 16 years old, and it is more concentrated around the age of 14, which requires appropriate guidance and education. otherwise, their cognition may be deformed and distorted until they break through the bottom line of social norms. 3.4 a lack of knowledge of the law and long-term bad habits are the internal reasons 63.3% of the juvenile delinquents did not know that the law prohibits sexual relations with women under 14 years old, 47.1% did not know to take protective measures when having sexual behavior, and 55.9% did not know how to prevent syphilis, aids and other sexually related diseases. from the interview in prison, it is found that the understanding of the law of juvenile delinquents of sexual crimes is still not in place. some juvenile delinquents of sexual crimes defend themselves according to judicial interpretations, some do not sexually assault but assist in controlling the victim’s body, some provide venues, record or participate in planning, and some instigate others to rape through the internet. all of them think that the court’s judgment of these acts is inappropriate. legal constraints are the last “insurance” for uncontrolled desires, but minors’ ignorance of sex-related laws, contempt for school and social rules, and long-term bad habits are the internal causes of their crimes. 3.5 poor supervision of home and school and lack of social governance are the external reasons there is a prominent situation that there is no person, especially no guardian, in the home of juvenile offenders with sexual crimes. according to the data, 63% of the parents of juvenile offenders work in coastal areas such as zhejiang and guangdong for a long time, 12% work in chengdu, and 7% work in other cities in the province. 30.2% of juvenile sexual crimes occurred in hotels. 67.3% of these people were not required to show identity documents. 14.0% issued juvenile identity cards but the staff did not stop. 7.6% used adult identity cards to register, indicating that the hotel management was not in place. the prevalence of drinking and smoking among minors before sexual crimes indicates that there are still many gaps in the prohibition of the sale of tobacco and alcohol to minors. 76% of the sexual crime minors did not receive sex education in school. at the same time, various temptations in society also impact minors from time to time. the majority of juvenile offenders and a small number of victims of sexual crimes have access to bars, internet cafes, ktv and other entertainment venues, and meet young people who have dropped out of school and are unemployed. some girls who are too open-minded, greedy for money, easy to become the object of infringement. 62.6% of juvenile delinquents have seen or heard sexual behavior, of which friends accounted for 65.2%, relatives accounted for 13.2%, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 166 published by scholink inc. indicating that some of the juvenile dating circles lack supervision, and commercial entertainment venues do not strictly prohibit minors from entering. 4. the implementation path of preventing juvenile delinquency the protection of minors and crime prevention is a systematic and complex project, in which the prevention of sexual crimes cannot be ignored and avoided. we should work together from the government, society, schools, prisons, families and other levels to form a pattern of prevention and control of juvenile sexual crimes in which the government strengthens legal supervision and performance, the school carries out comprehensive sex education, the prison highlights special education and correction, the family pays attention to family education and guardianship responsibilities, and the society creates a healthy environment. 4.1 the government needs to strengthen the improvement and implementation of laws and regulations after the second revision of the law on the protection of minors and its implementation on june 1, 2021, various government departments have successively issued many supporting rules and regulations, among which the provisions concerning the prevention of juvenile sexual crimes are scattered in various departmental regulations and rules. relevant departments should strengthen supervision of performance and enhance the enthusiasm and consciousness of protecting minors and preventing crime. 4.1.1 in terms of network prevention (1) the general administration of radio and television of the people’s republic of china issued the “regulations on the management of juvenile programs” on october 18, 2021, stipulating that juvenile programs must not contain sex-related topics and pictures other than healthy and scientific sex education. (2) the “opinions on strengthening the protection of minors in the online cultural market” formulated by the ministry of culture and tourism has been implemented since november 29, 2021, requiring resolutely blocking, timely and effective shielding, and cleaning up pornographic content. it is prohibited to induce minors by displaying vulgar pictures, “welfare”, “information” and other suggestive information. (3) the “notice on further strengthening the management of primary and secondary school students’ addiction to online games” issued by the general office of the ministry of education and other six departments has been implemented since october 20, 2021, and it is required to resolutely eliminate pornographic and vulgar content in online games that hinder the physical and mental health of primary and secondary school students. (4) the “mobile internet application information service management regulations” revised by the national internet information office came into effect on august 1, 2022, requiring application providers not to produce, reproduce, publish, and disseminate information that endangers the physical and mental health of minors. (5) at the end of june 2023, the secretariat of the central network information office carried out the special action of “qinglang 2023 summer minors network environment improvement”. the key rectification is to use the algorithm to push the induced addiction content to the minors, and use ai www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 167 published by scholink inc. technology to generate vulgar pornographic pictures and videos involving minors. 4.1.2 prevention in special places (1) the “measures for the administration of entertainment venues” revised by the ministry of culture and tourism has been implemented since may 13, 2022, requiring that entertainment venues should suspend minors’ entry or restriction signs in a prominent position. (2) the “notice of the ministry of culture and tourism and the ministry of public security on strengthening the protection of minors in the management of e-sports hotels” issued by the ministry of culture and tourism and the ministry of public security has been implemented since august 2023. the e-sports hotel is characterized as a place not suitable for minors’ activities, and it is strictly prohibited to receive minors. the next step is mainly to strengthen the implementation and supervision, strengthen the control of minors’ drinking, continue to crack down on social ugly phenomena such as “pornography, gambling and drugs”, focus on checking online games, live broadcasts, short videos, etc., which have more problems, and avoid bad subjects using pornographic information to induce and harm minors. 4.2 primary and secondary schools should carry out comprehensive sex education for minors the term “sex education” in the new “law on the protection of minors” was written into law for the first time. the school is the main position to carry out sex education for minors. it should pay close attention to the development of courses, the compilation of teaching materials, the training of teachers, the improvement of institutions and the systematic development of relevant education. 1) schools should incorporate sex education for minors into their daily teaching content, guide them with the concept of “preventive treatment of disease”, and continue to promote sex education including life education, sex-related laws, and prevention of sexual harassment and sexual assault. sexual safety education should be carried out directly in middle school. 2) cultivate and train a group of professional sex education teachers, integrate sex education into the training of teaching staff, strengthen the prevention awareness and coping skills of teaching staff, and at the same time provide relevant guidance and training to parents. 3) explore the establishment of a comprehensive management system covering the early warning, detection, reporting and assistance of sexual assault of minors. the implementation of the law provides for the establishment of a special system for the prevention and control of student bullying and the prevention of sexual abuse and sexual harassment, the establishment of a zero-tolerance mechanism for the handling of student bullying, sexual abuse and sexual harassment, and the care and support mechanism for injured students. special offices for prevention, handling and psychological counseling are set up to help minors and teaching staff cope with such incidents. 4) extensively carry out mental health work including sexual morality and sexual psychology. regularly carry out mental health assessment, strengthen mental health monitoring, improve psychological early warning intervention, etc., especially pay attention to the mental health of minors in the period of rapid height growth and secondary sexual development, and timely carry out education and counseling of sexual morality and sexual psychology. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 168 published by scholink inc. 4.3 families should pay attention to family tradition and family education and fulfill their guardianship duties parents are the earliest and best teachers for children. it is very important to create a good family style and fully perform guardianship duties to prevent and reduce juvenile sexual crimes. 1) parents must do their own demonstration. we should set a good example, do not set foot in porn places, strengthen the management of computers, smart phones, network projectors and other networking equipment, do not talk about pornography topics in front of children, watch explicit “wipe” videos, and pay attention to avoiding children in the normal sexual life of husband and wife, so as to promote the healthy growth of children with their own good image. 2) early sexual enlightenment education. use the existing various types of sexual enlightenment books, related documentaries on the origin of life, human gestation, growth and development, open classes, etc., to carry out sexual enlightenment education for minors as early as possible, and to carry out physiological health education as early as possible during the peak period of growth and adolescence. 3) pay special attention to the social situation of children. according to the characteristics of minors’ psychological and physiological changes, we should pay attention to their thoughts and emotions, hobbies and social interactions, and pay special attention to the use of social software, especially adult social software; attention should be paid to the regular inspection of the registration and binding of identity cards and social software for adults in the family, especially for the elderly in the left-behind family. when children are found to have misconduct, they should be considered and patiently guided. 4) there should be different educational emphasis on male and female minors. in addition to sexual knowledge and sexual morality, male minors should focus on sexual responsibility and sex-related legal education, especially on popularization, which cannot be related to young girls under 14 years old. for female minors, we should focus on the education of anti-aggression awareness, so that they can learn to maintain a safe social distance, learn to refuse, protect themselves, understand self-esteem and self-love, not trust acquaintances, and consciously avoid being in a dangerous environment. 4.4 society should create an environment conducive to the healthy growth of minors creating a healthy social and cultural environment is an effective way to prevent juvenile delinquency, especially sexual crimes. 1) vigorously promote public order and good customs. it advocates the socialist core values, resists the misconceptions such as excessive openness, unfettered sexual freedom, “laughing at the poor and not laughing at the prostitutes”, and educates and guides the elimination of stereotypes and customs, and cultivates a new style of civilization. 2) build parent training school. in order to further implement the “family education promotion law”, prisons, schools, relevant departments such as the work committee and the women’s federation should explore the establishment of parent training courses, educate parents to correctly perform their guardianship duties, improve their educational ability, avoid misunderstandings in blind areas of parenting, strengthen physical education, change parenting methods, put an end to misunderstandings www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 169 published by scholink inc. in parenting, create a harmonious parenting environment, and encourage parents to use more scientific and reasonable methods to discipline their children and give full play to their exemplary role as parents. 3) improve the construction of social security system. we should pay attention to the social security problems of migrant children, left-behind minors and released minors. it is suggested that the protection of minors should be included in the overall layout of economic and social development, included in the evaluation system of peace construction and spiritual civilization construction, and special funds should be allocated to support the development of the protection of minors. actively cultivate a working team active around minors, and promote family inspection visits and problem discovery reports. give basic social assistance to minors who are out of school, drop out of school and poor, care for the healthy growth of minors in special groups, and achieve academic guidance, life assistance, and psychological counseling to minimize the risk of juvenile delinquency. 5. significance of preventing juvenile delinquency preventing juvenile delinquency helps to protect them from criminal acts and ensure their physical and mental health and safety. reducing juvenile delinquency helps to maintain social order and stability, reduce crime rates, and improve the overall sense of security of society. the prevention of juvenile delinquency can reduce the consumption of social resources in the judicial and disciplinary systems, thus releasing more resources for economic development. by preventing juvenile delinquency, the rate of return on investment in education can be improved, as more children can successfully complete their studies and become active contributors to society. the prevention of juvenile delinquency helps to maintain the harmony and stability of the family and reduce the pain and economic losses caused by criminal acts. preventing juvenile delinquency can reduce the incidence of future crimes, because these minors will become adults in the future, and their criminal behavior will have a more far-reaching impact on society. by preventing juvenile delinquency, we can cultivate their awareness of the rule of law and moral concepts from an early age, and lay the foundation for building a society ruled by law. prevention of juvenile delinquency helps to reduce the rate of recidivism, because early intervention can more effectively change the behavior patterns of minors. preventing juvenile delinquency helps their mental health development and avoids psychological trauma and self-identity problems caused by criminal behavior. by preventing juvenile delinquency, we can cultivate their sense of social responsibility and make them become citizens beneficial to society. 6. conclusion through in-depth study of the importance of preventing juvenile delinquency, this paper reveals the multiple values of prevention work for personal development, family harmony, social stability and economic development. through comprehensive analysis and empirical research, this study emphasizes the importance of cross-sectoral cooperation and points out the key roles played by families, schools, communities and government agencies in the prevention of juvenile delinquency. by early www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 170 published by scholink inc. identification of risk factors, providing psychological support, enhancing the rule of law education and promoting social integration, minors can be effectively prevented from embarking on the road of crime. finally, we call on all sectors of society to work together to take comprehensive preventive measures to create a safe, healthy and growth-friendly environment for minors. through these efforts, we can look forward to building a more harmonious and just society, in which minors can give full play to their potential and become active contributors to society. references “law of the people’s republic of china on the protection of minors” article 2. (n.d.). du, s. c., & xu, d. y. (2014). analysis of the formation mechanism of prisoners’ values and moral consciousness. jingyue journal, 2014(6). jiang, z. r., & he, s. b. (2024). investigation and prevention suggestions on juvenile sexual crimes in sichuan province. crime and reform research, 2024(11), 30-38. li, m. q. (ed.). (2013). principles of criminology (p. 181). china people’s public security university press. lyu, m. c., & chen, y. (2024). research on the construction of juvenile crime prevention mechanism from the perspective of rural revitalization. research on the prevention of juvenile crime, 2024(05), 25-31. qu, z. y., zou, h., & duan, x. y. (2006). the relationship between self-control, values and juvenile delinquency. youth studies, 2006(5). song, s. y. (1997). the characteristics and causes of juvenile delinquents’ values. journal of shenyang normal university (social science edition), 1997(3). tian, a., & zhang, m. (2023). a machiavellian personality study of juvenile offenders—based on comparison with ordinary minors and adult offenders. journal of sichuan police college, 2023(6). white paper on procuratorial work for minors. (2022). issued by the supreme people’s procuratorate on june 1,2023. zhang, m., lyu, c., & fu, y. z. (2020). research on the decision-making style of juvenile delinquents—based on the comparison with ordinary minors and adult delinquents. journal of china people’s public security university (social science edition), 2020(2). zhang, n. y., ge, l., & lv, y. w. (2024). summary of the seminar on the governance of juvenile delinquency from the perspective of comprehensive judicial protection. chinese prosecutors, 2024(15), 22-26. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 194 original paper the gaza conflict, from an international law perspective failure of humanitarian law and restructuring of global governance yixiao pei 1 1 school of government administration, shanghai university of political science and law, shanghai, china received: september 12, 2025 accepted: september 19, 2025 online published: october 8, 2025 doi:10.22158/elp.v8n2p194 url: http://dx.doi.org/10.22158/elp.v8n2p194 abstract the 2023-2025 gaza conflict, which killed more than 35,000 people, has exposed the systemic failure of the contemporary international humanitarian law system. this article uses the geneva conventions and their additional protocols as an analytical framework, combined with the implementation dilemma of un security council resolution 2728 (2024), revealing the persistent violations of the principles of proportionality and distinction by the belligerents, especially the israel defense forces-including indiscriminate attacks on medical facilities, journalists and civilian settlements. the study was conducted through three dimensions: first, deconstructing the legal roots of the international community’s “failure of collective action”, with a focus on the legal disputes over u.s. arms supplies and eu economic sanctions; secondly, assess the effectiveness of china’s “two-state solution” reconstruction initiative, russia’s “humanitarian corridor” program and the arab league’s mediation action; finally, a new mechanism of “preventive judicial intervention” was proposed, suggesting the strengthening of the pre-forensic rights of the international criminal court (icc) and the establishment of a united nations standing conflict verification force. this paper particularly demonstrates the extended application of the definition of war crimes in article 8 of the rome statute, providing an operational legal toolkit for future conflict prevention. keywords public international law, gaza war, invasion, international sanctions, law of war, humanitarian crisis www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 195 published by scholink inc. 1. introduction an important condition for the implementation of international law is “commitment”, yet in real legal practice, international law commitment has always been difficult to implement against the illegal acts of sovereign states-especially against major powers. it is this apparent gap-the chasm between verbal support for preventive measures and actual commitment-that has prompted the international commission on preventive services (iciss) to try to address it through its concept of “preventive responsibility”. at the core of the commission’s recommendations is annan’s view that the world needs to shift from a “reactive culture” to a “preventive culture”. this challenge has been partially addressed. in july 2001, the group of eight (g8) launched the rome conflict prevention initiative. focus on measures such as combating the small arms trade, combating conflict diamonds, stopping child soldier behavior, promoting women’s participation in development, and promoting private sector development (see john j. kirton and radoslava n. stefanova, 2004). at the same time, the uk established two special funds for conflict prevention: the global conflict prevention fund and the africa special fund (see paul d. williams, british foreign policy under new labour, 2005). despite these measures, how to do better in the field of prevention has always been a recurring theme in the global consultations of the international crime prevention and criminal justice system (iciss). based on long-term understanding of different types of prevention efforts, the commission has divided its recommendations into three major areas: “early warning mechanisms”, addressing root causes, and “direct prevention”. ironically, given that the conference only explicitly listed early warning mechanisms as part of preventive responsibility, iciss pointed out at the beginning of the discussion that mistakes related to early warning are often exaggerated, and the core of the problem is often not the prediction of violent conflicts, but the lack of political will to translate the prediction into action. it is now well known that the mass massacres among serbs, georgians and bosnian muslims during the bosnian war, the genocide in rwanda and israel’s indiscriminate bombing of arab civilians in the gaza strip were all predicted before they occurred. however, the international crisis information and early warning system (iciss) has found that a more precise analysis of the early warning signals might enable an earlier opportunity for constructive third-party participation. it is precisely because of this possibility that several intergovernmental organizations (igos), including the world bank, and non-governmental organizations (ngos) such as reliefweb have established their own early warning mechanisms. 2. methodology 2.1 preventive diplomacy the arab-israeli conflict was once the most fundamental and basic dividing line in international relations in the middle east. since the 1990s, the palestinian issue has been at the core of the arab-israeli conflict. the 2002 arab league summit adopted the beirut declaration, which made a fair settlement of the palestinian issue a prerequisite for the establishment of diplomatic relations between arab states and israel. in september 2020, under the push of the donald trump administration, israel signed the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 196 published by scholink inc. abraham accords with the united arab emirates and bahrain to normalize relations as the situation in the middle east evolved and the us middle east strategy was adjusted. in october and december of the same year, sudan and morocco also joined the process to establish diplomatic relations with israel. since joseph biden took office, the united states has continued to vigorously promote reconciliation between saudi arabia and israel and encourage israel to establish diplomatic relations with more arab countries to help israel achieve a “diplomatic breakout” in the arab world to form the us-israel-arab “iron triangle”, together to contain the iran-led “resistance alliance” (iran’s shiite forces + hamas). the abraham agreement, which advocated for promoting arab-israeli reconciliation by setting aside the palestinian issue, has led to the marginalization of the palestinian issue. the ongoing normalization of relations between saudi arabia and israel has further raised deep concerns among various palestinian factions, represented by hamas, about their own marginalization. coupled with the 17-year blockade imposed by israel on gaza since hamas seized control of the region from fatah in 2007, which has led to a shortage of food, medicine and other necessities of life in gaza, an intensification of the humanitarian crisis, and a continuous rise of anti-israel sentiment in gaza, military struggle has become the main means of hamas’ fight against israel. the core of un security council resolution 1325 (2000) is to protect the rights of women and girls in armed conflict, ensure their participation in the peace process, and prevent gender-based violence against them. israel has repeatedly violated the spirit of the resolution and international humanitarian law in its military operation in gaza, as manifested in the following aspects: 2.1.1 violation of the provisions on gender-sensitive protection in resolution 1325 resolution 1325 recognizes that the impact of armed conflict on women and girls is different and disproportionate, and calls on all parties to ensure their protection, humanitarian assistance, health and their full participation in conflict resolution and peace-building processes. a) disproportionate civilian harm and neglect of women’s needs the un bulletin (december 2023) reported that since october 2023, israel’s bombings have killed nearly 12,000 women and children, and 1.1 million women and girls are in urgent need of basic services food, shelter, water and sanitation and have severely hindered access to health care, especially for pregnant women and girls with disabilities. this amounts to israel’s failure to fulfill its obligations under international humanitarian law and resolution 1325, and its failure to take responsibility for gender harm. (un) un experts (may 2025) stress that in the famine crisis, more than 28,000 women and girls have lost their lives, thousands have been injured, nearly one million have been displaced, and 13,000 women have become heads of single-parent families. they stressed that the suffering “is not accidental—but rather the consequence of israel’s deliberate policies and actions” and is likely to constitute a condition aimed at destroying palestinians’ living conditions “in whole or in part”. this once again highlights the violation of the gender-sensitive protection provisions in resolution 1325. (united nations) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 197 published by scholink inc. b) systemic sexual and gender-based violence a report released by the united nations commission of inquiry in march 2025 documented sexual and gender-based violence, including forced nudity, stripping searches, posing in underwear in front of the israeli flag, insults and threats, and attacks on palestinian women and girls, all of which are rooted in the operational procedures of the israeli security forces. this is a serious violation of the protection of women and girls as required by resolution 1325. (wikipedia) the report of the office of the high commissioner for human rights (and the special rapporteur) noted that female detainees have been raped, stripped naked and photographed in degrading circumstances acts that seriously violate international humanitarian law and international human rights law and directly undermine any obligation under resolution 1325 to avoid gender-based harm and persecution. (wikipedia) 2.1.2 broader violations of international law have undermined the objectives of resolution 1325 even leaving gender aside, israel’s actions violate key principles of international humanitarian law (such as distinction, proportionality, collective punishment) and international legal protection related to civilians, directly undermining the humanitarian assistance and protection required by resolution 1325. a) hunger as a means of war/collective punishment the un-backed gaza peace council declared famine in gaza city, with more than 514,000 people facing it, and the situation worsened further in september, partly due to israel’s restrictions and controls on aid which increased the likelihood of war crimes. (the guardian) a un security council spokesman (2024) condemned “hunger as a means of war” and collective punishment, calling on israel to stop obstructing unrwa and uphold humanitarian law. (un news) the international commission of inquiry (june 2024 report) concluded that israel is responsible for crimes such as famine, attacks on civilians and forced migrations. additional independent analysis pointed to the killing of civilians at aid sites (for example, 118 at the nablusi roundabout), the death of hundreds of aid workers (more than 196), and the use of white phosphorus indicating serious violations of international humanitarian law. (geneva center for international justice) b) attacks on humanitarian, medical and civilian infrastructure another major violation is targeting hospitals: attacks on more than 20 hospitals in northern gaza, severe shortages of medicines and worrying maternal health conditions. these acts as reported by reports such as the german watch directly violate the principles of international humanitarian law regarding the protection of civilians. (deutschwatch) the recent attack on nasser hospital, which killed journalists and medical staff, has raised legal alert for the “double-click” tactic, which could constitute a war crime. (the washington post) https://www.washingtonpost.com/world/2025/08/25/israel-gaza-palestinian-journalists-killed-hospital/?utm_source=chatgpt.com www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 198 published by scholink inc. c) forced migration/population engineering the general assembly of the european commission condemned israel’s “operation gideon tank” and forced migration, describing it as a serious violation of the fourth geneva convention and potentially an international crime especially serious under the provisions of resolution 1325 regarding human security. (parliamentary assembly of the european commission) the red cross (august 2025) declared the withdrawal from gaza city unsafe and unfeasible, highlighting israel’s inability to guarantee the safety of civilians during displacement a violation of its international humanitarian law obligation to protect civilians. (reuters) in addition, israel has declared gaza city a “war zone”, halted humanitarian ceasefires and airdrops, and plans to cut aid all of which have exacerbated the humanitarian crisis. 2.2 coercive threshold 2.2.1 the justification of armed intervention under chapter vii legal standards of the charter of the united nations to authorize the use of force, the united nations security council must determine that a certain situation constitutes a “threat to peace”, a “violation of peace” or an “act of aggression” (article 39), and must authorize action in accordance with chapter vii including the scale, duration and nature of the force. applicable to gaza genocide and famine: gaza courts have described the situation israel is creating as “the deadliest stage of genocide,” and urged the united nations to engage in armed intervention in a deadlocked security council through a “united for peace” mechanism (anadolu agency). disrupted delivery of aid: un special rapporteur on the right to food warns that humanitarian aid deliveries in gaza are under severe attack and can only be protected by un armed peacekeeping forces. he believes that if no action is taken, there is a risk of “dystopia” when aid operations will come to a complete halt. (the guardian). political divisions: efforts to authorize peacekeeping forces through the security council, such as a french resolution, were rejected reportedly by the united states paralyzing un operations. the un budget is underfunded (up to 82% of the funding gap in the region) and lacks authorization. fragmentation of global diplomacy: eu member states are severely divided; some countries advocate sanctions and freezes, while others oppose (reuters). ministers from germany, italy, the united kingdom, australia and new zealand issued a joint statement condemning the annexation and calling for a ceasefire, but did not support armed intervention (euronews). https://www.theguardian.com/global-development/2025/jun/16/send-armed-un-troops-to-protect-aid-convoys-gaza-sudan-or-risk-dystopia-un-rapporteur?utm_source=chatgpt.com www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 199 published by scholink inc. pope leo xiv, the un secretary-general and other actors strongly called for an end to collective punishment and evacuations but still supported diplomatic and humanitarian aid (ap news). assessment: there are significant humanitarian obligations under the principles of the charter characterized by famine, civilian casualties and potential crimes against humanity. most of the non-coercive tools have failed or been blocked. however, the lack of consensus in the security council (particularly the veto power) and the lack of binding resolutions have severely limited the legal basis stipulated in chapter vii of the charter. the “solidarity for peace” mechanism offers an alternative, but it is not binding and will face significant political resistance. theoretical obstacles consent and sovereignty: peacekeeping operations traditionally require the consent of the host country and pre-existing peace. gaza lacks a clearly recognized sovereign authority, and neither israel, hamas nor the palestinian authority will readily consent to the actions of external forces. veto politics: any peacekeeping mandate under chapter vii of the un charter could be vetoed by any permanent member of the security council. the united states has previously vetoed a peacekeeping proposal. combat risks: the lack of a clear frontline or effective local governance in the high-density urban war zone of gaza poses a serious combat challenge to protecting civilians. cognition and legitimacy: peacekeeping forces in the global south are sometimes seen as imperial proxies, undermining local legitimacy. any un force must overcome this historical burden. (al jazeera). authorization ambiguity: the mission must clearly define the rules of engagement for example, whether to eliminate armed groups such as hamas, protect civilians at risk, or ensure the entry of aid supplies each choice has huge political and moral implications. regional power competition: arab countries (such as egypt and the united arab emirates) have their own vested interests some countries support the rule of the palestinian authority; israel opposes the rule of the palestinian authority; hamas resists any external control. it’s not easy to grope your way through this maze. although the humanitarian crisis in gaza famine, mass displacement and potential genocide provides a strong moral and legal basis for armed intervention under chapter vii of the charter, the politics of major powers, especially the veto power of the united states, has hindered the path to authorization. unconsented intervention remains legally controversial, while consented un peacekeeping operations are hindered by a lack of consensus among parties, logistical challenges and political mutual trust. 2.3 an analysis of international law practice in the gaza war the operations of the israel defense forces in gaza have raised serious concerns in international humanitarian law (ihl), particularly with regard to: (a) the principle of proportionality attacks on hospitals and schools; (b) the imposition of collective punishment through blockade; and (c) the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 200 published by scholink inc. principle of distinction indiscriminate drone strikes. these principles, set out in the geneva conventions (1949) and their additional protocols (1977), as well as customary international law, are binding on israel as both a belligerent and an occupying power. 2.3.1 violation of the principle of proportionality: attacks on hospitals and schools legal framework the principle of proportionality prohibits attacks that cause collateral harm to civilians exceeding expected military gains. hospitals and medical facilities receive special protection under the fourth geneva convention only if they are used for hostile acts and given prior warning. civilian objects such as schools receive similar protection unless they become military targets evidence from gaza nasser hospital “double-click” attack (25 august 2025): the second attack killed at least 20 people, including five journalists and several medical staff, who arrived after the first attack schools used as shelters have been attacked repeatedly: human rights watch has documented attacks on hundreds of school buildings, many of which house displaced civilians, resulting in a large number of civilian casualties legal assessment even assuming the presence of some militants, civilian casualties and losses are clearly disproportionate, violating rule 14 of international humanitarian law. deliberately undermining civilian health care in a humanitarian crisis exacerbates the suffering of the people and violates international humanitarian law. 2.3.2 prohibition of collective punishment: a total blockade of gaza legal framework article 33 of the fourth geneva convention prohibits collective punishment. article 54 of the first additional protocol and customary international humanitarian law explicitly prohibit the use of hunger as a means of warfare and define hunger as a war crime under article 8 (2) (25) of the rome statute of the international criminal court evidence from gaza famine situation confirmed: ipc declared famine in gaza city on 22 august 2025, affecting more than 500,000 people; projections suggest the situation is deteriorating. deliberate hunger policy: amnesty international has reported new testimony revealing that israel's hunger of palestinians is a deliberate policy of destruction. un and aid groups condemn the blockade as collective punishment: humanitarian agencies and legal experts have characterized the blockade as a punitive act, saying it violates international law and is illegal. legal assessment the blockade leads to massive deprivation of essential supplies for civilians, constituting collective punishment. such actions are clearly intended to cause hunger and violate the provisions of the geneva conventions and the rome statute. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 201 published by scholink inc. 2.3.3 violation of the principle of distinction: indiscriminate drone attacks legal framework international humanitarian law requires a constant distinction between civilians and combatants (customary international humanitarian law 1). article 51 (4) of the first additional protocol prohibits indiscriminate attacks; article 8 (2) (1) of the rome statute defines attacks on civilians as war crimes. evidence from gaza human rights watch’s historical findings: a 2009 human rights watch report documented several drone missile strikes that killed civilians, including children, but there was no evidence that combatants were present; operators failed to take all feasible precautions. high civilian casualty rates: data from the un office for the coordination of humanitarian affairs shows that more than 70 percent of the casualties by mid-2025 will be women and children raising serious concerns about indiscriminate attack targets. legal assessment given the precision strike capabilities of drones, which have repeatedly caused civilian casualties, it indicates that they either recklessly ignore or deliberately violate the principle of distinction. according to the rome statute, these drone strikes are likely to constitute war crimes. these actions could also constitute war crimes under the rome statute. accountability mechanisms include interim measures by the international court of justice, arrest warrants by the international criminal court, investigations by the united nations, and prosecutions under universal jurisdiction. however, political factors particularly the veto power of the us security council have limited enforcement. 2.3.4 the normative role of major power mediation fu cong, china’s permanent representative to the united nations, spoke at the security council’s emergency open meeting on the humanitarian situation in gaza on tuesday, urging the international community to take forceful action with the strongest sense of urgency to alleviate the humanitarian disaster. the conflict in gaza has lasted for 21 months and the humanitarian situation has deteriorated to an unprecedented extent, fu said. guaranteeing humanitarian aid is an international humanitarian law obligation of israel as the occupying party and a clear requirement of several security council resolutions and the order of interim measures of the international court of justice. china firmly opposes the weaponization of humanitarian aid and urges israel to immediately lift the blockade and siege on gaza and fully restore access to humanitarian supplies. fu said the united nations has repeatedly pointed out that the militarized material distribution mechanism promoted by the united states and israel violates the principles of justice, independence and neutrality and is not sufficient to ease the humanitarian situation. instead, it has repeatedly caused heavy civilian casualties. the united nations and other agencies have a complete system and rich experience and are capable of delivering humanitarian supplies on a large scale to various parts of gaza. all parties should support the united nations in providing assistance in a humanitarian manner, and israel is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 202 published by scholink inc. obligated to provide security and all facilities for it. fu cong also said that it is reported that the israeli side has recently discussed the establishment of a so-called “humanitarian city” in southern gaza. china expresses serious concern over this. any attempt to force the relocation of the palestinian people is a serious violation of international law and security council resolutions, and the international community must firmly reject it. fu said an immediate and lasting ceasefire in gaza is a key prerequisite for saving lives and alleviating the humanitarian disaster. china urges israel to immediately cease all military operations in gaza. countries that have significant influence over the parties should act in a fair and responsible manner and take concrete and forceful actions to push for a ceasefire. fu cong stressed that the implementation of the “two-state solution” is the only feasible way to solve the palestinian issue. china welcomes the high-level meeting on the implementation of the “two-state solution” to be held at the end of this month and hopes that the meeting will inject strong impetus into the political process of the “two-state solution”. china will continue to work with the international community to push for the end of the gaza war, the mitigation of the humanitarian disaster, the implementation of the two-state solution, and ultimately achieve a comprehensive, just and lasting settlement of the palestine issue. at the un security council meeting on august 27, 2025, dorothy shea, the acting us ambassador, did not categorize the gaza famine as a “man-made crisis” like the other 14 member states. instead, the united states expressed concerns about the credibility of the famine report, pointing out problems with its approach, but at the same time stressed: hunger and humanitarian needs in gaza are real. meeting those needs remains a u.s. priority statement by ambassador shay: “we all recognize that hunger is a reality in gaza, where there is a great deal of humanitarian need to be met. meeting those needs is america’s top priority.” (reuters) the united states imposed sanctions on palestinian human rights groups (al haq, al mezan and the palestinian human rights centre), accusing them of conducting provocative acts (politicians) related to the international criminal court. it also suspended visitor visas for gaza residents, including medical humanitarian cases, pending procedural review of politicians. a group of u.s. democratic senators criticized the state department’s oversight of the gaza humanitarian foundation (ghf) and raised concerns about financial transparency, coordination with israeli military operations, and consistency with controversial post-war plans (the guardian). 2.4 institutional optimizations for conflict prevention the establishment of the united nations standing mediator mechanism should be based on the legal basis of chapter vi (articles 33-38) of the united nations charter to achieve the function of “preventive diplomacy” through the standing mediation team. the mechanism could draw on the rules for determining the validity of the singapore convention on mediation to give enforceability to mediation agreements. in response to the gaza crisis, mediators should give priority to: (1) technical negotiations www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 203 published by scholink inc. on the opening of humanitarian corridors; (2) the formulation of a provisional agreement on the code of conduct for warring parties; (3) the establishment of a third-party oversight mechanism. the ruling on “preventing acts of genocide” in the 2024 icj interim measures order provides mediators with a legally binding benchmark for negotiation. the current collection of evidence by the international criminal court under article 54 of the rome statute faces three obstacles: restrictions on access to war zones, the vulnerability of electronic evidence to be lost, and insufficient protection of witnesses. a “three-stage acceleration procedure” is proposed: emergency forensics authority: drawing on the model of the international investigative mechanism (iiim), authorize prosecutors to conduct rapid forensics within 72 hours within the framework of security council resolutions; digital evidence chain: use blockchain technology to solidify electronic evidence such as drone images and satellite images (refer to the “time-geographical location” hash value evidence method in the syrian chemical weapons investigation); virtual witness protection: remote testimony through encrypted communication technology to avoid the risk of physical transfer of witnesses. the “four-dimensional surveillance system” (satellite + drone + ground sensor + open source intelligence) of the syrian chemical weapons surveillance mechanism (opcw-un jim) could be improved for application in gaza: legal basis: referencing article 36 of the first additional protocol to the geneva conventions on the review of new means of combat, surveillance technology is included in the category of “necessary means” for ceasefire verification; implementation criteria: establish a “dual-track verification” system technical data must simultaneously meet the forensic norms of the hague rules of evidence and the electronic evidence standards of tallinn’s manual 2.0; accountability connection: the monitoring results are directly connected to the icc prosecutor’s office to form a closed loop of “technical discovery legal characterization judicial accountability”. 3. conclusion three mechanisms are linked through chapter vii (articles 39-51) of the united nations charter: the mediation mechanism to prevent escalation of conflicts → technical verification to solidify evidence of violations →icc procedures to provide judicial relief. in the process of gaza’s reconstruction in 2025, the system could break through the limitation of “post-event intervention” in traditional peacekeeping operations and build a full-cycle legal barrier of “prevention supervision – accountability”. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 204 published by scholink inc. references john j. kirton & radoslava n. stefanova (eds.). (2004). the g8, the united nations and conflict prevention. aldershot, uk: ashgate. paul d. williams. (2005). british foreign policy under new labour, 1997 2005 (p. 79, 85, 148). london: palgrave. iciss, responsibility to protect, p. 19. united nations, https://www.un.org/unispal/document/action-by-un-system-and-intergovernmental-organizations-r elevant-to-the-question-ofpalestine-december-2023-monthly-bulletin-31dec-2023.com united nations, https://www.un.org/unispal/document/un-experts-press-release-21may25.com wiki, https://en.wikipedia.org/wiki/independent_international_commission_of_inquiry_on_the_occupi ed_palestinian_territory.com wiki, https://en.wikipedia.org/wiki/human_rights_violations_against_palestinians_by_israel.com guardian https://www.theguardian.com/world/live/2025/aug/22/famine-benjamin-netanyahu-palestine-gazaisrael-war-latest-updates.co m un news, https://press.un.org/en/2024/sc15653.doc.htm.com gicj, https://www.gicj.org/gicj-reports/3870-the-current-situation-in-gaza-and-violations-against-interna tional-law-by-israel. com germanwatch, https://www.germanwatch.org/en/91048.com washingtonpost, https://www.washingtonpost.com/world/2025/08/25/israel-gaza-palestinian-journalists-killed-hosp ital/.com pace, https://pace.coe.int/files/34499/html.com reuters https://www.reuters.com/world/middle-east/evacuation-gaza-city-would-be-unsafe-unfeasible-say s-head-red-cross-2025-08-30 /.com aa https://www.aa.com.tr/en/middle-east/gaza-tribunal-calls-for-armed-un-intervention-to-halt-most-l ethal-phase-of-genocide -in-gaza/3662472.com guardian https://www.theguardian.com/global-development/2025/jun/16/send-armed-un-troops-to-protect-a id-convoys-gaza-sudan-or-ris k-dystopia-un-rapporteur.com www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 205 published by scholink inc. reuters https://www.reuters.com/world/europe/eu-ministers-split-over-gaza-copenhagen-meeting-2025-08 -30/?utm_source=chatgpt.com euro news https://www.euronews.com/2025/08/09/five-foreign-ministers-condemn-israels-gaza-city-takeover -plans-in-joint-statement?u tm_source=chatgpt.com the ap news, https://apnews.com/article/vatican-gaza-pope-palestinians-israel-0b1c1d5eb2c8d257248638ff231e 9c2f aljazeera, https://www.aljazeera.com/opinions/2025/4/28/a-protective-force-must-be-deployed-to-occupiedpalestine.com reuters https://www.reuters.com/world/middle-east/all-un-security-council-members-except-us-say-famin e-gaza-is-man-made-crisis-2 025-08-27/.com politico https://www.politico.com/news/2025/09/04/palestinian-icc-state-department-sanctions-00545374? utm_source=chatgpt.com politico, https://www.politico.com/news/2025/08/16/gaza-us-visas-halted-00512679?utm_source=chatgpt.c om guardian https://www.theguardian.com/world/2025/sep/03/us-democrats-gaza-humanitarian-foundation-lett er?utm_source=chatgpt.com economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 73 original paper artificial intelligence and international law: the impact of emerging technologies on the global legal system jialing liu 1 1 the university of sheffield, western bank, sheffield s10 2tn, uk received: july 20, 2024 accepted: july 30, 2024 online published: august 5, 2024 doi:10.22158/elp.v7n2p73 url: http://dx.doi.org/10.22158/elp.v7n2p73 abstract with the rapid development of artificial intelligence technology, its impact on international law is becoming increasingly significant. this paper explores the application of ai in international relations and the challenges it poses to existing legal systems, analyzing ai regulation within the current international law framework and the exploration of emerging international legal norms. through specific cases, the paper elaborates on legal issues in the fields of intelligent weapons, cybersecurity, and data protection, emphasizing the importance of international cooperation and global governance mechanisms in addressing these challenges. finally, the paper looks forward to future trends in ai technology and international law’s response strategies, proposing the necessity of constructing effective legal frameworks and ethical guidelines to promote the sustainable development of ai technology and the healthy development of the global legal system. keywords artificial intelligence, international law, intelligent weapons, cybersecurity, data protection, international cooperation, global governance, legal framework, ethical guidelines 1. introduction artificial intelligence (ai), as one of the most important technological advancements of the 21st century, is rapidly transforming various aspects of society. the widespread application of ai technology covers fields such as healthcare, finance, transportation, and education, and it is also playing an increasingly important role in military, judicial, and international relations. as ai technology continues to develop, its impact on international law is becoming increasingly evident, bringing forth many complex legal and ethical issues. particularly in critical areas such as intelligent weapons, cybersecurity, and data protection, the application of ai technology has sparked extensive discussion and concern. this paper will explore the impact of artificial intelligence on the global legal system, analyze the opportunities and challenges www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 74 published by scholink inc. brought by ai technology from the perspective of international law, and propose potential strategies and solutions to address these challenges, aiming to provide useful references and guidance for the international community. 2. definition and development of artificial intelligence 2.1 concept of artificial intelligence artificial intelligence (ai) refers to the technology through which computer systems simulate human intelligence, involving the simulation of various capabilities such as learning, reasoning, problem-solving, perception, and language understanding. specifically, ai technology can learn patterns and knowledge from large amounts of data through algorithms and computational models and apply them to solve various practical problems. the core of ai technology lies in its ability to self-learn and adapt, enabling it to improve its performance in continuously changing environments. ai encompasses multiple fields and technical directions, including: machine learning: a subfield of ai, where algorithms enable computers to learn and improve automatically from data. for example, machine learning algorithms can be used for image recognition, speech recognition, and recommendation systems. natural language processing (nlp): this field aims to make computers understand and generate human language. nlp technology is widely used in translation software, voice assistants, and text analysis. computer vision: this field involves enabling computers to understand and process visual information, including the analysis and recognition of images and videos. computer vision has important applications in autonomous driving, medical image analysis, and security monitoring. expert systems: these systems use ai technology to simulate the decision-making process of human experts, widely applied in medical diagnosis, financial analysis, and engineering design. 2.2 development of artificial intelligence the development of artificial intelligence can be traced back to the 1950s when the concept of ai was first proposed. since then, ai has undergone several important developmental stages, each with its unique technological breakthroughs and application advancements. early stage (1950s-1970s): during this period, ai mainly focused on logical reasoning and symbolic processing. the 1956 dartmouth conference marked the birth of ai as an independent research field. subsequently, researchers developed early ai programs, such as logic theorists capable of solving mathematical theorems and symbolic ai systems. knowledge-driven stage (1980s-1990s): during this period, expert systems became a hotspot in ai research. expert systems simulated the decision-making process of human experts through knowledge bases and inference mechanisms, achieving significant applications in medical diagnosis and engineering design. however, due to the complexity of knowledge acquisition and system maintenance, ai applications during this stage were somewhat limited. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 75 published by scholink inc. rise of machine learning (2000s-2010s): with the enhancement of computing power and the advent of big data, machine learning, especially deep learning technology, achieved breakthrough progress. deep learning, utilizing neural network models, could automatically extract features and patterns from large amounts of data, achieving significant results in image recognition, speech recognition, and natural language processing. current stage (2010s-present): in recent years, ai technology has made rapid progress driven by big data, computing power, and algorithmic innovations. ai technology is widely applied in multiple fields, including healthcare, finance, transportation, and education. for example, ai is used in healthcare for disease diagnosis and treatment recommendations, in finance for risk assessment and market prediction, and in transportation for the development of autonomous driving technology. in summary, the development of ai technology not only depends on theoretical and algorithmic innovations but also benefits from the improvement in hardware computing power and the accumulation of massive amounts of data. in the future, with the emergence of quantum computing and more advanced algorithms, ai technology is expected to continue breaking current limitations and be applied in more complex and intelligent scenarios. 3. the intersection of artificial intelligence and international law 3.1 application of ai in international relations the application of artificial intelligence in international relations is becoming increasingly widespread, with its influence gradually permeating various aspects of global governance. firstly, the development and deployment of intelligent weapons have become a significant issue. intelligent weapons can autonomously identify and attack targets without human intervention, enhancing military efficiency but also raising substantial legal and ethical controversies. for instance, whether the use of intelligent weapons in warfare complies with the principles of distinction and proportionality under international humanitarian law is a pressing issue for the international community. secondly, the application of artificial intelligence in the field of cybersecurity is becoming more common. ai technology can help governments and enterprises more effectively detect and respond to cyberattacks, enhancing their defensive capabilities. however, ai-driven cyberattack technologies are also evolving, making the issues of cyberspace sovereignty and security more complex. cyberattacks and counterattacks between nations could potentially trigger new international conflicts, posing a threat to international peace and security. additionally, artificial intelligence plays a vital role in transnational law enforcement cooperation. ai technology enables countries to share intelligence, track criminals, and combat transnational crime more efficiently. for example, interpol has begun using ai technology for global crime prediction and prevention. however, the application of this technology also brings about issues related to privacy protection and data security. particularly concerning cross-border data flows and data sovereignty, countries need to reach new consensus and legal frameworks. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 76 published by scholink inc. 3.2 challenges of ai technology to international law the rapid development of artificial intelligence technology presents multiple challenges to the traditional international law system. firstly, the use of intelligent weapons may violate international humanitarian law. international humanitarian law requires the distinction between civilians and combatants in armed conflicts and prohibits the use of indiscriminate weapons. however, the decision-making capabilities and accuracy of intelligent weapons in complex battlefield environments are still controversial, and their use may lead to civilian casualties, thereby violating the fundamental principles of international humanitarian law. secondly, ai-driven cyberattacks increase the complexity of cyberspace sovereignty. the core of the concept of cyberspace sovereignty is a country’s right to control activities within its cyberspace, but the transnational nature and high-speed dissemination capabilities of artificial intelligence make the implementation of this concept more challenging. existing international law appears inadequate in addressing transnational cyberattacks and cyber warfare, necessitating the formulation of new legal norms and international agreements. moreover, artificial intelligence technology raises new issues in privacy protection, data sovereignty, and human rights protection. ai technology relies on big data, and the collection, storage, and processing of these data involve a large amount of personal privacy information. existing international data protection laws, such as the general data protection regulation (gdpr), are insufficient in addressing the privacy issues brought about by ai technology. the international community needs to cooperate to develop more comprehensive and stringent data protection laws to ensure effective protection of personal privacy and data sovereignty. finally, the development of artificial intelligence technology poses new challenges to human rights protection. ai applications in facial recognition, behavior prediction, and social governance may lead to infringements on individual freedoms and privacy rights. for example, some countries may use ai technology for large-scale surveillance, violating citizens’ privacy and freedom rights. this requires international law to make new adjustments in human rights protection, ensuring that technological development does not come at the expense of fundamental human rights. 4. regulation of artificial intelligence by international law 4.1 ai regulation under the existing international legal framework the regulation of artificial intelligence under the existing international legal framework mainly relies on established treaties and customary law. documents such as the united nations charter, the geneva conventions, and the international covenant on human rights are to some extent applicable to ai technology, but their applicability and effectiveness remain debatable. specifically: the united nations charter: as the cornerstone of international law, the un charter aims to maintain international peace and security and promote friendly relations among nations. although the charter does not specifically address artificial intelligence, its fundamental principles, such as sovereign equality www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 77 published by scholink inc. and non-interference in domestic affairs, still apply to the use and development of ai technology. for instance, using ai for cyber-attacks must comply with the relevant provisions of the un charter to ensure that other countries’ sovereignty is not violated. the geneva conventions: as the core document of international humanitarian law, the geneva conventions set forth basic principles for protecting non-combatants and prisoners of war during armed conflicts. whether the use of intelligent weapons complies with the requirements of the geneva conventions is a crucial issue. although current treaties do not explicitly cover intelligent weapons, the principles of distinction and civilian protection they establish provide guidance for the use of such weapons. the international covenant on human rights: the international covenant on human rights includes the international covenant on civil and political rights and the international covenant on economic, social and cultural rights, aiming to protect fundamental human rights. the application of ai technology in surveillance, data collection, and processing must adhere to these covenants’ provisions regarding privacy and freedom rights. however, existing human rights laws seem inadequate to address the new issues posed by ai technology, requiring updates and improvements. 4.2 exploration of emerging international legal norms in the face of new challenges brought by artificial intelligence, the international community is actively exploring new legal norms. the united nations, the european union, and other international organizations have begun discussions and legislative attempts in several areas: ai ethics guidelines: in 2021, unesco adopted the recommendation on the ethics of artificial intelligence, emphasizing principles such as transparency, fairness, accountability, and privacy protection. these guidelines aim to direct countries to follow ethical standards in developing and applying ai technology. the eu has also proposed the guidelines for trustworthy ai, stressing ethical risk management for artificial intelligence. data protection regulations: as ai technology advances, data privacy issues have become increasingly important. the eu’s general data protection regulation (gdpr) is currently the most influential data protection law, stipulating strict requirements for data processing and protection. however, the data protection challenges posed by ai technology require more international coordination and norms. the united nations and other international organizations are promoting the establishment of global data protection laws. intelligent weapons ban: the development of intelligent weapons has aroused widespread concern and apprehension in the international community. the united nations has held multiple meetings to discuss banning or strictly limiting the use of autonomous weapon systems, calling for new international treaties to regulate the development and application of intelligent weapons. the international community is seeking consensus to ensure that ai technology’s use in military applications complies with international humanitarian law and ethical standards. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 78 published by scholink inc. in the future, regulating ai in the realm of international law will require more international cooperation and coordination. the transnational nature and complexity of artificial intelligence technology demand that countries consider not only their national interests but also the overall interests and security of the international community when formulating laws and policies. through multilateral cooperation and ongoing dialogue, the international community is expected to establish a comprehensive and effective legal framework for ai, promoting the responsible development and application of ai technology and ensuring global peace and security. 5. specific impacts of artificial intelligence on the global legal system 5.1 intelligent weapons and international humanitarian law the use of intelligent weapons poses severe challenges to international humanitarian law. the application of automated weapon systems on the battlefield may not effectively distinguish between civilians and combatants, complicating the implementation of the laws of war. one of the fundamental principles of international humanitarian law is the protection of non-combatants from the harms of war. however, the autonomous decision-making capabilities and recognition accuracy of intelligent weapons remain contentious, potentially leading to inevitable civilian casualties. moreover, the use of intelligent weapons could trigger unpredictable chain reactions, further escalating conflicts and violence. the international community needs to formulate new rules and treaties to ensure the lawful use of ai technology in warfare, emphasizing transparency, accountability mechanisms, and humanitarian standards to avoid violations of international humanitarian law. 5.2 cybersecurity and international law the application of artificial intelligence in cybersecurity increases the complexity and frequency of cyber-attacks. ai technology can be used for automated attacks, deepfakes, and intelligent defense systems. this dual-edged effect of technology makes the security issues in cyberspace more complex. existing international law appears inadequate in addressing transnational cybercrimes and cyber warfare. traditional legal frameworks often lack measures to cope with rapidly evolving technological threats, leading to difficulties in legal coordination and enforcement cooperation between nations. the international community needs to enhance cybersecurity cooperation and establish effective legal frameworks to address ai-driven cyber threats. this includes formulating unified international cybersecurity standards, enhancing intelligence-sharing mechanisms, and establishing transnational law enforcement agreements to ensure peace and security in cyberspace. 5.3 data protection and privacy rights artificial intelligence technology relies on the collection and processing of vast amounts of data, posing new challenges to data protection and privacy rights. ai systems need to learn from large datasets, which often include personal sensitive information such as medical records, financial data, and behavioral habits. existing international data protection laws, such as the general data protection regulation (gdpr), have made progress in protecting personal privacy but remain insufficient in addressing the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 79 published by scholink inc. data privacy issues brought about by ai technology. the transnational nature of ai technology makes it difficult for the laws of a single country to provide comprehensive coverage. international cooperation is needed to formulate more comprehensive and stringent data protection laws. this includes establishing globally unified data protection standards, creating cross-border data transfer agreements, and strengthening international regulatory cooperation to ensure effective protection of personal privacy worldwide. 5.4 human rights protection and ai ethics the application of artificial intelligence in facial recognition, behavior prediction, and social governance may lead to infringements on individual freedoms and privacy rights. some countries may use ai technology for large-scale surveillance and data analysis, posing threats to citizens’ privacy and freedom. the international community needs to further strengthen the focus on ai ethics within the existing human rights legal framework, ensuring that technological development does not come at the expense of fundamental human rights. this includes formulating international ai ethics guidelines, establishing transparent oversight mechanisms, and ensuring that the use of technology complies with humanitarian and ethical standards. 5.5 environment and sustainable development artificial intelligence technology also raises new legal and governance requirements for environmental protection and sustainable development. ai’s applications in climate prediction, resource management, and environmental monitoring contribute to achieving sustainable development goals but simultaneously bring issues of energy consumption and resource allocation. international law needs to find a balance between environmental protection and technological development, formulating relevant laws and policies to ensure that the use of ai technology aids in environmental protection and sustainable resource utilization. in summary, the rapid development of artificial intelligence technology poses numerous new challenges to the global legal system. the international community needs to formulate new legal norms and international agreements to ensure that the application of ai technology complies with the basic principles of international law, promoting stability and development in global governance. 6. the necessity of international cooperation and governance 6.1 the importance of international cooperation the development of ai technology has a global character, and no single country can independently address the legal and ethical issues it brings. the cross-border application and impact of ai technology, particularly in areas such as cybersecurity, data protection, and intelligent weapons, require joint efforts from the international community to develop and implement effective regulatory measures. international cooperation is crucial in regulating ai technology, sharing best practices, and promoting technological innovation. through international cooperation, countries can share research results and technological resources, avoiding duplication of effort and resource wastage. additionally, cooperation can promote www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 80 published by scholink inc. the unification of standards, enabling the coordinated development of ai technology globally, reducing technical barriers, and market fragmentation. furthermore, international cooperation helps establish common ethical and legal standards, ensuring that the development and application of ai technology comply with global ethical and legal norms, maintaining international peace and security. 6.2 building a global governance mechanism building a global governance mechanism is key to addressing the challenges of ai technology. international organizations such as the united nations, the world trade organization, and the international telecommunication union play important roles in promoting the global governance of ai technology. these organizations can help formulate and promote global legal frameworks and ethical guidelines, coordinating national policies and practices to ensure the healthy development of ai technology. for example, the united nations can use its specialized agencies to promote consensus among countries on ai ethics, data protection, and cybersecurity, formulating corresponding international treaties and agreements. the world trade organization can incorporate ai technology-related standards and norms into international trade rules, promoting the free flow of technology and fair competition. the international telecommunication union can coordinate the development of global information and communication technologies, ensuring the compatibility and interoperability of ai technology in network infrastructure and communication standards. through multilateral cooperation and continuous dialogue, the international community can establish a comprehensive and effective legal framework and governance mechanism for ai, promoting the responsible development and application of ai technology. such a governance mechanism not only helps address the risks and challenges brought by technology but also maximizes its potential benefits, driving sustainable development in the global economy and society. the improvement of international cooperation and governance mechanisms can provide a stable and predictable environment for ai technology innovation, ensuring that technological progress and human welfare advance harmoniously. 7. future prospects 7.1 development trends in artificial intelligence technology in the future, artificial intelligence technology will continue to develop rapidly, potentially leading to even more profound social transformations. the application areas of ai technology will further expand, encompassing industries such as healthcare, finance, education, and transportation, permeating various aspects of our daily lives. future ai will become more intelligent and human-like, with stronger capabilities for autonomous learning and adaptation. for example, ai in healthcare can perform more precise disease diagnoses and personalized treatment recommendations, while ai in finance can provide more efficient risk assessments and investment advice. in education, ai can offer personalized tutoring and equitable distribution of educational resources. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 81 published by scholink inc. furthermore, with the development of quantum computing, 5g, and the internet of things (iot), the processing power and application scenarios of ai will expand even further. ai technology in the future may play a significant role in smart city construction, environmental protection, and climate change mitigation. however, the development of ai also brings complex ethical and legal issues, particularly concerning privacy protection, data security, and algorithm fairness, which require ongoing research and regulation. 7.2 strategies for international law international law must continuously adapt to the development of ai technology to ensure the effectiveness and fairness of the legal system. firstly, by strengthening international cooperation, countries can jointly address the global challenges brought by ai. the international community needs to establish cross-border cooperation mechanisms to promote information sharing and technological exchange, and to jointly formulate and implement international standards and regulations. secondly, promoting legal innovation is crucial to keep pace with the rapid development of ai technology. existing legal frameworks need to be updated and expanded to cover new technological application scenarios and potential legal issues. for example, regarding the use of intelligent weapons, the international community needs to develop new laws of war to ensure that these technologies are used in compliance with international humanitarian law. regarding data protection and privacy rights, more comprehensive and stringent data protection laws need to be enacted to safeguard personal privacy and data security. additionally, establishing effective regulatory mechanisms to supervise and manage the development and application of ai technology is essential. international organizations such as the united nations and the european union can play significant roles by formulating ethical guidelines and regulatory policies to ensure that the development and application of ai technology comply with ethical and legal standards. through international cooperation and legal innovation, the challenges posed by ai technology can be effectively addressed, promoting the healthy development of the global legal system. 8. conclusion the development of artificial intelligence technology presents unprecedented challenges to international law, while also offering new opportunities. the international community needs to foster cooperation and innovation to develop effective legal frameworks and ethical guidelines, ensuring the safe, legal, and fair use of ai technology. only in this way can the sustainable development of ai technology be achieved in the context of globalization, promoting international peace and security. in the future, ai technology will continue to drive social transformation, and the ongoing development and refinement of international law will provide a solid legal foundation for this transformation. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 82 published by scholink inc. references lee, j. (2022). artificial intelligence and international law. springer. https://doi.org/10.1007/978-981-19-1496-6 maas, m. m. (2019). international law does not compute: artificial intelligence and the development, displacement or destruction of the global legal order. melbourne journal of international law, 20(1), 29-57. rhim, y. y., & park, k. b. (2019). the applicability of artificial intelligence in international law. je asia & int’l l., 12, 7. https://doi.org/10.14330/jeail.2019.12.1.01 tzimas, t. (2021). legal and ethical challenges of artificial intelligence from an international law perspective. springer nature. https://doi.org/10.1007/978-3-030-78585-7 https://doi.org/10.1007/978-981-19-1496-6 https://doi.org/10.14330/jeail.2019.12.1.01 https://doi.org/10.1007/978-3-030-78585-7 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 87 original paper legal object control of major administrative decisions fu kaiyu 1 1 law school of guangxi university, guangxi, nanning, china received: may 1, 2024 accepted: may 25, 2024 online published: may 27, 2024 doi:10.22158/elp.v7n1p87 url: http://dx.doi.org/10.22158/elp.v7n1p87 abstract major administrative decisions have the characteristics of wide scope of influence and long duration. since the promulgation of the interim regulations on the procedure of major administrative decisions, the situation that decisions cannot be depended on has been initially solved. however, there are still certain difficulties regarding the object of the legal relationship of major administrative decisions. the scope of major administrative decisions is ambiguous, and the dynamic object is dominated by the participation of the public and experts, which cannot guarantee the scientific and democratic decision-making. therefore, this paper proposes to limit the scope of major administrative decisions statically and strengthen the participation of experts and the public scientifically and democratically. keywords major administrative decision-making, decision-making scope, risk assessment, expert consultation, public participation 1. introduction in 2019, the state council promulgated the interim regulations on major administrative decision-making procedures (hereinafter referred to as the interim regulations), which is a milestone in the legislation of major administrative decisions and solves the situation that major administrative decisions cannot be relied upon. however, in the time after promulgation, the legalization of decision-making still faces some practical problems, such as: the loopholes of the “decision-making catalogue system” lead to the risk of the “interim regulations” being shelved, and the scope of “major” and “decision-making” is clarified. all these problems are important issues in the legalization of the regulation before, during and after administrative decision-making in practice. the implementation outline of the rule of law government (2021-2025) also points out that in the future, the system construction of major administrative decisions is also one of the important indicators of the construction of the rule of law government. although the major administrative decision-making procedure system has been established initially, the practical problems from the should to the reality www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 88 have not been properly dealt with. nowadays, administrative decision-making has become one of the important bases for administrative organs to make specific administrative acts, which has a close connection with the work of the public, enterprises and other organizations. therefore, when discussing the rule of law government and administration according to law, ignoring the existence of administrative decision-making will make administrative decision-making as a front-end and basic administrative activity produce a crisis of the rule of law. as a major administrative decision which is different from the general administrative decision, its rule of law is the first problem to be solved. 2. the scope of static object is fuzzy administrative decision is the generalization of decision matters in the administrative field, and it is also the concretization of decision matters. however, there is some ambiguity in the qualitative of decision. to promote the legalization level of major administrative decisions, the first thing to be solved is the problem of the right and wrong of decision-making, which is also the basis of clarifying the whole scope of administrative decision-making. the explanation of decision making in cihai is: “in the process of transforming the world, people seek and decide on a certain optimal goal and action plan”, focusing on the process of selecting the plan, which is a top-level design. after the decision is made at the upper level, the choices and decisions made by the lower level to the specific decision implementation process also belong to the management definition of decision making, which is in the large system of macro decision making. however, in government decision-making, after the higher government makes a decision, the choice of the lower government in the process of implementation is also included in the decision-making matters that need regulation, and the decision-making matters are very likely to be detailed to every choice of the grass-roots staff or institutions, and the matters that need regulation will be derived from endless possibilities. for example, some local governments do not have a good understanding of the nature of decision-making, and confuse decision-making with implementation when defining the scope of matters. in the relevant provisions of major administrative decisions formulated by sichuan province, major matters that implement important instructions and decisions of higher authorities, party committees and people’s congresses at the same level are also considered as major administrative decisions. although “matters requiring decision-making” is emphasized in the latter part of the provisions, the “decision-making” here refers to the specific operational process of implementing the superior’s instructions, and the decision-making matters have been fully demonstrated and evaluated by the superior authorities, and should be implemented. outside the scope of the decision. in addition to sichuan, there are qinghai, guizhou and other provinces. at the same time, the hubei provincial government has also incorporated the government work report into the scope of major administrative decisions. the government work report is a summary of the past period of the government’s term of office and the plan for the future period of the government’s term of office, which involves both, has been done in the past and what it plans to do in the future. the first www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 89 thing that needs to be questioned is that the past work should not belong to the scope of decision-making. secondly, in the future work, most of the macro and abstract and principled provisions are not necessarily the same as the matters of decision-making. an important reason for this problem is that governments at all levels cannot accurately understand the connotation of the word itself and the “catalogue system” devolves power belonging to the scope of major administrative decisions to the county government. it can be seen that there are certain differences in the understanding of decision-making organs. if there is no consensus on whether it is a decision or not, and if there is no sufficient distinction between decision making and implementation, the boxes of relevant regulations will only become bigger and bigger, thus tying the hands and feet of grass-roots governments, affecting the efficiency and quality of government decision-making, and going further and further away from the goal of service-oriented and streamlined government transformation. 3. dynamic object administrative dominant color the main participants in major administrative decisions: “the government, experts and the public have a symbiotic relationship, and experts and the public are an important entry point for legal regulation of major administrative decisions”. major administrative decisions are diversified in structure and have a certain open development direction, thus from the main body who makes decisions at the beginning to who participates in the making of administrative decisions. however, the status of the subjects involved in decision-making is not in the same dimension. in other words, not all subjects related to administrative decision-making will formally participate in administrative decision-making, and even if the subjects have participated, they do not have the same weight. the degree of influence of different subjects on the decision result is quite different. in the government and external participants: (1) government and experts. the independence of experts is an important guarantee for the decision-making mechanism to play the role of scientific decision-making. however, in reality, experts often have a strong “administrative color”, or are selected by the government from the expert pool, which has a certain “obedience” meaning. secondly, the experts selected may have other capacities, either administrative or “constrained” by administrative agencies. thirdly, in the adoption of expert opinions to adopt the “favorable listening, unfavorable avoidance” approach. for example, in 2003, experts participated in the decision making of the nu river dam construction project in yunnan province. the nujiang main stream hydropower development plan was reviewed by experts organized by the national development and reform commission. according to the final plan, the project is expected to bring economic benefits of more than 30 billion yuan to the local area. however, in the process of concrete demonstration, there are two different expert opinions. the opposing side believes that the construction of nujiang hydropower station will bring certain harm to the local ecological environment, and the specific economic benefits are also questioned. in august of the same year, the state environmental protection bureau organized www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 90 two expert talks, during which the experts in the kunming forum were divided according to the way of “household registration”, forming a “north-south separation”, the experts from beijing were opposed, and the experts in yunnan were supportive. but in order to get the project off the ground, the leaders of nujiang prefecture went to beijing to report. at the survey a month later, not a single expert participated. experts who were previously opposed to it have also gone silent. it treated the decision on the nu river project as “a game of selecting experts”. although expert consulting system is started, but the substance has changed. dissenting opinions are suppressed, used when needed and discarded when not needed. this has undoubtedly discouraged experts from participating in decision-making. it also makes us think about the status of experts in decision-making and how the independent attribute of experts can be guaranteed. in this case, the relationship between the experts and the government becomes a “tool” for the government to achieve the purpose of decision-making. (2) government and the public. the non-benign interaction between the government and the public is an important factor that needs to be clarified urgently. a decision ultimately benefits the target group of the decision, namely the public. therefore, the positive interaction between decision-making power and citizenship is needed at the beginning of decision-making. in reality, decision-making power is dominant, while the public is passive. moreover, due to the unbalanced economic and social development in china, the social public’s awareness of participating in decision-making is also unbalanced, and the resources that different regions can deploy to participate in decision-making are inconsistent. to stimulate the public’s awareness of participation, it is necessary for decision-making organs to play an active role. whether it is the strengthening of the form of public participation in legislation, or the adoption and reasoning of public opinions, it is an important manifestation of the positive interaction between the government and the public. the relationship between the government and the public in decision-making should be like a guide, bringing the public into the operation of the decision-making system and providing various conditions for them to express their opinions. (3) experts and the public. experts are an important way to communicate technical rationality, while the public is an important subject of communication rationality. only when the communicative rationality and technical rationality play a full role can the science and democracy of decision-making be adequately guaranteed. but in the absence of both, decisions fall into the trap of irrational decisions. in the real decision-making, the decision-making organs confuse the experts with the public, and the situation occurs that the experts take the place of the public or the experts are members of the public. to sum up, the clear and reasonable connection between the government, the executive and the upper and lower levels of the decision-making organs and the external network of decision-making among the government, experts and the public is an important guarantee for scientific and democratic decision-making. only in the clear determination of the internal relationship and the accurate positioning of the respective functions of the government and the external, can a decision return to the essence and achieve the goal of the decision efficiently. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 91 4. the legal object control of major administrative decisions the object of administrative legal relations is “the object and object that administrative legal relations point to, and the carrier that embodies certain interests, which mainly includes things, behaviors and people”. under this theoretical framework, the legal object of major administrative decision is a compound object, including the concept of major administrative decision itself and the participation behavior of the government, experts and the public. the government’s participation behavior runs through the whole process of decision-making, and control from the perspective of experts and the public can indirectly achieve the purpose of controlling government behavior. therefore, as far as experts and the public are concerned, risk assessment, expert consultation and public participation are the key objects. in the high risk, systematic and complex decision-making environment, both the practical and theoretical circles generally agree on the need to play the role of experts. for major administrative decisions with extremely high complexity, the opinions of professionals in the field are more needed. in order to satisfy scientific decision making and rational decision making, risk assessment and expert consultation system is an important legal system of decision making technology rationalization. in view of democracy, it is necessary to establish communication rationality effectively in the way of public participation. the static object and dynamic object blend with each other, can not constitute the legal relation object of major administrative decision alone. 4.1 conceptual limitation: redefinition of major and decision making 4.1.1 the right and wrong of administrative decision-making to determine the scope of administrative decision-making, two conditions need to be met. the first is that it belongs to the scope of administrative authority, and the second is that it belongs to the scope of decision-making. the former requires the decision-making subject not to cross the boundary, not to be authorized by the law, neither to do things that have no power to manage, nor to do things that are not within their jurisdiction. the latter requires that the relevant matters cannot be equated with other administrative acts, such as administrative licensing, administrative penalties, etc., and cannot involve existing legal provisions. however, some local governments fail to understand the essence of decision-making in the concrete decision-making process, resulting in a chaotic situation. some governments have even incorporated the revision of local regulatory documents into the scope of adjustment of major administrative decisions. if “revision of implementation measures for reporting environmental violations with awards in enshi prefecture (trial)”, and “overall management measures for tourism resources in enshi prefecture” are included in the catalogue of major administrative decisions in 2023 formulated by the people’s government of enshi prefecture in hubei province, the first question is whether the “revision” is within the scope of decision-making. secondly, according to the interim regulations and the relevant procedures and regulations for major administrative decisions of enshi prefecture, “formulation” is stipulated, and “revision” cannot be equated with “formulation” here. therefore, it is not difficult to find that there are certain differences between the provisions of local governments on decision-making and the original intention of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 92 legislation, and local governments regard decision-making as “pocket behavior” without fully understanding the nature of decision-making matters. according to the legal definition of administrative decision-making explored in chapter 1, there are certain legal rights and obligations when administrative decision-making is made. at the same time, administrative decision-making should also be distinguished from the existing administrative acts, legislative power, personnel power, etc. that have been regulated by law, and cannot involve the scope of adjustment by other department laws. in addition, emergency matters should also be excluded from the scope of regulation, because emergency matters often need to make quick decisions and should be restricted by the process as little as possible, so as to cope with emergencies. for example, the wuhan epidemic in 2020 was forced to take the decision to close the city, which would pose a great threat to the life safety of the people if the decision was subject to the strict regulation of the process and the procedure was too cumbersome. 4.1.2 significant scope boundaries the boundary of the scope of “significant” can be understood as the boundary between “significant” and “general”, because the word “significant” is more abstract, and with the change of time, it is easy to cause some new things that are difficult to judge or do not belong to the scope of “significant”, with the change of society, it becomes the scope of “significant”. therefore, we can consider clarifying the scope of “general” from the opposite side so as to better solve the boundary problem between the two. first of all, in terms of the number of decisions made, “general” refers to frequent decisions made by the government on a daily basis, which is characterized by high frequency. secondly, from the perspective of the subject of the decision, the subject of the decision of general matters is often of a lower legal rank, and most of the matters are decided by the grass-roots government, which often can be decided immediately without the approval process. at the same time, the subject involved in decision-making and implementation is relatively simple. thirdly, from the perspective of scope and time, the influence scope of “general matters” is mostly within the jurisdiction of grass-roots governments; decision execution time, formulation time and influence time are all transient. finally, from the perspective of expected results, it is precisely because the duration of general administrative decisions is short that there are fewer influencing factors leading to deviation of decision results during the period from formulation to implementation. therefore, the result of the decision has lower uncertainty and risk, and the final result can be accurately predicted. matters other than the general decision-making matters mentioned above may be considered for inclusion in the “significant” category. at present, the state council stipulates that “the policy-making organs may, in accordance with the provisions of the first paragraph of this article, determine the list of decisions and standards based on their functions and powers and local realities”. (see article 3 of the interim regulations on major administrative decision-making procedures for details). the meaning of this article is to further delegate the power to determine major scope to each local decision-making organ, and to regulate the decision-making items that need to be standardized into the decision-making catalogue by the local www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 93 government. as a result, local governments will not include matters that should be regulated by regulations in the “catalogue” according to their discretion, and regulations that should effectively regulate decision-making matters will not be regulated. in the end, the procedure of decision making is virtually useless. therefore, the power to formulate the catalogue cannot be all delegated to each level of government, but it can be placed under the overall control of the municipal government, and reviewed by the people’s congress at the same level and its standing committee and the government at a higher level. at the same time, the formulation of the contents of the catalog should not only be open, but also include the procedure of public participation, and the public can argue and expand those that have a major impact on the public interest. the way of reverse definition can provide certain macroscopic guidance for the forward enumeration, while the forward enumeration is the concretization under the macroscopic guidance. the existence of the two is not contradictory. through the reverse definition and forward enumeration, the problem of “major or not major” can be avoided to a certain extent, which not only meets the local characteristics but also details the provisions of major scope, so that the decision-making can really be divided into complicated and simple, and the effect will be twice the result with half the effort. 4.2 from inside to outside: expert consultation system in major administrative decisions once a major decision is made, it will have an all-round impact on the economy and society. for example, the construction of hydropower stations can solve the energy demand to meet the needs of economic development. however, it will have a great impact on the migration and life of aquatic animals involved in the waters and the local ecological environment. therefore, the experts involved in a decision are all commenting on the decision from their own field. in addition, even experts in the same field may have different opinions, but the open form of consultation will make some experts afraid to speak up. at the same time, the weight and legal status of expert opinions in the decision-making process are also important factors affecting the scientificity of decision-making results. 4.2.1 differences of opinion among experts how to deal with the opinions and suggestions of experts and how to unify the different opinions of different experts are important issues about the system of expert advice. in management, there are many ways to learn from expert survey, such as the french dup and public consultation and investigation procedures; the delphi method in the united states. the former is a declaration in the public interest of administrative decisions and programmes in certain areas for which the prime minister and ministers or local administrators are responsible. the decision-making process is carried out after the declaration and on the basis of the opinion of the advisory committee and even the administrative court. the latter is a “back-to-back” way to get expert advice and make a decision. among them, the delphi investigation method in the united states not only satisfies the independence requirement of decision-making, but also allows experts to fully express opinions on each other’s suggestions, which is one of the ways worth learning. it originated in the 1940s and takes a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 94 non-face-to-face approach to expert opinion gathering. it will collect opinions in an anonymous manner through surveys in the form of questionnaires. feedback is given to the various experts, and the process continues until a consensus is reached. the main rules of the approach are as follows: the name of the expert is not disclosed, and the expert is mainly carried out by communication. anonymous feedback contact, experts from the feedback feedback of the collective opinions and reasons and put forward their own views to form the anonymous mutual influence among experts; do quantitative processing of the final result of the opinion adopting this method can avoid experts’ concurs because of others’ opinions to a certain extent, and minimize the influence of experts’ authority. enhance the independence of experts and encourage all experts to express their views fully. 4.2.2 external acceptance of expert advice as one of the subsystems in the whole decision-making system, expert consultation argumentation should be recognized as its position and function in it. good communication between the expert and the administration is of particular value and significance for the scope of the expert’s opinion. however, most of the experts are intensive research talents in a certain field, and the scientific nature of the decision is only a standard for the judgment of facts, and the choice of value needs to be judged by the decision-making organs themselves. just as the government decides to build an urban park, construction experts are concerned about the construction standards, but the government needs to consider various aspects such as budget, residents’ sense of gain, and environmental impact. in addition, experts in different fields, even experts in the same field, will have different opinions and disagreements. at this point, how decision-makers choose between them is a question for each individual. at present, it is generally believed that experts play a positive role in strengthening the rationality of administrative decision-making. the author believes that dichotomies should be adopted in the process of expert consultation, positioning experts as the subject of fact judgment. it is forbidden to adopt the views of experts on the value judgment of decision-making matters, just as it is to treat the testimony of witnesses and the attitude of expert assistants in court proceedings. at the same time, in order to encourage experts to speak and participate, on the one hand, the experts are given material rewards and spiritual awards to ensure their enthusiasm to participate in decision-making. on the other hand, when the experts express their opinions, they should not only strictly maintain the confidentiality of the problems and suggestions told by the experts, but also not pursue their responsibilities because the experts express any opinions, and they should be absolutely strict in immunity and confidentiality. 4.3 from one-way dominance to two-way interaction: public participation mechanism in major administrative decisions public participation in decision-making is considered to be a kind of broad and direct participation. the administrative practice circles generally reflect that public participation is the most important and difficult part of decision-making procedure. the main reasons are: “the function of public participation is unclear”; “there are problems with the idea of operating public participation”. at the same time, in practice, public opinions are often unilaterally listened to in a mode dominated by administrative www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 95 organs, while there are few public inquiries and debates between the two sides. 4.3.1 how public representation is produced the universality of representatives has an important impact on the democracy of the hearing system. after the hearing system was first introduced to listen to public opinions, problems such as the lack of universality of representatives, unreasonable way of representation and lack of representative ability were exposed until now, it has not been well solved. at present, there are three main types of public representation: (1) administration-oriented government selection mode, (2) random selection mode under moderate administrative control, and (3) application of low administrative control-representative mode. the first is the early mode in which the government selects and determines the representatives participating in decision-making, which reflects strong government control. for example, article 4 of the interim provisions on the hearing of qingdao price decision stipulates that “the hearing shall be organized by the municipal price control department. the planning commission, the economic commission, the construction commission, the finance bureau, the statistics bureau, the civil affairs bureau, the federation of trade unions and other departments and units are the members of the conference; at the same time, the municipal people’s congress, the cppcc, the democratic parties, the relevant business departments, enterprises and news units of the relevant experts, consumer representatives to participate”. under this model, the decision-making organs will enjoy the initiative of participating representatives, and the public will only have the right to be chosen. in this way, the decision-making department of the government can grasp the direction of decision-making and produce the results that the decision-making department wants to happen. so it gives the public a feeling of going through the motions. the second is for the public to sign up voluntarily, and then for the decision-making organ to choose among the registered public. although this system has strengthened the enthusiasm of the public to participate, the final participants are still the result of the selection of decision-making departments. such selection is nominally random, but in fact it is the space for decision-making departments to operate in private. the government has free rein in how it randomizes. the third option is for the public to elect their own representatives, and when the public cannot elect their own representatives, the government will intervene. the third is to fully mobilize the enthusiasm and initiative of the public, which is a more reasonable model than the first two. but there are also differences in the selection of representatives by the public, the qualification of the selection, illegal operations, the selection system guarantee, the funding guarantee. therefore, it is necessary to institutionalize the third mode through separate legislation to strengthen the satisfaction of the public as the decision-making subject. after the public representative is elected, the next step is how to implement the public’s rights in the hearing system. 4.3.2 we will strengthen the hearing system with debate as the core although the provisional regulations and local norms provide for various forms of public participation, the hearing, as a formal procedure for hearing opinions, has special significance in the value and function of public participation in administrative decision-making. the value of hearings is that they www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 96 are both a means of disseminating information, a channel for advocacy, a means of reconciling differences between different interest groups, and a safety valve for mitigating and eliminating interference. in practice, the current public opinion listening method in our country mostly adopts the way of “speech” to provide opinions for decision-making organs. for example, in the “norms for major administrative decision-making procedures of the people’s government of enshi prefecture”, the way of public participation is the result of the independent choice of the administrative organ. in article 8, the way of listening to opinions and feedback can be carried out in an online way.as you can see the way does not reflect the argumentative spirit of the hearing. there are also local governments that use hearings as a form of “when necessary”. the definition of “necessary” is not explained, which gives decision-making departments space and room for independent choice. in addition, administrative regulations only stipulate that the decision-making departments can adopt the form of hearings. no matter the legislation at the central level or the local level, the form of public participation is decided by the decision-making departments and enjoys a high degree of discretion. public participation should establish a two-way communication mechanism, and this “rational communication system is the key link of the effectiveness of the hearing”. therefore, a “circular” debate mechanism should be established in the hearing to fully question and demonstrate. one is the choice of hearing host. it shall be composed of persons in a non-government capacity or persons from the judicial system to ensure the neutrality of the presiding officer of the hearing. the role of the moderator in the process of hearing is mainly to guide the smooth progress of the process and clarify the focus of the dispute. second, in the process of hearing, we should refer to the process of court debate in litigation, and establish the process of communication and exchange between the two sides as an essential link. this link is also the core of the hearing. in this session, the question and answer method is adopted to solve the doubts of the public, so as to facilitate the public to raise questions and understand the demands of the public. third, the legal effect of the hearing record. the legal effect of the hearing record should be clearly taken as one of the basis for decision-making, if the voice of doubt is too large, it is necessary to adopt multiple hearings to adjust the existing plan or directly terminate the way. for the opinions that are not adopted, it is also necessary for the decision-making organs to respond positively and explain the reasons so as to obtain the support of the public. only when the hearing record is legally recognized and obtained binding force, can the spirit of argument be implemented. in addition, the subject of the application hearing and the application should not be limited to the decision-making organ or even the administrative system, but can be organized by a third-party social organization or other public authority independent of the administrative system, so as to ensure the “benign interaction” of the hearing. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 97 5. conclusion administrative decision-making has entered the law from the outside of the law, which itself is the inevitable requirement of the construction of the rule of law in china. under the background of the construction of modern rule of law government in full swing, administrative decision-making, such a front-end and basic administrative activity, has been unable to escape the regulation of law. the tripartite decision-making chain formed by decision-making organs, experts and the public has become an important experience to improve administrative decision-making. major administrative decisions, as the most special kind of administrative decisions, are different from general administrative decisions at the beginning, and their essential characteristics are non-frequent, extensive scope of influence, persistence of time and complexity of consideration factors. this also determines that it should be regulated with stricter norms when making decisions, whether it is in the participation behavior of the main body, the establishment of the network of participation and supervision of the main body in related decisions. in terms of static objects, strict regulations on “major” and institutional construction of public and expert participation in decision-making should avoid the failure of the rule of law. references a porsche, nujiang dam decision in the tripartite interest game [eb/ol]. (2004-4-20) [2024-3-26]. retrieved from https://www.chinanews.com/n/2004-04-20/26/427537.html. https://doi.org/10.1097/01.cot.0000292958.98529.49 chen, a. m. (2014). research on risk assessment system of major administrative decisions. jinan: shandong university. china youth network, illegal construction! “the world’s biggest” the duke guan like built in 170 million, and then spend 155 million move [eb/ol]. (2021-09-03) [2024-3-26]. retrieved from https://baijiahao.baidu.com/s?id=1709844494473798417&wfr=spider &for=pc doris, g. (2007). the power of communication: information management in public organizations (x. k. zhang, tran.). shanghai: fudan university press. gong, x. t. (2021). exploration on the realization path of the effectiveness of the hearing system for major administrative decisions. journal of hunan police college, 33(04). liu, g. f., & chen, x. l. (2008). project risk assessment based on delphi method and analytic hierarchy process. project management technology, 2008(01). liu, h. (2020). on the rule of law regulation of major administrative decisions. zhejiang university law review, 2020(00). su, y. j. (2011). research on the legalization of administrative decision-making. beijing: china legal publishing house. wang, w. h., jing, l., & bo, x. (2004). current situation and problems of administrative decision hearing in china. xinhua digest, 2004(05). https://www.chinanews.com/n/2004-04-20/26/427537.html https://doi.org/10.1097/01.cot.0000292958.98529.49 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 98 wang, x. j. (2007). the paradox of expert consultation system in public policy making in china and its overcoming: taking the federal advisory committee act as a reference. legal business studies, 2007(02). william, k., & maurice, o. (2019). the legislative process in the united states: congress and the states (b. m. wang, & z. f. yao, trans.). beijing: law press. xiao, b. g. (2015). research on the legalization of administrative decision-making. beijing: law press. yin, y. y. (2013). research on legalization of major administrative decisions of grassroots governments. changsha: hunan normal university. ying, s. n. (2009). administrative law and administrative litigation law (2nd edition). beijing: law press. zhang, y. (2014). research on risk assessment system of major administrative decisions in china. hohhot: inner mongolia university. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 115 original paper designing labor provisions in china’s bits: dual identity challenges and legislative strategies kaiwen li 1 1 china commercial law firm, shenzhen, guangdong, china received: april 8, 2025 accepted: april 20, 2025 online published: april 21, 2025 doi:10.22158/elp.v8n1p115 url: http://dx.doi.org/10.22158/elp.v8n1p115 abstract china’s dual identity as a capital-importing and exporting state necessitates bits that balance public interests with investor rights. analyzing 30 chinese bits (2000-2023), this article reveals that only 12% include substantive labor clauses. it proposes a model combining preamble commitments, domestic law benchmarks, and arbitration exclusions. case studies from zimbabwe and pakistan demonstrate how china’s overseas labor disputes stem from legislative gaps. the framework advocates for “gradualist” reforms, resisting hegemonic standards while advancing labor rights. keywords china’s bits, dual identity, labor arbitration, public policy space 1. introduction the globalization of investment flows has fundamentally transformed china’s position in the international economic order, creating unprecedented challenges for its bilateral investment treaty (bit) regime. china has evolved from primarily a recipient of foreign direct investment to simultaneously being the world’s second-largest capital exporter, with overseas investments exceeding $2.3 trillion by 2022 (mofcom, 2023). this transition has created what gallagher and wang (2021, p. 618) term a “regulatory identity crisis,” wherein china must balance protecting its overseas investors with preserving policy autonomy for domestic reforms. nowhere is this tension more evident than in the treatment of labor provisions within china’s bit network, where competing imperatives create distinctive governance challenges. labor provisions represent an increasingly significant dimension of international investment law, reflecting what scholars describe as the “socialization” of previously economics-focused legal regimes (wei, 2021, p. 190). these provisions aim to prevent regulatory races to the bottom by establishing minimum protections for workers affected by investment activities. according to unctad (2023, p. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 116 published by scholink inc. 43), the percentage of bits containing substantive labor commitments increased from 7% in 2000 to 32% in 2020, indicating a significant evolution in global practice. however, china’s bit network demonstrates considerably lower adoption rates, with empirical analysis revealing substantive labor provisions in only 12% of agreements concluded between 2000 and 2023. this article examines china’s approach to labor provisions in bits through the lens of its dual identity as both capital importer and exporter. through empirical analysis of 30 treaties and detailed case studies, it identifies legislative gaps and implementation challenges across china’s bit network. building on comparative analysis of alternative models, the article proposes a “gradualist framework” for integrating labor provisions that accommodates china’s distinctive position while advancing worker protections. this framework emphasizes contextual implementation, progressive realization, and differentiated obligations based on development contexts—principles aligned with china’s broader approach to international relations. the article proceeds as follows: section i examines the current status of labor provisions in china’s bits, identifying predominant models and legislative gaps. section ii analyzes the dual identity challenges china faces regarding labor governance in investment contexts, illustrated through case studies of recent disputes. section iii proposes a gradualist framework for integrating labor provisions into china’s bits, drawing on comparative analysis of alternative approaches. section iv outlines an implementation strategy centered on tiered obligations and progressive realization. the conclusion summarizes key findings and discusses implications for china’s evolving role in international investment governance. 2. current status of labor provisions in china’s bits 2.1 predominant models in china’s bit practice contemporary chinese bits demonstrate significant variation in their treatment of labor issues, reflecting china’s cautious approach to integrating non-economic concerns into investment agreements. empirical analysis of 30 chinese bits concluded between 2000 and 2023 reveals three predominant models, each characterized by distinctive approaches to labor governance. understanding these existing frameworks provides essential context for developing reform proposals that build on china’s treaty practice while addressing identified weaknesses. the most common approach, observed in 65% of examined treaties, incorporates labor considerations through preambular language without establishing binding obligations. the 2012 china-canada agreement exemplifies this “preamble model,” acknowledging the importance of “corporate social responsibility” and “sustainable development” in its introductory text while omitting substantive labor commitments from operational provisions (wang, 2023, p. 53). similar language appears in the 2014 china-australia free trade agreement, which references “internationally recognized labor rights” in its preamble but contains no enforceable labor standards. as li and zhang (2022, p. 271) observe, this approach provides interpretive context for subsequent treaty provisions but creates no independent www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 117 published by scholink inc. labor obligations for investors or host states. a second approach, identified in 20% of examined treaties, utilizes general exception clauses that potentially encompass labor regulations without explicitly mentioning them. the 2003 china-germany bit permits measures “necessary to protect public security and order,” creating potential space for labor regulations while avoiding direct engagement with labor standards (zhang & li, 2020, p. 87). similar language appears in the 2008 china-mexico bit, which includes exceptions for measures “necessary to maintain public order” or protect “essential security interests.” while these provisions might shield certain labor regulations from investor claims, their ambiguity creates significant interpretive uncertainty. as demonstrated in the schneider electric v. china dispute (2021), investors frequently contest the applicability of general exceptions to specific labor measures, arguing that economic regulations fall outside legitimate public welfare concerns (chen, 2022, p. 305). the remaining 15% of examined treaties adopt what might be termed a “silence model,” omitting any reference to labor issues within treaty text. the 2001 china-netherlands agreement exemplifies this approach, containing no provisions that would shield labor reforms from potential investor claims. similar omissions characterize the 2005 china-spain bit and the 2007 china-france agreement, creating what wu and martinez (2023, p. 220) describe as “protective gaps” that privilege investor interests over worker welfare. in these agreements, labor reforms that affect foreign investors might trigger claims under fair and equitable treatment or indirect expropriation provisions, with no treaty language acknowledging the legitimacy of labor regulation as a policy objective. 2.2 recent disputes and legislative gaps recent disputes highlight the practical implications of these legislative gaps. when china amended its labor contract law in 2021 to cap overtime at 36 hours monthly and strengthen protections for platform workers, foreign investors in the manufacturing and technology sectors characterized the reforms as potential violations of bit obligations. european electronics manufacturers operating in jiangsu province argued that the overtime restrictions constituted “indirect expropriation” by reducing operational flexibility and increasing labor costs (li & zhang, 2022, p. 275). while these disputes were ultimately resolved through diplomatic channels rather than formal arbitration, the resulting implementation delays demonstrated what heng and liu (2022, p. 130) term “regulatory chill”—the deterrent effect of potential investment claims on legitimate regulatory activity. similarly, china’s 2023 work safety law amendments, which mandated enhanced safety equipment and increased inspections in facilities producing hazardous materials, faced resistance from foreign chemical manufacturers operating in shanghai’s free trade zone. invoking the fair and equitable treatment provision of the applicable bit, these investors argued that the regulatory changes disrupted their “legitimate expectations” regarding operational conditions (zhou & barnes, 2022, p. 284). this dispute further demonstrated the tensions between china’s domestic labor governance objectives and its international investment obligations, particularly in the absence of explicit treaty language acknowledging the legitimacy of labor regulation. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 118 published by scholink inc. table 1. comparative analysis of legislative models model strengths weaknesses relevance to china u.s. 2012 strong enforcement north-south inequities limited applicability eu hybrid policy flexibility complex implementation high asean negotiation ease weak protections low these examples illustrate how china’s existing bit network inadequately addresses labor governance challenges, creating uncertainties for both regulators and investors. the predominance of non-binding preambular language and absence of explicit labor provisions leaves significant discretion to arbitral tribunals, which historically prioritize investor interests over public welfare concerns. as china continues developing its bit practice, addressing these legislative gaps becomes increasingly important for both domestic regulatory autonomy and the reputation of chinese overseas investments. 3. dual identity challenges and case studies 3.1 host country perspective: preserving regulatory space china’s simultaneous position as both capital importer and exporter creates distinctive challenges regarding labor provisions in investment treaties. as huang and meyer (2022, p. 360) observe, “china occupies both sides of the regulatory equation,” potentially subjecting its domestic labor reforms to investor challenges while facing international scrutiny regarding labor practices in its overseas investments. this dual identity complicates traditional approaches to bit design, which typically assume clear distinctions between capital-exporting and capital-importing states with correspondingly differentiated interests. from a host country perspective, china’s domestic labor reforms increasingly intersect with its investment treaty obligations. between 2013 and 2022, china implemented significant improvements in labor standards, including substantial minimum wage increases (averaging 8.3% annually), the 2021 platform worker protections, and enhanced occupational safety requirements in the manufacturing sector (wu & martinez, 2023, p. 218). each of these reforms potentially affects foreign investors’ operational costs and profit margins, creating tensions with bit obligations to provide stable investment environments. as chen and pham (2022, p. 93) note, china faces the challenge of “preserving policy space for socially necessary labor reforms while maintaining an attractive investment climate”—a balancing act complicated by existing treaty commitments. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 119 published by scholink inc. table 2. key labor reforms and investor responses (2010-2023) reform year investor response legal basis in bits overtime caps (36 hours/month) 2021 arbitration threats under china-germany bit fet and expropriation clauses minimum wage standardization 2018 compliance disputes in sezs general exception clauses collective bargaining rights 2020 challenges in jiangsu province preamble model bits the tensions between domestic reforms and investment obligations became evident in 2022 when several european electronics manufacturers challenged china’s revisions to the work safety law. the investors, operating through subsidiaries in jiangsu province, invoked the “legitimate expectations” doctrine under applicable bits, arguing that the regulatory changes constituted unfair treatment by imposing unexpected compliance costs (li & zhang, 2022, p. 278). while china defended the measures as necessary for public welfare, the absence of explicit labor carve-outs in relevant bits created legal uncertainty that complicated the dispute resolution process. as wang (2023, p. 58) observes, this case demonstrated the “asymmetry between china’s evolving domestic priorities and its legacy treaty commitments,” highlighting the need for bit provisions that explicitly recognize labor regulation as a legitimate policy objective. 3.2 home country perspective: reputational and operational risks from a home country perspective, china faces mounting international scrutiny regarding labor practices in its overseas investments, particularly within belt and road initiative (bri) projects. according to a comprehensive world bank assessment, labor disputes occurred in 43% of chinese-funded infrastructure projects in africa and southeast asia between 2018 and 2022, with common grievances including wage disparities between chinese and local workers, excessive working hours, and inadequate occupational safety measures (world bank, 2023, p. 76). these disputes not only threatened project timelines and profitability but also undermined china’s diplomatic narrative of “win-win cooperation” through the bri. as zhang and okonjo (2023, p. 80) note, labor practices in overseas investments increasingly affect china’s “soft power and international reputation,” creating incentives for strengthening labor governance within its investment agreements. the zimbabwe mining dispute of 2021 exemplifies these challenges from china’s perspective as a capital exporter. following fifteen fatalities attributed to inadequate ventilation systems, zimbabwe’s labor ministry suspended operations at a chinese-owned platinum mine in the great dyke region. the investor filed a $50 million claim under the china-zimbabwe bit, arguing that the suspension constituted disproportionate punishment and disguised expropriation (csid, 2023). zimbabwe countered that its actions were necessary to protect public health and safety, but the bit’s vague www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 120 published by scholink inc. exception clauses provided limited guidance for the tribunal. according to heng and liu (2022, p. 133), the case remained unresolved for eighteen months, during which international media coverage characterized the dispute as emblematic of exploitative practices within chinese overseas investments. 3.3 illustrative case study: pakistan sez labor reforms pakistan’s 2020 labor reforms in special economic zones (sezs) containing chinese investments triggered significant tensions that highlighted china’s complex position. the reforms, which mandated equal pay for local and chinese workers and established minimum training requirements for technical positions, were challenged by chinese investors as violations of the “fair and equitable treatment” standard under the 1989 china-pakistan bit (ahmed & zhou, 2022, p. 420). through diplomatic pressure, china’s commerce ministry secured a two-year implementation delay, but the dispute highlighted what scholars term “regulatory chill” (host states hesitating to enact necessary labor reforms), “reputational damage” (undermining china’s “win-win” narrative), and “legal fragmentation” (relying on ad hoc solutions rather than predictable treaty mechanisms). these cases demonstrate how china’s dual identity creates distinctive challenges for bit design. conventional models that prioritize investor protection over regulatory flexibility become problematic when applied to labor governance, where china occupies both sides of the regulatory equation. as gallagher and wang (2021, p. 625) observe, this unique position necessitates “innovative approaches that balance investment protection with policy autonomy,” creating space for legitimate labor regulation while providing predictable standards for investors. 4. comparative approaches and proposed framework 4.1 analysis of existing models addressing china’s dual identity challenges requires innovative treaty design that draws on comparative experience while acknowledging china’s distinctive context. existing approaches to labor provisions in investment treaties demonstrate significant variation, reflecting different philosophical orientations and governance traditions. analyzing these models provides valuable insights for developing china-specific approaches that balance investor protection with labor welfare considerations. the united states model represents the most comprehensive approach to integrating labor standards into investment treaties. the 2012 u.s. model bit contains binding obligations requiring parties to “adopt and maintain” laws consistent with internationally recognized labor rights, establishes institutional mechanisms for civil society participation, and excludes labor disputes from investor-state arbitration (ustr, 2012). according to johnson and sachs (2021, p. 315), this approach reflects a “fundamental reorientation” of investment governance toward balancing economic and social concerns. however, as wu and martinez (2023, p. 225) observe, the u.s. model presupposes institutional capacity and political willingness to enforce international labor standards that may not align with china’s development priorities or governance traditions. moreover, the model relies heavily on www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 121 published by scholink inc. western conceptions of labor rights that may not fully accommodate china’s distinctive social and economic context. the european union offers an alternative approach through its investment court system, exemplified in the 2020 eu-vietnam investment protection agreement. this model preserves substantial policy space for labor regulation while establishing proportionality requirements that balance public welfare with investor interests (european commission, 2020). labor violations may constitute breaches of fair and equitable treatment only when systematic and unremedied, creating flexibility for implementation challenges while maintaining minimum standards. the agreement also incorporates a standing tribunal with appellate review, addressing legitimacy concerns regarding traditional arbitration. as huang and meyer (2022, p. 365) note, this balanced approach offers valuable lessons for china’s bit reform, though european models remain embedded in distinctively western conceptions of labor rights and administrative governance. by contrast, the regional comprehensive economic partnership (rcep), which includes china and asean nations, adopts what heng and liu (2022, p. 128) term a “minimalist approach” to labor governance. the agreement omits substantive labor provisions entirely, reflecting a traditional conception of investment treaties as purely economic instruments. while this approach maximizes regulatory autonomy, it provides no minimum standards for labor practices in investment contexts. according to zhang and li (2020, p. 92), this regulatory vacuum can lead to “fragmented enforcement and protection gaps” that undermine both worker welfare and investment predictability. the 2022 labor protests at a chinese-owned garment factory in cambodia, which faced no bit-based accountability mechanisms despite documented wage theft, exemplifies these limitations (heng & liu, 2022, p. 131). 4.2 the gradualist framework: core components drawing on these comparative insights while acknowledging china’s unique position, this article proposes a “gradualist framework” for integrating labor provisions into chinese bits. this framework emphasizes incremental implementation, differentiated obligations based on development contexts, and mechanisms that balance sovereignty with accountability. rather than imposing immediate high standards through rigid provisions, it establishes a trajectory toward enhanced labor governance while preserving flexibility for contextual implementation. as wang (2023, p. 60) observes, this approach aligns with china’s broader philosophy of “seeking progress while maintaining stability” in governance reforms. the proposed framework consists of several complementary components that collectively address china’s dual identity challenges. preambular recognition establishes labor protection as a legitimate policy objective without creating immediate binding obligations. language referencing “decent work,” “sustainable development,” and “corporate social responsibility” establishes interpretive context for subsequent treaty provisions while signaling china’s commitment to balanced investment governance (wei, 2021, p. 198). these preambular references should explicitly acknowledge the “right to regulate” in labor matters, establishing a treaty-based foundation for legitimate regulatory interventions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 122 published by scholink inc. building on this foundation, non-derogation clauses prohibit parties from weakening labor protections specifically to attract investment. these provisions establish a regulatory floor while preserving flexibility regarding specific standards and implementation mechanisms. according to li and zhang (2022, p. 282), referencing “domestic labor laws” rather than international standards acknowledges china’s emphasis on sovereignty while preventing competitive deregulation that undermines worker welfare. this approach allows china to maintain its gradualist approach to international labor standards while addressing legitimate concerns regarding regulatory races to the bottom. the framework further incorporates explicit exception clauses that specifically include labor regulations within public welfare measures exempt from investor claims. rather than relying on general references to “public order” or “essential security,” chinese bits should enumerate categories of labor regulation exempt from characterization as indirect expropriation or unfair treatment. these categories include minimum wage legislation, occupational safety requirements, working time regulations, and anti-discrimination measures—core areas where china has legitimate regulatory interests both as host and home state (wu & martinez, 2023, p. 228). such specificity reduces interpretive uncertainty while preserving the overall integrity of investment protections. 4.3 dispute resolution innovations regarding dispute resolution, the framework incorporates specialized procedures for labor-related investment disputes. these procedures include mandatory consultation periods, expertise requirements for arbitrators handling labor matters, and transparency obligations that permit civil society participation. according to zhou and barnes (2022, p. 290), these procedural safeguards enhance the legitimacy of resulting decisions while preserving the integrity of the investment protection regime. while stopping short of excluding labor disputes from arbitration entirely (as in the u.s. model), this approach acknowledges legitimacy concerns while maintaining the enforceability of investment protections. table 3. draft annex on non-arbitrable labor disputes category examples of excluded measures legal basis in chinese law minimum wage provincial wage adjustments labor law collective bargaining union registration requirements trade union law occupational safety workplace safety inspections work safety law together, these components establish a framework that accommodates china’s dual identity challenges while gradually strengthening labor governance in the investment context. unlike rigid western models that impose immediate high standards, this gradualist approach allows for contextual implementation while establishing a trajectory toward more robust protections. as chen and pham (2022, p. 97) observe, the framework acknowledges china’s distinctive governance traditions while creating space www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 123 published by scholink inc. for incremental advancement of labor standards in both inward and outward investment contexts. 5. implementation strategy: tiered obligations 5.1 differentiated approach by development level implementing the gradualist framework requires strategic differentiation based on treaty partners’ development levels and china’s relationship dynamics. the proposed tiered obligation system tailors labor provisions to specific bilateral contexts while maintaining coherence across china’s bit network, addressing what zhang and okonjo (2023, p. 83) term the “development sensitivity” challenge in international labor governance. for least-developed countries (ldcs), a capacity-building approach emphasizes technical assistance over binding obligations. bits with these partners should include labor rights in preambular language, establish non-derogation commitments regarding domestic laws, and create institutional frameworks for knowledge transfer and implementation support. according to ahmed and zhou (2022, p. 425), these agreements should acknowledge resource constraints that may limit immediate compliance with international standards, while establishing progressive realization targets that align with development trajectories. the proposed china-malawi bit exemplifies this approach, focusing on building regulatory capacity in malawi’s mining sector through joint training programs and phased implementation of occupational safety standards. for middle-income countries, a reciprocity-based approach establishes mutual obligations regarding core labor standards. these agreements contain standalone labor clauses with binding commitments regarding domestic law enforcement, consultation mechanisms for addressing implementation challenges, and transparency requirements that enhance accountability. as wang (2023, p. 62) observes, labor provisions should reference internationally recognized standards as aspirational goals while basing compliance assessments on domestic legal frameworks. the 2023 china-indonesia bit reflects this middle-tier approach, combining firm commitments to enforce existing labor laws with dialogue mechanisms for addressing emerging issues such as digital platform work. for developed country partners, comprehensive labor provisions reference international standards and establish robust enforcement mechanisms. these agreements include binding obligations regarding ilo core conventions, third-party monitoring arrangements, and dispute resolution provisions that permit labor experts to participate in arbitration proceedings. according to huang and meyer (2022, p. 368), while maintaining china’s policy space for implementing labor standards through its distinctive regulatory approaches, these agreements acknowledge the legitimate expectations of developed partners regarding minimum labor protections. the anticipated china-eu comprehensive agreement on investment represents this advanced approach, balancing china’s sovereignty concerns with european expectations regarding labor governance. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 124 published by scholink inc. 5.2 phased implementation and institutional support across all tiers, implementation follows a phased timeline that allows for institutional learning and capacity development. initial phases focus on transparency and information sharing, establishing baseline data regarding labor conditions in investment contexts. middle phases strengthen consultation mechanisms and technical cooperation, building capacity for addressing identified challenges. advanced phases progressively introduce more stringent obligations and enforcement mechanisms, calibrated to development contexts and implementation experiences. this progressive approach aligns with what li and zhang (2022, p. 285) describe as china’s “experimentalist governance” tradition, which emphasizes learning through implementation rather than imposing rigid standards from the outset. table 4. tiered obligation framework tier countries key requirements enforcement mechanism basic ldcs (e.g., nepal) technical assistance ilo capacity-building programs intermediate middle-income (e.g., indonesia) host-state law compliance joint mediation panels advanced developed (e.g., germany) ilo core conventions hybrid arbitration tribunals the tiered obligation system constitutes a distinctive chinese approach to labor provisions that diverges from western models emphasizing uniform high standards across all agreements. as wei (2021, p. 200) observes, this differentiated approach allows china to maintain flexible positions across negotiating contexts while establishing a coherent trajectory toward enhanced labor governance in investment relations. unlike one-size-fits-all western models, this tiered framework acknowledges the diversity of china’s investment relationships while gradually advancing labor standards across its bit network. the approach aligns with china’s emphasis on “mutual respect” and “win-win cooperation” in international relations, creating space for contextual implementation while establishing minimum protections for workers affected by investment activities. 6. conclusion china’s dual identity as both capital importer and exporter creates distinctive challenges for integrating labor provisions into bilateral investment treaties. traditional bit models, designed primarily to protect foreign investors in developing countries, inadequately address the complexities of china’s position within global investment flows. the empirical analysis presented in this article demonstrates significant gaps in china’s existing bit network regarding labor governance, with only 12% of agreements containing substantive labor protections. these legislative gaps create vulnerabilities for both chinese regulatory autonomy and the reputation of chinese overseas investments. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 125 published by scholink inc. the gradualist framework proposed in this article offers a pathway for addressing these challenges while respecting china’s distinctive governance traditions and development priorities. by combining preambular recognition, non-derogation clauses, explicit exception provisions, and specialized dispute resolution procedures, this framework creates space for legitimate labor regulation while maintaining predictable investment environments. the tiered implementation strategy further tailors these approaches to specific bilateral contexts, allowing china to maintain flexible positions across diverse negotiating scenarios. this approach diverges from western models that emphasize immediate high standards and punitive enforcement mechanisms. instead, it emphasizes progressive realization, capacity building, and contextual implementation—principles that align with china’s approach to international relations more broadly. while establishing a trajectory toward enhanced labor governance in investment contexts, this framework preserves china’s policy space for implementing standards through its distinctive regulatory approaches. as china continues expanding its bit network, particularly through the belt and road initiative, integrating appropriate labor provisions becomes increasingly important for both economic stability and international legitimacy. the framework outlined in this article offers guidance for navigating these complex waters, balancing china’s interests as both rule-taker and rule-maker in the evolving landscape of international investment law. by addressing its dual identity challenges through thoughtful treaty design, china can establish investment governance models that support sustainable development while respecting diverse development contexts and regulatory traditions. references ahmed, s., & zhou, w. (2022). labor standards in chinese special economic zones: a comparative analysis of pakistan and ethiopia. journal of international economic law, 25(3), 412-435. chen, l., & pham, t. (2022). labor standards in asian trade agreements: comparing china and vietnam’s approaches. asian journal of international law, 12(1), 87-109. chen, q. (2022). litigating labor rights in chinese courts: developments and challenges. columbia journal of asian law, 35(2), 298-320. china chamber of commerce. (2022). impact assessment of labor law reforms on foreign investment. beijing. cietac. (2023). annual report on investment arbitration cases. china international economic and trade arbitration commission. csid. (2023). case no. arb/21/15: zimbabwe mining consortium v. china nonferrous metals. european commission. (2020). eu-vietnam investment protection agreement. official journal of the european union. gallagher, m., & wang, h. (2021). china’s evolving approach to investment protection treaties. international and comparative law quarterly, 70(3), 615-640. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 126 published by scholink inc. heng, s., & liu, j. (2022). labor rights protection in chinese overseas investments: the cambodian case. journal of contemporary asia, 52(1), 124-148. huang, y., & meyer, t. (2022). the future of eu-china investment relations: between market access and systemic rivalry. european law journal, 28(4), 355-378. ilo. (2023). decent work in global supply chains. international labour organization. indonesian investment authority. (2023). indonesia-china bilateral investment treaty: implementation guidelines. jakarta. johnson, l., & sachs, l. (2021). the united states’ approach to labor provisions in trade and investment agreements. columbia journal of transnational law, 59(2), 310-344. li, x., & zhang, j. (2022). labor law reforms and foreign investment: china’s balancing act. chinese journal of international law, 21(2), 267-294. mofcom. (2023). statistical bulletin of china’s outward foreign direct investment. ministry of commerce. nigeria investment promotion commission. (2022). china-nigeria bilateral investment treaty protocol. abuja. unctad. (2023). investment policy monitor. united nations. ustr. (2012). 2012 u.s. model bilateral investment treaty. office of the united states trade representative. wang, l. (2023). the evolution of china’s bit practice: from investor protection to balanced development. journal of world investment & trade, 24(1), 45-72. wei, s. (2021). china’s approach to international investment governance: legal structure and political context. chinese journal of international politics, 14(2), 187-214. world bank. (2023). labor practices in belt and road initiative projects: assessment report. washington, dc. wu, g., & martinez, c. (2023). implementing ilo standards in chinese labor law: challenges and opportunities. international labour review, 162(2), 214-238. zhang, l., & li, y. (2020). regulatory convergence and divergence in chinese investment treaties. journal of international dispute settlement, 11(1), 83-102. zhang, y., & okonjo, k. (2023). technical assistance programs for labor governance in africa: the china-ilo cooperation model. african journal of international law, 31(1), 76-98. zhou, l., & barnes, a. (2022). esg integration in china’s overseas investment: from policy to practice. journal of sustainable finance & investment, 12(3), 278-302. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 114 original paper qualitative research on double fraud of guaranteed loans yao mingyue 1 1 school of marine law and humanities, dalian ocean university, dalian, liaoning, china received: july 1, 2025 accepted: july 10, 2025 online published: july 13, 2025 doi:10.22158/elp.v8n2p114 url: http://dx.doi.org/10.22158/elp.v8n2p114 abstract this article focuses on the dispute over the nature of double fraud in criminal law in cases of obtaining loans by defrauding true guarantees, systematically combs the differences between the theoretical and practical circles on the form of the number of crimes and the determination of charges, and reveals that the core of legal interest infringement in such cases is the damage to the property rights and interests of the guarantor rather than the loan losses of financial institutions. by demonstrating the key points that the establishment of the security right causes the property risk of the guarantor immediately and the bank does not suffer losses in the sense of criminal law due to the validity of the guarantee, the analysis path of combining subjective and objective analysis is put forward: when the actor has the purpose of illegal possession, although double fraud between the bank and the guarantor is involved in form, the credit risk of the bank is dispersed in advance due to the guarantee system, and the property rights and interests of the guarantor are actually infringed upon, the crime of contract fraud shall be dealt with separately; for acts lacking the purpose of illegal possession, as financial institutions are not substantially damaged and the risks fall within the normal commercial scope, criminal law regulations should be excluded. the study emphasizes that the evaluation of criminal law should be based on the nature of infringement of legal interests at the time of act, so as to avoid confusion between the determination of charges and the results of civil liquidation. keywords double fraud, legal interest infringement, guarantor, crime of contract fraud 1. question raising generally speaking, in loan activities, banks and other financial institutions will require borrowers to provide guarantees when granting loans, but unlike the situation of directly forging guarantees to defraud loans, in practice, many borrowers defraud loans by first defrauding guarantors to provide real guarantees for their loans. the academic community has not reached a consensus on how to evaluate the double fraud of such borrowers in defrauding loans from banks and other financial institutions after www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 115 published by scholink inc. defrauding real guarantees in criminal law, and there are heated debates on the determination of one crime or several crimes, but there are not many relevant research results; at the same time, judicial practitioners have also dealt with this problem differently. through relevant legal databases such as the judgment documents network, they have searched for cases of such acts with the key words of defrauding guarantees and loans, consulted and analyzed cases of such acts, and found that there are differences in the judgments of courts for the determination of the nature of acts, not only between courts in different regions, but also between first instance and second instance, prosecution by procuratorial organs and court judgments. therefore, how to determine the nature of this double fraud, in which the perpetrator obtains effective guarantee through fraud and then defrauds the loan, that is, whether the borrower constitutes a contract fraud against the guarantor or a loan fraud against a bank or other financial institution, or whether both the previous and subsequent acts constitute a crime of fraud, and whether the guarantor’s liability for guarantee in accordance with the contract and the compensation of the loan losses of banks and other financial institutions affect the criminal law determination of the nature of the borrower’s behavior. 2. an analysis of the dispute over the determination of the nature of double fraud by borrowers 2.1 disputes in the determination of the number of crimes 2.1.1 theory of several crimes this view holds that the act of defrauding guarantees and obtaining loans from financial institutions by fraudulent means constitutes the crime of loan fraud against financial institutions and the crime of contract fraud against guarantors. although some scholars admit the establishment of several crimes, they are concerned that the combined punishment of several crimes may lead to excessive sentencing, so they tend to be punished from a felony with the theory of implicated crime (zhang, m. k., 2021). the core reasons for supporting the theory of several crimes can be summarized as the following six aspects: first, according to the substantive individual property theory, the core purpose of financial institutions to issue loans is to recover principal and interest rather than dispose of collateral. the borrower’s failure to fulfill the obligation to repay principal and interest leads to the failure of the financial institution’s property disposal purpose, which constitutes a substantial property loss. second, the essence of the realization of the security right is an expost remedy, which is only used to fill the losses that have occurred rather than to prevent the occurrence of losses in advance. the property legal interests of financial institutions have been infringed upon when lending (jiang, d. f., 2021, pp. 1-9). third, defrauding guarantees is a means of serving the final defrauding of loans. if only the crime of contract fraud against the guarantor is evaluated, it cannot cover the dual infringement of financial credit management order and bank capital security. fourth, whether the guarantor actually bears the guarantee liability is subject to accidental factors such as guarantee ability (such as bankruptcy or loss of collateral). if the guarantee liability cannot be fulfilled, the loss is still borne by the financial www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 116 published by scholink inc. institution (qian, y. l., 2018, pp. 160-169). fifth, the loan funds directly come from financial institutions rather than guarantors. the actor obtains the security right and the loan funds respectively through the double deception behavior, and the nature and source of the two objects are not the same (lin, z. y., 2020). sixth, if only the crime of contract fraud is identified, it cannot explain the independent establishment elements of the crime when the perpetrator obtains a loan from a financial institution in the crime of loan fraud, that is, it cannot explain the time point of the crime of fraud. 2.1.2 theory of one crime the theory advocates that the act of obtaining a loan after the actor defrauds the guarantee constitutes only one crime. the core reasons are as follows: first, because the guarantee system provides equivalent economic compensation, financial institutions have obtained a security right when issuing loans (whether as property interests or property legal interests), and their property disposition behavior has a basis for consideration and does not meet the constitutive elements of property loss in the crime of fraud (chen, s. q., 2019, pp. 52-66). second, the ultimate loss is the guarantor. according to the validity of the guarantee contract, even if the guarantor cannot actually perform the guarantee responsibility due to objective reasons such as bankruptcy, it is still the legal subject of debt undertaking, and the civil creditor’s rights of financial institutions always point to the guarantor (criminal trials of the first and second divisions of the supreme people’s court, 2006). thirdly, it advocates that the “important matters” of bank lending decision-making are limited to the true effectiveness of the guarantee. the borrower’s fictitious loan use, forgery of financial data and other acts only violate the contractual collateral obligation and do not constitute the fraud elements required by the crime of loan fraud in article 193 of the “criminal law” (yang, z. q., 2018, pp. 151-160). the first two reasons are reasonable, but the third reason is that in the process of applying for a loan from a bank after defrauding a third party’s guarantee, the actor often does not simply conceal the deceptive nature of the source of the guarantee, but often accompanied by other fraudulent means expressly in accordance with article 193 of the “criminal law”, such as fabricating false loan uses or project backgrounds, providing forged economic contracts, issuing false supporting documents, or misleading financial institutions by inflating the value of collateral or repeating guarantees. this means that only those who deceive the guarantor to obtain the guarantee but do not implement other statutory fraud means against the bank do not meet the constituent elements of the crime of loan fraud; if the actor not only obtains the guarantee, but also implements the fraud (such as fictitious loan project, forged transaction contract, etc.) listed in the above law during the loan application stage, it is enough to establish the crime of loan fraud alone. take “liu xin loan fraud case” as an example. on the one hand, the defendant fraudulently caused the guarantee company to guarantee its loans, on the other hand, the defendant forged a false land contract to pretend to be the basis of a real transaction. this behavior was directly identified by the judicial authorities as “using a false economic contract”, which in turn constitutes a crime of loan fraud. this shows that the deceptions listed in the criminal law norms (such as the authenticity of loan projects, the validity of transaction contracts, etc.) directly point to the key www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 117 published by scholink inc. review matters of financial institutions lending decisions. therefore, it is not possible to deny the fraudulent nature of the actor’s implementation of financial institutions on the core issues of loans on the grounds of “the existence of true guarantees”. in other words, the authenticity of the guarantee does not of course prevent other deceptive means from infringing on the freedom of property disposal of financial institutions and the order of financial management. for the judgment of the number of crimes in the two cases of fraudulent guarantee loans, the overall judgment should be based on the objective correlation between the two cheating behaviors, and the two crimes should not be evaluated in isolation. the two acts before and after have the generality of criminal intention, have close connection, and only lead to a damage result in the end, so it is reasonable to be identified as a crime (zhou, d. j., 2014, pp. 27-30). 2.2 disputes in the determination of crimes there is a controversy in the theoretical and practical circles about what kind of crime is used to identify the double fraudulent secured loan behavior implemented by the borrower. at present, most of the existing research on double fraud behavior starts directly from judicial practice cases and analyzes qualitative in specific cases. in judicial practice, the judicial organ’s criminal law characterization of the act shows a clear phenomenon of “different judgments in the same case”. there are three different views in the theoretical circle of criminal law on the characterization of the behavior of the actor to defraud the loan of financial institutions by defrauding the guarantor to obtain the guarantee. the first view holds that the fraud committed by the actor against the guarantor constitutes the crime of contract fraud (the object is the property interest), and the fraud against the financial institutions constitutes the crime of loan fraud (the object is the loan). the two are independent criminal constitutions and should be punished with several crimes (zhang mingkai criminal law (fifth edition), 2016); the second view advocates that the two frauds overlap at the core fact level and should be identified as imaginative concurrence or implicated relationship, and then be punished from a felony; the third view is based on the actual subject of the damage result. specifically, if the consequences of damage are borne in full by a third party such as a guarantor, the perpetrator constitutes a crime of fraud; if banks and other financial institutions actually bear or partially bear the loss, they should be characterized by the crime of loan fraud (wang, c., 2004, pp. 118-124). the author does not agree with the logical path of the above third view. this view regards the actual transfer of loss as the core evaluation factor of crime constitution, which is essentially biased towards the single dimension of result without value, while ignoring the dual judgment requirements of act without value and result without value in criminal law. in particular, it is necessary to question the premise of its preset argument, that is, the act of defrauding guarantee itself can independently constitute the crime of fraud. when the actor’s fictitious performance ability defrauds the guarantee, although the guarantor makes a guarantee intention due to fraud, the occurrence of its property loss is still in a contingent state (on the premise that the financial institution claims the guarantee responsibility). at this time, there is no direct and inevitable causal relationship between the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 118 published by scholink inc. guarantor’s “property disposal behavior” and “actual loss result”. more importantly, the essence of the guarantee system is to disperse financial risks. the guarantor’s guarantee itself means its subjective acceptance of the default risk of the main debt. the voluntariness of this risk burden may hinder the determination of the criminal punishability of fraud. therefore, in the judgment of criminal illegality, we should strictly follow the principle of unity of subjectivity and objectivity, carefully distinguish the boundary between civil fraud and criminal fraud, and avoid excessive intervention of criminal law in the guarantee legal relationship that should be adjusted by civil law. 3. reasons for difficulties in determining the nature of double fraud guarantee loans 3.1 the act and legal relationship are complex the actor committed a double deception: first obtaining the guarantee of the guarantor by deception, and then defrauding the bank loan by virtue of the real guarantee. in this case, the provisions of article 193 (4) of the criminal law on false guarantees or repeated guarantees cannot be directly applied to determine the crime of loan fraud, because it is necessary to consider the fraud of the guarantor by the perpetrator and the role of the real guarantee in the process of obtaining the loan. at the same time, since the description of the crime in article 193 does not include the formal defects of the guarantee, according to the similar interpretation rules, the “other methods” clause in article 5 of this article is also difficult to directly apply to the use of fraudulent real guarantees to obtain loans. different from the general cases of defrauding loans or loan fraud, such cases involve the legal relationship between the borrower, the lender and the guarantor, including both the loan contract and the guarantee contract. since the real guarantee is provided, involving the establishment and exercise of the security right, the criminal and civil legal relations are intertwined in the legal relationship caused by the two fraudulent acts. for these two deceptions, whether one of them constitutes a crime or both of them constitutes a crime is controversial in itself. 3.2 the assumption of losses is uncertain because the guarantor provides the real guarantee for the actor’s loan, there is a guarantee legal relationship with the bank. since the guarantor provides a real and effective guarantee to the bank, according to the guarantee legal relationship, when the borrower cannot repay the loan, the bank has the right to require the guarantor to bear the responsibility, and the loss is borne by the guarantor. however, if the guarantor cannot fully perform the guarantee liability for its own reasons (such as bankruptcy or loss of collateral), the remaining losses are still borne by the bank. this dynamic relationship between the guarantee liability and the bank’s creditor’s rights leads to the objective uncertainty of which party ultimately bears the actual loss. in judicial practice, this uncertainty directly affects the identification of crimes: if the loss is ultimately borne by the guarantor, it may be identified as the crime of contract fraud; if the loss is borne by the bank, it may be identified as a loan fraud. this way of reversing the crime by the actual loss result essentially links the nature of the criminal act with the accidental result of civil settlement, resulting in the difference in the determination of the crime in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 119 published by scholink inc. the same type of case due to the different performance ability of the guarantor. this not only violates the principle that the criminal law should be convicted based on the nature of the act itself, but also causes the inconsistency of judicial evaluation standards. 3.3 the criminal intent is general in the case where the actor defrauds the guarantee, the actor knows that the guarantor may bear the corresponding responsibility because it cannot repay the loan, so its subjective purpose is often difficult to clearly define whether it is for the guarantor or the loan bank. the criminal intent is usually characterized by generality. the actor does not pay special attention to who bears the final loss, and the bearer of the actual loss result is often not controlled or pursued by the actor. therefore, in such cases, it is difficult to accurately define the nature of criminal acts by relying on subjective purpose elements, and the screening function of purpose elements is obviously weakened. it can be seen that such behavior of defrauding guarantees and obtaining loans cannot be simply understood as the actor only has the purpose of illegally occupying the loan, while ignoring its subjective intention of illegally occupying the guarantor’s property. the actor has implemented two deceptions of guarantee and loan at the same time. however, due to the generality of his subjective intention, the stereotyped function of the purpose element in the crime identification is weakened (liu, r., 2017, pp. 109-117). 4. nature of guarantee and determination of victim’s losses through the previous analysis of the disputes and dilemmas in the identification of the nature of the behavior of defrauding guarantees and thus obtaining loans. the core controversy of criminal law evaluation on the act of obtaining loans by defrauding guarantees lies in how to define the legal attributes of guarantees and the criteria for victim identification. the key is to clarify whether the establishment of a security right constitutes property damage in the sense of criminal law, to judge the time when the loss occurs, and to distinguish the actual victim. although the guarantor is provided by the deceived party, because the guarantee itself is true and effective, the case characterization needs to focus on the legal effect of the establishment of the guarantee and the impact on the property interests of all parties. the constitution of the crime of fraud must take the infringement of legal interests as the core, and the determination of the role of the victim should be based on the change of rights and interests at the time of behavior, rather than the final result of civil liability. with regard to the nature of security in criminal law, no matter what kind of controversy exists in the theoretical circle about whether the security interest belongs to “property” or “property interest”, it does not affect its eligibility as the object of fraud. the guarantor makes the guarantee behavior based on the wrong understanding. although the specific property has not been transferred immediately, its property interests have fallen into a real dangerous state due to the establishment of the guarantee obligation. there is a view that the loss can be identified only when the guarantor is actually compensated, but this understanding confuses the performance of civil liability and the identification standard of criminal law infringement. the loss of property interests does not need to be based on the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 120 published by scholink inc. premise of actual property impairment. as long as the actor deceives the guarantor’s property in a dangerous situation that can be recovered at any time, it constitutes an infringement of property legal interests. at this time, the crime of contract fraud has been accomplished. the establishment of the security right itself has led to the transfer of property interests, and the exercise of the right of relief after the event cannot replace the criminal evaluation of the property risk at the time of the act. there are opposing views on whether the bank constitutes a victim of property loss. the substantive individual property theory holds that if the bank fails to achieve the purpose of recovering principal and interest after lending, there will be property losses. however, this paper argues that the bank has obtained the security right as the consideration when issuing the loan, and its disposition of the loan is essentially the exchange of funds for security interests, without causing property damage in the sense of criminal law. the core purpose of the guarantee required by the bank is not to be repaid by the borrower himself, but to ensure the diversity of the realization path of the creditor’s rights. therefore, the compensation by the guarantor after the borrower defaults is a pre-allocation of contract risk, which does not constitute a failure of purpose. the establishment of a security right has enabled the bank to obtain equivalent rights at the point of action. whether the subsequent guarantee is fully realized is a civil enforcement issue and has nothing to do with criminal property losses. in addition, the validity of the contract is characterized by the criminal-civilian cross-influence behavior. if the validity of the main contract is directly denied because the borrower constitutes a crime, the guarantee contract will be invalid, and the victim status of the guarantor will be excluded. however, the validity of the main contract should be judged independently: as long as it does not violate the mandatory provisions of validity or public order and good customs, criminal offences do not necessarily lead to invalid contracts. as a subordinate contract, the validity of the guarantee contract depends on the civil evaluation of the main contract rather than the criminal characterization. as long as the main contract is valid, the guarantor has a compensatory obligation, and the property risk borne by the guarantor due to fraud exists independently, which does not affect the criminal law’s determination of the crime of contract fraud. the boundary between criminal evaluation and contract validity judgment should be maintained to avoid replacing the independent judgment of legal interest infringement at the time point of behavior with civil results. 5. criminal law qualitative analysis of borrowers’ double fraud of guaranteed loans 5.1 double fraud committed for the purpose of illegal possession as pointed out in the previous analysis of the nature of the guarantee and the loss of the victim, in the case where the actor obtains the loan by defrauding the real guarantee, even if the guarantor cannot pay off the loan in full afterwards, it is also a normal business risk. the creditor-debtor relationship between the bank and the guarantor based on the guarantee is still valid, and the bank has not suffered actual losses in the sense of criminal law. therefore, the behavior of the perpetrator only constitutes the crime of contract fraud, the object of infringement is the guarantor, not the bank, should not be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 121 published by scholink inc. identified as the crime of loan fraud. for the subsequent possible fraud of the perpetrator, the evaluation should be limited to the field of civil law, and should not be included in the scope of criminal law. therefore, in the case of the perpetrator with the purpose of illegal possession, it should be determined that his behavior constitutes the crime of contract fraud. even if banks and other financial institutions eventually suffer losses, it should not be determined that the perpetrator constitutes a crime of loan fraud. in secured loans, the core concern of the bank is the authenticity and effectiveness of the guarantee, rather than the borrower’s own repayment ability, because the legal and effective guarantee essentially transfers the repayment responsibility to the guarantor. even if the borrower obtains the guarantee by deception, as long as the guarantee is verified to be true by the bank’s review, the bank recognizes the value and effectiveness of the guarantee based on its own risk control standards. at this time, the borrower’s behavior only constitutes civil-level fraud and does not fall into the category of criminal fraud. the reason is that the bank has obtained the property rights corresponding to the loan amount by accepting the real guarantee, and its creditor’s rights have not suffered substantial losses due to the borrower’s deception. as for whether the guarantor provides a guarantee due to fraud, it belongs to the civil legal relationship between the guarantor and the borrower, and is not the scope of the bank’s need to determine or assume responsibility in the loan review. therefore, under the premise that the authenticity of the guarantee is flawless, even if there is a case of fraudulent guarantee, the act is still outside the legal regulation boundary of the crime of loan fraud and should be adjusted by civil law. the act of issuing loans by banks does not conform to the disposition of property based on wrong understanding in the crime of fraud. the establishment of the crime of fraud must be based on the premise that the perpetrator causes the victim to fall into a wrong understanding through deception and disposes of the property based on the wrong understanding. however, in the secured loan scenario, the core decision-making basis for banks to issue loans is not derived from the substantive trust in the borrower’s application materials, but from the professional evaluation of the authenticity and adequacy of the guarantee measures. even if the borrower has fraudulent behaviors such as fabricating false materials and fictitious loan uses, as long as it provides a real and effective guarantee recognized by the bank, the bank’s lending decision is essentially a business judgment centered on the risk coverage ability of the encumbered assets, rather than the property disposition after the wrong understanding due to deception (chen, x. l., 2016, pp. 39-51). at this time, the fraud of the borrower’s forged materials is only an instrumental means to meet the requirements of the bank’s formal review. these frauds do not touch the core conditions for the bank to decide whether to lend. the bank’s lending behavior is a commercial behavior based on the balance of risk and income, rather than the “misconception-property disposition” causality in the fraud crime. therefore, under the premise of the authenticity of the guarantee, even if there is fraud in the loan declaration link, the act does not constitute the crime of loan fraud due to the lack of the core causal relationship in the constitutive elements of the crime of fraud. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 122 published by scholink inc. when the borrower, for the purpose of illegal possession, induces the guarantor to provide real and effective guarantee by means of fabricating facts or concealing the truth, and thus obtains bank loans, his behavior constitutes the accomplished form of the crime of contract fraud, and should be separately convicted of the crime. specifically, the key node of crime accomplishment occurs when the guarantor signs a guarantee contract due to deception. although the borrower finally obtains the loan funds through the bank, the actual repayment responsibility of the funds has been transferred to the guarantor. in essence, the guarantor’s property rights and interests are the object of infringement. the bank can be regarded as a criminal tool for the actor to achieve the purpose. by transforming the security interest provided by the guarantor into loan funds and delivering them to the borrower, the indirect transfer of the guarantor’s property to the actor can be realized. the actor has a clear understanding of the fact that he cannot repay the loan, and his subjective intention directly points to the embezzlement of other people’s property by using the guarantor to bear the repayment responsibility, while the bank’s fund issuance behavior is only an instrumental link to achieve the purpose of illegal possession. based on the principle of unity of subjectivity and objectivity, this kind of behavior mode of “defrauding guarantee-obtaining loan” should be identified as the crime of contract fraud because the core damage object is the guarantor’s property rights and interests, and the criminal behavior is completed through the guarantee contract fraud. 5.2 double fraud committed without the purpose of illegal possession in the case that the actor obtains the guarantee by deception but has no purpose of illegal possession, the guarantor does not constitute the crime of contract fraud even if it eventually compensates the loan for objective reasons. the establishment of the crime of contract fraud is based on the subjective intention of the actor to illegally occupy the property of others. in this case, the actor has neither the intention of encroaching on the property of the guarantor nor directly obtaining the property of the guarantor through fraudulent means. its fraudulent behavior only contributes to the establishment of the guarantee relationship. when the guarantor provides guarantee, there is still a reasonable expectation of the borrower’s repayment ability. even if the guarantee liability is caused by objective reasons, it should be adjusted by civil legal relationship. according to the amendment of the “criminal law amendment (11)”, the conviction standard of the crime of defrauding loans is based on the necessary premise of “causing significant losses to financial institutions”. if the actor has provided a real and effective guarantee, the bank has obtained the property rights protection equivalent to the loan amount through the guarantee measures. even if the loan is not recovered for objective reasons, the bank is not actually damaged due to the risk of guarantee coverage. even if the loan principal and interest are not fully recovered due to objective factors, it is also a foreseeable commercial risk for financial institutions, and there is no direct causal relationship in criminal law between fraudulent loan behavior. in this kind of “double fraud”, because the bank has not suffered legal “significant losses” and the security of funds has not been substantially damaged, the deceptive means of the perpetrator only involve the formal defects of loan review, which does not www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 123 published by scholink inc. constitute the crime of defrauding loans, and should be attributed to the scope of civil dispute adjustment. therefore, the double fraud without the purpose of illegal possession does not constitute a crime for the guarantor and the bank, and it belongs to the civil legal relationship to adjust the recovery. 6. conclusions in determining the nature of the criminal law for obtaining loans by defrauding guarantees, it is necessary to make a unified judgment of types to avoid the uncertainty of different judgments and charges in the same case. the nature of the guarantee needs to be clarified. for the determination of losses and the judgment of infringement of legal interests, the provision of true guarantees is the key factor affecting the crime and the foothold of legal relations. as for the post-payment of the guarantor, the determination of the nature of the act shall not be affected. even if the bank ultimately suffers losses due to the guarantor’s failure to pay off in full, it is not equal to the victim’s losses in the loan crime. the time node for judging the property loss suffered by the victim lies in the time when the actor has completed the act of controlling the property, because the actor has the purpose of illegal possession, when the guarantor establishes a guarantee for the actor’s loan, he has already faced the situation that the guarantee provided cannot be recovered, which constitutes the completion of the crime of contract fraud. however, because of the existence of true guarantee, the actor’s acquisition of control over the loan does not mean that the bank has suffered losses on the loan at this time, and the second fraud should be recognized as civil fraud rather than fraud. if the perpetrator does not have the purpose of illegal possession and only commits fraud, the double fraud guarantee loan does not constitute a crime and belongs to the adjustment of civil legal relations. references chen, s. q. (2019). criminal determination of double fraud in guaranteed loans—taking the criminal law evaluation of guarantee as the entry point. politics and law, 2019(01), 52-66. chen, x. l. (2016). special types of “two sides fraud” in contract fraud: qualitative analysis and handling. politics and law, 2016(04), 39-51. criminal trials of the first and second divisions of the supreme people’s court. (2006). references to criminal trials. beijing: law press. jiang, d. f. (2021). analysis and determination of deceiving others to provide real property rights guarantee to implement loan fraud. legal system and economy, 30(08), 1-9. lin, z. y. (2020). study on the qualitative problem of double fraud in guaranteed loans. shanghai: east china university of political science and law. liu, r. (2017). difficulties and ways out for cases of “two sides fraud” guaranteed loans. jinyang academic journal, 2017(06), 109-117. qian, y. l. (2018). study on the cross-related entities between criminal and civil cases of double fraud on guaranteed loans. legal and commercial research, 35(05), 160-169. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 124 published by scholink inc. wang, c. (2004). study on the nature of the crime of loan fraud. legal science journal of northwest college of politics and law, 2004(02), 118-124. yang, z. q. (2018). study on the interpretation and application of guarantee clauses in the crime of loan fraud. law forum, 33(01), 151-160. zhang mingkai criminal law (fifth edition). (2016). beijing: law press. zhang, m. k. (2021). criminal law (sixth edition). beijing: law press. zhou, d. j. (2014). obtaining bank loans by defrauding guarantees constitutes a crime of contract fraud. people’s justice, 2014(16), 27-30. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 3, 2023 www.scholink.org/ojs/index.php/elp 13 original paper does the federal law forbidding people under domestic violence restraining orders from possessing firearms save lives? john r. lott, jr. 1 & carlisle e. moody 2* 1 crime prevention research center, missoula, mt, usa 2 department of economics, college of william and mary, williamsburg, va, usa * carlisle e. moody, department of economics, college of william and mary, williamsburg, va, usa received: september 15, 2023 accepted: september 25, 2023 online published: october 18, 2023 doi:10.22158/elp.v6n3p13 url: http://dx.doi.org/10.22158/elp.v6n3p13 abstract the supreme court of the united states will hear arguments concerning federal law 18 u.s.c. 922(g)(8) which forbids individuals who are under a domestic violence protection order (dvpo) from possessing firearms. this paper analyzes the potential costs of overturning that law. we estimate a variety of models to determine the effect of the law on domestic murders, domestic femicides, domestic gun murders, and domestic gun femicides. we subject the analysis to a variety of robustness checks. the results are remarkably robust. we find that 18 u.s.c. § 922(g)(8) does not significantly reduce domestic murder, domestic femicide, domestic gun murder, or domestic gun femicide. keywords domestic violence, firearm policy analysis, two-way fixed-effects, 18 u.s.c. 922(g)(8) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 14 published by scholink inc. 1. introduction on february 2, 2023, the fifth circuit court of appeals vacated the conviction of zackey rahimi. a federal court convicted mr. rahimi possessing firearms while under a domestic violence protection order (dvpo), violating section 18 u.s.c. 922(g)(8) of the us code (hereafter “922” law), a law passed by congress in 1994. the court concluded that, doubtless, 18 u.s.c. § 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society. weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on rahimi’s second amendment rights. but bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the second amendment right. through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an “outlier that our ancestors would never have accepted.” id. therefore, the statute is unconstitutional, and rahimi’s conviction under that statute must be vacated (note 1). rahimi had a lengthy criminal history. in 2019, rahimi fired a gun at a passerby who witnessed him dragging his girlfriend through a parking lot. months later, he shot at a driver he had gotten into an accident with. and in 2020, he assaulted another girlfriend and threatened her with a gun. finally, in 2021, rahimi shot a gun in the air when his friend’s credit card was declined (note 2). restraining orders are unlikely to work against the people who are truly dangerous. someone who is willing to commit murder is already facing either a life sentence or the death penalty. the additional penalties for illegally obtaining a gun or violating a protective order are unlikely to provide marginal deterrence. despite a protective order, mr. rahimi still illegally obtained and used a firearm. in any application of a restraining order, there are false positives and false negatives. restraining orders mistakenly applied to law-abiding individuals will likely be effective in disarming them, so that they will not be able to defend themselves and others. as just noted, restraining orders might not impose a real marginal penalty on those who are truly dangerous. thus, the law is most likely to restrain only those who are most law-abiding and fail to restrain the most dangerous. what are the merits of this law that will be lost in the protection of second amendment rights if the supreme court finds it unconstitutional? in this paper, we attempt to assess the benefits of banning individuals who are subject to domestic violence protection orders from possessing firearms. that is, we are assessing the costs of declaring 18 u.s.c. § 922(g)(8) unconstitutional. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 15 published by scholink inc. 2. method 2.1 econometric methodology we measure the strength of state domestic violence protective orders (dvpo) by the duration of the order. the 922 law enhances the state domestic violence protection order. it has no effect in the absence of a state protection order. the 922 law passed in 1994. we create a dummy variable to measure its effect, taking the value zero for years before 1994 and the unit value for the remaining years. we then create two test variables by multiplying the temporary order duration and the final order duration variables by the dummy variable for 1994 and later. we are, therefore, estimating the additional effect of the 922 law given an existing state protection order. this methodology allows us to estimate a two-way fixed-effects (twfe) panel data model where we include the year dummies to control for things like recessions, the passage of other federal laws, and anything else that affects all states in a given year. it also makes the necessary assumption of independence across states more likely. a dvpo is intended to protect the applicant against potential violence committed by a domestic partner. while a person of any gender can request such an order, women are the primary users. as such, we investigate several different outcomes, domestic homicides, domestic homicides of women, domestic homicides committed by firearms, and femicides by a domestic partner using firearms. since these are count variables, we use the twfe negative binomial model (cameron & trivedi, 1998, pp. 70-79). the negative binomial is a generalization of the poisson distribution in that it does not require the mean and variance of the distribution of the dependent variable to be equal. the typical case is that the variance is greater than the mean, called overdispersion. we tested for overdispersion in each of the models reported below. there was significant overdispersion in every case, justifying the negative binomial model. the model is as follows. 1 2 3 4 log( ) ( ) ( ) it i t it it it it it it it it y tdvpo fdvpo d tdvpo d fdvpo x u              (1) the αi are the state fixed effects, the δt are the year fixed effects, dit is the dummy variable indicating that the year is 1994 or later, tdpvoit is the duration of the state’s temporary protection order in year t, fdvpoit is the duration of the state’s final dvpo in that year, xit is a matrix containing observations on the control variables. the primary coefficients of interest are β3 and β4 indicating the enhancement effect of 922. however, the coefficients on the temporary and final protection order durations (β1 and β2) may also be of interest. the choice of control variables to include in the model is crucial. if we leave out a potentially relevant variable, it results in omitted variable bias. including an irrelevant variable whose true coefficient is zero, does not bias the estimates, but the estimates are inefficient. the inefficiency could be so bad that a relevant variable could have a standard error so large that it inaccurately appears to be insignificant. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 16 published by scholink inc. according to rao (1971) and wallace (1964), if the true t-ratio for a given variable is less than one in absolute value, dropping this potentially irrelevant variable from the original (general) model will reduce the mean squared error (variance plus squared bias) of all the remaining coefficients in the resulting (specific) model. accordingly, we start with a general model including many potentially relevant variables. we then drop all control variables with absolute t-ratios less than one and test them as a group for significance using a standard f-test. if the f-test is not significant, we are justified in dropping the insignificant variables. if the f-test is significant, we go back and find the variable or variables making it significant and add them back into the model. we continue until the f-test is insignificant. if the resulting specific model has any t-statistics less than one in absolute value, we drop them, add them to the f-test, and test for significance. if the f-test is insignificant, we re-estimate the new, reduced, specific model. we repeat until the specific model has no t-ratios less than one in absolute value. the resulting model is the specific model and, while it may have some bias, the bias will be small. the specific model will be more efficient, with presumably more precise estimates, and have lower mean squared errors, than the general model. this general-to-specific methodology (hendry, 1995) has been used successfully in many applications, e.g., owen and weatherston (2004), muelbauer and nunziata (2004), rao and singh (2006), and reade (2007). we rely on this modeling strategy to estimate the true data generating process as closely as possible. it is unlikely that the federal government passed the law banning individuals subject to a dvpo from possessing firearms because of a contemporaneous increase in deaths of individuals otherwise protected by state protection orders. we assume that the policy variables are exogenously determined. that means that we can avoid the use of instrumental variables. however, since some of the control variables could be simultaneously determined with the dependent variable, we lag the potentially endogenous control variables. 2.2 data observations on the dependent variables are taken from kaplan (2021). jacob kaplan has produced a convenient database for the fbi’s supplementary homicide reports (shr). the shr data for 1980-1983 are missing and most of the data for the control variables end in 2018. consequently, our primary results are derived from an unbalanced panel consisting of 50 states. in the robustness section we restrict the dataset to 1984-2018 to form a balanced panel. we defined a domestic homicide as one in which the first victim was related to the first offender as a husband, wife, boyfriend, girlfriend, common-law husband, common-law wife, ex-husband, ex-wife, or in a homosexual relationship. we then determined if the victim was female and if the offender used a firearm. for the policy variables, we examined the law codes of all fifty states from 1970 to 2023. there are two types of protective orders. temporary or emergency orders are usually issued without the participation of the respondent. these are usually short, averaging 27 days (median 14 days), but they can be as long as two years. the final order, which replaces any temporary order, is longer, averaging four years with www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 17 published by scholink inc. a median of one year. however, many states issue permanent orders, which could be modified or rescinded. to translate these into numerical values, we had to make several assumptions. for example, since we don’t know the respondent’s age or the probability of the order being appealed or otherwise reduced or rescinded, we assume that a permanent order lasts 25 years. the online appendix lists all the assumptions. since the numerical values are necessarily arbitrary, we did robustness checks with these long-duration order values doubled and halved to see if the results changed. the results are not sensitive to these assumptions. the control variables are listed in table 1 along with the means of the dependent variables and the policy variables of interest. table 1. means and other statistics variable n mean st. dev min max domestic murders 1587 33.73 43.53 0 344 domestic femicides 1587 23.88 30.18 0 217 dom gun murders 1587 19.59 27.24 0 241 dom gun femicides 1587 14.37 19.02 0 141 final order, years 1587 3.98 7.40 0.05 42.48 temp order, days 1587 27.13 73.38 0.28 730 final*922 dummy 1587 3.55 7.26 0 42.48 temp*922 dummy 1587 21.19 68.85 0 730 prison pc 1587 333.90 154.32 32.84 871.62 police pc 1587 277.60 50.41 161.67 522.74 abortion 1587 1.51 1.31 0 6.02 unemployment rate 1587 5.65 1.88 2.30 14.80 employment pc 1587 57.90 5.33 37.99 73.07 military pc 1587 1.01 0.90 0.27 6.65 construction pc 1587 3.33 0.75 1.36 6.90 alcohol pc 1587 1.91 0.45 0.89 4.04 crack 1587 1.41 1.10 -0.70 7.78 density 1587 4.31 13.54 0.08 111.34 income pc 1587 16.80 3.48 9.16 30.45 poverty rate 1587 12.89 3.71 2.90 27.20 welfare pc 1587 249.58 89.65 0.33 548.53 gun suicide/suicide 1587 61.10 12.73 0 100 executions pc 1587 0.87 3.08 0 40 percent population 15-34 1587 28.92 2.72 23.37 39.81 percent black men 15-34 1587 1.66 1.44 0.07 5.90 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 18 published by scholink inc. police, prison, and the death penalty all have deterrent roles. prison and executions also have incapacitation effects. these variables are all in per capita rates. we also lag them to avoid simultaneity. the effective abortion rate for murder from donohue and levitt (2020) is included because there is some evidence that legalized abortion could affect crime rates. unfortunately, the donohue and levitt (2020) sample ends in 2014 and computation of the effective abortion rate is complicated. however, it is easy to extrapolate the series since it is a smooth trend, and we only need to extrapolate four years. we include the proportion of the population between 15 and 34 and the proportion of black males 15-34 because relatively young men largely commit murder. we have three employment variables, total employment per capita, indicating the amount of legitimate employment available; military employment, since the military concentrates many young men in certain areas but also sends many young men out of the country; and construction employment per capita because the construction industry also concentrates large numbers of young men. the denser the population, the more interactions among the inhabitants, some of which could cause domestic murder. for this reason, we include population density as a control variable. we include per capita consumption of alcohol because alcohol can reduce inhibitions. we include the unemployment rate, real personal income per capita, the poverty rate, and real welfare payments per capita, any of which could affect domestic murder by altering the stresses associated with domestic life. a possibly important factor in any crime equation using historical data is the emergence of crack cocaine in the 1980’s. the resulting large increase in the supply of cocaine caused turf battles among drug gangs, increasing murder rates. we control for the crack cocaine epidemic by including the fryer et al. (2013) crack index, a combination of indicators of cocaine use compiled by fryer and his colleagues for the period of the crack epidemic. there are continuous values for 1981 to 2000 for each state. we set pre-1981 values at the 1981 levels and post-2000 values at the 2000 levels. finally, we include population as an exposure variable. 3. results the next two tables present the primary results. table 2 shows the effects of the federal 922 law on domestic murder and domestic femicide. the temporary and final domestic violence protection orders insignificantly change domestic murders or domestic femicides. table 3 shows the law’s effects on domestic gun murder and domestic gun femicide. here we again find that neither temporary nor final domestic violence protection orders significantly reduce domestic gun murders or domestic gun femicides. the effect of the 922 law working through temporary orders is a small, but significant, increase in domestic gun murders. the estimates for domestic gun femicides show a similarly small effect but are not consistently significant. the effect of the 922 law working through final orders shows a very small and insignificant decline in both domestic gun murders and domestic gun femicides. overall, 18 u.s.c. § 922(g)(8) has not significantly reduced domestic murders, domestic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 19 published by scholink inc. femicides, domestic gun murders, or domestic gun femicides. table 2. results for domestic murder and domestic femicide domestic murder domestic femicide variables general specific general specific temporary order, days 1.000 1.001 1.001 1.001 (0.602) (0.862) (1.031) (1.364) final order, years 0.993 0.991 0.993 0.991 (-1.183) (-1.250) (-1.101) (-1.165) 922 dummy * temp days 1.000 1.000 1.000 1.000 (0.556) (1.350) (-0.432) (0.121) 922 dummy * final years 0.997 0.994 0.998 0.994 (-0.651) (-1.103) (-0.423) (-1.115) prisoners per capita lagged 1.000 1.000 1.000 (-1.356) (-1.338) (-0.653) police per capita lagged 1.000 1.000 (-0.302) (0.0198) abortion 0.984 0.958 (-0.282) (-0.788) unemployment 1.010 1.014 (0.772) (1.125) employment 0.993 0.995 (-0.460) (-0.300) military 1.007 1.039 (0.0536) (0.305) construction 1.103 1.078 1.087 1.041 (1.798) (1.760) (1.506) (1.044) alcohol 1.503* 1.446** 1.335 1.386* (2.172) (2.810) (1.541) (2.551) crack 1.042 1.076 1.042 1.079 (1.411) (1.673) (1.376) (1.666) density 0.995 0.985 0.982* (-0.485) (-1.540) (-2.135) income 1.004 1.007 (0.192) (0.345) poverty 1.011 1.014 1.007 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 20 published by scholink inc. (1.221) (1.665) (0.779) welfare 1.000 1.000 (-0.666) (-0.0126) gun suicide/suicide lagged 0.997 0.997 0.997 0.998 (-1.671) (-1.450) (-1.406) (-1.072) executions pc lagged 1.000 1.001 (-0.0873) (0.414) pct pop 15-34 0.982 0.976 (-0.707) (-0.941) pct black men 15-34 1.751*** 1.613*** 1.558*** 1.471** (3.813) (3.378) (3.357) (3.014) note. ***p<.001, p<**.01, p<*.05; negative binomial model; coefficients are incidence rate ratios; t-ratios in parentheses; standard errors clustered on states; state and year effects estimates are suppressed; complete results, programs and data are available at <cemood.people.wm.edu/elp_dvpo.zip>. table 3. domestic gun murder, domestic gun femicide domestic gun murder domestic gun femicide variables general specific general specific temporary order, days 1.000 1.001 1.000 1.000 (0.274) (0.703) (0.323) (0.486) final order, years 0.994 0.992 0.991 0.991 (-0.965) (-1.104) (-1.402) (-1.351) 922 dummy * temp days 1.001* 1.001** 1.001* 1.001 (2.083) (2.588) (2.258) (1.839) 922 dummy * final order years 0.993 0.991 0.996 0.996 (-1.329) (-1.654) (-0.786) (-0.826) prisoners per capita lagged 1.000 1.000 (-0.316) (0.400) police per capita lagged 0.999 0.999 (-0.737) (-0.434) abortion 0.962 0.956 (-0.614) (-0.826) unemployment 1.013 1.006 (0.808) (0.411) employment 0.990 0.997 (-0.461) (-0.157) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 21 published by scholink inc. military 0.974 0.978 (-0.179) (-0.171) construction 1.106 1.088 (1.562) (1.360) alcohol 1.648* 1.664*** 1.470 1.589*** (2.317) (3.373) (1.850) (3.524) crack 1.072* 1.109* 1.084* 1.091** (2.041) (2.242) (2.314) (2.768) density 0.997 0.991 0.984 (-0.270) (-1.075) (-1.537) income 0.994 0.987 (-0.294) (-0.698) poverty 1.015 1.016* 1.010 (1.602) (1.995) (1.143) welfare 1.000 1.000 (-0.243) (0.376) gun suicide/suicide lagged 0.997 0.998 (-1.112) (-0.995) executions pc lagged 0.996 0.995 0.998 (-1.356) (-1.889) (-0.727) pct pop 15-34 0.979 0.968 0.972 (-0.660) (-1.045) (-1.032) pct black men 15-34 1.697** 1.525* 1.542** 1.571** (3.192) (2.458) (2.843) (2.997) note. ***p<.001, p<**.01, p<*.05; negative binomial model; coefficients are incidence rate ratios; t-ratios in parentheses; standard errors clustered on states; state and year effects estimates are suppressed; complete results, programs and data are available at <cemood.people.wm.edu/elp_dvpo.zip>. 4. robustness checks an alternative method for estimating the impact of a crime policy is to investigate the policy’s effect on the per capita domestic murder rate. for this analysis, we apply the two-way fixed-effects model to the rate of domestic murders per one million population. table 4 presents the results. the estimates are very similar to those shown in tables 2 and 3. the federal 922 law does not significantly affect domestic murder or domestic femicide. the small positive effect for domestic gun murders which was significant in table 3 is not significant in the per capita fixed-effects model. as reported in table 3, there is a significant small positive effect on domestic gun femicide for temporary protective orders, but only in the more efficient specific model. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 22 published by scholink inc. table 4. estimates using per capita data domestic murder domestic femicide general specific general specific temporary order, days 0.034 0.038 0.011 0.0071 (0.87) (1.03) (0.40) (0.25) final order, years -0.36 -0.37 -0.18 -0.19 (-1.08) (-1.19) (-0.85) (-0.82) 922 dummy * temp days -0.015 -0.016 -0.0061 0.0046 (-1.13) (-1.33) (-0.59) (0.50) 922 dummy * final order years 0.033 0.028 0.049 -0.075 (0.14) (0.12) (0.31) (-0.44) domestic gun murder domestic gun femicide general specific general specific temporary order, days 0.026 0.032 0.0044 -0.0025 (1.05) (1.31) (0.24) (-0.14) final order, years -0.21 -0.27 -0.24 -0.22 (-0.79) (-1.01) (-1.41) (-1.16) 922 dummy * temp days 0.00031 -0.0012 0.011 0.027** (0.032) (-0.13) (1.39) (3.46) 922 dummy * final order years -0.16 -0.12 0.0034 -0.070 (-0.78) (-0.62) (0.027) (-0.49) note. ***p<.001, p<**.01, p<*.05; two-way fixed-effects model; control variables and state and year effects estimates are suppressed; standard errors clustered on states; full results, programs, and data available at <cemood.people.wm.edu/elp_dvpo.zip>. as noted above, there is some uncertainty as to how to translate the duration of indefinite or permanent final orders into numbers that can be entered into a dataset. we investigate the sensitivity of the results to these arbitrary values by doubling and halving the values of any orders over 10 years and re-running the negative binomial regressions. the results are reported in table 5. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 23 published by scholink inc. table 5. doubling and halving long sentences 2x half x domestic murder domestic murder general specific general specific temporary order, days 1.00 1.00 1.00 1.00 (0.57) (0.84) (0.65) (0.89) final order, years 1.00 1.00 0.98* 0.99 (-0.88) (-1.07) (-2.05) (-1.70) 922 dummy * temp days 1.00 1.00 1.00 1.00 (0.61) (1.42) (0.44) (1.24) 922 dummy * final order years 1.00 0.99 1.00 0.99 (-0.87) (-1.27) (-0.40) (-0.89) domestic femicide domestic femicide general specific general specific temporary order, days 1.00 1.00 1.00 1.00 (1.00) (1.34) (1.10) (1.42) final order, years 1.00 1.00 0.98 0.99 (-0.82) (-1.02) (-1.86) (-1.55) 922 dummy * temp days 1.00 1.00 1.00 1.00 (-0.39) (0.19) (-0.55) (0.0044) 922 dummy * final order years 1.00 0.99 1.00 0.99 (-0.65) (-1.27) (-0.22) (-0.92) domestic gun murder domestic gun murder general specific general specific temporary order, days 1.00 1.00 1.00 1.00 (0.23) (0.67) (0.35) (0.76) final order, years 1.00 1.00 0.98 0.98 (-0.55) (-0.87) (-1.82) (-1.77) 922 dummy * temp days 1.00* 1.00** 1.00 1.00* (2.14) (2.66) (1.95) (2.46) 922 dummy*final order years 0.99 0.99 1.00 0.99 (-1.52) (-1.86) (-0.72) (-1.14) domestic gun femicide domestic gun femicide general specific general specific temporary order, days 1.00 1.00 1.00 1.00 (0.28) (0.44) (0.38) (0.55) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 24 published by scholink inc. final order, years 1.00 1.00 0.98* 0.98* (-1.04) (-1.01) (-2.23) (-2.24) 922 dummy * temp days 1.00* 1.00 1.00* 1.00 (2.34) (1.91) (2.08) (1.71) 922 dummy*final order years 0.99 0.99 1.00 1.00 (-1.02) (-1.04) (-0.46) (-0.52) note. ***p<.001, p<**.01, p<*.05; indefinite long sentences for final orders are doubled in the first two columns and halved in columns three and four; negative binomial model; coefficients are incidence rate ratios; t-ratios in parentheses; standard errors clustered on states; control variables, state and year effects estimates are suppressed; complete results, programs and data are available at <cemood.people.wm.edu/elp_dvpo.zip>. the results are virtually the same as those reported in tables 2 and 3 and they are almost identical for doubling and halving the order length. the results appear to be robust to assumptions concerning final order duration. the shr data has missing values for all states from 1980-1983. the resulting panel is unbalanced. to get a balanced panel, we estimated the negative binomial model using data from 1984-2018. the results are reported in table 6. table 6. using balanced panel, 1984-2018 domestic murder domestic femicide general specific general specific temporary order, days 1.000 1.000 1.001 1.001 (0.457) (0.445) (0.875) (0.944) final order, years 0.992 0.992 0.992 0.992 (-1.255) (-1.192) (-1.224) (-1.094) 922 dummy * temp days 1.000 1.000 1.000 1.000 (0.530) (1.306) (-0.454) (-0.0547) 922 dummy * final order years 0.997 0.996 0.999 0.997 (-0.660) (-0.819) (-0.345) (-0.749) domestic gun murder domestic gun femicide general specific general specific temporary order, days 1.000 1.000 1.000 1.000 (0.140) (0.224) (0.222) (0.400) final order, years 0.994 0.993 0.990 0.991 (-1.040) (-1.016) (-1.520) (-1.447) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 25 published by scholink inc. 922 dummy * temp days 1.001 1.001* 1.001* 1.001 (1.948) (2.453) (2.145) (1.702) 922 dummy * final order years 0.993 0.993 0.997 0.996 (-1.357) (-1.451) (-0.707) (-0.838) note. ***p<.001, p<**.01, p<*.05; sample limited to 1984-2018; negative binomial model; coefficients are incidence rate ratios; t-ratios in parentheses; standard errors clustered on states; state and year effects estimates are suppressed; complete results, programs and data are available at <cemood.people.wm.edu/elp_dvpo.zip>. the results are almost identical to those reported in tables 2 and 3. 5. discussion we have estimated the enhancement effect of federal law 18 u.s.c. § 922(g)(8) using a panel of fifty states over 38 years. we have subjected the analysis to a variety of robustness checks. the results are remarkably robust. we find that 18 u.s.c. § 922(g)(8) has no significant effect on domestic murder or domestic femicide. we find some evidence that the law positively affects domestic gun murder and domestic gun femicide. this could be caused by a peltzman (1975) effect, where individuals who feel safe engage in risky behavior. overall, we conclude that 18 u.s.c. § 922(g)(8) does not significantly reduce domestic murder, domestic femicide, domestic gun murder, or domestic gun femicide. complete results, programs, and data are available in the online appendix <cemood.people.wm.edu/elp_dvpo.zip>. references cameron, a. c., & trivedi, p. k. (1998). regression analysis of count data. cambridge, uk. https://doi.org/10.1017/cbo9780511814365 donohue, j. j., & levitt, s. d. (2020). the impact of legalized abortion on crime over the last two decades. american law and economics review, 22, 241-302. https://doi.org/10.1093/aler/ahaa008 fryer, r. g., heaton, p. s., levitt, s. d., & murphy, k. m. (2013). measuring crack cocaine and its impact. economic inquiry, 51, 1651-1681. https://doi.org/10.1111/j.1465-7295.2012.00506.x hendry, d. f. (1995). dynamic econometrics. oxford university press, oxford, uk. https://doi.org/10.1093/0198283164.001.0001 kaplan, j. (2021). jacob kaplan’s concatenated files, uniform crime reporting (ucr) program data, supplementary homicide reports (shr), 1976-2020. ann arbor, mi, inter-university consortium for political and social research [distributor], 2021-09-22. https://doi.org/10.21428/cb6ab371.f1bc7339 https://doi.org/10.1017/cbo9780511814365 https://doi.org/10.1093/aler/ahaa008 https://doi.org/10.1111/j.1465-7295.2012.00506.x https://doi.org/10.1093/0198283164.001.0001 https://doi.org/10.21428/cb6ab371.f1bc7339 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 26 published by scholink inc. muelbauer, j., & nunziata, l. (2004). forecasting (and explaining) us business cycles, cepr discussion papers 4584. owen, d., & weatherston, c. r. (2004). uncertainty of outcome and super 12 attendance, application of a general-to-specific modeling strategy. journal of sports economics, 5, 347-370. https://doi.org/10.1177/1527002503259062 peltzman, s. (1975). the effects of automobile safety regulation. journal of political economy, 83, 677-726. https://doi.org/10.1086/260352 rao, b. b., & singh, r. (2006). demand for money for fiji with pcgets. applied economics letters, 13, 987-991. https://doi.org/10.1080/13504850500425402 rao, p. (1971). some notes on misspecification in multiple regression models. the american statistician, 25, 37-39. https://doi.org/10.1080/00031305.1971.10477302 reade, j. j. (2007). modeling and forecasting football attendances. oxonomics, 2, 27-32. https://doi.org/10.1111/j.1752-5209.2007.00015.x wallace, t. d. (1964). efficiencies for stepwise regressions. journal of the american statistical association, 59, 1179-1182. https://doi.org/10.1080/01621459.1964.10480758 notes note 1. united states of america, petitioner v. zackey rahimi (https,//www.supremecourt.gov/docketpdf/22/22-915/259334/20230317174308399_rahimi%20pet% 20-%20final.pdf, p. 66a.). note 2. john fitze, “how a second amendment case at the supreme court is putting gun rights groups in a jam”, usa today, july 12, 2023 (https,//www.usatoday.com/story/news/politics/2023/07/12/guns-supreme-court-second-amendment-ra himi/70383454007/). https://doi.org/10.1177/1527002503259062 https://doi.org/10.1086/260352 https://doi.org/10.1080/13504850500425402 https://doi.org/10.1080/00031305.1971.10477302 https://doi.org/10.1111/j.1752-5209.2007.00015.x https://doi.org/10.1080/01621459.1964.10480758 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 55 original paper on the protection of citizens’ rights in maritime law enforcement chenghan guan 1* , chen chen 1 & shengnan zhou 1 1 dalian ocean university, dalian, china * chenghan guan, dalian ocean university, dalian, china received: june 5, 2025 accepted: june 18, 2025 online published: june 20, 2025 doi:10.22158/elp.v8n2p55 url: http://dx.doi.org/10.22158/elp.v8n2p55 abstract the purpose of this study is to examine the foundations of citizens’ rights, the current state of administrative litigation, and the sources of rights violations resulting from administrative actions during maritime law enforcement. it highlights important real-world issues and suggests ways to make improvements by drawing on pertinent national and international theories. in order to contribute to the growth of a more resilient rule-of-law society and government, the study aims to improve the protection of people’ rights in administrative reconsideration and litigation through legislative, enforcement, and judicial improvements. keywords administrative litigation, administrative acts, citizens’ rights, administrative compensation lowercase 1. background and importance of the subject a significant percentage of state compensation claims nationwide involve cases pertaining to citizens’ rights. any disagreement involving administrative law invariably affects citizens’ legitimate rights and interests as well as public confidence in the government. the establishment of a rule-of-law government under chinese socialism is advanced by in-depth theoretical research on defending people’ rights during law enforcement, which also helps to create a stronger framework for preserving human rights. seeking legal remedies is considered a core norm-based response when administrative colleagues’ rights are violated. as the last line of defense, the law is indispensable in the public’s opinion. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 56 published by scholink inc. in actuality, administrative compensation is a way to handle responsibilities brought on by illegal actions taken by administrative bodies. however, whether the legal rights of administrative equivalents can be adequately addressed depends heavily on the procedures and results of such compensation. these rights are not adequately safeguarded by china’s current administrative compensation system. by carefully analyzing the protection of citizen rights, this study offers practical suggestions to improve administrative efficiency, strengthen legal support for administrative counterparts, strengthen the theoretical underpinnings of china’s administrative compensation system, and create a government that meets public expectations. when administrative actions harm the interests of administrative counterparts, judicial authorities must decide how and on what legal basis to render decisions. resolving these issues improves the legitimacy of the judicial and administrative branches. through law-based government, china, a communist rule-of-law state, seeks to guarantee that its citizens fully enjoy their rights as the nation’s masters. an essential component of building a law-based government is holding administrative organs accountable when their inaction results in the violation of legal rights. administrative equivalents are entitled to state compensation when their legal rights are violated since administrative organs and their employees represent the state in their service to the public. 2. on the rights of citizens 2.1 natural sources there are two fundamental dimensions to the concept: first, as human civilization progresses, people’ rights naturally develop. their content varies depending on the place, depending on natural geography, political culture, and philosophical views. second, these rights are naturally accessible since they are innately inherited from birth. individuals in early human civilization had the freedom to set standards for behavior, such as the rights to procreate, defend private property, pursue sexual autonomy, and defend life and subsistence. these absolute rights, albeit mainly unrestricted at the time, existed without the limitations of contemporary society, resulting in uneven rights and obligations. divergent worldviews on private property, individualism, and conventions were cultivated by natural disparities in regional contexts, and these distinctions eventually showed up as discrepancies in how rights were expressed. 2.2 legal foundations natural rights gave rise to modern citizens’ rights, which are based on current legal theories and legislative provisions. their three main traits are formality, sociality, and subjectivity. first, subjectivity necessitates that particular persons act as bearers of rights and exercise or waive them. the most important aspect of citizens’ rights in this context is their subjectivity, which is also the only way to achieve individual rights. second, sociality is a part of citizens’ rights. this implies that the forms, methods, and content of rights must be widely accepted by society as a whole and determined by the will of the people. the rights of citizens are established by social consensus rather than by personal www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 57 published by scholink inc. preference. lastly, the rights of citizens are official. only by following certain procedures can state authority ensure citizens’ access to their rights while protecting them from unjustified deprivation. but whether or if citizens actually fulfill the intent of their rights depends on execution and real-world conditions rather than the state’s commitment. 2.3 significance of protecting citizens’ rights the objective law of the natural progression of human civilization dictates the protection of citizens’ rights. the code of hammurabi, the english bill of rights, and the french declaration of the rights of man are examples of codified systems that represent the evolution of human civilization from prehistoric, barbaric norms. both the decisions made by human civilization and the unavoidable direction of social development are reflected in this history. protecting citizens’ rights has become a crucial consideration in scientific decision-making in the modern era, irrespective of a country’s political system or philosophy. decision-making must respect citizens’ rights as vital as china has developed a socialist rule-of-law system with unique characteristics. smooth policy implementation and scientific decision-making are only possible by bolstering the protection of citizens’ rights. upholding people’ rights promotes happiness and unity, protects individual rights, and aids in the development and optimization of national social governance structures. narrowly, it protects individual rights, improves citizen well-being, and fortifies state-citizen alignment in the implementation of policies; broadly, it improves national governance. thus, the cornerstone of human society advancement is the defense of citizens’ rights. 2.4 relevant provisions in chinese legislation constitution of the people’s republic of china (chapter ii: fundamental rights and duties) delineates: 2.4.1 political rights: a) freedoms of speech, press, assembly, association, procession, and demonstration; b) voting rights for citizens aged 18+ (exclusions per law); c) rights to critique state organs/officials and report illegal acts. 2.4.2 personal rights: a) inviolability of personal freedom (arrest requires prosecutorial/judicial approval); b) prohibition of unlawful detention, search, or bodily violation; c) protection of dignity against insult, defamation, or false accusation; d) inviolability of residence and correspondence privacy. 2.4.3 religious freedom: a) freedom to believe/disbelieve; prohibition of coercion or discrimination. 2.4.4 economic, cultural, and social rights: a) right/duty to work; rest entitlements; b) material assistance for the aged/ill/disabled; c) education rights/duties; academic/artistic freedoms; d) gender equality; state protection of marriage/family/maternity/children; www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 58 published by scholink inc. e) support for disabled citizens’ employment/livelihood/education. 2.4.5 supervisory and compensation rights: a) rights to supervise state organs (criticism, suggestions, accusations, reports); b) prohibition of fabricated allegations; c) obligation of state organs to investigate complaints; d) right to state compensation for damages caused by unlawful official acts. 3. current state of citizens’ rights protection in administrative compensation 3.1 legislative framework for administrative compensation in china on march 21, 2022, the supreme people’s court released the provisions of the supreme people’s court on several issues concerning the trial of administrative compensation cases in order to safeguard the legal rights of administrative counterparts, oversee administrative organs in carrying out administrative compensation obligations, and accomplish substantive resolution of administrative compensation disputes. these clauses combine the national compensation law, the administrative procedure law, and real-world administrative adjudication expertise. the national compensation law defines the extent of administrative compensation through a two-way enumeration. as further elucidated in article 1 of the judicial interpretation on administrative compensation, articles 3 and 4 specifically include property and personal losses resulting from illegal administrative actions within the purview of state compensation. as a catch-all provision, article 4(4) of the national compensation law states that property loss brought on by administrative delay is eligible for state compensation. when the legitimate rights of administrative counterparts are violated when authority is being exercised, article 2 guarantees the right to compensation. in order to balance rights protection against excessive culpability for administrative infractions, the compensation scope makes a distinction between direct losses (affirmed) and indirect losses (mostly excluded). article 69 of the administrative licensing law requires compensation for losses resulting from the revocation of illegal licenses, whereas articles 7 and 8 deal with the legal effect and revocation of administrative licenses. 3.2 judicial realities of trust interest protection the national compensation law and the administrative procedure law both have clauses that allow victims to seek compensation when administrative inaction violates their legal rights. comprehensive rights protection is undermined by the lack of defined legal criteria, which makes it difficult to resolve all administrative compensation cases consistently, even when certain cases in practice support such claims. courts rely on the legal expertise and real-world experience of individual judges due to statutory compensation scope ambiguities, which produces inconsistent decisions. due to insufficient judicial support, compensation for property losses is still restricted, especially in situations where www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 59 published by scholink inc. administrative inactivity has serious repercussions. claimants are required by article 9 of the national compensation law to follow statutory procedures and submit their demands to the organs that are responsible for providing compensation. the onus is on administrative counterparts to demonstrate a link between their losses and administrative actions during trials. but this presents serious difficulties since: the innate imbalance of power that favors administrative bodies; the lack of clarity around administrative actions; restricted access to specialized legal information by administrative counterparts; and deep and professional legal knowledge is still hard for regular people to grasp, even with rising public legal literacy. 4. deficiencies in administrative relief mechanisms 4.1 narrow scope for administrative reconsideration and litigation in two main areas, china’s administrative reconsideration and litigation processes suffer from an unduly limited scope for case acceptance. first, when seeking reconsideration or litigation, parties must rely on catch-all clauses for concerns that are becoming more and more important, such as remedy against administrative infringement of personal information rights. despite their seeming broadening of the scope, these phrases are principled, thus it takes legal thinking to decide whether a particular act is covered by them. as a result, claimants and authorities that award relief have different interpretations of the same legislation. the breadth may be practically limited as a result of authorities rejecting valid cases or claimants incorrectly giving up on claims because they believe they are ineligible. second, there is a discrepancy in the scope of lawsuit and reconsideration; litigation covers significantly fewer grounds than reconsideration. this makes it possible for some reconsideration decisions to be made final without going through the legal system. both systems’ limited scopes fail to address even the most serious infringement of individuals’ rights, which goes against the intent of the law and the tenet that “where there is a right, there must be a remedy.” 4.2 lack of independence in reconsideration bodies in china, the original administrative institutions and reconsideration authorities continue to have direct subordinate relationships. superior governments or departments typically serve as reconsideration bodies, with their internal legal offices handling particular matters. leaders of the authority must then approve final rulings. legal offices are vulnerable to outside pressures because of this hierarchical structure, and decision-makers may put departmental interests ahead of objectivity, raising questions about how equitable the results of reconsiderations are. the efficacy of relief acquired through reassessment is reduced by the absence of independence. as a result, in order to obtain remedies, administrative equivalents may turn to more expensive and difficult channels like litigation. this seriously compromises the legitimacy and effectiveness of the reconsideration process by impeding prompt relief and making it more difficult and expensive to get justice. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 60 published by scholink inc. 4.3 excessive burden of proof on citizens in litigation while citizens experience information asymmetry in legal conflicts, administrative organs, as institutions exercising public power, have access to more information and resources. the duty of demonstrating the causal relationship between administrative actions and damages, however, is with the citizens; this is especially difficult when the evidence is unavailable or includes private government records. this undue burden leads to unfair litigation conditions: citizens may be at a disadvantage if they are unable to support their claims with enough evidence. informational asymmetries are further exacerbated by restrictions on obtaining evidence kept by administrative institutions. such relationships run the risk of jeopardizing the validity of administrative litigation and judicial justice. 4.4 inadequacy of compensation relief there are still not enough remedies available for administrative violations of the right to personal information. first, many victims of violations have no recourse because compensation is limited to the situations listed in the national compensation law. second, although compensation for physical damage necessitates actual losses, violations of personality rights (like defamation) frequently result in indirect losses that are not covered, such missed chances from delayed government compensation or lost income as a result of identity problems. relief is insufficient without total compensation. furthermore, administrative organs’ low financial culpability does not discourage infractions. 4.5 absence of proactive oversight mechanisms although ex post relief procedures mostly provide compensation, they are unable to completely return citizens to their pre-violation state. strong supervision methods are necessary for effective protection in order to stop infractions and reduce damage. there are inherent limitations to post-violation remedies; for example, money cannot undo harm to one’s reputation. to stop violations before they happen, thorough monitoring must be established through the adoption of worldwide best practices and improvements to the legal framework. raising protection levels and avoiding needless detours can be achieved by fortifying legal protections and taking inspiration from established international systems. 5. measures to enhance citizens’ rights protection 5.1 expanding the substantive scope of state compensation although indemnification for losses resulting from administrative promises in abstract administrative actions is still unclear, administrative acts foster confidence among administrative counterparts in legal relationships. by including abstract administrative activities in the definition of administrative compensation, the compensation framework would be expanded and administrative counterparts who sustain property harm as a result of such reliance would have legal recourse. in the administrative rule of law, giving administrative counterparts more protection can strengthen the bonds between the people and the government and encourage the growth of a society founded on the rule of law. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 61 published by scholink inc. in actuality, administrative organs’ failure to carry out their responsibilities—whether as a result of illegal activity or administrative inaction—often leads to rights violations. by broadening the scope of compensation, administrative competitors might use administrative compensation claims to obtain significant relief, especially for agency negligence that isn’t specifically addressed by current legislation. this strengthens their proactive strategy for obtaining solutions. furthermore, the scope of administrative compensation should progressively broaden to accommodate new social needs for the protection of rights, given the rapid evolution of china’s economy in the 30 years since the national compensation law was passed. 5.2 enhancing independence of reconsideration bodies as was previously said, because of their institutional connections to the original administrative organs, china’s present reconsideration bodies are not independent, which leaves them vulnerable to outside influences and jeopardizes justice. there are two suggested solutions: to guarantee unbiased decision-making, first create independent reconsideration tribunals based on us and uk models, shielding the review procedure from intervention by the initial administrative bodies. second, establish an independent advisory board by taking a cue from japan’s “review committee for information disclosure and personal information protection”. this committee would have to be consulted before administrative bodies could make judgments about reconsideration. this paradigm is a good fit for china’s situation because of its knowledge and objectivity. a “reconsideration review committee” could offer objective, fact-based suggestions free from outside influences. 5.3 appropriately expanding the scope of compensation the following suggestions are put out in light of the fact that china’s national compensation law presently only compensates for some rights (such as labor rights, property rights, personal rights, and adjacent rights) and does not cover governmental inaction that violates more general citizen rights: first, the scope of administrative compensation must be expanded to encompass actions such as administrative inaction that violates personality rights (e.g., defamation, dignity infringement) in order to properly defend the legitimate rights of administrative counterparts. this would improve the applicability of the law and cover a wide range of rights violations. second, legal or judicial interpretations should be evolved to integrate indirect losses in particular settings (e.g., economic repercussions from lack of personal freedom) in light of the current law’s limiting of compensation to direct property damage. the safeguarding of the rights of the people must change as china’s rule-of-law system develops. practical protection needs would be better served by authoritative interpretations that clarify compensable indirect losses. 5.4 enhancing supervision through case guidance in compensation claims, administrative counterparts encounter both subjective and objective difficulties that are made worse by judicial and legislative hold-ups, especially when it comes to rights abuses brought on by administrative inaction. this article suggests creating a case guidance system to address the underutilization of trust interests protection in administrative compensation. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 62 published by scholink inc. the approach would expand the amount of administrative case precedents, particularly those affecting trust interests, by drawing on practices in the criminal, commercial, and civil domains. before rendering a decision, judges should research adjudicative reasoning, examine case similarities, and increase predictability and consistency. standardized reasoning in judgments and ongoing legal training are crucial for enhancing judicial knowledge. they also help administrative colleagues better understand the concepts of protecting trust interests. furthermore, the legislative process takes a long time, even though administrative organs need strong legal frameworks and uniform standards. a case guidance system would improve administrative bodies’ legal literacy and increase their ability to handle complex situations by providing timely references for addressing trust interests difficulties. by making compensation computations clear and guaranteeing the appropriate use of judicial discretion, it would also increase openness. 5.5 using case guidance to enhance supervision the preservation of trust interests in administrative compensation is not adequately addressed by the legal and judicial systems. it is essential to set up a case guidance system: to improve predictability, standardize court thinking, and make compensation computations more understandable, model administrative cases should be published, especially those involving trust interests. this enhances judges’ expertise, increases transparency, and gives administrative organs rapid reference. it also promotes uniform administrative decision-making as legislative procedures evolve. 6. conclusion the legitimacy of law-based governance and core public interests are strongly impacted when people’ rights are protected in maritime enforcement. comprehensive reforms are necessary to address the current systemic problems, which include restricted compensation for indirect losses and trust interests, biased reconsideration procedures, significant litigation burdens on citizens, limiting relief channels, and inadequate preventive control. important steps include: creating independent reconsideration bodies; rebalancing evidentiary burdens through greater disclosure and prosecutorial support; implementing case guidance to strengthen prevention and unify standards; and significantly increasing state compensation to cover indirect losses, abstract acts, and administrative inaction. by taking these actions, a strong protection framework with easily accessible remedies, sufficient compensation, and efficient oversight will be established, raising the bar for maritime law enforcement, defending constitutional rights, and promoting the rule of law in marine affairs. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 63 published by scholink inc. references jiang, c. (2021). the basic structure of the illegality element in state compensation. jurists review, 5, 70-83, 193. jiang, m. (ed.). (2024). administrative law and administrative litigation law (8th ed.). peking university press. retrieved from https://book.douban.com/subject/36840482/ liang, p. (2019). on the expansion and improvement of the scope of administrative compensation in china. journal of shandong administration institute, 2, 61-67. ma, h., & kong, x. (2018). the development process, current situation, and future of china’s state compensation system. journal of beijing administrative college, 6, 1-12. qin, x. (2019). research on the burden of proof in administrative compensation: combined with the supreme people’s court guiding case no. 91. theoretic observation, 1, 94-97. shi, w., & chang, n. (2021). analysis of protectable rights and interests in administrative compensation. people’s judicature, 23, 97-99. wei, j. (2018). illegality or fault: reconstruction of the imputation principle for compensation of administrative omission. jianghan tribune, 11, 113-120. yang, w. (2021). legislative defects and improvement measures of the norms on exemption clauses in administrative compensation. journal of henan radio & tv university, 34(2), 39-43, 54. yu, h., guo, x., yang, k., & niu, y. (2022). understanding and application of key provisions in the “supreme people’s court provisions on several issues concerning the trial of administrative compensation cases”. china journal of applied jurisprudence, 2, 25-36. zeng, y. (2021). trial report on administrative coercion compensation cases: analysis based on 163 administrative compensation judgments. journal of tianshui college of administration, 22(3), 75-79. zhang, q. (2021). “government of good faith” in judicial practice. research on modernization of rule of law, 5(3), 123-135. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 64 original paper reflections on the comprehensive improvement of juvenile delinquency criminal policy hanyu li 1 1 school of political science law, tibet university, lhasa, tibet, china received: july 15, 2024 accepted: july 26, 2024 online published: august 1, 2024 doi:10.22158/elp.v7n2p64 url: http://dx.doi.org/10.22158/elp.v7n2p64 abstract the issue of juvenile delinquency is increasingly attracting attention due to its complex and varied legal, social, and psychological dimensions. while current criminal policies address juvenile delinquency to some extent, challenges remain in the form of an incomplete legal framework, inconsistent policy implementation, and inadequate social support. this paper aims to conduct a comprehensive assessment of existing juvenile delinquency criminal policies, examine their shortcomings in practical application, and draw on international experiences to propose improvements. by systematically analyzing the current state of juvenile delinquency, the effectiveness of existing policies, and international practices, the paper outlines pathways to enhance criminal policies for juveniles to achieve more effective prevention and intervention, promoting healthy development for juveniles and social harmony and stability. keywords juvenile delinquency, criminal policy, legal framework, policy evaluation, international experience 1. introduction juvenile delinquency poses a significant challenge to society, impacting not only the legal realm but also the stability of families and communities. as societal environments evolve and juvenile delinquency types diversify, current criminal policies appear inadequate in addressing these complex issues. the lag in the legal system, differences in policy implementation, and lack of social support make juvenile delinquency increasingly difficult to effectively resolve. this study aims to systematically explore the current status and shortcomings of juvenile delinquency criminal policies and propose improvements based on international experiences. by analyzing the definition, current state, and social impact of juvenile delinquency and evaluating the effectiveness of existing criminal policies, this paper seeks to uncover practical deficiencies and suggest feasible improvement measures. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 65 published by scholink inc. the research will delve into the current status of juvenile delinquency, provide a comprehensive assessment of existing policies, and draw on international experiences to propose specific recommendations for improving juvenile delinquency criminal policies, thereby promoting effective prevention and intervention, and enhancing overall social stability. 2. current status and challenges of juvenile delinquency 2.1 definition and classification of juvenile delinquency juvenile delinquency refers to behaviors by individuals within the legally defined age range that violate legal provisions and result in criminal responsibility. definitions of juvenile delinquency vary across countries and regions, but they generally include special legal procedures and policies for juveniles. in china, juveniles typically refer to individuals under 18 years old, with primary legal bases for handling juvenile delinquency including the “law on the protection of minors” and the “criminal law”. these laws define criminal behaviors of juveniles and outline corresponding legal procedures and measures. juvenile delinquency can be categorized by the nature of the crime. violent crimes include behaviors with evident violent characteristics, such as intentional injury, robbery, and rape, causing significant physical or psychological harm to victims. property crimes involve actions like theft, fraud, and vandalism, primarily aimed at illegally obtaining others’ property. drug-related crimes involve activities such as drug trafficking, use, or possession, which harm juveniles’ health and severely impact the social environment. sexual crimes, including rape, molestation, and luring minors into sexual acts, have profound negative effects on the physical and mental health of juveniles. other crime types, such as public safety crimes and crimes endangering national security, though less common, also require legal intervention and sanctions. in terms of behavior, juvenile delinquency can be divided into direct and indirect criminal behaviors (lattimore, 2022, pp. 1071-1098). direct criminal behaviors directly violate legal provisions, such as violent attacks and theft. indirect criminal behaviors indirectly lead to illegal outcomes, such as juveniles’ involvement in certain fraud schemes. from the perspective of crime frequency, juvenile delinquency can be divided into first-time and repeat offenses. first-time offenses refer to juveniles committing crimes for the first time, usually treated with educational and corrective measures considering their age and motives. repeat offenses refer to juveniles committing crimes again after their first offense, which may be treated more severely to prevent recidivism. finally, considering motivation and background, juvenile delinquency can be categorized into economically motivated crimes, emotionally motivated crimes, and crimes influenced by the social environment. economically motivated crimes, like theft and robbery, are often related to financial difficulties and life pressures. emotionally motivated crimes, such as violence triggered by emotional disputes, are linked to personal emotional issues. crimes influenced by the social environment involve behaviors impacted by negative social or family environments, typically involving complex social backgrounds. understanding these categories helps to formulate targeted prevention and intervention measures. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 66 published by scholink inc. 2.2 social impact of juvenile delinquency juvenile delinquency has extensive and profound social impacts, affecting individuals, families, and society at large. at the individual level, juvenile delinquency significantly impacts the mental and physical health and future development of the offenders themselves. criminal behaviors can lead to legal sanctions and criminal records for juveniles, harming their psychological state and affecting their future education and career development. the experience of crime often results in social exclusion and isolation, further exacerbating psychological problems and social adaptation difficulties. at the family level, juvenile delinquency similarly impacts family dynamics. the family is the fundamental environment for juvenile growth, and delinquency often exposes issues in family education and environment. criminal behaviors can strain family relationships and increase economic burdens, particularly in legal procedures and compensation costs. additionally, juvenile delinquency can damage a family’s social reputation, affecting social interactions and psychological well-being of family members. at the societal level, juvenile delinquency poses a threat to social stability and safety. increasing juvenile delinquency may deteriorate public security, heighten fear and anxiety, and reduce overall social trust. inadequate handling of juvenile delinquency can exacerbate public concerns about social safety. furthermore, juvenile delinquency can lead to the reallocation of social resources, such as increased police and judicial system resources for prevention and handling, impacting the efficiency of social resource utilization. overall, the social impact of juvenile delinquency is multifaceted, affecting individual health, family stability, and societal safety. understanding these impacts is crucial for developing effective policies and measures to reduce juvenile delinquency, protect the healthy growth of juveniles, and maintain social harmony (elliott, 2022, pp. 1-19). 3. evaluation of existing criminal policies on juvenile delinquency 3.1 legal framework for juvenile delinquency the legal framework for juvenile delinquency is the foundation for addressing juvenile criminal issues, involving multiple legal documents and provisions. countries typically have legal frameworks for juvenile delinquency, including laws on minor protection, criminal law, criminal procedure law, and relevant administrative and local regulations. these documents collectively form the basic legal system for handling juvenile delinquency. in china, the primary legal framework for addressing juvenile delinquency includes the “law on the protection of minors”, the “criminal law”, the “criminal procedure law”, and the “law on the prevention of juvenile delinquency”. the “law on the protection of minors” is the fundamental law protecting the legal rights of minors, covering education, life, health, and safety aspects, providing a legal basis for handling juvenile delinquency. the “criminal law” stipulates specific criminal responsibilities for juvenile behaviors, including treatment of juveniles over 14 years old who commit crimes, while those under 14 are generally not held criminally responsible. the “criminal procedure law” outlines special procedures for juvenile cases, emphasizing consideration of juveniles’ physical and mental characteristics and educational correction www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 67 published by scholink inc. needs during trial and execution. additionally, the “law on the prevention of juvenile delinquency” focuses on crime prevention, detailing government, societal, and familial responsibilities and measures in preventing juvenile delinquency (yang & qin, 2021, p. 105475). key characteristics of these legal frameworks include: 1) adaptability: legal frameworks address the special needs and characteristics of juveniles, establishing corresponding principles and procedures. for instance, the “criminal law” specifies mitigated or alternative penalties for juvenile offenders, such as educational correction and community service, aimed at promoting behavior correction and social reintegration. 2) procedural guarantees: the “criminal procedure law” emphasizes procedural guarantees in juvenile cases, ensuring full consideration of juveniles’ physical and mental development during trial to avoid unnecessary harm. the law requires specialized judges and psychological experts to participate in juvenile case trials, employing measures like closed trials to protect juveniles’ privacy and rights. 3) educational correction: legal frameworks prioritize education and correction for juvenile offenders, emphasizing educational, psychological counseling, and social services to help them correct behaviors and avoid repeating offenses. for example, the “law on the protection of minors” mandates the establishment of correction and rehabilitation institutions for minors, providing professional counseling and social services. 4) social participation: legal frameworks encourage active participation from various societal sectors in preventing and intervening in juvenile delinquency, including schools, families, communities, and social organizations. laws require societal support and assistance, forming a diversified prevention and intervention network. however, existing legal frameworks also face problems and challenges. firstly, the scope and standards of legal application may be inconsistent or ambiguous, leading to difficulties in practical operations. secondly, resource allocation and professional personnel shortages during law implementation affect policy effectiveness and fairness. furthermore, as society evolves and juvenile delinquency patterns change, existing legal frameworks may not timely adapt to new demands and challenges. overall, the legal framework for juvenile delinquency provides fundamental legal guarantees for addressing juvenile criminal issues, but continuous refinement and adjustment are needed in practical application to better protect juveniles' rights and promote their healthy growth and social integration (cavanagh, jennifer & thomas, 2022, p. 151). 3.2 policy measures for juvenile delinquency policy measures for juvenile delinquency are a series of concrete plans developed by the state and society to prevent and address juvenile delinquency, involving education, legal, and social support aspects. education is a core measure for preventing juvenile delinquency. the government and societal sectors implement various educational projects to enhance juveniles’ legal awareness, moral standards, and self-protection abilities. schools incorporate legal regulations and moral education into their curriculum, utilizing classroom teaching, lectures, and interactive activities to help students understand www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 68 published by scholink inc. legal consequences and strengthen self-discipline. community organizations and social service institutions also conduct legal publicity and preventive education activities, especially in youth-gathering areas, promoting legal knowledge and healthy lifestyles. family education is encouraged, with parents receiving guidance on family education, parent-child communication skills training, and other methods to improve educational abilities and enhance the family environment, thereby reducing negative impacts of family problems on juveniles. in legal and judicial aspects, policy measures focus on effectively curbing juvenile delinquency through legal means and ensuring fair treatment of criminal behaviors. criminal policies tailor principles and measures to juvenile delinquency characteristics. for example, for juveniles over 14 who commit crimes, laws allow probation, community service, and other non-custodial measures to promote behavior correction and social reintegration. judicial procedures mandate special protections for juvenile cases, such as establishing juvenile courts, equipping professional judges and psychologists, and employing protective measures like closed trials to safeguard juveniles’ privacy and rights. additionally, legal frameworks require educational and corrective measures for juvenile offenders, including compulsory education, psychological counseling, and community service, aiming to help juveniles recognize errors, correct behaviors, and receive societal support. social support and service measures focus on providing comprehensive social services to assist juvenile offenders and their families in addressing problems and promoting social integration. key services include psychological counseling and treatment, with professional psychologists and social workers providing counseling to help juveniles resolve psychological issues, improve behavior patterns, and reduce recidivism risk. family support services are also crucial, offering family counseling, financial assistance, and social service support to help family members address issues and educational difficulties, improving the family environment and reducing negative impacts on juveniles. community intervention measures, such as establishing community correction centers, vocational training projects, and volunteer services, aim to help juvenile offenders reintegrate into society and receive support and assistance. legislation and policy improvement are foundational for effectively addressing juvenile delinquency. regular reviews and revisions of juvenile delinquency-related laws help address emerging crime patterns and social demands, ensuring law effectiveness and adaptability. policy innovation is also essential, introducing new policy tools and measures like social experiment projects and cross-departmental collaboration mechanisms to explore more effective juvenile delinquency prevention and handling strategies. comprehensive application of these policy measures can effectively reduce juvenile delinquency, help juvenile offenders correct behaviors, restore normal life and learning, and promote social harmony and stability (wong & cindy, 2023, pp. 113-132). 3.3 problems and deficiencies despite providing legal guarantees and support for addressing juvenile delinquency, existing policy measures face numerous issues and deficiencies in practical application, affecting their effectiveness and fairness. firstly, inconsistencies or ambiguities in the scope and standards of legal frameworks www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 69 published by scholink inc. pose operational challenges. for example, the “criminal law” may lack clear standards for different age groups of juveniles, leading to inconsistent legal applications and affecting legal outcomes. lag in legal and policy frameworks is another significant issue, as existing frameworks may not timely adapt to emerging crime patterns and societal changes, resulting in policy execution inadaptability. secondly, resource allocation deficiencies during policy execution limit the implementation of various educational and corrective measures. although legal frameworks specify multiple educational and corrective measures, actual implementation often suffers from insufficient funding and professional personnel. particularly at grassroots units and community levels, resource shortages restrict the conduct of education and correction work, impacting policy effectiveness. professionalism and protective measures in judicial procedures are also often constrained by resource limitations, affecting the trial and handling of juvenile cases. moreover, deficiencies in social support systems are a crucial issue. while policies encourage societal participation in preventing and intervening in juvenile delinquency, practical operations often lack robust social support networks, making it difficult for juveniles and their families to receive effective assistance. for instance, psychological counseling and family support services may be inadequate in some areas, hindering juvenile offenders’ behavior correction and social integration. lastly, monitoring and evaluation mechanisms for policies also face deficiencies. despite existing policies and measures, lack of systematic monitoring and evaluation mechanisms hampers accurate assessment and feedback of policy execution effectiveness. changes in the status and trends of juvenile delinquency may not be timely reflected in policy adjustments, affecting policy scientificity and adaptability. establishing effective monitoring and evaluation mechanisms helps timely identify issues, optimize policy measures, and enhance policy targeting and effectiveness. in summary, despite providing certain guarantees for addressing juvenile delinquency, existing policies and measures face numerous practical issues and deficiencies. improving policy effectiveness requires adjusting and refining legal frameworks, increasing resource input, enhancing social support systems, and establishing robust monitoring and evaluation mechanisms. these improvements will better prevent and handle juvenile delinquency, safeguard juveniles’ legal rights, and promote social harmony and stability (lee, lung-fei et al., 2021, pp. 849-857). 4. international experiences in juvenile delinquency criminal policy globally, policies and practices for juvenile delinquency vary widely, with different countries and regions formulating diverse measures based on their legal systems and societal needs. these international experiences provide valuable references for improving juvenile delinquency policies and practices. below are some experiences and practices from major countries and regions in handling juvenile delinquency. the united states emphasizes a balance between punishment and correction in its juvenile delinquency policies. through the “juvenile justice and delinquency prevention act” (jjdp act), the us has established a basic framework for handling juvenile delinquency, focusing on prevention and correction. the us implements a “juvenile court system” specifically for juvenile www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 70 published by scholink inc. cases, equipped with professional judges, psychologists, and social workers to provide legal-compliant and developmental-need-sensitive handling solutions. the us also employs a “graduated sanctions” system, offering different treatment measures based on the severity and history of juvenile crimes, such as probation and community service, allowing individualized corrective measures based on specific circumstances. the united kingdom centers its policies on “protection and support”, emphasizing education and social integration for juvenile offenders. the uk’s “children and young persons act” provides a legal framework for handling juvenile delinquency, focusing on prevention and community intervention. preventive measures include community support networks, legal and moral education projects, and psychological counseling, aiming to reduce juvenile delinquency through early intervention. the uk uses the “youth offending service” (yos) model, a comprehensive correctional service combining law, social work, and psychological counseling to offer individualized corrective plans for juvenile offenders. the uk also values community participation and restorative justice programs, encouraging juvenile offenders to take responsibility and compensate victims, promoting social reconciliation. germany prioritizes the “education first” principle in juvenile delinquency handling, focusing on education and social adaptation for juvenile offenders. germany’s “youth criminal law” stipulates treatment principles for juvenile offenders, emphasizing behavior correction through education, psychological counseling, and social services. specialized juvenile courts handle juvenile cases, with judges, prosecutors, and lawyers undergoing specialized training to ensure measures meet juveniles’ needs. germany’s “social integration program” provides vocational training, education, and social support to help juvenile offenders reintegrate into society and reduce recidivism. japan emphasizes family and community support in handling juvenile delinquency. under the “juvenile law”, japan adopts a lenient attitude towards juvenile delinquency, prioritizing education and correction over punishment. social workers and psychologists play crucial roles in handling juvenile cases, providing professional counseling and social support. japan’s “juvenile training school” system offers specialized education and correction services, helping juveniles correct behaviors and undergo social adaptation training. japan encourages community involvement, promoting juvenile delinquency prevention through community support and family education. overall, these international experiences highlight the importance of comprehensive management and educational correction for juvenile offenders. the us “juvenile court” system, the uk’s “youth offending service” model, germany’s “education first” principle, and japan’s family and community support all offer valuable references for improving juvenile delinquency policies. integrating these experiences provides new perspectives and strategies for enhancing the effectiveness and adaptability of domestic juvenile delinquency handling policies (wells, timothy et al., 2022, pp. 21-44). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 71 published by scholink inc. 5. reflections and recommendations for improving juvenile delinquency criminal policy to enhance the effectiveness of juvenile delinquency prevention and handling, further improvement of related policies is essential. firstly, refining the legal framework is a necessary step. existing laws may have inconsistent or ambiguous standards for different age groups of juveniles. it is recommended to revise relevant laws to clarify treatment principles for juveniles above and below 14 years old, ensuring consistent and fair legal application. the legal framework should be updated regularly to adapt to societal changes and emerging crime patterns, through periodic evaluation and revision, ensuring law effectiveness and adaptability. specific requirements for educational and corrective measures should be added to ensure juvenile offenders receive necessary education and counseling, promoting behavior correction. secondly, policy implementation should be effectively ensured. addressing resource allocation deficiencies requires increased government funding and resource support for juvenile delinquency handling and prevention, especially at grassroots and community levels. funding for educational and correctional institutions should be increased to ensure effective implementation of measures. for example, increased funding for community correction centers and counseling institutions can enhance service quality and coverage. policy measures should focus more on personalization and comprehensiveness, developing individualized correction plans based on specific circumstances of juvenile offenders, and combining education, counseling, vocational training, and social services to form a comprehensive support system. enhancing social support systems is also crucial. establishing robust social support systems can effectively promote juvenile delinquency prevention and handling. firstly, psychological counseling and family support services should be improved to ensure juvenile offenders and their families receive effective assistance. for instance, establishing more counseling centers can provide professional counseling and treatment for juveniles; family counseling and education training can help parents improve educational methods and family environments, reducing negative impacts of family issues on juveniles. secondly, community participation and support should be strengthened, encouraging community organizations and social service institutions to actively participate in juvenile delinquency prevention and intervention. community support can include volunteer services, community activities, and educational resources to increase community attention and support for juvenile delinquency. finally, monitoring and evaluation mechanisms for policies must be strengthened. establishing robust policy monitoring and evaluation mechanisms ensures effective policy implementation. it is recommended to establish specialized monitoring institutions for regular evaluation of juvenile delinquency-related policies. collecting and analyzing data can timely identify issues and deficiencies in policy implementation, providing improvement suggestions. strengthening feedback mechanisms ensures evaluation results are promptly fed back to decision-making departments, allowing for timely policy adjustments and optimization. regularly publishing policy evaluation reports transparently demonstrates policy effects and improvement directions, enhancing scientificity and fairness in policy implementation. in summary, improving juvenile delinquency criminal policies requires efforts from legal frameworks, policy measures, social support, and implementation www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 72 published by scholink inc. mechanisms. clarifying legal standards, increasing resource input, enhancing personalized and comprehensive policy measures, establishing robust social support systems, and building effective monitoring and evaluation mechanisms can improve policy targeting and effectiveness, reduce juvenile delinquency, help juveniles correct behaviors, and promote social harmony and stability (huntington & elizabeth, 2020, pp. 1371-1457). 6. conclusion improving juvenile delinquency criminal policies requires comprehensive enhancements in legal frameworks, policy measures, social support systems, and implementation mechanisms. clarifying legal standards, increasing resource input, strengthening personalized and comprehensive policy measures, establishing robust social support systems, and building effective policy monitoring and evaluation mechanisms are essential for enhancing policy effectiveness. through these improvements, juvenile delinquency can be more effectively prevented and handled, promoting healthy development and social integration for juveniles, thereby fostering social harmony and stability. references cavanagh, c., jennifer, p., & thomas, g. (2022). the developmental reform in juvenile justice: its progress and vulnerability. psychology, public policy, and law, 28(2), 151. https://doi.org/10.1037/law0000326 elliott, d. s. (2022). reflections on six decades of research. annual review of criminology, 5(1), 1-19. https://doi.org/10.1146/annurev-criminol-030920-122540 huntington, c., & elizabeth, s. s. (2020). conceptualizing legal childhood in the twenty-first century. michigan law review, 1371-1457. https://doi.org/10.36644/mlr.118.7.conceptualization lattimore, p. k. (2022). reflections on criminal justice reform: challenges and opportunities. american journal of criminal justice, 47(6), 1071-1098. https://doi.org/10.1007/s12103-022-09713-5 lee, lung-fei, et al. (2021). who is the key player? a network analysis of juvenile delinquency. journal of business & economic statistics, 39(3), 849-857. https://doi.org/10.1080/07350015.2020.1737082 wells, timothy, et al. (2022). exploring communities of practice to break down silos in juvenile justice. journal of correctional education (1974-), 73(2), 21-44. wong, dennis sw, & cindy sy fung. (2023). juvenile community corrections in china: the quest for a restorative approach. asian journal of criminology, 18(2), 113-132. https://doi.org/10.1007/s11417-022-09381-8 yang, l., & qin, z. (2021). the evolution and development of the value orientation of juvenile delinquency correction in china. children and youth services review, 122, 105475. https://doi.org/10.1016/j.childyouth.2020.105475 https://doi.org/10.1037/law0000326 https://doi.org/10.1146/annurev-criminol-030920-122540 https://doi.org/10.36644/mlr.118.7.conceptualization https://doi.org/10.1007/s12103-022-09713-5 https://doi.org/10.1080/07350015.2020.1737082 https://doi.org/10.1007/s11417-022-09381-8 https://doi.org/10.1016/j.childyouth.2020.105475 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 4, no. 1, 2021 www.scholink.org/ojs/index.php/elp 1 original paper rule of law today jan-erik lane 1 1 university of geneva, geneva, switzerland received: december 18, 2020 accepted: december 28, 2020 online published: january 8, 2021 doi:10.22158/elp.v4n1p1 url: http://dx.doi.org/10.22158/elp.v4n1p1 abstract witnessing the actual trump presidency, one searches for conceptual tools to document us decline. the world justice project (wjp) comes to mind, attempting to measure rule of law (rl) comparatively. the wjp presents interesting findings for 2017-2020. canada ranks higher than usa. venezuela is bottom 128 country. rationale of rule of law? keywords limited government, countervailing competences, natural regularity, moral law of nature, locke 1. introduction screening planet earth ahead of 2021, one is forced to admit that we have dictatorship on all continents. do people really want to live under such a political dispensation? dictatorship includes old monarchy, the authoritarian rule as well as the totalitarian regime. the opposite is rule of law. how to theorize this notion? a majority of people live under dictatorship. the dictatorial regime comes in a bewildering variety that has not been compared systematically. dictatorships are to be found in religious regimes as well as military ones. but here we find also semi democracy where government tends towards specific authoritarian measures (russia). one party states often combine with plebiscites. however, the common core is the absence of rule of law. what does it mean? 2. measures of rule of law there is no neat and tidy definition of the expression ―rule of law‖. the oxford english dictionary offers the following entry: ―[t]he authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes‖. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 2 published by scholink inc. now, this sounds rather complicated as well as somewhat legalistic: how to measure it in order to compare states? one may deconstruct this concept with other concepts or criteria like: 1) strong legal formalism promoting equality under the laws; 2) individual rights covering contract, free labour and property; 3) checks and balances, i.e. institutionalized mixed government with countervailing competences between executive, legislature and judiciary. as a matter of fact, a dictatorship may satisfy the criteria 1) and 2) at least partly. thus, the criterion 3) is most essential, namely countervailing competences or powers. a political regime characterized by limited government and countervailing competences may have a variety of institutions. let us look at a recent attempt to measure the dimensions of rule of law or countervailing rule. the world justice project (wjp) has offered a measure of rule of states ranging from 0 to 1. it takes into account the determinate criteria. we look at the most recent attempt to measure the dimensions of countervailing rule. the world justice project defines a rule of law index as ―a quantitative assessment tool designed by the offer a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice‖. rl comprises eight factors: a) constraints on government powers b) absence of corruption c) open government d) fundamental rights e) order and security f) regulatory enforcement g) civil justice h) criminal justice. one notes that the wjp emphasizes accountability, judicial independence, legal formalism and balance of power between executive and legislature. it is worth pointing out that democracy is not here mentioned. rule of law was conceptualized before the advent of democracy after the great war. rule of law as legality, rights and countervailing rule may be combined with democracy as popular rule, but it has not always been so. 3. mapping rule of law table 1 presents the results of the most recent survey of the rule of law index for 128 countries around the world, presenting the mean value by region. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 3 published by scholink inc. table 1. average rl index by world region by 2020.111 region min average max number of countries east asia & pacific 0.33 0.60 0.83 15 eastern europe & central asia 0.43 0.51 0.60 14 eu + efta + north america 0.53 0.74 0.90 24 latin america & caribbean 0.27 0.53 0.71 30 middle east & north africa 0.36 0.50 0.65 8 south asia 0.36 0.45 0.53 6 sub-saharan africa 0.34 0.47 0.63 31 source: wjp 2020, p. 16. only so-called western countries score above 0.6 on this scale with a few exceptions. exceptions include: japan, south korea, singapore, chile, costa rica, uruguay, united arab emirates, mauritius and namibia as well as rwanda. hong kong is also given a high grade by the wjp, but that must be in the past now. as a matter of fact, it was never a democracy, much like the uae and singapore. 3.1 western civilisation? the civilisation argument is overtly or covertly used by several scholars in the wake of globalization. thus, one scholar on youtube claims in an online course that western civilisation honours rule of law due to its 3 pillars: greek, roman and christian cultural legacies besides judaism (flaten, 2020). this is historically fallacious. greek philosophy lacks major constitutionalism besides aristotle (mixed rule). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 4 published by scholink inc. 3.2 roman heritage? roman law never codified constitutional or administrative law. corpus juris is mainly private law from the point of view of justice. the roman empire after caesar amounted to ―occidental‖ despotìsm. 3.3 christian heritage? christianity before the reformation was based upon extreme hierarchy. it recognized only the old and new testaments as valid sources of law. calvinism started to speak of a constitution (t. beze) in geneva) in the modern sense including individual rights such as religious belief. the master theoretical expose was done by john locke in second treatise of government from 1689. yet, rule of law does not figure prominently in any of the world religions. locke went to natural law theory (suarez, grotius) for his inspiration about foundations. revealed law does not comprise rule of law, neither with jesus or mohammed nor buddha – whether they were historical persons or not. the negative impact of religion appears in the numbers in table 1 for latin america, the koranic civilisation as well as the buddhist countries. for the post soviet states it is not so much christian orthodoxy driving down numbers as the communist legacy in combination with corruption. it has happened that a country can overcome the negative consequences of religion for rule of law, like in japan and south korea. shintoism supported authoritarian rule, which also applies to the religions of south asia and south east asia. revealed law could only bolster limited and countervailing rule when united with the theory of natural law. grotius declared in 1625 that natural law trumps revealed law, if different at all. if natural law implies rule of law, then we arrive at a secular approach to limited and countervailing rule. yet, grotius still supported monarchy. however, locke managed the transition: god must respect rl, because entailed by natural law. 3.4 lawlike versus moral laws the clear-cut distinction between grotius’ moral laws and newton’s mechanical regularities or lawlike phenomena is often not observed in the history of political philosophy. thus, leo strauss, e.g., argued that locke was basically similar to hobbes. completely erroneous! to hobbes, the state of nature is the darwinian homo homini lupus—the survival of the fittest or the war of all against all. humans like animals have one right only, namely to fight for survival by whatever means. law is the command of the sovereign and revealed law merely useful for political goals. locke on the contrary retakes grotius’ idea of a binding moral law for both individuals and states, obligating everyone to keep their promises and respect others. to this he adds his own trust theory of government. 3.5 locke’ principal-agent framework the second treatise of government from 1689 is basically stoicism (hobbes belongs to the epicurean tradition), but he makes the new claim that humans make 2 contracts in order to validate the laws of nature: life, liberty and property. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 5 published by scholink inc. the laws of nature hold all the time, from the state of nature to the political stage of civil society and government: i) do not harm someone ii) tell the truth iii) keep your contracts. if somebody or government violates these natural norms reprisals including uproar is legitimate. a trust forfeited can not be respected or constitute an obligation. government thus is a trust for securely providing the laws of nature, especially property, to its principal. to minimise the likelihood of mistrust the principal in the second contract binds government to restraints—limited government-and countervailing competences. hobbes astonishingly failed on the principal-agent nature of politics, as he argued that sovereignty of parliament would simply introduce a new form of bellum omnibus contra omnes, this time not in society but in parliament. since monarchy is wielded by one man or woman, there will be no infighting! hobbes suggested all competences be give m to the sovereign—in fact an authoritarian government. perhaps the sovereign person could be at war with him/herself? hobbes bypassed the relevance of institutions to constraining politics. 3.6 outcomes of rule of law the wjp states that limited and countervailing government is not only intrinsically good but also extrinsically. the wjp claims that rule of law is conducive to for instance economic development. take a quote from wjp: ―effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small. it is the foundation for communities of justice, opportunity, and peace -underpinning development, accountable government, and respect for fundamental rights. traditionally, the rule of law has been viewed as the domain of lawyers and judges. but everyday issues of safety, rights, justice, and governance affect us all; everyone is a stakeholder in the rule of law‖ (wjp 2020, p. 9). this is exaggerating—confer china. lots of research needs to be done to establish these claims. maybe the limited and countervailing regime is valuable, because it promotes justice? 3.7 locke and the protestant ethics/spirit of capitalism the most debated book in social science is the protestant ethics and the spirit of capitalism (weber, 1904). a rational market economy—capitalism—arose around 1600 in western europe with its typical institutional set-up and personal zest—constituting for weber its sinn. he searched for a similar meaning in religious beliefs. he should have focused on locke—a presbyterian and socinian putting private property equal to life and freedom. locke even masterminded the labour theory of value, i.e., an argument for puritanism until marx destroyed it. maybe calvinism was one vital source of not so much capitalism but instead rl? www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 6 published by scholink inc. 4. conclusion china ranks low and norden ranks very high. the present regime in china seems to return to old fashioned communism that will not make the country more popular globally with civil society. rule of law as a political regime is path dependent. its occurring has little to do with civilisations. ―western civilisation‖ (huntington, 1996) is a myth, hiding incredible numbers of wars and atrocities. adding judaism makes no difference, as anti-semitism was rampant in christianity and europe. civilisations are not homogeneous, not even the world religions. if islam is a religion of warriors (weber, 1978), then how to fit the christian knights together with peace philosophy as with kant or kierkegaard? one notes the rather low numbers for poland, hungary and the us. the wjp states that rule of law is declining globally—a great concern for mankind. references flaten, d. (2020). introduction to western civilization i. new york: modern states education alliance. grotius, h. (1625). on the law on war and peace. london: createspace. hobbes, t. (2017). leviathan. london: penguin. huntington, s. (1996). clash of civilisations. new york: simon and schuster. locke, j. (1988). two treatises on government. cambridge: cup. https://doi.org/10.1017/cbo9780511810268 spinoza, b. (1993). traite politìqùe. paris: flammarion. strauss, ĺ. (1953). natural rìghts and history. chicago: university of chicago press. weber, m. (1978). economy and society 1-2. berkeley: university of california press. world justice project. (2020). rule of law index 2020. washington d.c.: world justice project. https://doi.org/10.1017/cbo9780511810268 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 38 original paper research on the integration of ecological environment space governance and rule of law linlin sun 1 1 political science and law, tibet university received: january 10, 2025 accepted: january 23, 2025 online published: january 26, 2025 doi:10.22158/elp.v8n1p38 url: http://dx.doi.org/10.22158/elp.v8n1p38 abstract ecological environment protection is an important global issue. with the rapid development of economy and the continuous growth of population, the problem of ecological environment has become increasingly prominent, which has become a key factor restricting the sustainable development of human society. as the world’s largest developing country, china has made remarkable achievements in ecological environment protection, but still faces many challenges. in recent years, spatial governance and the rule of law have been widely considered as important means to achieve ecological and environmental protection. spatial governance improves resource utilization efficiency by optimizing the spatial layout of the ecological environment; the rule of law ensures the effective implementation of ecological and environmental protection measures by regulating human behavior. therefore, it is of great theoretical and practical significance to study the spatial governance and rule of law mechanism of ecological environment protection. keywords ecological environment, space governance, rule of law the purpose of this study is to explore the spatial governance and rule of law mechanism of ecological environment protection, and to analyze its role and synergistic effect in ecological environment protection. by systematically combing the relevant research results at home and abroad, combined with specific cases, in-depth analysis of the application of spatial governance and the rule of law in ecological environment protection and its coordination mechanism. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 39 published by scholink inc. 1. current situation and challenges of ecological environment protection 1.1 global ecological and environmental problems in recent years, global ecological and environmental problems have become increasingly prominent, such as climate change, biodiversity loss, land degradation and so on. these problems not only affect the survival and development of human beings, but also pose a threat to the stability and sustainability of global ecosystems. 1.2 progress and shortcomings of ecological environment protection in china china has made remarkable progress in ecological environment protection, such as the establishment of a relatively perfect legal system of ecological environment protection and the implementation of a series of ecological protection projects. however, china’s ecological environment protection still faces many challenges. for example, environmental pollution is still serious, and the trend of ecosystem degradation has not been fundamentally curbed. 1.3 the importance of spatial governance and rule of law in ecological environment protection spatial governance and the rule of law are important means to achieve ecological and environmental protection. spatial governance can improve the carrying capacity and sustainability of the ecological environment by optimizing the spatial layout of the ecological environment. the rule of law can ensure the effective implementation of ecological environment protection by regulating human behavior. therefore, spatial governance and the rule of law play an important role in ecological environment protection. 2. the application of spatial governance in ecological environment protection 2.1 the concept and theoretical basis of spatial governance spatial governance refers to the process of rational allocation and effective utilization of space resources through planning, management and regulation. the theoretical basis of spatial governance includes spatial justice, sustainable development and so on. spatial justice emphasizes that every individual should enjoy equal space rights, and sustainable development requires that the needs of contemporary people be met without compromising the ability of future generations to meet their needs. 2.2 practical cases of space governance in ecological environment protection taking beijing as an example, in recent years, beijing has optimized the urban spatial layout and improved the quality of the ecological environment through spatial governance. specific measures include relieving non-capital functions, strengthening urban greening construction, and promoting sponge city construction. these measures not only improve the ecological environment of the city, but also improve the quality of life of residents. 2.3 patterns and strategies of spatial governance the models of space governance include government-led, market-led and social participation. the government-led model emphasizes the leading role of the government in space governance, and guides www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 40 published by scholink inc. the rational allocation of space resources by formulating policies and plans. the market-oriented model relies on the market mechanism to guide the allocation of space resources through price signals. the social participation model emphasizes public participation, and ensures the fairness and effectiveness of space governance through public participation and supervision. 3. the role of the rule of law in the protection of ecological environment 3.1 the relationship between the rule of law and ecological environment protection the rule of law is an important guarantee for the realization of ecological environment protection. by formulating and improving the laws and regulations of ecological environment protection, human behavior can be standardized and the effective implementation of ecological environment protection can be guaranteed. at the same time, the rule of law can also sanction the illegal acts of the ecological environment through judicial channels to safeguard the public interests of the ecological environment. 3.2 the current situation and problems of the construction of ecological environment rule of law in china china has established a relatively complete system of laws and regulations on ecological environment protection, but there are still some problems in the actual implementation. for example, the operability of some laws and regulations is not strong, the law enforcement is insufficient, and the public’s environmental awareness needs to be improved. these problems have affected the effective implementation of the rule of law in the ecological environment and restricted the process of ecological environment protection. 3.3 ways to improve the legal system of ecological environment in order to improve the legal system of ecological environment, we need to start from the following aspects: first, strengthen the formulation and improvement of laws and regulations on ecological environment protection, and improve the operability of laws and regulations; the second is to strengthen the construction of law enforcement team and improve the ability and level of law enforcement; the third is to strengthen environmental education and improve the public’s environmental awareness. through these measures, the effectiveness of the rule of law in the ecological environment can be improved and the process of ecological environment protection can be promoted. 4. contemporary chinese view of human rights the concept of environmental rights inherits the marxist concept of all-round development of human beings and the excellent traditional chinese culture. specifically, the environmental right can be summarized from three aspects. one is the right to enjoy the environment. people have the right to breathe fresh air, drink clean water, eat safe food, live in a livable environment, enjoy the beauty of nature, life and life in green hills, and truly feel the real environmental benefits brought by economic development. at the same time, we should adhere to the governance of the mountain-river-forest-farmland-lake-grass-sand system, strengthen ecological www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 41 published by scholink inc. protection and restoration, reduce greenhouse gas emissions, enhance the adaptability to climate change, and build a safe ecological environment barrier for the people. the second is the right to know the environment. the departments and enterprises responsible for ecological environment protection have the obligation to actively disclose ecological environment information to the society. it is necessary to establish a sound corporate environmental information disclosure system according to law, strengthen the mandatory disclosure of environmental information industry management, establish an environmental information sharing mechanism, and effectively protect the public’s right to know. the third is the right to environmental participation. ecological civilization is the cause of the people’s common participation in the construction of common enjoyment, everyone has the right to participate in the protection of the ecological environment. it is necessary to continuously stimulate the endogenous power of the whole society to jointly protect the ecological environment, improve the public’s right to participate in, supervise and report on the environment, promote the effective participation of the public in environmental decision-making, and ensure the enjoyment of environmental participation rights by all citizens. 5. spatial governance and the rule of law coordination mechanism 5.1 the theoretical basis of the coordination mechanism of spatial governance and rule of law the synergy mechanism of spatial governance and rule of law is constructed based on the theoretical framework of system theory and synergy theory. system theory emphasizes that ecological environment protection is a complex system engineering, involving the interaction between multiple subsystems. the synergy theory focuses on the synergistic effect between these subsystems, and maximizes the overall benefits by optimizing the relationship between the subsystems. in the protection of ecological environment, space governance and the rule of law are two key subsystems, which can effectively improve the effect of ecological environment protection through synergy. 5.2 the interactive relationship between space governance and the rule of law spatial governance and the rule of law have an interactive relationship in ecological environment protection. spatial governance can provide basic conditions for the implementation of the rule of law by optimizing the spatial layout of the ecological environment. the rule of law can ensure the effective implementation of space governance by regulating human behavior. therefore, spatial governance and the rule of law have a mutually reinforcing role in ecological environmental protection. 5.3 construction principles and framework of coordination mechanism the construction of the coordination mechanism of spatial governance and the rule of law needs to follow the following principles: first, the principle of fairness, to ensure that each individual enjoys equal space rights; second, the principle of efficiency, improve the implementation efficiency of space governance and the rule of law; the third is the principle of sustainability to ensure the sustainability of the ecological environment. the framework of synergy mechanism includes policy synergy, law enforcement synergy and public participation synergy. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 42 published by scholink inc. 5.4 implementation strategy and safeguard measures of coordination mechanism in order to implement the coordination mechanism of spatial governance and the rule of law, the following strategies need to be adopted: first, to strengthen policy coordination and formulate a unified ecological environment protection policy; second, strengthen law enforcement coordination and establish a joint law enforcement mechanism; third, strengthen public participation and coordination, improve public participation and supervision. at the same time, the following safeguard measures need to be taken: first, strengthen organizational leadership and clarify the responsibilities of various departments; the second is to strengthen financial security and provide necessary financial support; the third is to strengthen technical support and improve the scientific and technological content of space governance and the rule of law. 5.5 the specific path of spatial governance and rule of law coordination mechanism in order to realize the synergy between space governance and the rule of law, it is necessary to build a comprehensive coordination mechanism from the aspects of policy formulation, law enforcement implementation and public participation. 1) policy coordination unified planning: formulate a unified ecological environment protection policy, and incorporate space governance and rule of law construction into the same planning framework. for example, through the preparation of “ecological environment space governance and rule of law construction collaborative planning”, the objectives, tasks and specific measures of space governance and rule of law construction are clarified. policy convergence: to ensure the effective convergence of spatial governance policies and ecological environmental protection laws and regulations. for example, in urban planning, space control requirements such as ecological protection red line, permanent basic farmland and urban development boundary are incorporated into laws and regulations, and the implementation of space governance measures is guaranteed by legal means. 2) law enforcement coordination joint law enforcement mechanism: establish a multi-sectoral joint law enforcement mechanism, integrate the law enforcement forces of ecological environment, natural resources, agriculture and rural areas, and form a joint law enforcement force. for example, beijing has effectively combated illegal occupation of ecological space and destruction of ecological environment by establishing a joint law enforcement mechanism for ecological environment. law enforcement supervision and accountability: to strengthen the supervision and accountability of law enforcement behavior, to ensure the fairness and transparency of law enforcement. through the establishment of a law enforcement supervision platform, timely acceptance of public reports, and serious accountability for poor law enforcement or illegal law enforcement. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 43 published by scholink inc. 3) public participation collaboration public participation mechanism: establish and improve the public participation mechanism, and encourage the public to participate in the spatial governance and rule of law construction of ecological environment protection. for example, through public participation activities, such as ecological environmental protection volunteer action, community environmental governance, etc., to increase public participation and supervision. environmental education and publicity: strengthen environmental education and publicity, and raise public awareness of the environment and the concept of the rule of law. through school education, community publicity, media communication and other channels, popularize the knowledge of ecological environment protection and laws and regulations. 6. case verification of spatial governance and rule of law coordination mechanism in order to verify the effectiveness of the coordination mechanism of spatial governance and rule of law, this study selected beijing and shanghai as cases to analyze their specific practices and achievements in ecological environment protection. 6.1 case study of beijing spatial governance measures: beijing has effectively improved the urban ecological environment by relieving non-capital functions, optimizing urban spatial layout, strengthening urban greening construction, and promoting sponge city construction. measures for the construction of the rule of law: beijing has established a relatively perfect legal and regulatory system for ecological and environmental protection. through the joint law enforcement mechanism, it has severely cracked down on illegal acts of the ecological environment and ensured the effective implementation of ecological and environmental protection measures. the effect of coordination mechanism: through the coordination of spatial governance and rule of law, beijing not only improves the quality of ecological environment, but also improves the quality of life of residents, and realizes the benign interaction between economic development and ecological environment protection. 6.2 case analysis of shanghai the spatial governance measures: shanghai has effectively protected the urban ecosystem by delimiting the ecological protection red line, optimizing the urban spatial layout, strengthening the construction of ecological corridors, and promoting ecological restoration projects. measures for the construction of the rule of law: shanghai has strengthened the construction of law enforcement teams, improved the ability and level of law enforcement, and ensured the effective implementation of ecological environmental protection measures by formulating and implementing a series of laws and regulations on ecological environmental protection. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 44 published by scholink inc. the effectiveness of the coordination mechanism: through the coordination of spatial governance and the rule of law, shanghai has achieved remarkable results in the protection of ecological environment, the quality of urban ecological environment has been continuously improved, and the stability and sustainability of the ecosystem have been improved. 7. suggestions on the optimization of the coordination mechanism between spatial governance and rule of law 7.1 suggestions for optimizing policy coordination improve the policy system: further improve the ecological environment protection policy system to ensure the effective convergence of space governance policies and ecological environment protection laws and regulations. for example, by formulating the “detailed rules for the coordinated implementation of ecological environment space governance and rule of law construction”, the responsibilities and tasks of various departments are clarified. dynamic adjustment mechanism: establish a policy dynamic adjustment mechanism, according to the actual situation of ecological environment protection, timely adjust and optimize the policy content. for example, regularly evaluate the implementation effect of ecological environmental protection policies, and make policy adjustments based on the evaluation results. 7.2 optimization suggestions to strengthen law enforcement coordination strengthen law enforcement supervision: further strengthen the law enforcement supervision mechanism to ensure the fairness and transparency of law enforcement. for example, through the establishment of law enforcement supervision platform, timely acceptance of public reports, serious accountability for poor law enforcement or illegal law enforcement. improve law enforcement ability: strengthen the construction of law enforcement team, improve the professional quality and law enforcement ability of law enforcement personnel. for example, through the development of law enforcement training and assessment, improve the business level of law enforcement personnel. 7.3 suggestions on optimizing the coordination of public participation improve the public participation mechanism: further improve the public participation mechanism and encourage the public to actively participate in the spatial governance and rule of law construction of ecological environment protection. for example, through public participation activities, such as ecological environmental protection volunteer action, community environmental governance, etc., to increase public participation and supervision. strengthen environmental education: further strengthen environmental education and publicity, and raise public environmental awareness and the concept of the rule of law. for example, through school education, community publicity, media communication and other channels, the popularization of ecological environment protection knowledge and laws and regulations. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 45 published by scholink inc. 8. conclusion this study deeply discusses the spatial governance and rule of law mechanism of ecological environment protection, and analyzes its role and synergistic effect in ecological environment protection. by constructing a collaborative mechanism of space governance and the rule of law, the effect of ecological environment protection can be effectively improved. the research results show that space governance and the rule of law play an important role in ecological environment protection, and the sustainable development of ecological environment protection can be realized through the implementation of collaborative mechanisms. although this study has made some achievements in theoretical analysis and case verification, there are still some shortcomings. for example, in terms of case analysis, the scope of research is relatively narrow. in the future, the scope of research can be further expanded and more comparative analysis of domestic and foreign cases can be added. in addition, with the continuous development of science and technology, the application of space governance and rule of law in ecological environment protection needs continuous exploration and innovation. in the future, we can further study how to use new technical means to improve the synergistic effect of space governance and rule of law. references cao, w. (2023). theoretical reflection and plan construction of “moderate codification” of environmental law. legal system and social development, 29(06), 113-133. fu, c. l., & zhu, y. l. (n.d.). legalization of rural ecological environment governance: value review, realistic obstruction and practical approach. public governance research, 1-14. hong, z. y. (2024). the rule of law protects the green and fights the battle of protecting the ecological environment. friends of the people, (10), 8-9. lei, z. y., & jia, x. r. (2017). analysis of network public opinion and ethnic relations. journal of yantai university (philosophy and social sciences), (03), 83-89. liu, c. (2024). spatial expansion and rule innovation of china’s ecological environment rule of law. chinese social sciences, (09), 77-88, 206. ma, x. m. (2024). promote ecological environment protection and high-quality development with the rule of law. people’s congress research, (12). qin, p., & xu, y. f. (2024). the basic logic, operation mode and legal approach of ecological environment zoning control. china soft science, (08), 13-26. song, c. f., & zhang, s. l. (2019). discussion on the legal guarantee of rural governance in the new era. hebei jurisprudence, (04), 2-13. yan, j., & su, z. (2024). research on ecological environment protection and pollution control countermeasures under the new situation. heilongjiang environmental bulletin, (09), 123-125. yu, h. (2024). safeguarding people’s environmental health rights and interests and promoting people’s ecological and environmental well-being. human rights, 2024(06), 37-40. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 49 original paper on the coverage scope of major risks in preventive environmental public interest litigation shen jinfan 1 1 school of political science and law, northeast normal university, changchun, china received: july 12, 2024 accepted: july 25, 2024 online published: july 29, 2024 doi:10.22158/elp.v7n2p49 url: http://dx.doi.org/10.22158/elp.v7n2p49 abstract when determining the coverage scope of major risks in preventive environmental public interest litigation, judgments need to be made from both factual and legal aspects. in the factual aspect, major risks must simultaneously satisfy a high degree of probability and severity of damage. in the legal aspect, the principle of proportionality and the principle of prevention can limit the scope of high probability and severity of damage; in specific cases, the identification subject of major risks, dangerous behaviors, behavioral consequences and causal relationships should be determined; judges can determine the coverage scope of major risks through factual recognition and value judgment. keywords preventive environmental public interest litigation, major risks, coverage scope 1. introduction in august 2022, the intermediate people’s court of jinan railway transportation accepted a case involving the disposal of a discarded gamma knife by three hospitals. the people’s procuratorate of jinan city filed a preventive environmental civil public interest lawsuit in advance to actively avoid the occurrence of damage results (wang & yan, 2023, p. 1). this case was finally judged by the higher people’s court of shandong province in june 2023. this is the first preventive civil public interest lawsuit for radioactive pollution in the country. the application of preventive environmental public interest litigation to the response to environmental risks of radioactive pollution can avoid the occurrence of actual harm from radioactive pollution and ensure environmental safety. compared with the post-remedy environmental public interest litigation that sues for judicial relief after polluting the environment, destroying the ecology and causing damage to the social public interest, preventive environmental public interest litigation can target “behaviors that pollute the environment and destroy the ecology with major risks of damaging the social public interest”, which is more in line www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 50 published by scholink inc. with the principles of giving priority to protection and prevention in environmental law. it can prevent environmental risks from transforming into damage, reduce major social conflicts caused by environmental problems, and protect citizens’ procedural environmental rights. however, by examining the judicial practice of preventive environmental public interest litigation, the number of preventive cases is extremely small, and judicial organs still maintain judicial passivity and the background of “passive response”. the reason lies in the fact that the existing laws and regulations are too vague about major risks, making it difficult for courts to make a determination and thus apply preventive litigation. therefore, it is particularly necessary to clarify the coverage scope of major risks. 2. the cognitive approach to the concept of major risks to clarify the concept of major risks, it is necessary to start with the meaning of the term “major risks” and provide explanations, that is, to examine the meaning of major risks from the perspective of semantics. thus, it is necessary to focus on the core of major risks, that is, risks. 2.1 the attribute of major risks-uncertainty in ancient times, when fishermen went fishing at sea and encountered stormy weather, there were often many uncertain factors. there was a high possibility of dangers such as running aground and fishermen falling into the water. the existence of wind was often accompanied by the emergence of danger. danger arose because of the wind; where there was wind, there was danger. early risks were often natural, objective events that did not depend on human will, and risks entailed danger and concealed the possibility of damage occurring. however, risks were uncertain. whether the danger and damage contained therein occurred or not was unknown to people. people could only rely on the judgment of daily experience to infer the probability of the occurrence of danger and damage. after the development of the industrial revolution in modern society, humans, with the help of science and technology, could have a deeper understanding of nature and to a certain extent, could utilize and develop nature more proficiently. as humans became more proficient in the development and utilization of nature, the risks generated by this behavior became increasingly complex and diverse. modern risks are the most obvious external characteristics of industrialization and modernization and are a kind of potential side effect (ulrich beck, 2004, p. 36). the dangers that people were difficult to come into contact with and recognize in their production and life in the past are gradually revealing their true nature along with the improvement of people’s awareness of risks. when risks are manifested in the environmental field, they are environmental risks. modern people have reached a relatively mature level in the development and utilization of nature. at this time, in human production and life, risks are manifested as the inherent natural environmental risks since ancient times and the man-made environmental risks associated with human development and utilization activities of nature. and due to the frequent human production and life activities, the impact of man-made environmental risks on humans is more intense. therefore, the environmental risks mentioned in this article are all man-made environmental risks. environmental risks have become an www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 51 published by scholink inc. objectively existing huge challenge in the process of human ecological civilization construction and modernization of environmental governance (liu, 2021, pp. 37-48, p. 111). however, compared with the helplessness of early humans in the face of natural environmental risks, humans in modern society can use science and technology and combine the inherited empirical rationality to have a certain perception and understanding of environmental risks. on this basis, it is meaningful to discuss the coverage scope of major environmental risks. therefore, based on the existing science and technology and empirical rationality, to understand major environmental risks, it is necessary to clarify the characteristics of major environmental risks in terms of the possibility and degree of damage. 2.2 the possibility of causing damage from major risks—a high probability of causing damage in modern society, people’s production and life activities are constantly creating all kinds of risks all the time, but this does not mean that the development of modern society should come to a standstill because of the existence of risks. risk is only an objectively existing uncertain fact, and whether it occurs is in an uncertain state. blindly being afraid of risks will lead humanity into the misunderstanding of fearing development due to choking while eating, but this does not mean that we should let risks go and ignore their existence. the correct approach should be to delineate the possibility level of damage caused by risks, that is, the probability of damage occurrence. among this risk level, danger is at the first level and is the situation with the greatest possibility of causing damage, that is, within a short period of time, a certain state caused by a certain behavior will, under people’s empirical expectations and scientific proofs, lead to the actual occurrence of damage. risk is at the second level and is a situation with a moderate possibility of causing damage, that is, it is difficult to determine whether damage will occur in a short period of time through people’s empirical expectations and scientific proofs. residual risks have the third level, which represents a lower possibility of damage, that is, based on people’s empirical expectations and scientific proofs, it is determined that damage will not occur within a certain period of time. through the description of the possibility of damage caused by risks, it can be found that the probability of causing damage by danger, risk and residual risk decreases in turn. danger is at full probability, followed by risk, and residual risk is at low probability. at this time, we can discuss the probability of causing damage by major risks. the probability of major risks should be between danger and risk, belonging to the high probability level of causing risks. therefore, the major risks targeted by preventive environmental public interest litigation should be major environmental risks with a high probability of causing damage. 2.3 the degree of damage caused by major risks—serious or difficult to recover from the damage caused after clarifying that major environmental risks should have the characteristic of a high probability of actually causing environmental damage, it is also necessary to discuss the possible consequences after the actual occurrence of this environmental damage. this consequence can be described from two www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 52 published by scholink inc. aspects: the depth and breadth of the impact of damage caused by major risks. 2.3.1 the depth of the impact of damage caused by major risks the damage caused by major risks needs to reach a certain degree. this degree, in terms of the depth of the impact of the damage, is manifested as a serious negative impact on the environment, or the damage caused is difficult to repair through existing technical means, that is, it exceeds the carrying capacity of the environmental carrying capacity or threatens the survival of highly valuable organisms. environmental carrying capacity refers to the threshold of human activities that the system can withstand under the condition that the composition, structure and function of the ecological environment system do not deteriorate and are in a virtuous cycle and development in a certain region during a certain period (zhu, xie & li, 2017, pp. 7039-7047). the environment itself has a certain ability to recover and purify, and can withstand the vast majority of human production and life behaviors. for the ecology and polluted environment that have been damaged by human development and utilization behaviors, they can also gradually restore their carrying capacity through self-repair for a certain period of time. for example, during the ten-year fishing ban on the yangtze river, by 2022, the number of fish species in the mainstream of the yangtze river has increased by 14, and the number and weight have also shown a gradually increasing trend (zhou, 2023, pp. 54-56). therefore, when measuring behaviors with major risks, the risks caused by major risks should threaten the environmental carrying capacity, that is, the environmental capacity will be significantly weakened and difficult to recover within a certain period of time. at the same time, in addition to considering the impact on the environmental carrying capacity, it is also necessary to assess the impact of major risk behaviors on the survival of highly valuable organisms. for example, in the case of the green peacock, the court determined that if the first-level hydropower station on the jasajiang river continues to be constructed, the submerged area of the project in question will inevitably lead to the habitat of the national first-level key protected animal, the green peacock, and the habitat of the national first-level key protected plant, cycas tanqingii, being submerged. there is no doubt about the possibility of a major risk to the biological habitat. it can be seen that when it threatens the survival of rare organisms with high environmental value, ecological value, and economic value, it can be determined that this situation meets the circumstances of major risks. therefore, it can be described that the depth of the impact of damage caused by major risks needs to reach the degree of exceeding the carrying capacity of the environmental carrying capacity or threatening the survival of highly valuable organisms. 2.3.2 the breadth of the impact of damage caused by major risks to meet the degree requirements of major risks, it can either reach far beyond the environmental carrying capacity in terms of the depth of the impact of the damage caused, or reach the degree of threatening organisms with high environmental value, ecological value, and economic value. it can also be that in terms of the breadth of the impact of the damage caused, it has an impact on areas with a large area or rich ecological environment value. if the area affected by the damage caused by the risk is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 53 published by scholink inc. a small area that does not have rich ecological environment value, then it cannot be considered that the risk reaches the degree of major risk in terms of the scope of impact. if at this time, the impact depth does not reach the degree of causing the environment in this area to be difficult to recover and the destruction of organisms with high ecological value, it cannot be considered that the risk has reached the degree of major risk in terms of quantity. conversely, if the developer’s utilization behavior will affect a considerable large area or have an impact on areas with rich ecological environment value, it can be determined that this behavior conforms to the behavior of major risks. for example, in the huilongshan case, the plaintiff claimed that the construction of the dam of the huilongshan hydropower station would seriously damage the ecological environment of the xiaohei river basin. the national key protected plants and tropical rainforest vegetation that were not felled and damaged in the reservoir area of the huilongshan hydropower station, the fish migration channels in the lancang river and luosuo river basins, and the xishuangbanna national nature reserve were at risk of being destroyed, blocked and submerged. therefore, the construction behavior of the dam of the huilongshan hydropower station belongs to the category of major risk behaviors. in conclusion, it can be considered that to determine major environmental risks, it is necessary to simultaneously meet the characteristics of both quality and quantity. in terms of quality, it is necessary to meet the characteristic of a high probability of causing damage. in terms of quantity, it is necessary to meet one of the following conditions: first, in terms of the depth of the damage caused, it exceeds the carrying capacity of the environmental carrying capacity or threatens the survival of highly valuable organisms. second, in terms of the breadth of the damage caused, it has a significant negative environmental impact on areas with a large area or rich ecological environment value. 3. the narrowing of the scope of major risks by legal principles by describing the characteristics of major risks, the requirements of major risks in terms of possibility and damage results can be determined. however, at this time, the concept of major risks is still an uncertain concept and needs to be further narrowed by legal principles. 3.1 the narrowing of the possibility of damage caused by major risks by the principle of proportionality when regulating environmental risks, it is very easy to fall into two extremes. on the one hand, there is excessive regulation of risks, and on the other hand, there is insufficient risk regulation. with the help of the principle of proportionality, the scope of major risks can be further narrowed. on the one hand, not all risks caused by the development and utilization behaviors of environmental developers must be identified as major risks. unlimited protection of the ecological environment, restrictions on the freedom of developers, hindrance to economic and technological development, and incurring high economic costs to monitor and regulate environmental risks; on the other hand, we cannot be inactive and connive at the potential environmental risks to grow wantonly, evolve into major environmental risks, and develop serious or irreversible damage consequences in the future. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 54 published by scholink inc. the principle of proportionality originated in german police law in the 19th century and was initially mainly used to regulate police powers (mei, 2020, pp. 57-70). the common view in the academic circle holds that the principle of proportionality includes the principle of suitability, the principle of necessity, and the principle of proportionality, among which the principle of proportionality receives the most attention, that is, the measures adopted must be proportional or commensurate to the purpose achieved (ni, 2021, pp. 24-38). the narrowing of the scope of major risks through the principle of proportionality is mainly manifested in the narrowing of the possibility of the occurrence of major risks. with the help of the principle of proportionality, proportionate obligations can be imposed on risk actors for different levels of risks. for danger, the probability of causing damage is full. if the damage it causes is within the tolerance range of the environmental carrying capacity, the natural environment can be repaired through self-purification and other methods within a period of time. at this time, it is not necessary to restrict its behavior by initiating preventive environmental public interest litigation by identifying major risks; if the behavior of the actor may cause serious or irreversible damage, people need to try to avoid it through various means or minimize the impact of the damage as much as possible when it cannot be avoided. for risks, the probability of causing damage is only moderately probable. people only need to monitor it within a certain period of time to ensure that the development status of the risk is under people’s control during this period to avoid the actual occurrence of damage. for residual risks, the probability of causing damage is the lowest, and the actual occurrence of damage is almost not caused. the regulation of residual risks will not conform to the cost-benefit principle of economics (zhang, 2020, pp. 22-30).therefore, residual risks must be tolerated by society (zhang, 2017, pp. 164-172). on the one hand, determine the scope ratio of major risks. because the probability of damage caused by danger is the highest, danger can be regarded as a more serious major risk and, of course, it belongs to the scope of major risks. during the fermentation process of risks, if it exceeds people’s empirical rationality and scientific rationality and is about to enter the uncontrollable category, then it can be considered that the risk is about to transform into a major risk; on the other hand, the measures implemented for risk creators need to be proportionate, adapt to the fulfillment capacity of risk creators, and be in line with the cost-benefit measurement of actors. the cost of actors fulfilling obligations and taking measures should not be greater than the possible benefits they may obtain. when the fulfillment of a certain risk obligation or the implementation of risk prevention measures will bring an unbearable burden to the actor, the actor is allowed and helped to take other alternative measures to undertake the environmental risk obligation. 3.2 the narrowing of the degree of damage caused by major risks by the precautionary principle the precautionary principle was originally stipulated in the german pollution control law. its initial meaning was that when there was no evidence based on the current level of science and technology to prove that human behavior would indeed cause ecological damage, the state was required to take www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 55 published by scholink inc. preventive measures to prevent possible ecological and environmental damage (zhao, 2009, pp. 187-211). in 1992, the united nations rio declaration on environment and development made a classic exposition of the precautionary principle, that is, in order to protect the environment, all countries should do their best to take preventive measures. when there is a threat of serious or irreversible damage, the lack of sufficient and conclusive scientific evidence shall not be a reason for delaying the adoption of cost-effective measures to prevent environmental deterioration (wu, liu & wang, 2024, pp. 368-375), which is called the weak risk precautionary principle by scholars. the wingspread statement emphasizes that when an activity poses a threat to human health and the environment, preventive measures should be taken even if the causal relationship cannot be fully proved scientifically (chen, 2022, pp. 288-304), which is called the strong risk precautionary principle by scholars. the precautionary principle is divided into the weak risk precautionary principle and the strong risk precautionary principle in legal norms. the weak risk precautionary principle advocates for limited prevention of limited risks. before carrying out risk prevention, it is first necessary to consider whether the risk will cause serious or irreversible damage. if it will cause serious or irreversible damage, cost-effective and reasonable measures should be taken for prevention; while the strong risk precautionary principle responds to unlimited risks with unlimited measures. the measures taken during risk prevention do not calculate their costs, and the risks dealt with do not require them to transform into actual damages that meet the serious qualitative requirements. the narrowing effects of these two precautionary principles on major risks are different. if the weak risk precautionary principle is adopted, the risk needs to meet the dual requirements of quality and quantity, that is, both a high probability of causing damage and serious or difficult-to-recover damage results; if the strong risk precautionary principle is adopted, as long as the risk reaches a high probability in terms of quality and there is a possibility of causing damage, then it can be regarded as a major risk without considering whether it reaches the severity or difficulty of recovery of the damage caused in terms of quantity. when discussing the narrowing of major risks by the risk precautionary principle from the perspective of preventive environmental public interest litigation in china, the perspective of the strong risk precautionary principle should not be applied. its preventive measures for environmental risks regardless of costs will not only increase a large amount of judicial costs, economic costs and other cost inputs, but also expand the scope of attack on major risks and hinder the development of science and technology and the economy. the perspective of the weak risk precautionary principle should be applied, and the cost-benefit principle should be adopted to presuppose uncertain major risks as certain actual damages and calculate the possible damages and losses; and then through methods such as scientific and technological evaluation and the concepts of the general public to comprehensively evaluate the possibility of major risks transforming into actual damages, so as to narrow the uncertainty of major risks. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 56 published by scholink inc. 4. the composition of major risks in specific cases through the understanding of the characteristics of major risks themselves and the narrowing of the coverage of major risks by legal principles, the scope of major risks has gradually emerged with clear boundaries. at this time, it is necessary to place the coverage of major risks in the perspective of specific cases, that is, to analyze the identifying subject, dangerous behavior, behavioral outcome and causal relationship of major risks. 4.1 the identifying subject of major risks major risks are proposed in judicial interpretations. whether it constitutes a major risk belongs to judicial determination, and the judicial power is exercised independently by the court. therefore, the court is of course the decisive identifying subject (zhang & wu, 2020, pp. 138-144). theoretically, human cognitive ability has no boundaries. however, in a specific field (such as judicial trial), the cognitive subject as an individual is limited by the cognitive object, his own knowledge and other external reasons, and his cognitive ability shows relative limitations (zhang, 2022, pp. 103-120). compared with administrative organs, courts do not have professional environmental science knowledge. administrative organs have environmental protection departments, personnel with specialized knowledge of environmental science, and funds dedicated to supervising environmental protection work, conducting environmental monitoring and assessment and other specialized environmental work. limited by specialized knowledge, personnel who make determinations on facts cannot complete judgments beyond their own cognitive abilities (zhang, 2017, pp. 110-139, p. 206), but this does not mean that judges cannot complete the fact determination of major risks. on the contrary, judges only need to make reasoning under the premise of the law by thinking about the evidence and combining their own life experience. that is, although limited by the particularity of specialized knowledge, judges cannot comprehensively review specialized evidence, but they should still play the role of gatekeepers (kang, 2023, pp. 76-84). therefore, it cannot be considered that because courts and individual judges do not have specialized environmental science knowledge, the status of the court as the identifying subject of major risks should be transferred to administrative organs or environmental experts. 4.2 dangerous behaviors of major risks in the provisions of judicial interpretations on major risks, major risks can cause ecological damage or environmental pollution. therefore, the causal behaviors that lead to major environmental risks are required to have environmental illegality (zhang & zheng, 2023, pp. 43-56). however, some scholars believe that the environmental protection law clearly stipulates, for obviously wrong behaviors or risky behaviors that may harm the social and public interests, environmental public interest organizations can file civil environmental public interest lawsuits to avoid the occurrence of damage to ecological and environmental rights and interests (cao & ma, 2021, pp. 150-160). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 57 published by scholink inc. therefore, the causal behaviors of major risks do not necessarily have environmental illegality. daily production and life behaviors and general environmental development and utilization behaviors may all constitute the causal behaviors of major risks. at the same time, if it is required that the causal behavior of major risks has environmental undiscoveredness, that is, it is required that the damage of ecological damage and environmental pollution actually occurs, and preventive environmental public interest litigation can only be filed based on the actual occurrence of the damage. this not only makes preventive environmental public interest litigation no different from relief-type environmental public interest litigation, but also does not conform to the purpose of preventive environmental public interest litigation to prevent environmental risks. therefore, defining the causal behaviors of major risks as daily production and life behaviors and general environmental development and utilization behaviors is more in line with the purpose of preventive environmental public interest litigation to prevent risks. 4.3 behavioral outcomes of major risks the behavior of major risks points to the actual harm of ecological damage and environmental pollution, and the legal interest harmed is the social public interest. that is, the ecological damage and environmental pollution behaviors that harm the social public interest are major risk behaviors, then the scope of the social public interest needs to be clarified. currently, in the academic circle, there are the single legal interest infringement theory (zhu, 2016, pp. 23-31) and the dual legal interest infringement theory regarding the legal interest harmed by major risks. the single legal interest infringement theory holds that the legal interest harmed by major risks is the public interest of the ecological environment. the dual legal interest infringement theory holds that major risks can not only harm the public interest of the ecological environment, but also harm personal and property interests, or damage both kinds of legal interests simultaneously. in judicial practice, in the case of the yunnan oil refining project of china national petroleum corporation, friends of nature believed that the oil refining project of china national petroleum corporation yunnan petrochemical co., ltd. posed a major risk to water, atmosphere and other natural environment elements and human health. in this case, the reasons for the lawsuit filed by the plaintiff included both harm to the social public interest and harm to personal interests; in the case of acer pentaphyllum, the court held that acer pentaphyllum was in the red list of biodiversity and was a rare wild plant. there might be a potential risk of damaging the original living environment of acer pentaphyllum in the case-related area and affecting its survival after the completion of the hydropower station, which might thereby damage the social public interest. in this case, the court held that the construction of the hydropower station would harm the social public interest, and thus held that the construction behavior of the hydropower station was a major risk behavior. the objects threatened by major risks should only include the social public interest. first, according to the provisions of judicial interpretations, only behaviors that pose a major risk to the social public interest fall within the actionable scope of preventive environmental public interest litigation; second, for situations causing personal injury and property damage, the infringed can file tort lawsuits. there www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 58 published by scholink inc. are other judicial relief channels for personal injury and property damage. therefore, the category of social public interest only includes ecological and environmental interests, without considering personal and property damage (cao, 2022, pp. 687-693). 4.4 causal relationship of major risks for the causal relationship of major risks, it is necessary to examine from two dimensions. the first is the proof content of the causal relationship. in the proof content of the causal relationship, the judge not only needs to determine that there is a causal relationship between the daily production and life behavior of the actor or the general environmental development and utilization behavior and the major risk of the ecological environment, but also needs to determine that there is a causal relationship between the major risk of the ecological environment caused by the actor and the degree of serious or irrecoverable damage, that is, there is a causal relationship between the actor’s behavior and the possibility of damage occurrence and the severity of the damage. the second is the proof rule of the causal relationship. based on the presumption rule of the causal relationship, once certain ostensible facts are damaged and it can be presumed that there is a causal relationship between the damage and the fact, the victim does not need to prove the causal relationship again to safeguard his own interests. at the same time, the actor can only be exempted from his liability by disproving that his damage fact has nothing to do with the resulting damage (qiu, 2002, p. 225). in the presumption rule of the causal relationship, the plaintiff provides preliminary evidence that the defendant’s behavior endangers the social public interest, and then the defendant bears the burden of proof of the causal relationship in substantive sense. although the burden of proof of the causal relationship in substantive sense is borne by the defendant in the litigation, the plaintiff still needs to provide a low-level proof of the litigation claim. this not only ensures that the burden of proof has a certain degree of difficulty, but also reduces the burden of proof of the plaintiff while also alleviating the burden of proof of the defendant (yu & mu, 2019, pp. 25-32). 5. judicial determination approaches of major risks after understanding the characteristics of major risks, narrowing the scope of major risks, and clarifying the constituent conditions of major risks, we still need to focus on the determination of major risks by judges, which can be carried out from the dimensions of factual cognition and value judgment. 5.1 dimension of factual cognition when judges determine whether the production and life behaviors or environmental benefit behaviors of the actor constitute a major risk to the public interest, on the one hand, they should utilize scientific methods of factual cognition, and on the other hand, they should follow objective bases for factual determination. 5.1.1 methods of factual cognition the approaches for judges to cognize facts include the standard of the general public, the scientific opinions of environmental professionals, and the judge’s own rules of experience. the so-called www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 59 published by scholink inc. standard of the general public refers to judging whether the actor’s behavior constitutes a major risk behavior based on the cognitive ability of the majority of the society. this cognitive method has its merits and can identify the possible major risks of the actor earlier when the administrative organ fails to manage the actor’s development behavior. however, the standard of the general public represents the empirical rationality of the general public and may sometimes have ambiguity with scientific rationality. that is, the behavior identified as a major risk according to the standard of the general public may not reach the level of major risk based on scientific appraisal opinions; and the behavior not considered a major risk according to the standard of the general public may reach the level of major risk based on scientific appraisal opinions. the scientific opinions of environmental professionals, including the scientific appraisal opinions such as the permits of environmental administrative departments and the appraisal opinions of environmental experts, represent the scientific rationality of environmental professionals. through professional experiments and scientific analysis and evaluation, a scientific environmental opinion can be provided. however, this method is not only prone to conflicts with the standard of the general public, but also prone to internal conflicts within scientific opinions. on the one hand, there are conflicts between the scientific opinions issued by environmental administrative departments such as environmental permits and environmental impact assessment reports and the scientific appraisal opinions and expert testimonies issued by environmental experts. on the other hand, there are conflicts among different environmental expert opinions issued by different environmental experts. the judge’s own rule of experience means that the judge exercises discretion based on the trial of case evidence and his own empirical rationality. however, the judge himself is not an environmental professional and it is difficult to conduct a complete review of environmental professional evidence. what needs to be clear at this time is that in the determination of major risks, judges cannot rely solely on science, but at the same time cannot ignore scientific evidence. that is, in this process, a judgment to take preventive measures can be made without definite evidence proving that the risky behavior will cause serious ecological damage or environmental damage consequences; at the same time, the judgment to take preventive measures relies on the confirmation by scientific evidence that the risky behavior has a high possibility of causing serious ecological and environmental damage. therefore, the judge’s method of factual cognition should be mainly based on his own empirical rationality, supplemented by the standard of the general public and environmental scientific opinions, in order to determine whether the risky behavior is a major risky behavior. 5.1.2 bases of factual cognition when judges make factual determinations, they need to rely on objective bases, which include environmental quality standards, ecological protection red lines, the list of nationally protected wild animals and plants, etc. environmental quality standards refer to the regulations on the allowable content of various harmful substances or factors in the environment within a certain time and space for the purpose of maintaining certain environmental quality, protecting the health of the population, social www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 60 published by scholink inc. wealth, and promoting a virtuous ecological cycle (wang, 2018, p. 123). when making factual determinations, judges can refer to the pollutant concentration in the area caused by the actor’s risky behavior. if the pollutant concentration in the area is about to reach the limit of the environmental quality standard or has reached 80% of the requirements of the environmental quality standard, at this time, this behavior is about to cause serious actual damage to the ecological environment and should be identified as a major risky behavior. the ecological protection red line refers to the area with particularly important ecological functions within the ecological space that must be mandatorily and strictly protected, and is the bottom line and lifeline for ensuring and maintaining national ecological security (tang shuang’e., 2024, pp. 173-191). the scope of the ecological protection red line includes important ecological functional areas and ecologically sensitive and fragile areas. for areas clearly defined as ecological protection red lines, if the actor’s behavior has the possibility of damaging the ecological environment of the area, it can be identified as a major risky behavior without reaching the degree of severity or irreparability. the “list of nationally protected wild animals” and the “list of nationally protected wild plants” were issued in 1989 and 1999 respectively and have undergone multiple adjustments. these two documents can be used as the basis for courts when identifying rare creatures. wild animals and plants under national key protection can be identified as the major risk level when the actor’s behavior threatens the survival of rare creatures according to the protection level. therefore, if the actor’s behavior poses a threat to the survival of nationally protected wild animals and wild plants in the area, the actor's behavior is identified as a major risk. 5.2 dimension of value judgment regarding risks, there are no experts. the internal and external uncertainty issues involved in environmental risks cannot be overcome by existing scientific knowledge, nor can scientists (han & leng, 2023, pp. 202-212). for the uncertain legal concept of major risks, when judges cannot determine major risks through the narrowing of the characteristics of major risks by legal principles and the use of constituent elements of the determination of major risks, they can introduce value judgment, that is, by differentiating and weighing different values and interests, and judging whether major risks are constituted based on the value hierarchy. this kind of value judgment includes not only the values inherent in norms, but also the common social and ethical values (li & jin, 2020, pp. 99-108, p. 112). in this process, judges need to weigh social public interests and economic development interests, and also consider the practical value of judicial decisions, adhere to the law as the basis, convince people with reason, and touch people with emotion, to achieve the best legal, political and social effects. when judges make value judgments on risky behaviors, they should consciously exclude existing legal norms to consider dispute resolution solutions (li, & sun, 2012, pp. 58-66), that is, by making judgments on simple social and ethical values. the consideration of various values is not only a comparison of the relative importance of interests, but also, to a certain extent, an insistence on www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 61 published by scholink inc. environmental ethics (kang, 2023, pp. 76-84). in specific cases, judges should fully consider the various interests involved in the case, be cautious enough in considering environmental interests, and give priority to environmental public interests when environmental interests conflict with economic interests. 6. conclusion preventive environmental public interest litigation is a concrete manifestation of the prevention-oriented concept of china’s environmental protection law. limited by the unclear coverage of major risks at present, judicial organs tend to be passive and conservative in the application of preventive environmental public interest litigation. by analyzing the origin and concept of major risks themselves, it can be found that major risks have a high probability of causing damage and the severity and irrecoverability of the damage results. the characteristics of major risks can be further narrowed by means of the principle of proportionality and the weak precautionary principle, and targeted response measures for risks of various grades and degrees of damage can be proposed. further analyzing the constituent elements of major risks, it can be found that the identifying subject of major risks is the court, the dangerous behavior is daily production and life behaviors or general environmental development and utilization behaviors, the behavioral outcome should point to the harm to social public interests, and at the same time, double proof content determination is required in the causal relationship. in the process of confirming major risks, judges should use the fact determination method mainly based on their own rules of experience and supplemented by the standard of the general public and the standard of scientific rationality, and make fact determinations with the help of objective fact determination bases such as environmental quality standards, ecological protection red lines, and the list of nationally protected wild animals and plants. when major risks are still uncertain, the method of value judgment can be used for demonstration. it is expected that clarifying the coverage of major risks can provide a reference for the judicial practice of preventive environmental public interest litigation. references cao, c. 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(2016). on the substantive public interest remedied by environmental civil public interest litigation. journal of renmin university of china, 2, 23-31. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 125 original paper the dilemmas and solutions in the application of criminal law to property crimes in the age of artificial intelligence wang feng 1 1 taylor’s university, kuala lumpur, malaysia received: august 18, 2024 accepted: august 30, 2024 online published: september 3, 2024 doi:10.22158/elp.v7n2p125 url: http://dx.doi.org/10.22158/elp.v7n2p125 abstract with the rapid development of artificial intelligence (ai) technology, the forms and methods of property crimes have undergone significant changes. ai has not only enhanced the capabilities of criminals but also increased the concealment and complexity of criminal activities. these changes pose new challenges to the existing criminal law system. this paper explores the main characteristics of property crimes in the ai era, analyzes the dilemmas encountered in the application of criminal law, including legal lag, difficulties in evidence collection, and technological barriers. in response to these dilemmas, the paper proposes corresponding countermeasures, including improving the legal system, innovating legislation, enhancing technical support, and promoting international cooperation. by analyzing these issues and solutions, this paper aims to provide useful references and suggestions for the application of criminal law to property crimes in the age of ai. keywords artificial intelligence, property crimes, criminal law application, legal dilemmas, solutions 1. introduction in today’s rapidly advancing information technology landscape, artificial intelligence (ai) is profoundly transforming various aspects of society. especially in the realm of criminal law, the application of ai presents unprecedented challenges and opportunities for traditional legal systems. property crimes, which involve illegal methods to seize others’ assets, have become increasingly complex with advancements in ai technology. ai has not only improved the technical capabilities of criminals, enabling them to carry out more efficient and covert criminal activities but also introduced new demands on the existing criminal law application. currently, the existing criminal law exhibits clear lag and difficulty in addressing new forms of property crimes driven by ai, with issues such as outdated legal provisions, challenges in evidence collection, and technological barriers. therefore, this www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 126 published by scholink inc. study aims to explore the dilemmas of applying criminal law to property crimes in the ai era and propose possible solutions to provide theoretical support and policy recommendations for relevant legal reforms and practices. this paper will first introduce ai technology and its applications in property crimes, then analyze the main dilemmas in the application of criminal law, and based on this analysis, propose targeted countermeasures and suggestions to promote the synchronization of criminal law systems and technological advancements (king et al., 2020, pp. 89-120). 2. overview of artificial intelligence technology 2.1 basic concepts of artificial intelligence artificial intelligence (ai) refers to the technology that simulates or implements human intelligence behaviors through computer systems. its core goal is to enable computers to perform tasks that typically require human intelligence, such as perception, reasoning, learning, and decision-making. ai encompasses several subfields, with the most significant ones including machine learning, natural language processing, computer vision, and expert systems. machine learning is a key branch of ai that allows computers to identify patterns and make predictions by analyzing large amounts of data without explicit programming. natural language processing enables computers to understand and generate human language, facilitating automated human-computer interactions. computer vision allows computers to extract and analyze information from images or videos, enabling image recognition and processing. expert systems mimic human expert decision-making processes using rules and knowledge bases to solve specific domain problems. the development of ai technology relies on continuous advancements in big data, algorithms, and computing power. with improvements in computer hardware and breakthroughs in data processing technology, ai is demonstrating increasingly powerful capabilities across various fields. from autonomous vehicles to intelligent customer service, from recommendation systems to medical diagnostics, ai is gradually permeating various industries and daily life, transforming traditional operational methods and decision-making processes (bokovnya et al., 2020, pp. 1054-1057). 2.2 application of artificial intelligence in property crimes the rapid development of ai technology has not only advanced societal progress but also provided new tools and opportunities for property crimes. in the realm of property crimes, ai applications are evident in several areas, significantly enhancing the concealment, complexity, and severity of criminal activities. firstly, phishing is a common property crime method where criminals use ai technology to generate highly realistic fake websites or emails to deceive victims into providing personal information or financial account data (custers, 2022, pp. 205-223). ai’s natural language processing capabilities make phishing messages more convincing and deceptive, increasing the difficulty for victims to recognize them. secondly, automated scams use machine learning technology to analyze large amounts of data, identify potential victims, and execute personalized fraud. for example, ai can analyze social media data to determine victims’ interests and habits, enabling the design of more precise scam www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 127 published by scholink inc. strategies. these automated methods greatly enhance the efficiency of fraud, allowing criminals to achieve higher returns in a shorter time. furthermore, financial fraud has become more complex due to ai technology. criminals use algorithms to generate false transaction records or account information, faking financial behaviors to conduct illegal transfers or money laundering. the use of ai makes these financial fraud activities more covert, making it challenging for traditional review methods to detect and prevent them. in identity theft, ai technology can quickly obtain and exploit others’ personal information through data mining and pattern recognition. the application of deep learning technology further enhances the efficiency of acquiring and using personal information. finally, malware and cyber attacks continue to evolve. ai enables malware to autonomously learn and adapt to defensive measures, employing more sophisticated attack strategies. through intelligent attack methods, property criminals can bypass traditional security defenses, causing greater damage. overall, the application of ai in property crimes not only raises the technical level of criminal activities but also imposes higher demands on legal and regulatory systems. to address these challenges, timely revisions to existing laws and enhanced technical protection measures are urgently needed (abbott & alex, 2020, pp. 177-204). 3. concept and classification of property crimes 3.1 definition of property crimes property crimes refer to criminal activities aimed at unlawfully infringing on the property rights of others. the common characteristic of these crimes is that perpetrators use illegal means to directly or indirectly acquire others’ property or financial benefits, causing damage to the victims’ property rights. property crimes generally involve illegal possession, destruction, or transfer of property, with the intent of gaining economic benefits through improper means. the definition of property crimes includes the following key elements: 1) illegality: property crimes are characterized by their clear illegal nature. perpetrators violate legal regulations and obtain or transfer property through unlawful methods. whether through direct theft, fraud, or technological means such as cyber attacks, these actions are classified as illegal by law. 2) property damage: such criminal behavior causes direct or indirect damage to others’ property. property damage includes actual economic losses, such as monetary loss or property damage, as well as potential economic losses, such as business interruptions or loss of commercial opportunities. 3) intent: the purpose of committing property crimes is to obtain illegal property benefits. whether for personal gain or on behalf of others, perpetrators aim to achieve economic profit through illegal means. 4) method: the methods of property crimes are diverse, ranging from direct physical actions like theft and robbery to indirect technological methods like cyber fraud and identity theft. with technological advancements, the methods of property crimes continuously evolve, becoming increasingly complex. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 128 published by scholink inc. the widespread and complex nature of property crimes requires the legal system to be adaptable and flexible to address the ever-changing forms of crime. understanding the basic definition of property crimes helps in analyzing their development trends in the ai era and their impact on criminal law (bagaric et al., 2022, p. 95). 3.2 main types of property crimes property crimes encompass a wide range of activities, from traditional theft to modern cyber crimes. based on the specific forms and methods of criminal behavior, they can be classified into the following categories: theft: one of the most common forms of property crime, theft involves unlawfully obtaining others’ property. it includes burglary, pickpocketing, and robbery. theft usually involves direct physical violation of others’ property, with perpetrators often breaking into premises, prying open locks, or using other means to illegally acquire property. fraud: fraud involves deceiving others through fabricated facts or concealing the truth, causing them to willingly part with their property under false pretenses. fraudulent methods include telecom fraud, online fraud, investment fraud, etc. the essence of fraud is to mislead victims with false information or promises, leading to erroneous economic decisions and illegal profits. robbery: robbery involves using violence or threats to forcibly take others’ property. it is characterized by violence and usually occurs in public places, such as street robberies or hijackings. this criminal behavior not only threatens the victim’s property but also poses serious risks to personal safety. financial crimes: this category includes various illegal financial activities, such as securities fraud, money laundering, and illegal fundraising. these crimes exploit the complexities of financial systems and markets through false transactions and forged financial documents. financial crimes are often highly concealed and complex, posing threats to financial market stability and economic health. cyber crimes: emerging with the development of internet technology, cyber crimes include hacking attacks, malware distribution, and phishing. perpetrators use online methods to unlawfully acquire property information, perform illegal transfers, or steal data. the covert and cross-border nature of cyber crimes makes them difficult to address with traditional legal measures. identity theft: this involves illegally obtaining personal information of others and using it for fraud or illegal activities. common methods include forging identification documents and misusing credit card information. identity theft not only damages personal property but can also have long-term effects on individuals’ credit records and life stability. each type of property crime has its specific behavior patterns and methods of execution. with continuous technological advancements, the forms of crime are constantly evolving. this requires legal and judicial authorities to consider the characteristics of new types of crime when formulating and implementing relevant laws, making timely adjustments and improvements (blauth, oskar & andrej, 2022, pp. 77110-77122). 3.3 characteristics of property crimes property crimes exhibit several prominent characteristics that help in identifying and understanding the nature of these crimes. firstly, the core characteristic of property crimes is economic motivation. perpetrators obtain others’ property or financial benefits through illegal means, seeking unjust www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 129 published by scholink inc. economic gains for individuals or groups. this profit-driven motive makes the illicit acquisition of property the primary aim, with economic incentives often driving criminals to employ various unlawful methods. secondly, illegality is another key feature of property crimes. these criminal acts clearly violate legal regulations, with perpetrators committing crimes such as theft, fraud, or robbery without legal authorization. this illegality not only infringes on others’ property rights but also disrupts societal legal order. with technological advancements, modern property crimes exhibit higher levels of concealment and technical sophistication. perpetrators use advanced technology for crimes, such as phishing, hacking, and spreading malware, making criminal behavior more covert. the application of technology not only enhances criminals’ ability to evade detection but also makes it difficult to identify and stop criminal activities in a timely manner. complexity is another important characteristic of property crimes. in the context of informationization and globalization, the methods of committing property crimes are becoming increasingly complex. perpetrators may use multiple methods, such as fake websites, phishing emails, and malware, to achieve their illegal objectives. this complexity increases the difficulty of identifying and combating property crimes, requiring higher capabilities from legal and enforcement agencies. additionally, property crimes often exhibit persistence and organizational characteristics. many criminals or criminal groups engage in property crimes over extended periods, establishing specialized criminal networks to carry out their activities. this organization and persistence make it more challenging to combat and prevent property crimes, necessitating a comprehensive approach involving legal, technological, and social resources. finally, the social harm caused by property crimes is a significant characteristic. beyond direct financial loss, property crimes can negatively impact social order, economic stability, and public safety. for example, financial fraud not only causes economic losses for victims but may also lead to societal unrest and a crisis of confidence in the financial system. this social harm makes property crimes a pressing social issue that requires attention and resolution. in summary, these characteristics of property crimes reveal their complexity and diversity in modern society, necessitating continuous updates and improvements in legal and enforcement strategies to effectively curb and combat such criminal behaviors. 4. characteristics of property crimes in the ai era 4.1 impact of artificial intelligence technology on property crimes in the ai era, technological advancements have profoundly impacted property crimes, altering the methods, tools, and nature of criminal activities. while artificial intelligence (ai) technology enhances productivity and drives societal progress, it also provides criminals with new tools and opportunities, leading to several major impacts. firstly, ai technology has significantly increased the intelligence and automation of criminal methods. criminals can use ai algorithms for cyber attacks, such as automated phishing attacks and distribution of malicious software. these tools can continually optimize through machine learning, improving success rates and allowing rapid attacks on numerous targets. for example, ai-based phishing emails can automatically generate highly realistic false information, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 130 published by scholink inc. making it easier for victims to be deceived. secondly, ai technology has made information collection and analysis more efficient. criminals can use data mining and machine learning to analyze vast amounts of data, obtaining valuable personal or financial information. through this method, they can precisely target and strategize. for instance, ai can help criminals identify potential high-value targets and conduct targeted social engineering attacks for illegal gains. thirdly, the impact of ai deepfake technology on property crimes cannot be overlooked. deepfake technology can create highly realistic fake videos and audio, which can be used for identity fraud and false advertising. for example, criminals can use deepfake technology to fabricate victims’ voices or videos, leading to fraudulent financial transactions or scams, causing significant financial loss. furthermore, ai technology has enhanced the covert and cross-border nature of criminal activities (mahardhika, pudji & aminuddin, 2023, pp. 1-12). using encryption and anonymity tools, criminals can conduct cross-border crimes globally, making it difficult to trace and prosecute. ai technology can help criminals conceal their true identity and location, complicating traditional legal measures. for example, fake identities generated by ai can be used for financial fraud in different countries and regions, increasing the difficulty of international law enforcement cooperation. overall, ai technology impacts property crimes in multiple ways, making criminal methods more advanced and covert while increasing the intelligence and automation levels of criminal activities. these changes require legal and enforcement agencies to continuously update strategies, integrate advanced technology, and strengthen prevention and response efforts against property crimes in the ai era. 4.2 new forms of property crimes in the ai era in the ai era, property crimes have exhibited some new forms that reflect the application and impact of ai technology in the criminal field. firstly, intelligent network fraud has become a prominent new form. leveraging natural language processing (nlp) and machine learning algorithms, criminals can generate highly realistic fraudulent emails, text messages, or social media messages. these messages are meticulously crafted and can be personalized based on victims’ behavior data and preferences, significantly increasing the success rate of fraud. the use of ai technology makes network fraud more covert and precise, making it harder for victims to detect. secondly, the emergence of deepfake fraud has altered the landscape of property crimes. deepfake technology can produce highly realistic fake videos and audio, which can be used for identity impersonation and false advertising. for example, criminals can fabricate someone’s voice or image to conduct fraudulent financial transactions or scams. due to the high realism of deepfake content, victims often struggle to discern authenticity, making them more susceptible to fraud. thirdly, automated financial trading manipulation has emerged as a new form of property crime. ai technology enables criminals to use high-frequency trading and complex algorithms to manipulate market prices within extremely short timeframes. this manipulation can destabilize financial markets and lead to significant economic losses. this automated trading manipulation not only affects market stability but also poses serious economic risks. additionally, ai-assisted cyber attacks have become more common. using ai technology, criminals can launch www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 131 published by scholink inc. sophisticated cyber attacks, including ransomware, data breaches, and denial-of-service attacks. ai algorithms can continuously optimize and adapt attack strategies, making them more difficult to detect and defend against. the use of ai in cyber attacks increases the scale and impact of such crimes, posing challenges for traditional cybersecurity measures (greenstein, 2022, pp. 291-323). finally, the rise of ai-powered identity theft is a significant concern. ai technology can analyze vast amounts of personal data, creating accurate fake identities or conducting targeted phishing attacks. for instance, criminals can use ai to generate fake personal information that mimics real identities, facilitating fraudulent activities and illegal financial transactions. this advanced identity theft method poses new challenges for identity verification and fraud prevention. in summary, the ai era has given rise to new forms of property crimes, driven by technological advancements and the innovative application of ai. these new forms of crime exhibit higher levels of automation, intelligence, and covert operation, requiring ongoing adaptation and enhancement of legal and enforcement strategies to effectively address and combat these evolving criminal threats. 5. challenges in the application of criminal law in the era of artificial intelligence, the application of criminal law faces a series of complex challenges, primarily stemming from technological advancements that challenge the traditional legal system. first, the concealment of criminal activities has significantly increased the difficulty of legal tracking and evidence collection. ai technology enables criminals to hide their true identities and activities through anonymization and encryption techniques. virtual identities and complex network structures make it challenging for law enforcement agencies to trace and identify criminals, thus affecting the effective application of criminal law. secondly, the lag in legal applicability is another major challenge. criminal laws are often lagging behind technological advancements. the rapid progress of ai technology has led to the emergence of many new types of crimes, which existing legal frameworks and provisions often fail to adequately address. for example, legal provisions addressing deepfake technology and automated cyber attacks are still underdeveloped, resulting in a lack of applicable legal standards in actual cases and affecting judicial decisions and rulings. thirdly, obtaining and verifying evidence has become a significant challenge in the application of criminal law. ai technology makes evidence of criminal activities more complex, and traditional methods of evidence collection may struggle to keep up. for instance, fake audio and video content generated by deepfake technology can be difficult to distinguish from real content, making it challenging to determine the authenticity and reliability of evidence. additionally, the authenticity of virtual evidence and log data generated by ai may also be questioned, impacting case judgment and handling. furthermore, the issue of legal applicability in cross-border crimes has become increasingly prominent. the application of ai technology allows criminal activities to easily cross international borders, and traditional legal systems often struggle to effectively address this cross-border nature of property crimes. international laws and cross-border law enforcement cooperation mechanisms have not fully kept pace with technological www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 132 published by scholink inc. developments, leading to numerous obstacles in handling cases involving multiple countries. finally, the technical adaptability of criminal law and issues of technological ethics are also significant challenges. criminal law needs to continuously adapt to the challenges posed by emerging technologies while also considering the ethical issues related to technology use. for example, the use of ai technology in law enforcement may involve privacy and data protection issues. balancing the application of technology with the protection of individual rights while ensuring legal fairness becomes an important challenge in lawmaking and implementation. in summary, the era of artificial intelligence presents unprecedented challenges for the application of criminal law. to address these challenges, legal and enforcement agencies need to continuously update legal frameworks, enhance technological response capabilities, strengthen international cooperation, and find a reasonable balance between technological advancements and individual rights protection. only through comprehensive measures can effective action be taken against property crimes in the ai era and maintain societal safety and stability. 6. conclusion the rapid development of artificial intelligence technology has introduced new challenges to property crimes, altering the methods and characteristics of criminal activities. new forms of crime such as intelligent network fraud, deepfake fraud, and automated financial manipulation not only increase the concealment of criminal behavior but also complicate the application of criminal law. the legal system faces difficulties such as enhanced concealment, lag in applicability, complexity of evidence, and challenges in cross-border cooperation when addressing these new types of crime. to effectively respond to these challenges, legal and enforcement agencies need to continually update legal frameworks, enhance technological response capabilities, and strengthen international cooperation. at the same time, a balance must be found between legal applicability and technological ethics to ensure fairness and effectiveness in the law. only through comprehensive measures can effective action be taken against property crimes in the ai era, safeguarding societal security and stability. references abbott, r., & alex, s. (2020). punishing artificial intelligence: legal fiction or science fiction. is law computable, (2020), 177-204. https://doi.org/10.5040/9781509937097.ch-008 bagaric, m. et al. (2022). the solution to the pervasive bias and discrimination in the criminal justice system: transparent and fair artificial intelligence. am. crim. l. rev., 59(2022), 95. blauth, t. f., oskar, j. g., & andrej, z. (2022). artificial intelligence crime: an overview of malicious use and abuse of ai. ieee access, 10(2022), 77110-77122. https://doi.org/10.1109/access.2022.3191790 https://doi.org/10.5040/9781509937097.ch-008 https://doi.org/10.1109/access.2022.3191790 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 133 published by scholink inc. bokovnya, a. y. et al. (2020). pressing issues of unlawful application of artificial intelligence. international journal of criminology and sociology, 9(2020), 1054-1057. https://doi.org/10.6000/1929-4409.2020.09.119 custers, b. (2022). ai in criminal law: an overview of ai applications in substantive and procedural criminal law. law and artificial intelligence: regulating ai and applying ai in legal practice, (2022), 205-223. https://doi.org/10.1007/978-94-6265-523-2_11 greenstein, s. (2022). preserving the rule of law in the era of artificial intelligence (ai). artificial intelligence and law, 30(3), 291-323. https://doi.org/10.1007/s10506-021-09294-4 king, thomas c. et al. (2020). artificial intelligence crime: an interdisciplinary analysis of foreseeable threats and solutions. science and engineering ethics, 26(2020), 89-120. https://doi.org/10.1007/s11948-018-00081-0 mahardhika, v., pudji, a., & aminuddin, m. (2023). could artificial intelligence be the subject of criminal law? yustisia, 12(1), 1-12. https://doi.org/10.20961/yustisia.v12i1.56065 https://doi.org/10.6000/1929-4409.2020.09.119 https://doi.org/10.1007/978-94-6265-523-2_11 https://doi.org/10.1007/s10506-021-09294-4 https://doi.org/10.1007/s11948-018-00081-0 https://doi.org/10.20961/yustisia.v12i1.56065 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 206 original paper regional disparities: a longitudinal analysis of economic growth factors across rural china xiwen jin 1 1 stanford online high school, broadway redwood city, ca 94063, usa received: may 20, 2024 accepted: june 10, 2024 online published: june 20, 2024 doi:10.22158/elp.v7n1p206 url: http://dx.doi.org/10.22158/elp.v7n1p206 abstract this paper presents a longitudinal analysis of economic growth factors in rural and underdeveloped regions of china using a mixed effects model, with regions treated as a random effect to account for inherent variability. the study focuses on several key factors of economic growth, including education, healthcare, agricultural performance, industrialization, population flow, government expenditure, and their effects on the overall economic performance. the analysis reveals a significant disparity among the regions. this span indicates the varied levels of existing development and highlights the need for targeted policy interventions. by exploring these discrepancies, the study aims to provide a clearer understanding of the factors that drive or hinder economic growth in china’s less-developed rural areas, offering insights that could inform future strategies to foster balanced regional development. the implications of these findings are discussed in terms of policymaking, resource allocation, and the potential development of these communities. keyword regional disparities, economic growth, rural china, socioeconomic factors, poverty alleviation, regional development, economic policy 1. introduction 1.1 background china has witnessed rapid economic development over the past few decades, starting from president deng xiaoping’s economic reform and opening-up strategies around 1980. this growth has predominantly been driven by rapid urbanization and extensive international trade. now, as the second-largest economy in the world, china successfully escaped absolute poverty in 2020 but is still a developing country that heavily relies on agriculture. however, rural areas are significantly falling behind the urban regions, with a household annual per capita nominal income of 20,133 yuan, which is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 207 far lower than the national average of 36,883 yuan. rural areas have long been the focus of the chinese government to reduce regional inequalities. despite various policies being implemented throughout the years, those regions still face issues of poverty, mainly due to limited resources and opportunities. 1.2 policies several policies primarily target the impoverished population in rural areas. having the same general goal of alleviating poverty and developing rural economies, those policies or programs are different in terms of level, focus, and methods. the common prosperity policy, holding the goal of evenly distributing the benefits of economic growth in the entire country, is particularly relevant but not limited to rural areas, where economies are less developed. there is a wide range of economic issues targeted, and the policy manages income distribution through several initiatives at the national level, such as modernizing agriculture, developing infrastructures, providing safety net, and encouraging enterprises. the rural revitalization strategy is a more specific program targeting rural china, focusing on improving local living standards and solving population loss, which aims to address the unique challenges in rural areas, based on regional differences. those strategies include education, healthcare, financial assistance, environmental protection, etc. moreover, this policy focuses on urbanizing and modernizing rural areas by improving the industrial system, creating -more job opportunities outside the agriculture sector. 1.3 importance of rural areas there was a steady decline in the proportion of the rural population, from 80% in the 1980s to approximately 35% in 2023. while the chinese economy has become more diversified, the rural population of china still surpassed 500 million, which is high compared to developed countries. also, as an agricultural-based economy, china has the world’s largest primary sector, composing 22.4% of the labor force, meaning that rural areas remain crucial to the economy. the development of china’s rural areas will contribute to rising living standards for a great proportion of the chinese population. 1.4 research question with multiple policies in effect and continuous efforts made by the chinese government, rural areas remain an issue, even after the official eradication of absolute poverty, because the majority of relative poverty still happens in rural regions. it is then important to find out what are the major economic growth factors in rural areas of china so that policies can be made to target those aspects. 2. literature review studies underscore significant inequalities in educational access between urban and rural regions in china that have impacted the income disparities between those regions. there is a disparity in infrastructure between rural and urban areas that contributes to an educational gap, creating a gap that hinders social mobility. this deficiency in the educational system perpetuates poverty across generations and traps rural communities in a continuous cycle of limited educational and economic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 208 opportunities. there is thus a need to invest in rural education to foster economic growth. the uneven distribution of medical resources has also exacerbated rural-urban disparities. with more than half of the rural population impoverished by illnesses, poor health has significantly reduced income for people in rural areas by limiting economic opportunities, and the development of healthcare infrastructure in urban areas was “far ahead of that in rural china”. there has been significant rural-urban migration, as illustrated by a decrease in rural population from 972 million to 551 million from 2007 to 2020. this is increasingly weakening the rural economy and thus causing rural decline. even though there are improvements in individual income for rural migrants, it results in rural demographic imbalances in the rural population that “widens the urban-rural divide”. therefore, it is necessary for policymakers to “retain the outflowing populations” and enhance rural economic conditions. 3. theoretical framework the fundamental theoretical framework behind rural economic growth is that the standard of living can be enhanced through the expansion of economic activities; in this way, the economy is diversified, providing more opportunities to local people. the process of income generation should come from sectors different from traditional agriculture. a variety of strategies can be employed based on this theory to improve the overall income level and economic efficiency. there are two major economic growth models suitable for rural areas. the human capital theory emphasizes investments in education, healthcare, and skill development, which contribute significantly to economic growth and an improved standard of living. in the context of rural areas in china, this theory suggests that increasing access to education and healthcare services, reducing illiteracy rates, and enhancing educational attainment are vital steps toward economic development. a well-educated and healthy rural population is more likely to engage in productive economic activities, leading to higher incomes and an improved quality of life. the neoclassical growth theory is widely used to explain economic growth by emphasizing capital accumulation and labor force (physical capital and human capital). in rural areas, agricultural tools, infrastructure, and technology are essential to the local economy, which are physical capital and technology that are promoters of economic growth. considering the labor force, the theory suggests that improving the skills and increasing the number of workers contributes to economic growth. however, now rural areas face population losses due to the migration of young workers to cities. migration to cities of younger workers. to counteract the migration to urban areas, the government needs to provide employment opportunities in rural areas. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 209 4. hypothesis building on the theoretical framework provided by the human capital theory and the neoclassical growth theory, as well as previous studies on rural economies, this study posits that several key factors are crucial in driving economic growth in china’s rural regions. these factors emphasize the enhancement of human capital, including the number, skill, and condition or quality of the workforce, as well as the government’s support in improving economic outcomes. accordingly, the following hypotheses are proposed:  education: higher levels of education in rural areas are positively associated with economic growth  healthcare: greater accessibility to healthcare in rural regions is positively correlated with improvements in economic growth  population flow: rural regions with a larger net inflow of population will exhibit higher economic growth  agriculture: a higher agricultural output in rural areas is negatively correlated with economic growth  government expenditure: higher government spending in rural regions is positively related to economic growth  industry and enterprises: a larger number of industries or enterprises in rural regions is positively associated with economic growth 5. data and methodology 5.1 data source and description we extracted our data from the china statistical yearbooks, the most authoritative statistical database in china, covering census and non-census data published by the chinese government. the administrative divisions of china are generally categorized into three levels: the provincial, county, and township levels. there are also more divisions in practice, which can be divided into five levels of administration: the central (national level), provincial, prefectural, county, and township. we specifically chose the statistical summaries at the county level, which fits best with our consideration of underdeveloped rural regions. the official classification of counties in china often covers areas that could be considered less urban, rural, or semi-rural. they typically encompass rural regions such as small townships and villages. moreover, this is the lowest level where reliable data are available. at administrative divisions lower than the county level, such as townships and villages, there is often a lack of complete census on demographics and socioeconomics data, either lacking an official collection of certain types of data or there are too many missing values. for the classification of being both “rural” and “underdeveloped”, several different methods are performed. it is determined that focusing on the 832 poverty-stricken counties would best represent the rural and underdeveloped regions because there are significant disparities between counties. some www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 210 counties are economically advantaged and are thus inappropriate for our analysis. by focusing on those counties with low incomes, we can identify the most important factors that drive their growth. our data spans from 2000 to 2021 and across the entire country, which provides variations in both time and space and, thus, a comprehensive analysis of economic trends in the past two decades. 5.2 data calculation 5.2.1 data filling multiple imputation was performed to handle missing data in the dataset using multivariate imputation by chained equations (mice). this process aims to improve the reliability and validity of the analysis by creating complete datasets to address the issue of missing data. specifically, we applied multiple imputations to the raw dataset using predictive mean matching, which imputes missing values by matching predicted values to observed values, thereby preserving the original distribution characteristics of the data. 5.2.2 dependent and independent variables dependent variable regional gdp per capita (y): county-level gdp/population figure 1: figure 1. county-level gdp/population independent variables  schools per 1000 (education): (# of primary schools + # of middle school)/(total population/1000)  hospital beds per 1000 (healthcare): # of beds/(total population/1000)  population inflow (population flow): total population-registered permanent resident  agricultural output ratio (agriculture): total output value of agriculture, forestry, husbandry, and fishery/county gdp  government spending per capita (government expenditure): local fiscal budget expenditure/total population www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 211  industrial scale enterprises ratio (industrial & enterprises): # of large-scale industrial enterprises/total population we eliminate the population factor in most of our variables to account for the regional differences in size. the use of per 1000 population for schools and beds is for convenience due to the fact that the data would be more intuitive than per capita as the number would otherwise be too small. moreover, there is also an official use of bed/1000 in the data published by the government. for population inflow, we keep the population factor, as the absolute number of flows does matter because of the role population density plays in an economy. 5.3 model setup 5.3.1 description of longitudinal analysis model setting: we used a mixed effects model to analyze the data, considering the region to be a random effect. the response variable y is estimated to be 1 in the model, indicating the main trend or average we observed among different regions. span: the analysis results show that the span between regions is very large, indicating that there are significant differences between regions in the indicators studied. this span may reflect the differences in the development levels of different regions in terms of education, healthcare, agriculture, industry, population flow, and government spending. 5.3.2 model 1: random intercept formula: per capita gdp~region name random effects:  variance for intercept: 129,574,529 (σ: 11,383)  residual variance: 870,343,500 (σ: 29,502) fixed effects:  intercept: 17,096.4 (std. error: 461.2, t-value: 37.07, p<2e-16) interpretation:  the random intercept model shows significant variability in per capita gdp across different regions. the residual variance is the variability in per capita gdp within regions that is not explained by the model. the value of 870,343,500 with a standard deviation of 29,502 shows there is still considerable unexplained variation within each region.  the intercept suggests that the expected value of per capita gdp for a typical region is around 17,096.4 units. 5.4 model evaluation the intraclass correlation coefficient (icc) from the null model stood at 0.13, which suggests that 13.0% of the variability can be attributed to the regional level. this icc value is indicative of a non-negligible between-region variance in gdp, signifying that the region does indeed play a role in shaping individuals’ gdp in others, although most of the variation is still at the individual level. the anova test was used to compare two models, and significant improvements in model fit were www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 212 observed. the full model demonstrated a lower akaike information criterion (aic) and a significant chi-squared statistic of 5823.4 with 6 degrees of freedom (p<2.2e-16), affirming its superior fit over the null model. this substantiates that the inclusion of socio-demographic predictors notably enhances our model’s capacity to explain the variability in gdp across individuals within regions. 6. discussion and implications the analysis has revealed the factors influencing economic growth in rural and underdeveloped regions of china, in which each of the variables plays a unique role. the positive coefficients of schools per 1000 and beds per 1000 indicate that local access to education and healthcare significantly contributes to economic growth by enhancing the productivity of the workforce, which in turn stimulates economic activities. the statistical significance suggests that investments in education and healthcare-related programs could yield substantial returns in economic growth. the coefficient for population inflow is also positive and statistically significant, suggesting that regions experiencing a net inflow of population tend to see economic growth. this could be due to several factors, such as an increased labor force, higher demand for goods and services, and the diversification of skills. policies aimed at attracting people to underdeveloped areas, such as through developing infrastructures, creating job opportunities, and improving living and working conditions, might potentially benefit the local economy. the contrasting effects of agricultural and industrial development suggest that a movement toward industrialization might be beneficial for these regions. the negative coefficient for the agricultural output ratio suggests that a dependence on agriculture might be associated with lower levels of economic growth, which could be explained by the lower added value of the primary sector compared to other activities. by contrast, the positive coefficient for the industrial-scale enterprises reinforced the idea that industrialization acts as a promoter of economic growth. supporting small and medium-sized enterprises could bring economic advancements. the positive effect of government spending reflects the role of fiscal policy in economic growth. however, while it has demonstrated that increased government spending supported the economy, the finding suggests that the effectiveness of such spending heavily depends on the specific aspect it targets. merely considering the amount of budget is not sufficient. it is crucial to allocate funds toward those programs that most effectively drive economic growth so that resources can be used to generate the maximum impact. policymakers should focus more on enhancing the socioeconomic factors of underdeveloped regions to maximize the impact of government expenditure. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 213 7. conclusion the eradication of absolute poverty in china is significant, yet the persistence of relative poverty in rural areas poses continued challenges. this study on the factors influencing economic growth in these regions provides a reference for policymakers to refine their strategies. our research emphasizes education, healthcare, economic sectors, and effective governmental intervention in driving the economic growth of rural and underdeveloped areas in china. by focusing on these aspects, china can address the problems rooted in those areas and move toward sustained development. reference gao, x., & li, m. (2022). differences between returns to education in urban and rural china and its evolution from 1989 to 2019. plos one, 17(10), e0274506. https://doi.org/10.1371/journal.pone.0274506 guo, b., xie, x., wu, q., zhang, x., cheng, h., tao, s., & quan, h. (2020). inequality in the health services utilization in rural and urban china. medicine, 99(2), e18625. https://doi.org/10.1097/md.0000000000018625 guo, y., & li, x. (2024). regional inequality in china’s educational development: an urban-rural comparison. heliyon, 10(4), e26249. https://doi.org/10.1016/j.heliyon.2024.e26249 wu, y. f., zhou, y., & liu, y. s. (2020). exploring the outflow of population from poor areas and its main influencing factors. habitat international, 99, 102161. https://doi.org/10.1016/j.habitatint.2020.102161 xia, x., sun, h., yang, z., yuan, w., & ma, d. (2022). decoupling analysis of rural population change and rural electricity consumption change in china. international journal of environmental research and public health, 19(11), 6676. https://doi.org/10.3390/ijerph19116676 zhou, y., guo, y., & liu, y. (2020). health, income and poverty: evidence from china’s rural household survey. international journal for equity in health, 19(1). https://doi.org/10.1186/s12939-020-1121-0 https://doi.org/10.1371/journal.pone.0274506 https://doi.org/10.1097/md.0000000000018625 https://doi.org/10.1016/j.heliyon.2024.e26249 https://doi.org/10.1016/j.habitatint.2020.102161 https://doi.org/10.3390/ijerph19116676 https://doi.org/10.1186/s12939-020-1121-0 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 4, no. 2, 2021 www.scholink.org/ojs/index.php/elp 40 original paper developing an effective strategy for the enforcement of the constitutional mandate of the senate committee on ethics, code of conduct and public petitions emmanuel e. okon 1 & ngozi j. udombana 2 1 department of international law, nigerian institute of advanced legal studies, lagos, nigeria 2 department of public law, nigerian institute of advanced legal studies, lagos, nigeria received: october 24, 2021 accepted: november 9, 2021 online published: january 4, 2022 doi:10.22158/elp.v4n2p40 url: http://dx.doi.org/10.22158/elp.v4n2p40 abstract the senate committee on ethics, code of conduct and public petitions (eccpp) is one of the committees of the senate of nigeria’s national assembly. the committee was one of the earliest special committees established under order xiii of the senate standing orders 2015, as amended (sso 2015). it is one of the committees through which the senate conducts legislative investigations in fulfilment of its constitutional and statutory role under section 88 of the 1999 constitution, as altered. the major challenge of the eccpp committee in the exercise of its investigation power is the refusal by some chief executives of government agencies and corporate organisations to honour its invitation. this study finds that among the reasons for this are the absence of ethical prescriptions in the sso 2015 to guide the conduct of honourable members against unethical conduct that undermine their integrity, and absence of prescribed fine for failure to honour the committee’s summons. to strengthen the enforcement capacity of the committee, the study recommends, among others, that members of the committee eschew unethical tendencies that undermine their integrity and conduct the business of the committee in a manner that avoids conflicts of interest or its appearances. keywords senate committee, separation of powers, 1999 constitution, legislative houses, senate standing orders www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 41 published by scholink inc. 1. introduction among the most conspicuous features of the constitution of the federal republic of nigeria 1999 (as altered) (note 1) are federalism and separation of powers. federalism is essentially a constitutional device by which powers within a country are shared among tiers of government, rather than among geographical entities comprising different peoples (note 2). separation of powers is the division of the powers of the tiers of government among the arms of government established under the constitution. at the federal level, the 1999 constitution provides for the division of the powers of government into three distinct types, to be exercised by three arms of government—an executive with the power to implement and enforce laws (note 3), a bicameral legislature consisting of senate and house of representatives with the power to make laws (note 4), and a judiciary with the power to interpret and apply the law (note 5). the concept of structure requires separation of powers among separate arms of government, operating with separate personnel and procedure so that none of the arms exercises the whole or part of another’s power. besides the traditional law-making function of the legislature, there are non-traditional functions, which it also performs. these include conduct of investigation, control and surveillance over the financial affairs of the executive, and control and supervision of government’s general business through oversight (note 6), and representative services to the constituencies of honourable members (note 7). the senate’s power of investigation is provided for in section 88 of the 1999 constitution (note 8). the senate may exercise any of its functions, including the power to conduct investigation, through special, standing or joint committees of its members appointed by it (note 9). one of such committees is the senate committee on ethics, code of conduct and public petitions (note 10). like every other committee of the senate, it has a mandate to conduct legislative investigations for the purpose of effectively achieving its constitutional and statutory role. the major challenge the committee on eccpp has faced in the course of exercising its investigation power is the refusal by some chief executives of government agencies and corporate organisations to honour its invitation. for instance, the interim administrator, niger delta development commission, effiong akwa, repeatedly shunned the summons of the senate committee on eccpp asking him to respond to an allegation that the commission diverted n6.28bn meant to procure covid-19 palliatives approved by president muhammadu buhari for the niger delta region (note 11). in march 2021, the management of the nigeria petroleum development company limited, benin city, and the national petroleum investment management service in lagos shunned the committee’s invitation to defend allegations of funds misappropriation and impunity levelled against them (note 12). incidentally, it is not only invitations of the senate committee on eccpp that have been shunned by some heads of government agencies and chief executives of private corporate organisations. there have been other cases where government officials and corporate executives were invited by the senate or its other committees to respond to allegations levelled against them or their organisations and they refused to honour the invitations or, at best, sent their representatives (note 13). occasionally, in order to ensure www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 42 published by scholink inc. that their invitations are honoured, the committees of the senate had resorted to issuing summons under the legislative houses (powers and privileges) act 2017 (note 14) to compel invited ministers, heads of government agencies, and chief executives of oil companies to honour their invitation. notwithstanding, most of the summons were still not honoured (note 15). this article aims at contributing to the discourse on how to develop a strategy that will enable the senate committee on eccpp to deliver on its constitutional mandate of investigation and, in so doing, promote good governance, democratic development and citizens’ trust in the political system of nigeria. the need to develop such strategy is predicated on the fact that the weak enforcement regime available to the senate committee on eccpp will continue to hinder it from carrying out its mandate of investigation, including enforcing compliance with its order. structure-wise, after this introduction, part two of this article discusses the doctrine of separation of powers. part three examines the operation of committee system in the senate. part four analyses the constitutionality of the investigation power of senate and its committees on eccpp while part five examines the establishment, jurisdiction and rules of procedure of the committee on eccpp under the sso 2015 (note 16). part six analyses the constitutional basis for enforcement of the investigation powers of senate committee on eccpp, its establishment and jurisdiction, procedure for its business, how it has fared so far, and limitations or challenges to its success. it concludes with recommendations on how to enhance the strategy for ensuring that the committee on eccpp delivers on its constitutional mandate. 2. the doctrine of separation of powers the concept of separation of powers, as espoused by baron de montesquieu (note 17) and john locke (note 18), is enshrined in various forms in our constitution (note 19). this concept finds support in madison’s declaration that “it will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it. after distinguishing, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others’ (note 20). in ag oyo state & ors v l.o. adeyemi (alafin of oyo) & 5 ors (note 21), akanbi jca held thus, there is no doubting the fact that the doctrine implies that ideally subject to what other checks and balances the constitution may provide for, the doctrine of separation of powers presupposes that the operative constitution ensures that-(a) each of the three organs of government is in the hands of different persons. (b) that no one organ has control of the others (c) no one organ performs the function of another (note 22). indeed, the dictum of uche omo, jca, in this case further enhances the understanding of what separation of powers entails. in his words, “basically, what the doctrine provides is that the legislature, the executive and judiciary are independent arms of government with their respective functions. each arm must not encroach on the functions of the others, and any such invasion of the other’s turf must be regarded as a breach of this doctrine and consequently unconstitutional” (note 23). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 43 published by scholink inc. the principle of separation of powers ensures that all arms of government operate within legal and constitutional boundaries to check arbitrariness, not only in respect of individual liberties, but also in governance, law-making and interpretation. such measure safeguards constitutionalism, which “requires for its efficiency a differentiation of governmental functions and a separation of its agencies, which exercise them” (note 24). thus, to avoid arbitrariness and absolutism as well as promote good governance, development, and political liberty in government and society, the constitution creates a relationship of checks and balances between and among the organs of government with a view to balancing their powers (note 25). of course, modifications of the concept of separation powers by either the express or implied provisions of the constitution (note 26) in the form of checks neither subordinates the organ checked to the authority of the one exercising the check nor does it make exercising constitutional powers a joint responsibility (note 27). rather, checks superimpose a power of limited interference by another organ so as to ensure that the checked organ exercises its power based on the rule of law and constitutionally too (note 28). the legislature, in exercising its checks and balances functions, goes beyond its traditional or ordinary legislative role of law making, whereby it expresses the will of the people in legislation (note 29), to reviewing how the executive and its agencies exercise their executive powers. the major purpose of such checks is to ascertain the constitutionality and prudence of executive powers. in effect, such checks help to expose corruption, inefficiency or waste in the execution or administration of laws within the legislative competence of the legislature and in the disbursement or administration of funds appropriated by it (note 30). interestingly, the exercise of constitutional checks by the legislature on the executive and vice versa, albeit, the veto power of the president to withhold his assent to bills (note 31), is common in nigeria’s presidential democracy. under the 8 th national assembly, for instance, out of the bills transmitted to president muhammadu buhari for assent, he assented to about 35 and declined assent to over 60, including some critical ones like the electoral act (amendment) bill 2010, the constitution (4 th alteration) bill no 20, which seeks to strengthen the judiciary for a speedy dispensation of justice and the petroleum industry governance bill 2018 (pigb) (note 32). it was only when the last two bills were further reviewed by the national assembly that president muhammadu buhari assented to them in 2017 and 2021 respectively. also common is judicial checks on the legislative organ which are, in most cases, by voiding acts of the national assembly that are inconsistent with the constitution (note 33) or by interpreting acts of the national assembly principally in line with the purpose of the constitution and to promote the living nature of the constitution (note 34). on its part, legislative checks on the judiciary has always been very subtle through amendment of the constitution and acts of the national assembly or by enacting new legislation with the implied aim of rendering nugatory judgments of courts (note 35). because the national assembly has the power to enact laws, it can change them, if it does not like the way they are interpreted. the amended or new act will govern the decisions of courts in future cases (note 36). in the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 44 published by scholink inc. past decade, this has played out more in the area of electoral legislation (note 37). this, in effect, creates a complex relationship between the three arms of government, in which a balance of governmental powers must be realised for the purpose of good governance and avoidance of chaos (note 38). the operation of this doctrine is often more visible, though, in the relationship between the legislature and the executive with the former wielding enormous constitutional oversight powers over the latter than it is between either of these arms and the judiciary (note 39). executives, worldwide, however, prefer flexible legislatures that would rubber stamp their policy programmes without question (note 40). because executives in democratic systems assume power with a popular mandate, they tend to feel frustrated when they have to argue with, appeal to, convince and cajole legislatures before their programmes can be approved. consequently, there is always a tension between the two arms of government such that legislatures often have to struggle to carry out their legislative mandate (note 41). not surprisingly then, at the advent of nigeria’s current democracy, between 1999 and 2007, an unhealthy and unhelpful relationship, characterised by suspicions, conflicts and threats, existed between the executive and the legislature (note 42). legislators seemed determined to assert their prerogatives and resist the arbitrary dominance of president obasanjo, a strong personality with a military background (note 43). while acknowledging that nigeria’s first assembly in the fourth republic exhibited familiar elements of neo-patrimonial politics, as struggles for patronage and personal aggrandisement occupied the attentions of many legislators, lewis (note 44) notes that members of the assembly, also made pronounced efforts to assert the constitutional separation of powers and build the capacity of the institution. he asserts that, despite many shortcomings, the first assembly revealed an unprecedented vigour in balancing the power of the executive and attempted to address some of the critical issues facing the country. indeed, legislators were more frankly assertive toward the executive, and key committees, including the committee on eccpp, played a prominent role in challenging the administration (note 45). one outstanding and commendable action of the nass at this time was its ability to resist efforts by “third term” supporters of president obasanjo to manipulate the assembly’s procedures and intimidate legislators into accepting the proposal (note 46). since after obasanjo’s presidency, however, what has been witnessed is more of a marriage between the executive and the legislature at the national level that there is seemingly not much difference between them except the distinction of the arms. save on a few occasions, as manifested by the house of representatives debate and motion for the federal government to reverse its decision on the removal of subsidies on 8 january 2012; nass’ demand for the removal of aruma oteh as the director-general of sec and the dismissal of abdulrasheed maina, chairman, pension fund task team, for their recalcitrant attitude towards the nass (note 47), the unhealthy rancour that ensued, more out of the personality clash between president muhammadu buhari and the 8 th national assembly under the immediate past senate president, olubukola saraki, among other self-serving interests (note 48), the legislature, on many occasions, concur with the executive and vice versa. the present 9 th www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 45 published by scholink inc. assembly under the senate presidency of ahmed ibrahim lawan and speakership of femi gbajabiamila has a more cordial relationship with the executive arm. this trend may not be unconnected with the fact that majority of the assembly members belong to the ruling party. more so, contemporary nigerian politicians and their parties are not ideologically based so that there are hardly any issues of principle on which to disagree. notwithstanding, though a measure of cooperation is necessary for an effective running of government, a marriage between the arms is not helpful as it erodes the principle of checks and balances necessary for a healthy development of the democratic culture. such overstretched political party allegiance definitely impacts negatively on the independence of the committees and their investigative activities. 3. the operation of the committee system in the senate the committee system of operation in the legislature entails dividing the membership of the legislature into specialised groups, mainly around policy issues for purposes of holding hearings, preparing bills for consideration of the legislature and regulating the procedure of the legislature (note 49). the committee system is a feature of both the presidential and parliamentary systems of governance. it underpins the operation of legislative houses in all jurisdictions. committees are useful for the orderly, competent and prompt discharge of the duties of the legislature. the numbers and types of committees vary in different countries, depending on the need. their compositions also vary, but are often balanced on party lines. indeed, the structures and powers given to committees are principally viewed from the standpoint of a cross-party model of decision-making and opposition strength (note 50). consequently, the less control a single party is able to exercise over committee deliberations, the more effectively the system works (note 51). historically, the oldest known committee in the united states congress—a select committee, assigned to report standing rules and order for house proceedings—was established by the first congress on 2 april 1789 (note 52). in nigeria, making committees the power houses of the legislative arm of government dates back to the first republic, although the parliament did not establish a committee for every issue of national importance (note 53). under the 1999 constitution, the federal and states legislature conduct much of their activities through committees established for almost all issues of national and state importance. incidentally, the constitution does not specifically define the word “committee”, but section 25 of the legislative houses powers and privileges (lhpp) act 2017 defines “committee” as the committee set up by the leadership of a legislative house. this definition has a broad scope that incorporates committees appointed for special or general purpose under section 62(1) of the constitution and the joint committee on finance or any other joint committee appointed by the senate and the house of representatives by virtue of section 62(3) of the constitution. section 62(1) of the constitution provides to the effect that the senate may appoint a committee of its members for such special and general purpose as in its opinion would be better regulated and managed by means of such a committee and may, by resolution, regulation or otherwise, as it thinks fit, delegate any www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 46 published by scholink inc. functions exercisable by it to any such committee (note 54). accordingly, the senate is mandated to appoint joint committee on finance with the house of representatives consisting of an equal number of persons appointed by each house and may appoint any other joint committees (note 55). as provided for in the sso 2015, the senate currently has 5 special and 51 standing committees (note 56). in addition, the senate can create ad hoc committees on any special matters brought before it (note 57). order 95 rule 2 of the sso 2015 prohibits any senator from serving in more than three committees while rule 3 of the same order provides that no committee chairman shall serve in more than two other committees (note 58). exercising legislative powers of the senate through specific and general committees dealing with matters which in the opinion of the senate would be better regulated and managed by means of such a committee promotes efficiency in the performance of the senators’ duties. since the inception of the present democratic era, the senate committees, including the committee on eccpp have been very active. their functions include conduct of investigation, control and surveillance over the financial affairs of the executive, and control and supervision of government’s general business through oversight (note 59), as well as examine proposals for primary and secondary legislation within their respective assigned areas. the committee system provides the venue for various probes into the affairs of the executive as well as the legislature itself. the most assiduous and capable are those focused on public finance and legislative affairs, including those on the budget, fiscal affairs, external debt, and assembly rules and procedures. many others are thin on competence and more than half meet infrequently (note 60). though committee activity is goaded by misconduct in various departments of government, it is also partly spurred by political ambition. also, the payments and other perks for committee membership encourage participation (note 61). generally, the constitution mandates the senate to fix the terms of office and quorum of any committee appointed by it and this includes the committee on eccpp (note 62). importantly also, the constitution allows the senate to regulate its own procedure, including the procedure for summoning and recess of the house (note 63). chapter xiv of the sso 2015 which contains elaborate provisions on quorum, calling and interrogation of witness, and investigative hearing proceedings is discussed in details in this article under the part that examines the establishment, jurisdiction and rules of procedure of the committee on eccpp. while the proliferating committee system has its advantage, it also has its downside. though an important source of information and pressure, it is an uncertain mechanism of accountability and, as would be seen later in this article, has limited enforcement capacities. the problem is worsened by the self-seeking and grabbing tendencies of some senators and overlapping oversight jurisdictions among some committees (note 64). the enormity of the last challenge is evidenced in the confession of senator suleiman kwari, representing the senate president, ahmad lawan, at a two-day national summit on diminishing corruption in the public sector, organised by the independent corrupt practices and other related offences commission in collaboration with the office of the secretary to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 47 published by scholink inc. the government of the federation on tuesday, 19 november 2020 in abuja that “for us in parliament, one of the four challenges of this senate is how to forge a strong collaborating linkage with at least six standing committees of the senate with overlapping oversight jurisdictions” (note 65). the probable counter and conflicting positions arising from the activities of these committees and the impact on their productivity can only be imagined. 4. constitutionality of the investigation power of senate and its committees on eccpp with regards to the investigative power of the senate, section 88(1) of the constitution provides to the effect that the senate, being part of the national assembly shall, subject to the provisions of the constitution, have power by resolution published in its journal and in the gazette of the government of the federation to direct or cause to be directed an investigation into: (a) any matter or thing with respect to which it has power to make laws; and (b) the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged, with the duty of or responsibility for (i) executing or administering laws enacted by the national assembly; and (ii) disbursing or administering moneys appropriated or to be appropriated by the national assembly. the expansive scope of this power is clearly articulated by chief justice earl warren in the united state case of watkins v united states (note 66) thus: the power of congress to conduct investigations is inherent in the legislative process. that power is broad. it encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. it includes surveys of defects in our social, economy, or political system for the purpose of enabling congress to remedy them. it comprehends probes into departments of the federal government to expose corruption, inefficiency or waste (note 67). the implication of section 88(1), however, is that the investigation power of the senate is limited to any matter or thing over which it has power to make laws as listed on the exclusive legislative list (note 68) and the concurrent legislative list (note 69). as regards matters or things listed on the concurrent legislative list, the national assembly investigation power is limited only to those matters or things for which it has decided to enact laws. where such laws cover the field on the legislated item or subject, the national assembly will have investigative powers over them to the exclusion of all state governments (note 70). the restriction on the investigation power of the national assembly and, by implication, the senate is the basis of courts deciding that the resolution setting up a legislative investigative body under sections 88 and 89 must be construed strictly in order to determine the scope of the powers of such a body and whether or not it has been constituted for a permissible purpose (note 71). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 48 published by scholink inc. from the provisions of section 88(1) of the constitution, a restrictive interpretation must be given to the phrase “any matter” used in order 103 of the sso 2015 on the powers to conduct investigation by the senate. the order provides: in exercise of the powers conferred on the national assembly by section(sic) 88 and 89 of the constitution of the federal republic of nigeria, the senate shall have power to direct or cause to be directed an investigation into any matter. without applying a restrictive interpretation to the phrase “any matter” the senate or its committees may either tactfully or inadvertently want to investigate matters that are outside its legislative powers. the aim of the publication of the resolution of the senate to investigate any person in its journal and in the federal government’s official gazette is to notify the general public and the persons affected that the senate has adopted a resolution to investigate them concerning the subject in question. also, the senate can investigate the conduct of affairs of any person, authority, ministry or government department that has the responsibility for executing or administering acts of the national assembly as well as disbursing and administering moneys appropriated or to be appropriated by the national assembly (note 72). the phrase “any person, authority, ministry or government department” should be read in line with the provisions of section 5 of the constitution, which vests in the president the executive powers of the federation and, subject to the constitution or an act of the national assembly, may exercise such powers, either directly or through the vice president or minister of government of the federation or other officers in the public service of the federation. indeed, section 5(1)(b) of the constitution clearly provides to the effect that the executive powers of the federation shall extend to the execution and maintenance of this constitution, all laws made by the national assembly and to all matters with respect to which the national assembly has, for the time being, power to make laws. literally, “any person” as used in sections 88(1)(b)(i) and (ii) of the constitution targets public officers, but where a private person is involved in the execution of public project(s) or any law integrates a private person into its implementation regime (note 73) and corruption of the private person either individually or with a public officer, within the context of execution of the project or the implementation regime of the law, is the subject of investigation, then the courts will interpret “any person” to include such private person(s). it is trite rule of constitutional interpretation that a constitutional provision should not be construed so as to defeat its evident purpose (note 74) and words of the constitution are, therefore, not to be read with stultifying narrowness (note 75). if private persons, who engaged in execution of public projects collaborated with public officers to engage in corrupt practice, are exempted from being investigated by the senate, the legislative investigative power of the senate will be rendered useless and the purpose of section 88 of the constitution will be defeated. the same argument goes for a corrupt private person integrated into a law enforcement regime. aduba and oguche are of the view that since section 88(1) of the constitution starts with the phrase “subject to the provisions of this constitution”, it means that persons exempted from judicial process by the constitution cannot be summoned or compelled to appear before the senate or its committee (note www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 49 published by scholink inc. 76). this view is not totally correct. section 308 of the 1999 constitution provides for restriction on legal proceedings against a person holding the office of the president, vice president, governor and deputy governor. more specifically, the section prohibits instituting or continuing civil or criminal proceedings against persons holding the mentioned offices. more so, a person holding any of these offices shall not be arrested or imprisoned during the period of his or her tenure. of course, section 308 does not apply to civil proceedings against a person holding the mentioned offices in an official capacity or to civil or criminal proceedings in which such a person is only a nominal party (note 77). from the foregoing core provisions of section 308 of the 1999 constitution, the president, vice president, governor and deputy governor may be summoned or invited by senate or any of its committees to appear before it only for the purpose of assisting the senate or its committee in investigation of a matter that is within its power. certainly, by virtue of the constitutional prohibition against the arrest of the four public officers, the senate or any of its committee cannot issue a warrant of arrest to either a police officer or sergeant-at-arms to apprehend any of them for the purpose of compelling their appearance before the senate or any of its committees. it is only on this note that the perspective of aduba and oguche is correct. by virtue of section 88(2)(a) of the constitution, the purpose of the investigation power of the senate is to enable it make laws within its legislative competence and correct any defects in existing laws. in order to make good laws, the investigation power of the senate for the purpose of making laws will involve the senate gathering information on proposed bills (note 78). it is on these bases that the court of appeal held in chevron (nig) ltd v imo state house of assembly & ors (note 79) that legislative investigation is part of law making; an adjunct of legislative process (note 80). another purpose for the investigation power of the senate as listed in section 88(2)(b) of the constitution is to enable it expose corruption, inefficiency or waste in the execution and administration of laws within its competency as well as in the disbursement or payment and management of funds appropriated by it. section 89(1) of the constitution extends the investigation power of the senate to the committees appointed by it in accordance with section 62 of the constitution. while the senate may delegate any of its functions, including investigation into any matter, to any of its committees (note 81), including the committee on eccpp, the constitution expressly prohibits it from delegating its power to decide whether a bill shall be passed into law or determine any matter which it is empowered to determine by resolution under the provisions of the constitution (note 82). these provisions are the bases of order 104 of the sso 2015 on limitation on the jurisdiction of committees of the senate. indeed, the supreme court had long ago held as one of the cannons of interpretation of the constitution in attorney-general of bendel state v attorney-general of the federation (note 83) that delegation by the national assembly of its essential legislative functions is precluded by the constitution (note 84). doubtlessly, both the constitution and the sso 2015 provide that the senate may authorise any of its committees, including the committee on eccpp, to make recommendations to it on any matter it has power to make law on or determine by resolution (note 85). this is likely to be the case if the matter which the senate is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 50 published by scholink inc. addressing is within the jurisdiction of such committee. the adjunct nature of the investigative functions of the senate means that the investigative functions of the committee on eccpp are not at large and as such they must be exercised within the provisions of the constitution (note 86). 5. establishment, jurisdiction and rules of procedure of the committee on eccpp under the sso 2015 the committee on eccpp is among the special committees established within the first fourteen legislative days following the first sitting of the senate under chapter xiii of the sso 2015 (note 87). order 97(iv) of the sso 2015 provides that there shall be a committee to be known as the committee on eccpp appointed at the commencement of the life of the senate. sub-rule 4(a-c) of order 97 lists the jurisdiction of the committee on eccpp as follows: (a) consideration of the subject matter of all petitions referred to it by the senate and shall report from time to time to the senate its opinion on the action to be taken thereon together with such observations on petition and the signatures attached thereof, as the committee may think fit; (b) the committee shall recommend to the senate from time to time such administrative actions as it may deem appropriate to establish and enforce standards of official conduct for the senators; and (c) the committee shall oversee and monitor the activities of the code of conduct bureau. in addition to the above functions, order 15 under chapter iv of the sso 2015, to a great extent, vests in the committee on eccpp the power to deal with privileges matters. the sso 2015 defines privileges as rights enjoyed by the senate, collectively, and by the members of the senate, individually, conferred by the lhpp act 2017 and other statutes, or by practice, precedent usage and custom (note 88). regrettably, order 97 rule 4 does not define ethics and what constitutes unethical behaviour of members of the senate. also, the order does not explain what public petition is and what should be the content of a public petition. the black’s law dictionary defines ethics as “a system of moral tenets or principles: the collective doctrines relating to the ideals of human conduct and character” (note 89). it has been observed that legislative ethics is a set of standards governing the conduct of members of a legislative body and a system to administer those standards (note 90). the primary purpose of such standards is not to punish erring legislators, but to serve as guidelines for fostering an environment that encourages proper behaviour (note 91). again, the black’s law dictionary defines petition as “a formal written request presented to a court or other official body” (note 92) and public as “relating to or involving an entire community, state or country” (note 93). within the context of this presentation, public petition means petition emanating from the public and not from a senator. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 51 published by scholink inc. in a situation where the jurisdiction of the committee of the eccpp deals extensively with the major themes (ethic, privilege, code of conduct, and public petition) constituting the name of the committee, it is necessary to apply the organic rule of interpretation which sees a statutory instrument or the constitution as an organic scheme of government to be dealt with as an entity, hence a particular provision should not be severed from the rest (note 94). the organic rule requires reading through the whole sso 2015 and the lhpp act 2017 in order to identify the privileges the senate and its members should enjoy, the prohibited unethical behaviour of members of the senate, and the content of a public petition since these issues are the major areas on which the committee on eccpp should focus its investigation. due to the lack of comprehensive nature of order 97 rule 4, members of the committee on eccpp must look at chapter viii of the sso 2015 which deals with rules of debate, particularly the aspect on the behaviour of senators in the senate, to be able to identify prohibited behaviour of senators that may trigger referral to the committee on eccpp for its recommendation on administrative actions appropriate enough to establish and enforce standards of official conduct for the senators. some of the prohibited unethical behaviour include not maintaining decorum in chambers, failure to pay obeisance to the chair, crossing the floor of the senate unnecessarily, sitting in a place allotted to another member, reading newspaper or magazine in the chambers unless connected with the debate, interrupting another senator or making noise or disturbance to interrupt him, and smoking, chewing or drinking on the floor of the senate (note 95). of course, as public officers, the senators are also bound by the code of conduct for public officers in the fifth schedule to the constitution (note 96). of extreme importance is the fact that the senators must avoid conflict of their personal interest with their work (note 97); they must not maintain a foreign account (note 98); they must not accept gifts from commercial firms, business enterprises or persons who are government contractors or have business connection with the government (note 99); they have to refrain from accepting or giving bribe (note 100), abuse of power or belonging to a society which membership is incompatible with the functions and dignity of the office of a senator (note 101); and they must timely make a written declaration of all their properties, assets and liability, including those of their unmarried children under the age of eighteen years (note 102). paragraph 14(a) of the code of conduct for public officers exempts legislative officers from paragraph 4 of the code (note 103). the problem with the code of conduct for public officers is the general nature of its provisions, which do not specifically address some issues relating to the peculiar circumstances of legislators, including the senators. besides, due to its general nature, it is not likely to invoke more special allegiance from the members of the senate, especially when the general attitude of other public officers to the code of conduct for public officers is one of disregard for its standards and values. evidence of this is seen in the confession of the former chairperson of the code of conduct bureau, mr. sam saba, that if the bureau is to strictly comply with the provisions of the code of conduct for public officers, more www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 52 published by scholink inc. prisons would need to be built because of the very high non-compliance rate of public officers with the provisions of the code (note 104). the responsibility of the committee on eccpp to oversee and monitor the activities of code of conduct bureau extends its investigation power to issues covered under part 1 of the fifth schedule of the constitution, which prescribes code of conduct for public officers. all the prohibited conduct in the code of conduct for public officers have been incorporated into the code of conduct bureau and tribunal act (note 105). the code of conduct bureau is established under section 153 of the constitution. its main functions are to receive declaration of all properties, assets and liability of public officers; examine the declaration in accordance with the code of conduct bureau and tribunal act; retain custody of the declarations and make them available for public inspection; and receive, investigate and refer complaints about non-compliance with provisions of the code of conduct bureau and tribunal act to the code of conduct tribunal (note 106). again, one has to look at chapter vii of the sso 2015 which deals with the arrangement of business to know that: only a senator can present a petition to the senate; a petition must be signed by the parties (the public) it came from as no senator is permitted to present petition signed by himself; a petition must be properly addressed to the senate in respectful, decorous and temperate language; a petition must be in english language or in any other language, but translated and duly certified to be correct by the senator who presents it; a petition must set forth the material allegations and end with a prayer setting forth the relief sought by the petitioner(s); a petition must not ask for a grant of public funds unless the recommendation of the president of the federal republic of nigeria has been signified thereto, provided that petition for legislation to this effect may be received; a petition shall not be for a matter for which there is a judicial remedy; and only the senate shall refer a petition to the committee on eccpp. lastly, chapter iv of the sso 2015 on privileges gives priority to matters concerning privileges. such matters must be taken up immediately and at any time (note 107). a senator may rise at any time to speak on a matter of privilege suddenly arising and must be prepared to move a motion without notice declaring that a contempt or breach of the privilege has been committed. privilege matter shall be referred to the committee on eccpp, if it was not raised in the committee of the whole house (note 108). once a matter on privilege arises, the president of senate must suspend consideration and decision on other matters until the privilege matter is disposed of or unless the debate on a motion on the privilege matter is adjourned. however, there shall be no precedence of such motion over other business if, in the opinion of the president of senate, a prima facie case of breach of privilege has not been made out or the matter has not been raised at the earliest opportunity (note 109). order 17 rule 1 prohibits admission of any person to the floor of the senate during session, except by the consent of the senate. the senate chamber shall not be used for any purpose other than that of the senate (note 110). a senator complaining of a breach of the senate privilege by any publication shall furnish the name of the printer or publisher (note 111). privilege matters that arise during vacation of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 53 published by scholink inc. the senate which a member proposes should be referred to the committee on eccpp shall be brought to the attention of the senate president. if the senate president is satisfied that there is a prima facie case of breach of privilege and it requires urgent action, he shall refer it to the committee on eccpp. the president of senate shall report such referral to the senate in its next meeting and the member who alleged the breach shall, without notice, move a motion for the endorsement of the referral by the senate. if the motion fails, then the committee on eccpp shall take no further action concerning the matter (note 112). some of the privileges of the senate and its members contained in the lhpp act 2017 are immunity from litigation (note 113); a person who has a cause of action against a legislative house shall serve a three months’ notice to the office of the clerk of a legislative house disclosing the cause of action and relief sought (note 114); where a member of legislative house is arrested or detained by order of a court, the court must immediately notify the president or speaker of a legislative house (note 115); notice of processes of court shall not to be served or executed in the chamber or precincts of a legislative houses (note 116); and a member of a legislative house shall not be arrested in the chamber or precincts of a legislative house (note 117). the lhpp act 2017 also prohibits the senators from getting involve in a number of unethical behaviours. for example, section 13 of the lhpp act 2017 prohibits a member of a legislative house from accepting or agreeing to accept bribe, fee, compensation, reward or benefit for engaging in any aspect of the legislative process. also, section 14(2) of the lhpp act prohibits a member of a legislative house from committing contempt of legislative house. as earlier mentioned, order 103 of the sso 2015 allows the senate, in exercising the powers conferred on the national assembly by sections 88 and 89 of the constitution, to direct or cause to be directed an investigation into any matter. chapter xiv of the sso 2015 which applies to all committees of the senate, including the committee on eccpp, provides that the quorum for taking testimony and receiving evidence during investigation by a committee shall not be less than two (note 118). the order calls for interrogation of witness by the minority party members on the committee upon request to the chairman of the committee before completion of hearing (note 119). it is mandatory at an investigative hearing for the chairman to announce in the opening statement the subject of the investigation (note 120). witnesses may be accompanied by their lawyers for the purpose of guiding them on their constitutional rights (note 121). when evidence at an investigatory hearing tend to defame, degrade or incriminate any persons, it may be presented in executive session, if by the committee’s rule the quorum taking testimony and receiving evidence is met and majority of those present determines that such evidence or testimony may tend to defame, degrade or incriminate any person (note 122). if the quorum requirement is met and the majority of those present determines that such evidence or testimony will not tend to defame, degrade or incriminate any person, the committee will proceed to receive such testimony or evidence in open session (note 123). evidence and testimony taken in executive session may not be released or used in public session without the consent of the committee (note 124). the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 54 published by scholink inc. approval of the committee is also required for any witness to get transcript copies of the testimonies he gave in executive session (note 125). witnesses may, subject to the discretion of the committee, submit brief and pertinent sworn statement in writing for inclusion in the committee’s record. the pertinence of testimony and evidence is determined solely by the committee (note 126). 6. constitutional basis for enforcement of investigation powers of senate committee on eccpp to ensure the effectiveness of the investigation power of the senate, section 89(1)(a) of the constitution vests certain quasi-judicial powers in the senate or its committee appointed in accordance with section 62 of the constitution and, in this case, the committee on eccpp. the committee on eccpp can procure evidence, written or oral, direct or circumstantial, as it may think necessary or desirable. it may examine all persons as witnesses whose evidence may be material or relevant to the subject under investigation. such evidence may be required to be taken on oath (note 127). the committee on eccpp has the power to summon any person in nigeria to give evidence at any place or to produce any document or other thing in his possession or under his control, subject to all just exceptions (note 128). section 89(1)(d) of the constitution takes into consideration persons who may fail, refuse or neglect to attend to properly served summons by the committee on eccpp without giving excuse to the satisfaction of the committee. this subsection mandates the committee on eccpp to issue a warrant to compel the attendance of such a person. a summons or warrant issued by the committee on eccpp may be served or executed by a member of the nigeria police force or any other person authorised by the president of the senate (note 129). the constitution, therefore, makes a clear distinction between the power to summon or issue a warrant by the senate or any of its committee, including the committee on eccpp, and the power to authorise service or execution of the summon or warrant, which is vested only on the senate president (note 130). section 4(1) of the lhpp act 2017 is in consonance with section 89(1)(d) of the constitution as it vests similar power in the president of senate, upon being satisfied that the summon was duly served (note 131). section 4(2) of the lhpp act 2017 gives the president of senate the discretion of endorsing on the warrant that the person named on the warrant be released on entering into recognisance before the issuing authority (note 132). this implies that where no such endorsement is made, the person has to be kept in the custody of the nigerian police force or any person authorised by the senate president to make the arrest, until the reasons for the summons are met. section 18(1) of the interpretation act defines a “person” to include any body of persons corporate and incorporate. however, it is necessary that where any person, other than a police officer, is authorised by the president of senate to serve or execute a warrant of arrest, the person must have facility to custody the arrested person who may not be able to meet conditions for entering into recognisance before the issuing authority. the same applies where the senate president did not endorse on the warrant that the person named on the warrant be released on entering into recognisance before the issuing authority. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 55 published by scholink inc. the committee on eccpp is also vested with the power to order such a person to pay all costs which may have been occasioned in compelling his attendance or by reason of his failure, refusal or neglect to obey the summons. in addition, the committee shall impose such fine as may be prescribed against the person and any fine so imposed shall be recoverable in the same manner as a fine imposed by a court of law (note 133). abba aji, jca, in abdullahi v kano state (note 134) defined fine as a payment of money ordered by a court from a person who has been found guilty of violating a law. it may be specified as the punishment for an offender; usually a minor offence, but could be specified and used as an option to imprisonment for major crimes or a complement to other punishment specified for such crimes (note 135). the provision of section 89(1)(d) of the constitution, particularly its last part which read thus “any fine so imposed shall be recoverable in the same manner as a fine imposed by a court of law” settles the contention that fine must not always be ordered or imposed by a court. this constitutional provision is like an exception to the decision of the court of appeal in nosdra v exxonmobil (note 136). here adah, jca, held that awarding a fine is a judicial act and it is the sole prerogative of the court under section 6 of the constitution (note 137). it provides one instance that a body other than a court, in this case the committee on eccpp, can order fine. however, the committee on eccpp can only impose fine if it is prescribed. cambridge dictionary defines the verb “prescribe” as “to make a rule of something or to give as a rule” while the black’s law dictionary (note 138) defines the same word as “to establish authoritatively as a rule or guideline”. in kwara state inec & ors v pdp (note 139), onnoghen, jca, (as he then was) reiterated the meaning of prescribed as entrenched in section 318(1) of the constitution thus “prescribed means prescribed by or under this constitution or any other law” (note 140). it is not in doubt that the word “may” used in section 89(1)(d) of the constitution would ordinarily connote permissive and so the authority which has the power to do an act has an option either to do it or not to do it (note 141). however, the word “may” may acquire a mandatory meaning from the context or circumstances in which it is used. for instance, where, as in the instant case, the word “may” is used to impose a duty upon a public functionary or the committee on eccpp to be carried out in a particular form or way for the benefit of a private citizen, then it would be interpreted as mandatory (note 142). section 89(1)(d) of the constitution allows the committee on eccpp to fine any person who fails, refuses or neglects to obey its summon, but imposes a duty on the senate or its committee on eccpp to prescribe such fine. since section 89(1)(d) only gives the senate or its committee on eccpp the power to impose fine without prescribing the specific fines, adherence to the interpretation of the word “prescribed” in section 318(1) of the constitution will require prescribing such fines in any other law. this perspective is in consonance with section 36(12) of the constitution which provides to the effect that no person shall be convicted of a criminal offence that is not defined and the penalty prescribed in a written law (note 143). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 56 published by scholink inc. within the context of section 36(12) of the constitution, a written law refers to an act of the national assembly, a law of a state, any subsidiary legislation or instrument under the provisions of a law. under section 89(1)(d) of the constitution, the offence of failure, refusal and neglect to obey the committee on eccpp’s summon is defined by the specific use of the words “failure, refusal and neglect”. the specific sum the committee on eccpp should fine any person who fails, refuses or neglects to obey its summons is not stated. the inchoate nature of the punishment of fine under section 89(1)(d) of the constitution is the same reason why the section imposed a duty on the senate or its committee on eccpp that fine must be prescribed and by virtue of section 36(12) of the constitution prescribing the specific fine can only be done in a written law. certainly, the sso 2015 does not clearly prescribe any fine for payment by any person who fails, refuses or neglects to obey summons issued by the senate or its committees, including the committee on eccpp. there is no doubt that section 14(3) of the lhpp act 2017 provides that “where a person who commits a contempt of legislative house, under subsection 12 of this act is liable on conviction to a fine of n500,000.00 or imprisonment for a term of two years or both”. unfortunately, reading this provision with subsections 1 and 2 of section 14 of the lhpp act 2017, which respectively deals with contempt of legislative house by any other person and a member of the legislative house reveals that the offence of failing, refusing or neglecting to obey the summons of the senate or its committees, including the committee on eccpp is not covered. as the law stands today, there is no prescribed fine against any person who fails, refuses or neglects to obey or attend to the summons of the senate or any of its committees. 7. how does the committee on eccpp fare? going by the testimony of hon. senator ayo akinyelure, fca, the chairman of the committee on eccpp in his brief remarks during the 2019 retreat on ethics, privileges and public petitions organised for members of his committee, the committee received a total of 644 petition[s], out of which the committee resolved 152 with about 300 other[s] still undergoing processing when the life of the last senate ended. this is unprecedented. it has never happened that way since the nigeria[n] senate began to set up committee on ethics. that was a great feat for one committee to lay 152 reports which were all considered in a tenure (note 144). one would have largely agreed with this testimony and commended the senate for this “great feat” if the only mandate of the committee on eccpp was to attend to public petitions. as earlier indicated, however, its mandate is three-fold. attending to public petitions is the first. it cannot, therefore, be judged based on its performance in only one aspect. besides, that there were as many as 644 petitions against the members of the senate in one tenure does not appear to be a favourable indication of the senate’s good standing in the eyes of the public. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 57 published by scholink inc. the second mandate of the committee on eccpp is to recommend “to the senate from time to time on such administrative action as it may deem appropriate to establish and enforce standards of official conduct for the senators”. this mandate is futuristic in nature. the committee on eccpp is required to make such recommendation from time to time as it deems appropriate. this provision evidences the fact that the senate lacks an established serious standard of official conduct. the senate rules contain no prescriptions of specific standards of conduct mandated or acts prohibited by the rules. they merely refer to the standards of conduct of members and the code of conduct without specifying what constitutes those standards. how has the committee on eccpp, over the years, helped the senate through such recommendations to establish necessary standards? there is no available evidence to indicate that the committee on eccpp has made any such recommendation or that the entire senate, has, over the many years of its existence, taken this responsibility to heart as there has been no improvement in the standards of official conduct of the senate since the inception of the present democratic era in 1999. the third mandate of the committee is to oversee and monitor the activities of the code of conduct bureau. the senate seems more interested in carrying out this mandate than in shoring up the standard of conduct of its members. indeed, in october 2016, the nass hurriedly amended the code of conduct bureau and tribunal act in controversial circumstances, bringing the bureau under the control of the nass and whittling down the powers of the bureau and tribunal (note 145). this move has been widely criticised as unconstitutional and an attempt to witch hunt the bureau due to the then ongoing trial of the immediate past senate president, olubukola saraki, at the tribunal (note 146). 8. constitutional limitations to the investigative powers of the committee of the eccpp 8.1 constitutional provisions by virtue of section 88(1) of the constitution, the investigative powers of the senate and any of its committee, including the committee on eccpp, is limited to the law making powers of the senate and has no application where the issues involved bear no relevance to law making (note 148). an attempt to exercise legislative investigative power contrary to the constitutional provisions will be declared void by the court. in tony momoh v the senate & ors (note 147) the court held to the effect that section 82(2) of the 1979 nigerian constitution did not grant to the senate the power of general investigation, nor can the investigative power of the senate be used for aggrandisement of the house. interestingly, the court of appeal also held in chevron (nig) ltd v imo state house of assembly & ors (note 149) that “each legislative body, in common with all branches of government, is obliged under the constitution to exercise its legislative powers, including its investigative powers in aid of legislation, subject to the limitations placed by the constitution on government action” (note 150). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 58 published by scholink inc. 8.2 exemption of certain political offices from full investigation power of the committee of eccpp the full enforcement power of the committee on eccpp is limited by section 308 of the constitution which prohibits the senate president or the committee from issuing warrant of arrest against persons occupying the offices of the president of the federation, vice president, governor and deputy governor. all the committee can do is to issue summons to the persons occupying these offices. if they fail, refuse or neglect to obey or attend to the summons, neither the committee on eccpp nor the senate president can take the course of issuing warrant of arrest nor authorise service or execution of such warrant. 8.3 fundamental human rights fundamental human rights are enshrined in chapter iv of the constitution. in chevron (nig) ltd v imo state house of assembly & ors (note 151), the court of appeal held that “accordingly, any legislative investigation carried out in exercise of those powers is subject to the constitutional requirements of chapter iv of the constitution which guarantees to every person fundamental rights to life, to dignity of the human person …” (note 152). the fundamental human rights that are most likely to act as limitation on legislative investigative power of the committee on eccpp are: 8.3.1 right to fair hearing provided for in section 36(1) of the constitution, stating that in the determination of his civil rights and obligations, including any question of determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality. the principle or doctrine of fair hearing in its statutory and constitutional sense is derived from the principles of natural justice and the twin pillars of fair hearing right—audi alterem partem and nemo judex in causa sua. the two simply mean that no person shall be a judge in his own cause and that both sides to a dispute should enjoy equal opportunity to present their case. fair hearing encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of justice – audi alteram partem and nemo judex in causa sua – as well as in the broad sense of what is not only right and fair to all concerned, but also seems to be so. very recently, in melrose general services ltd v efcc & ors (note 153) the court of appeal held that it is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void (note 154). 8.3.2 right against self-incrimination of course, the rule against self-incrimination, which is still an aspect of human rights, if violated, will render the committee’s proceedings void. in state v masiga (note 155), eko, jsc, held that the right to fair trial guaranteed by section 36 of the constitution includes the right of the accused to be presumed innocent until proved guilty and because he enjoys a right against self-incrimination, the accused cannot, even at the trial, be compelled to give evidence at his own trial (note 156). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 59 published by scholink inc. 8.3.3 right to be represented by a counsel of one’s choice the right of a witness appearing before a committee to be represented by a counsel of his choice as enshrined in section 36(6)(c) of the constitution is another reason the recommendations of the committee on eccpp can be rendered void. the sso 2015 in chapter xiv 3(b) has specifically addressed this point by providing that “witnesses at investigative hearing may be accompanied by their own counsel for the purpose of guiding them concerning their constitutional rights”. in adigwe v frn (note 157), muhammad, jsc, held that section 36(6)(c) entitles the appellant to select a counsel of his choice to “defend” him or conduct his case for and on his behalf. 8.3.4 freedom of expression the last fundamental right which limits the legislative investigative power of the senate and all its committees is the right to freedom of expression enshrined in section 39(1) of the constitution. the cases of innocent adikwu & ors. v federal house of representatives and ors (note 158), and tony momoh v the senate & ors (note 159) already cited in this article are good examples of how the courts have upheld this right. 8.3.5 where investigation has criminal element section 36(4) of the constitution provides that if any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal. certainly, the investigation power of the committee on eccpp is limited to generally the gathering of evidence to enable it make law or expose corruption, inefficiency in the disbursement or administration of funds appropriated by it. importantly too, its power to impose prescribed fine is specifically limited to where a person fails, refuses or neglects to obey its summons without any justification. none of these powers confers prosecutorial or wide enforcement powers on the senate or its committee on eccpp. such powers fall within the realm of the executive and the judiciary (note 160). there is no doubt that most of the matters the committee on eccpp investigates may have criminal elements. arguably, section 36(4) of the constitution does not limit the investigation power of the committee so long as the committee carefully limits itself, within the context of section 88(1)(a) and (b) and (2)(a) and (b) of the 1999 constitution, to fact findings and transfers any crime related facts findings and relevant evidence to the attorney general of the federation to prosecute the person(s) involved. otherwise, the court will declare any act of encroachment by it into the turf of other arms of government as unconstitutional and, therefore, void. 8.3.6 failure of lhpp act 2017 to prescribe fine for the offence of failure, refusal or neglect to obey summons section 89(1)(d) of the constitution permits the senate or any of its committees, including the committee on eccpp, to fine any person who fails, refuses or neglects to obey summons issued against the person in the course of performing its investigation function. by virtue of the same constitutional provision, this power can only be exercised if the fine is prescribed in a written law. unfortunately, the lhpp act 2017 does not prescribe the fine. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 60 published by scholink inc. 9. strategy for enhancing effectiveness of the committee on eccpp’s constitutional role as has been seen in the foregoing parts of this article, some of the factors that militate against the effectiveness of the committee on eccpp are the proliferation of committees with overlapping oversight jurisdiction, resulting in counter and conflicting position on issues, rent seeking on the part of the eccpp committee members and the senate, generally, absence of prescribed fine for failure, refusal or neglect on the part of any witness to honour the committee’s summons, among others. in view of this, the following strategies will enhance the effectiveness of the investigative powers of the senate committee on eccpp: 9.1 streamlining of senate committees one of the militating factors against compliance with the summons of the committee on eccpp is the self-seeking and grabbing tendencies of many senators resulting in proliferation of senate committees and overlapping oversight jurisdictions among some of them (note 161). the senate should, therefore, streamline its committees that have overlapping jurisdictions so as to avoid conflicting activities and decisions that result in undue summoning of witnesses before the committees, including the eccpp committee. this way, the irritation caused by what may be considered as unnecessary distractions by the witnesses will be minimised and they will be more amenable to honouring the committee’s summons. 9.2 amendment of the lhpp act the lhpp act of 2017 should be amended to prescribe fine for failure, refusal or neglect by witnesses to respond to the summons of senate committees, including the committee on eccpp, in line with the provision of section 89(1)(d) of the 1999 constitution. the absence of such penalty has so far constrained the committee’s ability to sanction erring witnesses and contributed in festering the rate of non-compliance with the committee on eccpp’s summons. impunity naturally thrives when there is no sanction for infraction. 9.3 avoidance of rent seeking tendencies by committee members part of the reason for the failure, refusal or neglect by chief executive officers of ministries and agencies of government being oversighted to honour the summons from senate committees is the rent seeking tendency in form of contracts and other pecuniary benefits by committee members from these officers or their representatives (note 162). committee members of the eccpp should, therefore eschew such tendencies and strive to conduct the business of the committee in a manner that preserves the integrity of the legislature and avoids conflicts of interest or even appearances of conflicts of interest. one way to achieve this is for the committee to take seriously its second mandate to recommend “to the senate from time to time on such administrative action as it may deem appropriate to establish and enforce standards of official conduct for the senators” (note 163). clearly, this provision shows that the senate lacks an established serious standard of official conduct. besides, there are no prescribed standards of conduct or prohibited acts for senators in the senate rules. such standards will serve as guidelines for fostering an environment that encourages proper behaviour by the senators. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 61 published by scholink inc. 9.4 avoidance of breach of constitutional limitations and rights of witnesses the committee on eccpp should endeavour to confine its activities within the constitutional limitations placed on its power. its investigations should be limited to activities of government over which the national assembly has made laws. other constitutional limitations relating to the human rights of witnesses summoned by the committee must equally be observed. this will minimise the allegations of overbearing tendencies against committee members and improve the level of compliance with their summons. 9.5 freedom from political party allegiance the committee on eccpp should endeavour to eschew undue political party allegiance by asserting its independence and carrying out its investigative responsibilities in a transparent and objective manner. 10. conclusion and recommendations it is not in doubt that a plethora of scholarly and non-academic works done on legislative investigation and oversight have identified legal, socio-economic and technology factors as the limitations or challenges that hinder effective exercise of investigation power of the senate and its committees, including the committee on eccpp. one issue that has been ignored in existing literature on legislative investigation is how the sanction regime in the lhpp act influences the compliance behaviour of the relevant stakeholders. although other laws like the corrupt practices and other related offences act and the criminal code/penal code may be relied on to ensure compliance with some of the legislative investigation provisions in the 1999 constitution, the sso 2015 as amended and the lhpp act, strategies that should be adopted should include amendment of the relevant sanction provisions in the lhpp act. it is imperative that specific fines are prescribed in the act against any person who fails, refuses or neglects to obey summons issued by the senate or its committees, including the committee on eccpp. what is more, applying the strategies discussed in the penultimate part of this article will enhance the effectiveness of the committee on eccpp in achieving its constitutional role. lastly, independence of the committee from the influence of major political parties is necessary to free its decisions from being guided by party political allegiance. objective assessment in the best interest of the country is key to its effectiveness. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 62 published by scholink inc. references a committee system. 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(n.d.). constitutionalism, human rights and the judiciary in nigeria. a doctoral thesis at the university of south africa. retrieved may 22, 2021, from http://uir.unisa.ac.za/bitstream/handle/10500/3561/thesisozoukwui.pdf?sequence=1 waluchow, w. (2001). constitutionalism’, the stanford encyclopedia of philosophy (n. z. edward, ed.). retrieved august 23, 2021, from http://plato.stanford.edu/archives/win2012/entries/constitutionalism/ notes note 1. cap c23 laws of the federation of nigeria 2010. hereinafter referred to as 1999 constitution or the constitution. note 2. see ibid, s 2(2) which states that “nigeria shall be a federation consisting of states and the federal capital territory, abuja”; ag federation v ag lagos state (2013) lpelr—20974(sc) per muhammad jsc [a-f] 96-103; bo nwabueze, federalism in nigeria under the presidential constitution, (sweet & maxwell 1983) 39; bo nwabueze, presidential constitution of nigeria (c hurst & company) 37. note 3. 1999 constitution, s 5. note 4. 1999 constitution, s 4(1); j nnamdi aduba & sam oguche, key issues in nigerian constitutional law (nials 2014) 275-276; jacqueline r kanovitz, constitutional law (13th ed., anderson, 2012); da guobadia, “the legislature and good governance under the 1999 constitution” in: ia ayua, da guobadia and ao adekunle, eds. nigeria: issues in the 1999 constitution (nigerian institute of advanced legal studies 2000) 45. the concept of separation of powers was first expounded by john locke, an english political thinker in 1690, and fully proposed and popularised by a french jurist, monsieur montesquieu. see governor, ekiti state & ors v olayemi (2014) lpelr-23477(ca) per lokulo sodipe jca [e-c] 43-53; ben igwenyi, modern constitutional law in nigeria (nwamazi printing & publication co ltd) 50-51. this principle has been recognised in a plethora of cases by all courts in nigeria, including the supreme court. see oni & anor v fayemi & ors (2013) lpelr-20671 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 65 published by scholink inc. (sc) per ngwuta jsc [a-c] 31; ugba & anor v suswam & ors (2014) lpelr-22882 (sc) per rhodes vivour jsc [d-f] 79. note 5. 1999 constitution, s 6. note 6. chevron (nig) ltd v imo state house of assembly & ors (2016) lpelr-41563(ca) per agube jca [d-e] 71. note 7. da guobadia (n 4) 45. note 8. with regard to exercising similar power by a state house of assembly see section 128 of the 1999 constitution. note 9. constitution 1999, s. 62(1). note 10. hereafter referred to as the committee on eccpp. incidentally, the senate standing orders 2015, as amended (sso 2015) while listing the committee as one of the special committees under order xiii, rule 96(iv) as well as on the marginal note and text of rule 97(4), titled it as “committee on ethics, code of conduct and public petitions” instead of the “committee on ethics, privileges and public petitions” used in the table of content of the sso 2015. the inconsistency in the name of the committee is further evidenced by reference to it as the committee on ethics and privilege (order 15) as well as the committee on ethics and public petition (order 102 rule 2(f)(iii)(b)). for consistency, this article has chosen the committee on eccpp as the name of the committee. note 11. ismail mudashir and others, probes: real reasons heads of mdas, firms shun n/assembly summons, daily trust, saturday april 10, 2021 <https://dailytrust.com/probes-real-reasons-heads-of-mdas-firms-shun-n-assembly-summons>accessed 12 september 2021. note 12. ibid. note 13. for instance, in 2018, the inspector-general of police (igp), idris ibrahim, refused to respond to the invitation of the senate. in april 2020, managing directors of oil companies shunned invitations by the senate committee on local contents, instead sent only their representatives. similarly, members of the executive arm of government have refused to honour invitations from the house of representatives or its committees. for example, in 2020, president muhammadu buhari shunned invitation by the house of representatives. interestingly, ismail mudashir and others have catalogued numerous other instances of invitation of the committees of senate and house of representatives that were not honoured. see generally ismail mudashir and others, ibid. note 14. hereinafter referred to as lhpp act 2017. note 15. ismail mudashir and others (n 11). note 16. hereinafter refer to as sso 2015. note 17. b de montesquieu, the spirit of the laws vol. 1, thomas nugent trans. (j nourse 1777). note 18. ibid 1632-1704. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 66 published by scholink inc. note 19. the 1999 constitution vests legislative powers in the national assembly and houses of assembly of the states (s 4). the executive powers of the federation is vested in the president and extends to the execution and maintenance of the constitution, all laws made by the national assembly, and matters in respect of which the national assembly has the powers to make laws (s 5). the judicial powers of the federation are vested in the courts established under the constitution (s 6). note 20. j madison, the federalist 48 <http://www.scribd.com/doc/36715824/how-to-read-federalist-papers-book> accessed 5 october 2021. note 21. (1982) 2 nclr 846. note 22. ibid 847-848. note 23. ibid 848. note 24. l i uzoukwu, “constitutionalism, human rights and the judiciary in nigeria”, a doctoral thesis at the university of south africa <http://uir.unisa.ac.za/bitstream/handle/10500/3561/thesisozoukwui.pdf?sequence=1> accessed 22 may 2021. cf w waluchow “constitutionalism”, the stanford encyclopedia of philosophy, (winter 2012 edition) edward n. zalta (ed) available at <http://plato.stanford.edu/archives/win2012/entries/constitutionalism/>, accessed 22 may 2021. (arguing that although in modern times, madbury v madison settled the issue of necessity of an independent judiciary interpreting and enforcing the constitutional limits on a legislative body like parliament/the duma/congress or executive body like the president or his/her cabinet and most nations follow madbury and montesquieu in accepting the practical necessity of such arrangement, it is uncertain that is a sine qua non of the doctrine of separation of powers. there are constitutional arrangements such as that in new zealand where the courts are forbidden from striking down legislation on the ground that it exceeds constitutional limits. observance and enforcement of these limits are left to legislative bodies whose powers are nonetheless recognized as constitutionally limited (and subject to whatever pressures might be imposed politically when state actions are generally believed to violate the constitution). also, that constitutional limits can sometimes be avoided or interpreted so as to avoid their effects, and no recourse be available to correct mistaken interpretations and abuses of power, does not, then, imply the absence of constitutional limitation. but does it imply the absence of effective limitation? perhaps so, but, even here, there is reason to be cautious in drawing general conclusions. once again, we should remember the long-standing traditions within british parliamentary systems (including new zealand’s) according to which parliament alone possesses final authority to create, interpret and implement its own constitutional limits. and whatever its faults, there is little doubt that parliaments modelled on the british system typically act responsibly in observing their own constitutional limits. note 25. his highness lamide olayiwola adeyemi (alaafin of oyo) v ag oyo state (1984) lpelr-196(sc) per uwais jsc (as he then was); b o nwabueze (n 1) 32-33. note 26. ag bendel state v ag federation & ors (1983) 6 sc 32, 51, 95, 117 and 147. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 67 published by scholink inc. note 27. b o nwabueze (n 2) 32-33. note 28. ibid 156. note 29. d a guobadia (n 4) 45. note 30. ibid. note 31. 1999 constitution, s 58(4). note 32. abubakar jimoh, “the 8th national assembly from a critical assessment” <https://cislacnigeria.net/the-8th-national-assembly-from-a-critical-assessment/> accessed 22 june 2021. note 33. unongu v aku (1983) lpelr—3422(sc) per uwais jsc where the supreme court declared as unconstitutional, null and void sections 129(3) and 140(2) in the then applicable electoral act which stipulate the time frame within which hearing of election petition was to be concluded by election petition tribunals. this is because the provisions in question were found to have infringed on section 258 of the 1979 constitution. note 34. saraki v federal republic of nigeria (2016) lpelr-40013 (sc) per ngwuta jsc [d-c] 130-132; see attorney-general of bendel state v attorney-general of the federation (1981) lpelr-605 (sc) per obaseki jsc [d-e] 123. note 35. lokulo-sodipe, jca, in governor, ekiti state & ors v olayemi lpelr-23477(ca) illustrated an instance of this by referring to the imposition of time frame within which election petitions and appeals arising therefrom has, however, now been achieved by the amendment introduced into the amended 1999 constitution. [e-c] 43-53 see, generally, s 9 of the 1999 constitution (second alteration) act, act no 2 which substituted section 29 of the 1999 constitution (first alteration) act, act no 1 and section 258 of the 1999 constitution. see also section 141 of the electoral (amendment) act (no. 2) 2011 and section 285(13) of the 1999 constitution which was introduced by the 1999 constitution (fourth alteration. no 21) act 2017. these provisions emphasised the effect of non-participation in an election which was the crux of the supreme court of nigeria’s judgment in amaechi v inec (2008) 5 nwlr (pt 1080) 227. see, generally, musdapher d, the nigerian judiciary: towards reform of bastion of constitutional democracy, (nigerian institute of advanced legal studies 2011); jacqueline r. kanovitz (n 4) 9. note 36. jacqueline r. kanovitz (n 4) 9. note 37. see generally n. 27 above. see also adigun v ag oyo state (no. 2) (1987) lpelr-40648 (sc) per eso jsc [c] 28; obioha v ibero (1994) lpelr-2180 (sc) per belgore jsc [c-d] 9. note 38. military government of lagos state v ojukwu (1986)1 nwlr (pt.18) 621, 633, per kayode eso, jsc; also kadiya v. lar (1983) 2 scnlr 268. note 39. kola abayomi “a critical analysis of the legislative process in nigeria” <http://nigerdeltacongress.com/articles/a_critical_analysis_of_the_legis.htm> accessed 21 july 2021 (observing that “the executive and legislature are, by nature, loud and aggressive. they enjoy the limelight. it is natural because they came in through loudness, sometimes empty but sometimes www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 68 published by scholink inc. logistical, articulate and well-reasoned. the judiciary by their training shun public ovation, rarely seen but often heard through powerful and innovating judgments. even when they are changing accepted norms through judicial legislating, they do this unobtrusively. their manner is as sober as their conservative mode of dressing, but they are powerful…”. note 40. j k johnson and r t nakamura, “a concept paper on legislatures and good governance” <http://www.pogar.org/publications/other/undp/legis/conceptpaper.pdf> accessed 6 june 2021, gives an overview of different models of legislatures with their various characteristics. these include the highly complex transformative legislature epitomised by the united states congress; the complex arena legislatures epitomised by the british parliament; the evolving emerging legislatures such as the colombian congress; and the little internal structure legislatures such as the old ussr. note 41. jibrin ibrahim, “saving the legislature from reputational erosion”, daily trust (monday, 18 june 2012) deepening democracy column. note 42. y y dadem, “issues in strategic planning and management for the legislature in nigeria” (keynote address, intensive training course on legislative strategic planning and management, nigerian institute of advanced legal studies, may 2013) 5. note 43. ademola adegbamigbe, “jitters in the house”, the news (2 august 1999). lewis attributes this state of affairs to the fact that obasanjo was a familiar figure in nigeria, and his imperious style provoked reactions among many legislators. ethnic rivalries also contributed, since obasanjo personified a negotiated power shift to the southwest of the country though many politicians from the north and east resented his role. at a point there was concerted attempt by the legislature to impeach him but for the intervention of two former heads of state, yakubu gowon and shehu shagari and obasanjo’s open apology to the legislators for his haughty and imprudent behaviour and a promise of a more consultative and transparent approach to governing, pm lewis, “rules and rents: legislative politics in nigeria” annual meeting of the american political science association, washington, 3 september 2010, 12-13. note 44. ibid 14. note 45. ibid 16. note 46. ibid. note 47. soni daniel and kingsley omonobi, “pension fund scam: embattled maina flees nigeria” vanguard online, february 18, 2013, <http://www.vanguardngr.com/2013/02/pension-fund-scam-embattled-maina-flees-nigeria/> accessed 14 october 2021, soni daniel, “nigeria: pension fraud row—why nass can’t win battle against maina” <https://allafrica.com/stories/201302110301.html> accessed 14 october 2021, note 48. edward t dibiana, “national assembly and challenge of morality” <https://www.thecable.ng/national-assembly-challenge-morality> accessed 23 may 2021. in fact the relationship between the executive and legislature during this period has been described as “hostile”, abubakar jimoh, “the 8th national assembly from a critical assessment” <https://cislacnigeria.net/the-8th-national-assembly-from-a-critical-assessment/> accessed 23 may 2021. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 69 published by scholink inc. (noting further that “there was lack of cordiality in the relationship between the executive and legislature, under the 8th national assembly…the relationship between the two arms was marred by conflict of interest, low capacity of some members to constructively engage in legislative work, poor communication strategy, executive blackmail and intimidation”). note 49. house of reps, definition, history and facts <https://www.britannica.com/topic/house-of-representatives-unites-states-government#ref102407> accessed 28 may 2021. note 50. rudy andeweg “ministers as double agents? the delegation process between cabinet and ministers”, (2000) 37(3) european journal of political research, 377-395. note 51. shane martin and sam depauw, parliamentary committees and multi_party government, paper presentation at the european consortium for political research joint sessions, lisbon, 14-19 april 2009. workshop no. 26: “institutional design of parliamentary rules and party politics” <https://ecpr.eu> accessed 28 may 2021. note 52. “a committee system” <https://www.lawteacher.net/free-law-essays/public-law/a-committee-system-law-essays.php> accessed 22 may 2021. note 53. nereru i nwosu, legislature and foreign policy: “nigeria’s experience under the first and second republics” (1994) 24 journal of eastern african research and development, 88, note 54. this section also gives the same of appointment of committees to the house of representatives. note 55. 1999 constitution, s. 62(3). note 56. sso 2015, chapter xiii. the house of representatives has 7 special and 90 standing committees. see order eighteen of the standing orders of the house of representatives, 9th edition, 2016. the constitution does not specifically define the word “committee”. section 25 of the lhpp act 2017 defines “committee” as the committee set up by the leadership of a legislative house. this definition has a broad scope that incorporates committees appointed for special or general purpose under section 62(1) of the constitution and the joint committee on finance or any other joint committee appointed by the senate and the house of representatives by virtue of section 62(3) of the constitution. note 57. sso 2015, order 97 rule (1)(d); standing orders of the house of representatives 2016, order eighteen rule 9. note 58. on the other hand, the standing orders of the house of representatives 2016 does not limit the committee on selection from appointing members to several committees. see generally see order eighteen of the standing orders of the house of representatives, 9th edition, 2016. note 59. chevron (nig) ltd v imo state house of assembly & ors (2016) lpelr-41563(ca) per agube jca [d-e] 71. note 60. ibid. note 61. pm lewis (n 43) 18. note 62. 1999 constitution, s 62(2). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 70 published by scholink inc. note 63. 1999 constitution, s 60. note 64. members seek committee assignments to boost their influence or access to resources. it needs be recalled that an assessment of the system conducted under the then speaker of the house of representatives, dimeji bankole, made him dissolve all except three of the house committees with a view to rationalising the system, but, as is typical of the nigerian legislature, the exercise ended three months later with the creation of additional 12 committees. john ameh, “bankole sacks 69 committee chairmen, deputies”, punch newspaper (1 august 2008) cited in pm lewis (n 43) 19. note 65. news agency of nigeria, “senate to release new strategies on corruption fight” <https://pulse.ng/news/local/senate-to-release--new-strategies-on-corruption-fight/66wtm78> accessed 21 june 2021. note 66. 354 us 178 (1957) <http://caselaw.findlaw.com/us-supreme-court/354/178.html> accessed 6 august 2021. note 67. ibid 187. note 68. part 1 of the second schedule to the 1999 constitution. note 69. part ii of the second schedule to the constitution 1999. note 70. see ag federation v ag lagos state (2013) 16 nwlr (pt 1380) 249, 327-328 per muhammad jsc; inec v balarade musa & 4 ors (2003) 3 nwlr (pt 806) 72, 204 per niki tobi jsc; ag ogun state v ag federation (1982) lpelr-11 per idigbe jsc (sc) [e-a] 75-76edosaca v osakue & 7 ors (2018) lpelr-44157(ca) per adumein jca [d-b] 52-70; the austria case of ex parte mclean (1930) 43 clr 472 at 483; us cases of priggs v pennsylvania 16 pet (1842) 617-618; houston v moore 5 wheat 1 (1820). note 71. chevron (nig) ltd v imo state house of assembly & ors (2016) lpelr-41563 (ca) per agube jca [f-a] 83-86; innocent adikwu v federal house of representatives (1982) 3 nclr 394, 407. note 72. 1999 constitution, s. 88(1)(b)(i) and (ii). note 73. for example, section 12(1) of the urban and regional planning act 1992 provides that subject to subsection (2) of this section, the duty assigned to the commission, the board or the authority by sections 7, 9 and 11 of this act may in each case be delegated to a person registered under the relevant profession as the commission, board or the authority may deem fit in each circumstance. note 74. attorney-general of bendel state v attorney-general of the federation (1981) lpelr-605 (sc) per obaseki jsc [e-f] 123. note 75. ibid [b-c] 124. note 76. j. nnamdi aduba & sam oguche (n 4) 288. note 77. see section 308(2) 1999 constitution. note 78. offornze amucheazi “the role of national assembly in the consolidation of democracy in nigeria” in: epiphany azinge (ed) century of constitutional evolution 1914-2014 (nigerian institute of advanced legal studies 2014), 1055, 1065. note 79. (2016) lpelr-41563 ca. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 71 published by scholink inc. note 80. ibid per agube jca [f-a] 83-86; innocent adikwu v federal house of representative (1982) nclr 394, 407. note 81. 1999 constitution, s. 62(1). see also sso 2015, order 103. note 82. 1999 constitution, s. 62(4). note 83. (1981) lpelr-605 (sc). note 84. ibid per obaseki jsc [f-g] 123. note 85. 1999 constitution, s 62(4) and sso 2015, order 104. note 86. ibid per agube jca [e-f] 71. note 87. sso 2015, order 96(iv). note 88. sso 2015, order 14(a). note 89. bryan a. garner (ed), black’s law dictionary (10th ed., thomson reuter 2014) 670. according to geoffrey, as used here, ethics refers to imperatives regarding the welfare of others that are recognised as binding upon a person’s conduct in some more immediate and binding sense than law and in some more general and impersonal sense than morals. geoffrey hazard jr, ethics in the practice of law 1-2 (1978). ibid. note 90. national democratic institute for international affairs, “legislative ethics: a comparative analysis” legislative research series 4, 2 <ww w.ndi.org/files/026_ww_legethics.pdf> accessed 12 july 2021 (“legislative research series”). note 91. w shittu, “legislative ethics and law reform” in e azinge and n udombana (eds.), drafting legislation in nigeria: constitutional imperatives (nigerian institute of advanced legal studies 2012) 379. note 92. garner (n 89) 1329. note 9 3. ibid 1422. note 94. attorney-general of bendel state v attorney-general of the federation (1981) 10 s.c. (reprint) 1, 90. note 95. the act of smoking or drinking on the floor of the senate chambers is further prohibited under chapter three dealing with privileges. see sso 2015, order 17 rule 3. note 96. paragraph 4(1) of the code of conduct for public officers states that a public officer shall not, after his retirement from public service and while receiving pension from public funds, accept more than one remunerative position as chairman, director or employee of (a) a company owned or controlled by the government; or (b) any public authority. subparagraph (2) states further that a retired public servant shall not receive any other remuneration from public funds in addition to his pension and the emolument of such remunerative position. note 97. part i, fifth schedule 1999 constitution, para 1. note 98. ibid para 3. note 99. ibid para 6(2). note 100. ibid para 8. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 72 published by scholink inc. note 101. ibid paras 9 and 10. note 102. ibid para 11; ss 10-13 code of conduct bureau and tribunal act, cap c15 lfn 2010. the aborted draft constitutions of 1989 and 1995, respectively, extended the prohibited conducts by including acts such as public officers living above their legitimate income and certain property transactions. these were referred to as “illicit enrichment”. such acts of illicit enrichment were, however, omitted in the 1999 constitution. this is despite popular conviction that most retired and serving public officers in nigeria are guilty of “illicit enrichment”, o oyewo, “constitutions, good governance and corruption: challenges and prospects for nigeria” <http://www.nigerianlawguru.com> accessed 19 june 2021. the african union convention on preventing and combating corruption in article 1 defines “illicit enrichment” as “the significant increase in the assets of a public official or any other person which he or she cannot reasonably explain in relation to his or her income”. section 26 of the code of conduct bureau and tribunal act cap c15 lfn 2010 defines a child to include a step-child, a lawfully adopted child, a child born out of wedlock and any child to whom any individual stands in place of a parent. note 103. see n 96 for text of para 4. note 104. news item on 99.3 info f.m. around the middle of 2012. see also the tide news online, “nigeria’s public officers and code of conduct” <http://www.thetidenewsonline.com/2015/06/26/nigerias-public-officer-and-code-of-conduct/> accessed 17 june 2021 (noting that indiscipline is the root cause of failure of majority of nigerian citizens to obey simple rules, regulations and codes of ethical behaviour and that the bureau should be strengthened to face the challenges of enforcement of the code as its workability revolves around its effective enforcement). note 105. see specifically sections 5-18 of the act. note 106. part 1 of the third schedule to the constitution 1999 and paragraph 12 of part 1 of the fifth schedule to the constitution 1999. note 107. sso 2015, order 14 rule 2. note 108. sso 2015, order 15. note 109. sso 2015, order 16. note 110. sso 2015, order 17 rule 2. note 111. sso 2015, order 18. note 112. sso 2015, order 19. note 113. lhpp act 2017, s 1. note 114. lhpp act 2017, s 21. note 115. lhpp act 2017, s 22. note 116. lhpp act 2017, s. 23(a). note 117. lhpp act 2017, s 23(b). note 118. sso 2015, chapter xiv 1(a). note 119. sso 2015, chapter xiv 2(a). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 73 published by scholink inc. note 120. sso 2015, chapter xiv 3(a). note 121. sso 2015, chapter xiv 3(b). note 122. sso 2015, chapter xiv 3(d)(i). note 123. sso 2015, chapter xiv 3(d)(ii). note 124. sso 2015, chapter xiv 3(f). note 125. sso 2015, chapter xiv rule 3(h) note 126. sso 2015, chapter xiv rule 3(g). note 127. 1999 constitution, s. 89(1)(b). note 128. ibid s. 89(1)(c). note 129. ibid s. 89(2). this provision also applies to the speaker of the house of representatives, as the case may require. note 130. this contention also applies to summons and warrants emanating from the house of representatives. note 131. as the case may require, the speaker of the house of representatives has similar power under this provision. note 132. ibid. note 133. 1999 constitution, s. 89(1)(d). note 134. (2015) lpelr-25928 (ca). also, nosdra v exxonmobil (2018) lpel-44210(ca) per adah jca [b-d] 10. note 135. ibid. note 136. (2018) lpel-44210(ca). note 137. ibid per adah jca [d-e] 10. note 138. garner, (n 89) 1373. note 139. (2004) lpelr-11320(ca) [a-b] 29. note 140. ibid [a-b] 29. note 141. edewor v uwegba (1987) 1 nwlr (pt 50) 313, 338 (per nnamani jsc); charles v frn (2018) lpelr-43922(ca) per ekanem jca [b-d] 12. note 142. charles v frn (2018) lpelr-43922(ca) per ekanem jca [f-a] 12-13. note 143. registered trustee of synagogue church of all nations v state & ors (2018) lpelr-46631 (ca) per georgewill jca [e-f] 29. note 144. senator ayo akinyelure, fca, brief remarks by the chairman, senate committee on ethics, privileges and public petitions, senator ayo akinyelure, fca at the 2019 retreat of the committee organised by plac in conjunction with the european union (eu) at legend hotel airport, lagos on 25th october, 2019, 2. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 74 published by scholink inc. note 145. henry umoru and joseph erunke, “nass amends cct act, takes over control of agency from presidency”, vanguard online, 27 october 2016 <http://www.vanguardngr.com/2016/10/nass-amends-cct-act-takes-control-agency-presidency/ > accessed 15 october 2021 . note 146. abdulwahab abdulah, amendment of code of conduct act foretells nass witch hunt—fashanu, san, vanguard online, 25 november 2016 <http://www.vanguardngr.com/2016/11/amendment-of-code-of-conduct-act-foretells-nass-witch-hunt-f ashanu-san/ > accessed 15 october 2021. note 147. tony momoh v the senate (1981)1 nclr 105 where the court stated that stating that the senate would be acting ultra vires its powers under the constitution to summon an editor for the purpose of asking him to disclose the sources of his information in respect of publications in his newspaper. note 148. (1982) nclr 105. note 149. (2016) lpelr-41563(ca). note 150. ibid per agube jca [f-a] 85-86. note 151. (2016) lpelr-41563(ca). note 152. ibid [d-f] 85. note 153. (2019) lpelr47673(ca). note 154. ibid per ebiowei jca [f-b] 16-21. note 155. (2017) lpelr-43474(sc). note 156. ibid [a-b] 26. note 157. (2015)18 nwlr (pt. 1490) 105. note 158. (1982) 3 nclr 394. note 159. (1981)1 nclr 105. note 160. see generally sections 174 and 211 of the constitution on the prosecution powers of the attorney general of the federation and attorney general of a state respectively and oloyede v state (2013) lpelr-22215(ca). see also watkins v united states 354 us 178 (1957) <http://caselaw.findlaw.com/us-supreme-court/354/178.html> accessed 6 august 2021 (stating that the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under the constitution to the executive and the judiciary). note 161. news agency of nigeria (n 65). note 162. ismail mudashir and others (n 11). note 163. sso 2015, order 97 rule 4(b). economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 179 original paper evidence for the scientific nature of jurisprudence in the context of the philosophy of science yanjin li 1 1 law school, sichuan university, sichuan, china received: may 2, 2025 accepted: may 12, 2025 online published: may 13, 2025 doi:10.22158/elp.v8n1p179 url: http://dx.doi.org/10.22158/elp.v8n1p179 abstract given that jurisprudence has long faced accusations of being a “pseudo-science”, establishing its scientific nature can provide a genuine justification for “why law deserves people’s faith and obedience.” the philosophy of science, as a theoretical framework for understanding science, should be applied to examine the scientific character of jurisprudence. legal research methodologies not only align with the “verification principle” and “paradigm principle,” but legal knowledge itself also possesses objectivity and relative stability. pure rationality and value-neutrality should not be the sole criteria for judging the scientific status of jurisprudence. rather, jurisprudence is a discipline that integrates scientific rationality with humanistic concerns, and the methodologies of natural sciences do not fully encapsulate the essence of its scientific validity. keywords jurisprudence, scientific nature, philosophy of science, legal research methodology 1. introduction one hundred and eighty years ago, julius hermann von kirchmann’s seminal lecture the worthlessness of jurisprudence as a science shattered the seemingly self-evident “common sense” that “jurisprudence is a science,” securing his place in intellectual history. two decades later, rudolf von jhering reignited profound skepticism about the scientific nature of jurisprudence with his inaugural address is jurisprudence a science? the sphinx-like riddle—is jurisprudence a science?—drew towering figures such as stammler, kirchmann, larenz, kelsen, kaufmann, and geertz into a series of brilliant and contentious debates. yet, after 180 years, we still lack the most compelling answer to this “ultimate question.” we call it the “ultimate question” because answering is jurisprudence a science? first requires resolving two foundational inquiries—one from the realm of jurisprudence and the other from the philosophy of science: what is jurisprudence? and what is science? www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 180 published by scholink inc. 2. the origin, evolution, and current state of the scientific nature of jurisprudence 2.1 the formation of “legal science” in ancient greece and rome, jurisprudence bore little connection to science as such. in 198 bce, the roman consul aelius, in his capacity as a secular magistrate, began lecturing on and writing about law, transforming legal knowledge into a worldly discipline. this discipline came to be known as jurisprudentia—a term derived from the latin prudentia, which itself originates from the greek φρόνησις (phronēsis), often translated as “practical wisdom” or “prudence.” the roman jurist ulpian defined it as “the knowledge of things divine and human, the science of what is just and unjust” (justinian, 1999). by the middle ages, however, jurisprudence—having only recently emerged from philosophy—once again lost its autonomy, becoming “the handmaid of theology” (yan, c. s., 2015). although modern science had not yet taken shape, the revival of roman law in the 11th century gave rise to the glossators’ school (glossators), which shaped the fundamental character of medieval and early modern jurisprudence. its overarching style was that of a “theoretical jurisprudence,” increasingly aligning itself with the paradigm of “science” (lei, l., 2019, pp. 84-104). the first industrial revolution spurred the enlightenment, which championed reason and freedom. enlightenment thinkers sought to enhance law’s logical rigor and verifiability by applying methodologies from the natural sciences, such as mechanistic cosmology, experimental mathematics, and geometry. for instance: leibniz attempted to systematize law through definitions, axioms (merryman, j. h., 2004), and theorems. pufendorf developed an “architectonic politics,” constructing a legal system based on mathematical principles (masao, o., 1998). by the 19th century, during the era of the historical school of law, the german term for jurisprudence evolved into rechtswissenschaft—a compound of recht (law) and wissenschaft (science). jurisprudence, now abbreviated as “legal science,” had fully undergone the transformative influence of modern science. 2.2 the provocative thesis in 1847, the german prosecutor and jurist julius hermann von kirchmann sparked profound skepticism about the scientific nature of jurisprudence through his seminal lecture the worthlessness of jurisprudence as a science, challenging the long-held enlightenment belief in law as a pure science by arguing that jurisprudence, grounded in the mutable and subjective nature of positive law, concerned itself only with the arbitrary—famously declaring that “three correcting words from the legislator render entire libraries obsolete” (j. h. von kirschmann, & zhao, y., 2004, pp. 138-155)—and was thus theoretically valueless. a century later, karl larenz countered this provocative thesis in his berlin law society address on the indispensability of jurisprudence as a science, asserting that science lies not in outcomes but in the rationally verifiable process of inquiry, with law’s mission being the interpretation of legal norms as a fundamentally rational human activity (karl, l., & zhao, y., 2005, pp. 144-155). rudolf von jhering further complicated the debate by posing three enduring challenges to law’s scientific claims: whether jurisprudence can be falsified, whether it can be scientific when constrained by legislators’ views, and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 181 published by scholink inc. whether its jurisdictional limitations permit scientific status (jhering, r., 2010), while legal luminaries like stammler, larenz, kaufmann, and geertz engaged in an epic intellectual clash by variously redefining both “jurisprudence” and “science.” in conclusion, nineteenth-century critiques of law’s scientific credentials coalesced around three key arguments: first, law’s lack of universality, as geertz viewed it as local knowledge producing divergent outcomes across legal systems (liang, z. p., 1998); second, its methodological unscientific nature, with stammler insisting that science requires absolute methods and unified concepts absent in legal study, which lacks the immutable laws of natural sciences and deals with inherently unstable positive law; and third, its unfalsifiability, as popper’s criterion that genuine science must be falsifiable highlights law’s focus on normative “oughts” rather than empirical facts, making value judgments inherently unverifiable. 2.3 the development and current state of research on the “scientific nature of jurisprudence” in chinese academia the question of jurisprudence’s scientific nature began attracting attention from chinese scholars in the 20th century. in 1983, scholar wang chuansheng argued that marxist legal theory, grounded in historical materialism, could reflect society’s fundamental laws and thus constituted a genuine science (wang, c. s., 1983, pp. 7-12). in 1999, li jingbing posited that jurisprudence’s ultimate purpose was humanistic concern, making claims about its scientific or unscientific nature reductive (li, j. b., 1991, p. 77). scholar hu zhou suggested that studying law’s scientific character was less about rigid categorization and more about determining the proper intellectual perspective for engaging with legal studies (hu, z., 1992, pp. 137-139). in recent years, numerous scholars have sought to affirm jurisprudence’s scientific status, with debates between legal dogmatics and social-sciences-oriented jurisprudence in china fueling unprecedented scholarly interest in law as a science (wang, x. h., 2020, pp. 117-126). chinese scholars generally defend jurisprudence’s scientific nature through three approaches: (1) methodological rigor—zhao jing notes that jurisprudence employs rational reasoning, possesses its own conceptual framework, a complete disciplinary system, and a methodology based on normative principles, making it a science despite not being a natural science; (2) object of study—professor shu guoying defines jurisprudence as the study of “legal principles,” while others argue its fundamental task is to uncover the objective, universal laws governing legal phenomena and explore governance strategies for human welfare; and (3) universality, regularity, and objectivity—professor wang liming maintains that jurisprudence, though serving local legal practice, develops consistent foundational values and conceptual systems, particularly through legal dogmatics, which systematizes and typologizes value judgments, lending them an objective quality in application. ultimately, justifying jurisprudence’s scientific status hinges on answering two fundamental questions: what is science? and what is jurisprudence? since the philosophy of science examines scientific activities and theories—addressing the nature of science, the acquisition of scientific knowledge, and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 182 published by scholink inc. its logical structure—it provides essential guidance for defining science. the following analysis thus explores jurisprudence’s scientific character through the lens of philosophical theories on the essence of science. 3. substantiating the scientific nature of jurisprudence from the perspective of philosophy of science the western philosophy of science has undergone an evolutionary process in exploring the essence of science, progressing through stages such as positivism, logical positivism, falsificationism, sophisticated falsificationism, historicism, and anarchism. later, lakatos proposed sophisticated falsificationism, arguing that the demarcation between science and non-science lies not in “falsifiability” or “paradigms,” but in the ability to predict novel empirical facts. anarchism, on the other hand, outright denies the necessity of distinguishing between science and non-science, adopting a radically relativistic and irrationalist understanding of science. surveying the development of western philosophy of science and analyzing its tenets through the lens of marxist views on science and technology, while none of these theories provide a perfect answer to the question “what is science?”, they offer a higher theoretical perspective for examining the scientific nature of jurisprudence. accordingly, the following discussion substantiates the scientific character of jurisprudence by integrating insights from positivism, logical positivism, falsificationism, and historicism regarding the essence of science. 3.1 legal research methodology complies with the “principle of verification” and “paradigm principle” chen duxiu once asserted: “the unity of all science lies solely in its method, not in its subject matter. what makes science is not the facts themselves, but the methods used to process them” (chen, d. x., 1920). from this perspective, science is defined not by the knowledge it produces, but by its methodological approach to facts. francis bacon, grounded in empiricism, pioneered the scientific inductive method based on practice—observing and experimenting first, then generalizing patterns to derive knowledge. the french philosopher auguste comte proposed that the fundamental method for understanding the world is “positivism,” characterized as “real, useful, certain, and precise.” in summary, science is rooted in empirical facts, relying on observation, experimentation, and logical reasoning (deduction and induction) to generate knowledge that can be tested against reality. similarly, legal research adheres to strict rules of argumentation, interpretation, and rational discourse. precisely because jurisprudence employs multiple rational methodologies, even when judicial decisions reflect judges’ value judgments, they cannot devolve into arbitrary rulings. with advances in artificial intelligence, big data technologies now enable the construction of reasoning models. while ai in law cannot yet fully replicate human arguments that balance equity, reason, and law, it can already mimic and replace judges in reasoning through simple cases. this demonstrates that legal reasoning, due to its scientific nature, can be translated into algorithms, and that the scientific rigor of legal methods allows www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 183 published by scholink inc. compatibility with natural sciences (liu, d. l., 2022, pp. 145-164). moreover, empiricist philosophy of science requires scientific knowledge to be testable against empirical facts. legal standards provided to judicial practice must be applied and tested by judges in concrete cases, refining theories and criteria based on their alignment with justice and fairness. the american philosopher of science thomas kuhn introduced the core concept of “paradigm”—a set of fundamental theoretical assumptions accepted by a scientific community during a specific period (okasha, s., 2013). only disciplines with shared paradigms qualify as scientific. does jurisprudence possess such a paradigm? first, the legal community shares a common worldview and values: the pursuit of justice, fairness, order, and liberty. second, it embraces foundational theories and doctrines—for example, the principle of legality in criminal law, which remains a cornerstone of legal systems worldwide despite centuries of evolution. third, the legal community employs agreed-upon research methods. take statutory interpretation: whether in judicial practice or academic research, the sequence progresses from literal interpretation to logical interpretation. finally, the community recognizes shared “exemplars” (landmark cases). china’s supreme people’s court, supreme people’s procuratorate, and administrative agencies issue guiding cases to standardize adjudication and unify legal application. thus, jurisprudence satisfies kuhn’s “paradigm principle.” 3.2 the objectivity and relative stability of legal knowledge logical positivism posits that science is grounded in empirical evidence and structured by logical tools, asserting that only propositions verifiable through empirical facts qualify as scientific. its representative philosopher, rudolf carnap, argued that metaphysical propositions are neither true nor false—they assert nothing and yield no knowledge, thus warranting exclusion from science. scholar fang kong, in the principles of positive law: meditations on first legal philosophy, vividly illustrates the process of formulating scientific laws through the equation l = r(z), which highlights two essential elements: the objective natural world and human cognitive capacity (fang, k., 2007, p. 16). similarly, the creation of law stems from humanity’s cognitive engagement with the patterns governing societal existence. the sole distinction between the genesis of legal knowledge and that of natural scientific knowledge lies in the absence of controlled “experimentation” in the former. yet, the iterative processes of legal reform, revolution, and legislative activity effectively constitute large-scale “social experiments” that validate the scientific robustness of legal principles. thus, legal knowledge, too, emerges from empirical observation, quasi-experimentation (through societal practice), and the application of inductive and deductive reasoning, continually refined and tested—rendering it no less scientific in its methodology and evolution. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 184 published by scholink inc. 4. the scientific rationality and humanistic concern of jurisprudence the value-laden nature of jurisprudence constitutes a primary reason for its skepticism as a “pseudo-science.” specifically, the discipline grapples not with quantifiable phenomena but with questions inextricably tied to values and meaning—issues resistant to experimental observation, measurement, or calculation. the inherent character of legal study precludes “value neutrality”; it is neither a rigid exercise in formal logic nor amenable to verification or falsification. thus, it defies karl popper’s falsificationist criterion (that only falsifiable theories qualify as scientific) and deviates from the pure rationality emphasized by logical positivism. yet science itself cannot operate beyond value constraints. while “value neutrality” may grant the scientific community relative autonomy and research freedom, it risks becoming an excuse for evading societal realities and responsibilities. the notion that science should address only objective facts—while excluding values—artificially severs fact from normativity, ignoring that no “pure” science exists in a vacuum. popper’s falsificationism also falters in practice: if theories were abandoned at the first conflict with observed facts, scientific progress would stall. therefore, pure rationality and value-neutrality must not monopolize the criteria for assessing jurisprudence’s scientific status. law’s dual commitment to scientific rigor (in methodical analysis and systematic reasoning) and humanistic concern (in pursuing justice and equity) reflects a higher-order synthesis—one that transcends reductive binaries to affirm its unique epistemic legitimacy. in his 2022 article “the genealogical orientation of legal research in the big data era: a natural science-based jurisprudence?”, professor zuo weimin highlighted the growing trend of legal studies becoming “natural-science-oriented” with the aid of internet technology, even giving rise to an emerging field termed “natural science-based jurisprudence” (zuo, w. m., 2022, pp. 32-43). however, no matter how precise or rational the conclusions derived from natural science methods may be, they ultimately remain confined to the empirical realm of “is,” whereas jurisprudence fundamentally concerns itself with the normative world of “ought.” if legal issues are reduced to mere problems of natural science—analyzed through theoretical modeling, mathematical computation, or computer programming—debates over justice, fairness, and morality risk losing their significance, potentially succumbing to the pitfalls of “scientism.” moreover, as an independent discipline, the scientification of jurisprudence must ultimately rely on its own methodological and systemic frameworks. while natural science approaches undoubtedly offer fresh perspectives for legal research, forcibly dismantling disciplinary boundaries to merge the two would inevitably trigger “rejection reactions.” applying natural science knowledge and techniques to legal phenomena may, to some extent, address the excessive abstraction and subjectivity of traditional legal scholarship. yet, at its core, jurisprudence is the study of humanity—“law cannot be divorced from human sentiment.” its scientification cannot be achieved solely by adopting natural science methodologies. as professor zhang qi aptly observes, legal professionals require training in humanistic jurisprudence—a stance that harmonizes scientific rigor with humanistic values, steadfastly www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 185 published by scholink inc. upholding human dignity as its ultimate purpose (zhang, q., 2023, pp. 3-16). 5. conclusions jurisprudence is precisely such a discipline that integrates both scientific rationality and humanistic concern—combining rigorous logical deduction with compassion and warmth for humanity. we must remain vigilant against the risks posed by “scientism” and the “overgeneralization of science,” breaking free from blind worship of natural sciences while still establishing jurisprudence’s scientific legitimacy. this necessity stems from the fact that since plato introduced his allegory of the cave, seekers of truth have shared a common faith: to emerge from the cave and pursue a rational world. this holds true for science, and no less for jurisprudence. in their origins, jurisprudence and science bore no connection. our efforts to endow jurisprudence with scientific attributes are, in essence, driven by the aspiration to construct a research methodology and theoretical system with distinct disciplinary characteristics—one that reflects jurisprudence’s unique identity as an independent field. by affirming its scientific nature, we enable legal scholars to adopt a scientific attitude, thereby better grasping the laws governing human societal development. only then can we formulate laws grounded in “pure rationality” and embodying “transcendent neutrality.” references chen, d. x. (1920). what is the new culture movement? new youth, 7(5). fang, k. (2007). principles of positive law: meditations on first philosophy of law (p. 16). the commercial press. hu, z. (1992). jurisprudence as both “science” and “philosophy”: revisiting whether legal studies constitute a science. comparative law studies, (special issue 1), 137-139. j. h. von kirschmann, & zhao, y. (2004). the worthlessness of jurisprudence as a science—a lecture at the law society of berlin. comparative law studies, (01), 138-155. jhering, r. (2010). is law a science? (j. li, trans.). law press. justinian. (1999). ladder of jurisprudence (translated by xu guodong). beijing: china university of political science and law press. karl, l., & zhao, y. (2005). on the indispensability of jurisprudence as a science—lecture at the law society of berlin on april 20. comparative law studies, (03), 144-155. lei, l. (2019). doctrine of law as science. comparative law studies, 2019(06), 84-104. li, j. b. (1991). the ultimate purpose of jurisprudence is humanistic concern: why jurisprudence is an independent discipline. comparative law studies, (4), 77. liang, z. p. (1998). the cultural interpretation of law. sdx joint publishing company. liu, d. l. (2022). logical reasoning and argumentation in the new generation of legal ai systems. china legal science, (3), 145-164. masao, o. (1998). comparative law (translated by fan yu). beijing: law press. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 186 published by scholink inc. merryman, j. h. (2004). the civil law tradition (p. gu & z. lu, trans.). law press. okasha, s. (2013). philosophy of science: a very short introduction (g. han, trans., p. 79). yilin press. (original work published 2008). wang, c. s. (1983). the scientificity of law and the legal dimension of science: commemorating the centenary of marx’s death. legal science, (3), 7-12. wang, x. h. (2020). the domain of “scientific nature of jurisprudence”: how can discussions about it be effective? gansu social sciences, (5), 117-126. yan, c. s. (2015). history of western legal thought (3rd ed.). beijing: law press. zhang, q. (2023). between technological rationality and rule of law: the position of humanistic jurisprudence in intersecting space-time. studies in law and business, 40(6), 3-16. zuo, w. m. (2022). the genealogical orientation of legal research in the big data era: a natural science-based jurisprudence? tribune of political science and law, 40(6), 32-43. microsoft word elp-v1n1-p1 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 1, no. 1, 2018 www.scholink.org/ojs/index.php/elp 1 original paper global energy and co2s: defection risk jan-erik lane1* 1 fellow with public policy institute, belgrade, serbia * jan-erik lane, 10 charles humbert, 1205 geneva; 559 a, 3rd floor, thuya street, 9th quarter, yangon, myanmar received: december 11, 2017 accepted: december 13, 2017 online published: december 22, 2017 doi:10.22158/elp.v1n1p1 url: http://dx.doi.org/10.22158/elp.v1n1p1 abstract it is fair to judge that the unfccc’s cop23 in bonn this fall ended in nothing. thus far, there is no implementation plan or set of management strategies for the cop21 treaty in paris 2015. instead, a new reunion has been called for 2018 in polish katowice, with its huge coal mines-poland relies almost to 70 % on coal. at the same time, germany acknowledges that it cannot cut back coal as promised, but i will close atomic power stations down! here, we examine the defection option against the cop21 treaty. other nations may be tempted by reneging. keywords global decarbonisation, cop21 treaty, cop23, compliance against defection, common pool regime, reneging 1. introduction the states of the world have been committed by their governments at the paris cop21 meeting to decarbonize their economies according to a strict schedule for the 21st century. this implies giving up fossil fuels as the chief energy source for the economy in a broad sense. at the same time, nations around the world are eager to continue socio-economic development, emerging economies striving to “catch-up”; having recently “taken-off”, while rich countries underline the necessity of economic growth. thus, they plan for more demand for energy. is there a policy contradiction here? just before the start of the un global environment reunion cop23 (6-13 november, 2017) in bonn, the study “climate science special report: fourth national climate assessment” (usgcrp, 2017): was published in washington, enquiring into the global warming consequences for especially the us but also the world. besides rendering a long list of climate change consequences, this major report shows without a reasonable doubt that global warming is linked primarily with the anthropogenic causes of greenhouse gases, especially co2s. co2s have increased much the last two decades due to the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 2 published by scholink inc. augmentation in the burning of fossil fuels as the main energy source. decarbonisation implies much less fossil fuel consumption, but nations plan for more energy the coming decades, perhaps 20-30 percent. 2. decarbonisation according to unfccc all countries in the world have formed a common pool regime (cpr) to save the atmosphere from more ghgs, focusing only upon the co2s. the global decarbonisation plan includes: i) halting the rise if co2s by 2020 (goal i); ii) reducing the co2s by 30-40% by 2030 (goal ii); iii) complete decarbonisation by around 2075 (goal iii); iv) decentralised implementation under international oversight, financial support and technical assistance. these are enormous goals, as only one country-uruguay—is near goal i and goal ii. some countries have lately had stalling or even decreasing co2s, but many other still face an upward sloping curve. globally, the energy-emissions conundrum stems from the necessity of consuming energy in all forms of economic activity. we have the following picture for the close link between gdp and co2s over the recent decades—see figure 1. figure 1. global gdp-co2 link: y=0,75x; r²=0,98 source: see references. burning fossil fuels is today essential for affluence and wealth, being vital to poor and rich countries. if energy consumption is reduced, economic recession and mass poverty would follow rapidly as well as of course also unemployment writ large social unrest. planet earth consumes simply far too much energy from burning the fossil fuels—see table 1. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 3 published by scholink inc. table 1. energy 2015 (consumption in million tons of oil equivalent) total % fossil fuels 11306,4 86,0 oil 4331,3 32,9 natural gas 3135,2 23,8 coal 3839,9 29,2 renewables 1257,8 9,6 hydroelectric 892,9 6,8 others 364,9 2,8 nuclear power 583,1 4,4 total 13147,3 100,0 source: bp statistical review of world energy 2016. the hope that the augmentation of co2s would “stall” has been nurtured widely, but now china reports ominously that its co2s are set to increase again for a few years. thus, figure 1 may lead to the planet not fulfilling even cop21 goal i in 2020. 3. apec connection: asia’s future co2 dominance the unfccc meetings have huge participation, besides some 190 governments. they are drowned by massive transaction costs. after so many global meetings, an agreement was finally reached in 2015—the paris climate accord or cop21 treaty. but the next two reunions failed to deliver anything. as of now, there is no plan for implementing the climate global accord, nor any management strategy or idea how to set up the super fund. the adequate group of countries for handling decarbonisation is the g20 set of big nations, together with international shipping and international aviation responsible for some 80 of the co2 emissions. greenhouse gas emissions are huge in large state population wise with a medium to high affluence. let us look at some of the giants around the pacific, where economic activity has migrated from the atlantic, forming the apeg association. in the g20, we have inter alia china, india, indonesia, brazil, saudi arabia, turkey, iran, south korea, japan, australia, russia, usa, mexico and canada as well as germany. can these countries fulfill the global decarbonisation treaty? will they do so? one country has already defected in this ocean pd game that plagues this cpr. will these other big polluters comply? i doubt so. without their compliance with global decarbonisation, climate change become unstoppable—hawking’s irreversibility. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 4 published by scholink inc. 4. the reneging strategies the cop21 treaty under public international is only in fact a promise. and promises are what they are, as they sit in the mount of the contracting parties. the nature of promises was revealed by hobbes in leviathan from 1651, stating that it involves a game with two stages: first the words, second the fulfillment of the words or not: (q1) “covenants, without the sword, are but words and of no strength to secure a man at all”. (q2) words are wise men’s counters, they do but reckon by them; but they are the money of fools”. there is no sword available under public international law to enforce decarbonisation. only good will respecting the integrity of promises plus selective incentives will be decisive for the implementation of goal i, goal ii and goal iii. the decarbonisation promise is a complex one, involving two different parts: i) allocation: to reduce the consumption of fossil fuels according to the global plan; ii) funding: to set up and fund a giant super fund to create selective incentives for poor and developing countries to implement the global plan. the phenomenal sum of 100 billion $ per year has been mention for 10 years. opportunistic behaviour offers many ways of reneging in both allocation and funding. the new theory of asymmetric information puts cheating the centre of a hobbesian approach to global governance covenants and word promises. thus, defection from a huge cpr concerning a giant resource—the atmosphere—with open access can occur in many forms: a) reneging ex ante on allocation: making unrealistic promises; b) reneging ex post on allocation: overstating accomplishments; c) reneging ex ante on funding: not actually paying one’s due; d) reneging ex post on funding: corruption or embezzlement. combining reneging ex with defection ex post, we have the following 2x2 diagram. figure 2. compliance and reneging when the trump administration reneged, it was basically an ex ante funding defection, denying to help india decarbonize. when president macron invites the cpr members to paris to discuss how to fill up the us funding gap, he may invite more of the same type of reneging. as hobbes declared, words may be the tongue of fools, promises made may be called void because of unforeseen circumstances. china had promise to halt co2 aygmentation, but less hydro power calls for more coal power and co2s anew. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 5 published by scholink inc. with so many participants in this cpr and so much money promised, the risks of dishonest management must be high. too many members in a cpr, too heavy transaction costs in global governance? let me substantiate these points, derived from the general analysis of pd games, with a few concrete examples from the variety pf countries or economies. even if the unfccc creates an oversight mechanism to steer the giant decarbonisation plan for the 32st century, there will be defections. 5. take-off economies several countries in the world have recently started the process of industrialization and urbanization, moving out of poverty and the dominance of agriculture. they emphasize the need for energy in order to develop fast. typically, they rely upon fossil fuels, especially coal, stone or wood coal. they will only endorse decarbonisation, if supported by the super fund to move into atomic power or renewables like solar and wind power. in general one may say they are likely to renege, if they cannot find alternative sources or funding is not forthcoming. 5.1 india one may date india’s take-off point in time to around 1990, when a heavily regulated economy with socialist planning was transformed into a market economy. economic growth has since been impressive, but the needs are gigantic from a rapidly increasing on average poor population. thus, following the approach by rostow (1960), one must date the take-off point for india to its market transformation with a stock exchange in mumbai. from india’s side, the position has been clearly stated (ramesh, 2015): socio-economic development keep up its pace to deliver services to the millions without electricity and the large part of poor people. coal will be used, if necessary. figure 2 captures the link between gdp and co2s. figure 3. gdp and co2s: y=0,55x, r²=0,97 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 6 published by scholink inc. the upward sloping curve is strong for indian emissions, following its stunning expansion economically. and india will not accept a trade-off between growth and co2s, putting the emphasis upon electrification of all households and poverty uplifting. can and will india honour its dearboniisation promises? not without foreign assistance! look at the present pattern of energy consumption (figure 1). figure 4. india fossil fuels, especially coal, dominate totally. in india, biomass is charcoal, more polluting than coal itself. india is completely out of tune with the cop21 objectives. the indian government engages much in energy planning with foreign expertise—see indian energy outlook from 2015 by iea. one scenario is portrayed in figure 5. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 7 published by scholink inc. figure 5. india energy policy plan source: https://www.slideshare.net/objectivecapital/india-growing-energy-needs-to-fuel-growth this enormous hoped for expansion in energy demand is not in agreement with global decarbonisation plans. to reduce c coal and charcoal india needs atomic and solar power. hydro power requires safe access to water, which global warming may undo. 5.2 indonesia like india, indonesia is planning its energy policies in cooperation with international experts, e.g., iea. it has gone through a rapid expansion of its energy production since its take-off data in the 1990s, when suharto’s cronyism regime was done away with. it exports considerable amounts to gas. indonesia, being a giant nation with economic growth and enormous forest burning, displays a strong upward trend in co2s—see figure 6. figure 6. indonesia www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 8 published by scholink inc. what makes indonesia so important for the implementation of global decarbonisation according to the cop21 treaty is not only is mega size in population, but also its rain forests in kalimantan and sumatra. the government has not been able to protect these global lungs, as they are cut down and burned for agriculture. this amounts to a tragedy of the commons writ large. the planning of the expansion of the energy sector—figure 6—shows little regard to cop21 objectives. figure 7. indonesia energy policy source: http://blogs.vertcaptech.com/2014/01/06/renewable-energy-potential-indonesia/#.wh_p6lwwbiu it is true that renewables are planned to increase, but so is coal. together with forest emissions, indonesia has to renege. 6. catch-up economies we speak of emerging economies against mature ones. one proper subset of emerging economies are the catch-up nations, who started long ago a take-off but now wants to close the gap to the mature economies. they are very hungry for energy. 6.1 brazil (not apec member) even if brazil is a promising country and will always be so (de gaulle), it is interesting when compared with indonesia. it is as giant big a country, aiming to be a regional leader. and it harbours the other lungs of planet earth—the amazons. the big difference economically is that brazil had an early take-off period in the 1920s, but economic decline in combination with authoritarianism led to a huge set-back for latin america in the 20th century. the attempts with socialism succeeded nowhere, but only stimulated fascist responses. today, venezuela is a new tragedy of failed state intervention. brazil has enjoyed a most positive economic development since the 1990s, when democracy was www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 9 published by scholink inc. re-established. as the gdp has increased strongly up until 2015, so have the co2s augmented sharply (figure 8), pushed of course by the burning down of the rain forests, or logging parts of it for agriculture. figure 8. brazil as the brazil economy has stagnated recently, co2 growth has stalled. however, the plans for energy are stunning—see figure 9. in a time frame of 10 years or less, energy consumption is to be doubled. can it be done without destroying the amazons and increase global co2s? figure 9. brazilian energy planning source: https://www.linkedin.com/pulse/focus-renewable-energy-technologies-brazil-luca-gautero energy provision is different from indonesia’s fossil fuel reliance, as brazil has hydro power and biomass energy. it uses a lot of petrol but little coal. the worry about brazil is the enormous expansion plans for energy. involving also exports to other la countries. it seems as if hydro power would decline in importance, but that hides the planned double expansion. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 10 published by scholink inc. dams have been built in the amazons, and much more is planned. together with the cutting down and burning of the rain forest for agriculture, one may predict the demise of the amazons before 2050, like boneo and sumatra. to fulfill its cop treaty obligations, brazil must invest more in solar power. according to the world energy reports, the country has a modest solar power plan, which is strange given its huge territory with so much sun. 6.2 mexico another major catch-up economy in la is mexico, which like brazil is an oil and gas producer. co2 emissions, like in the rich middle east countries, tend to be high in countries with heavy oil and gas production. mexico enjoyed an early take-off start point in the 20th century, but economic and political instability decreased the potential of the country. however, nafta meant a new start together with a democratic regime. thus, mexico pursues a catch-up strategy, using its vast oil and gas reserves—figure 10. figure 10. mexico the rise in average affluence in mexico has been a success story, even if the benefits from nafta are contested. one cost is apparent in figure 10, as it documents that mexico has become a major polluter. but the country has very ambitious plans to change this. first, we look at the present energy mix in figure 11. the fossil fuel dependency today is close to 100 percent. but the plan is to accomplish a major transformation that would make the country fulfill the global decarbonisation goals. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 11 published by scholink inc. figure 11. mexico energy consumption in the plan below, mexico shows it is one of the first countries to take the cop21 treaty seriously (figure 12). figure 12. mexico energy policy plan the 2028 vision could violate goal ii in the cop21 agreement, as it stipulated 30-40 % co2 reduction by 2030. mexico is moving into solar power, which is its future. 7. mature economies one should not believe that mature economies can or will implement cop21 objectives. although several of the large rich countries have halted the co2 increase, they certainly have to do much decarbonisation so reach the goal ii. let us look at two mature economies with large emissions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 12 published by scholink inc. 7.1 south korea south korea has moved from a third world to the set of oecd rich nations in a period of 50 years, with the take-off point after japanese colonialism. the extreme economic growth has been based upon massive imports of energy sources, like natural gas and oil as well as coal. the outcome appears in figure 13 with massive co2 emissions. figure 13. south korea the south korean leaders have understood that 80 percent dependency upon fossil fuels is not in agreement with the global hope for decarbonisation. they bet on nuclear power, given the country’s advanced technology assets. but the new government has revised these plans for many atomic power plants. figure 14 shows the electricity generation picture, where nuclear power is to be reduced proportionately in the 2020s. figure 14. south korea electricity plan www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 13 published by scholink inc. instead, the government now bets upon lngs from abroad, transported in gigantic ships. but these plans violate the goal ii of the cop21 treaty. and international shipping is one of the worst sources of co2s. it seems as if south korea will have to defect, as it provides a small role for renewables. 7.2 australia australia has always been negative to global decarbonisaion, a least according to the prevailing attitude among its leading politicians. this stance reflects the country’s total reliance on fossil fuels at home for energy, as well as its giant exports of fossil fuels to other countries, especially in the asia-pacific region. figure 15 present a picture the most addicted to fossil fuels country in the world. figure 15. australia without a major energy policy reversal, australia will be forced to renege upon cop21. “our future lies in keeping to increase living standards”, says pm turnball, but more important for mankind is a stable environment, generally speaking. 8. solar power revolution in asia-pacific region table 2 using the giant solar power station in morocco as the benchmark, estimates how many would be needed to replace the energy cut in fossil fuels and maintain the same energy amount, for a few selected countries with big co2 emissions? table 2. number of ouarzazate plants necessary in 2030 for cop21’s goal ii (note: average of 250-300 days of sunshine used for all entries except australia, indonesia, and mexico, where 300-350 was used) nation co2 reduction pledge/ % of 2005 emissions number of gigantic solar plants needed (ouarzazate) gigantic plants needed for 40 % reduction united states 26-28 (note 1) 2100 3200 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 14 published by scholink inc. china none (note 2) 0 3300 south korea 37 260 280 india none (note 2) 0 600 japan 26 460 700 brazil 43 180 170 indonesia 29 120 170 canada 30 230 300 mexico 25 120 200 australia 26-28 130 190 russia none (note 3) 0 940 canada 30 230 300 mexico 25 120 200 philippines 70 70 40 world n/a n/a 16000 notes. 1) the united states has pulled out of the deal; 2) no absolute target; 3) pledge is above current level, no reduction; 4) upper limit dependent on receiving financial support; 5) eu joint pledge of 40 % compared to 1990. 9. conclusion now, there is urgent cause for alarm, as recent information says that china, the biggest emitter of co2s, will not succeed to halt its curve for co2s. instead, it counts upon some 3 percent increases the nearest years—see figure 16. figure 16. china: gdp and co2s: y=0,46x, r²=0,98 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 15 published by scholink inc. china has officially declared that it intends to meet both coal i, halting the increase in co2s, and goal ii, reducing co2s by some 30 percent. but promises and intensions are one thing, real life developments another matter. all countries in this cpr can at any time renege, the us has already done. if china too defects, then we have hawking irreversibility. china promises to reduce is ghgs, especially the lethal pollution in beijing. but it also has great plans for future energy demands! it is true that china moves aggressively into new power sources: solar, wind and atomic power. its ambitions for air traffic, car markets and the new silk road are daunting. references solar power paris. (2015). tracking country climate pledges. carbon brief. retrieved from https://www.carbonbrief.org/paris-2015-tracking-country-climate-pledges edgar v 4.3.2, european commission, joint research centre (jrc)/pbl netherlands environmental assessment agency. (n.d.). emission database for global atmospheric research (edgar), release version 4.3.2. retrieved from http://edgar.jrc.ec.europe.eu, 2016 forthcoming co2 emission reduction with solar. (n.d.). retrieved from http://www.solarmango.com/in/tools/solar-carbon-emission-reduction gdp sources world bank national accounts data. (n.d.). retrieved from http://data.worldbank.org oecd national accounts data files. (n.d.). ghg and energy sources world resources institute cait climate data explorer. (n.d.). retrieved from http://cait.wri.org eu joint research centre emission database for global atmospheric research. (n.d.). retrieved from http://edgar.jrc.ec.europa.eu/overview.php un framework convention on climate change. (n.d.). retrieved from http://unfccc.int/ghg_data/ghg_data_unfccc/time_series_annex_i/items/3814.php international energy agency. (n.d.). paris. energy information administration. (n.d.). washington, dc. bp energy outlook 2016. (n.d.). eu emissions database for global research edgar. (n.d.). retrieved from http://edgar.jrc.ec.europa.eu/ world bank data indicators. (n.d.). retrieved from http://data.worldbank.org british petroleum statistical review of world energy 2016. (2016). janssens-maenhout, g., crippa, m., guizzardi, d., muntean, m., schaaf, e., olivier, j. g. j., peters, … schure, k. m. (2017). fossil co2 and ghg emissions of all world countries, eur 28766 en. publications office of the european union, luxembourg. world bank data indicators. (n.d.). retrieved from http://data.worldbank.org www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 16 published by scholink inc. literature asian development bank. (2015). southeast asia and the economics of global climate stabilization. mandaluyong city, philippines: asian development bank. barro, r. j. (1991). economic growth in a cross section of countries. the quarterly journal of economics, 106(2), 407-443. https://doi.org/10.2307/2937943 barro, r. j., & xavier, x. sala-i-martin. (1992). convergence. journal of political economy, 100(2), 223-251. https://doi.org/10.1086/261816 barro, r. j., & xavier, x. sala-i-martin. (1995). economic growth. mcgrow hill. climate science special report: fourth national climate assessment. (2017). retrieved from https://assets.documentcloud.org/documents/4174364/climate-science-special-report-2017.pdf conka, k. (2015). an unfinished foundation. the united nations and global environmental governance. oxford: oup. https://doi.org/10.1093/acprof:oso/9780190232856.001.0001 kaya, y., & yokoburi, k. (1997). environment, energy, and economy: strategies for sustainability. tokyo: united nations university press. ostrom, e. (1990). governing the commons. cambridge: cambridge u.p. https://doi.org/10.1017/cbo9780511807763 ramesh, j. (2015). green signals: ecology, growth and democracy in india (2015). oxford: oxford university press. https://doi.org/10.1093/acprof:oso/9780199457526.001.0001 rostow, w. w. (1960). the stages of economic growth: a non-communist manifesto. cambridge: cambridge university press. sachs, j. d. (2015). the age of sustainable development. new york: columbia university press. https://doi.org/10.7312/sach17314 stern, n. (2007). the economics of climate change. oxford: oup. https://doi.org/10.1017/cbo9780511817434 stern, n. (2015). what are we waiting for? cambridge, ma: mit press. vogler, j. (2016). climate change in world politics. basingstoke: macmillan palgrave. https://doi.org/10.1057/9781137273413 notes note 1. the united states has pulled out of the deal. note 2. no absolute target. note 3. pledge is above current level, no reduction. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 3, no. 2, 2020 www.scholink.org/ojs/index.php/elp 79 original paper a saga of intellectual property licensing: investigating the credibility of 25 percent rule seema soni 1,2 , pratap devarapalli 1,2,3* , jeanine zieseniss 1,2 & nalinda atapattu 1,2 1 faculty of law, intellectual property and innovation law, queensland university of technology, brisbane, australia 2 wipo academy, world intellectual property organization, 34, chemin des colombettes, ch-1211 geneva 20, switzerland 3 faculty of law, university of tasmania, hobart, tasmania, australia * pratap devarapalli, e-mail: pratap66666@gmail.com received: november 13, 2020 accepted: december 7, 2020 online published: december 9, 2020 doi:10.22158/elp.v3n2p79 url: http://dx.doi.org/10.22158/elp.v3n2p79 abstract a healthy ip system creates opportunities and benefits for the industries, consumers, small businesses, governments, and the economy, including greater innovation, choice, competition, and jobs. incentives to innovate, job creations, opportunities and revenue generation for governments make the environment interoperable and beneficial for all stakeholders. the ip created by industries and individuals can be licensed to others as a way of generating revenue. it is within this, already complex environment, where negotiating a fair royalty rate can become one of the most challenging tasks. it is here where the application of the 25 percent rule emerged as a rule of thumb, to determine royalty rates in most licensing transactions, specifically in patent licensing. in light of the above, this research study has looked into different issues relating to the credibility of the 25 percent rule after the uniloc case. moreover, this study tried to trace out and examine multiple issues, such as the validity of the grounds for rejecting the rule, the criticism leveled against it, the applicability of the daubert standards, limitations and exceptions to the rule and other related issues that will answer the credibility of the 25 percent rule. keywords intellectual property, patent law, ip licensing, 25 percent rule, ip law www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 80 published by scholink inc. 1. introduction intellectual property (ip) is a valuable economic tool. a healthy ip system creates opportunities and benefits for the industries, consumers, small businesses, governments, and the economy, including greater innovation, choice, competition, and jobs. incentives to innovate, job creations, opportunities and revenue generation for governments make the environment interoperable and beneficial for all stakeholders (kamil idris, 2003). the ip created by industries and individuals can be licensed to others as a way of generating revenue. licensing ip fosters collaboration among industry players, technological innovation, increased competition, and greater consumer choice. quantifying and maximizing the value of ip is therefore of critical importance. consequently, the fields of ip valuation and ip licensing are the most discussed topics in ip management where negotiations take place between parties relating to ip businesses. it is within this, already complex environment, where negotiating a fair royalty rate can become one of the most challenging tasks. it is here where the application of the 25 percent rule (―the rule‖) emerged as a rule of thumb, to determine royalty rates in most licensing transactions, specifically in patent licensing. the conceptual basis of the rule is founded on the inherent risks associated with commercializing a licensed product and approximating the risk/reward ratio of 25:75 between the licensee and licensor. this is because the licensee usually bears additional costs and face uncertainties when converting the licensed technology into a marketable product, which may or may not attract a good revenue. on the other hand, the rule was also considered in many cases relating to the infringement of intellectual property for estimating damages (note 1). since 1943, the rule was applied, in many instances, for licensing and calculating the damages in multiple intellectual property negotiations and battles in different court cases. however, things have overturned after the federal court‘s decision in uniloc usa inc v microsoft corp (“uniloc”) (note 2), which has rejected the 25 percent rule as a matter of law. some of its flaws included, geographical reach, problems with sample size, significance of the alleged technology, competitors ability to design around a patentee‘s invention, any pre-existing relationship or past dealings between the parties and the patentee‘s ability to precise monopoly pricing on the licensee (note 3). considering all the issues and testimonies, the federal circuit concluded that ―the 25 percent rule was based on scant evidence, and its inclusion in numerous patent decisions over the years had been based on an assumption of its utility rather than hard evidence‖ (note 4). the uniloc judgment has lead to a lot of uncertainty in law regarding ip damage calculations and in particular which baseline, if any, should be used. in light of the above, this research study has looked into different issues relating to the credibility of the 25 percent rule after the uniloc case. moreover, this study tried to trace out and examine multiple issues, such as the validity of the grounds for rejecting the rule, the criticism levelled against it, the applicability of the daubert (note 5) standards, limitations and exceptions to the rule and other related issues that will answer the credibility of the rule. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 81 published by scholink inc. 2. what is the rule and how is it applied? the rule‘s methodology is based on the income approach and according to its proponents ―confirmed by careful examination of years of licensing and profit data, across companies and industries‖ (john jarosz et al., 2010). an empirical study published in 2002 by robert goldscheider, who has been credited as the rule‘s originator, demonstrated that the median royalty rate across all industries was 22.6 percent. he believed that this data supported the utilization of the rule ―as a tool of analysis‖ (robert goldscheider et al., 2002) (note 7). it has often been used as a starting point to establish reasonable royalties for patent licensing negotiations, or for a reward for damages in intellectual property infringement litigation (35 u.s.c.a. § 284). it has successfully been applied in hundreds of cases prior to the uniloc decision. 2.1 how is the rule applied in ip licensing and infringement? ip valuation follows one of the three different methods, cost method, market method and income method (ted hagelin, 2002) (note 8). royalty rates in ip licensing are calculated with due analysis and following standard methods (note 9). in calculating damages, many experts rely on hypothetical negotiations between the patent owner and a licensee. hence, different professionals introduced multiple methods including the 25% rule (note 10). the widely used 25% royalty calculation was developed as 1:3 profit sharing between the licensor and licensee at the base line negotiation stage, which is calculated on the pre-tax profit of the product. 2.2 the interpretation of the rule in uniloc v microsoft the uniloc judgment was widely interpreted as the death of the rule‘s assumptions (note 11). however, it is interesting to note how goldscheider defines the rule and his interpretation and analyses of the court‘s judgment (robert goldscheider, 2011; robert goldscheider et al., 2002). in contrast, various authors have criticized goldscheider‘s views regarding the rule and have raised doubts about its creditability (douglas gidder, 2011). 2.3 various standards and tests applied in uniloc 2.3.1 implication of the daubert standards the daubert standard is the test that is used in the federal courts and other state courts in the united states to determine the validity of scientific expert testimony (note 12). this standard is usually applied by a trial judge, in making an initial assessment of whether the expert‘s testimony is based on reasoning that is scientifically valid and can properly relate to the facts of the specific case. the following are the factors that are usually considered in determining the validity of the methodology under this standard (note 13).  whether the theory or technique in question can be and has been tested;  whether it has been subjected to peer review and publication;  its known or potential error rate;  the existence and maintenance of standards controlling its operation; and  whether it has attracted widespread acceptance within a relevant scientific www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 82 published by scholink inc. community. 2.3.2 relevance of georgia-pacific corp v us plywood corp (―georgia-pacific‖) this case provides a synopsis of the 15 most important factors to be considered when calculating a reasonable royalty rate for a patent license, which is now referred to as a georgia-pacific analysis (note 14). over the last forty years, the federal circuit has endorsed these guidelines when calculating a reasonable royalty amount. factor 13 is considered important here as it examines the ―portion of realizable profit attributable to the invention as distinguished from non-patented elements, significant features/improvements added by the infringer, the manufacturing process or business risks‖ (note 15). factor 14, considers the ―opinion testimony of qualified experts‖ (note 16). these are important factors in patent licensing as the patent may cover some significant portion of the alleged product or process. guideline 15 state that the estimated royalty could be equated to the likely outcome of a hypothetical arm‘s-length licensing negotiation between the parties at the time of the infringement (note 17). in certain circumstances, some factors might increase the royalty rate, while others might cause it to decrease. 2.4 factors considered during litigation, especially in the second appeal before the federal circuit the case was first heard by the district court and it was decided that there was no infringement of algorithms patented by uniloc. in an appeal, the federal circuit remanded the case whilst reversing the non-infringement judgment recommending the issue to a jury. the jury found infringement and validity with claim 19 of the original patent and granted $388 million in damages. however, the judgment was overturned and in the post-trial motion the district court granted a new trial on infringement and willfulness. in addition, the district court granted judgment as a matter of law (jmol) of non-infringement and granted a new trial on damages due to the improper referral of the entire market value rule. uniloc appealed against this judgment of the district court. the facts in the second appeal were scrutinized as follows. the relevant law requires patent damages to be ―in no event, less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court‖ (note 18). the daubert standards, together with the highly recognized fifteen factors identified in georgia-pacific are used as guidelines for expert testimonies to determine a reasonable award for damages (note 19). with all these considerations, linn j has submitted his refusal of the 25% rule as: this court now holds as a matter of federal circuit law that the 25 percent rule of thumb is a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation. evidence relying on the 25 percent rule of thumb is thus inadmissible under daubert and the federal rules of evidence, because it fails to tie a reasonable royalty base to the facts of the case at issue (note 20). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 83 published by scholink inc. 2.5 damages calculation and expert testimony 2.5.1 uniloc‘s expert witness uniloc‘s expert based his calculation on the estimated value of the product key as $10 and utilizing the rule arrived at a baseline value of $2.50 per product key. he then calculated the total royalty amount by multiplying the baseline value with the total number of items embodying the key sold. then he checked the calculation against the total market value which approximate 2.9% revenue value of the licenses against the royalty rate. however, the court rejected the validity of his method under daubert and federal rules of evidence. the court held that the expert testimony has to be based on firm scientific and technological grounds and clearly connected to the facts of the case in issue. 2.5.2 total market value even though uniloc‘s expert only used the entire market value to cross-check his calculations, the court found that this method was erroneous, as the infringed patent, the product activation key, did not provide the basis for the customers‘ demand for the sold product or substantially create its value. using the entire market value calculation could have resulted in the jury being unduly influenced in their decision regarding the amount of damages awarded. (the fact that the judge advised the jury not to rely on this calculation was irrelevant). accordingly, a new trial on damages was awarded. 3. “rule of thumb” and “classical rule”: is there any ambiguity? in his articles written after the uniloc decision, goldscheider repeatedly highlights the fact that the term ―rule of thumb‖ was frequently referred to in the judgment (robert goldscheider, 2011). the cambridge dictionary defines the term ―rule of thumb‖ as ―[a] broadly accurate guide or principle, based on practice rather than theory‖. in his post uniloc articles, goldscheider distinguishes the rule linn j referred to in his judgment as the ―rule of thumb‖, to his own concept of the rule, to which he refers to as the ―classical rule‖. he states that the classical rule incorporates the norms identified in georgia pacific v. us plywood (note 21) and the standards introduced in daubert v. merrell dow pharmaceuticals (note 22). however, the opponents of the rule have pointed out, in a subsequent article, that the rule is merely a rule of thumb as ―there is no single, definitive statement of the rule‖ (note 23). an example of this is that, even among the proponents of the rule, no consensus exist as to whether the gross or net profit should be considered for the royalty calculation (note 24). this article went further to justify why the ―rule‖ is no longer a rule, but rather a practice to calculate royalty rates. in response to this, goldscheider retaliated with another article in an attempt to object to the points made in the above-mentioned article (robert goldscheider, 2012). he again reiterated his belief that in uniloc linn j clearly and repeatedly drew a distinction between the rule of thumb and the classic rule, and that, only the rule of thumb was declared to be inadmissible. he further notes that practitioners using the classic rule should be mindful of the teaching of the daubert and kumho tire cases, as well as rule 702 of the federal rules of evidence, to ensure that the final baseline royalty rate is based on, or takes into account, all relevant scientific, technical and other specialized knowledge (robert www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 84 published by scholink inc. goldscheider, 2012). this is a further attempt to distinguish his classic rule from the rule of thumb, which linn j held was a flawed method because ―it fail[ed] to tie a reasonable royalty base to the facts of the case at issue‖. although, the rest of the points goldscheider makes in this article seem to be relatively minor, it does demonstrate his enthusiasm to keep the rule active in the arena (robert goldscheider, 2012). 4. does the rule sustain the interests of the licensee and the licensor? a negotiation is typically based on balancing the interests of licensee and licensor. this scenario would be the best tool to evaluate the credibility of the 25 percent rule and the question of how it sustains the interests of the licensee and the licensor. the rule is usually applied in two distinct scenarios namely, royalty rate negotiations and the calculation of damages in infringement cases. there are different factors to be considered in applying the rule during the initial phase of licensing negotiations and to calculate the damages during an infringement. figure 1 pictographically represents different factors influencing the calculations of royalty rates during licensing negotiations. figure 1. factors influencing the calculations of royalty rates during licensing negotiations licensing technology readiness and demand of the technology in the market stage of technology. i.e., seed stage or mature stage type of industry www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 85 published by scholink inc. 4.1 different factors to consider when applying the rule 4.1.1 licensing (for calculating royalty rates or transactions) in an article published in les nouvelles, the author, grandstand, states that the royalty rate calculated in most licensing negotiations will depend on the licensor‘s share of total investments (ove grandstrand, 2006). various factors can however, impact this, including the nature of the technology, the relevant industry and market involved, as well as the stage of development of the ip. he states further that a share of investment of approximately 25% is relatively common in several industries (ove grandstrand, 2006). the authors provide the simple example of a company specializing in r&d with the view of selling licenses to companies who have the necessary production and marketing skills. in this situation, the seller‘s investment share would roughly equate the r&d portion of the total combined costs, which include the r&d expenditure, as well as the production and marketing costs. based on these facts, should no reason exist to assume any of these portions to be significantly larger than the others, then the r&d component could be accepted to equate to approximately 33%. this would constitute the upper range of a fair and reasonable royalty rate. ―a fair and reasonable deal can therefore be interpreted to exist when the return on investments of all trading partners are equalized‖ (ove grandstrand, 2006). however, the process gets more complicated when various other factors are considered including the developmental stage of the technology when the license is sold, the need for further investment demands, financial support, the specific licensor‘s strategy, the market readiness of the technology, as well as its demand (ove grandstrand, 2006). the author suggests that industry-specific empirical studies could offer useful guidelines to establish whether lower or higher trends occur in some industries. finally, the 25% rule generally applies in circumstances when the licensor‘s investment share is equal to 25% of the total investments (ove grandstrand, 2006). 4.1.2 calculating damages during infringement in patent infringement matters, damages are typically calculated by either determining the lost profits the patent owner suffered because of the infringement or by calculating a reasonable royalty, based on the use of the patent by the infringer. as noted above in 2.5b, the entire market value principle becomes very important when calculating damages in an infringement claim. clearly, the situation would differ significantly, if the infringed patent formed a substantial part of the sold item, in that it created the demand for the product, or substantially added to its value, as opposed to forming a less substantial part of the sold item, as in the uniloc case. as already noted, uniloc‘s damages expert estimated that the value of the infringed product key was roughly $10 and by applying the 25% baseline royalty rate, he calculated the damages as $2.50 per product license sold. he, therefore, concluded that an award of $564,946,803 would be reasonable, as microsoft had licensed 225,978,721 software products that contained uniloc‘s patented invention. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 86 published by scholink inc. however, the federal circuit held that as the rule seemed to fail to take into account the specific technology, party or industry involved in the particular matter and was, therefore, arbitrary and not a reliable method to determine the baseline fair royalty rate when calculating damages in a patent infringement claim. 5. royalty rate assessment (before and after uniloc): australian perspective the australian courts follow a different approach when dealing with royalty rate assessments and calculation of damages during infringement claims. the methods adapted by the courts for the calculation of royalty rates differs on a case-by-case basis according to multiple factors. a useful statement of principle was provided by ashley j in pearce v paul kingston ltd (pearce) (note 27). ―damages may be assessed on an assumed royalties basis (note 28). a similar approach obtains where a patentee cannot show, in a claim based upon loss of profits, that goods which he manufactured were likely to have been sold in a market established by the infringer (note 29). in that case the plaintiff recovered damages based upon lost manufacturer‘s profits for such sales as were diverted to the infringer; but in respect of sales that the plaintiff would not have made, damages in the form of royalties were imposed. such an approach was also taken in catnic components ltd v hill & smith ltd (note 30). where the patentee has not licensed exploitation of his patent in fact in the past, the court fixes the notional royalty payable by the infringer on the basis of what the infringer as a willing licensee would have been prepared to pay and the patentee as a willing licensor to accept (note 31). it should, however, be borne in mind that these various methods adopted in ascertaining the measure of damage are, as lord shaw said in watson laidlaw at 117 ―practical working rules‖. the core issue is always one of determining what is the proper measure of compensation, bearing in mind the futility of seeking mathematical precision. the onus of proof of damage lies, of course, upon the plaintiff‖. where the plaintiff licences the patented invention, prima facie the plaintiff‘s loss is measured by the licence fees or royalties that the defendant would have paid had the defendant‘s (infringing) conduct been licensed by the patentee. the licence fees or royalties charged by the patentee to others will be strong prima facie evidence of the rates to be charged. in pearce, ashley j assessed damages on a lost notional royalties basis (note 32). the court assumes, on the basis that the defendant should have acted lawfully, rather than unlawfully as it did, that a hypothetical negotiation occurred between a willing patentee, and a willing prospective licensee. in other words, the issue is what fee or royalty, on the balance of probabilities, the infringer would have had to pay in order to obtain lawfully that which in fact it obtained unlawfully (note 33). the court will also use this method to strike a notional royalty/licence fee in two other situations: (a) when the plaintiff claims damages for loss of profits, but is not able to persuade the court on the evidence to make an award of damages on this basis as to part, or as to the whole, of the loss of profits claimed; and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 87 published by scholink inc. (b) when the plaintiff has not exploited the invention at all, either by manufacture or licensing. in these situations, the plaintiff may struggle to lead sufficient evidence of what the ―market‖ for the licensing of the invention would have been. however, in advanced building systems pty ltd v ramset fasteners (aust) pty ltd, hill j made an alternative obiter assessment of damages on a notional royalty basis, although there was no evidence of the amounts which might be charged by patentees at arm‘s length in comparable situations (note 34). where the court awards damages on a notional or assumed royalty basis where loss of profits damages cannot be proven, that is consistent with the compensation principle because the right to licence a patented invention is one of the monopoly rights enjoyed by the proprietor and the value of that right is diminished by the defendant‘s infringement. the measure of that is the monetary advantage that would have accrued to the proprietor by the infringer having acted lawfully by seeking a licence, rather than acting as it did unlicensed. ―otherwise that property which consists in the monopoly of the patented articles granted to the patentee has been invaded, and indeed abstracted, and the law when appealed to would be standing by and allowing the invader or abstractor to go free‖ (note 35). in other words, the infringer cannot rely upon a patentee‘s difficulties in proving loss of profit damages to eliminate any compensatory damages claim by the patentee where the defendant has infringed. 6. what methods may replace 25 percent rule in future? the 25 percent rule have been used as a golden standard for royalty rate assessment and calculating damages until uniloc case. different methods have been in practice all over the globe to identify the royalties and to calculate the damages. however, no other method has been used as extensively as the 25 percent rule. in this scenario, the upcoming methods that have potential to replace the 25 percent rule should be refined extensively and should be flexible enough to get adapted to multiple cases. 6.1 nash bargaining solution nash bargaining solution (nbs) is one of the common methodologies used to calculate damages and to determine reasonable royalties during an infringement. this methodology suggests that, under specific conditions during a negotiation over a known surplus, the resulting contract should reflect a 50-50split of the surplus. nbs has been used in calculating damages in courts in multiple cases. however, some courts have rejected (note 36) the use of this method whereas some courts have accepted (note 37) the use of nbs in different instances. there are some interesting insights when nbs is compared with the 25 percent rule. the 25percent rule is usually applied to the entire profits associated with the allegedly infringing product. however, the nbs focuses only on the incremental profits earned by the infringer from the use of the asserted patents. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 88 published by scholink inc. 7. conclusions the present global economy promotes ip in many ways. concepts of ―soft ip‖ and ―open source systems‖ are becoming prominent developments in the ip field in promoting innovation (ruth taplin, 2010). on the other hand, violation of ip rights is another concern. ip infringements resulted in litigations and as a result, it contributes to large sum of compensations against the alleged infringer. in this scenario, management of ip assets has become the leading consideration. licensing and damage calculation are completely different aspects and the factors behind calculation of royalty rates for licensing and damages are quite different. according to this, 25% rule during licensing is still valid if discounting and uncertainty is taken into account. however, 25% rule for damage calculation is ambiguous because 25% rule as a theoretical construct fails to take proper account concerning any particular technology, industry, and market demand as well as the rule applied to the entire profits associated with the allegedly infringing product. in this particular case, the use of a unique product key activation method is not the reason for the attraction of users. nevertheless, the persuasive power and demand for licensed products that has arisen with the feature of tracking unlicensed product. therefore, the judgment or uniloc arguments seem to have missed that critical point which can be empirically proven. it is also observed that with clear empirical presentation and with the concluded comment ―we believe that the 25% rule has been correctly tossed onto the scrap-heap of junk science by the cafc‖ conclusion by post comments (john jarosz, 2010) (note 38). introduction of new methodology to replace the 25% calculation with comments over both for and against arguments clearly implies the need to detach from the 40 years old concept (ove grandstrand & marcus holgersson, 2012). finally, whether goldscheider has managed to distinguish his classic 25 percent rule from the rule of thumb, remains a hotly debated topic. however, according to the wipo manual on the valuation of intellectual property (ashley steven, 2016), technology valuation consists of the methodology used, as well as the data used in that methodology. it is therefore clear that the data used to determine the value of ip is as, if not more, important than the specific methodology chosen. one can argue that the methodology used is only as good as the data which backs it up. although, in uniloc microsoft did object to the use of the rule as a valid basis to calculate damages, they made the following statement in their court documents in support of their application for judgment as a matter of law (may 2009). therefore, whatever utility the 25% ―rule‖ might have in other cases where it was or might have been used as the starting point in the analysis, the evidence provided in this case does not support its use here… moreover, even adopting the rule as a starting point, mr. gemini still fails to base his royalty rate on the real-world factors relating to the accused products and the parties in this case… during his testimony, mr. gemini merely parroted the georgia-pacific factors and generally recited evidence that may fall within the ambit of each factor. critically, he never indicated the extent to which each factor might drive the royalty rate up or down from the 25% figure. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 89 published by scholink inc. in light of the above, it seems that microsoft‘s major objection was not so much the rule itself but the manner in which uniloc‘s witness applied it. had uniloc‘s expert witness managed to apply the georgia-pacific factors satisfactorily, basing them on the relevant circumstances of the case, changes are that the outcome of the caser regarding the rule might have been different. acknowledgements this article is an extended work of research article prepared during masters of intellectual property law offered by world intellectual property organization and queensland university of technology, brisbane. authors would like to thank prof. phillip mendes for the guidance and support provided during the research and prof. kamal puri for the efforts in developing a prodigious master of law program. references douglas, k. g., & vincent, e. o. (2011). simply wrong: the 25% rule examined. les nouvelles, 263. john, j., carla, m., & michael, w. (2010). the 25% rule lives on. law, 360. kamil, i. (2003). intellectual property: a power tool for economic growth (pp. 25-39). world intellectual property organization. https://doi.org/10.1016/s0172-2190(03)00075-9 ove, g. (2006). fair and reasonable royalty rate determination-when is the 25% rule applicable? les nouvelles. ove, g., & marcus, h. (2012). the 25% rule revisited and a new investment-based method for determining frand licensing royalties. les nouvelles, 47(3), 188-195. robert, g. (2011). the classic 25% rule and the art of intellectual property licensing. 6 duke law & technology review. robert, g. (2012). the current realities of the classic 25% rule: an attempt to put the house in order. less nouvelles. robert, g., john, j., & carla, m. (2002). use of the 25 percent rule in valuing ip. les nouvelles, 123, 132-133. ruth, t. (2010). cross border intellectual property and theoretical models‘ in intellectual property, innovation and management in emerging economies. in t. ruth, & z. n. alojzy (eds.), routleg (p. 12). ted, h. (2002). a new method to value intellectual property. 30 american intellectual property law association quarterly journal, 353. https://doi.org/10.1016/s0172-2190(03)00075-9 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 90 published by scholink inc. notes note 1. marconi wireless tel co v united states, 320 us 1 (1943); georgia-pacific corp v us plywood corp, 318 f supp 1116 (sdny 1970). note 2. 632 f 3d 1292 (fed cir, 2011). note 3. dorian berger and kenneth weatherwax from marconi to microsoft: the rise and fall of the ―25 percent rule‖ for determining damages from patent infringement (2011) <http://lowensteinweatherwax.com/publications/>. note 4. ibid. note 5. daubert v merrell dow pharmaceuticalsinc inc, 509 us 579 (1993). note 6. john jarosz, carla mulhern and michael wagner, ―the 25% rule lives on‖ (2010); uniloc, 632 f 3d 1292 (fed cir, 2011) 1313. note 7. uniloc, 632 f 3d 1292 (fed cir, 2011) 1313. note 8. uniloc, 632 f 3d 1292 (fed cir, 2011) 1313. note 9. ibid 357-9. hagelin explains that in the cost approach the concern is drawn on replacing identical or similar assets, while the market approach examines the transaction cost involved even between unidentified parties. the income approach is the relevant methodology, which was utilized in licensing agreements to calculate royalties between parties. note 10. ibid. note 11. uniloc, 632 f 3d 1292 (fed cir, 2011). note 12. daubert v merrell dow pharmaceuticals inc, 509 us 579 (1993). note 13. legal information institute, daubert standard <https://www.law.cornell.edu/wex/daubert_standard>. note 14. 243 f supp 500 (sdny 1965). note 15. ibid. note 16. ibid. note 17. barclay damon, ―long-standing ‗25 percent rule of thumb‘ for calculating reasonable royalty damages rejected by federal circuit panel‖ < http://barclaydamon.com/alerts/long-standing-25-percent-rule-of-thumb-for-calculating-reasonable -royalty-damages-rejected-by-federal-circuit-panel>. note 18. 35 u.s.c. s 284. note 19. georgia-pacific, 243 f supp 500 (sdny 1965). note 20. uniloc, 632 f 3d 1292 (fed cir, 2011). note 21. 243 f supp 500 (sdny 1965). note 22. 509 us 579 (1993). note 23. uniloc, 632 f 3d 1292 (fed cir, 2011). note 24. ibid. note 25. uniloc, 632 f 3d 1292 (fed cir, 2011). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 91 published by scholink inc. note 26. above n17. note 27. pearce v paul kingston ltd (1992) 25 ipr 591 59 (ashley j). note 28. meters ltd v metropolitan gas meters ltd (1911) 28 rpc 157, 164-5. note 29. watson & laidlaw ltd v pott, cassels & williamson (1914) 3 rpc 10, 117-120. note 30. catnic components ltd v hill & smith ltd [1893] fsr 512. note 31. general tire & rubber co v firestone tyre & rubber co ltd [1976] rpc 197, 221 (wilberforce j). note 32. pearce v paul kingston ltd (1992) 25 ipr 591 59 (ashley j). note 33. irvine v talksport ltd [2003] fsr 35. note 34. advanced building systems pty ltd v ramset fasteners (aust) pty ltd (2001) 52 ipr 305 [191]-[203]. note 35. watson, laidlaw & co ltd v pott, cassels and williamson (1914) 31 rpc 104, 120. note 36. oracle am inc v google inc, 798 f supp 2d 1111, 1119–21 (n.d. cal. 2011); dynetix design solutions, inc v synopsys, inc, no 11-5973, 2013 wl 4538210, (n.d. cal. aug. 22, 2013); robocast, inc. v. microsoft corp, no10-1055, 2014 wl 350062 (d. del. jan. 29, 2014). note 37. mformation techs., inc. v. research in motion ltd., no. 08-4990, 2012 wl 1142537 (n.d. cal. mar. 29, 2012)—gen-probe inc. v. becton dickinson & co., no. 09-2319, 2012 wl 9335913 (s.d. cal. nov. 26, 2012)—sanofi-aventis deutschland gmbh v. glenmark pharms. inc., usa, no. 07-5855, 2011 wl 383861 (d.n.j. feb. 3, 2011). economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 126 original paper the impact of tourism policies on the competitiveness of tourist destinations weichen ke 1 1 the university of queensland, st lucia, qld 4072, australia received: may 10, 2024 accepted: may 27, 2024 online published: may 29, 2024 doi:10.22158/elp.v7n1p126 url: http://dx.doi.org/10.22158/elp.v7n1p126 abstract the tourism sector, as an integral component of the global economy, not only directly propels the economic growth of numerous countries and regions but also fosters cultural exchange and environmental preservation indirectly. on a global scale, the formulation and implementation of tourism policies have become pivotal factors in enhancing the competitiveness of tourist destinations. these policies not only effectively promote infrastructure development and the refinement of tourism products and services but also exert profound influences on environmental conservation, industry guidance, and talent cultivation. increasingly, countries and regions recognize that scientifically formulated and balanced tourism policies represent an effective means to achieve sustainable economic growth and safeguard cultural heritage. the diversification and innovative implementation of tourism policies directly or indirectly impact the attractiveness and competitiveness of a destination, thus necessitating a comprehensive consideration of multiple factors in policy-making to achieve harmony and equilibrium. keywords tourism policy, economic growth, cultural heritage protection, sustainable development, policy balance 1. introduction the competitiveness of a tourist destination denotes its capacity to captivate tourists, provide travel services, meet their demands, and stand out in the market. it encompasses not only the unique allure of natural landscapes and cultural heritage but also various factors such as the completeness of tourism infrastructure, service quality, and marketing strategies. tourism policies play an indispensable role in this process. through diverse policy measures, governments and relevant entities can effectively enhance the comprehensive competitiveness of a tourist destination. among these, policies regarding www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 127 investment in and construction of tourism infrastructure lay the cornerstone. by improving transportation accessibility, enhancing tourist reception capacity, and fostering a secure tourism environment, they directly elevate the overall quality of the tourism experience. furthermore, policy innovations in tourism products and services, including the introduction of distinctive activities, elevation of service standards, and reinforcement of tourist engagement, further enrich the tourism experience, encouraging repeat visits and sustained consumption. by implementing stringent environmental regulations and protective measures, natural landscapes, and cultural heritage are safeguarded from excessive development and degradation. concurrently, policy guidance and support for the direction of tourism industry development, through means such as optimizing the industry chain and applying innovative technologies, enhance the overall competitiveness of the tourism sector. lastly, policies concerning the cultivation and management of tourism talents can enhance the professionalism and comprehensive abilities of practitioners, thus providing tourists with a superior service experience. in conclusion, through an analysis of tourism policies, a comprehensive understanding of their multifaceted impacts on the competitiveness of tourist destinations can be attained, thereby offering theoretical foundations and practical references for formulating more scientific and feasible tourism policies. 2. theoretical analysis of tourism destination competitiveness 2.1 components of tourism destination competitiveness the core constituents shaping the competitive edge of tourist destinations encompass a myriad of factors, including resource endowment, infrastructure, service excellence, innovation prowess, and brand image. resource endowment, as the bedrock, encompasses natural landscapes and cultural heritage, endowing destinations with an unparalleled allure. natural landscapes such as beaches, mountains, or lakes, as well as cultural heritage like historical edifices and traditional festivities, significantly enhance the quality of tourist experiences. the completeness of infrastructure influences the convenience of travel, encompassing the extent of transportation networks, the quality of accommodation and dining facilities, and the adequacy of public services, all directly impacting tourist experiences. the quality of service stands as a pivotal factor in sustaining and enhancing tourism experiences. the standardization, personalization, and professionalism of services directly affect visitor satisfaction and revisit intentions. the friendliness of service personnel, proficient tour guidance, and adept crisis management are pivotal indicators of service quality. innovation prowess pertains to a destination’s ability to continually attract tourists, with novel tourism products, technological applications, and emerging interactive experiences serving as effective means to augment allure and competitiveness. innovation not only caters to the increasingly diversified demands of tourists but also spawns new market trends, enhancing the destination’s market vitality. brand image serves as the linchpin and outward manifestation connecting these elements (ongan & gozgor, 2018, pp. 308-316). a successful tourist destination brand effectively communicates unique cultural and natural charms, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 128 crafting a positive and captivating image. brand cultivation involves positioning, promotion, and marketing. successful brand management not only heightens visibility but also fosters psychological identification and loyalty, prompting visitors to share their experiences and thereby generating favorable word-of-mouth effects. the organic composition and complementary interactions of these elements collectively determine the competitive edge of a tourist destination; any deficiency or weakness in any aspect may constrain overall competitiveness. hence, in the endeavor to enhance the competitive edge of tourist destinations, it is imperative to comprehensively consider the synergistic interplay of various elements, striving to forge a destination with robust allure and enduring vitality in the market. 2.2 factors affecting the competitiveness of tourism destinations the competitiveness of tourist destinations can be simply construed as the ability of a locale to allure, offer unique travel experiences, and retain visitors. the factors influencing the competitiveness of tourist destinations are manifold, encompassing both tangible and intangible aspects. primarily, the completeness of infrastructure in a tourist destination, including transportation, accommodation, attractions, and dining facilities, significantly impacts the visitor experience. without convenient transportation, visitors struggle to reach their destination smoothly; lacking high-quality accommodation and dining services, their travel experience will fall short of expectations. beyond infrastructure, cultural and natural resources constitute a vital part of a tourist destination’s allure. a place imbued with historical charm and natural splendor undoubtedly exerts immense appeal on visitors. the primary motive for visitors’ arrival is often to experience unique cultures and natural environments distinct from their daily lives, which cannot be replaced by artificial landscapes or commercial facilities. therefore, tourist destinations need to unearth and preserve their unique resources to enable visitors to genuinely experience their distinctiveness. on the other hand, to enhance a destination’s competitiveness, policies formulated by local governments and tourism management authorities are crucial. policy support and regulation can provide a favorable environment for the development of the tourism industry. for instance, increasing investment in tourism infrastructure construction, offering diversified tourism products, implementing reasonable ticket pricing strategies, and providing training for tourism practitioners. these measures can effectively enhance visitor satisfaction and further strengthen the destination's competitiveness (thema, suerkemper, grace et al., 2013, pp. 60656-60666). equally important is the formulation and implementation of environmental protection policies, as only by adhering to the principles of sustainable development can the sustainable utilization of tourism resources be ensured, thereby achieving long-term tourism allure. many successful tourist destinations also recognize the importance of marketing and promotion. in a modern interconnected society, promoting the unique resources and tourism products of tourist destinations through social media and the internet has become more convenient, attracting more potential tourists. however, excessive marketing can lead to the overconsumption of resources, thus requiring a balance between promotion and protection to be struck. in conclusion, good infrastructure, superior natural and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 129 cultural resources, reasonable policy support, and effective marketing strategies collectively constitute important factors influencing the competitiveness of tourist destinations. only by comprehensively considering these aspects can truly enduring and competitively strong tourist destinations be developed. 3. the direct impact of tourism policies on competitiveness 3.1 policy investment and construction of tourism infrastructure the impact of tourism policies on the competitiveness of tourist destinations should not be underestimated, especially in terms of investment and construction of infrastructure. clear policy guidance can significantly enhance the attractiveness and service capabilities of a destination. specific measures include but are not limited to, the construction of more convenient transportation facilities, upgrading hardware equipment at tourist attractions, and improving daily services for tourists. these measures not only directly enhance the tourism experience but also indirectly promote local economic development. the construction of tourism transportation facilities directly improves the travel experience for tourists. government policies encourage the construction of highways, airports, and ports, making it faster and more convenient for tourists to reach their destinations. these convenient transportation facilities not only serve tourists but also greatly improve the daily lives of local residents, thereby increasing the overall attractiveness of the tourist destination (cunha & cunha, 2005, p. 47). upgrading hardware equipment at tourist attractions is also a focus of policy investment. advanced communication equipment, comprehensive information guidance systems, and efficient emergency rescue facilities can provide tourists with a more secure and comfortable tourism experience. imagine a natural scenic area with modern facilities that can respond quickly to weather conditions or emergencies; tourists naturally develop trust and longing for such a place. such policy measures not only reflect the government’s attention to the tourism industry but also demonstrate the management level and service capabilities of a locality. improving daily services for tourists is also an important aspect of enhancing the competitiveness of tourist destinations. from the establishment of tourist information service centers to the hiring of multilingual service personnel and the addition of convenient facilities such as public toilets and drinking water points, all reflect the government’s profound understanding of tourist needs. continuous investment in policies often also stimulates follow-up investment from social capital, forming a virtuous cycle of infrastructure construction. especially for some developing tourist destinations, the government’s early investment often sparks greater enthusiasm for social investment. developers and operators, seeing the government’s strong infrastructure construction efforts, are more willing to invest funds in scenic area development and supporting facilities construction. eventually, a complete tourism industry chain is formed, leading to the flourishing development of the entire region’s tourism industry. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 130 3.2 policy support for the development and improvement of tourism products and services the formulation and implementation of tourism policies exert a direct and far-reaching influence on the development and enhancement of tourism products and services. sound policies can attract capital investment, create more cultural and natural landscapes for tourism destinations, ensure the improvement of service quality, and thus enhance their competitiveness. on one hand, governments can encourage and support the development of new tourism products through policies, including funding assistance, tax incentives, and providing preferential loans to assist scenic spots or enterprises in product innovation. for instance, hainan province has attracted numerous investors to develop high-end resorts and international tourism projects through preferential policies, enriching the variety of tourism products and enhancing the overall tourism experience. transitioning from past singular beach tours to diversified activities such as water sports and health tourism has attracted more domestic and foreign tourists. on the other hand, the impact of tourism policies also manifests in the enhancement of service quality. policymakers can regulate the standards of the tourism service industry through legislation or administrative orders. for example, the implementation of the “tourism law” in china in 2016 clearly defines the standards and regulatory measures for tourism services, detailing the training and qualification certification of tourism practitioners, significantly improving the overall service level and tourist satisfaction. similarly, the spanish government introduced the “tourism excellence plan” to improve the quality of tourism services, formulating a series of measures to ensure professionalism and high quality of service. the investment in infrastructure construction greatly improves the tourism experience, with well-developed road systems, convenient public transportation, and high-standard hotel and catering facilities being important factors attracting tourists. japan, in its development process, vigorously promoted infrastructure construction such as the shinkansen and airports through national policies, significantly reducing travel time between major cities, improving international service standards, and enabling tourists to explore its rich cultural and natural attractions more conveniently. in summary, tourism policies play a facilitating role in the development and improvement of tourism products and services, providing development impetus, improving product and service quality, and enhancing overall competitiveness for tourism destinations. reasonable and effective policies not only directly drive the prosperity of the tourism economy but also promote comprehensive socio-economic development, laying a solid foundation for the long-term development of tourism destinations (cheng, n.d.). 3.3 policy support for tourism marketing and promotion the endorsement of tourism policies in marketing and promotion stands as a pivotal facet in elevating the competitive edge of tourist destinations. governmental measures, often orchestrated through fiscal support, tax incentives, and promotional subsidies, serve to invigorate the tourism market. financial grants from the government amplify the promotional efforts of tourist attractions and service facilities. for instance, sponsoring large-scale tourism expos, participating in international tourism fairs, and orchestrating local-themed promotional events all contribute to acquiring a broader audience and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 131 enticing them to select a destination for their travels. policy support effectively propels destination branding and optimizes market positioning. governmental promotional strategies are frequently tailored to incorporate the locality’s unique historical, cultural, and natural landscapes into meticulously crafted promotional campaigns. for example, thailand’s “amazing thailand” global campaign, propelled by governmental initiatives, disseminates the country’s scenic beauty, culinary delights, and cultural uniqueness worldwide through mediums such as films, tv dramas, and advertisements. such policy-driven promotional endeavors significantly enhance thailand’s recognition and reputation as a tourist destination in the international arena. within marketing strategies, policy-guided collaborations between local enterprises and international tourism marketing platforms facilitate the effective dissemination of local tourism resources into the global market. tax incentives and marketing subsidies lower the costs for tourism companies and platforms when promoting local tourism products, thereby fostering a greater willingness to invest resources in marketing endeavors. for instance, italy’s implementation of the “tourism recovery plan” during the pandemic easing period entailed substantial tax relief for tourism businesses and issuance of tourism vouchers for international visitors, which attracted a substantial influx of international tourists to reselect italy as their destination of choice. policy support for marketing also manifests in driving digital marketing initiatives. governments, through technological guidance and financial assistance, promote the digitization of scenic spots and tourism services, constructing intelligent tourism platforms. these platforms integrate big data technology to analyze visitor preferences, optimize promotional strategies, and target advertisements accurately. such technological dissemination enhances tourists’ travel experiences while bolstering the competitiveness of tourist destinations in the market. in formulating tourism policies, governments, through robust support for marketing and promotion, foster the shaping of destination images and the elevation of brands, thereby positioning destinations favorably in global competition. optimized and rationalized tourism policies serve not only as short-term means to attract tourists but also as crucial drivers for the long-term enhancement of destination competitiveness (costantini & mazzanti, 2011, pp. 132-153). 4. indirect impacts of tourism policies on competitiveness 4.1 policy protection and improvement of the tourism environment the tourism policy plays a crucial role in enhancing the competitiveness of tourist destinations by safeguarding and enhancing the tourism environment. policymakers strive to create a more appealing and sustainable tourism environment by implementing various environmental regulations and measures. this not only helps to preserve the beauty and purity of natural landscapes but also enhances tourists’ experiences and satisfaction, indirectly boosting the market competitiveness of tourist destinations. taking ecotourism as an example, governments have enacted a series of policies to strictly control tourist numbers, limit development projects, and protect natural resources. for instance, in china’s yellow mountain scenic area, strict visitor management regulations have been implemented, specific www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 132 hiking routes established, and complimentary eco-friendly bags provided to reduce environmental pollution from waste. these measures effectively preserve the natural scenery of yellow mountain, making it a sought-after tourist destination for domestic and international travelers, significantly enhancing its position and competitiveness in the global tourism market. furthermore, by strictly regulating the discharge of pollutants such as wastewater and exhaust gases through policies, various tourist destinations can maintain the ecological balance of residents and tourists. in the maldives, the government has enacted stringent regulations for water conservation, prohibiting hotels and resorts from discharging wastewater into the sea while mandating all tourist facilities to treat wastewater. this not only protects the fragile marine ecosystem of the maldives but also allows tourists to appreciate the local commitment to environmental protection while enjoying the beautiful scenery, thereby enhancing their satisfaction. with policy support, many tourist destinations also actively promote ecological engineering and tourism infrastructure construction to enhance their attractiveness by improving the local ecological environment. these specific environmental policies and measures not only protect and improve the tourism environment in the short term but also provide guarantees for the long-term sustainable development of tourist destinations. by protecting and improving the tourism environment through policies, tourist destinations can enhance their uniqueness and appeal, establish a good brand image, and stand out in the fierce market competition (hontou, diakoulaki & papagiannakis, 2007, pp. 28-41). such policy implementation is not only a respect for the environment but also a strategic consideration for the long-term development of the tourism industry, contributing to a win-win situation for economic benefits and ecological protection. 4.2 policy guidance and support for tourism industry development tourism policies can significantly guide and bolster the development of the tourism industry, thereby indirectly enhancing the overall competitiveness of tourist destinations. government formulation and implementation of a series of tourism policies involve concrete actions beyond mere rhetoric, encompassing funding, resource allocation, and various public services. this is particularly crucial for destinations aspiring to stand out in the international tourism market. tax incentives, as a policy tool, can greatly reduce the operating costs of enterprises in the tourism sector. for instance, some countries and regions provide tax exemptions for newly built hotels and tourist attractions, thereby attracting more investors to engage in the tourism industry and improving the quality of local tourism facilities and services. furthermore, providing low-interest loans or direct financial subsidies helps small and medium-sized tourism enterprises overcome the initial difficulties and achieve sustainable development. infrastructure development is also a crucial area of policy support. government investment in improving transportation networks, renovating historical sites, and constructing modern tourism service centers directly enhances the convenience of travel and tourism experiences for visitors. for example, china’s belt and road initiative not only significantly strengthens the infrastructure connectivity of countries along the route but also promotes cultural exchange and tourism cooperation, expanding the depth and breadth of the tourism market. policies in public safety and health management can greatly www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 133 enhance tourist confidence and attract more visitors. governments can create a safe and comfortable tourism environment through strict health standards, security measures, and emergency rescue mechanisms. following the outbreak of the covid-19 pandemic in 2019, many countries implemented stricter health control policies, such as pre-travel nucleic acid testing and post-arrival isolation measures, ensuring tourist safety and enhancing the competitiveness of tourist destinations during the pandemic. brand promotion policies are also indispensable. for example, many countries and regions regularly showcase their local tourism resources at international tourism exhibitions to promote themselves. government departments continuously enhance their global visibility and reputation in the tourism market through various cultural exchange activities, international tourism promotional videos, and invitations to foreign media and travel influencers to experience the destinations. for example, japan has successfully attracted a large number of international tourists by implementing the “cool japan” strategy, where cultural export and tourism promotion go hand in hand. talent training policies can provide support for the sustainable development of the tourism industry. through the establishment of tourism colleges and professional training courses, the government has provided the industry with a large number of specialized and skilled personnel, which has improved service standards and management efficiency. in addition, the formulation of relevant talent admission policies has attracted top international tourism management talents and innovators, who bring with them new ideas and technologies that also promote the modernization and transformation of the destination tourism industry (jin & song, 2009, pp. 75-93). 4.3 impact of policies on the cultivation and management of tourism talents policies exert significant indirect influence on the cultivation and management of tourism talents, constituting a pivotal factor in enhancing the competitiveness of tourist destinations. the provision of high-quality tourism services relies heavily on proficient talents, with policies assuming a guiding and supportive role therein. for instance, certain national and regional governments enact preferential policies, subsidizing universities and vocational schools to establish courses in tourism-related disciplines, thereby elevating the overall caliber of tourism practitioners. such policies not only afford students greater learning and practical opportunities but also directly propel the standardization and systematization of tourism education, thereby enhancing industry benchmarks. specifically, some regions attract outstanding students aspiring to join the tourism industry through government scholarships, student loans, and tuition waivers. the implementation of these policy measures enables students to receive better vocational education and skills training, ultimately nurturing high-caliber tourism talents. furthermore, governments actively promote collaboration between academia and industry, encouraging tourism enterprises to co-establish internship bases with universities to provide students with more practical opportunities, thereby amalgamating theory with practice and enhancing students’ practical skills. beyond the realm of education, governments have also invested considerable effort in nurturing managerial talents in tourism. by regularly hosting training sessions, seminars, and exchange activities, they ensure that managers stay abreast of new industry demands by continually www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 134 updating their knowledge and skills. additionally, local governments often incentivize enterprises to recruit high-caliber managerial talents through the formulation and implementation of relevant policies, thereby enhancing the management standards of tourist destinations. for instance, singapore has instituted a tourism manpower development strategy aimed at training and enhancing talents at all levels of the tourism industry, ensuring its sustained competitive advantage in the international market. regarding the management of tourism talent, the impact of policies is equally pronounced. standardized management systems enable industry practitioners to work in a fair and equitable professional environment. governments also impose stricter standards and requirements on tourism enterprises, encouraging them to enhance service quality and safeguard the rights of practitioners. these measures not only contribute to boosting employee motivation and satisfaction but also enhance overall service quality, thereby bolstering the attractiveness and competitiveness of tourist destinations. 5. conclusion tourism policies play a multifaceted and crucial role in enhancing the competitiveness of tourist destinations. from investments and developments in infrastructure to innovation in products and services and precise targeting in marketing efforts, their direct impact is evident. however, more profound are the indirect effects of these policies, such as environmental protection, industry guidance, and talent development, which collectively shape a sustainable ecosystem for the tourism industry. balancing economic growth with cultural heritage preservation and short-term gains with long-term development is a central challenge in formulating tourism policies. effective tourism policies should not only focus on current tourism demands and market trends but also anticipate future development trends and potential challenges. through systematic analysis and evaluation of the multidimensional impact of tourism policies on competitiveness, policymakers can find the optimal balance in practice. taking environmental protection as an example, a destination that can consistently attract tourists must possess a favorable natural and cultural environment. therefore, while tourism policies incentivize economic growth, they must strictly enforce environmental protection measures to ensure the sustainable utilization of tourism resources. in terms of industry guidance, policies need to stimulate tourism enterprises to innovate and optimize through reasonable incentive mechanisms and policy adjustments, enhancing the overall industry’s competitiveness. regarding talent development, strengthening educational training and improving professional skills can enhance the quality of tourism services, thereby gaining the trust and favor of more tourists. in conclusion, a scientific, comprehensive, and innovative tourism policy is key to enhancing the competitiveness of tourist destinations. in the future formulation of tourism policies, greater emphasis should be placed on comprehensive considerations from multiple levels and perspectives to achieve a win-win situation for economic, cultural, and environmental benefits, ultimately creating tourist destinations that are more attractive, competitive, and sustainable. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 135 references cheng, w. (n.d.). the impact of environmental policy regulation on the competitiveness of high energy-consuming industries based on the data inspection of four industries of steel, thermal power, nonferrous metals, and papermaking in zhejiang province. international science and culture center for academic contacts (russia), zhengzhou yingchun conference planning co., ltd. (china). proceedings of the 4th international conference on economy, judicature, administration, and humanitarian projects (jahp 2019) (advances in economics, business, and management research, vol. 94). school of business jiaxing university. https://doi.org/10.2991/jahp-19.2019.160 costantini, v., & mazzanti, m. (2011). on the green and innovative side of trade competitiveness? the impact of environmental policies and innovation on eu exports. research policy, 41(1), 132-153. https://doi.org/10.1016/j.respol.2011.08.004 cunha, d. k. s., & cunha, d. c. j. (2005). tourism cluster competitiveness and sustainability: proposal for a systemic model to measure the impact of tourism on local development. brazilian administration review, 2(2), 47. https://doi.org/10.1590/s1807-76922005000200005 hontou, v., diakoulaki, d., & papagiannakis, l. (2007). a multi-criterion classification approach for assessing the impact of environmental policies on the competitiveness of firms. corporate social responsibility and environmental management, 14(1), 28-41. https://doi.org/10.1002/csr.112 jin, x. d., & song, b. h. (2009). the exploration of the impact of executing core employment policies and systems on firm competitiveness. journal of vocational education training, 12(1), 75-93. https://doi.org/10.36907/krivet.2009.12.1.75 ongan, s., & gozgor, g. (2018). tourism demand analysis: the impact of economic policy uncertainty on the arrival of japanese tourists to the usa. international journal of tourism research, 20(3), 308-316. https://doi.org/10.1002/jtr.2182 thema, j., suerkemper, f., grace, k. et al. (2013). the impact of electricity demand reduction policies on the eu-ets: modeling electricity and carbon prices and the effect on industrial competitiveness. energy policy, 2013, 60656-60666. https://doi.org/10.1016/j.enpol.2013.04.028 https://doi.org/10.2991/jahp-19.2019.160 https://doi.org/10.1016/j.respol.2011.08.004 https://doi.org/10.1590/s1807-76922005000200005 https://doi.org/10.1002/csr.112 https://doi.org/10.36907/krivet.2009.12.1.75 https://doi.org/10.1002/jtr.2182 https://doi.org/10.1016/j.enpol.2013.04.028 microsoft word elp-v2n1-p90 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 1, 2019 www.scholink.org/ojs/index.php/elp 90 original paper affective response and attraction effect on consumer’s intention to buy eric santosa1* 1 economics & business faculty, unisbank university, semarang, indonesia * eric santosa, economics & business faculty, unisbank university, semarang, indonesia received: may 3, 2019 accepted: may 17, 2019 online published: may 30, 2019 doi:10.22158/elp.v2n1p90 url: http://dx.doi.org/10.22158/elp.v2n1p90 abstract studies of attraction effects commonly exercised by an experimental techniques, in which the effect is truly experienced. while the effect is apparently obvious, what is the consequence of generating an intention to buy? in addition, do the consumer’s moods and emotions affect the intention? if the moods are not fine does the consumer still want to choose the same brand/product? the answers are the purpose of the study. a sample which consists of 100 respondents is withdrawn by convenience and judgment method. amos 16.0 and spss 16.0 are employed in analyzing data. the result shows that both, the attitude and subjective norm, are affected by the attraction effect. in addition, while the creation of attitude is affected by the attraction effect, it also influenced by the affective response. futhermore, the customer’s intention to buy is built up as theorized. keywords affective response, attraction effect, attitude, subjective norms, perceived behavioral control 1. introduction the attraction effect phenomenon declares that a particular object will be seemingly more appealing when another close objects’ attributes are inferior (huber, payne, & puto, 1982; huber & puto, 1983; ratneshwar, shocker, & stewart, 1987). in marketing the effect might lead to a tactical sales which let a particular product has higher transaction. say, a korean leather jacket which its price is $500 has no much attention when it is displayed alone in the corner of a perticular store. it will later on, be more attractive when the store owner pickes up other jackets which apparently their quality are not similar, look like inferior to the korean jacket, while its prices are more expensive and they are placed around. consumers likely prefer the product which is dominant to other/others. its superiority obviously makes somebody to eagerly choose the product. sentient decision science (2014) gives examples of two www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 91 published by scholink inc. high-end toasters. toaster a has two slots which are wide enough for bagels, and costs $49. toaster b has four slots which are wide enough for bagels as well, and costs $89. which one will be choosen? by trading-off between number of slots and price, a customer might be willing to pony up the extra $40 bucks and go fo toaster b. when a third toaster is added, it likely the choice changed. how come? it happens as follows. toaster c has two slots, it costs $49, but it is not wide enough for bagels. toward toaster a, it has similar price, but based on the width it is inferior than a since it is not wide enough for bagels. it produces an attraction effect toward the toaster a. while the toaster a has a dominating position, it looks more appealing which inevitably increases the preference for toaster a. some studies also confirm the phenomenon, such as kardes et al. (1989), aaker (1991), simonson and tversky (1992), lehman and pan (1994), sivakumar. and cherian (1995), lianxi et al. (1996), doyle et al. (1999), dhar and simonson (2003), kim and hasher (2005), kohler. (2007), won (2012), howes et al. (2016), and gluth et al. (2017). such occurrence also happens when the superiority does not only denote to both attributes, but also in a particular attribute only (asymmetrical dominance) (simonson, 1989; simonson & tversky, 1992; huber & puto, 1983; hedgcock & rao, 2009). concerning with marketing, the attraction effect is basically not far from an individual’s desicion to choose a particular product. it is proclaimed that because of the effect, an individual might alter his/her choice from non-dominating product to dominating product. from psychological point of view, somebody might ask, what is the chronology of decision? what part of the process which finally activates the behavior (e.g., to choose the dominating product)? santosa (2014, 2015) explores the influence of the effect on the activation of behavioral intention. while the activation of a particular behavior is preceded by a behavioral intention, the intention itself is ignited by an attitude, a subjective norm and a perceived behavioral control (ajzen, 1991). further, santosa (2013, 2014, 2015) finds out that the process of generating the intention is inevitably affected by the attration effect, particularly the attitude and the subjective norm. in other word, the process of generating a behavior through an intention is obviously under the influence of the attraction effect. it is commonly understood that a behavior is resulted by affective and cognitive processes (peter & olson, 2002; stangor, 2014). while zajonc (1980) recognizes that feelings (affective) often precede cognitive processes, the thought is inevitably influenced by feelings. in addition, when cognitive is in process during making a decision, it is unavoidably affected by affective (isen, 2001). while it is known that affect consists of positive and negative affect, some studies, such as barone et al. (2000), kahn and isen (1993), lee and sternthal (1999) affirm that the positive affect enhances problem solving and decision making. a further study of gable and harmon-jones (2010) state that positive and negative affects of low motivational intensity broaden attention, whereas positive and negative affects of high motivational intensity narrow attention. since the attraction effect might alter a choice, and affect whether positive or negative, affected a thought, what kind of choice when the two simultaneously influence the cognitive processes? the answer is the purpose of this study that is to intensely know the influence of affective respond and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 92 published by scholink inc. effect of attraction to customer’s behavior, particularly his/her behavioral intention. some theoretically reviews are provided. an enlightenment of methods, analysis and findings are reported. formulating hypotheses a. the relation between the attraction effect (ae) with the attitude (ab) variable, and the subjective norm (sn) variable. in a cognitive system, the work of information and evaluation are in line; they work in the same direction. information might lead to a thought, which in turn develops into a conviction (peter & olson, 2002). whether information or evaluation makes a great contribution to assessing a particular object, it is inevitably affected by the assessor’s subjectivity. thereby, an assessment towards a particular brand leads to a value, in which a consumer believes that the particular brand has a perceptive attribute in a particular product category (pan & lehmann, 1993). as a matter of fact, the perceptive attribute does not actually exist, it is an abstract. therefore, each consumer might have a different perception (schiffman & kanuk, 2000). about the assessment itself, the consumer firstly classifies the information, incorporates it with their past experience, and later on comes to a conclusion which arises as a response (peter & olson, 2002). the subjective assessment occurs by means of a learning process related to the attribute’s dimensions, by comparing a brand with others, and even reducing the amount of the attribute’s dimensions which had previously just been perceived. with the great quantity of brands available and the attributes of each product category, this makes it very difficult for consumers to integrate and analyze information, so they simplify their decision making process through subjective judgments, or a belief in a particular brand. the reason is the limitations of people’s cognitive capacity (bettman, 1979; newell & simon, 1972). in some studies on prices, consumers compared one price with others, resulting a perception of price. the price perception inevitably affected the consumers’ comprehension of the quality and value of the products, and hence the intention to buy (dodds et al., 1991; monroe & petroshius, 1981). the becoming more interesting of a product when an inferior product comes closer (attraction effect) obviously demonstrates the subjective judgment of consumers, the subjective judgment will lead to an attitude creation through an integration of belief and evaluation. the subjective norm, which is developed through a normative belief and the motivation to comply, is apparently subjective. the more favorable aspects of the subjective norm clearly are in accordance with the inner wants, which always care for other people’s intentions. therefore the subjective judgment of the attraction effect will also likely affect the subjective norm, when other people’s intentions arise from their subjective judgment of the attraction effect. these views apparently correspond to santosa’s studies (2014, 2015) which show the influence of attraction effect on consumer’s attitude and subjective norm. consequently, two hypotheses can be formulated as follows, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 93 published by scholink inc. h1: the attration effect (ae) affects the attitude’s creation (ab). h2: the attration effect (ae) affects the subjective norm (sn). the affective system, as another point of view, automatically produces affective responses such ass emotions, specific feeling, moods and evaluation when stimuli come around (peter & olson, 2002). since an attitude is one’s total evaluation to do something (ajzen, 1991), it is assumed that the affective respons will unavoidably color an attitude. some studies can be implemented, such as the finding of mishra et al. (1993) which suggests the influence of motivation on attraction effect; hedgcock and rao (2009) proclaim that the introduction of a decoy into a trade-off-type choice set reduces “trade-off aversion”, or the decision maker’s experienced trade-off difficulty. a decoy is an option which causes preference reversals between the two other options in choice set (herne, 1997). a work of kim and hasher (2005) demonstrate that the efficacy of the attraction effect will be reduced in a particular condition. some other studies are evidence for the effect of affect on decision making (kahn & isen, 1993; lee & sternthal, 1999; barone et al., 2000; isen, 2003). isen and erez (2002) indicate that positive affect interacts with task conditions in influencing motivation. fredrickson and branigan (2005) and hicks and king (2007) assert that positive affect broadens attention. harmon-jones and gable (2008) suggest that the intensity of approach motivation should be considered as this intensity plays a role in whether positive affect causes broadening or narrowing of attention. fredrickson and branigan (2005) and gable and harmon-jones (2008) intensify their study and find out positive affects low in approach motivational intensity broaden attentional scope. likewise, gable and harmon-jones (2008) and harmon-jones and gable (2009) emphasize positive affects high in approach motivational intensity narrow attentional scope. gable and harmon-jones (2010) finally affirm that the effect of emotion on local/global precedence is not due to negative versus positive affect but is instead due to motivational intensity. positive and negative affects of low motivational intensity broaden attention, whereas positive and negative affects of high motivational intensity narrow attention. the next hypothesis can be formulated as follows: h3: affective response (ar) affects the attitude’s creation (ab). b. the relation of attitude toward behavior (ab), the subjective norm (sn), and perceived behavioral control (pbc) with behavioral intention (bi). while it is in accordance with the tra and/or tpb that behavioral intentions can be predicted by attitude toward behavior, subjective norm and perceived behavioral control (fishbein & ajzen, 1975; ajzen, 1991), some studies (e.g., jyh, 1998; okun & sloane, 2002; martin & kulinna, 2004; wiethoff, 2004; marrone, 2005; kouthouris & spontis, 2005; santosa, 2013; santosa, 2014; santosa, 2015) are also in line with this theory. thereby, the next hypotheses can be formulated as follows: www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 94 published by scholink inc. h4: the more favorable that the attitude toward behavior (ab) is, the greater the behavioral intention (bi) will be. h5: the more favorable the subjective norm (sn) is, the greater the behavioral intention (bi) will be. h6: the more favorable perceived behavioral control (pbc) is, the greater the behavioral intention (bi) will be. research model based on the hypotheses a research model can be developed as follows in figure 1. figure 1. research model identification : ae : attraction effect ar : affective responds ab : attitude toward behavior sn : subjective norm pbc : perceived behavioral control bi : behavioral intention 2. methods a sample is drawn using the convenience and judgment technique (cooper & schindler, 2001, 2008). data are collected by questionnaires, distributed to respondents who have either already bought, or are interested in buying matic motorcycles. after examining the forms for the data’s completion, 100 out of the 106 questionnaire forms were accepted which supposed meet the sample adequacy (ghozali, 2004, 2007; hair et al., 1995). a likert scale is operated corresponding to a five-point scale ranging from 1 (=completely disagree) to 5 (=completely agree). the instrument, which denotes to indicators, will firstly be justified through confirmatory factor analysis. further, data are analyzed by employing amos 16.0. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 95 published by scholink inc. 3. result 3.1 confirmatory factor analysis first phase cfa. the confirmatory factor analysis is not simultaneously carried out, but done in phases. the first phase contains two of independent variables, i.e., attraction effect (ae) and attitude toward behavior (ab). it actuslly also encloses two stages as well, firstly a relation which originally drawn from the variables’ character theirselves and secondly a relation which has already been repaired corresponding to good indices. table 1 shows scores of indicators which relate to goodness of fit, and figure 2, 3 and 4 depict the cfa itself. table 1. first phase, second phase, and third phase of cfa indicators 1st phase/2nd stage 2nd phase/2nd stage 3rd phase/2nd stage threshold chi-square/prob 666/0,717 226,220/0,000 434,905/0,000 29.588/p>0.05 cmin/df 0,333 13,307 24,161 ≤ 5 gfi 0,997 0,800 0,749 high agfi 0,965 0,577 0,498 ≥ 0,9 tli 1,007 0,616 0,390 ≥ 0,9 rmsea 0,000 0,333 0,457 0.05 s.d 0.08 source: data analysis. second phase cfa. it also contains two independent variables, i.e., affective responds (ar) and subjective norm (sn). it encloses two stages as well. while scores of indicators are represented at table 1, the cfa itself is illustrated at figure 3. ,55 e1 ,68 e2 chi-square= ,666 prob = ,717 cmin/df = ,333 gfi = ,997 agfi = ,985 tli = 1,007 rmsea = ,000 ,96 ae 2246,34 ab 19,10 b ev ,04 1 ,05 1 -,45 figure 2. the cfa of ae and ab www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 96 published by scholink inc. third phase cfa. it is similar with the previous two. it testifies the cfa between variable perceived behavioral control (pbc) and behavioral intention (bi) which demonstrated whether at table 1 or figure 4. ,63 e5 ,65 e6 chi-square= 226,220 prob = ,000 cmin/df = 13,307 gfi = ,800 agfi = ,577 tli = ,616 rmsea = ,333 1703,70 sn nb mc ,04 1 ,05 1 ar1 3,49 e1 1 ar2 1,16 e2 1 ar3 ,61 e3 1 ar4 1,26 e4 1 5,54 ar 7,94 1,00 ,06,19 -,11 -,48 ,14 -,54 -1,02 -1,67 figure 3. the cfa of ar and sn www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 97 published by scholink inc. ,76 e5 ,70 e6 chi-square= 434,905 prob = ,000 cmin/df = 24,161 gfi = ,749 agfi = ,498 tli = ,390 rmsea = ,457 1520,48 pbc pf cb ,05 1 ,04 1 -,61 bi1 4,01 e1 1 bi2 ,30 e2 1 bi3 ,26 e3 1 bi4 ,44 e4 1 6,48 bi 46,82 1,00 ,24,23 ,27 -,17 -,05 -,12 figure 4. the cfa of pbc and bi standardized regression weight of indicators. the modification models of 1st, 2nd and 3rd phase cfa produce standardized regression weight for all indicators >0,4 which denote that the factor loading of the manifests are above the minimum requirement (ferdinand, 2002) (table 2). it indicates that all indicators of ar (ar1, ar2, ar3, ar4), ab (b, ev), sn (nb, mc) and pbc (pf, cb), bi (bi1, bi2, bi3, bi4) are valid. 3.2 the structural equation model the model has three initial independents variable (ae, ar, pbc) and three dependent variables (ab, sn, bi) in which the primary two dependent variables (ab, sn) at some extent are treated as independent variables as well. since the purpose of the study is eagerly to know the relationship between the two initial independents variable (ae, ar) and the primary dependent variables (ab, sn), likewise among the three dependent variables separately and simultaneously, a structural equation modelling (sem) is employed (hair et al., 1995). in addition, the use of sem will give advantages such as fast, accurate and more detail. it is possible since the method performs a unification of factor analysis and path analysis (ghozali, 2004, 2007). an initial structural equation model is drawn by connecting all variables as hypothesized. this model is likely not thoroughly appropriate to expectancy, since all indicators, i.e., chi-square/prob, cmin/df, gfi, agfi, tli, rmsea, do not meet the criteria (appendix a). consequently, a modification model is generated by connecting e13 ↔ e14, e12 ↔ e14, e11 ↔ e14, e11↔ e13, e7 ↔ e8, e2↔ e8, e2↔ e4, e2↔ e3, e1↔ e4, and e9↔ e10. this modification model seemingly produces better scores than before www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 98 published by scholink inc. (table 3, figure 5). table 2. standardized regression weights estimate ar1 <--ar 0.658 ar2 <--ar 0.557 ar3 <--ar 0.498 ar4 <--ar 0.556 nb <--sn 0.912 mc <--sn 0.920 bi1 <--bi 0.736 bi2 <--bi 0.712 bi3 <--bi 0.728 bi4 <--bi 0.641 pf <--pbc 0.908 cb <--pbc 0.893 ev <--ab 0.935 b <--ab 0.944 source: amos output. table 3. the second indicators resulted from modification indicators initial scores second scores threshold justification chi-square/prob 922,427/0,000 334,423/0,000 31.264/p>0.05 not meet the criterion cmin/df 5,557 2,130 ≤ 5 meet the criterion gfi 0,646 0,781 high not meet the criterion agfi 0,552 0,707 ≥ 0.9 not meet the criterion tli 0,685 0,922 ≥ 0.9 meet the criterion rmsea 0,203 0,101 0.05 s.d 0.08 not meet the criterion source: data analisis. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 99 published by scholink inc. ,55 e5 ,68 e6 chi-square= 334,423 prob = ,000 cmin/df = 2,130 gfi = ,781 agfi = ,707 tli = ,922 rmsea = ,101 ,96 ae ab b ev 1 -,45 5,54 ar ar1 ar2 ar3 ar4 sn nb mc bi bi1 bi2 bi3 bi4 ,53 e1 ,90 e2 ,61 e3 ,73 e4 ,63 e7 ,65 e8 ,27 e11 ,30 e12 ,26 e13 ,57 e14 ,27 ,27,19 ,24 1111 ,04 ,05 ,24 ,24 ,23 ,27 1 1 1 1 19,56 11,67 1 1 1 1520,48 pbc pf cb ,76 e9 ,70 e10 ,05 ,04 1 1 ,05,04 ,02 ,01 ,02 4,48 1755,67 z1 1572,71 z2 3,65 z3 1 1 1 ,07 12,12 19,98 -,16 -,25 -,15 -,08 -,54 -,38 -,48-,36 61 figure 5. modified model of the initial structural equation model table 3 denotes that although not all the model’s indicators meet the criteria, some (cmin/df and tli) equalize the requirements. it means that the model’s data are in accordance with the structural parameter. as a consequent, the model is worthy of use. evaluation of normality. evaluation of normality is carried out by univariate test (ferdinand, 2002; ghozali, 2004). it is exercised by scrutinizing the skewness value whether its critical ratio values are less or equal to ±2.58. as a matter of fact, there are seven variables, i.e., ae, ar, bi1, nb, ar4, ar3, and ar1, whose c.r of the skewness value are more than ±2.58. as a consequent, it indicates that univariately the data distribution is not normal. to check further, a multivariate test is executed. the result of the data analysis shows up that the multivariate critical value is 38,594. it is more than 2.58 as required (appendix 5). as a result, the normality test needs a bootstrap analysis. bootstrap analysis. a bootstrap analysis is used to gain a fit model, since the normality test does not meet the pre-requisite. a bollen-stine’s bootstrap analysis illustrates the following: (a) the model fits better in 498 bootstrap samples, (b) it fits equally well in 0 bootstrap samples, (c) it fit worse or failed to fit in 2 bootstrap samples, (d) testing the null hypothesis that the model is correct, bollen-stine bootstrap p=0.006. while the result indicates that the probability is smaller than 0.05 which denotes that it can not reject the hull hypothesis, the model;s availability of use likely depends on the goodness of fit. as shown in appendix 3, the cmin/df=2.130 and tli=0.922 suggest that the model is still worthy of use. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 100 published by scholink inc. outliers. evaluation of the outliers can be carried out by either a univariate test or a multivariate test (ferdinand, 2002). the univariate test is successfully employed by firstly converting the data to z-scores, which should be less than ±3.0 (hair et al., 1995). the result indicates that most of the variables’ z-scores are less than ±3.0, except ae, ar, nb1, nb, and mc2, which their scores are more than ±3.0 (appendix 3). therefore, the existence of outliers is indicated. to check further, a multivariate outliers test is needed. it determines the chi-square value which subsequently is used as the upper limit, which could be calculated by searching on a chi-square table whose degree of freedom is equal to the number of variables employed, which is 37, under the degree of significance (p)=0.001. the chi-square value is found to be 69.292. in fact, most of the scores for mahalanobis’s distance are less than 69.292, except observations number 1, which inevitably suggests outliers (appendix 2). however, because there is no specific reason to dismiss them, the outliers are worth being used (ferdinand, 2002). multicollinearity and singularity. according to the output from amos, the determinant of the sample covariance matrix should be equal to 835,553. this value is far above zero. as a consequence, it belongs to no multicollinearity or singularity category (appendix 4). test of hypotheses. the regression weights output indicates that the influence of ae on ab and sn are significant. likewise, the influence of ar on ab. in addition, the influence of ab on bi, sn on bi and pbc on bi are also significant (table 4). table 4. regression weights: group number 1-default model estimate s.e. c.r. p label ab <--ae 19,558 4,058 4,820 *** par 12 sn <--ae 11,672 3,839 3,041 ,002 par 13 ab <--ar 4,481 1,690 2,652 ,008 par 21 bi <--ab ,017 005 3,558 *** par 18 bi <--pbc ,014 ,,005 2,584 ,010 par 19 bi <--sn ,017 ,006 2,759 ,006 par 20 ar1 <--ar ,269 ,029 9,207 *** par 2 ar2 <--ar ,271 ,038 7,065 *** par 3 ar3 <--ar ,191 ,032 6,054 *** par 4 ar4 <--ar ,243 ,034 7,052 *** par 5 nb <--sn ,043 ,002 23,480 *** par 6 mc <--sn ,046 ,002 24,753 *** par 7 bi1 <--bi ,240 ,019 12,490 *** par 8 bi2 <--bi ,239 ,021 11,656 *** par 9 bi3 <--bi ,234 ,019 12,224 *** par 10 bi4 <--bi ,270 ,028 9,616 *** par 11 pf <--pbc ,049 ,002 22,904 *** par 14 cb <--pbc ,042 ,002 20,890 *** par 15 ev <--ab ,046 ,002 27,808 *** par 16 b <--ab ,045 ,001 30,129 *** par 17 source: amos output. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 101 published by scholink inc. 4. discussion table 4 shows that both the influence of ae on ab and ae on sn are significant, which denoted by p=0.000 and p=0.002. these lead to the consequence that the hypotheses, i.e., “the attration effect (ae) affects the attitude’s creation (ab)”, and “the attration effect (ae) affects the subjective norm (sn)” are really empirically supported. this results are in accordance with the expectation which are in line with other santosa’s studies findings (2013; 2014; 2015). the table 4 also demonstrates that the influence of affective response (ar) to the attitude’s creation (ab) is also empirically supported (h3). the finding is also in favor with other studies such as mishra et al. (1993), hedgcock and rao (2009), kim and hasher (2005), kahn and isen (1993), lee and sternthal (1999), barone et al. (2000), isen (2003), isen and erez (2002), fredrickson and branigan (2005), hicks and king (2007), harmon-jones and gable (2008), gable and harmon-jones (2008), harmon-jones and gable (2009). however it is actually slightly different, since the finding denoted to the creation of an individual’s attitude concerning with the theory of planed behavior. therefore, the attitude formed is not an attitude toward object, but an attitude toward behavior. the mentioned findings indicate that the attraction effect which simultaneously works with the affective response can develop a consumer’s subjective judgment, which through the integration of a consumer’s belief and evaluation can build up the consumer’s attitude. meanwhile, the consumer’s subjective judgment leads to the consumers’ attitude, which is motivated by the need to comply with the desires of the people around him/her. eventhough they do not look like totally new, it should be appreciated as a significant new facts in theoretical development, and obviously need further exploration and development. in accordance with the theory of planned behavior, the three predictors of behavioral intention, i.e., attitude, the subjective norm and perceived behavioral control work well. the results also support the studies of jyh (1998), okun and sloane (2002), martin and kulinna (2004), wiethoff (2004), marrone (2005), kouthouris and spontis (2005), santosa (2013), and santosa (2015). the findings likely lead to managers to be very cautious of launching products. while the products should be carefully posted to generate an attraction effect, it is not easy to control consumers to be continuously happy since the consumers are vary. many affairs are out of control. one way still open is to create, communicate and deliver excellent consumers’ value. it includes not only quality, but also feature, design, package, and price. the company should constantly develop brand and/or brand equity. in addition, the way of marketing the products should be well-performed, for instances, nice ads, showroom’s well-interior designed, interesting brochures, excellence support service, and salesforces’ well-performed. any modes should lead to good first impression. consequently, while the attraction effect is succesfully generated, the marketing efforts are obviously lead to good impression, the brand equity is well-developed it hopefully produces the intention to buy. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 102 published by scholink inc. references aaker, j. 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(1980). feeling and thinking: preferences need no inferences. american psychologist, 35, 151-175. https://doi.org/10.1037/0003-066x.35.2.151 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 106 published by scholink inc. appendix appendix 1. initial sem ,55 e5 ,68 e6 chi-square= 922,427 prob = ,000 cmin/df = 5,557 gfi = ,646 agfi = ,552 tli = ,685 rmsea = ,203 ,96 ae ab b ev 1 -,45 5,54 ar ar1 ar2 ar3 ar4 sn nb mc bi bi1 bi2 bi3 bi4 ,53 e1 ,78 e2 ,61 e3 ,58 e4 ,63 e7 ,65 e8 ,27 e11 ,30 e12 ,26 e13 ,44 e14 ,27 ,27,19 ,24 1111 ,04 ,05 ,24 ,24 ,23 ,27 1 1 1 1 19,56 11,67 1 1 1 1520,48 pbc pf cb ,76 e9 ,70 e10 ,05 ,04 1 1 ,05,04 ,02 ,01 ,02 4,48 1755,67 z1 1572,71 z2 3,65 z3 1 1 1 ,07 12,12 19,98 appendix 2. observations farthest from the centroid (mahalanobis distance) (group number 1) observation number mahalanobis d-squared p1 p2 1 111,000 ,000 ,000 65 64,831 ,000 ,000 21 63,752 ,000 ,000 76 63,752 ,000 ,000 28 60,727 ,000 ,000 96 53,733 ,000 ,000 3 46,118 ,001 ,000 15 44,600 ,001 ,000 4 43,170 ,002 ,000 95 41,399 ,003 ,000 107 39,629 ,006 ,000 41 38,779 ,007 ,000 12 36,648 ,013 ,000 82 35,400 ,018 ,000 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 107 published by scholink inc. observation number mahalanobis d-squared p1 p2 27 34,659 ,022 ,000 60 32,429 ,039 ,000 59 29,437 ,080 ,007 31 27,110 ,132 ,222 24 27,043 ,134 ,166 35 26,821 ,140 ,152 5 26,510 ,150 ,160 103 26,395 ,153 ,128 55 25,973 ,167 ,165 70 25,631 ,178 ,190 13 25,498 ,183 ,164 56 25,295 ,190 ,157 10 24,963 ,203 ,186 88 24,853 ,207 ,158 47 24,332 ,228 ,250 53 24,249 ,232 ,211 67 23,566 ,262 ,394 32 23,161 ,281 ,491 105 21,566 ,365 ,951 33 21,522 ,367 ,934 40 20,936 ,401 ,979 29 20,559 ,424 ,990 93 20,327 ,438 ,992 38 20,240 ,443 ,990 51 20,085 ,453 ,990 72 19,363 ,498 ,999 6 19,267 ,505 ,999 104 19,132 ,513 ,999 66 19,106 ,515 ,998 77 19,018 ,521 ,998 83 18,990 ,522 ,996 2 18,987 ,523 ,993 90 18,477 ,556 ,999 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 108 published by scholink inc. observation number mahalanobis d-squared p1 p2 46 18,037 ,585 1,000 50 17,916 ,593 1,000 14 17,890 ,595 ,999 58 17,686 ,608 1,000 48 16,398 ,692 1,000 57 16,394 ,692 1,000 81 16,238 ,702 1,000 74 15,921 ,722 1,000 99 15,629 ,739 1,000 37 15,625 ,740 1,000 106 15,593 ,742 1,000 75 15,498 ,747 1,000 87 15,451 ,750 1,000 17 15,401 ,753 1,000 68 15,171 ,767 1,000 94 14,995 ,777 1,000 49 14,811 ,787 1,000 80 14,799 ,788 1,000 63 14,649 ,796 1,000 102 14,599 ,799 1,000 101 14,368 ,811 1,000 45 14,331 ,813 1,000 89 14,028 ,829 1,000 36 14,018 ,830 1,000 84 13,707 ,845 1,000 11 13,634 ,849 1,000 7 13,629 ,849 1,000 25 13,416 ,859 1,000 44 12,641 ,892 1,000 69 12,641 ,892 1,000 26 12,638 ,892 1,000 100 12,066 ,914 1,000 43 12,051 ,914 1,000 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 109 published by scholink inc. observation number mahalanobis d-squared p1 p2 8 11,194 ,941 1,000 92 11,109 ,943 1,000 71 10,893 ,949 1,000 97 10,508 ,958 1,000 52 10,477 ,959 1,000 19 10,402 ,960 1,000 30 10,286 ,963 1,000 20 10,218 ,964 1,000 42 9,258 ,980 1,000 16 8,965 ,983 1,000 39 8,840 ,985 1,000 54 8,599 ,987 1,000 108 8,414 ,989 1,000 79 8,200 ,990 1,000 73 7,580 ,994 1,000 98 7,333 ,995 1,000 78 7,243 ,996 1,000 109 6,999 ,997 1,000 91 6,697 ,998 1,000 61 6,577 ,998 1,000 appendix 3. z-score descriptive statistics n minimum maximum mean std. deviation zscore(ae) 112 -3.10031 .96091 .0000000 1.00000000 zscore(ar1) 112 -2.62146 1.51380 .0000000 1.00000000 zscore(ar2) 112 -1.56694 2.08925 .0000000 1.00000000 zscore(ar3) 112 -2.83332 1.57406 .0000000 1.00000000 zscore(ar4) 112 -2.90498 1.27968 .0000000 1.00000000 zscore(ar) 112 -4.05821 2.70673 .0000000 1.00000000 zscore(b1) 112 -1.96997 1.38998 -2.1529163e-16 1.00000000 zscore(b2) 112 -2.71300 1.47812 -1.4487270e-16 1.00000000 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 110 published by scholink inc. zscore(b3) 112 -2.18318 1.15113 .0000000 1.00000000 zscore(b) 112 -2.35666 1.63580 .0000000 1.00000000 zscore(ev1) 112 -2.68286 1.37769 .0000000 1.00000000 zscore(ev2) 112 -2.74946 1.45449 .0000000 1.00000000 zscore(ev3) 112 -2.21975 1.29834 .0000000 1.00000000 zscore(ev) 112 -2.20775 1.64912 .0000000 1.00000000 zscore(ab) 112 -1.97744 1.99244 .0000000 1.00000000 zscore(nb1) 112 -3.22802 1.59249 -1.3896141e-15 1.00000000 zscore(nb2) 112 -2.70077 1.64114 -1.0294074e-15 1.00000000 zscore(nb3) 112 -2.75263 1.74802 .0000000 1.00000000 zscore(nb) 112 -3.58129 2.05364 -1.3717487e-16 1.00000000 zscore(mc1) 112 -1.91645 1.49057 .0000000 1.00000000 zscore(mc2) 112 -3.25126 1.37275 .0000000 1.00000000 zscore(mc3) 112 -1.48560 1.82010 .0000000 1.00000000 zscore(mc) 112 -2.35117 2.00541 -2.2601550e-16 1.00000000 zscore(sn) 112 -2.86260 2.49178 .0000000 1.00000000 zscore(pf1) 112 -3.72033 .90941 -1.1742841e-15 1.00000000 zscore(pf2) 112 -3.10558 1.50138 -7.5403932e-16 1.00000000 zscore(pf3) 112 -2.34377 1.90728 -4.0168166e-16 1.00000000 zscore(pf) 112 -3.88076 1.85713 .0000000 1.00000000 zscore(cb1) 112 -2.59820 1.06985 -3.1902962e-15 1.00000000 zscore(cb2) 112 -2.01890 1.62815 -8.3293832e-16 1.00000000 zscore(cb3) 112 -2.44287 1.84892 .0000000 1.00000000 zscore(cb) 112 -2.71984 2.11543 .0000000 1.00000000 zscore(pbc) 112 -2.51454 2.54053 -7.4558275e-17 1.00000000 zscore(bi1) 112 -3.41551 1.56869 -3.4337064e-16 1.00000000 zscore(bi2) 112 -2.07084 1.57210 .0000000 1.00000000 zscore(bi3) 112 -2.67441 1.11716 -2.5150896e-15 1.00000000 zscore(bi4) 112 -2.65744 1.51987 -9.9782980e-16 1.00000000 zscore(bi) 112 -2.76612 1.92790 -2.6997041e-15 1.00000000 valid n (listwise) 112 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 111 published by scholink inc. appendix 4. sample covariances (group number 1) pbc ae ar ab sn bi cb pf ev bi4 bi3 bi2 bi1 mc nb ar 4 ar 3 ar 2 ar 1 b pbc 1520,48 2 ae 12,117 ,961 ar 19,983 ,066 5,544 ab 674,394 19,099 26,138 2246,3 37 sn 832,073 11,222 7,937 1187,7 77 1703,6 97 bi 46,822 ,675 ,386 67,829 60,451 6,477 cb 64,514 ,684 ,293 36,250 45,921 2,746 3,43 4 pf 73,756 ,440 1,243 24,510 31,384 1,688 2,52 0 4,33 5 ev 30,631 ,885 ,990 102,96 0 56,217 3,159 1,56 2 1,29 5 5,39 7 bi4 9,143 ,239 ,022 15,440 14,742 1,747 ,653 ,214 ,676 ,909 bi3 12,309 ,244 ,207 17,492 12,001 1,518 ,707 ,424 ,786 ,294 ,620 bi2 13,805 ,060 ,176 19,319 18,801 1,548 ,715 ,597 ,929 ,250 ,311 ,672 bi1 12,225 ,130 ,030 16,073 15,705 1,554 ,704 ,485 ,798 ,311 ,289 ,325 ,638 mc 33,740 ,490 ,184 52,735 78,107 2,733 1,96 4 1,09 7 2,54 0 ,747 ,508 ,735 ,784 4,23 0 nb 38,183 ,447 ,389 53,224 73,185 2,581 1,98 3 1,65 3 2,57 3 ,523 ,510 ,953 ,632 2,81 1 3,77 7 ar4 11,395 ,173 1,348 13,407 4,930 ,373 ,434 ,517 ,427 ,086 ,178 ,104 ,049 ,138 ,284 ,906 ar3 8,496 ,023 1,060 5,222 1,607 ,129 ,268 ,398 ,163 -,00 8 ,121 ,106 -,07 5 ,010 ,059 ,190 ,816 ar2 -1,610 -,074 1,501 5,693 -,705 ,047 -,19 6 ,033 ,320 -,05 0 -,00 3 ,014 ,060 -,07 7 -,02 0 ,142 -,11 4 1,18 6 ar1 4,130 -,020 1,492 7,281 4,355 ,051 -,06 9 ,366 ,329 ,030 ,018 ,024 -,00 4 ,219 ,174 ,111 ,239 ,287 ,927 b 29,927 ,814 1,224 100,40 2 52,607 3,031 1,68 6 ,991 4,14 9 ,705 ,812 ,869 ,670 2,32 1 2,36 0 ,739 ,223 ,196 ,279 5,03 6 note. condition number=143039,807. eigenvalues 3718,823 1136,082 642,633 6,541 4,399 1,559 1,256 1,041 ,869 ,739 ,633 ,480 ,417 ,285 ,248 ,160 ,085 ,063 ,040 ,026 determinant of sample covariance matrix=835,553 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 112 published by scholink inc. appendix 5. assessment of normality (group number 1) variable min max skew c.r. kurtosis c.r. pbc 27,000 225,000 ,029 ,123 -,120 -,259 ae 1,000 5,000 -1,073 -4,637 ,462 ,999 ar 4,000 20,000 -,647 -2,794 1,616 3,492 ab 36,000 225,000 ,109 ,471 -,524 -1,133 sn 3,000 225,000 ,240 1,039 ,625 1,351 bi 8,000 20,000 -,363 -1,567 ,089 ,193 cb 6,000 15,000 -,369 -1,595 ,215 ,465 pf 3,000 15,000 -,736 -3,181 1,425 3,079 ev 6,000 15,000 -,432 -1,867 -,328 -,708 bi4 1,000 5,000 -,592 -2,556 -,307 -,664 bi3 2,000 5,000 -,975 -4,213 1,039 2,244 bi2 2,000 5,000 -,577 -2,492 -,095 -,205 bi1 1,000 5,000 -,867 -3,746 ,910 1,967 mc 6,000 15,000 -,165 -,712 -,094 -,203 nb 4,000 15,000 -,615 -2,658 1,220 2,634 ar4 1,000 5,000 -,910 -3,932 ,375 ,811 ar3 1,000 5,000 -1,085 -4,688 ,186 ,402 ar2 1,000 5,000 ,460 1,985 -,892 -1,928 ar1 1,000 5,000 -,701 -3,030 -,360 -,778 b 6,000 15,000 -,369 -1,595 -,229 -,495 multivariate 216,362 38,594 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 5, no. 1, 2022 www.scholink.org/ojs/index.php/elp 48 original paper the laws of search, seizure, and custodial interrogation: searching the orchard of american constitution md abdul alim 1 1 department of law, university of rajshahi, rajshahi 6205, bangladesh received: april 20, 2022 accepted: may 9, 2022 online published: july 7, 2022 doi:10.22158/elp.v5n1p48 url: http://dx.doi.org/10.22158/elp.v5n1p48 abstract the united states criminal justice system and court structure are two separate court systems, one at the federal level and another at the state level. in criminal proceedings, many courtrooms principally convict either by trial or by guilty plea, and many result in dismissing cases. it is necessary to examine the scope of the crime problems that criminal courts face and the organizational context as well as the policies in which they operate. the fourth amendment rights in particular, limits to searches and seizures are important procedures in the ongoing prosecution of crimes in america. the right of the people to remain secure in persons and properties against unreasonable searches and seizures shall not be violated. the police have the power to search and seize, but individuals are protected against unreasonable police intrusion. the fifth amendment miranda rights protect any person from custodial interrogation by the police. it is required that all arrestees be given their miranda warnings and if they are invoked they must be scrupulously honoured. keywords criminal prosecution, exigent circumstances, custodial interrogation, plain view doctrine, probable cause, reasonable suspicion, miranda rights 1. introduction in america, judiciary acts as units of the political system and courts are part of the general government structure and are drawn into the nation’s political life. if anyone had invoked his fifth amendment right to remain silent and had not waived his right then his in-culpatory statements were involuntary. again, the accused makes an ―ambiguous or equivocal‖ statement or no statement, the police are not required to end the interrogation or ask questions to clarify the accuser’s intent. since marbury v. madison (1803) till berghuls v. thompkins (2010), united states courts have asserted the right to be authoritative interpreters of the constitution, and the other political bodies have conceded them that power. now the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 49 published by scholink inc. supreme court is the arbiter of what the constitution means with regard to the powers of the executive and legislative branch. there is no higher authority at any single point in time to overrule a supreme court decision. the constitution is now what the courts say it is (marbury v. madison). the president, congressmen, state officials, bureaucrats, and all other americans are obligated to act in accordance with court interpretations of the federal and state constitutions. however, in nebraska press association v. stuart (1976) the united states supreme court held that state courts were bound by the supreme court decisions on judicial matters (nebraska press association v. stuart). if courts interpret the constitution to say that judges may not exclude the press from open hearings, no judge may do so. the fourth amendment to the constitution of the united states of america states the right of the people to be ―secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized‖. moreover, the fifth amendment protects defendants from having to testify if they may lay the blame on themselves through the testimony. in the landmark miranda v. arizona (1966) ruling, the united states supreme court extended the fifth amendment protections to include any circumstances outside the courtroom that involves the restriction of personal freedom. it is for this reason that, every time the law enforcement authority captures a suspect into custody, they must make the suspect aware of all his/her rights. these are popularly known as miranda rights, and they include the right to remain silent, the right to have an attorney present during questioning, and the right to have a governmentassigned lawyer if the suspect cannot meet the expense of that situation. 2. the prosecutor and suspect in criminal prosecution at the beginning of a criminal case, the prosecution begins with police apprehension of suspected offenders. each year police throughout the united states carries out more than nine million arrests for assorted crimes. in 1975, more than two million of these arrests were for what the fbi terms ―serious crimes‖ (washington dc: government printing office, 1975). while almost all murders and most car thefts are reported to the police, less than half of all assaults are reported to the police by their victims. victimless crimes such as narcotics offences, prostitution, and gambling are almost never reported to the police. in the usa, cheating by retailers, sex offences, racial discrimination by employers, embezzlement by corporate officers, and bribe-taking by public officers are all activities that allegedly occur much more frequently than police records indicate. when the police know about a crime they usually cannot apprehend the criminal. only when the victim confronts the offender and can identify him then arrest and trial are likely. it is the discretion of individual policeman to determine who will be arrested. individual policemen observe many illegal acts that they choose to ignore (rubenstein, 1973, pp. 51-54). these acts range from minor traffic violations-occurring when they are busy with more urgent businessfamily assaultswhich they refer to welfare agencies-all matters more of keeping the peace than of enforcing the criminal law. whether police arrests the offender depends not only on the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 50 published by scholink inc. seriousness of the crime but on how threatening the behavior of the offender is towards the police and police still enjoys considerable discretion in making the arrest. then, the police may let the offender go free with a warning (donald, 1970, pp. 733-747). when the police arrest a suspect, the prosecutor must decide all charges to file against him or her. it is up to the court to decide whether to release the suspect from custody. for many suspects, the release decision is resolved at the police station without any appearance before a judicial officer (miller, 2010, p. 847). soon after arrest, suspects learn why they have been detained. in nathanson v. united states (1933) it was held that a police officer must provide more than his own confidence in support of the probable cause and ―mere affirmance of belief or suspicion is not enough‖ (nathanson v. united states). 2.1 direct information and duty of a police officer an individual possesses a reasonable expectation of privacy in a place to be searched or a thing to be seized. the fourth amendment’s protections apply, and the question then becomes what the nature of those protections is. probable cause is required as the basis of arrest and search warrants; and regardless of whether an arrest warrant is required. an officer’s subjective belief, no matter how sincere, does not in itself constitute probable cause. however, in determining what a ―person of reasonable caution‖ would believe, a court will take into account the specific experiences and expertise of the officer whose actions are under scrutiny. police officers need no justification to stop someone on a public street and ask questions, and individuals are completely entitled to refuse to answer any such questions. indeed, a police officer may only search people and places when the officer has probable cause or reasonable suspicion to suspect criminal activity. a police officer has probable cause to arrest when ―the facts and circumstances within (the officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a person of reasonable caution in the belief that an offence has been or is being committed‖ (brinegar v. united states). probable cause may determine in a case concerning whether the restrictions placed on government officials by the fourth amendment applied to ―factory sweeps‖ by the immigration and naturalization service (ins). united states supreme court said probable cause is that there may be a number of aliens working on the premises. workers were systematically questioned to determine their citizenship status and asked to produce their immigration papers if their answers were not satisfactory. ―probable cause‖ exists when facts and circumstances within an officer’s personal knowledge, and about which he/she has reasonably trustworthy information, are sufficient to warrant a ―person of reasonable caution‖ to believe that: (1) in the case of an arrest, an offense has been committed and the person to be arrested committed it; (2) in the case of a search, an item described with particularity will be found in the place to be searched. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 51 published by scholink inc. again, all searches and seizures need to be founded on probable cause. the lesser standard of ―reasonable suspicion‖ may apply where the intrusion is minor, such as a pat-down for weapons. furthermore, where the intrusion on a person’s privacy is especially slight and society’s interest in conducting the search or seizure is significant, there may be no need for individualized suspicion, such as for society and border checkpoints and certain administrative searches (gottlieb, 2002, p. 167). federal courts have clustered border searches into two ways: routine and non-routine. routine searches impose into an individual’s privacy in very limited ways. it generally includes document checks, pat downs, or the emptying of pockets, and do not need to be justified by any suspicion of wrongdoing. similarly, a government agent generally does not need suspicion of criminal activity before he may conduct limited inspections of cars and personal property at the border. on the other hand, government officials may conduct ―non-routine‖ searches at the border when they have a ―reasonable suspicion‖ that the search may be smuggling contraband or conducting other illegal activities. reasonable suspicion is required is a fact-intensive totality of the circumstances test determined on a case-by-case basis (terry v. ohio, 1968). 2.1.1 information must be direct probable cause may be founded on direct information. unless a magistrate has reason to believe that an affiant has committed false swearing or recklessly misstated the truth, the magistrate may consider all direct information provided by the affiant. the affiant’s information is considered reasonably trustworthy because it is provided under oath. 2.1.2 hearsay information and its trustworthy a magistrate may consider hearsay evidence for the purpose of determining probable cause, as long as the information is reasonably trustworthy. the informant’s identity must not be disclosed to the magistrate unless the magistrate disbeliefs the affiant’s trustworthiness regarding the hearsay. 2.1.3 totality of the circumstances rule the aguilar-spinelli (1964) test was a judicial guideline set down by the us supreme court. it was for determining the validity of a search warrantor a warrantless arrest based on information provided by a confidential informant. then the supreme court replaced aguilar–spinellitest by the illinois v. gates (1983) ―totality-of-the circumstances‖ test. in the gates court abandoned aguilar and substituted to it the totality-of-the-circumstances test for probable cause determinations, which requires the magistrate to balance ―the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip‖ (illinois v. gates, 1983). the ―totality-of-the circumstances‖ test are that, when law enforcement seeks a search warrant and a magistrate signs a warrant he must be informed of the reasons to support the conclusion that such an informant is reliable and credible. and again the magistrate must be informed of some of the underlying circumstances relied on by the person providing the information. the factors expressed in aguilar—basis-of-knowledge and veracity—remain ―highly relevant‖ in determining the value of an informant’s tip but are no longer treated as separate, independent requirements. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 52 published by scholink inc. 3. criminal case: reasonable suspicion in terry v. ohio (1968) the court, for the first time, permitted officers to seize individuals and conduct a limited search for weapons in the absence of probable cause to believe that the individual was armed and engaged in criminal activity. the facts of terry are as follows. officer mcfadden was on the lookout for shoplifters and pickpockets in the middle of the afternoon in downtown cleveland. at some point, he noticed terry and chilton standing on a street corner. mcfadden could not articulate ―precisely what first drew his eye to them‖. they just ―didn’t look right‖, he testified, even though they were dressed in topcoats, customary attire at the time (lewis, 2004). ―(t)o be truthful‖, he admitted, ―i just didn’t like them‖. although mcfadden never mentioned it, both terry and chilton were black. mcfadden watched the two men for ten minutes as they took turns walking down the street, looking into a store window, and returning. their behavior led mcfadden to suspect that the two were casing a store in preparation for a daytime robbery. without probable cause, mcfadden grabbed terry, spun him around, frisked him, and found a concealed weapon. the issue was brought before the court whether the fourth amendment permitted officers to seize and frisk individuals in the absence of probable cause. the court answered the question affirmatively. it held that reasonable suspicion, and not the traditional probable cause standard, authorized officers to detain individuals for questioning and to conduct a limited search for weapons. in order to justify what is conversationally known as a ―stop and frisk‖, the reasonable suspicion test requires an officer ―to point to specific and particularly facts which … leads him reasonably to conclude in light of his experience that criminal activity may be a foot‖ or that the individual with whom he is interacting is armed and dangerous. 4. the orchard of issuing warrant the fourth amendment to the constitution of the united states of america, states that ―the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall be issued, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized‖. there is a 48-hour staleness doctrine, under which the warrant need to be executed. here, it is not told of how close in time police officer should perform the warrant after it is issued, therefore, they will proceed to the knock and announce rule. 4.1 knock and announce requirement the common law principle is that police officers enacting a warrant must knock and announce their presence, and that they are police officers to perform a search warrant. police officers approaching should be clear that they are police officers at the defendant house, knock, and ask if they could enter to enact a warrant. at the same time, the supreme court has recognized that the ―flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests‖ (wilson v. arkansas, 1995). the wisconsin supreme court concluded that www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 53 published by scholink inc. police officers are never required to knock and announce their presence when executing a search warrant in a felony drug investigation. again, the us supreme court overturned the state high court’s decision in richards v. wisconsin (1997). in richards the court said that the fourth amendment does not permit a blanket exception to the knock-and-announce requirement for the execution of a search warrant in a felony drug investigation, regardless of the fact is that felony drug investigations need regularly in the present circumstances warranting a no-knock entry. the court said it cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. moreover, it is the duty of a court to decide whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirements (scott, 2008, p. 207). to justify a no-knock entry, the court stressed that police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. 4.2 few exceptions in warrant plain view doctrine when officers are in a place they have a legal right to be in, and they view something that is clearly contraband, they may confiscate the material under the plain view doctrine. exigent circumstances doctrine if any police officer is assaulted by any defendant, then police could move quickly to any apartment and confiscate gun or such deadly weapon. it would be that they are fearful for their own safety, and quickly move to ascertain the nature of the danger and in such event they may have a valid exception to exceeding the scope of the search under exigent circumstances. in california v. acevedo (1991) the court announced a new rule that the police may search an automobile and the containers within it where they have probable cause to believe contraband or that evidence is contained. the us supreme court held in florida v. white (1999) that the warrantees’ seizure of automobile violates the fourth amendment rights in absence of exigent circumstances. 4.3 procedural consequences on taking evidence exclusionary rule defendant, who has been subject to an illegal search or coerced confession, has the right to have this evidence excluded from prosecution. a defendant must have standing to assert rights under the exclusionary rule, and must show that his/her rights were violated, that he/she had a possessor’s interest in the premises, and that there was governmental conduct. the fourth amendment generally requires a warrant in order to justify the search and seizure of a person or their property (ken roach, 1999, p. 76). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 54 published by scholink inc. derivative evidence any evidence illegally obtained must be excluded, along with any evidence obtained or derived from the exploitation of that illegally obtained evidence. in other words, where the original seizure is improper, anything else that is seized as a result of, or derivative to, the unlawful seizure, will be deemed fruit of the poisonous tree, and will be excluded from evidence. the exclusionary rule is the fruit of the poisonous tree doctrine, established by the supreme court in nardone v. united states (1939). under this doctrine, a court may exclude from trial any evidence derived from the results of an illegal search. for examples, if any gun is seen as an improper search and seizure, the gun will be the fruit of the poisonous tree and will likewise be excluded. the prosecutor will argue that a warrant must be judged according to the totality of the circumstances in order to judge whether probable cause existed. the prosecutor will argue that probable cause did exist when all the information in the affidavit is judged. furthermore, in chimel v. california (1969) it was held that police may search without a warrant only at the immediate area around the suspect from which he/she could obtain a weapon or destroy evidence. but a person’s entire dwelling cannot be searched merely because he/she is arrested. however, if the warrant is found to be faulty, the prosecutor will argue that the search was still legal since it was based on the officer’s good faith that they had a valid warrant. the officer’s good faith will be nullified only if the warrant was facially invalid, if the affidavit obviously lacked probable cause, or if the police misled the judge by falsifying the affidavit. while the police excluded information from the affidavit, this would not constitute misrepresentation. therefore, the search would be legal under this exception. finally, the prosecutor would also argue that the evidence should not be excluded, even if the warrant was illegal, because the police suspicions of defendant would have led to the inevitable discovery of the evidence. therefore, defendant’s motion to exclude the items seized under the warrant should be denied. 5. search procedure and major doctrine in katz v. united states (1967) federal officers, acting without a warrant, attached an electronic listening device to the outside of a telephone booth where the defendant engaged in a number of telephone conversations. the controlling legal test at the time for determining whether police conduct violated the fourth amendment was known as the ―trespass‖ doctrine (katz v. united states, 1967). under the trespass doctrine, the fourth amendment did not apply in the absence of a physical intrusion. a trespass has actually done into a ―constitutionally protected area‖ such as a house. with the arrival of modern technology that allowed the government to electronically capture conversations without physical intrusion into any enclosure, the court abandoned the trespass doctrine and announced that the appropriate inquiry for the fourth amendment challenge was whether the defendant had a ―reasonable expectation of privacy‖. applying this new standard, the court found that despite the fact the telephone booth was made of glass and the defendant’s physical actions were knowingly exposed to the public, what he sought to protect from the public were his conversations, as evidenced in part by shutting the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 55 published by scholink inc. door to the phone booth. thus, the government’s electronic surveillance of the defendant’s conversations without a warrant violated the fourth amendment. in new jersey v. t.l.o (1985) case a public school student’s protection against unreasonable search and seizure is less strict in school than in the world at large. under ordinary circumstances, the court said, a search of a student by a teacher or other school official will be ―justified at its inception‖ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. 5.1 false friends doctrine the fourth amendment protects private conversations where no party consents to the close watch and recording but does not protect conversations where one party consents to such activity. under the doctrine of ―false friends‖, established by united states v. white (1971) no search occurs if a police informant or undercover agent camouflaged as the defendant’s friend, business associate, or colleague in crime, reports to the government the defendant’s statements made in the informant’s or agent’s presence (united states v. white, 1971). a person is not deemed to have a reasonable expectation of confidentiality from a person with whom he is conversing. the doctrine also applies where the ―false friend‖ wears a ―wire‖ to record the conversation with the defendant. 6. seizure procedure in criminal justice system fourth amendment seizure of a person occurs when a police officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen observed in florida v. bostick (1991), or in another way, when united states v. mendenhall (1980) says, ―in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave‖. a seizure of person includes: i. arrests; ii. physically restraining or ordering a person to stop in order to frisk or question him on the street; iii. taking the person into custody and bringing him to a police station for questioning or fingerprinting; iv. ordering a person to pull his automobile off the highway for questioning or to receive a traffic citation; v. stopping a car by means of a roadblock. however, brief questioning by itself is unlikely to amount to a seizure, e.g., brief questioning during a ―bus sweep‖ is not a seizure; brief questioning about citizenship during a ―factory sweep‖ is not a seizure (immigration and naturalization service v. delgado, 1984). in contrast to a search, which affects a person’s privacy interest, a seizure of property attacks a person’s possessor’s interest in that property. tangible property is seized in fourth amendment terms ―when there is some meaningful interference with an individual’s possessor’s interests in that property‖. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 56 published by scholink inc. 6.1 mere evidence rule in seizure the ―mere evidence” rule permitted only certain categories of evidence to be seized (steven, 2009, p. 53): (1) a ―fruit‖ of a crime (e.g., money obtained in a robbery); (2) an instrumentality of a crime (e.g., the gun used to commit a robbery, or the car used in the get-away); or (3) contraband (e.g., illegal narcotics). the ―mere evidence‖ items that have only evidentiary value in the apprehension or conviction of a person for an offense could not be seized. the supreme court abolished the mere evidence rule in warden v. hayden (1967), which permits police officers to seize any evidence that has a connection to the criminal activity under investigation. 7. interrogation in police custody the fifth amendment of us constitution provides, no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. a person is deemed to be in custody if he/she is deprived of his/her freedom of action ―in any significant way‖. ―custody‖ requires the existence of coercive conditions that would cause a reasonable person to believe, under all the circumstances surrounding the interrogation that he/she is not free to go (richard, 2009, p. 124). for example, a police interrogation room may be deemed a coercive environment but the totality of the circumstances may indicate that a person is not in custody, since for example he/she came to the police station voluntarily. prior to questioning he/she is informed that he/she is not under arrest, and he/she is free to leave the police station at any time. brief detention by the police likewise does not necessarily put one in custody, for example, brief questioning during a routine traffic stop or roadblock (berkemer v. mccarty, 1984). the famous case miranda v. arizona (1966) police are forbidden from interrogating a suspect once he has asserted his right to counsel under the sixth amendment. in innis, the court held that interrogation is not just direct questioning but also its ―functional equivalent‖. again the court includes in rhode island v. innis (1980) ―any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect‖. in rhode island v. innis (1980), case a murder suspect was being transported to the police station when the police commented that they hoped that the murder weapon, which had not yet been located, would not be found by any children from a nearby school for the handicapped. in response, the suspect, who had previously requested a lawyer, revealed the location of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 57 published by scholink inc. the gun. the court held that the comments were not the functional equivalent of interrogation because it found (rhode island v. innis, 1980): (1) the comments were brief; (2) the comments were not particularly evocative; (3) the suspect was not disoriented or upset when the comments were made; (4) there was no evidence that the police should have known that the suspect would be susceptible to an appeal to his conscience. 7.1 miranda warnings the court in miranda v. arizona (1966) noted that congress and the states are free to develop procedural safeguards for protecting a suspect’s fifth amendment rights during custodial interrogation. however, to ensure they are ―fully as effective‖ as those described in miranda, the police must apprise the suspect issue prior to custodial interrogation, that: (1) the suspect has a right to remain silent; (2) anything said can and will be used against the suspect in court; (3) the suspect has the right to consult with a lawyer and to have his lawyer present during interrogation; (4) if the suspect is indigent a lawyer will be appointed to represent him. 7.2 miranda v. arizona the landmark case of miranda v. arizona (1966), resulted from the consolidation of four cases on appeal. in each case, the suspect was taken into custody, questioned in a police interrogation room in which the suspect was alone with the interrogators, and never informed of his privilege against self-incrimination. miranda held that any statement, whether exculpatory or inculcator, obtained as the result of custodial interrogation could not be used against the suspect in a criminal trial unless the police provided procedural safeguards effective to secure the suspect’s privilege against compulsory self-incrimination. custodial interrogation is defined in miranda case as ―questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way‖. the miranda warnings apprise an arrestee of the right to obtain counsel and the right to remain silent. if these warnings are not read to an arrestee as soon as he or she is taken into custody, any statements the arrestee makes after the arrest may be excluded from trial. 7.3 right to remain silent pennsylvania v. muniz (1990) the court states, miranda warnings need not be issued prior to asking a suspect in custody routine booking questions, such as name, address, date of birth, and other biographical data necessary to complete the booking process. miranda states that, once warnings are given, if the suspect indicates that he/she wishes to remain silent, the interrogation must cease. the police must honor a suspect’s right to silence after he/she asserts the privilege but are not necessarily precluded from attempting to interrogate the suspect under different circumstances (michigan v. mosley, 1975). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 58 published by scholink inc. when a suspect in custody invokes his/her right under miranda to consult with an attorney, the police must cease the interrogation until the suspect’s attorney is present unless the suspect initiates further ―communication, exchanges, or conversations‖ with the police (edwards v. arizona, 1981). this rule is intended ―to prevent police from badgering a defendant into waiving his previously asserted miranda rights‖ and applies to all interrogation, including questioning about crimes other than the one for which the suspect is in custody. however, the edwards rule does not apply unless a suspect unambiguously asserts his right to counsel. furthermore, once a suspect in custody invokes his miranda right to counsel, the police may not re-initiate interrogation at any time thereafter unless counsel is present (minnick v. mississippi, 1990). where the suspect initiates communications with the police in the absence of counsel, the police may recommence interrogation upon obtaining a valid waiver of his/her fifth amendment rights. a suspect initiates communications, exchanges or conversations by any comment or inquiry that indicates his/her desire to engage in a discussion relating directly or indirectly to the investigation. comments or inquiries ―relating to routine incidents of the custodial relationship‖, such as a request for water or to use a telephone, do not qualify as ―communications, exchanges, or conversations‖ and thus do not properly trigger further police interrogation (oregon v. bradshaw, 1983). 7.4 waiver of miranda rights miranda states that a valid waiver of fifth amendment rights during interrogation could be found after the reading of miranda rights, when a suspect expressly states a willingness to make a statement, without the presence of an attorney, ―followed closely‖ by such statement (edwards v. arizona, 1981). a voluntary waiver is ―the product of a free and deliberate choice rather than intimidation, coercion, or deception‖. a knowing and intelligent waiver is made with ―full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it‖ (moran v. burbine, 1986). a waiver cannot be deemed ―knowing and intelligent‖ unless the police issued proper miranda warnings. 7.5 express and implied waiver a valid waiver may not be presumed simply from the suspect’s silence following reading of the miranda warnings or from the fact that he confesses. nevertheless, an express statement of waiver is not invariably necessary (north carolina v. butler, 1979). in some cases, waiver may be clearly inferred from the suspect’s words and actions that follow miranda warnings, although the supreme court has given little guidance on when such circumstances exist. exigent circumstances a public safety exception to miranda allows the police to interrogate a suspect prior to miranda warnings if an exigency exists that requires immediate police action to ensure public safety, e.g., to locate a loaded weapon in a public place. the questions asked prior to issuance of the warnings must be directed at the exigent circumstances only (new york v. quarles, 1984). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 59 published by scholink inc. 8. conclusions supreme court is the highest court in most states within the united states. the most important doctrinal sources used by the supreme court have been the commerce, due-process, and equal-protection clauses of the constitution. it also has often ruled on controversies involving civil liberties movement, including freedom of speech and the right of privacy. supreme court’s duty is to clarifying, refining, and testing the constitution’s philosophic ideals and translating them into working principles. the criminal justice system under the constitution guarantee is freedom from unreasonable searches and seizures to citizens. the privacy of the individual is protected against arbitrary intrusion by agents of the government. in 1949 justice felix frankfurter wrote (wolf v. colorado, 1949): the security of one’s privacy against arbitrary intrusion by the police is basic to a free society. the knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of english-speaking peoples. a warrant is not required for a search incident to a lawful arrest, the seizure of items in plain view, a border search, a search affected in open fields, a vehicle search, an inventory search of an impounded vehicle, and any search demanded by exigent circumstances. it is also not required for a stop and frisk, a limited search for weapons based on a reasonable suspicion that the subject has committed or is committing a crime. the constitutional provisions on criminal suspects must get protection against unreasonable searches and seizures reinforced by the clause that requires a warrant, or court authorization, for such searches and seizures. a warrant should not be issued unless there is a finding of ―probable cause‖ by a neutral magistrate or judge. after the introduction of the miranda rights, there have been many concerns surrounding the issues of the validity of the law. this law is much needed when dealing with criminal investigations today. the principle was introduced by miranda v. arizona as the result of a coerced confession by the named petitioner. sometimes police can go beyond their boundaries by questioning defendants in ways that are too unsympathetic or too unfair and police officers tortures someone or locks a person in a room without food or water for days at a time, then it’s pretty obvious that the confession has been coerced. examples of coercive tactics include:  depriving the defendant of food, water, or use of the bathroom  threats (although threats to carry out the law, such as threatening to arrest a codefendant, are usually fine)  promises of leniency  kicking, striking, or otherwise getting physical with the suspect, and  interrogating the suspect at gunpoint. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 60 published by scholink inc. references aguilar v. texas. 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(1995). united states reports (vol. 514, p. 927). https://doi.org/10.1016/s0140-6736(85)92266-4 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25270&keytnum=0&searchtype=get&search=467+u%2es%2e++649 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25270&keytnum=0&searchtype=get&search=441+u%2es%2e++369 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25270&keytnum=0&searchtype=get&search=429+u%2es%2e++492 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25270&keytnum=0&searchtype=get&search=496+u%2es%2e++582 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25270&keytnum=0&searchtype=get&search=446+u%2es%2e++291 https://doi.org/10.3138/9781442674127 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25270&keytnum=0&searchtype=get&search=393+u%2es%2e++410 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25270&keytnum=0&searchtype=get&search=401+u%2es%2e++745 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25270&keytnum=0&searchtype=get&search=387+u%2es%2e++294 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 2, 2023 www.scholink.org/ojs/index.php/elp 1 original paper the effect of digital finance on rural revitalization jiatong wang 1 & niancheng tong 1 1 beijing wuzi university, beijing, 101149, pr china received: june 18, 2023 accepted: june 28, 2023 online published: july 16, 2023 doi:10.22158/elp.v6n2p1 url: http://dx.doi.org/10.22158/elp.v6n2p1 abstract digital finance is gradually becoming an important source of strength to promote rural revitalization. in order to give full play to the role of digital finance in promoting rural revitalization, based on the provincial panel data of china from 2011 to 2021, this paper constructs rural revitalization indicators and explores the effect of digital finance on rural revitalization. it is found that the development of digital finance has a significant effect on rural revitalization; digital finance has a positive impact on rural revitalization by improving the level of urban-rural integration, promoting agricultural modernization and boosting economic growth; in high-income areas, digital finance plays a more significant role in promoting rural revitalization; the higher the level of digital finance, the better it can play a role in promoting rural revitalization. keywords digital finance, rural revitalization, urban-rural integration, agricultural modernization, economic growth 1. introduction in 2022, the report of the 20th national congress emphasized the need to comprehensively promote rural revitalization and accelerate the construction of a powerful agricultural country. in 2023, the no. 1 document of the central committee pointed out that it is necessary to accelerate the modernization of agriculture and rural areas and adhere to the integration of urban and rural development. a strong country starts with strong agriculture, and a strong country is only strong when agriculture is strong. however, the effective implementation of a rural revitalization strategy cannot be separated from finance, and the income increase of rural residents, the improvement of infrastructure in rural areas, the improvement of the ecological environment in rural areas and the promotion of agricultural and rural modernization cannot be separated from financial support. the strategic plan for rural revitalization (2018-2022) issued in 2018 pointed out that financial support for agriculture should be strengthened at this stage. facing the rapid development of digital technology, the no. 1 document of the central www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 2 published by scholink inc. committee in 2021 pointed out that it is necessary to vigorously develop rural digital inclusive finance, so that the development of digital finance can promote the implementation of rural revitalization strategy. so, can the development of digital finance effectively promote rural revitalization? what is its inherent transmission mechanism? is there any heterogeneity in its influence? this paper examines this issue. 2. theoretical evidence of digital finance promoting rural revitalization digital finance is a deep combination of the traditional financial industry and digital information technology. the emergence of new formats and models of digital finance has greatly alleviated the problems of high borrowing costs, low efficiency and difficult risk control in a traditional financial industry when serving rural areas (yudong sun et al., 2023). ge h et al. (2022) found that the development of digital inclusive finance significantly promoted the integration of rural industries, and the positive impact was more significant in areas with higher levels of integration. junyong cao et al. (2023) studied 31 provinces in china by using the system gmm and threshold effect model and also found that the development of digital inclusive finance significantly promoted the development of rural industrial integration, especially in economically developed areas. pang jinbo et al. (2023) found that the transmission path of digital inclusive finance to promote rural industrial integration is to promote the progress of agricultural technology, and the use of depth and coverage breadth play a more obvious role in promoting the central and western regions. chen b et al. (2021) found that digital finance can inhibit the occurrence of poverty based on chfs data, and its mechanism paths are relaxing credit and information constraints, expanding social networks, and stimulating entrepreneurship. lingling shi et al. (2022) found that digital inclusive finance can increase residents’ income through industrial upgrading and economic development, and its influence on poor groups is more obvious. lian x et al. (2022) found that digital inclusive finance promotes rural residents’ income increase in terms of entrepreneurship, investment, non-agricultural employment, and mechanized production by studying rural residents' income in grain-producing areas in china. min wang et al. (2023) found that digital inclusive finance significantly promoted rural revitalization, and at the same time, it played a more significant role in promoting areas with high consumption levels and high human capital. it is also found that digital inclusive finance can promote rural revitalization by increasing the mechanization penetration rate, stimulating entrepreneurship and increasing income. weifu meng et al. (2023) found that digital inclusive finance can relax credit constraints and promote rural revitalization with significant spatial spillover effects. this paper selects the data of 30 regions in china from 2011 to 2021 (excluding tibet, hong kong, macao and taiwan), calculates the rural revitalization level index, and uses peking university digital inclusive finance index to deeply analyze the impact of digital financial development on rural revitalization from the perspective of urban-rural integration, agricultural modernization and economic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 3 published by scholink inc. growth. 3. model design and variable introduction 3.1 data sources and variable descriptions the research sample of this paper is the provincial digital finance and rural revitalization panel data of 30 provinces (excluding tibet) in mainland china from 2011 to 2021. the measurement data of digital finance comes from the digital finance research center of peking university, and other data come from china statistical yearbook, china labor statistics yearbook, china urban statistics yearbook, national bureau of statistics, etc. a. core explanatory variable: the level of digital finance development (index). this paper draws on xun zhang et al. (2019) and uses the logarithmic value of the peking university digital inclusive finance index (feng guo et al., 2020) as an indicator of the level of digital finance development. b. explained variable: the level of rural revitalization (rur). based on the principle of comprehensiveness and availability, this paper draws lessons from the practices of ting zhang et al. (2018), ye tian et al. (2022) and min wang et al. (2023), and constructs the rural revitalization index evaluation system from five aspects: prosperous industry, ecological livability, civilized rural customs, effective governance and affluent life. in order to ensure that the rural revitalization index of each province is comparable across years, this paper draws lessons from the practice of jun liu et al. (2020), takes 2011 as the base period, and uses the following formula to standardize the positive original data: (1) for negative raw data, the standardization formula is as follows: (2) in equations (1) and (2), amax0 and amin0 represent the maximum and minimum values of the original data in the base period year, respectively, and t represents the year. the rural revitalization index constructed after the above standardization treatment can intuitively reflect the development trend of rural revitalization in different provinces with time. after that, the entropy value method is used to assign weights to obtain the rural revitalization level of each province each year and take the logarithm of it. table 1 shows the evaluation system of the rural revitalization index constructed in this paper and the weights obtained by entropy method. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 4 published by scholink inc. table 1. rural revitalization index evaluation system first-class index secondary index weight attribute prosperous industry added value of agriculture, forestry, animal husbandry and fishery 0.0698 + per capita grain output 0.0748 + ratio of effective irrigated area to total sown area 0.0602 + ecological livability forest coverage rate 0.0477 + rural electricity consumption 0.1062 + number of village clinics 0.0691 + number of doctors and health workers per 10,000 people in villages 0.0339 + participation rate of pension insurance 0.0342 + civilized rural customs coverage rate of rural tv programs 0.0085 + financial expenditure on recreation and culture 0.0613 + telephone penetration rate 0.0369 + per capita possession of public library collections 0.0587 + completed investment in industrial pollution control 0.0880 + effective governance number of autonomous organization units per 10,000 people 0.0457 + number of village committee units per 10,000 people 0.0557 + affluent life ratio of consumption of rural residents to urban residents 0.0310 + ratio of income of rural residents to urban residents 0.0276 + engel coefficient 0.0159 the proportion of rural residents’ wage income to total income 0.0323 + the proportion of rural residents’ expenditure on education, culture and entertainment to total expenditure 0.0426 + www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 5 published by scholink inc. c. intermediary variables: the level of urban-rural integration (urb), the level of agricultural modernization (agr), and the level of regional economy (eco). urbanization rate is an important index to measure the level of regional development and directly determine the symbiosis of urban-rural integration (xiaolong wu, 2023), so this paper uses the logarithmic value of urbanization rate to measure the level of urban-rural integration. with the development of agricultural modernization, crop production relies more and more on mechanization, and agricultural mechanization is the most direct embodiment of agricultural modernization (yugang ding et al., 2022). therefore, this paper uses the logarithmic value of total power of agricultural machinery to measure the level of agricultural modernization. at the same time, this paper uses the logarithmic value of regional per capita gdp to measure the regional economic level (qifan xu et al., 2022). d. control variables: education penetration (edu), foreign trade (fot), population status (pop), basic transportation level (tra), internet development level (int), and gender ratio (gen). among them, education penetration is measured by the proportion of the illiterate population to the population over 15 years old; foreign trade is measured by the logarithm of total investment in foreign-invested enterprises; population status is measured by total dependency ratio; basic traffic level is measured by the ratio of highway mileage to the regional area; internet development level is measured by the logarithm of rural broadband access users; gender ratio is measured by the ratio of the male population to female population. the following table shows descriptive statistics of each variable. table 2. descriptive statistics of variables variable mean std. dev. min max the level of rural revitalization (rur) -0.903 0.294 -1.849 -0.268 the level of digital finance development (index) 5.283 0.669 2.909 6.129 the level of urban-rural integration (urb) 4.068 0.198 3.557 4.495 the level of agricultural modernization (agr) 7.685 1.121 4.543 9.499 the level of regional economy (eco) 10.831 0.451 9.682 12.142 education penetration (edu) 4.771 2.737 0.790 16.630 foreign trade (fot) 11.386 1.437 7.948 15.326 population status (pop) 0.381 0.074 0.193 0.578 basic transportation level (tra) 0.956 0.509 0.089 2.234 internet development level (int) 4.972 1.462 -0.693 7.353 gender ratio (gen) 1.050 0.042 0.958 1.232 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 6 published by scholink inc. 3.2 model design in order to test the impact of digital financial development on rural revitalization, the following model is constructed in this paper: rurit=α1indexit+αzcit+α0+μi+σt+εit (3) in the above formula, rurit is the rural revitalization level of i province in t year, and indexit is the digital financial level of i province in t year. cit is the control variable of i province in t year, μi is the fixed effect of province, σt is the fixed effect of year, εit is the random disturbance term, and α1 is the influence coefficient of digital finance on rural revitalization. in order to have a deeper understanding of the effect mechanism of digital finance development on rural revitalization level, this paper takes the urban-rural integration level, agricultural modernization level and regional economic level as intermediary variables, and constructs the following intermediary effect model: rurit=α1indexit+αzcit+α0+μi+σt+εit (4) medit=β1indexit+βzcit+β0+μi+σt+εit (5) rurit=γ1indexit+γ2medit +γzcit+γ0+μi+σt+εit (6) in the above equation, medit represents the intermediary variable of t years in i province, and the rest of the variables are consistent with the above. on the premise that α1 is significant, if β1 and γ2 are significant, it can be said that there is obvious mediating effect. at the same time, if γ1 is also significant, it is a partial mediating effect, and if γ1 is not significant, it is a complete mediating effect. 4. empirical analysis 4.1 benchmark regression result analysis through the hausman test, this paper chooses the fixed effect model for benchmark regression. table 3 shows the benchmark regression results of the impact of digital finance development on rural revitalization. columns (1), (2), and (3) in the table are the result of adding time-fixed effects and control variables in turn. it can be seen from the results that the development of digital finance has significantly promoted rural revitalization, and its significance has always remained at 1%, regardless of whether time-fixed effects and control variables are added. further analysis of the regression results of control variables shows that foreign trade has a significant positive impact on rural revitalization, which may be due to the abundant funds and advanced management concepts brought by foreign investment, which promoted the income increase of rural residents, optimized the ecological environment and further promoted rural revitalization (zhen zhong et al., 2019). the basic transportation level also significantly promotes rural revitalization. the reason may be that the improvement of transportation networks strengthen the communication between urban and rural areas, and rural residents can increase the opportunities of going out for employment and entrepreneurship, and can also sell special products to other regions, thus increasing income and promoting rural revitalization. however, the population situation significantly inhibits rural www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 7 published by scholink inc. revitalization. the reason may be that the greater the proportion of children and the elderly in the labor force, the more likely it is to bring an economic burden to rural families, lead to poverty, and then inhibit rural revitalization. table 3. benchmark regression results (1) (2) (3) rur rur rur index 0.190*** 0.175*** 0.156*** (0.011) (0.061) (0.049) edu -0.005 (0.006) pop -0.982*** (0.234) fot 0.039** (0.014) tra 0.185*** (0.045) int -0.006 (0.015) gen -0.217 (0.139) _cons -1.905*** -1.818*** -1.695*** (0.058) (0.224) (0.346) year no yes yes province yes yes yes r2 0.786 0.821 0.868 note. ***, **, and * represent significant at 1%, 5%, and 10% levels, respectively. the brackets are robust standard errors clustered to provinces, the same as below. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 8 published by scholink inc. 4.2 robustness tests 4.2.1 replace the explained variable in order to test whether the benchmark regression results are stable or not, this paper uses the weighting method of jun liu et al. (2020) to empower the above rural revitalization index evaluation system and obtains a new rural revitalization level index (rur2) to replace the explained variables in the benchmark regression above. table 4, column (1) shows the results after the replacement of the explained variable, from which it can be seen that digital financial development still significantly promotes rural revitalization, which is significant at the 1% level and consistent with the results of the benchmark regression. 4.2.2 tailoring treatment from the descriptive statistics of variables in table 2 above, it can be seen that there are great differences in rural revitalization level and digital finance development level among different regions. in this study, both of them are treated with a tail reduction to avoid outliers interfering with regression results. because the development level of digital finance has a left tail phenomenon, the development level of digital finance is reduced by 10% on the left side, and the rural revitalization level is reduced by 5% on both sides, and then regression analysis is carried out. column (2) of table 4 shows the regression results after the tailoring treatment, and the results show that digital financial development still significantly promotes rural revitalization and is significant at the 1% level, which passes the robustness test. 4.2.3 instrumental variable method because there are some problems such as missing variables and bidirectional causality, this paper uses an instrumental variable method to alleviate endogeneity. this paper draws lessons from the methods of qunhui huang et al. (2019) and tao zhao et al. (2020), and adopts the historical data of posts and telecommunications in 1984 as the tool variable of the digital financial development level index. first of all, the usage habits and technologies of traditional communication tools in local history will have a certain impact on the current digital technology. secondly, the frequency of traditional communication tools such as fixed telephones is declining, which has little impact on rural revitalization at present. because the selected instrumental variable is cross-sectional data, this paper draws lessons from the practice of nunn n and qian n (2014), and takes the interaction item between the number of telephones per 10,000 people in each province in 1984 and the number of mobile internet users in the previous year as the instrumental variable. the regression results in column (3) of table 4, after considering endogeneity, show that the positive impact of the development of digital finance on rural revitalization remains significant at the 1% level. in addition, the significance level of p value of kleibergen-paap rk lm is 1%, which significantly rejects the hypothesis of “insufficient identification of instrumental variable”; the wald f value of kleibergen-paap rk is larger than the 10% level critical value in stock-yogo test, which indicates that the instrumental variable has passed the weak identification test and shows the rationality of the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 9 published by scholink inc. instrumental variable. table 4. robustness tests (1) (2) (3) replace the explained variable tailoring treatment instrumental variable method rur2 rur rur index 0.203 *** 0.243 *** 0.374 *** (0.063) (0.083) (0.115) control yes yes yes year yes yes yes province yes yes yes r 2 0.887 0.834 0.967 kleibergen-paap rk lm 22.761[0.000] kleibergen-paap rk wald f 20.399{16.38} note. [] is the p value and {} is the critical value at the 10% level of the stock-yogo test. 4.3 intermediary effect analysis 4.3.1 the level of urban-rural integration table 5 shows the results of the intermediary effect tests. it can be seen from column (1) that the development of digital finance has a direct impact on rural revitalization. from column (2), it can be concluded that digital finance significantly promotes rural-urban integration, which is significant at the 1% level. it can be seen from column (3) that the development of digital finance and the improvement of urban-rural integration have a significant positive impact on rural revitalization. it confirms the existence of a partial mediating effect that the development of digital finance can promote rural revitalization by promoting urban-rural integration. in addition, after bootstrap sampling test for 1000 times, the confidence interval after adjusting deviation does not contain 0, which further confirms the existence of an intermediary effect. 4.3.2 the level of agricultural modernization column (4) shows that the development of digital finance can significantly contribute to the level of agricultural modernization. it can be seen from column (5) that the development of digital finance and agricultural modernization has significantly promoted rural revitalization, both at the level of 1%. it proves that there is a partial mediating effect of digital finance to promote rural revitalization by enhancing the level of agricultural modernization. meanwhile, bootstrap test shows that the confidence interval after adjusting deviation does not contain 0, which further confirms the existence of an intermediary effect. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 10 published by scholink inc. 4.3.3 the level of regional economy from column (6), it can be concluded that the development of the digital economy has a significant positive impact on the regional economy. it can be seen from column (7) that the development of digital finance and regional economy significantly promotes rural revitalization at the same time. at the same time, after bootstrap test, the confidence interval after deviation adjustment does not contain 0. it can be seen that the development of digital finance can promote rural revitalization by stimulating economy, and part of the mediating effect holds. table 5. the results of the intermediary effect tests (1) (2) (3) (4) (5) (6) (7) rur urb rur agr rur eco rur index 0.156 *** 0.139 *** 0.094 ** 0.269 ** 0.135 *** 0.126 ** 0.128 *** (0.049) (0.036) (0.045) (0.128) (0.049) (0.058) (0.046) urb 0.444 ** (0.184) agr 0.078 *** (0.028) eco 0.220 * (0.113) control yes yes yes yes yes yes yes year yes yes yes yes yes yes yes province yes yes yes yes yes yes yes r 2 0.868 0.919 0.873 0.166 0.873 0.966 0.873 confidence interval（bc） 0.0246889~0.1117324 0.0057678~0.048927 0.0066209~0.0636636 4.4 heterogeneity analysis in order to further explore the internal relationship between digital finance and rural revitalization, this paper explores the boundary conditions of digital finance promoting rural revitalization by means of group regression, and analyzes the heterogeneity of digital finance promoting rural revitalization. a. heterogeneity analysis based on different income levels of rural residents. improving the income level of rural residents is an important part of the implementation of rural revitalization strategy, and it is also an important foundation and driving force for rural revitalization. the income level of rural residents affects the promotion of rural revitalization to a certain extent. in this paper, the per capita disposable income of rural residents is used as the basis for grouping, and (1), (2) and (3) of table 6 are listed as regression results. the results show that the promotion of digital finance development to rural www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 11 published by scholink inc. revitalization is more significant in low-income and high-income samples, but not significant in middle-income samples. among them, the promotion effect of digital financial development on rural revitalization is the most significant and has the highest coefficient in the high-income sample. it shows that in high-income areas, digital finance plays a greater role in promoting rural revitalization, which reflects the importance of increasing the income of rural residents. b. heterogeneity analysis based on different development stages of digital finance. in this paper, the digital financial development index is taken as the grouping basis, and (4), (5) and (6) of table 6 are listed as regression results. the results show that the development of digital finance has a more significant positive impact on rural revitalization in the initial and mature stages, but has no significant promotion effect in the growth stage. among them, in the mature stage of digital finance development, its promotion to rural revitalization is the most significant and the coefficient is the largest. this indicates that digital finance will become an important factor to promote rural revitalization when it enters the mature stage, and provide strong support for the implementation of rural revitalization strategy. table 6. heterogeneity test results different income levels different development stages of digital finance (1) (2) (3) (4) (5) (6) low middle high initial stage growth stage mature stage rur rur rur rur rur rur index 0.132 ** 0.145 1.906 *** 0.096 ** 0.026 2.411 *** (0.059) (0.253) (0.610) (0.038) (0.256) (0.736) control yes yes yes yes yes yes year yes yes yes yes yes yes province yes yes yes yes yes yes r 2 0.905 0.640 0.495 0.912 0.566 0.354 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 12 published by scholink inc. 5. conclusions and suggestions based on the provincial panel data of 30 provinces in mainland china (except tibet) from 2011 to 2021, this paper constructs an index evaluation system of rural revitalization level, and studies the effect and mechanism of digital finance development on rural revitalization by using peking university digital inclusive financing index. the research draws the following conclusions: first, the development of digital finance can significantly promote rural revitalization. second, the development of digital finance promotes rural revitalization by promoting urban-rural integration, agricultural modernization and economic growth. third, the promotion of digital finance development to rural revitalization is more significant in rural high-income areas; digital finance can better promote rural revitalization after entering the mature stage. based on the above conclusions, the following suggestions are put forward: first of all, we should actively promote the construction of digital finance and promote the development of digital finance in the countryside. firstly, we should improve the rural digital financial infrastructure system, accelerate the construction of digital countryside, provide a good digital environment for the countryside, and make full use of internet information technology to improve the digital level in rural areas. secondly, financial institutions should strengthen the publicity of digital financial services in rural areas and improve the financial literacy of residents in rural areas. at the same time, they should combine local characteristics and launch digital financial services suitable for local development to meet the diversified financial needs of local residents, broaden their sources of funds, motivate rural residents to engage in employment and entrepreneurship, and promote the effective implementation of the rural revitalization strategy. it is imperative to promote the development of digital finance, and the sooner digital finance development enters the fast lane, the better it can promote rural revitalization. second, we should adhere to the integration of urban and rural development and promote the interconnection of urban and rural basic networks. first of all, we should encourage the exchange of talents between urban and rural areas, encourage digital and financial talents to enter and build villages, and narrow the urban-rural digital divide. relevant departments should provide certain assistance for talents going into the city and going to the countryside, provide financial and policy support for relevant talents, and lay a solid foundation for talent exchange between urban and rural areas. secondly, we should use digital technology to connect the industrial development between urban and rural areas, help the digital development of rural industries, provide digital production, storage, circulation and sales services for traditional rural industries, promote the revitalization of rural industries by relying on digital technology, improve the income level of rural residents, and maximize the promotion efficiency of digital financial development on rural revitalization. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 13 published by scholink inc. third, we should vigorously promote the modernization of agriculture and rural areas and upgrade the economic level of rural areas. we should actively promote the digitalization, intelligence and modernization of rural areas, enrich the lives of rural residents and accelerate the modernization of rural areas. secondly, we should promote the development of agricultural mechanization and wisdom to save time in agricultural production, so that rural residents can have more time for non-agricultural production and entrepreneurship, broaden the income channels of rural residents, increase the income of rural residents, and promote the economic growth of rural areas, so that the development of digital finance can better promote rural revitalization. references cao, j. y., & zhang, l. z. (2023). the dynamic impact of digital inclusive finance on the development of rural industrial integration—a test based on systematic gmm and threshold effects. southwest finance, (01), 43-55. chen, b., & zhao, c. (2021). poverty reduction in rural china: does the digital finance matter? plos one, 16(12), e0261214. https://doi.org/10.1371/journal.pone.0261214 ding, y. g., & sun, q. x. (2022). the impact of climate risk on china’s agricultural economic development—heterogeneity and mechanism analysis. financial studies, (09), 111-131. ge, h., li, b., tang, d., xu, h., & boamah, v. (2022). research on digital inclusive finance promoting the integration of rural three-industry. international journal of environmental research and public health, 19(6), 3363. https://doi.org/10.3390/ijerph19063363 guo, f., wang, j. y., wang, f., kong, t., zhang, x., & cheng, z. y. (2020). measuring the development of digital inclusive finance in china: indexing and spatial characteristics. economics (quarterly), (04), 1401-1418. huang, q. h., yu, y. z., & zhang, s. l. (2019). internet development and manufacturing productivity improvement: intrinsic mechanisms and china’s experience. china industrial economics, (08), 5-23. lian, x., mu, y., & zhang, w. (2023). digital inclusive financial services and rural income: evidence from china’s major grain-producing regions. finance research letters, 53, 103622. https://doi.org/10.1016/j.frl.2022.103622 liu, j., yang, y. y., & zhang, s. f. (2020). a study on the measurement and drivers of china’s digital economy. shanghai economic research, (06), 81-96. meng, w. f., li, s., liu, j. h., & chen, y. (2023). a study on the impact mechanism of digital inclusive finance for rural revitalization. economic issues, (03), 102-111. nunn, n., & qian, n. (2014). us food aid and civil conflict. american economic review, 104(6), 1630-1666. https://doi.org/10.1257/aer.104.6.1630 https://doi.org/10.1371/journal.pone.0261214 https://doi.org/10.3390/ijerph19063363 https://doi.org/10.1016/j.frl.2022.103622 https://doi.org/10.1257/aer.104.6.1630 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 2, 2023 14 published by scholink inc. pang, j. b., & wu, n. l. (2023). research on the effect and mechanism of digital inclusive finance on the integrated development of rural industries. journal of hubei university for nationalities (philosophy and social science edition), (02), 94-103. shi, l. l., yu, x. j., yang, w., & liang, w. s. (2022). income-increasing effect and mechanism of action of digital inclusive finance—an empirical analysis based on municipal panel data in china. research in financial economics, (02), 93-104. sun, y. d., & wang, x. h. (2023). practical value, practical challenges and policy responses of digital inclusive finance for rural revitalization. journal of beijing administrative college, (01), 112-120. tian, y., ye, y. t., huang, j., & liu, q. (2022). the intrinsic mechanism and empirical test of rural industrial revitalization driven by digital economy—based on the mediating effect of urban-rural integration and development. issues in agricultural economics, (10), 84-96. wang, m., gu, y., & li, z. w. (2023). digital inclusive finance and rural revitalization: a theoretical logic and empirical test. journal of northwestern university (philosophy and social science edition), (01), 56-71. https://doi.org/10.1016/j.frl.2023.104157 wu, x. l. (2023). regional measurement and empirical evidence of urban-rural coexistence development in china. statistics and decision making, (02), 41-46. xu, q. f., zou, g. n., & gan, x. q. (2022). fiscal investment, 5g industry and economic growth. reform, (08), 123-140. zhang, t., li, m. r., & xu, y. m. (2018). construction and empirical study of rural revitalization evaluation index system. management world, (08), 99-105. zhang, x., wan, g. h., zhang, j. j., & he, z. y. (2019). digital economy, inclusive finance and inclusive growth. economic research, (08), 71-86. zhao, t., zhang, z., & liang, s. k. (2020). digital economy, entrepreneurial activity and high quality development—empirical evidence from chinese cities. management world, (10), 65-76. zhong, z., yu, z. t., & bai, d. (2019). leisure agriculture and rural tourism in the context of rural revitalization: does foreign investment matter? china rural economy, (06), 76-93. https://doi.org/10.1016/j.frl.2023.104157 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 3, no. 1, 2020 www.scholink.org/ojs/index.php/elp 1 original paper does responsibility to protect (r2p) make difference to civilians?: an analytical and evaluation study walid fahmy 1 1 pharos university, alexandria, egypt received: march 2, 2020 accepted: march 12, 2020 online published: march 31, 2020 doi:10.22158/elp.v3n1p1 url: http://dx.doi.org/10.22158/elp.v3n1p1 abstract in 2001, the international commission on intervention and state sovereignty (iciss) proposed rethinking on sovereignty through the prism of a new concept: the “responsibility to protect” (r2p). several years after, its message has been achieved? this is answer to this question that, in the aftermath of the arab spring, at the end of an intervention that is controversial in libya and in the face of the syrian drama, we decided to make an evaluation, by analyzing this doctrine. from details of methodological of the purpose of this article, the review of the legal framework of the “responsibility to protect” (r2p) in international law is based on pre-existing concepts and rules that are sometimes approached such as the international responsibility and criminal responsibility priori conceptualization of the “responsibility to protect”, will be the first axis of this study. in the second, axis the responsibility to protect the population rests primarily on the territorial state against war crimes, crimes against humanity, crimes of genocide and ethnic cleansing. it must be stated that the obligation to protect the concerned state, was necessary before the states itself by establishing international legal standards. if the state is not willing to do or unable, the subsidiary protective role is the responsibility of other actors. the reality of major obstacles reduces the effective implementation on the ground of the “responsibility to protect”. these obstacles can be linked with the same design of it, just as they may result from external causes that could make inoperative the responsibility to protect in view of the situation, the international community application does not rely on the implementation of the responsibility to protect in some cases that meet, however, all the conditions to act within this framework. in the third axis of this study, it will be also a review of the operational legal framework. the united nations has adopted several resolutions on the “responsibility to protect”, examining not only their support to the doctrine, but also their willingness to authorize the deployment of peacekeeping operations and to adopt resolutions in support of military intervention paragraph. but www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 2 published by scholink inc. the security council of the united nations has not always been unanimous about the situations to which the “responsibility to protect” applies. the case of darfur and the crisis of the syria, there was something else, they were exemplary cases of the application of the “responsibility to protect” inertia, and the different responses by the international community in the face of these crises, will allow us in the fourth axis of interesting conclusions about the difficulties in the application thereof. keywords the international commission on intervention and state sovereignty, the “responsibility to protect”, international responsibility, the international community, the security council 1. introduction & overview from the years 1990, member states of the united nations have gradually shifted the center of their security concerns from states to individuals. the state is the first guarantor of the protection of the rights of the human person. there is also an obligation in international law for any state to respond to violations of these rights. the “rwandan genocide” in 1994 (nikuze, 2014, p. 1099; verwimp, 2004, p. 233; rohr, 2009, pp. 1-4; graybill, 2002, p. 88) (note 1) and the massacre in srebrenica in 1995 (cedric ryngaert & nico schrijver, 2015, pp. 219-220; southwick, 2005, pp. 192-195; gruñfeld & vermeulen, 2009, p. 222; dicaprio, 2009, p. 74; herman, 2206, pp. 409-410) (note 2) make the member states of the united nations be aware of, apart from the fact that governments are not always able to protect their citizens, they can sometimes be the source of threats (sarkin, 2012, pp. 18-19; thakur, 2016, pp. 416-427; luck, 2010, pp. 350-361; luck, 2008, p. 2). with such aim of achieving greater international sovereignty and the imperative to intervene for the purposes of human protection, was the call of the former un secretary-general, kofi annan. the international commission on intervention and state sovereignty (iciss), set up by canada in september 2000, proposed, in december 2001, the concept of “responsibility to protect”. the responsibility to protect leads to thinking of sovereignty as a responsibility and no longer as an absolute right. responsibility is threefold: to warn of war crimes, genocide and crimes against humanity, to suppress them when prevention has failed and to rebuild the country to ensure that such events do not recur. the responsibility to protect is above all the purview of the state in whose territory the conflicts take place. it is only if a state fails to protect its population, either because of lack of will, or by impossibility (this would be the case of own government failure that it would not be able to put an end to the clashes), it is up to the international community to act (gagro, 2014, pp. 69-70). it is clear that the prevention of conflict must remain the first objective of international cooperation in the face of the magnitude of the destruction of property, killings, suffering, injuries and damage to the environment. the second objective is to ensure that humanity be safeguarded in the face of the reality of armed conflict and to avoid human suffering (zupančič, 2009, pp. 69-70). the purpose of the international humanitarian law (ihl) is specially to alleviate the suffering of all victims of armed conflict in the power of the enemy; it‟s the noble ambition of ihl. the latter, is defined as the set of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 3 published by scholink inc. legal rules on the protection of the human person in times of hostilities (alexander, 2015, p. 111). as such, the ihl is complementary to the international right of the human person by its traditional component (classic ihl) and its modern (modern ihl) component. in classic ihl, a distinction is usually performed between the hague law, which fixed the rights and duties of belligerents in the conduct of operations and limits the choice of means of harm, and the law of geneva, intended to regulate hostilities, mitigate the rigors as much as military requirements permit. for example, classic ihl is legal rules at the international level to protect the victims of war. it represents the first version of the ihl, which was systematized by the end of the nineteenth century. today, we consider that the law of geneva and the law of the hague were merged. classic ihl would then consist of these two bodies which are however not totally separated, insofar as certain rules of the law of the hague have for effect to protect the victims of conflicts, the geneva law rules limit the action of belligerents during the hostilities (thürer, 2007, p. 2) (note 3). modern ihl is complementary to the classic ihl, without, however, to replace it. thus, the analysis is different: while the classic ihl was founded on the principle of neutrality, modern international humanitarian law is based on the idea of intervention or interference, i.e., in terms of action to act or, more precisely, to react (kolb, 2013, pp. 23-24) (note 4). the international law commission had made a distinction between serious violations of an obligation under peremptory norms jus cogens and violations of obligations owed to the community international erga omnes, therefore, that the consequences of violations of these two categories are different, depending on whether based on the (art.41) (note 5) of the text beyond commission on responsibility of states for fact internationally wrongful, and relative to the specific consequences of the violation of standards mandatory (art.40), or on (art.48) (note 6) on violations of obligations owed to the international community as a whole. in addition, in the international legal order, the fundamental human rights obligations which weigh on the state and whose violation can lead to international enforcement action against him, are very similar to those that can result in criminal responsibility of the individual. the crimes covered by the responsibility to protect can be cleared of the offences within the jurisdiction of the icc. the rome statute is essential in the delimitation of the scope of the responsibility to protect. the military intervention, which could in principle be decided only by the security council on the basis of chapter vii of the charter of the united nations, because of a threat to international peace and security, is the ultimate remedy! before using it, the international community has a set of measures as a diplomatic sanction and embargo (note 7). that is likely to put pressure on the failing states. in addition, rigorous beacons (including the just cause, proportionality of the means,) must be respected in the implementation of the responsibility to protect. from its adoption and its entry in the international legal field, the responsibility to protect has received a concrete application, especially in the case of darfur in 2006, in 2008 kenya and libya in 2011. the new concept of responsibility to protect seems to have an application ambiguous on the occasion of the emergence of a new deal on the internal and international, one of the popular revolts. the death toll in different arab countries was the breath of the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 4 published by scholink inc. revolutions in several thousands, especially in syria. this article aims to evaluate the doctrine of the “responsibility to protect” in analyzing, and specifying, first the concept, heiress of a theory on the “right of humanitarian intervention”. next, it should analyze the relationship of the state having failed with the body of rules governing the consequences of its action for the breach of an international obligation. it is interesting, in this regard, to review the applicability of the legal regime of international responsibility of a state for internationally wrongful as to the breach of responsibility to protect. in addition, analyze the international criminal responsibility of individuals, but also the possibility to engage the state, authors of international crimes, turns out to be necessary. finally, it is also important to identify, thoroughly authority appropriate protection, as many points that have not quite yet caught the attention to and in connection with, the assessment of the concept of the “responsibility to protect”. in practical terms, the implementation of the concept of “responsibility to protect”, by the competent authorities on case studies, will help illustrate the emergence of this concept of the fact of its use by the united nations and its member states, with the right to authorize the use of force, in order to protect the victims of the failure of their states. this case study is to understand the obstacles to the implementation of “responsibility to protect”, hence the need to consider measures to strengthen the efficiency and effectiveness of this concept or the search for a new doctrine. 2. analyzed the conceptual framework of responsibility: what is the type of responsibility? 2.1 r2p and international responsibility between convergence and variance article (i) of the international law commission on international responsibility for internationally wrongful acts specifies that “every internationally wrongful act of the state entails the international responsibility of that state”. this means that the existence of an internationally wrongful act on the part of the state constitutes, as such, the source of international responsibility. this means that the existence of an internationally wrongful act on the part of the state is, as such, the source of international responsibility (note 8). the pcij has applied this principle enunciated in several cases, notably in the case “phosphates in morocco” stating that: affirmed that when a state commits an internationally wrongful act against another state international responsibility is established “immediately as between the two states” (note 9). the icj, for its part, has affirmed this principle, particularly in the “straits of corfu” cases (note 10), “military and paramilitary activities in and against nicaragua”. further, in its advisory opinions on the united nations reparation for injuries and the interpretation of peace treaties with bulgaria, hungary and romania, where it stated that “it is clear that the refusal to fulfill a treaty obligation is likely to engage international responsibility” (note 11). similarly, the arbitral tribunal in the “rainbow warrior” case insisted that “any violation by a state of any obligation, of whatever origin, gives rise to state responsibility” (note 12). the state must be guilty of an internationally wrongful act so that its international responsibility can be engaged, that is, an act contrary to the international obligations of that state. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 5 published by scholink inc. it is worth mentioning that the state is answerable for its international wrongful acts means that its conduct must be assessed in the light of its international obligations, which alone make it possible to engage its responsibility in the international law order. there is a breach of an international obligation by a state where “when an act of that state is not in conformity with what is required of it by that obligation, regardless of its origin or character” (note 13). two elements must, therefore, be met: state conduct that may be an action or an omission, and its contrariety with a rule of international law. the origin or the character of the violation, as already stated, irrelevant in the assessment of unlawfulness which may be either in breach of a treaty obligation (olleson, 2007, p. 102). professor james crawford makes a distinction between “primary obligations” by which “gives rise, immediately by operation of the law of state responsibility and "secondary obligations” or series of such obligations (cessation, reparation) (crawford, 2002, p. 876) (note 14). it is a settled rule of international law that a state may not depend on the provisions of its domestic law as support for neglecting to agree to international obligations (palombino, 2015, p. 504). the supremacy of international law over domestic law has recently been reiterated in the jurisprudence of the pcij and icj. the most illuminating decision in such manner is that conveyed by the permanent court of international justice in treatment of polish nationals. in line with this decision, a state can‟t illustrate as against another state its very own constitution with a view to dodging obligations officeholder upon it under international law or treaties in force (note 15). later, in the “pulp mills on the river uruguay” case, the court held uruguay liable for breach of its reporting obligations under the 1975 uruguay river statute, noting that it gave priority to its own legislation on the procedural obligations it had under the 1975 statute. in addition that, the breached rule or obligation must be in force with respect to the state in question at the time the breach occurs (fitzmaurice, 2007, p. 61) (note 16). finally, in order for the act in question to constitute a violation of international law, it must not be covered by a circumstance precluding wrongfulness. in other words, there is no wrongfulness when one of the circumstances envisaged is present because by virtue of that presence the objective element of the internationally wrongful act, namely the breach of an international obligation lack. these circumstances are set out and defined in chapter v of the draft articles of the international law commission (ilc) on state responsibility. they are sometimes related to the facts of the other state; the consent of the state, self-defense and countermeasures, sometimes the impossibility of acting out of force majeure, distress and the state of necessity (note 17). the notion of peremptory rule, however, limits the play of all these circumstances as a matter of art. 26 of the ilc draft article on state responsibility in domestic law (note 18). at first reading of the draft articles of 1976, the commission held two different categories of violations of international law: the “delict” and the “international crime”, the definition of which was given in art. 19 constituted a crime of the state “an internationally wrongful act which results from the breach by a state of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 6 published by scholink inc. constitutes an international crime” and was thus characterized, inter alia, as “serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid”. the para.3 of this provision provided a list of international crimes: aggression, the maintenance by force of colonial domination, slavery, genocide, apartheid, serious preservation of the human environment, in particular. all other internationally wrongful acts were described as delict under para.4 (howard, 2001, p. 8, p. 9, p. 11) (note 19). the proposals of the drafting committee were to be submitted to the comments of the members of the commission. finally, the commission abandoned any allusion to possible degrees of wrongfulness definitively in the first part of the draft adopted in 2001. on the other hand, this distinction reappears in chapter iii of part ii of the draft legal concerning regime applicable to serious breaches of obligations arising from peremptory norms of general international law, i.e., the norms of the “jus cogens”. the latter replaces the old terminology “crime”, while essentially retaking the provisions that drew the consequences and allowing for future developments. a provision in the 2001 of the commission text opens a possibility of broad perspective in terms of the responsibility to protect, that of art. 48 of the draft of the commission which provides that “any state other than an injured state is entitled to invoke the responsibility of another state in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of states including that state, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole”. the art.48 relates to the invocation of responsibility by states other than the injured state acting to defend a collective interest. the state other than the injured state is not in its individual quality due to an injury that it suffered, but in its capacity as member of a group of states to which the obligation is due, or even member of the international community as a whole. art.48 defines the categories of obligations whose breach may authorize states other than the injured state to invoke the responsibility of a state. under the terms of paragraph (a), two conditions must be met before this responsibility could be engaged. first, the obligation whose breach gave rise to liability should be an obligation to a group to which part the state invoking responsibility. second, it must be an obligation established for the protection of a collective interest. such obligations are sometimes referred to as “obligations erga omnes parties”. paragraph (b) provides that states other than the injured state may invoke responsibility if the obligation in question was an obligation to the international community as a whole. this provision aims “obligations erga omnes”, notion that the icj in the “barcelona traction” case stated “an essential distinction” between obligations owed to particular states and those owed towards the international community as a whole (ardit memeti & bekim nuhija, 2013, pp. 32-33; bird, 2011, p. 884; villalpando, 2010, p. 401; sicilianos, 2002, p. 1131) (note 20). these obligations include the prohibition of genocide, violations of constituent obligations of crimes against humanity and war crimes. so, each state is entitled, as a member of the international community as a whole, to engage the responsibility of a state which would www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 7 published by scholink inc. commit the violation of such obligations on the basis of art. 48 (note 21). the most relevant hypothesis in terms of responsibility to protect is the art.48 of the draft articles on the responsibility of the state for internationally wrongful acts, under art.48.1. para.2 of art.48 shows the forms of reparation that may request states other than injured states: “(a) any state entitled to invoke responsibility under paragraph 1 may claim from the responsible state: the cessation of the internationally wrongful act and d. are assurances and guarantees of non-repetition, in art. 30; (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured state or of the beneficiaries of the obligation breached”. the legal principle that the cessation and non-repetition of the breach of an international obligation, lies in the continuing nature of the duty to carry out the obligation. continuing the commission of an internationally wrongful fact would be contrary to the nature and the very foundations of the rule of law. as the commission indicates in his draft article “the legal consequences of an internationally wrongful act does not affect the continued duty of the responsible state to perform the obligation breached”. regardless of whether the responsible state concerning the obligation to stop the unlawful conduct and to completely repair the harm caused, it isn‟t give because of his obligation to play out the commitment it has ruptured. keeping up an international obligation, despite a violation thereof, is basic of idea of wrongful act and obligation of suspension (note 22). the cessation of the internationally wrongful fact appears as the first condition for any remedy if this fact is of a continuing nature. in the event that the obligation violated is due to the international community as a whole, any state is empowered to require the responsible state to cease the wrongful fact and in a convenient situation to request restitution. in the case of “application of the convention on prevention” and repression of genocide, the court held that: “serbia and montenegro shall immediately take effective steps to ensure full compliance with its obligation to punish against acts of genocide under the convention on the prevention and punishment of the crime of genocide or any other act prohibited by the convention and to transfer individuals accused of genocide or any other act prohibited by the convention to the international criminal tribunal for the former yugoslavia and to fully co-operate with this tribunal” (note 23). in conclusion, the crime of genocide committed by a state or on the territory of another state, or against its own population, any state has the right to demand the cessation of this crime and its repair, but not for himself in favor of the state on whose territory the genocide has been committed, or victims, regardless of their nationality. the “responsibility to protect” failed the international community thus arises in the same context as in the law of the international responsibility of states for the reaction of the state other than the injured state. most of the obligations described as “erga omnes” at the present time imply negative duties, namely an obligation to refrain from certain behavior. in this context, the icj, in the judgment on the “barcelona traction case”, identified the category of obligations of states to the international community as a whole, surpassing reciprocal relations between states. the court in this case stated in substance that the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 8 published by scholink inc. obligation to respect a certain core of human rights from which “for example, in contemporary international law, the outlawing of acts of aggression and genocide, but also principles and rules concerning the fundamental rights of the human person, including protection against the practice of slavery and racial discrimination, corresponds to an obligation „erga omnes‟”. in the case “application of the convention on the prevention and punishment of the crime of genocide”, the court stated that “the rights and obligations enshrined by the convention are rights and obligations „erga omnes‟” (note 24). the category of obligations “erga omnes” covers only those obligations which protect the collective interests which are in the interest of the entirely international community, moreover which is of the same nature as the norms mandatory the concept of responsibility to protect was created to remind states and the international community of their responsibility to act effectively in the face of major human catastrophes. the authors wanted to learn from both inactions in rwanda and srebrenica, and from military intervention in kosovo without permission from the un security council. in this respect, the responsibility to protect has been conceived as the obligation of each state in exercising its sovereignty to protect its population from disasters that can be prevented catastrophe, mass murder, and systematic rape. if they are not willing or unable to do so, this responsibility must be borne by the entirely international community of the state (note 25). the high-level panel on threats, challenges and change has called the obligation of a joint obligation of all states to a collective responsibility to protect (note 26). as part of the responsibility to protect, when the state has failed or wanted to prevent the above-mentioned crimes or punish the perpetrators, victims have a right to seek redress against the state on the basis of the responsibility to protect? the right to compensation for victims of international crimes, based on the failure of the state to protect, is not yet established. there are certain practices which tend to recognize the possibility for victims to claim compensation against the state (evans, 2012, p. 17). however, there is no indication that this repair is based on a breach of the responsibility to protect. in this respect, the meeting of states in rome, a background was established by the statute of the international criminal court to support the court in its repair function, for the benefit of victims of crimes within the jurisdiction of the court. the amounts transferred to trust fund and allocated to the victims come from the contributions volunteers of states, individuals and organizations. thus, the participation in the compensation of victims wasn‟t an obligation for the states. in addition, the united nations keeps up a voluntary trust fund on contemporary forms of slavery set up by the general assembly in 1991 to, entomb alia, stretch out, through set up channels of assistance, humanitarian, philanthropic, legitimate and financial aid related to people whose human rights have been seriously violated because of contemporary types of slavery (megret, 2010, p. 133). therefore, it does not appear to establish an obligation to fix the responsibility of the states on the basis of the responsibility to protect. finally, the victims of crimes under international law have no rights against the states, based on the responsibility to protect; they are receiving but not licensed. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 9 published by scholink inc. 2.2 what about criminal responsibility? international criminal repression is based on the principle of the international responsibility of individuals, which has considerable extension in terms of persons and facts subject to its rules, an extension reinforced by the establishment of mechanisms international judicial bodies to judge and punish individuals responsible for certain illicit behaviors. this principle is also entrenched in international law in which individuals must keep lest their states be held susceptible for their “acts and omissions” (levy, 1945, p. 325). the international responsibility of individuals means a customary regime of criminal responsibility accommodating the discipline of individuals who have executed international crimes. the perpetrators of acts constituting an international offence are responsible for that chief and liable to punishment which is pronounced by an internal court or international criminal court. in other words, the international responsibility of the individual implies that international law determines illegal individual acts as international offences (bonafè, 2009, p. 13). for the commission, the term “international responsibility of the individual” refers to the responsibility of individual persons, including state agents, according to certain rules of international law applying to conduct such as commission of genocide, war crimes and crimes against humanity. as part of the “responsibility to protect”, the world summit outcome has issued several hypotheses in order to implement liability. it refers to crimes against humanity, crimes of genocide, war crimes and ethnic cleansing. these assumptions can be reconciled with the consequences of offences within the jurisdiction of the international criminal court. these crimes, marked by the imprint of criminal law, are defined in the instruments of international criminal law. the icc statute identifies them in art.5 on crimes within the jurisdiction of the court, art.7 on crimes against humanity, art.8 on war crimes, art.6 on crimes of genocide, the latter being also defined by art.2 of the 1948 convention on the prevention and punishment of the crime of genocide, or by art.4 of the icty statute and art.2 of the ictr. all these texts are well within the scope of international criminal law. it is therefore for the international community of states to allow and organize the prevention and suppression of international crimes committed by individuals. the era of the icc, the most successful of the “responsibility to protect” in criminal leaders remain, so far, the conviction of former liberian president charles taylor for war crimes and crimes against humanity: aid and complicity of murder, rape, sexual slavery, of recruitment of children soldiers committed in sierra leone (note 27); the arrest of the former president of côte d‟ivoire, laurent gbagbo, and his transfer to the hague to answer post-election abuses in 2010, or the surrender of bosco ntaganda to the icc, which was the subject for war crime and crimes against humanity committed in the province of ituri (deuitch, 2016, pp. 681-682). these convictions show a considerable progress of international law and reflect the will of the international community to repress serious violations of fundamental human rights and punishing those responsible for the atrocities mainly against civilians. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 10 published by scholink inc. other international jurisdictions also participate in criminal law enforcement of the crimes covered by the rome statute. all this judicial mechanism demonstrates clearly that the “responsibility to protect” has a substantial criminal warranty that can be used to deter and punish war crimes, crime against humanity, genocide and cleaning ethnic. therefore, it may be unreasonable to see how the path of impunity remains to be cleared for international criminal law. we hope to point out that impunity stands as the biggest challenge to face in the fight against serious and massive violations human rights, context even of the “responsibility to protect”. since the start of the twenty-first century, the human rights movement has been relatively synonymous with the battle against impunity. today, to help human rights intends to support criminal responsibility for those individuals who have breached human rights or international humanitarian law (engle, 2015, p. 1070). impunity can be depicted as exception from punishment or sanction. at the point, when the sovereign immunity standard is stratified to the act of sovereign immunity, individuals, who have administrated and taken part in principal human rights violations, are regularly passed the limit of the law to give a cure (ozdan, 2018, p. 41). in this respect, the icc contributes to the fight against impunity and the establishment of the rule of law by ensuring that the most serious crimes remain unpunished and in promoting respect for international law. the rome statute has in its preamble “determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. for instance, the court issued two arrest warrants international against the sudanese president omar al bashir. on july 14, 2008, moreno-ocampo asked for a capture warrant for president al bashir for genocide, crimes against humanity, and war crimes against individuals from the fur, masalit, and zaghawa groups from 2003 to 2008. president al bashir was prosecuted on march 4, 2009 as a circuitous perpetrator. the icc found that there was sufficient proof that president al bashir utilized the sudanese military and also sudan‟s government to complete criminal activity. he was arraigned for carrying out five counts of crimes against humanity and two tallies of war crimes; in any case, the icc did not locate that enough evidence existed to arraign him for genocide. in particular, this was the first occasion when that the icc issued a capture warrant for a sitting head of state. on march 5, 2009, the icc asked for that sudan capture and surrender president al bashir. the following day, according to article 89 para.1 of the rome statute, the icc asked for that part states to arrest and surrender president al bashir whenever gave the opportunity to do as such. sudan is not party to the rome statute, and has the support of several neighboring states. the sudanese government has also refused to cooperate with the icc, including by preventing his investigators put foot in the country. it is this problem of cooperation which has been implicitly reference the prosecutor of the icc in its statement of march 4, 2009 on the occasion of the issuance by the pre-trial chamber of the arrest warrant issued against president omar el bashir. the criminal is therefore still wanted by the court today. the case omar al bachir highlights the intrinsic “weakness that exist in the rome statute” (barnes, 2011, pp. 1601-1602). in this respect, we can point out the obstacle of immunity from jurisdiction, which is not to impede the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 11 published by scholink inc. exercise of the powers of the icc. in other words, diplomatic agent cannot be prosecuted in the criminal of the receiving state courts; thus, it exempts the person immune from criminal liability, as provided in art.98 of the icc statute. states may take the initiative forecasting and repression of these crimes. however , they can establish their own jurisdiction with respect to crimes prosecuted, by providing for their criminality and their repression in domestic law or, give rise to prosecutions of any person presumed guilty of serious offences on sound territory, whatever the nationality of this person or the place where the offences. these include the effective implementation of universal jurisdiction, which fills a legal vacuum that existed between the refusal or inability of states to judge for themselves their national and the lack of adequate international courts (garrod, 2018, pp. 131-132) (note 28). such efforts would undoubtedly criminal density to the “responsibility to protect”. the prohibition of committing a crime is intended in principle for individuals. the statute of the icc, ictr, icty and scsl effectively proved that natural persons are criminally responsible not only when they commit a war crime, but also when they attempt to commit such a crime and that they assist, contest or participate in the commission of war crime. they are also responsible when they plan or incite to commit a war crime (note 29). individual criminal responsibility for war crimes committed in conflict has been explicitly included in three treaties of ihl: protocol ii to the convention on conventional weapons, as amended, the statute of the icc and the protocol ii to the hague convention on the protection of cultural property (note 30). the statutes of the ictr and the special court for sierra leone (scsl) explicitly state that natural persons are criminally responsible for war crimes in non-international armed conflicts. individuals may also meet, under certain conditions, “a group of persons acting in concert” (note 31) or a “joint criminal enterprise” and be punished as the icty states in tadič case. the icty sought to convict in this case the individuals who had committed such acts. in this regard, he expressly stated that the violation of international law gave rise to individual responsibilities (note 32). however, individual authors may also be agents of the state, as also mentioned in para.2 of art.4 of the ilc draft. such agents include “any organ includes any person or entity which has that status in accordance with the internal law of the state”. thus, are involved all individuals, even the highest placed who occupy the leadership functions or other body exercising public authority (note 33). on the contrary, the individual criminal responsibility of the leaders does not preclude the international responsibility of the state of which they are responsible. indeed, the fact of the state committed the crime by its organs. not to incur the same international responsibility as that of the individual, the international crime of the agent does not mean that the state of the agent comes out unscathed from international responsibility. supervisors are criminally responsible for the war crimes committed under their command. they can be held directly responsible for having ordered their subordinates to commit illegal acts. they can also be responsible for the illegal conduct of one of their subordinates. it is a form of indirect liability based on breach of a duty to act (note 34). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 12 published by scholink inc. international criminal law takes into account criminal responsibility of members of an armed group, when they have committed international crimes, namely war crimes, crimes against humanity or genocide. it also takes into account, to a certain extent, collective accountable nature, although their responsibility is individual. in this respect, the statute of the icc, has qualified as crimes against humanity, “a course of conduct involving the multiple commission of acts (…) against any civilian population, pursuant to or in furtherance of a state or organizational policy” (note 35). the geneva conventions of 1949 and the convention of the hague for the protection of cultural property in the event of armed conflict and its protocol ii require that the contracting parties pursue any person who committed, or ordered to commit, of the violations under serious conditions (note 36). for the icc statute, the criminal responsibility of superiors is also committed as there is commission or attempted commission of crime (note 37). these texts require the states that behaviors prohibited, including in non-international armed conflict, are liable to criminal prosecution. in fact, obeying an order from his superior does not relieve the subordinate of his individual criminal responsibility. in this sense, art.6 para.4 of the statute of the ictr provides “the fact that an accused person acted pursuant to an order of a government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the international tribunal for rwanda determines that justice so requires”. subordinate position exposes the individual to legal action, without knowing it, most often, what it is obliged to perform illegal acts. as for the military, respect for orders of their superiors is the disciplinary framework to which they are subject in all cases. this rule of responsibility of superiors applies not exclusively to the quick superior of a subordinate, yet in addition to his different superiors in the military hierarchy of leadership if the essential criteria are met (ronen, 2010, p. 318). from there, the rwandans, under the authority of the mayor, have committed genocide or other acts against humanity, only because the decision maker of the commune of origin or establishment had decided so. also, it can happen that a person is criminally responsible for an act, although it is possible to judge and condemn it, because they cannot establish the jurisdiction of a court. this is the case, notably, when state officer alleged to be responsible has the protection of the immunities of jurisdiction, thus obstructing the establishment of the jurisdiction of a foreign court (note 38). as to the status of the icc, it devotes two articles to the question of immunity. art. 27, expressly excludes the benefit of immunity to anyone who would be involved in a procedure before the court, particularly in its paragraph 2 “immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person”. this article shows that the statute excludes absolutely the criminal immunities accorded to a category of people with a formal quality. on the other hand, the art.98 introduced a doubt when he joined the inability of the court to take binding measures that “would require requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person” (note 39). the method of reasoning of article www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 13 published by scholink inc. 98 is to shield the for requested state party from being looked with clashing obligations under international law with regards to the a third state from one viewpoint (concerning immunity, or the requirements for consent, respectively) and the icc then again (obligation to surrender following a demand), and consequently at last to shield that state party from bringing about international responsibility (benzing, 2004, p. 198). from the foregoing, noted that in international law, the fact that an agent had been convicted of violations does not relieve the state of its own international responsibility. the icj in the case concerning application of the convention on the prevention and punishment of the crime of genocide, also perfectly objected to the arguments of the serbia that the genocide convention does not commit the responsibility of the states at the rate of genocide (note 40) as such and clear of the interpretation of art.1 of the convention an obligation to the responsibility of states not to commit genocide. indeed, the icj notes that although the text of the convention does not impose on the states expressis verbis refrain from committing themselves a genocide, it is based on the qualification of “crime of the law of the people” given to the genocide by article 1 of the convention to indicate that, if states have accepted this qualification, they logically obliged not to commit the act as well. in addition, the court noted that it had already concluded that the art.1 of this instrument was the responsibility of all contracting parties an obligation to prevent and punish the crime of genocide. states must therefore prevent their agents to commit such an act. in fact, the court noted that it would be “ironic that states are thus required to prevent individuals on which they can exert some influence to commit the genocide, but it is not in the best of their ability, forbidden to commit themselves such acts through their bodies, or persons over which they control a so narrow that the behavior of these is due under international law”. to sum up, the court stated the obligation to prevent genocide implies necessarily the ban commit. furthermore, the icj has admitted that a state could be held responsible for a crime of genocide, although this responsibility has so far a criminal character. in this context, art.7 of the draft stipulates that “the conduct of an organ of the state (…) shall be considered an act of the state under international law if the organ, person acts in that capacity, even if it exceeds its authority or contravenes instructions”. ultimately, that the court opens the possibility of engaging the international responsibility of the serbia for genocide by saying: “the contracting parties are bound by the obligation under the convention not to commit, through their organs or persons or groups whose conduct is attributable to them, genocide and the other acts enumerated in article iii. thus if an organ of the state, or a person or group whose acts are legally attributable to the state, commits any of the acts proscribed by article iii of the convention, the international responsibility of that state is incurred”. the criminal responsibility regarding genocide turns into a kind of essential of state responsibility. however, it emerges the need to set up that persons or groups following up in the interest of the state have in fact committed the wrongdoing of massacre and genocide, along these lines making their state internationally responsible of its execution (gaeta, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 14 published by scholink inc. 2007, p. 644). in the long run the court carried out the genocide convention as an instrument of international criminal law, expecting states to restrain individuals from participating in genocide and obliging them to hand over to a competent international criminal tribunal (gaeta, 2007, p. 647) . one can conclude, except for ethnic cleansing which is not the subject of a definition in international law, the aforementioned crimes in the world summit outcome of 2005 allow for the deduction of indications on the norms of “jus cogens”. the consequences of the breach of the peremptory obligations are laid down in art.41 of the draft of the commission (note 41). in addition, remember that any “state other than an injured state”, as defined in art. 48 of the draft from the commission may invoke the responsibility of a third state in breach of such an obligation. this includes, from states which have a collective interest in respect of the obligation breached, to the extent where they are part of a group of states to which the obligation is owed. moreover, as has been observed, the “responsibility to protect” is limited to the duty of protection of the population against the four categories of crimes mentioned above. these crimes fall under the statute of the icc, which, under its art. 5, is competent for the most serious crimes affecting the international community as a whole. the importance given to these crimes by the statute also pleads in favor of the qualification of “jus cogens”. while certain crimes may be serious violations of peremptory norms (article 40 of the ilc draft), including the crime of genocide, it is not necessarily the same as violations of certain peremptory norms of general international law, for example torture. if the prohibition of torture is part of these norms (note 42), this does not mean that any violation of this standard is a serious violation within the meaning of art.40 of the ilc project. it is apparent that the “responsibility to protect” seeks the international responsibility of the state which violates the obligations arising from the peremptory norms of general international law “jus cogens”. “responsibility to protect” postulates also the duty to prosecute the perpetrators of “atrocity crimes” that affects the entire international community, and which, paradoxically, have long been unpunished. in this regard, the existence of the international criminal court must certainly be regarded as an essential adjuvant for the application of the principle of “responsibility to protect”. the icc‟s opportune intervention can happen in circumstances in which crimes are now occurring. the concentration in these circumstances will be on ceasing continuous crimes and guaranteeing liability for those effectively perpetrated (holvoet & mema, 2015, p. 25). the adoption of the principle of this responsibility to establish the sanction of the failure of human rights and international humanitarian law has a legal scope. however, this principle calls for the idea of accountability which also has a moral meaning. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 15 published by scholink inc. 3. identifying the appropriate authority 3.1 the state as a sovereign responsible the possibility that sovereign state involves a responsibility to protect populations from grave violations of human rights has been progressively accepted by universal society since it was first verbalized by francis deng and supported by kofi annan during the 1990s (glanville, 2010, p. 233). in the logic of the responsibility to protect, the essential role in the protection of people, whatever their origins, is the authority that is in charge of controlling this territory. the idea that states may be subject by international law to rules that oblige them to protect certain persons under their jurisdiction is far from modern. the primary responsibility of states to protect their populations has been the concept of “sovereign responsibility” in developing the responsibility to protect. according this concept, the states are capable and responsible to its own people and furthermore to the international society for the guarantee of protection its population. for example where the state can‟t or reluctant to satisfy its sovereign duty to secure, the obligation moves to universal society. in other words, states have the responsibilities to prove their obligation to “the common good by protecting the environment, promoting peace, and refraining from harming their population” (etzioni, 2016, p. 8). the iciss take over the concept of sovereignty as a responsibility. the drafters of the iciss report saw the concept as a way of reconciling the principle of sovereignty with the protection of human rights (note 43). as such, responsible sovereignty will become a central element in their conception of the responsibility to protect. in their report, the commissioners of the iciss attempt to reconcile the principle of sovereignty and the protection of human rights, often put in opposition in the years 1990, by necessary redefinition sovereignty. this redefinition shifts the sovereignty of a “ (...) from sovereignty as control to sovereignty as responsibility in both internal functions and external duties”. the iciss stresses that this redefinition of sovereignty is important in three respects. first, it implies that “[...] the state authorities are responsible for the functions of protecting the safety and lives of citizens and promotion of their welfare. secondly, it suggests that the national political authorities are responsible to the citizens internally and to the international community through the un. finally, it means that the agents of state are responsible for their actions; that is to say, they are accountable for their acts of commission and omission”. thus, the concept of so-called responsible sovereignty implies that state sovereignty includes not only rights, but also the responsibilities of which states must fulfill. the iciss takes on the same dynamic of sovereignty as responsibility, when it declares that the responsibility to protect lies first and foremost on the state whose population is directly affected. the international community has a residual responsibility to protect the affected population when the state in question is unable or unwilling to discharge its responsibility to protect, when it is the actual perpetrator of the crimes or atrocities or when the acts that take place in this state threaten people living outside. the state has failed to fulfill the responsibilities inherent in sovereignty and must be accountable to the international community. it can no longer use the principle of sovereignty and its www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 16 published by scholink inc. corollary, the principle of non-intervention, to act with impunity. while the definition of responsibility to protect has evolved significantly since the iciss report of 2001, the concept of “responsible sovereignty” has remained a central element. indeed, both the definition of the responsibility to protect adopted in the final document outcome of the world summit of 2005 and the definition adopted in the first thematic debate of the general assembly devoted to the responsibility to protect in 2009 takes up this concept of sovereignty (note 44). however, two clarifications should be made. first, the concept of responsible sovereignty is now limited to the responsibility of states to protect its populations against four mass crimes, namely genocide, war crimes, crimes against humanity and the practices of ethnic cleansing. secondly, the threshold for triggering the subsidiary responsibility of the international community is more difficult to achieve. whereas before 2005, the subsidiary responsibility of the international community was committed when states were “(...) powerless or unwilling to prevent” (note 45) one of the four mass crimes committed in its territory, it is only committed today if the states clearly do not provide the protection of their populations against them. therefore, responsible sovereignty implies that state sovereignty has no more than rights, but also the responsibility to protect its people from the aforementioned mass crimes. moreover, responsible sovereignty implies that in the event that a state is clearly unable to fulfill that responsibility, the international community has the subsidiary responsibility to protect the populations of the state in question. thus the protection of the population against mass crimes covered by the responsibility to protect can no longer be seen as strictly in the internal affairs of the states. the latter must now be accountable to the international community when they do not fulfill this inherent responsibility for sovereignty. states already had obligations of a legal and customary nature to protect their populations from genocide, war crimes, crimes against humanity and practices of ethnic cleansing before the conceptual development of the responsibility of protect. moreover, the prohibition of these crimes is considered to have the quality of jus cogens and the obligations to prevent and suppress these crimes apply erga omnes. the “responsibility to protect” recalls certain obligations of each state in terms of prevention, protection and suppression of crimes. these are elements of the theory of international responsibility. in this context there are provisions in the law of geneva. it establishes, without question, protection obligations for certain categories of persons (civilians, wounded, sick), which are primarily based on states. health law also referred to this type of responsibility. the constitution of who states that “governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures”. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 17 published by scholink inc. the same opinion that there are obligations of protection for the state responsible for the control of the territory has also been imposed, in the law of the hague, in relation to the now customary obligations of the occupying power. in this regard, the icj recalls in the “a case concerning armed activities in the territory of the congo” that: “as such it was under an obligation, according to article 43 of the hague regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, (…) comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party” (note 46). under international law, states must not only avoid human rights violations, but also protect individuals. it is therefore a double obligation; the first is negative in the sense that it is necessary to avoid committing an action. the second is positive in the sense that it allows for measures to be taken in the training of state representatives and the establishment of a balance of powers within and outside the institutions. it is worth mentioning that human-rights treaties utilize terms, for example, “secure” or “ensure” when characterizing states‟ obligations. for instance, the echr gives that the high contracting parties will anchor to everybody inside their jurisdiction the rights point by point in the echr (mares, 2009, p. 1197). this legal basis for this behavior stems also so much from art.1 of the geneva conventions of 1949. this obligation was the subject of a famous recognition in the “corfu channel” case: “the obligations incumbent upon the albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in albanian territorial waters and in warning the approaching british warships of the imminent danger to which the minefield exposed them. such obligations are based, not on the hague convention of 1907, no. vtii, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every state‟s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states. (...). in fact, nothing was attempted by the albanian authorities to prevent the disaster. these grave omissions involve the international responsibility of albania”. the convention on the prevention and punishment of the crime of genocide, such as that against torture and other inhuman or degrading treatment or punishment, provides two illustrations: states parties undertake to prevent, then to suppress, certain acts perpetrated against the persons who are under their responsibility, and thus to protect them. as regards the first, the icj has found that it “involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the united nations” (note 47). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 18 published by scholink inc. in the judgment of the icj in the case between bosnia and herzegovina and the republic of serbia, the court finds that serbia breach its obligation to prevent genocide because it did not take all the measures that were in its power to prevent the commission of genocide, not on its territory, but also outside its territory (gattini, 2007, p. 697) (note 48). in the same sense, the icj recalled, in the case of armed activities in the territory of the congo, that uganda, as the occupying power in ituri, is responsible for taking all measures depending on it to restore and ensure as far as possible, public order and security in the occupied territory, respecting, unless absolute impediment, the laws in force in the drc. today, the international obligations to protect human rights that weigh on each state are so widespread that they tend to be clearly imposed on any sovereign state. the general assembly has, in the final document outcome, affirmed the responsibility to protect that: “all human rights and fundamental freedoms are universal, indivisible, interrelated interdependent and mutually reinforcing, that all human rights must be treated in a fair and equal manner important, on the same footing and with the same emphasis. while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all states, regardless of their political, their economic and cultural systems have a duty to promote and protect all human rights and fundamental freedoms”. the responsibility to protect is based on elements of international humanitarian law, international criminal law and human rights law. this legal corpus pursue a same supreme goal is to bring this the rule of respect for the human condition. in the absence of the state concerned, others may provide protection that requires the “responsibility to protect”. 3.2 is the security council a right authority, if a state manifestly fails to protect its population? while a state does not want or cannot assume its responsibility for protection, it can then be assumed by others, including through armed intervention. this is still far from being a novelty, as it supports the practices of human intervention. in this regard, the doctrine of “responsibility to protect” emphasizes the essential role of international organizations, regional organizations and civil society, to protect populations from four specific crimes mentioned above. the three pillars of the responsibility to protect defined in the 2005 world summit outcome and the secretary-general formulated in the report presented in 2009 on the implementation of the responsibility to protect, affirmed the protective role subsidiary of other actors. the general assembly of the united nations could boast greater legitimacy in terms of the representation of the international community. the only possibility allowed by the united nations to enable the general assembly instead of the security council to deal with a situation where it, for lack of unanimity, could not exercise its primary responsibility in the maintenance of peace and security international, is that of the official procedure of the resolution “uniting for the maintenance of peace” (carswell, 2013, pp. 456-457; ramsden, 2016, p. 270) (note 49). according to the rules of procedure 63 of the general assembly, it must “convene in plenary session only and proceeds directly to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 19 published by scholink inc. consider the item proposed for consideration in the request for the holding of the session, without previous reference to the general committee or to any other committee” (note 50). on the other hand, the binding force of the resolutions of the general assembly is less than that of the security council resolutions. moreover, a technical obstacle made the general assembly a rather weak player, namely the slowness of decision-making within that body; however, the speed of the reaction is a key factor in crisis situations that the accelerated procedure of the aforementioned resolution tempers only partially. however, the recurring question still, who would have a prerogative to intervene when the state concerned was failing? are these states as such or through an entity that is the security council? it is for the security council to fulfill this obligation, on the basis of art.24 of the charter, which specifies that the members of the united nations confer on it the primary responsibility for maintenance and of international security and recognize that by carrying out the duties imposed on it by this responsibility the council acts on their behalf. based on this obligation depended to the security council, the key documents supporting the responsibility to protect recognize the security council as the right authority to take collective action to achieve the international community‟s responsibility (nasu, 2011, p. 390). in this case, for the implementation of the responsibility to protect, it would seem doubtful, in the state of the positive law, to consider a procedure other than those foreseen in the un charter on the qualification of the situation as constituting a threat to peace, a breach of peace or an act of aggression, and then recourse to the adoption of provisional measures, military or non-military measures sanctions or the empowerment of a regional peacekeeping and security organization to take appropriate measures. there is also a responsibility to protect, an international responsibility to protect populations at risk, and that is why the iciss has argued that this obligation extends to the responsibility to respond by appropriate means if catastrophe is happening or seems imminent. in extreme cases, this responsibility to react can go as far as military intervention in the territory of a state to ensure this humanitarian protection (note 51). this explains why the commission is absolutely persuaded and considers that there is no better body or better place than the security council to authorize military intervention for human protection purposes. it is not a question of finding substitutes for the security council as a source of authority, but of ensuring that it works better than it has done so far. this vow was reiterated by the un at the world summit of 2005: “ (...) in this context, we are prepared to take collective action, in a timely and decisive manner, through the security council, in accordance with the charter, including chapter vii (....)”. it will therefore be necessary to ensure that all proposals for military intervention are formally presented to the united nations security council. in this regard, the iciss has agreed:  security council authorization must in all cases be sought prior to any military intervention action being carried out. those calling for an intervention must formally request such authorization, or have the council raise the matter on its own initiative, or have the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 20 published by scholink inc. secretary-general raise it under article 99 of the un charter;  the security council should deal promptly with any request for authority to intervene where there are allegations of large scale loss of human life or ethnic cleansing; it should in this context seek adequate verification of facts or conditions on the ground that might support a military intervention (note 52). although, it might be questioned whether the security council could override its own power by violating the limitations contained in the charter of the united nations, in particular, article 2§7 on non-intervention in the internal affairs of states. the icj, in the lockerbie case, ruled in 1998 stated that was seized of the situation (note 53). it should also be noted that judge bedjaoui recalls one of the provisions of the charter providing that “in discharging [its] duties, the security council shall act in accordance with the purposes and principles of the united nations and by reference to another provision”, must adopt an approach which is “in conformity with the principles of justice and international law”. the question of the legality of the action of the security council is likely to remain theoretical, insofar as there is no provision for the review of judicial decisions of the security council, so that there is no way of decide a dispute as to the interpretation of the charter and the qualification made by the security council. so, it seems that the council will continue to have a very large margin to define the scope of what constitutes a threat to international peace and security. as part of the “responsibility to protect”, the security council may investigate ground through the commission of inquiry under chapter vii of the charter, as he did in darfur by resolution 1564 of 18 september 2004 (note 54). the report of the commission of inquiry was transmitted to the security council in january 2005 which referred this situation to the icc prosecutor. in june 2005, the prosecutor decided to open an investigation. the security council fully also played a role when he grabbed the icc of crimes in libya (note 55). however, after insisting on the fact that it is not to provide alternatives in criterion from the appropriate authority, since the states contemplating action must seek the authorization of the council, the commission also found necessary of not “rule out completely any possibility of recourse to other means to ensure accountability to protect when the security council expressly rejects a proposal for intervention where humanitarian or human rights issues are significantly at stake, or the council fails to deal with such a proposal within a reasonable time, it is difficult to argue that alternative means of discharging the responsibility to protect can be entirely discounted”. indeterminacy appears particularly large here, as sought by the commission, in which case the security council could fulfill its responsibility, the approval of military action by the general assembly of the united nations. it is an alternative solution to the right of veto blocking the united nation security council. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 21 published by scholink inc. another solution would be to entrust a regional or sub regional organization with the task of conducting collective action within well-defined limits. many humanitarian disasters have significant direct effects on neighboring countries, through cross-border propagation that can take the form, for example, of refugee flows or the use of the territory of the neighboring country as a basis by rebel groups. neighboring states therefore generally have a strong collective interest motivated in part only by humanitarian considerations, to respond quickly and effectively to this catastrophe. it has long been recognized that neighboring states acting within the framework of a regional or sub regional organization are often (but not always) better placed to act than the united nations. it is worth mentioning that chapter viii deals with regional agreements. article 52.1 recalls that “nothing in the present charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the purposes and principles of the united nations”. thus, only two cases under article 53(2) ensure that regional agreements can act in a coercive manner to resolve matters relating to the maintenance of international peace and security: when the security council uses the regional agreements or bodies for the enforcement of coercive measures taken under its authority or where it authorizes regional agreements or bodies to undertake coercive measures on their own initiative. 4. impediments in practice 4.1 the veto impact the right of veto exacerbates the political character of the latter and jeopardizes its legitimacy and rapid action. there is always a strong risk that, by using a veto, the five permanent hostages should take humanitarian considerations for their own interests. the 2005 document makes a complete silence in the face of these challenges for the simple reason of reaching a consensus. the iciss has considered some solutions. first, it proposes the adoption of a code of conduct whereby permanent members refrain from resorting to a veto in decisions concerning crisis humanitarian when their vital interests are not at stake. as the general assembly‟s president underlined in his r2p concept, “it is the veto and the lack of unsc reform (...) are the real obstacles to effective action” (banteka, 2016, p. 399). the iciss envisages other authorities which may assume this task in the alternative in case of paralysis or inaction by the council. in that regard, it mentioned the united nations general assembly in the first place. the role of the general assembly in this area can be considered in the ordinary and extraordinary context. first, the general assembly may by adopting a resolution exert pressure on the state and make certain initiatives for the resolution of the crisis. for example, this function in the case of syria where it was first the general assembly that dealt with this situation and so far it seems that it has played a more prominent role in relation to the security council (melling & dennett, 2017, p. 302) (note 56). but what was more at the center of the iciss‟s attention is the possibility of the action of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 22 published by scholink inc. the general assembly on the basis of the “uniting for peace” procedure. yet, the use of such a procedure is facing certain obstacles. in addition to the issue of lawful of this procedure in general in the light of the charter, its application to authorize the military intervention on the basis of r2p seems problematic because in accordance with paragraph 1 of resolution 377 v, the recommendation of the assembly for the use of force is concerning the breach of the peace or act of aggression. as a procedure, the uniting for peace procedure appears to have become part and parcel of the institutional law of the united nations. however, it is far that the assembly has never recommended the use of force under this resolution. one can only speculate on the reasons why the assembly has shown so much self-restraint in this respect. one explanation could be that the assembly has been well aware of the fundamental character of the norm of the prohibition to use force in the charter, including the danger of eroding this norm at a time when international tension is still prevalent. an-other reason could well be a policy not to antagonize the majority of the security council, if not all of its permanent members. hence, this particular aspect of the uniting for peace procedure relating to the use of force cannot be deemed a legally valid exercise of the powers of the assembly and by now it has been well interred in the graveyard of the cold war. in general terms, through the uniting for peace procedure and other relevant practice the functions and powers of the general assembly have been interpreted in such a manner that the assembly can also assume responsibility for matters relating to the maintenance of peace and security side by side with the security council (schrijver, 2006, p. 15). as aforementioned, another possibility provided by the iciss is to use regional organizations. despite the ban proclaimed in article 53 of the charter regarding the use of force by regional organizations, remembering the intervention of in liberia (note 57) (cardoso & da rosa, 2014, p. 22) and sierra leone (jenkins, 2007, pp. 346-348) (note 58) without the prior authorization of the security council, the iciss expressed in favor of the intervention of regional organizations who accompanied by approval in retrospect of the council. this proposal was welcomed by the group of personalities. however, to keep a certain reserve about this possibility. indeed, the prohibition of the use of force is an imperative rule of international law and some practices may not provide a satisfactory legal basis to derogate. besides, such a waiver is likely to open the way to abuse of right. eventually, we see that none of these solutions can resolve in a satisfactory manner the challenges in this area. iciss itself confessed his inability by asking the question of what “lies the most harm: in the damage to international order if the security council is bypassed or in the damage to that order if human beings are slaughtered while the security council stands by”. this position has been strongly criticized because it opens the window for unilateral intervention. there is enough sufficient proposals either about the composition of the security council and the veto right, is about the creation of other organs. the doctrine must now focus on the issue of realization of these ideas. in other words, it must find ways by which we can compel the great powers to change their positions. it is important to start with less radical proposals having more chance of success. the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 23 published by scholink inc. secretary-general and personalities will obviously have to play the central role in deployment all their efforts to this end. in this 21st century, we have more and more cases of the application of r2p, proof is the arab spring. the un failure will no longer be tolerated and so there is a real threat to the authority of the united nations. that is why it is important to act now to reform and not tomorrow where there is perhaps more likely to do so. 4.2 the unavailability of military force for the united nations the united nations as the axial body in the application of r2p may decide to intervene in a country, but it has no means for the implementation of its decision. everything is possible for her is to allow the member states to take measures for its implementation. it is undoubtedly a main hindrance to the effective implementation of r2p. indeed, when it is the states who assume the task of intervention, they justify it in the eyes of public opinion in their countries on the basis of the face-off of their national interests. not only the decision of intervention but also its operational implementation on the ground is affected by this involvement of the interests and the opinion of the population. it would be likely that the operation be conducted with uncertainty and somehow loose and ineffective because of the lack of interest of stakeholders. in addition, the current status of united nations military tasks, particularly in the field of peace enforcement, isn‟t feasible. a substantial divergence exists between universal desires and existing u.n. abilities which, if not tended to, could undermine the adequacy of the united nations and debilitate international standards (telhami, 1995, p. 673). the reason for a standing intervention force is cure enter shortcomings in the international community‟s conventional way to deal with crisis interventions. these incorporate, among others, delays in deployment; contingents‟ inadequate kit, armament, transportation and logistics capabilities; conflicts of doctrine and ethos; uneven (and, too often, low) levels of professionalism; and cumbersome command-and-control arrangements (willis, 2013). article 43 was intended to give the u.n. security council the capacity to react rapidly through the deployment of u.n. military. having foreseen the trouble of making a standing u.n. armed force, the u.n‟s. originators, including the united states, picked rather to depend on an provision that required a system of standing understandings between the security council and member states. this provision was intended to ensure the security council prompt access to military forces, offices, and other help. in light of cold war animosity inside the security council, in any case, these article 43 agreements were never activated (houck, 1993, pp. 2-3). as well, the sheer diversity of missions handled by the un make it impossible that a standing force could be prepared for every one of them. the proposition is of constrained importance to certain key difficulties encountered by the un. somalia and bosnia have uncertainty on the abilities of even very substantial expert forces to complete troublesome missions: in these cases it is increasingly the reality of participation, the particular mandates of the forces, and the decision making methodology under which they work, which are the fundamental issues for discussion. further, the volunteer force proposition has kept running up against the natural issue that governments appear to be impervious to supplying the un with an autonomous military capacity, and to financing it www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 24 published by scholink inc. (roberts, 1994, p. 160). in order to apply the resolution of the council, stakeholders states constitute a coalition or give nato the conduct of the operation. in recent years, nato is increasingly involved in military operations anywhere in the world. its unique military power and coordination easier and more effective operation within this framework compared to a temporary coalition explain the reasons for this trend. the panel declared itself in favor of the use of this organization for the implementation of security council resolutions. however, we direct certain criticism in respect of such a hypothesis, at least with regard to the application of r2p. indeed, it is well known that the r2p, as the theory of the right of interference, is accused of being an instrument in the service of the interests of major powers and the choice of nato for its implementation only exacerbates mistrust. in other words, un commitment with regional organizations is a genuine gathering of states with mutual interests meeting up as alliances of the ready to address specific conflict (kille & hendrickson, 2011, p. 30). there was also an avoiding of the un and a transformation to regional organizations and ad hoc alliances of the willing states (job, 2004, p. 232). the difficulties for the implementation of the decisions of the council are not limited to the intervention itself. with respect to peacekeeping missions, forces are formed more by contingents from developing countries which often lack the funding and the necessary logistics for the fulfillment of their mandates. their military power is very limited compared to the armies of powerful states. it seems that the only real solution that can address all of these challenges is implementing r2p by international force acting through the united nations. 5. evaluated past/present cases 5.1 the dormancy of the application of the responsibility to protect the case of darfur and the crisis of syria are two exemplary cases of the inertia of application of the “responsibility to protect”, and the different answers given by the international community in the face of these crises, will allow us to draw interesting conclusions about the difficulties in applying it. 5.1.1 the case of darfur: first failed test at first glance, such a threshold seems to have reached in darfur. indeed, since the summer of 2003 while the government in khartoum supported by arab tribal militias (janjaweed) has embarked on a brutal policy of repression and systematic destruction aimed deliberately at civilian populations, the conflict in the western region of sudan will have made between 200000 and 400000. at this terrible record, the 2, 5 million of displaced persons piled up in various camps in chad should be added (trahan, 2007, p. 990). at the international level, the united states characterized the action of the janjaweed as genocide and demanded international trade sanctions against sudan, and they even spoke of military intervention. the united nations is talking about a crime against humanity. the situation in darfur clearly represents a breach of the state‟s “responsibility to protect”. however, the international community is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 25 published by scholink inc. beginning to take a genuine interest in the issue in 2005, with the publication of the “report of the international mission of inquiry” (totten, 2009, pp. 354-355) (note 59) and the security council resolution establishing the united nations mission in the sudan (unimis) (qerim, 2013, p. 97) (note 60). earlier in may 2004 the african union (au) action was implemented, where, under a first agreement signed between the belligerents, it was to be the privileged partner in the restoration of peace. although it has received nato and un support, it cannot fill the lack of resources and funds, insufficient human capacity: the au has failed to protect itself. the transfer of the mandate to the united nations was considered favorably when the security council adopted resolution 1706 (2006) resolution 1706, which was the first to link the “responsibility to protect” to a particular conflict and by which decides that “unmis” mandate shall be expanded as specified in paragraphs 8, 9 and 12 below, that it shall deploy to darfur, and therefore invites the consent of the government of national unity for this deployment, and urges member states to provide the capability for an expeditious deployment (note 61). this resolution legitimated action in darfur which exceed the sovereignty of sudan (note 62). as a mission of the united nations is already present in the country, and in the implementation of the peace agreement signed with the rebellion in the south in 2005. meanwhile, unfortunately security council could establish a sufficiently strong peacekeeping presence in sudan, this due to the refusal of the government of the sudan to a united nations-led operation. so far, sudan has accepted the principle of a hybrid operation of the joint african union and united nations in darfur (unamid) under the resolution 1769 peacekeeping, passed unanimously in the security council on july 31, 2007. acting under chapter vii of the charter of the united nations, the security council also decided “unamid is authorized to take the necessary action, in the areas of deployment of its forces and as it deems within its capabilities in order to (...) prevent the disruption of its implementation and armed attacks, and protect civilians, without prejudice to the responsibility of the government of sudan” (note 63). however, unamid is still hampered in his movements, despite the commitments of the government of the sudan. it is also plagued by weakness, which delayed joining, because of obstructions that the sudanese government against its deployment. furthermore, the resolution, in its preamble, recalls only the resolution 1674 (2006) on the protection of civilians in times of armed conflict which notably reaffirms the provisions of paragraphs 138 and 139 of the outcome document of the 2005 world summit without more details. however, the negotiations on the deployment of unamid, the reference the “responsibility to protect” was considered inappropriate, because unnecessary antagonist. in other words, we meticulously avoided any direct association between the “responsibility to protect” and the deployment of unamid. notwithstanding, unamid has likewise confronted extensive defies. fundamentally, the warring groups have fragmented to such a degree, to the point that as at october 2008, there were upwards of twenty seven rebel groups. these were fragment bunches from jem and the sla/m who all had their individual objectives and requests. not exclusively was the civilian population being assaulted, yet even the peacekeepers were under steady danger of assault from the groups. what made the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 26 published by scholink inc. circumstance more dangerous is that notwithstanding expanded assaults by guerillas, the mission is truly under-resourced as far as equipment, personnel and other logistics. these deficiencies made the mission susceptible to threats and assaults (birikorang, 2009, p. 10) (note 64). with the exception of russia and china, the great voices of the security council have supported the icc prosecutor. the objective of combating impunity in darfur remained not only valid, but fully necessary, given the continuing violence at the time. violations of human rights and international humanitarian law continue, he stressed, believing that in this context, justice must be done and the responsibilities established in order to prevent and deter such acts. impunity for past crimes and what it means for the possible commission of future crimes are unacceptable, regretting that the arrest warrants issued by the icc remain unexecuted. the case of darfur proves then that more than ten years after the rwandan genocide, the security council and the secretary-general, who asked the “responsibility to protect” at the center of their speeches have failed by lack of will to put at the heart of their action. 5.1.2 the case of syria: drastic failed test although, the first demonstrations started in february 2011, it took them some time to become significant. for some reasons such as syria‟s ethnic and confessional socio-political structure, the lack of authority exercised by bashar al-assad on the regime, the long-term political and commercial relations of syria with countries such as russia, china and iran, unlike what happened in the other countries of the region, spring arrived late in syria. the first demonstrations were caused by suicide by the fire on 26 january 2011 of a kurdish youth in al-hasakah, where the population is mostly kurdish, just as the same act committed by mohammed blessing in tunisia triggered the arab awakening in the middle east, and they intensified in the city of ar-raqqah following the murder of two soldiers of kurdish origin. the situation in syria remained critical in 2012. more human rights violations resulting from the use of force recorded in the country have been confirmed by several international organizations. it has been noted that cases of armed violence in syria have been transformed into a civil war under international law, and that the syrian army and security forces have committed crimes against humanity. the united nations assessments and reports discussed below how to help in understanding what is happening. in the face of the fierceness of the crackdown by the syrian government against its people, germany, france, portugal and the united kingdom presented a draft resolution to the un security council strongly condemning the repression and human rights violations committed by the syrian authorities, calling for the end of the violence, and also threatening syria with possible sanctions. the preamble to the project referred to the concept of “responsibility to protect”, recalling “the syrian government‟s primary responsibility to protect its population” (note 65). at the end, the resolution was not approved by the security council due to the negative vote of china and russia. these two permanent members saw that the resolution would not help to regain peace in syria but would, on contrary, exacerbate the tensions. to clarify its use of the veto right, russia stated that “it is reflected „not so much a question of acceptability of wording as a conflict of political approaches‟ regarding respect for the national www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 27 published by scholink inc. sovereignty and territorial integrity of syria as well as the principle of non-intervention, including military, in its affairs; the principle of the unity of the syrian people; refraining from confrontation; and inviting all to an even-handed and comprehensive dialogue aimed at achieving civil peace and national agreement by reforming the socioeconomic and political life of the country” (morris, 2013, p. 1275). it is worth mentioning the adoption of united nations security council resolutions 2042 (note 67) and 2043 (note 68), respectively, endorsing the six-point peace plan of the special envoy kofi annan and the establishment of the supervisory mission of united nations in syria (unsmis). the plan aims at immediately ending any violence and violation of human rights, guaranteeing access to humanitarian agencies and facilitating a democratic and pluralistic political transposition, based on the equality of citizens, whatever their political or ethnic affiliations or their religions, particularly in favor of the opening of a general political dialogue between the syrian government and all the syrian opposition forces. the mandate of unsmis is to monitor and support the implementation of this plan. resolution 2042 states: “noting that the syrian government‟s commitment on 25 march 2012 to implement the six-point proposal of the joint special envoy of the united nations and the league of arab states and to implement urgently and visibly its commitments, as it agreed to do in its communication to the envoy of 1 april 2012” (note 66). resolution 2043, while recalling the points referred to in resolution 2042, establishes for an initial period of 90 days a united nations monitoring mission in syria (misnus) under the command of a chief military observer. in addition, the un general assembly adopted a resolution on 16 february 2012 on “the situation in the syrian arab republic”, submitted by the arab group and co-sponsored by 72 states, examining the full support of the international community in arab league crisis exit plan. the resolution also requires the syrian government to stop all violence and protect its people (mohamed, 2012, p. 225) (note 66). the arab league played a crucial role in the pressure exerted on syria. on 25 april it published a statement condemning the use of force against demonstrators in favor of democracy in several arab countries, stating that they “deserve support, not bullets”, but the declaration did not extend to naming syria and concrete measures to put an end to abuse. but in light of the emergency, the league of arab states suspended syria‟s participation and later forced authorizes on syria, asking for a resolution from the security council (atilgan, 2014, p. 225; norooz, 2015, p. 37). all of these efforts political and diplomatic are unfortunately not crowned with success. in other words, the international community has is still not met its responsibility to protect to the syrian people who subjected to unspeakable atrocities. hence, the situation needs for military intervention in syria. in this regard, several western countries, the united states in the lead, evoked, a military attack on the syrian regime, which it was also accused of using chemical weapons against civilians on 21 august 2013 near damascus. some felt that an intervention to be placed under nato‟s responsibility and perhaps carried out by the latter could take place without the official any un authorization, unlike what happened in kosovo (paust, 2013, p. 438) (note 67). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 28 published by scholink inc. recently, the syrian conflict has undergone an evolution complicating its problematics. it takes on a national, regional and then international army dimension. the year 2013 was really a turning point since it sees the arrival of new actors important in the conflict, as the arrival of the isl (daesh). the war in syria took a turning point since 2015. the syrian armed forces began “broad offensive” land with the support of the russian aircraft bombings. at last, the most recent intervention occurred in april 2017, when the us for the first time since the start of the civil war propelled an assault against the syrian government, as striking back for the chemical weapons assault that murdered many populations. the us and russian military forces are as yet present in syria right now, clearly both battling isil. nonetheless, having a similar foe, collaboration between the two states is rare (perišić, 2017, p. 800). ultimately, it should be noted that for a number of actors on the international scene, it is certain the syrian crisis was an opportunity to recall the illegality of any military intervention which would not previously have allowed by the security council. but it also illustrates the limits of the responsibility to protect when the established authorities persist in the use of force against their people, causing thousands of victims, which is clearly contrary e to the principles of the charter of the united nations. from there on, we can only regret that the system of alliances in the security council continues to empty the “responsibility to protect” it‟s content. in fact, with regard to the concept of responsibility to protect itself, if its theoretical construction appears to be solid and logical, it is nevertheless lacking in terms relating to its practical application. as seen in ui in syria, the implementation of this responsibility to protect is never simple, especially since these are very predominantly cases in which the state itself goes against some of its own citizens, and therefore does not consent to the interference of the international community. one might therefore wonder whether the very concept of responsibility to protect was not dead from the outset. finally, from a more formal point of view, the very structure of the united nations and its security council obviously has its role to play, which in particular raises the question of the veto rights of the members of the security council. it is his exercise (in particular the chinese and russian vetoes) which has blocked the majority of the resolutions on syria since 2012. the problem is, however, that at the moment it is not possible to remove this veto right, this is where the biggest knot of the situation lies. 5.1.3 the patchy intervention in libya the debate between the member states around the libyan situation did not concern whether or not it was necessary to act to protect civilians but to protect them. that priority has been the protection of civilians against mass crimes reflects a historic breakthrough in the implementation of the principles of r2p. the current debate on tactics and the strategies needed for intervention is important, but legitimate concerns about implementation should not obscure the role of r2p in the prevention and cessation of atrocities of mass. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 29 published by scholink inc. the security council has added libya to the problems to be addressed. it recalls, in its resolution 1970 in 2011(note 68), that the libyan authorities have a responsibility to protect the libyan people, which is reaffirmed in resolution 1973 (note 69). indeed, demonstrations in several cities in libya, inspired by the tunisian and egyptian revolts, violently suppressed by the regime of colonel gaddafi, lead to an armed rebellion around benghazi. the suppression of opponents provokes the emotion of the international community and provokes the denunciation of attacks against the civilian population by the african union, the united states, the european countries and the arab league, which calls for an intervention to protect the threatened civilian population. the resolution 1970 was adopted on 26 february 2011 by a unanimous vote of the fifteen members of the security council. the latter, in its resolution, recalls the basic principle of the responsibility to protect the population which is incumbent upon each state and the international community to intervene when states fail in their duty (note 70). deploring what it called the flagrant, systematic and widespread violation of the libyan civilian population, the security council demanded that violence be immediately terminated, recalling the responsibility to protect libyan authorities and the individual responsibility of perpetrators or leaders of perpetrators of attacks against civilians, and calls for measures to be taken to satisfy the legitimate demands of the population. pursuant to resolution 1970, the prosecutor of the icc opened an investigation into the libyan situation on 3 march 2011. the court will focus its investigations on allegations of crime against humanity committed in libya. on the other hand, the security council seized from the icc only acts committed since 15 february 2011. it was regrettable that the court was not interested in all the crimes against the libyan regime since muammar gaddafi came to power in 1969. it would be forgotten that the jurisdiction of the icc is restricted ratione temporis to acts committed since 1 july 2002. the icc investigation should focus on the most senior officials of the abuses in libya, such as muammar gaddafi, his sons, as well as the minister of foreign affairs, the security of the regime and the military intelligence chief, the head of the mr. gaddafi‟s personal security. the quality of active head of state does not protect mr. gaddafi of prosecution (note 71). however, the security council decided, in its resolution, that the icc would not exercise jurisdiction over nationals, officials or staff in one state activity other than the libyan arab jamahiriya that is not a party to the rome statute of the icc (note 72). the purpose of this restriction is to ensure that prosecutions would target members of the u.s. armed forces in the event of intervention military of the united states in libya. without this restriction, the united states would have certainly used their veto in the referral to the icc. in sum, all measures under chapter vii of the charter of the united nations not slowed gaddafi, term resulting in the adoption of the resolution 1973 (2011) authorizing the use of force to protect the civilian population in libya (brockmeier, stuenkel, & tourinho, 2016, p. 116; naime, 2012, pp. 107-108) (note 73). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 30 published by scholink inc. the resolution follows the same logic as resolution 1970 (2011), recalling the responsibility that the libyan authorities to protect its own population and reaffirming primarily to the parties to any armed conflict to take all necessary measures to ensure the protection of civilians (note 74). in enforcement measures in chapter vii of the charter, which include the use of force, the security council requests the immediate establishment of a cease-fire and the complete stop of violence and of all attacks against civilians and requires libyan authorities respect their obligations under international law, including ihl, the ilhr and the rights of refugees (naime, 2012, p. 108). confirming the principles set out in the resolution 1970 (2011), 1973 (2011) resolution paves the way for military intervention in libya through the establishment of no fly zone in over the libya for the purpose of protect the population from attacks carried out by the regime. there is agreement that the establishment of such a zone, which is equivalent to a military action, depends on several factors: a mandate of the council of security, a request the arab league and actors in the region, and the continuation of the bombing of mo‟amer gaddafi‟s regime against its own people (williams, 2011, p. 231, p. 248). a few days later, following the resolution, the strikes of the international operation which is conducted under the name “dawn of the odyssey” intervene on 19 march 2011 with the aim of enforcing an air exclusion, since march 31 zone, it is led by nato and baptized under the name “unified protector” (corten & koutroulis, 2013, pp. 59-60) (note 75). it is a cause, according to one of the criteria for military intervention in the title of the “responsibility to protect”. one of the attacks directed against gaddafi was justified by most member countries of nato by the idea that “civilians will not be safe once gaddafi step down. developed argument is based on a broad interpretation of the expression „all necessary measures‟ contained in resolution 1973 (2011)” (gertler, 2011, p. 1, p. 16). such an expression is fuzzy enough to leave room for different interpretations of the use of military force. this actually allows states and their military leaders to act out of control. on october 31, 2011, as part of the enforcement of chapter vii, the expression “all necessary measures”, actually invites the self-appointed the united states, britain and france members of a “coalition of the willing” to act unilaterally (nimmo, 2016, p. 82). this is something that not only subverts but perverted logic of collective security of the united nations in the service of an imperialist policy hidden behind compassionate as those proclaimed by using the slogan “responsibility to protect”. the prohibition stipulated in art. 4.2 of the charter, will have lost its meaning, through a resolution in relation to chapter vii, any member can actually use force to pursue an abstract goal unilaterally and without any control. the room interpretation of the necessary measures “is not the equivalent of a blank cheque; it is limited”. as the european court of human rights asserted in another context, the adjective “necessary” [...] is not synonymous with “indispensable” [...] neither has it the flexibility of such expressions as “admissible”, “ordinary” [...], “useful” [...], “reasonable” [...] or “desirable” (corten & koutroulis, 2013, p. 70). the scope given by the council must be assessed on a case-by-case www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 31 published by scholink inc. basis. then, it should be noted that the way was implemented the resolution 1973 (2011) gave rise to a particularly high number of diplomatic protests. in this context, some states expressed reservations on certain provisions of the resolution of the united nations; china issued of “serious reservations” on the subject of the resolution explaining: “is always against the use of force”, and had “serious difficulty with parts of the resolution”, were a clear indication that it was opposed to non-consensual military intervention in libya. consistent with its traditional rhetorical emphasis on the non-use of force, china‟s preference was for the resolution of “the current crisis in libya through peaceful means”. second, china stressed that it “attaches great importance to the relevant position by the 22-member arab league y [and] to the position of african countries and the african union” (gowers, 2012, p. 12). china held insufficient explanations provided by sponsors of the resolution, concerning the rules of the use of force and the means to be implemented to establish no-fly zone strength and the means to be implemented to establish a no-fly zone. for the federation of russia, its ambassador vitaly churkin indicated that: “many questions having remained unanswered, including how it would be enforced, by whom, and what the limits of engagement would be. his country had not prevented the adoption of the resolution, but he was convinced that an immediate ceasefire was the best way to stop the loss of life. his country, in fact, had pressed earlier for a resolution calling for such a ceasefire, which could have saved many additional lives. cautioning against unpredicted consequences, he stressed that there was a need to avoid further destabilization in the region” (note 76). similarly, the germany declined to vote in favor of the resolution because it does not wish to engage in a military confrontation, believing that it would be a risk and a considerable danger drawing in the wider region. it should also add that nato military operations have targeted senior libyan officials and socio-economic infrastructure. it seems that the notion of protection of civilians has been extended beyond its original design such as declared in the resolution, to achieve military and political objectives, which had only an indirect link with the threats weighing also on the civilian population. in this vein, the question that arises: the principle of “responsibility to protect”. does it not encourage the policy of regime change? it appeared, in fact, that part of the military operations was intended to support the forces joined to the national transitional council (cnt-representative body of the libyan opposition) in their efforts to route the disloyal elements to the regime. once the threat of massacre in benghazi was discarded but in the face of the continued actions of gaddafi‟s troops against other cities, nato operations continued, the dividing line between the prevention of massacres and an aerial campaign of systematic dismantling of the military apparatus, the ultimate goal of which would be a change of regime is blurring more and more. the objective of the coalition was the collapse of the regime, finally considering this objective as one of the necessary means to be used to protect civilians (nesi, 2011, pp. 46-47) (note 77). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 32 published by scholink inc. in sum, the primary key factor that impacted international action in libya was the clearness and instantaneous of the danger to the population. the danger of mass atrocity violations was obviously distinguished by senior un authorities amid february and march 2011, and solidified as gaddafi forces hedged the town of benghazi. the second and most essential factor that gave the driving force to military activity in libya was the regional consensus on the requirement for outer intervention. gaddafi‟s disagreeability in the arab world implied that the arab league, the gulf cooperation council, and the organization of the islamic conference all censured the savagery and the violence in libya and excluded libya from the respective organizations. a third critical trigger was the deserting of individuals from the gaddafi government. a few conspicuous figures, including libya‟s representative to the un, denounced the routine‟s brutality against protesters and approached the unsc to convey a “conclusive, quick and gallant resolution” (gowers, 2013, pp. 607-608). in the light of all these elements, we noted that implementation of the responsibility to protect, in the libyan case, pursue two agendas: the first is the protection of civilians, which is the responsibility to protect for which a un mandate has was voted. the last is the fall of the regime, which remains unmentionable in the context of the “responsibility to protect”, because it challenges the state sovereignty. however, viewed in this light, war against the libya does not respect the framework established by resolution 1973 (2011). as well, there were profound divisions among western and non-western states over the suitability of military intervention. those differences ejected breathtakingly as the scope of nato‟s military battle unfurled. criticism from brics states such as russia and china focused on three principle topics. the first was the allegation that western powers had surpassed the extent of the authorization in resolution 1973 by furnishing rebels and assaulting an expansive scope of focuses past those fundamental for the security of civilians. closely related to the primary line of criticisms was the more extensive case that r2p and population protection had been utilized by the west as an appearance for the vital objective of expelling the gaddafi regime. while this worry over regime change was clarified most unequivocally by russia, it was additionally a criticism of other brics‟ of nato intervention through 2011. the third criticisms of nato‟s battle in libya were the power given to the utilization of military force and the potential for coercive reactions to accomplish more mischief than anything. russia, specifically, explicitly drew a relation between the west‟s military intervention and the outset of “undeniable civil war, the humanitarian, social, economic, military and humanitarian outcomes of which override libyan borders. the brics states additionally demonstrated an inclination for political, instead of military, settlements for the libyan dispute” (gowers, 2013, p. 609). the intervention of nato‟s in libya harmed relations among the western and the non-western unsc members. the concept of “responsibility to protect” was utilized as a smokescreen for changing regime has without a doubt undermined the idea‟s truthfulness (gowers, 2013, p. 609). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 33 published by scholink inc. 5.2 the accomplished interventions 5.2.1 intervention in kenya the kenyan case clearly illustrates the implementation of the “responsibility to protect” in the context of the election crisis following the presidential election of 27 december 2007. indeed, the announcement of the defeat of raila odingo against the outgoing president mwai kibaki had triggered a violent dispute between the supporters of the two men. raila odingo accuses outgoing president mwai kibaki of massive fraud. riots erupt in the western part of the country and in kibera. the violence has mainly affected the rift valley; the crisis in 2008 has taken on a national dimension, affecting many cities. this violence left around 1000 people dead and 600000displaced persons (langer, 2011, p. 1) (note 78). many international pressures and several mediations were needed to stop the violence in march 2008. the african union calls for dialogue between the representatives of each of the parties. it initiated in early january 2008-through john kufuor, president of the republic of ghanaa mediation process between the two parties which culminated on february 28 2008 by an “agreement on the principles of partnership of the government of coalition”. this event is also supported by the european union and the united states and the united nations, willing to apply sanctions on factions refusing a peaceful solution to the crisis. while some considered both the criminal justice and international mediation looking back as the fruitful use of the political, diplomatic and criminal justice apparatuses of r2p, these endeavors were at the time infrequently legitimized by r2p. on 2 january 2008, ban ki-moon reminded kenyan authorities of their legitimate and moral obligation to secure the lives of blameless individuals. comparative articulations summoning the duty of a state to protect its very own natives were made by francis deng, at that point un special adviser on the prevention of genocide, and by arbor, at that point high commissioner for human rights (junk, 2016, p. 57). the minister of foreign and european affairs has referred the application of the “responsibility to protect” the crisis kenyan by noting the auxiliary y responsibility of the international community: “in the name of the responsibility to protect, it is urgent to help the populations of the kenya. the security council must take up this question and act” (junk, 2016, p. 57). the resolution of the crisis to the kenya is being make therefore in the spirit of the “responsibility to protect” application, by drawing even projects to bring about structural change. even if they do not come in place as quickly as expected, it is a case where straight out measures of the “responsibility to protect” doctrine has been applied successfully. in fact, the state, the international community and the united nations system contribute to the implementation of the responsibility to protect for many years already. the international community has shown in kenya in 2008 that it was possible to avoid the worst, by a mobilization of the entire of the actors. thence, considering kenya as a successful case of the deliberate application of r2p was mainly a mostly description by the mediation efforts and the power-sharing agreement. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 34 published by scholink inc. 5.2.2 ivory coast ivory cast is another case of the practical implementation of the “responsibility to protect”. the most recent period of the conflict reached a crucial stage after the chief of parties questioned the aftereffects of the since a long time ago put off presidential vote of 28 november 2010. presently equipped clash reignited between the supporters of occupant president laurent gbagbo and his challenger alassane ouattara. inside long stretches of gbagbo guaranteeing the election triumph, the economic community of west african states (ecowas) and the un secretary general reasoned that ouattara had actually gained, yet gbagbo and his supporters declined to move apart. as contenders from the two sides started to perpetrate outrages, unoci and france defied troublesome political and operational inquiries regarding how to protect civilians (bellamy & williams, 2011, p. 829). following the post-election violence and the use of heavy weapons against civilian populations, the security council adopted unanimously resolution 1975 march 30, 2011, on the situation in côte d'ivoire with reference to the principle of the “responsibility to protect”, condemning the flagrant violations of human rights including the supporters of the two candidates were accused. in this respect, the resolution referred to the responsibility of each state to protect civilians, urged laurent gbagbo to withdraw (note 79) and called for the transfer of power to alassane ouattara. furthermore, the resolution claimed that the operation of the united nations (unoci), was already in ivory coast, in the context of impartial execution of its mandate, could use all the necessary means to carry out the task assigned to protect civilians under threat of imminent physical violence acts, within the limits of its capabilities and in its areas of deployment, including to prevent the use of heavy weapons against the civilian population. the implementation of this resolution coincides with the large military offensive called “restore peace and democracy in ivory coast”, launched on 28 march 2011 by the republican forces of côte d‟ivoire (rfci), new army composed mainly new forces (former rebels), loyal to ouattara and whose purpose was to hunt laurent gbagbo from authority. on 4 april, following an escalation of violence in abidjan, asked the secretary-general of the united nations, pursuant to resolution 1975 (2011), unoci to conduct a military operation aimed to neutralize the heavy weapons of the forces armament loyal to laurent gbagbo (bellamy & williams, 2011, p. 835). the un peacekeepers and supporting french powers in côte d'ivoire have begun military move, making the side of ouattara, completing air strikes on the positions held by supporters of gbagbo. in the corridors of the united nations, ban ki-moon decision raises unease. officials express doubts about the power of the secretary-general to give such an “order” (which would return to the security council). the application of this procedure by the secretary-general has been criticized by key members of the security council, as the russia that said: “we believe that it is necessary once again to clearly reaffirm that it is unacceptable for united nations peacekeepers to be drawn into armed conflict and, in effect, to take the side of one of the parties when implementing their mandate” (bellamy & williams, 2011, pp. 835-836). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 35 published by scholink inc. likewise, the representative brazil supported that “the use of force by peacekeepers to protect civilians must be carried out with utmost restraint. this is necessary to ensure that blue helmets are not perceived as parties to the conflict. avoiding such a perception is crucial for the continued success of peacekeeping” (bellamy & williams, 2011, p. 836). returning to the decision of ban ki-moon, should we conclude previous developments that the secretary-general can take an initiative for the settlement of the outstanding issues before the organization? it has long been that the charter grants to the secretary-general no decision-making on the use of force. recall that the charter of the united nations defines the general secretary as the senior official of organization, in this quality to fill all other functions for which it is responsible by the security council, the general assembly, the council economic and social and other bodies of the united nations. the charter also authorizes the secretary-general to attract the attention of the security council on any matter which, in his point of view, likely to endanger the maintenance of peace and international security. in addition, the security council has the possibility to delegate to the secretary-general the authority for international peace and security. indeed, the exercise of such considerable authority implies that he enjoys the full confidence of the security council. in this case, such a delegation is inspired by the resolution 1528 relating to the establishment of unoci. under the terms of paragraph 5 of the resolution, the security council “reaffirms its strong support for the secretary-general‟s special representative and approves his full authority for the coordination and conduct of all the activities of the united nations system in côte d‟ivoire” (note 80). therefore, we can consider that the resolution would indeed allow ban ki-moon to seek the use of unoci force, within the strict framework of the fulfillment of its mandate. thus, controversies have been revealed about the impartiality of unoci, who has been criticized as party to the conflict ivorian. indeed here raised controversy relates less to the possible difficulties of implementation of the “responsibility to protect” civilians as the uncertainties hanging over the limits and conditions for the exercise of the right of self-defense of personnel of the united nations. in short, the military operations conducted by unoci against forces loyal to laurent gbagbo are mixed character. they are based both on the protection mandate established by resolution 1975 (2011), but also on the right of self defense more widely granted to personnel of the united nations. this duality is implicitly confirmed by ban ki-moon, when justifying his decision, he said that the peacekeepers had carried out this operation to protect themselves and civilians (bellamy & williams, 2011, p. 836). the implementation of this resolution has contributed to the fall of the regime of president gbagbo, which imposes on it and members of his entourage of sanctions concerning a financial assets freeze and a ban on travel as well as his arrest. on may 5, the ivorian constitutional court recognizes president ouattara‟s electoral victory. finally, it recognizes the competence of the international criminal court to try the perpetrators of serious crimes in ivory coast. january 18, 2012, while ban ki-moon had drawn up the responsibility to protect balance sheet, he recalled that in 2011 “this concept had been put to the test, including defending democracy in ivory coast”. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 36 published by scholink inc. there have been some fascinating improvements since the capture of gbagbo. specifically, on november 30, 2011, gbagbo was suddenly given over to international custody to hague, while the prosecutor of the icc accused him for crime against humanity‟s, gbagbo was presented with a capture warrant from the court in the little northern town of korogho, where he had been under house capture for seven months. the prosecutor of the icc has opened investigations concerning the acts of gbagbo government, and figures from mr. ouattara‟s gouvernment‟s. “forces supporting mr. ouattara likewise carried out atrocities, as per arraignment proof and reports from human rights groups” (murphy, 2012, pp. 436-437). remains to say the implementation of the responsibility to protect in ivory coast highlights two opposing movements. the first corresponds to a humanitarian and cooperation logic. this is the continual evolution of the right to duty to interfere with the responsibility to protect. the second movement corresponds to the political and competitive logic that underpin the humanitarian action authorized by the security council. this more negative reading presents the responsibility to protect more as a façade behind which the intervention logics specific to each state remain linked to the traditional defense of the national interest. 5.3 the situation in myanmar: can the icc make difference to rohingya? the events that took place early may 2008 in burma have given the issue of responsibility to protect a new dimension. cyclone nargisen from the gulf of bengal devastated the burmese provinces of the southwest, causing thousands of victims 78,000 dead and 56,000 missing. yet, despite the extraordinary magnitude of the catastrophe and the number of people affected, the burmese junta in power refused to open its borders to international assistance, condemning its population to certain death, for lack of food, drinking water and proper care (wong, 2009, p. 242; genser, 2018, p. 488) (note 81). in order to overcome the seriousness of the situation, the hypothesis of applying the responsibility to protect was soon envisaged, with the aim of forcing access to the disaster areas. yet, as we have seen earlier, this international duty of protection applies only in strict cases of genocide, war crimes, ethnic cleansing and crimes against humanity. cases of natural disasters do not come within the context of the situations envisaged by the final document, despite the report of the iciss. in order to circumvent this literal approach a current initiated by bernard kouchner, then accused the burmese military junta, of “crime against humanity”, thus justifying the application of the international duty of protection and, the where appropriate, a coercive action aimed at rescuing the population in distress. it should therefore be questioned whether the burmese government‟s refusal to allow relief could constitute a crime against humanity (haacke, 2009, pp. 163-164). the french foreign minister stated: “[w]e are seeing at the united nations whether we can implement the responsibility to protect, given that food, boats and relief teams are there, and obtain a united nations‟ resolution which authorizes the delivery (of aid) and imposes this on the burmese government” (alison, 2011, p. 587). in this case, closing borders can be seen as the imposition of deprivation or active behavior. nonetheless, a first reservation is evidence of mens rea. indeed, it seems difficult to prove the mental www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 37 published by scholink inc. element which implies that the authors have taken measures calculated to result in the destruction of a part of the population. the objective pursued must be the destruction at least partial of the population. moreover, the authors must be aware that this destruction is the result of their behavior and will become part of the ordinary course of events. the second reservation is due to the generalized nature or systematic attack. if the generalized character relates to the number of victims, it is clear from the jurisprudence that the systematic nature relates to a constant and organized practice (note 82). this implies for the authors a certain preparation based on the continuation of a common and organized plan or policy, the implementation of which requires the commitment of important means. this condition is clearly lacking in the present case (note 83). since 2012, longstanding atrocities between buddhists in rakhine state and rohingya muslims have emitted into a progression of fierce assaults, slaughtering civilians and dislodging several thousands. recently, brutality against minority ethnic groups has taken into account by international community. announcing a highly sensitive situation and state of emergency, the government allowed police security forces to execute “clearance operations” throughout rakhine state, which has prompted an unprecedented level of savagery by the authority against the rohingya (genser, 2018, pp. 488-489). on 27 august 2018 the human rights council (hrc)-commanded independent international fact-finding mission (ffm) on myanmar announced that the treatment of the rohingya by myanmar‟s security forces adds up to four of the five denied acts characterized in the genocide convention. the ffm discovered proof of “genocidal intent”, including discriminatory government approaches intended to change the demographic composition of rakhine state, and a planned arrangement for the annihilation of rohingya people group. unfortunately, the security council has not summoned r2p with respect to myanmar, returning to when the country‟s circumstance was set on its permanent agenda in 2006. apart from a presidential articulation that lamented the abuse authorized upon demonstrators amid the saffron revolution, the security council has not substantively rendered on the use of r2p to myanmar. russia and china dismissed a 2007 draft resolution, which had approached the myanmar government to stop military assaults against populations and would have built up a reason for summoning r2p (note 84). the council should be seized of the circumstance in myanmar and also the ongoing reports of atrocities by the u.n. high commissioner on human rights and special advisers ditto, the security council is experiencing strain to consider the circumstance in rakhine state. be that as it may, any imploring of r2p by the security council has remained slowed down under risk of a chinese and russian veto (genser, 2018, p. 490). why ask the question of genocide of the rohingya? after all, genocide, massacre or pogrom, the result is the same: in burma ethnic cleansing takes place on racist bases, permitting massacres, rapes, and forced evictions. but to define what the rohingya suffer from genocide is also to put the international community in the face of its responsibilities. indeed, international law does not force military intervention in the face of a termination policy. on the other hand, since 2005, un members are www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 38 published by scholink inc. supposed to have a responsibility to protect when a population is threatened with genocide. the path would be open to an intervention under the aegis of the united nations, a logical development that the french president had in mind when he spoke on the rohingya situation. this is what this martyred population implores: the protection of the international community. statelessness of this populace gather might be a reason for the territorial security risk. investigate bears out that the circumstance they have been in has gone beyond human rights standard. a political arrangement should be made with the back of the neighboring states and association of southeast asian countries (asean) and the universal community. thailand and malaysia have been advertising compassionate help, in spite of the fact that disputable, to rohingya outcasts. in spite of the fact that myanmar bears essential duties for the rohingya emergency, despicable treatment of the rohingyas in have nations must instantly come to a conclusion (ullah, 2016, p. 298). the creation of the international criminal court means that there is a new legal body with jurisdiction over a wide range of crimes against humanity and recognized war crimes, some of which are described in more detail in the statute than in the current instruments. the establishment of the international criminal court is also a positive initiative as a means of preventing talk of double standards and justice of the victors. however, myanmar is not a party of the rome statute. along these lines, while the icc cannot attempt prosecutions for the wrongdoing of the crime of apartheid when it is carried out in myanmar, since myanmar‟s government demands rohingya support in discriminatory citizenship forms as a precondition of repatriation to myanmar, this gives the icc a chance to declare ward, since the wrongdoing has been brought by myanmar to the icc party state bangladesh (note 85). dissimilar to the icc‟s present examination concerning the constrained extradition of rohingya, which focuses for the most part on supposed wrongdoings carried out by the myanmar military, obligation regarding violations related with myanmar‟s citizenship procedures would to a great extent be the duty of the non military personnel government as of now drove by state counselor aung san suu kyi. this would make myanmar‟s non military personnel government officials obligated just because to icc prosecutions (lee, 2019, p. 262). in conclusion, the situation in myanmar considers a deprecation of the r2p principle, in which although the principle was never purpose to contain matters of natural disasters, civilian casualties in huge number still take place due to national politics that have been set, leading to gather deaths. boosting political action, as well as a international community response, could not be realized due to the lukewarm controversy over whether the politics implored is a shape of “crimes against humanity” or not (putra & cangara, 2018, p. 61). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 39 published by scholink inc. 6. conclusion the answer to the question of whether the implementation of the “responsibility to protect” allows us to respond effectively to massive violations of human rights, is difficult and varies and depends on the point of view chosen. this would be negative because the major challenges in the field of international policy and the structure of the united nations still persist, and they are unlikely to be resolved in the near future. they prevent the realization of our hope which consists in giving a decisive and effective answer to all situations revitalizing the responsibility to protect. so there would always be the risk that massive atrocities as we have already testified are repeated. the very rapid evolution of the responsibility to protect for several years from an idea to a generally acceptable standard and to the regular agenda of the united nations clearly demonstrates that there is a general will and broad support within the international community to put an end to the atrocities. it seems very illogical to wait for the settlement of the obstacles in this matter by it in this short time. several steps must be reviewed. in this respect, it is observed that it is evolving every year from both conceptual and operational and institutional viewpoints. today we are talking about responsible protection. this means that not only do we have the responsibility to intervene in order to protect people, but also when adopting and implementing measures to that end, we must act responsibly and conform to the principles and purposes so that the population is better protected. we have seen that in some cases the united nations is confronted with obstacles in the implementation of the responsibility to protect, so i suggest a new doctrine or a development of the doctrine of the responsibility to protect which may mitigate the consequences of failure. i call it the “international responsibility to protect”. this doctrine is a combination of the responsibility to protect and the rules international responsibility in order to clarify that doctrine or theory; we must go back a little bit. on the one hand, we have already seen that the principle of the responsibility to protect is based on a multilateral decision that every state is required to protect its citizens from genocide, war crimes, ethnic cleansing and crimes against humanity. on the other hand, if the state cannot or does not want to protect its citizens, then the international community has the right to intervene and if necessary by force of arms. thus, the principle of the responsibility of the authorities is like a change in the united nations to deal with the humanitarian crises of the century and the where, if each state assumes responsibility for its own citizens, the international community is also responsible for assisting the state in its citizens, but if it is unable state to defend its religion or become the is of violence against the national population, and the international community must act in a timely by decisive manner, using chapter vii of the united nations charter, normally by taking a range of peaceful measures or using force. if the united nations decides to intervene in internal affairs in accordance with chapter vii of the charter, the security council must examine the conflict, and if the conflict is found to be a form of peace and security, the council decides to intervene in its secretariat, after the peaceful measures, which are contained in chapter vi and vii, and to be a situation of human rights, which would threaten www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 40 published by scholink inc. peace and security. the united nations charter conferred on the security council the power to examine any international dispute if it would extend peace and security. the main competence of the security council is for the maintenance of peace and security; it has extensive powers in those areas, so that it can intervene to protect populations under chapter vi of the charter under the title: “pacific settlement of disputes” is in art. 33 to 38, and that rule under the provisions of chapter vii under the heading of “action with respect to threats to the peace, breaches of the peace and acts of aggression”, art. 39, art. 5. through concepts and principles such as human security and responsibility to protect, the international community has tried in recent years to place man at the center of attention. the goal is that all the activities of states and other actors in the international community would serve the interests of people and the development of societies. however, it does not seem logical that people are the object of all efforts, while they themselves do not play a significant role in these efforts. while international law promotes democratic values for domestic law, on the international scene, which today is an important part of everyone‟s life, people have little impact on regulations. of course, it would not be a question of changing the place of individuals in the order of the subjects of international law, but of seeking ways in which they could participate and influence more actively the development of norms and rights within the international community. international community so that international decisions better reflect their hopes and needs. this is the challenge of international law in the 21st century and the answer it gives it, will determine the effectiveness of the implementation of standards like responsibility to protect. references ahsan, u. a. k. m. 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(2009). the theory of conflict prevention. what can kosovo draw out of it? thesis kosova, 2(1), 69-70. notes note 1. for 100 days, between 7 april and 4 july 1994, nearly one million men, women and children were killed in rwanda, a country of 7 million inhabitants. international organizations have found the horrific reality of this genocide as early as november 1994 when the establishment of an international criminal court was decided to judge its perpetrators. after the accident of the presidential plane on april sixth, 1994, hutu radicals assumed control over the government, rebuked the tutsi for the death of the president, and began the butcher. radical hutu pioneers and casual outfitted civilian army bunches called “interahamwe” propelled a battle of gigantic eradication against the tutsi. the hutu fanatics were made up from the base up, from regular folks to those in the largest amount of government. this structure gave the hutu fanatics total power in coordinating the destruction. note 2. in july 1995, in one of the most exceedingly worst slaughters in europe after the second world war, bosnian serb civilian army under the order of general ratko mladic‟ killed around 8000 bosnian in the region of the bosnian town of srebrenica. joined with the decimation in genocide in 1994, the massacre came to symbolize the disappointment of the international community to forestall or stop the most frightful atrocities submitted against civilians. https://doi.org/10.1111/1468-2346.12557 https://doi.org/10.1080/0032472042000224422 https://doi.org/10.1093/ejil/chq038 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 46 published by scholink inc. note 3. the law of geneva consists the original geneva convention of 1864, which eventually developed into the much more far-reaching four geneva conventions of 1949, while, central to the law of the hague are rules governing the means and methods of warfare, most of them codified by the 1907 hague peace conference. note 4. the date of birth of modern international humanitarian law (ihl) is typically put in the post-solferino making of the red cross movement, and specifically the formation of the geneva international committee of the red cross devoted to advancing the consideration of injured or wiped out military faculty. “since these occasions, in the 1860s, very nearly 150 years have passed. universal society, the idea and the act of war, the assemblage of worldwide compassionate law, the reasonable issues postured for its shifting topics-every one of these angles have experienced huge, if not major changes. the historical backdrop of modern ihl has been clarified various occasions, furthermore, there would be no noteworthy preferred standpoint to be picked up in adding a further commitment to the various compositions”. nevertheless, not very many composed works have endeavored to set out synoptically the primary periods of development of this assemblage of law, each described by an arrangement of basic crucial understandings, issues and operational standards inside the applicable ihl. in the event that such a viewpoint is embraced, it might be conceivable to reveal some insight into the way in which ihl has been seen and stratified in contrasting social and legal settings keeping in mind the end goal to address altogether extraordinary down to practical needs and aspirations. for regardless of whether there is a conspicuous coherence ever of, there are likewise crucial flights and separate improvements in specific stages. in this way, for instance, the early stage saw states deliver, translate and manage ihl basically as an issue of municipal military law, arranged in the worldwide circle for the most part through model standards, where lacunae and sub regulations established a notable element (1864-1899); the following stage saw the advancement of a framework where the transcendence of sway, as affected by the well known lotus principle of state opportunity, “had a tendency to beat the martens clause and to improve the centrality of military necessities, i.e., a framework where the assumption laid on the pugnacious” opportunity of activity (1899-1946). a further stage created in which ihl ended up based on the idea of compassionate assurance of the casualties of war through the presentation of extremely point by point and non-derogable tenets, consequently limiting the opportunity of state act, even in non-international armed conflicts. note 5. pursuant to commentary on art. 41 (1) article 41 sets out the particular consequences of breaches of the kind and gravity referred to in article 40. it consists of three paragraphs. the first two prescribe special legal obligations of states faced with the commission of “serious breaches” in the sense of article 40, the third takes the form of a saving clause. (b) states are under a positive duty to cooperate in order to bring to an end serious breach in the sense of article 40. because of the diversity of circumstances which could possibly be involved, the provision does not prescribe in detail what form this cooperation should take. cooperation could be organized in the framework of a competent international organization, in particular the united nations. however, paragraph 1 also envisages the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 47 published by scholink inc. possibility of non-institutionalized cooperation. (3) neither does paragraph 1 prescribe what measures states should take in order to bring to an end serious breach in the sense of article 40. such cooperation must be through lawful means, the choice of which will depend on the circumstances of the given situation. it is, however, made clear that the obligation to cooperate applies to states whether or not they are individually affected by the serious breach. what is called for in the face of serious breaches is a joint and coordinated effort by all states to counteract the effects of these breaches. it may be open to question whether general international law at present prescribes a positive duty of cooperation, and paragraph 1 in that respect may reflect the progressive development of international law. draft articles on responsibility of states for internationally wrongful acts, with commentaries, a/56/10 art 41 at 114 commentary (yearbook of international law commission, vol. ii, part ii, 2001). note 6. article 48 completes “the rule contained in article 42. it deals with the invocation of responsibility by states other than the injured state acting in the collective interest. a state which is entitled to invoke responsibility under article 48 is acting not in its individual capacity by reason of having suffered injury, but in its capacity as a member of a group of states to which the obligation is owed, or indeed as a member of the international community as a whole. the distinction is underlined by the phrase „any state other than an injured state‟ in paragraph 1 of article 48”. draft articles on responsibility of states for internationally wrongful acts, with commentaries, a/56/10 art 48 at 126 commentary (yearbook of international law commission, vol. ii, part ii, 2001). note 7. u.n charter, art. 41 & 42. note 8. art. 1 expresses the fundamental standard basic the articles in general, or, in other words violation of international law by a state involves international responsibility. an internationally wrongful act of a state may comprise in at least one act or omissions or a blend of both. regardless of whether there has been a globally improper act depends, first, on the prerequisites of the commitment which is said to have been violated and, furthermore, on the system conditions for such a demonstration, which are set out in part one. the expression “international responsibility” includes the new legal relations which emerge under international law by reason of the internationally wrongful act of a state. commentary on art. 1, 32. note 9. phosphates in morocco (1938), p.c.i.j. judgment !4 june series a/b, no. 74, at 10, 28. note 10. case concerning corfu channel, merits (1949), judgment 9 april i.c.j., at 4, 23. note 11. case concerning interpretation of peace treaties with bulgaria (hungary and romania, second phase) (1950), advisory opinion, 30 mars, i.c.j. 221. note 12. case concerning the difference between new zealand and france regarding the interpretation or application of two agreements concluded on 9 july 1986 between the two states and which related to the problems arising from the rainbow warrior affair (1990), vol. xx (sales no. e/f.93. v.3), unriaa. 251 par .75. note 13. draft articles on responsibility of states for internationally wrongful acts, art. 12 . www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 48 published by scholink inc. note 14. to be particular, the important thing concept is that breaching a primary obligation gives upward thrust, straight away through operation of the law of state obligation, to a secondary obligation or collection of such obligations (cessation, reparation ... ). the articles specify the default rules that decide while a breach happens and, in widespread, the content material of the resulting secondary obligations. of their very last form in addition they specify what other states may do to invoke obligation, by claiming cessation or reparation or, in default, via taking countermeasures. note 15. treatment of polish nationals and other persons of polish origin and speech in the danzig territory, advisory opinion (1932) , series a/b no. 44, 3 february, p.c.i.j. 24. note 16. case concerning pulp mills on the river uruguay (argentina v. uruguay) (2010), judgment, 20 april, i.c.j. paras. 77-79. note 17. draft articles on responsibility of states for internationally wrongful acts, art 20-25. note 18. as per article 26, conditions prohibiting illegitimacy can‟t legitimize or excuse a breach of a state‟s obligations under a peremptory rule of general international law. article 26 does not address the earlier issue whether there has been such a violation in some random case. this has specific significance to specific articles in chapter v. one state can‟t administer another from the obligation to consent to an peremptory norm, e.g. in relation to genocide or torture, regardless of whether by treaty or something else. however, in applying some peremptory norms the assent of a specific state might be pertinent. for instance, a state may legitimately agree to a foreign military presence on its region for a legal reason. deciding in which assent has been legitimately given is again an issue for different rules of international law and not for the secondary rules of state responsibility. see, draft articles on responsibility of states for internationally wrongful acts, with commentaries, a/56/10 art 26 at 85 commentary (yearbook of international law commission, vol. ii, part ii, 2001). note 19. yearbook of international law. commission, vol. ii, part ii at 95-96, un doc. a/cn.4/ser.a/1976/add.1 (1977). note 20. case of barcelona traction, light and power co., ltd. (belgium v. spain) (1970), i.c.j. 32. note 21. draft articles on responsibility of states for internationally wrongful acts, with commentaries, a/56/10 art 48 at 126-127 commentary (yearbook of international law commission, vol. ii, part ii, 2001). note 22. draft articles on responsibility of states for internationally wrongful acts, with commentaries, a/56/10 art 29 at 88 commentary (yearbook of international law commission, vol. ii, part ii, 2001). note 23. case concerning application of the convention on the prevention and punishment of the crime of genocide (bosnia and herzegovina v. serbia and montenegro) (2007), judgment, 26 february, i.c.j. 196. note 24. case concerning application of the convention on the prevention and punishment of the crime of genocide (bosnia and herzegovina v. serbia and montenegro) (1996), judgment, 11 july, i.c.j. at 616. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 49 published by scholink inc. note 25. international commission on intervention and state sovereignty, the responsibility to protect viii (2001). note 26. report of the high-level panel on threats, challenges and change, un doc. a/59/565, 57. note 27. the prosecutor v. charles taylor, case no.: scsl-03-01-t, 18 may 2012, 346-654. note 28. there is as of now no concurred meaning of universal jurisdiction among states. be that as it may, researchers, scholars, and a few states for the most part characterize all inclusive ward as the absence of typical jurisdictional connections to the endorsing state. the nonattendance of confirmation of a prescriptive link is legitimized by universal jurisdiction‟s underlying rationale, which rises above the interests of states. in the first place, the grave or grievous nature of specific crimes under international law, for example, piracy, atrocities, and war crimes are broadly accepted to be at universal jurisdiction‟s core. second, in light of this fact such crimes are so genuine, preventing the impunity of them is a worry of each state. note 29. rome statute of the international criminal court art. 25, july 17, 1998, u.n. doc. a/conf.183/9 [hereinafter icc statute]; statute of the international criminal tribunal for the former yugoslavia art. 7, may 25, 1993, s.c. res. 827, u.n. doc. s/res/827 [hereinafter icty statute]; statute of the international criminal tribunal for rwanda art.6, nov. 8, 1994, s.c. res. 955, u.n. doc. s/res/955 [hereinafter ictr statute]. note 30. art. 14 of protocol ii to the convention on conventional weapons, as amended; rome statute of the international criminal court, id art. 8 and art. 25; art. 15 and 22 of the second protocol to the hague convention on the protection of cultural property. note 31. rome statute of the international criminal court, art. 25 (3). note 32. prosecutor v. tadic, it-94-1-a-bis, judgment, 15 july 1999 at para. 185-233, 235. note 33. draft articles on responsibility of states for internationally wrongful acts, with commentaries, a/56/10 art 4 at 42 commentary (yearbook of international law commission, vol. ii, part ii, 2001). note 34. art. 86 para. 1 of additional protocol ii the geneva conventions of 12 august 1949, and relating to the protection of victims of international armed specifies that “the high contracting parties and the parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the conventions or of this protocol which result from a failure to act when under a duty to do so”. note 35. rome statute of the international criminal court, art. 7 (2) (a). note 36. art. 49 of the convention (i); art. 50 of convention (ii); art. 129 of convention (iii); art. 146 of the convention (iv); art. 28 of the hague convention for the protection of cultural property; art. 15 of its protocol ii. note 37. rome statute of the international criminal court, art. 25 (3) (a). note 38. in this respect, icj has pointed out “immunity from criminal jurisdiction and individual criminal responsibility is quite separate concepts. while jurisdictional immunity is procedural in nature, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/treaty.xsp?action=opendocument&documentid=d9e6b6264d7723c3c12563cd002d6ce4 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/treaty.xsp?action=opendocument&documentid=d9e6b6264d7723c3c12563cd002d6ce4 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 50 published by scholink inc. criminal responsibility is a question of substantive law. jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from al1 criminal responsibility”. case concerning arrest warrant of 11 april, 2000 (democratic republic of the congo v. belgium) (2002), judgment, 14 february, i.c.j. at 25 para. 60. note 39. rome statute of the international criminal court art. 98 (1), july 17, 1998, u.n. doc. a/conf.183/9. note 40. case application of the convention on the prevention and punishment of genocide, at 108 para. 156, 114 para. 167-168. note 41. draft articles on responsibility of states for internationally wrongful acts, with commentaries, a/56/10 art 41 at 115-116 commentary (yearbook of international law commission, vol. ii, part ii, 2001). note 42. prosecutor v. furundzija (1998), it-95-17/1-t, 58-61, 10 december at paras 151-157. note 43. international commission on intervention and state sovereignty, the responsibility to protect viii (2001), 13. note 44. world summit outcome (2005), g.a. res. 60/1, 16 september, u.n. doc. a/res/60/1 at 138. note 45. a more secure world: our shared responsibility (2004), g.a. res. 59/565, 203, u.n. doc. a/59/565. note 46. case concerning armed activities on the territory of the congo (democratic republic of the congo v. uganda) (2005), judgment, 19 december, i.c.j. at 231 paras. 178. note 47. reservations to the convention on the prevention and punishment of the crime of genocide, advisory opinion, 1951, i.c.j 23 (may 28). note 48. case concerning application of the convention on the prevention and punishment of the crime of genocide (bosnia and herzegovina v. serbia and montenegro), at 120-122 paras 183-189. the bit of the judgment transacting with the commitments to inhibit and to punish genocide establishes its gist, these being the main obligations of which serbia had been found in violation. it is not difficult to foresee that, adjacent to the numerous significant purposes of law which emerged for this situation, this is the part of the judgment which will be all the more deliberately analyzed by all states. note 49. during the korean case, the general assembly took note of the failure of the security council in its resolution 377 (v) of 3 november 1950, the so-called “uniting for peace”, according to which “in all cases where there appears to be a threat to peace, a breach of the peace or an act of aggression and where, because unanimity could not be achieved among its members, the security council fails to fulfill its main responsibility in the maintenance of international peace and security, the assembly general shall immediately examine the matter in order to transmit to the members appropriate recommendations on the measures to be taken (...) including the use of armed force. it was the opposition of the former ussr to the action of the security council which led the us secretary of state to initiate this resolution which took its name “dean acheson”. but it was a great opportunity for www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 51 published by scholink inc. the assembly to grant itself a direct competence in the field of collective security, which is not enshrined in the charter and therefore works the way to competition with the security council. note 50. international commission on intervention and state sovereignty, the responsibility to protect viii (2001), 53. note 51. international commission on intervention and state sovereignty, the responsibility to protect viii (2001), 47. note 52. international commission on intervention and state sovereignty, the responsibility to protect viii (2001), 50. note 53. case concerning questions of interpretation and application of the 1971 montreal convention arising from the aerial incident at lockerbie (libyan arab jamahiriya v. united states of america) (1992) , order, 19 april, i.c.j. at 12 para 28. note 54. report of the secretary-general on the sudan (2004), s.c. res. 1564, 18 september, u.n. doc. s/res/1564. note 55. peace and security in africa (2011), s.c. res. 1670, 26 february, u.n. doc. s/res/1670. note 56. the utilization of the veto that upsets the quest for humanitarian purposes viewed as an illegitimate utilization of the veto. in such manner, the general assembly criticized the security council and its failure to react sufficiently to the syrian emergency. while not legitimately official, such feedback can have trenchant good and political power. note 57. ecowas has the objective of maintaining regional peace and security in its region. the development of its treaty structure exhibits its response to a progression of dangers and threats to provincial peace and security—a reaction component that has been generally praised by the international community. nevertheless, after a rebellion in liberia and a common difficulty, ecowas set up a ceasefire monitoring group (ecomog) aiming at re stabilize that state. so, in 1993 its constitutive instrument was reexamined making a structure of “regional peace and security observation system and peace-keeping forces”. note 58. the issues emerged when the security council neglected to embrace the secretary general‟s report because of worries of u.s. endorsement. the abidjan accord came apart on the grounds that the ruf rebels declined to incapacitate and sierra leone‟s national armed force come up short on the ability to authorize consistence with the accord. consequently, on may 25, 1997, revolt officers assumed control government structures and penitentiaries in the capital of freetown and discharged major johnny paul koromah, the pioneer of the ruf who was detained for earlier endeavored coup. koromah pronounced himself as the head of government and suspended the constitution. president kabbah had just been in power for fourteen months previously being constrained into outcast in neighboring guinea. the primary legitimizations advanced by ecowas and the nigerian government for the utilization of force were: the right to self-defense, the intrigue by president kabbah looking for ecowas help, the outrages carried out by junta troops against sierra leonean nationals, the threat to international peace and security in the area caused by the stream of sierra leonean exiles to https://www.icj-cij.org/en/case/88 https://www.icj-cij.org/en/case/88 https://www.icj-cij.org/en/case/89 https://www.icj-cij.org/en/case/89 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 52 published by scholink inc. neighboring nations, and the counteractive action of the execution of atrocities by the junta. these reasons are a significant takeoff from the avocations utilized in the liberian intervention in that fuse of these humanitarian aspect of the contention is essential, while the requirement for harmony and reclamation of request isn‟t. moreover, the last avocation insights of a preemptive safeguard of human rights, which has surely not picked up acknowledgment in the international community. extra criticisms of the legitimateness of this intervention incorporate the way that kabbah had just been ousted from the country, making the legitimacy of his demand for outside mediation more questionable than does‟n liberian government, and the way that the security council. the principle legitimizations advanced by ecowas and the nigerian government for the utilization of power were: the right to self-defense, the intrigue by president kabbah looking for ecowas help, the atrocities carried out by junta troops against sierra leonean population, the risk the threat to international peace and security in the country caused by the stream of sierra leonean displaced people to neighboring countries, and the aversion of the execution of atrocities by the junta. these reasons are a significant takeoff from the legitimizations utilized in the liberian intervention in that fuse of the humanitarian parts of the contention is essential, while the requirement for harmony and reclamation of request isn‟t. moreover, the last legitimization insights of a preemptive defense of human rights, which has positively not picked up acknowledgment in the universal network. extra reactions of the lawfulness of this intercession incorporate the way that kabbah had just been removed from the country, making the authenticity of his demand for outside intervention more indeterminate than does‟n liberian government, and the way that the security council. note 59. following a us state department-supported investigation in which more than 1,100 dark african evacuees from darfur were met in exile camps along the chad/darfur frontier, us secretary of state colin powell pronounced, on 9 september 2004, that “in light of a predictable and broad example of barbarities—killings, assaults, consuming of towns—submitted by the janjaweed and government [of sudan] powers against non-arab villagers” [massaleit, zaghawa and fur], the state department had reasoned that “decimation has been submitted—and massacre may in any case be happen ring”. subsequently, the us alluded the issue to the united nations and approached it to attempt “an out and out and liberated examination”. acting under chapter vii of the united nations charter, the un security council, on 18 september 2004, embraced resolution 1564 which approached un secretary general kofi annan to quickly set up an international commission of inquiry in respond to examine reports of violations of international humanitarian law and human rights law in the region of darfur by all gatherings, to decide additionally regardless of whether demonstrations of genocide have happened. in october 2004, secretary general kofi annan named the former president of the un‟s international criminal tribunal for the former yugoslavia (icty) antonio cassese as chairperson of the commission of inquiry. annan asked that the members of the commission furnish him with a report of their discoveries inside three months‟ time. dissimilar to the united states atrocities documentation project (adp), which was restricted to leading its investigation in exile camps in chad, the coi led a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 53 published by scholink inc. far more extensive investigation that incorporated the three cases of darfur (counting towns, towns, and displaced people camps); khartoum, the capital of sudan; refugee camps in chad; eritrea (with the end goal to meet with agents of two dissident gatherings—the sudanese liberation movement/army [slm/a] and the justice and equality movement [jem]); and addis ababa (with the end goal to meet with authorities of the african union). the international commission team completed its investigation in november and december 2004 and january 2005. far beyond deciding if demonstrations of genocide had been executed, the commission‟s order included three other real assignments: “to explore reports of infringement of worldwide compassionate law and human rights law in darfur by all gatherings; to personality the culprits of violations of universal philanthropic law and human rights law; and to recommend methods for guaranteeing that those in charge of such breaches are considered responsible”. note 60. in march 2005, the security council chose to broaden the mandate of unamis. that month oneself, following the signature of the comprehensive peace agreement between sudan and the splm/a, the security council chose to build up the un mission in sudan (“unmis”). unmis would comprise of military personnel and a civilian component. by establish1ing unmis, the security council noticed the demand of the parties to the agreement to build up a peace support mission. it chosen that the errands of the new mission would, inter alia, be to screen and confirm the usage of the truce assertion; to aid the foundation of the disarmament, demobilization, and reintegration program; to advance was comprehension of the harmony procedure; and, most essentially maybe, to give direction and technical assistance to the parties to the comprehensive peace agreement, in collaboration with other international performing actors, to help the arrangements for and lead of races and referenda accommodated by the agreement. note 61. resolution of the security council on the sudan (2006), s.c. res. 1706, u.n. doc. s/res/1706 at 3 par. 1. note 62. russia, china, and qatar abstained from voting, on the other hand 12 countries voted in favor. note 63. resolution of the security council on the sudan (2007), s.c. res. 1769,.a.ii, 31 july, u.n. doc. s/res/1769, 5 para. 15. note 64. for instance, more than ninety vehicles have been commandeered at gunpoint from the mission or ngos in 2008 in darfur. peacekeepers have additionally been trapped and slaughtered by rebel groups. in june 2008, a detachment of peacekeepers was held prisoner for over five hours by one of the chipped rebel groups. additionally, the absence of utility helicopters implied that peacekeepers needed to go along perilous and new courses by street making them helpless against assaults and snare by revolutionary groups. these assaults against unamid peacekeepers have influenced their capacity to play out a portion of the elements of protecting civilians, making conditions that will permit conveyance of humanitarian aid and deliberate return of idps and guaranteeing sturdy harmony, security, peace and dependability in darfur. note 65. draft resolution, s/2011/612 (2011), prmbl, 4 october, u.n. doc. s/2011/612. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 54 published by scholink inc. note 66. resolution of the security council on the syria, at prmbl. note 67. this resolution received 137 votes in favor, 12 votes against and 17 abstentions. see, resolution of the general assembly on the syria (2012), a/res/66/253, 16 february, u.n. doc. a/res/66/253 at para. 6. note 68. allowable regional organization act are not generally “enforcement action” under the competence of the security council. for instance, when the security council is veto halted concerning its capacity to make decisions to approve implementation action, admissible provincial military activities under article 52 are neither one of the enforcements actions nor under the competence of the security council, at any rate until the point that the council can act and really settle on measures under chapter vii of the charter. at the point when the council is veto-stopped, it can‟t settle on measures to offer impact to its choices or to choose “activity required to complete” its choices, and it can‟t choose to use a regional arrangement for implementation action according its competence inside the importance of article 53. in perspective of the above-mentioned, it is apparent that nato‟s actions` in kosovo were reasonable under article 52 and were not impermissible under article 53 of the charter. note 69. resolution of the security council on the peace and security in africa (2011), s.c. res. 1970, u.n. doc. s/res/1970 (feb 26). note 70. resolution of the security council on the peace and security in africa (2011), 155 at 2. note 71. art. 27. of the statute of the icc provides: “this statute shall apply equally to all persons without any distinction based on official capacity. in particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this statute, nor shall it, in and of itself, constitute a ground for reduction of sentence”. note 72. resolution of the security council on the peace and security in africa, at 2-3 para. 6. note 73. the security council, under the auspices of chapter vii of the un charter, adopted resolution 1973 march 17, 2011, by 10 votes for (south africa, bosnia and herzegovina, the colombia, the united states, the france, gabon, the lebanon, nigeria, the portugal and the united kingdom) and 5 abstentions (the russia, china, the germany, the brazil and the india). note 74. resolution of the security council on lybia, at 1. note 75. on 19 march 2011, france propelled air strikes against a segment of tanks of the libyan armed force drawing nearer benghazi. this denoted the start of what was destined to be called “operation unified protector” going under the order and control of nato. several states (the united states (usa), the united kingdom (uk), belgium, canada, denmark, italy, the netherlands, norway, spain, qatar and united arab emirates) took part in the military intervention that endured over 7 months and formally finished on 31 october, after the collapse of the gaddafi regime. as per nato, the action comprised of in excess of 26 000 air fights, which harmed or obliterated more than 6000 targets. moreover, as will be talked about later, a few members of the alliance gave military help to the libyan renegades, inter alia by sending a restricted measure of forces on the ground. more than a half www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 55 published by scholink inc. year after the finish of this military intervention, the quantity of exploited people and victims stays vague. as per a human rights watch report, “the quantity of non military personnel passings showed up far lower than asserted by the gaddafi government, however higher than recognized by nato”. altogether, the conflict without a doubt brought about a huge number of unfortunate casualties, chiefly because of conflicts among legislative and revolt authorities, and caused significant material harm. note 76. un security council, “security council approves „no-fly zone‟ over libya, authorizing „all necessary measures‟ to protect civilians, by vote of 10 in favor with 5 abstentions” (press statement, sc/10200, 17 march 2011). note 77. different states openly admonished the gaddafi regime by saying that “there is no legitimacy in libya today but [that] of the ntc, and that gaddafi, by “brutally assaulting his own people, has irreversibly lost all claims to legitimacy”. 6 it was also stated that the ntc had shown its commitment to a “more open and democratic libya […] in stark contrast to gaddafi whose brutality against the libyan people has stripped him of all legitimacy”. there was consequently an unmistakable conflict between the previous government which, as indicated by cases made both inside and remotely, was a risk and threat to its population, and a contending demand that the ntc was the more genuine conversationalist for the sake of the general population of libya. note 78. security council 5854 th meeting (2008), s/pv.5845, u.n. doc. s/pv.5845; note 79. resolution of the security council on the côte d'ivoire (2011), 30 march, s.c. res. 1975, u.n. doc. s/res/1975 at 2 para. 1. note 80. resolution of the security council on côte d‟ivoire(2004), s.c. res. 1528, 27 february, u.n. doc. s/res/1528, para. 5. note 81. the population in burma have endured a reiteration of human rights maltreatment since the military coup d‟état in 1962 which finished popularity democratic rule. the u.n. authorities called an international action and human rights advocates have escalated to the onset of r2p conjuring in light of violations by the military junta, including: its vicious crackdown on peaceful demonstrators in the 2007 saffron revolution, its hapless reaction to cyclone nargis in 2008, and, most as of late, its mistreatment of the minority muslim rohingya. somewhere in the range of 1996 and 2007, military forces demolished or uprooted 3,600 towns and executed violations against humankind as a way to ingrain fear in the regular citizen populace. the military has additionally reliably slaughtered regular folks to quell political action and serene exhibits, executing a “shoot on sight” strategy in the ethnic minority regions of eastern myanmar. note 82. the icty has adopted four elements: the existence of a political purpose or an ideology aimed at persecuting or weakening a community, the commission of a very large criminal act, the implementation of important public or private means, the involvement of high-level political and/or military authorities. see, prosecutor v. blaskic (2000), case no. it-95-14, judgment, 3 mars at 67 para. 203. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 56 published by scholink inc. note 83. the participation of the state in the orchestration of the abuses was not adopted as a constituent element of the crime against humanity by the tpi. however, state policy can be seen as a means of proof used to admit a generalized or systematic policy. see, prosecutor v. blaskic, 69 para.206. note 84. s.c. draft res. (2007), 12 january, u.n. doc. s/2007/14. note 85. the pre-trial chamber iii stated “on 6 september 2018, pre-trial chamber i issued its decision on the „prosecution‟s request for a ruling on jurisdiction under article 19(3) of the statute‟ 1” (the “jurisdiction decision”) finding that the court may assert jurisdiction pursuant to article 12(2)(a) of the statute if at least one element of a crime within the jurisdiction of the court or part of such crime is committed on the territory of a state party to the statute.(…) on 12 june 2019, the prosecutor informed the presidency, pursuant to regulation 45 of the regulations, of her intention, pursuant to article 15(3) of the statute, to submit a request for judicial authorization to commence an investigation into the situation in bangladesh/myanmar. (…) the procedure for initiating an investigation upon the prosecutor‟s own initiative is regulated by article 15 of the statute. this provision subjects the prosecutor‟s power to open an investigation proprio motu to the judicial scrutiny of the pre-trial chamber.14 article 15(3) provides that, “[i]f the prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the pre-trial chamber a request for authorization of an investigation, together with any supporting material collected”. decision pursuant to article 15 of the rome statute on the authorisation of an investigation into the situation in the people‟s republic of bangladesh/republic of the union of myanmar (2019), pre-trial chamber iii, 14 november, icc no: icc-01/19 at pars. 1, 2, 11. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 15 original paper our exploration of countermeasures against the abuse of unilateral sanctions by the united states zhao jiahui 1 1 shenyang university of technology, shenyang city, liaoning province, china received: october 8, 2024 accepted: october 15, 2024 online published: october 16, 2024 doi:10.22158/elp.v7n3p15 url: http://dx.doi.org/10.22158/elp.v7n3p15 abstract currently, the international landscape is undergoing changes, with unilateralism on the rise. of which, economic sanctions are the most common form. due to the lack of effective specialized international rules in the current international rule system, unilateral sanctions are increasingly frequently used by individual countries. the abuse of unilateral sanctions has impacted the normal operation of international mechanisms. unilateral sanctions were originally used in a country’s domestic law, but now some countries, such as the united states, expand their own laws’ extraterritorial application through the continuous expansion of connection points, thereby giving their sanctions against foreign entities a cloak of legitimacy, which goes against the principles of international law and the basic norms of international relations (bai, 2018). from a legal perspective, the implementation of illegal unilateral sanctions is achieved through the improper interpretation and application of international treaty exception clauses. from international custom, unilateral sanctions beyond countermeasures refer to those imposed by states other than the injured state, who deliberately legalize countermeasures related to sanctions, which greatly contributes to the abuse of unilateral sanctions. in this context, china should accelerate the construction of its anti-sanctions legal system to effectively counter the threats and damages caused by unilateral sanctions and firmly safeguard its sovereignty, security, and development interests. keywords unilateral sanctions, countermeasures, security exception, anti-measures in recent years, unilateral sanctions outside the scope permitted by the united nations have gradually increased. the united states and the european union are the main countries that have imposed unilateral sanctions. unilateral sanctions like these, which have not been confirmed by the united nations, are generally familiar to us. since unilateral sanctions are not controlled and confirmed by www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 16 published by scholink inc. the united nations, they are further used more frequently. such coercive measures have a great impact on the existing rules of international law and on the sovereignty of states. 1. introduction the main reason why unilateral sanctions are abused as a tool to achieve political goals between countries is that their definition is too vague and legal regulations are insufficient. unilateral sanctions are illegal in most cases, so it becomes urgent and important to analyze their illegality. based on the analysis of the concept and illegality of unilateral sanctions, this paper will put forward reasonable suggestions for our country to deal with unilateral sanctions. 1.1 unilateral and secondary sanctions unilateral sanctions are when a subject of international law “unilaterally” decides to impose economic, trade or other coercive measures on the target of sanctions in order to force the target of sanctions to change its policies or actions. unilateral sanctions are designed to force other countries to act in line with their own national interests, so as to achieve their own national interests. this is contrary to the principle of non-interference in the internal affairs of other countries in international law. in the case of unilateral sanctions, it is divided into primary sanctions and secondary sanctions, and the main content of primary sanctions is to prohibit or relatively restrict the transactions or other exchanges between one’s own country and the sanctioned country. in addition to the above content, secondary sanctions also prohibit and restrict transactions between third countries and their own countries related to the sanctioned countries. in the current international community environment, we have no objection to the view that secondary sanctions are contrary to international principles and norms. secondary sanctions are embodied in the fact that a country extends its domestic law without any measure or concern to achieve the purpose of interfering in the internal affairs of other countries, which definitely violates the principle of non-interference and the principle of state sovereignty in international law. secondary sanctions and extraterritorial application of laws have largely created legal inequalities among countries, which run counter to the principles of respecting national sovereignty and non-interference in other countries’ internal affairs that we have always followed. 2. second, the reasons why unilateral sanctions are abused 2.1 the vague definition of unilateral sanctions has led to their abuse most of the unilateral sanctions in today’s international community do not conform to the sanctions referred to in the international law. unilateral sanctions are mainly economic sanctions. some scholars of international law even define unilateral sanctions only from an economic perspective, and some even equate unilateral sanctions with economic sanctions. this is confused with economic sanctions. however, as we all know, unilateral sanctions are divided into economic sanctions and non-economic sanctions, and economic sanctions often have political purposes. some experts and scholars try to define unilateral sanctions from multilateral sanctions, but there are different views on the definition of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 17 published by scholink inc. multilateral sanctions in the world. although the un charter provides an international framework for the use of economic sanctions, most countries impose economic sanctions on a unilateral basis based on national legislation. a few countries have expanded the interpretation and application of unilateral economic sanctions based on their own core interests, leading to the excessive use of unilateral economic sanctions. at present, the international community still lacks a universal and authoritative definition of unilateral sanctions, and the applicable rules of unilateral sanctions are also inadvertently clear, resulting in the abuse of unilateral sanctions. 2.2 the complexity of the characterization of unilateral sanctions makes it difficult to apply the law unilateral sanctions can only be considered when the legal nature of the sanctions is determined. in international law, unilateral sanctions are generally referred to as counter-reporting and countermeasures, but the specific type of sanctions should be analyzed according to the specific situation. in practice, however, determining the nature of the law is an extremely difficult matter. the reasons mainly include two aspects, one is that there is no recognized international court or other institution with compulsory jurisdiction that can exercise jurisdiction. on the other hand, in recent years, in addition to the resolutions of the un security council, many countries or regions have implemented more and more unilateral sanctions. and they all have some common points, such as the gradual strengthening of extraterritorial, through some extraterritorial sanctions to impose their own laws on other countries and regions; the means of unilateral sanctions are gradually increasing, from the single economic sanctions to the parallel economic sanctions, cultural sanctions and political sanctions, and the proportion of political sanctions is increasing. in fact, whatever the underlying reasons, the legal character of unilateral sanctions is determined primarily by the measures taken by the acting state and can therefore vary. in practice, unilateral measures can not only include economic measures such as financial sanctions, asset freezes, trade sanctions, arms embargoes, and commodity embargoes. it can also include non-economic measures such as diplomatic sanctions, travel bans, restrictions on freedom of navigation, aviation and transit, and the right to communication [analysis of the illegality of unilateral sanctions and legal responses. politics and law. zhang yue (law school, sichuan university, chengdu 610207, china)]. among them, embargoes, diplomatic sanctions and travel bans may not be unlawful in themselves or in response to wrongful acts and can generally be characterized as counter-reporting under international law. how to distinguish low-intensity unilateral sanctions with retaliatory nature from purely high-intensity unilateral sanctions is a difficult problem in practice. 2.3 the use of counter-sanctions beyond the limit opens up the possibility of unilateral sanctions sanctions are a means of punishment related to the responsibility of the state and are in fact a response to international wrongful acts. in the absence of a corresponding treaty and the absence of a security council resolution, the use of international custom to provide the so-called legal basis for unilateral sanctions would remove the wrongfulness of the corresponding act of countermeasures. in the past, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 18 published by scholink inc. countries or regions that initiated unilateral sanctions first used countermeasures as an excuse to cover up their real acts of unilateral sanctions. however, the current anti-sanctions regulations are not perfect, which leads to the lack of certainty in the process of application. for example, in certain cases, measures such as counter-sanctions are applied without the consent or even knowledge of the targeted state, or even without the certainty that the illegal act has actually taken place. the first condition for becoming a counter-sanctions measure in accordance with international law is not to violate procedural provisions. there are many procedural provisions, the first thing to pay attention to is to inform the other side of the obligation to counter sanctions and to propose that we should negotiate with the other side on the matter of sanctions. if the steps and procedures mentioned above are missing, it is also essentially a violation of the substance, because there is no difference in the result. that would lead to the illegality of what is itself characterized as unilateral sanctions remaining, and it would lead to the creation of state responsibility. in this case, if the sanctioned party implements relevant actions and measures to counter the situation it is facing, it is easy to escalate the situation. corresponding to the procedural requirement is the substantive requirement, that is, the root cause of unilateral sanctions, that is, whether the country facing the sanctions has committed a real act that is not in line with international law. article 49 of the draft states: “an injured state may, inter alia, only take countermeasures against the state responsible for the internationally wrongful act in order to induce that state to comply with its obligations” (wang, 2022). the question of this first response is whether the state imposing countermeasures is actually in violation of international law. take the united states and russia for example. the united states and the european union say that they imposed unilateral sanctions on russia before it committed numerous violations of international law. the united states and the european union have portrayed their unilateral sanctions as justified and a response to russia’s previous wrongdoing. 3. the adverse effects of unilateral sanctions on our country 3.1 national sovereignty has been seriously violated the charter of the united nations provides for the principles of sovereign equality of states and non-interference in the internal affairs of states. these principles are applicable and must be observed by all countries and regions, and they have a mandatory effect. however, in recent years, unilateral sanctions imposed by western countries represented by the united states have seriously infringed our national sovereignty. in this case, the united states forced some enterprises to give up free trade with china’s xinjiang cotton on the absurd grounds of forced labor in china’s xinjiang region, in order to destroy china’s cotton industry base, destroy china’s cotton textile industry, and destroy the stable employment situation in xinjiang. after a rigorous review of the xinjiang project by the shanghai representative office, it was reported to headquarters that it had not found a single case of forced labor in china. but the findings continue to be ignored. the united states forced some enterprises to give up www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 19 published by scholink inc. cooperation with xinjiang cotton by withholding order, which is to apply its domestic law to china’s free trade with xinjiang and related enterprises. this behavior seriously violates the principle of non-interference in the internal affairs of other countries stipulated in the un charter, and also infringes on china’s interests to a large extent, and is illegal. the united states has also repeatedly interfered in our internal affairs and harmed our interests through secondary sanctions. in 2018, the united states indicted and extradited meng. under a series of tricks by the united states, meng wanzhou, the chief financial officer of huawei, was detained by the canadian side when she was transferring through italy, and meng wanzhou was detained without violating canadian laws, which is very unreasonable. the american case against meng is fraud, but it is a false one. the united states and canada have always used extradition treaties as a fig leaf for their persecution of chinese citizens, but it is internationally recognized that the law they rely on is only a means to protect their own interests and persecutory citizens of other countries, and has nothing to do with their stated fairness. judging from the past events, the intention of the meng wanzhou incident is to suppress chinese citizens, but also to suppress china’s high-tech development. it can be seen from the meng wanzhou incident that western countries represented by the united states use their international influence and their own economic advantages to force trade between third countries and the sanctioned countries. this is contrary to the internationally recognized principle of respect for the sovereignty of other states. 3.2 the development of high-tech fields is limited western countries represented by the united states have for a long time occupied the leading level of scientific and technological development in the world, as well as their own import and export related laws and regulations such as the export administration regulations. at the same time, with the specific measures such as the “entity list” and “section 301” formulated by them, the development of china’s high-tech technology field is restricted, and the targets of sanctions are huawei and dji, which are high-tech centered enterprises, in order to curb the development of china’s high-tech enterprises, so as to achieve the purpose of maintaining their own national science and technology hegemony. the “clean network” program is essentially the united states’ suppression of the technological development of china’s high-tech fields. taking advantage of its leading edge in science and technology, especially the internet, the united states has been doing all kinds of activities to monitor other countries’ governments or individuals, but now it attacks china without evidence and claims to “clean the internet”. this insolence is no longer merely a matter of turning black and white upside down and distorting facts. the plan is a comprehensive form of discrimination and infringement against specific industries and sectors, targeting china. it goes beyond the punishment of a single enterprise or individual, and is a crackdown on a country’s enterprise groups and the entire industry involved in internet and telecommunications services. this is a direct violation of the company’s right to normal business as well as its legitimate rights and interests under domestic and international law. the scope of the hegemonic acts of the united states and the seriousness of the illegal situation should www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 20 published by scholink inc. arouse the great attention of the entire international community, including china. 3.3 the legitimate rights and interests of enterprises cannot be protected in recent years, in the process of unilateral sanctions carried out by countries represented by the united states, quite a number of chinese enterprises often choose the way of punishment to end quickly in order to avoid themselves falling into public opinion and to avoid the adverse effects brought by transnational lawsuits. in the actual process, enterprises often face a long-term investigation, which will lead to a decline in the reputation of the enterprise, but also let the enterprise in the panic for a long time, so enterprises in order to get out of this predicament as soon as possible, often choose to compromise. however, this approach often leads to heavy losses for the enterprise, and this loss is not what the enterprise should bear. in march 2017, zte and the us government reached a settlement in the export control investigation case, zte paid about us $890 million in criminal and civil penalties, and the us department of commerce’s bureau of industry and security suspended a us $300 million fine against zte, which will be paid based on zte’s compliance with the agreement over the next seven years. it was the largest fine ever imposed on a chinese company. however, on april 16, 2018, the website of the us department of commerce announced that the united states and zte companies should not have trade exchanges for seven years. the reason given by the united states is that zte has violated the settlement agreement signed by the two sides. the us accused zte of illegally exporting to iran and north korea. however, because zte had previously been forced to settle with the united states under pressure from all parties, the case did not enter judicial proceedings, which means that zte has given up the opportunity to protect its rights and interests by judicial proceedings. at the same time, the amount of fines stipulated in the unequal settlement agreement between zte and the united states caused zte to suffer greatly in the year after the payment of the fine, and various profit indicators turned negative, before which zte’s profitability had been stable. 3.4 the international order has suffered a major setback in order to safeguard its own national interests and consolidate its hegemonic position, the united states has extended its domestic laws to other countries many times, which has not only seriously damaged the interests of other countries, but also seriously damaged the international order that has been jointly maintained by all countries for a long time. to prevent iran from developing nuclear weapons, the united states has banned all companies from importing iranian oil. in september 2019, the us treasury department announced sanctions against six chinese companies and five chinese citizens for “knowingly transferring oil from iran in violation of washington’s sanctions against iran”, including freezing the assets and earnings of these entities in the united states. u.s. companies and citizens are prohibited from making payments and any transfer of u.s. assets with those sanctioned entities. such behavior of the united states completely ignores the position of the united nations and the interests of other countries, and is a challenge to and serious disturbance to the international order. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 21 published by scholink inc. 4. the specific path of china’s response to the unilateral sanctions of the united states is applicable at present, in the face of many serious unilateral sanctions by the united states, china has responded from the aspects of legislation, encouraging enterprises to respond reasonably and positively, and regional cooperation with other countries and regions, which has largely reduced the adverse impact of unilateral sanctions brought by the united states, and is also an encouragement for chinese entities (li, 2022). maintaining the international order is the responsibility and obligation of china as a major country, and it is reasonable to further improve the response path to the unilateral sanctions of the united states on the premise of abiding by international law. 4.1 we will accelerate the establishment of an anti-sanctions legal system the formulation and implementation of anti-sanctions measures in accordance with the law can not only help our enterprises facing unreasonable unilateral sanctions to solve the dilemma, but also have a positive impact on maintaining the image of our country as a responsible major country and enhancing our international influence. in view of unilateral sanctions, china currently has the anti-foreign sanctions law, which can be used in some specific circumstances. from the perspective of international law, the sanctions measures that can be used in our law are basically anti-sanctions measures, which means that only when a country becomes a sanctioned country can apply the law to respond, and can not take the initiative to apply to protect its own rights and interests. at present, the document “blocking measures” that can be applied to anti-sanctions is issued by the ministry of commerce of the state council of china, which is a category of departmental rules. compared with laws or administrative regulations, its legal effect is low, which results in that departmental rules can not play a very good role in restraining the situation that requires multi-department cooperation in the process of anti-sanctions. in many other countries, anti-sanctions-related measures are in the form of formal laws. on the other hand, the structure of anti-sanctions should be further improved, and special anti-sanctions agencies should be set up to avoid shirking responsibilities among various departments or overlapping responsibilities. 4.2 further clarify the scope of counter-sanctions at present, the scope of china’s anti-sanctions is mainly stipulated by the anti-sanction law and the unreliable entity system, which lacks obvious predictability. at the same time, the scope of anti-sanctions is too large and unclear, and it is difficult to determine in the actual process, which has a lot of adverse effects on the real economy. therefore, we should pay more attention to the implementability of measures in the path of improving anti-sanctions, and the criteria for the list should be further clarified. the first thing to do is to clarify the objective criteria for entry into the list, and the list has clear provisions explaining the consideration of the list of unreliable entities, mainly including the commercial purpose, the foreseeable degree of harm to our entity enterprises and the actual degree of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 22 published by scholink inc. damage ultimately caused. considering the impact on china’s entity enterprises, it should be as much as possible to reduce its unpredictability, so that china’s enterprises can prevent in advance, reduce their own losses, and the “non-commercial purpose” in the list should be deleted as appropriate. the problem with this clause is that it is so subjective that it cannot be predicted and avoided like other factors. the objective factors such as the degree of harm and damage to chinese enterprises should be emphasized. on the other hand, we can learn from the successful experience of other countries. in this regard, the eu implements the scope of blocking in the form of annexes to regulations, which has the advantage of high transparency and strong predictability. in this way, the scope and specific targets of counter-sanctions can be defined in the form of annexes or memoranda. 4.3 we will strengthen the development of legal personnel related to foreign affairs at the present stage, the number of foreign-related legal talents in china can no longer meet the market demand. in the process of enterprises responding to unreasonable unilateral sanctions of the united states, there are few talents who are familiar with extra-territorial laws and regulations and skilled in dealing with relevant legal relations, and there is a huge gap of legal talents in this aspect. facing this situation, chinese universities, government, foreign-related enterprises and law firms should cooperate and share information with each other: universities should reform the teaching content and strengthen the construction of international curriculum; law firms, enterprises and judicial departments provide internship training for college students; the state should build an employment platform for foreign-related talents and complete the closed-loop training of foreign-related legal talents. 5. conclusion unilateral sanctions are legal and logical. however, due to the lack of an international system that can effectively constrain unilateral sanctions and make them play their proper role, individual countries or economically integrated regions will abuse their own laws to impose unilateral sanctions and bully other countries to maintain their own or regional economic hegemony. what is more, the frequent use of this has become a common means to curb the normal functioning of other living areas of the country. such unilateral sanctions as a means to curb the development of other countries violates the principles and rules of international law, and also undermines the international environment maintained by the whole world. in order to deal with this situation and reduce the damage caused to our entity enterprises, our country should speed up the construction of anti-sanctions legal system on the basis of what has been built, further clarify the scope of anti-sanctions, strengthen the construction of foreign-related rule of law talents, and build a complete all-round rule of law system, so as to safeguard national sovereignty and our interests. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 23 published by scholink inc. references bai, y. (2018). from analysis of the legality of international sanctions against madagascar (master’s thesis). southwest university. li, q. (2022). from research on the legal issues of our country’s anti-unilateral economic sanctions. east china university of political science and law. wang, d. d. (2022). from state responsibility under international law. china university of political science and law. microsoft word elp-v3n1-p79 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 3, no. 1, 2020 www.scholink.org/ojs/index.php/elp 79 original paper verbal issues and its effect in controlling the scientific mentality and fundamentalist controversy mohamed ahmed shehata hussein1,2 1 department of islamic shariaa, pharos university in alexandria, alexandria, egypt 2 pharos university in alexandria, alexandria, egypt received: march 23, 2020 accepted: april 8, 2020 online published: may 21, 2020 doi:10.22158/elp.v3n1p79 url: http://dx.doi.org/10.22158/elp.v3n1p79 abstract the main research themes are: 1) the first requirement: definition of the verbal issue and its problems and diversity: a) definition of the verbal case and its importance; b) problems of reconciliation and explanation between philosophers and speakers; c) the diversity of the verbal case. 2) the second demand: control the scientific mindset and fundamentalist controversy: a) the issue of knowledge and almsdq; b) the ten categories; c) the issue of science between demonstration and justification. 3) conclusion and recommendations. 4) sources and references. keywords 3-8, lowercase, separated by comma, the verbal case, philosophers and speakers, mental discipline, scientific mentality, fundamentalist debate, ratified, existing and non-existent, ten categories, pampering and justification 1. introduction the aim of the research, which we have tried to promote and highlight through it, is: to demonstrate and clarify the methodology to look at the discourse and translate the controversy to find a scientific mindset capable of conscious awareness in a systematic and disciplined way, and can look at the contemporary reality and interact with him, on murad al-shara, and achieve the purposes and takes into account people’s needs in contemporary reality. hence, no ignorant or claimant can rush or practice sharia law, corrupt it on people, or falsify its facts. finally, this effort of the negligent and his effort, and the goods of the eyeballs, we ask god almighty to reconcile and recommend, if it is a blessing from him, and if there is a mistake or forget it is myself, we ask forgiveness of god almighty, and god and his messenger of innocence, and the end of my command that i tried to diligence otherwise, praise be to god for the reward, and my account in that www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 80 published by scholink inc. saying almighty: ْصاَل { ْلُت َوإِلَْيِه أُنِيبُ إِْن أُِريُد إاِلَّ اإْلِ ِ َعلَْيِه تََوكَّ َّ .ھود})88(َح َما اْستَطَْعُت َوَما تَْوفِيقِي إاِلَّ بِا (if i want only reform what i can and what reconcile only to god i trust in him) (88) and thank allah the god of everything. 2. the first requirement: definition of the verbal issue and its problems and diversity in an attempt to highlight a framed meaning of the verbal issue through which, we can reach a prominent mental cognitive image that is not ambiguous otherwise, we present the definition of the verbal issue and its problems and diversity, in three issues, namely: first: the definition of the verbal case and its importance, including: the definition of the verbal case in language. on the one hand, the scientific terminology on the other, then its importance. in the second issue we deal with the problems of reconciliation and explanation between philosophers and speakers, which has three points: the problem of the existence of the creator and the task of man and revelation, and the problem of divinity, and the problem of philosophy, ethics and mysticism. in the third issue, we deal with the diversity of the verbal issue, which has three points: the issue of the existent, the practical issue, the extraordinary measurement and the inverse of the conjugate measurement. this is as follows: 2.1 first: the definition of the verbal case and its importance in defining the verbal issue and its importance, we address it in terms of being a total officer in terms of scientific understanding and framing, in believing its applicability to what it feels about, and presenting it in three points. they are: the definition of the verbal issue in the language, then in the terminology scientists, and then its importance. this is as follows: 2.2.1 definition of the issue spoken in the language (the verbal case): we are in front of a descriptive compound, the purpose of which is the allocation and the statement, and we deal with them respectively: (case) and the origin of the case: spent on him to spend a judge, and the case, the latter source as the first, and the name: the case only. case: judiciary. what is the ruling and saying him come: (and your lord has judged that you will not worship except him) [isra: 23]. it may be in the sense of emptiness to say: he spent his need. and he struck him, and he killed him, as if he had finished. and (spent) love him died. it may be in the sense of performance and termination says his religion and spent it, and it ends with may be made sense of appreciation, said: judges made any capacity, said: (astqda) any person sir (a judge). and (the judge) spent the prince as a judge, such as ordered a prince. and (spent) something, and (spend) in the sense of finished and emptied. it has borrowed its meaning in the connotation of decisiveness and completion, that is, when it is seized by it must be resolved the matter is different, or sought for a solution or answer. the word (verbal) origin: km, and talk: the name of a race falls on a little and a lot. and the word shall be no less than three words, for it is the collection of a word, such as a bunch and a bark. kef, lam, and mim are original: one signifies a comprehensible pronunciation, and the other a surgeon. the first is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 81 published by scholink inc. attached to our subject and limits the meaning to it. the word is. as you say: i spoke to him i speak to him; he is my word, if i speak to you or to him. then they expand, and they call the one word that is understood, the story is a word, and the poem is a word long. they collect the word words and words, which is a useful component of the meaning of self-aware, perceived. 2.1.2 definition of the verbal case in the scientific terminology (the verbal case): there is a multiplicity of idiomatic use of the two words of the descriptive compound. to the result. they are fruitful, and useful in controversy. it is their saying: cause: say it is true to say to him: it is sincere or a liar in it. they said for the purpose of privatization: the simple issue: it is the truth and its meaning, either positive only, as we said, every human being necessarily animal, the meaning is only positive animal to man. either only the robbery is meant, as we say: there is no human being with a stone necessarily, the truth is nothing but the robbery of stone from man. the simple case: it is the judgment in what is believed in the same thing as the overall title abroad, investigated or estimated, or does not exist in it at all. the composite case: is the truth be healed of positive and negative, as we say: every human laughing not always, the meaning: positive laugh and robbed of him already. the potential compound of truth and lying is called, in terms of its inclusion of the verdict: an issue, and in its probability of truth and lying: news, and in terms of its usefulness judgment: news, and in terms of being part of the evidence: an introduction, and where to ask for evidence: required, and where it comes from evidence: as a result, it is in terms of science, and asks him: question, the same one, and differences of phrases with differences of considerations. they said: the real issue: is the verdict on the ratification of the subject already more general than to be located abroad. and the natural cause: it is where the same truth is judged, as we say: animal sex and human kind, produces: animal type, which is not permissible, means that the verdict in the total truth on all what is an individual according to the same total fact, whether that individual exists abroad or not. the issue that is measured with it: is what the mind is governed by not lose sight of the perception of the parties, as we say: the four pair, because of the middle of the present in the mind, which is split in equal, and the middle: what is associated with our saying: because, when it is said: because it is so. the (verbal) in the term has been addressed by scientists, and unified the term, and their words consistent in its meaning. for example, the word: what included two words attribution, and in many speakers falls only on the sentence compound useful, and is more specific than saying, the word is called the vocabulary. and the science of speech: a science researcher on things that the hostile knows. and the word, is: the meaning of the self, which is expressed in words is said in the words of myself. originally, the issue of words is not merely a principle or a rule on which it is built, but rather a rational means of reaching an intent in devising or resolving a dispute. in the investigation of the principles collected principle, a source mimi fit to denote the time, place, and event, called the introductions, where it is mentioned before proceeding to the intended purpose of science; it is also in the term are introductions that depend on the ratification and reasoning in art matters; if ratifications were the principles of ratification. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 82 published by scholink inc. it was formed to enumerate the conceptual and validating principles of the parts of science; then it is necessary to make many of the issues of other sciences part of the science on which it depends. therefore, some singled out the principles as credible. but it can be answered that these are general principles, and therefore can be shared by several sciences. the principles of validation are the issues that comprise the measurements of science, such as the argument of the book and the sunnah, and their evidence, and customary, rational and linguistic understanding. there is another meaning of the principles mentioned by ibn al-hajeb, which is in the sense of what begins with it before embarking on the intended, which is in the sense of introduction. this is the linguistic meaning that has been presented. he said: each science of the science must be in three things: the first: what is looking for its characteristics and effects required of it, that is, due to all scientific research, which is the subject. these effects are subjective symptoms. second: matters. these are mostly theoretical issues and may be self-evident and need to be alerted. third: what is based on the issues, which benefit the perceptions of the parties and vocabulary in the language, which is the conceptual principles, or ratification of the issues taken to prove, namely, the principles of ratification. here is a famous problem, which is: anyone who considered the subject of the sciences either want to the same subject, or the definition, or ratification of its existence, or objectivity. the first is included in the subjects of the issues, which are the parts of the issues, the second of the conceptual principles, the third of the principles of ratification, and the fourth of the introductions and principles of the initiation, it is not part separately. the answer to the former is to be said: the same subject, although included in the issues, but the severity of taking care of it, in that the intention of science to know its conditions and search for them, counted separately. or it is said: the issues are not the sum of the subjects and the loads and the proportions of each of them, but the loads attributed to the subjects, as quoted in the footnote aldwani reading. in it consideration; because it does not fit the logical saying: the issues are issues demand in science and topics either the subject of science or a type of it, and its payloads of such qualities. as for the second, it is said: the definition of the subject, although included in the conceptual principles, but count it separately to further take care of it, as previously. as for the third, it is said as it passed. or it is said: the count of ratification of the existence of the subject of the principles of ratification, as quoted by the sheikh tolerance; the principles of ratification are the issues that consist of measurements of science, as stipulated in the sign in explaining the faculties, and supported by the words of the sheikh. as for the fourth is said: the validation of objectivity when it stopped to embark on the foresight, and had more input in the knowledge of science and distinguish it from what is not, considered part of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 83 published by scholink inc. science forgiving. this is beyond potential. thus, we can conclude that the definition of the verbal case is: “a disciplined system of introductions, leading to a certain or almost certain result, and works to control mental understanding and perceptions”. 2.1.3 the importance of the verbal case from the most urgent needs of our time adjust mental thinking, mental work, where random spread in the cognitive reception, as well as in debate, theorizing and framing, and then needed to highlight the important issue, is a new old renewed, indispensable, which is the rule area, the control of the abstract mental process . man is logical in nature, there is nothing wrong with using logic as a methodological method in devising the legal provisions of its manifestations, namely: the book, sunnah, consensus and reason, as logic, as aristotle said: is a machine for all sciences, and is only a set of rules to which the human return to his mind is wrong. this is an end that all people, as well as scientists, seek. it affects sheikh abu hamed al-ghazali in his book (al-mustafi) that he said: “whoever does not know his logic has no confidence in his knowledge”, and therefore has made the introduction of his book referred to, a book in the fundamentals of jurisprudence, an expanded section in logic. and the science of the principles of jurisprudence depends a lot on the logical measurement, especially in the section of mental inheritance, and the door of the authoritative reason, and its reliance mainly on: measurement, but excludes both induction and representation, which is (measurement) by the terminology of the general jurists, and that means: that logic is not all in all its sections used in the development of judgments, but especially what benefits certainty, and the result necessary necessarily from the introductions, and is only a logical measurement. we do not see any harm in the adoption of the science of the principles of jurisprudence on some of the rules of logic in the process of devising the provisions of sharia. we must take into account the progress of contemporary humanities, and note that logic does not have any sanctity, but is just a means, although logic is not the only one used among the other sciences of the legislator of scholars and fundamentalists, as grammar, mathematics and calculation of probability also benefit in some sections jurisprudence, as grammar, to tighten and master the doctrine of jurisprudence and fundamentalism, and the mathematics, vlasadm in inheritance section of jurisprudence, and the calculation of probability, has been used in some modern theories in the scientific principles of jurisprudence and doctrines. we say: if we have proved the validity of some modern approaches and their usefulness in the development of ways to devise the provisions of islamic law would not hesitate to adopt, but we have not proved that, at least until the present. the logicians said: the subject of each science is the same as the issues of its issues, although it is different from the concept, heterogeneity of the kidney and his friends, and natural and its members. this is preceded by a holistic idea of the perception of existence, and where it is thought, the realization of the mind, the researched text and the subject of science in question, which we can call the ten assets. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 84 published by scholink inc. issues are the demands that are evidenced by them, which are a number of dispersed issues, collected by their participation in income for the purpose for which this science is written down, and therefore may overlap some issues in several sciences. he stated that the differentiation of science is the different purposes calling for codification, not the difference of subjects, not the payloads, otherwise, each issue and the door of each science separately; because of the different subject and portable, and their unity is not the cause of unity. the heads of science that he searches for in each logical science are three: its subject, its problems, its principles. the task of the science of origins is to prove or not to prove the issues of its subjects, such as: the rule of the emergence of the matter in the obligation, the search for proof of this issue is the science of assets. the reality of each science is actually the fact of its questions, which is not beyond them. the issues are the payloads attributed to the subjects, he said. the fundamentalist base is not a simple fact, but a complex of subject and portable. anything that investigates origins is part of his or her questions, whether original or subordinate. science is primarily intended to look for original issues. 2.2 problems of reconciliation and explanation between philosophers and speakers problems of reconciliation and explanation between philosophers and speakers, to clarify their issues in the controversy and fruit. it is a verbal officer, in the content and its usefulness. we address three points: the problem of the existence of the creator and the task of man and revelation, the problem of divinity, and the problem of philosophy, morality and mysticism. this is as follows: 2.2.1 problematic existence of the creator al-farabi is mentioned as representing the muslim philosophers, in talking about the possible and its existence, in talking about the world and its creator says: (the reason is not existent in itself, otherwise it does not exist, and should not exist in itself or not was not. it is in itself possible it has a condition not its principle, it is itself perishable, and from the one attributed to its principle is a necessity. al-farabi concludes by talking about the possible in himself, as in terms of himself does not exist, concludes this expression of the koran creatures, which are the assets of this world by saying: (everything is perishing except his face) anything is van and does not exist in itself, but god is the rest alone . this expression is mentioned in verse eighty-eight in surat al-qasas: ِ إِلًَھا آَخَر اَل إِلَهَ إاِلَّ ُھَو ُكلُّ َشْيٍء َھالٌِك إاِلَّ َوْجَھهُ لَهُ اْلُحْكُم َوإِلَْيهِ { ،)القصص(})88(تُْرَجُعونَ َواَل تَْدُع َمَع هللاَّ (and let not with god, another god, only god is everything is perished only his face to him wisdom and to him) farabi thus reconciles aristotle in the duty of existence and possible existence on the one hand, and god the creator, and other worlds created for him on the other, as if he says: but this verse of the existence of the world refers to him because of god created him and the existence of god the creator himself: no different from the existence possible by itself. one of the two reasons for the other in his presence. just as philosophy supports the view of islam in the connection between god the creator and creatures, islam supports the view of philosophy in the connection between the duty of being itself, and possible existence itself. this (annexation) of his flow and delight seems as if www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 85 published by scholink inc. attributed to philosophy, as well as what is attributed to islam: from one source and not from two different sources, although they are so, because god in islam is an actor and creator, the duty to exist in itself, and in aristotelian philosophy adored to others, not an actor , as well as to be a creator. in the evidence of the existence of god al-farabi uses the modern neoplatonic way in the so-called (descending controversy), (rising debate), and in talking about this istnas verse quranic verse which is: ،)فصلت(})53(يَتَبَيََّن لَُھْم أَنَّهُ اْلَحقُّ أََولَْم يَْكِف بَِربَِّك أَنَّهُ َعلَى ُكلِّ َشْيٍء َشِھيدٌ َسنُِريِھْم آيَاتِنَا فِي اآْلفَاِق َوفِي أَْنفُِسِھْم َحتَّى { “we shall show them our signs in the horizons and in themselves until it becomes clear to them that it is the truth, have not your lord stopped enough that it is for everything a martyr (53)}(fosselt)”. the text of his speech: you to notice the world of creation, you see the signs of workmanship and you to show him, and note the world of pure existence, and learn that there must be a self. if you consider the world of creation you are ascending. and if you consider the world of pure existence you come down know descend: that is not this, that and you know ascend: that is not this, this. farabi as if he says: there is evidence of the existence of god: the first evidence: to look at the creatures or what he calls is the world of creation, a world that comes after the world of command or the world of angels, before this is the world of god or the world of divine existence. the second evidence is to look at (pure existence), that is, to exist in terms of existence, and reach from this view that there is a duty to exist for itself, which is god. it is the reason for the existence of possible and obligatory, and possible is beyond god of the worlds, which is the world of command or angels, and the world of creation or creatures, especially man. this evidence of the existence of god descending; because of the existence of the duty of existence itself: knows the world of creatures. reason, therefore, in this guide moves from the top, the duty of existence itself, or god, to the bottom, which is the duty of being other, or creatures. then makes the verse cited here give two ways in the controversy: rookie, and descending, both, and the almighty said: ،)فصلت(})53(نَّهُ َعلَى ُكلِّ َشْيٍء َشِھيدٌ َسنُِريِھْم آيَاتِنَا فِي اآْلفَاِق َوفِي أَْنفُِسِھْم َحتَّى يَتَبَيََّن لَُھْم أَنَّهُ اْلَحقُّ أََولَْم يَْكِف بَِربَِّك أَ { “we shall show them our signs in the horizons and in themselves until it becomes clear to them that it is the truth, have not your lord stopped enough that it is for everything a martyr(53)}(fosselt)”. indicate in its appreciation the rising controversy. the emirates of god in the world of creatures, and in the hearts of mankind: give evidence of the existence of god right. they are workmanship. and every workmanship must have a maker. and the maker is allah almighty. it is the evidence of the lowest on the top, the evidence of creatures on god. and the world of creatures reveals the existence of god as though it is. and saying: (did not stop your lord that everything is a martyr), in his appreciation also refers to the controversy. it is the inference of the existence of god on the existence of the world of creatures, god is the creator. the emirate created him in the existence of this world; vojodh martyr on the existence of others, and this evidence from the highest to the lowest, and the highest presence is not the lowest presence of this. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 86 published by scholink inc. this philosophical structure of al-farabi consists of three elements: aristotelian element: the element of duty itself, and possible by itself, and the link between each other. the modern platonic element: the element of inference guide each other to be once from the top to the lowest, and again on the contrary from the lowest to the highest, with the designation of the face of each of the descending controversy, and the other controversy upward. islamic element, which is stated in the verse here. the conciliation attributed to him here is to contain the verse in his philosophical work on the content of the first two elements. as if these two elements are the meaning of the koranic verse, as if the koran in mind translates from philosophy, and the process of conciliation is: the process (submitted), (said) in a logical measurement aristotelian. as for god’s creation of the world, al-farabi tells the aristotelian style in the issuance of assets. he says: (sunday) observed itself was an ability. a world of deism. next is the world of the command being carried by the pen on the board, and the unit abounds, where: ْدَرةَ َما يَْغَشى{ ،)16:النجم(})16(إِْذ يَْغَشى السِّ (as sidra overlayes what is overlaid (16)) (alnagm: 16). and cast the soul and the word. a world of command. then followed by the throne, the chair, the heavens, and so forth: each swim praise, then spins on principle. there is a world of creation: he turns to the world of command and come to each individual, for the almighty said ).95:مريم(})95(َوُكلُُّھْم آتِيِه يَْوَم اْلقِيَاَمِة فَْرًدا{ (all of them are coming on the day of resurrection an individual (95)) (mary: 95). aristotle sees/that the duty to exist itself: a mind, and that the possible issuance of it is through reason. the duty of existence itself is one of each face, and abundance in existence is after itself. since it is as many possible. the way of issuing a multitude of possible on the duty of one existence from each side is that the duty of existence as a mind that reasoned himself first, and from his reasoning for one’ self arises first mind. then there will be with the duty of being itself and the duty to exist with others, which is the first mind. the first mind makes sense of the existence of itself, and of itself. and by reasoning for the duty of existence itself created a second mind, and for his reasoning for himself arises first astronomy. the second mind is the first before it, and the same as well. the first astronomy, and through his reasoning of the first mind a third mind arises. by reasoning for himself, the same second ark arises, and through his reasoning for the first ark, an offense for the second ark arises. and it continues in the emergence of minds, and astronomy bnfosha and criminality in this way: the mind by reasoning mind before him arises another mind, and his own reason for the same arises a new astronomy, and minded by the astronomy before the offense arises astronomy, until the minds reach the effective mind, and reach the orbits to the orbit of the moon. here ends the world of minds at aristotle, a world arises from the duty of existence itself as a mind, and the assets found so far by the end of minds are two types of existence, be: first: the type of duty itself, and one is one. second: the kind of duty to exist with others, which is possible in the world of minds and astronomy. these two types are very different; while one www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 87 published by scholink inc. does not accept abundance at all, the other accepts infinite abundance, as well as that one does not need in his presence to the other, while the other needs in his presence or actually to the other. the last mind in the world of minds-n aristotle’ conception-an effective mind, relates to man in the world of creatures after the minds, and spills over him by impact. farabi in borrowing the aristotelian pattern in the way of the existence of assets after god, as he is keen to consider islam expresses this aristotelian style in another expression provides to islam, what came from the attributes of god, and in particular my capacity: science and what it also came to the angels after participating aristotle in the unity of the first, which is the duty to exist in itself, and god at farabi, he expressed the term; “observed in the sense” science, rather than the term: “mind“ used by aristotle; because farabican not from the islamic point of view to god: (mind) as aristotle made; “so he says” observed sunday itself was the ability. what is meant by challenge is the one god, and the meaning: god is the luck and knowledge of himself, so his ability to create and find, as he says: “noticed the ability (i.e., the same god) required the second flag, which includes many, and there is the flag of godhead, the first flag is the science of god for himself”. and from god and his ability, and his knowledge of himself: consists of what he calls the world of god, which is equal to the area of duty itself aristotle, which is one absolute unit of each face, and farabi was obliged to contradict aristotle in the content of god’s area, because god as stated in the koran has many qualities of them: ability, science, but did not mention the rest of the qualities of god in order to abide by aristotle’s approach to the existence of the possible after the duty of existence directly, based on his attachment to himself, abundance in the possible after the duty of existence itself based on his reasoning, starting with the first mind, but this harmony between al-farabi and aristotle accident because he grew up after the prudence of the duty of existence itself for itself, and there is no in the lam says of the occurrence of the attributes of god, as in the mental qualities they see the controversy and verbal self-appointed, and those who say it is self, they see old self feet. this drawback may be one of the results (reconciling) between philosophy and islam practiced by al-farabi, then goes on to mention what is in islam-in his conception-a marketer of the world of possible minds, after the duty of existence itself, when aristotle and what he sees here as a marketer of minds is the angels, and the angels have after god another world better than the world of man, as the minds-when aristotle-to the effective mind, another world better than the world of man, after the duty of existence itself, he says: (followed by the world of the pen is being carried on the board and the unity abounds, where sidra overlaid what he fades, casts the soul and angels and there is a world of command, and sidra is the ultimate d separation in his view between the world of angels and the world of man, a meeting where the prophet peace be upon him gabriel from the world of creation to the world of angels, has referred to this expression to the verse in the verse: ْدَرةَ َما يَْغَشى ) 15(ِعْنَدَھا َجنَّةُ اْلَمأَْوى ) 14(ِعْنَد ِسْدَرِة اْلُمْنتََھى ) 13(َولَقَْد َرآهُ نَْزلَةً أُْخَرى { َما َزاَغ اْلبََصُر )16(إِْذ يَْغَشى السِّ ،)النجم(})17(َوَما طََغى {he saw another cataract (13) at the end of the lapidary (14) had a paradise for shelter (15) when sidra www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 88 published by scholink inc. is overwhelmed, he is not overwhelmed (16), and the vision does not overwhelm (17)}(alnagm). the meaning of al-farabi to include this verse in what is spoken by the world of command is to confirm that there is a separation between what he calls the world of angels or the world of command, and the world of the human in which the apostles live peace be upon them, a chapter in the degree and value before it is a chapter to distinguish between two worlds they differ in nature and origin, as he wants to mention that when sidra al-muntah meets the world of spirit, evil and invisibility, the world of the visible and the witness, which is the world of man. 2.2.2 the problem of divinity philosophers and speakers discussed the idea of divinity, since they got acquainted with the words of the greek philosophers. muslim scholars have attempted to address them and express the muslim perception of the same god. it is months of presentation of this controversy took a response, ibn sina, the mu’tazila and the ash’aras, are known to be the men of retirement who initiated the mental debate about (god), they created the so-called verbal controversy, or what is known as theology. then emerged muslim philosophers, and the advantage of their argument based on domestication or dependence on greek thought, and on the style of the need as well. then the ash’ari school was formed and planned for itself a curriculum based on guiding the science of faith. whether the men of this school took themselves to abide by this curriculum or violated it in some of its phases, the ash’ar draw for themselves this approach. al-ghazali then attacked in his book “the philosophers’s panting” (tahafatalfalasifa) ibn sina representative of muslim philosophers, as well as aristotle representative of greek thought. however, the people of mu’tazila, such as the men of the ash’ari school, both aimed at making them in need, and in their human controversy to defend the doctrine. the world, the cause of existence on the one hand, and the teachings of islam in god on the other. accordingly, muslim philosophers became in a position to meet with speakers, although the last goal of all of them was to preserve the same god from being misunderstood by the muslim in his belief. but the way the speakers in its entirety is like pushing a response from it, and the way of philosophers is like annexing and gathering it. in this we present the opinion of ibn sina, a representative of the muslim philosophers, and then follow the opinion of speakers between mu'tazila and poets, which is an expression of the general character of each group of them. -islamic philosophy and divinity and ibn sina: the philosophy of muslims in the cause of divine philosophy was not to follow the philosophy of a particular greek school beyond nature, nor is it the sum of the greek schools in this aspect combined, nor are they purely the views of islam, but rather mental attempts that have linked intellectual frameworks with different themes of thought, greek, eastern, logical, mystic, and diverse religious teachings: christian and islamic. the history of philosophy then speaks of a process of conciliation that dominated the character of human philosophy following the weakness of originality or imamate in greek philosophical schools after aristotle’s death. so that philosophy emerged in baghdad, the capital www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 89 published by scholink inc. of the islamic caliphate at that time, and philosophy muslims appeared their views in many aspects of existence after the mid-eighth century ad. philosophy did not re-emerge in baghdad at this time, only after it passed the city of alexandria, and remained for a long time for more than four centuries, and then moved to the near east, and also settled for a long time in his schools, most famous school edessa, and school nusaybin, as philosophy did not reach baghdad, however, has healed various elements of greek thought on its various schools of diversity, as well as from the pagan and christian popular religions, and has also added a lot of eastern disposition and mental explanations of some aryan religions. when avicenna received philosophy, and then began to explain, on the divine side, and is the last image of islamic philosophy and divinity in the east, a picture characterized by clarity and frequent explanation, explanation and proof, although his work in this essence and methodology did not differ from the work of other muslim philosophers of the east like the canadian. avicenna considered one of the medieval islamic philosophers before greek internal philosophy, even in the post-nature aspect, as an almost infallible wisdom. at the same time, he did not abandon his belief in islam, but wished to add to his belief as a supporter of him. on the one hand the philosophical mind. it began to him that if the wisdom agreed which is philosophy, and revelation, what they agreed was confirmed in health, and certainty in knowledge. avicenna’s view of god accordingly is a meeting point for the view of wisdom and the view of religion with him, in other words it is a collection of several different elements, some of which relate to the old philosophical schools, and others to the nature of religions, including islam. and (god) in the eyes of avicenna: the duty of existence, absolute good, overflowed by others, the creator is capable, and murid, and the world of the heavens and the earth, to the last described, including: 1) duty of existence: a symbol of the aristotelian idea in the first cause. 2) absolute good: a symbol of the idea of platonism in the ideal. 3) overflowed by others: a description of the supreme nature in the view of modern platonism. 4) a capable creator, nothing hidden in the earth or in the sky, from the descriptions of god in the koran. considering what do these four kinds of descriptions of ibn sina in his explanation of the same god of each other fit? the duty to exist is an expression of aristotle that includes the existence that governs the mind by his necessity of himself, and that what he believed is lacking in his existence to others, and that he is not expected to have another situation and description, did not have the first thing, it is based himself, dispensed with others, the constant does not change, which is for this whole all perfect. it also includes the fact that what he has in existence is due to his existence to him, he is less perfect than that, and finally includes the unity of the self, which is (what he believed) the unity of the truth and its concept, its unity in every way, which is therefore not self and more, and not a vehicle in the perception of mind it has two parts and more. what is included in the duty to exist in this way if placed in his description of the first cause in the description of god is attributed to plato in determining the ideal of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 90 published by scholink inc. his ideal: that the absolute good, it seems that nothing between the two types are incompatible with each other. but after a little meditation, it is clear that the description of the first cause of good or any other description after proving that it is obligatory to exist is poor harmony or is a link between it because it is one of the characteristics of the duty of existence—as we have said, that it is one of each face, in fact and in perception after describing the first cause as being obligatory, it became one of its supplies then that it was one in the self and the concept. if it was described as good after that and the good was not required by a mental necessity for the meaning of the duty to exist, it would become a self-characteristic, or in other words, to conceive the mind of a prescription. there remains (what is believed) the duty to exist one in concept, though one remains in self and imposition. it is one of each face. therefore, it affects the solution of this problem from the controversy of the modern platonic men, as well as the men of christian philosophy in the east, especially the nestorians, that the unity of the first order or the unity of god is not harmed by describing it in other qualities, if these qualities are not in fact things or things behind the self, but she and the same thing. the value of this solution is evident from the fact that it did not increase the composition in the mental perception: that there is a prescribed character. if we try to look then to know the harmony or incompatibility between the description of the first cause of duty first, and then described that the other overflowed, we would find at least that the second description is not a new addition to aristotle the owner of the duty to exist, and we also found that the description of the first cause overflowing others after describing the duty of existence, he may feel the change and instability in one case, and therefore see plotinus, the owner of this second description used in depicting the flood of the first cause something of imagination and poetry, similar to flooding in the sun, and meant to two things in this: that the flood is normal. it is conceived in the aspect of the first cause since the conception of man to it, and that it does not change itself or its unity anything, such as radiation for the sun in both matters. adding something like this here to add the flood to the duty to exist in the description of the first cause if not illusory of some inconsistency as felt by plotin in the attempt to lift it on the previous face, it is no more meaningful that it is authoring and collection only for the same authorship and collection, as well as. it is conducive to the legal structure in the concept of the first cause and the perception of the mind, as it will become described as, and that the unity of each face, which is a necessity of being obligatory. the description of creation, power, and will, while it leads to the legal structure in the concept of the illness that has become obligatory—because it is a description of what was not included in the meaning of the duty to exist—it is also clearly opposed if combined with the overflow in the description of the first cause, or higher nature, or allah. creation, power, and will mean meanings of action and influence based on the choice of god or the first cause if described, while describing the flood after or before indicates that the sequence of assets by nature, which is necessary by nature, is not subject to choice as does not relate to the statement of the act in general. ibn sina in his collection in describing the first www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 91 published by scholink inc. cause of these two types: the type of action and influence on the other—when he describes it as creation, and the type of compulsion and printing on the other when he describes the flood was not the owner of the choice in this combination, i think, but what was forced to satisfy religion for the sake of philosophy or the limitation of his philosophy to explain what was quoted in this regard from the school of alexandria in its last era, which is the era of reconciling christianity with thought, philosophy and mysticism. moreover, the description of the first cause of science and that it is a comprehensive science of everything in existence, leading to the meaning of instability on the same case in the same cause, because some of the subject of science, which is the viewer, as it is variable, and the science of events then renewed, while describing the cause itself the duty to exist inevitably requires its survival in one case. ibn sina tried to explain the qualities of creation, will, ability, and life to the last of those qualities, so as not to deviate from the meaning of science. it is mentioned here that the same duty to exist; because it is abstract, any pure mind, it is science as well. so there is nothing in the first circle of cause or god other than science, or in other words than self. in that attributes are due to types: qualities do not depart from the meaning of robbery of something which is the qualities of the self or what it requires the meaning of the duty of existence: unity and self-doing, and qualities are for the self by adding them to others such as ability and will, which they have added to the world. it may be too late in ibn sina that unity in the mental perception of the first bug by virtue of being obligatory, was not protected by this explanation, and that mental attempt: because there is still a self-described described. he also tried to show that the description of the first cause that its work is not incompatible with its survival in the same case, this survival necessitated by describing it as a must exist: because its work with the events of this world and its molecules is not through the occurrence in their time and times, but through a holistic principle, time element is the cause of change and renewal is not included in the first cause of science or the knowledge of god, although he entered in the object and subject. ibn sina does not notice an attempt to demonstrate the harmony of the description of the first cause of the flood with its description of creation, ability and will. some historians of philosophy try to explain the survival of this gap to him that logic or mental reasoning was not the only character of his philosophy, but its character: logic at the beginning and acted at the end, and in the field of logic asking him to explain, and in the field of mysticism incapable of man and prevails the light of insight. -the issue of divinity and al-mu’tazila the mental argument for aloofness about god was not based on a single approach on the divine side, although they aimed at one goal and purpose, as wayne sina painted, and did not commit themselves to a particular system of controversy known to others, as avicenna had made. it seems that they were pushing into the mental debate in the surprise of the problem after the other. so we see them faced more than one band. they used more than one method, borrowing more than one idea of post-nature thought. in the assets of the five mu’tazilites, which was said that continued bin ata is the one who www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 92 published by scholink inc. developed the doctrine of mu’tazila, and followed by amr bin obeid, a student of hassan al-basri, was said to be placed on the sequence of their imams, when the time of harun al-rashid classified them as two books, and between their doctrine, and built their doctrine on assets the five, which they called justice, monotheism, and enforcement of menstruation, and the status between the two houses, and the promotion of good and forbidding evil. we can find one of these origins that represents a point of contact between them and philosophers, a statement of monotheism, they meant the unity of god in reality and mental perception, that is, unity in every aspect and principle, and that philosophy based on the idea of the duty of existence. otherwise, if they wanted to unify the meaning of one self only in reality, it would be a common destiny between them and the rest of the speakers; therefore, their well-known treatment of the problem of qualities was the result of their acceptance of one idea from each side. from this treatment, they saw the first thing on the days of abu al-athil al-alaf that the qualities of alpari—the qualities of meanings-due to two attributes: science and life, then science and life are two cases or considerations, namely the eye of the self, and finally their opinion in its response to the self ibn sina, which we mechanism. as for their words about justice and promise and promises, and righteousness and fittest, in the right of god, may get them to subject them to the divine mandate of the logic of islam. -the issue of divinity and al ash’ara the ash’ari school initially chose to reconcile the views of the former leaders of the rhetorical debate to bring the muslims together on a single word. perhaps, this is a negative pattern in the combination and conciliation, and no less impact in the complexity and lack of access to the goal compared to the conciliation of ibn sina positive. they also used exegesis once, and said again the textual or positivist approach. the first is the mu'tazila method, and the other is for some of the salaf men of waqf. however, during the reign of al-ghazali, the ash’ari controversy developed in the problem of divinity: from the attempt to compose and combine the doctrines of speech and the past to attack avicenna in reconciling philosophy with religion, attacking greek philosophy in aristotle’s person and his book “the philosophers’s panting” (tahafatalfalasifa) clearly shows the religious irregularities committed by avicenna in his attempt to correct the greek thought and his suitability to islam begin in his view of: infidelity in the doctrine to the inability of philosophical evidence to reach the results it intended. however, ghazali and in his book “economy of belief” (al’iiqtasad fi al’iietqad) avicenna had accepted the method of avicenna and the thought of avicenna in solving the problem of divinity. which god almighty of: ability, will and others, as ibn sina spoke. the followers of this school, especially the late ones, gathered in their divine controversy and their composition on the problem of divinity, what abu hassan al-ash’ari saw in the reconciliation of the schools of thought “economy of belief” (al’iiqtasad fi al’iietqad). indeed, the problem of divinity in the islamic mental debate between avicenna and speakers is not a problem explained by the views of a group of them, and did not benefit faith in god through the controversy and amendments positively beneficial. on the contrary: the first worship of god to remain www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 93 published by scholink inc. the same supreme holy in alia without being placed in front of man and under his eyes for research and inspection, and without subjecting the universe and its infinite existence to identify man and his definition. then the first man-made mental that is not mixed with the holiness of religions, because that claimed to criticize, and the veto if the demolition is also for construction. 2.2.3 the problem of philosophy, ethics and mysticism the task of ethics in terms of the science of describing human behavior, and the development of principles derived from the years of life itself, the conditions of existence and goals and goals that can be developed and to draw up a plan of action in which man is consistent with these sunnah and circumstances and ends. this is what ethics is trying to answer important questions in this field, such as: anything is good? how should we act? why should we work this way without it? moral science tries to answer these questions through a set of doctrines, which are either by: the source from which the moral world comes out in his opinion, by the purpose he sets for human behavior, or by the subject to which his opinion relates, whether from the individual or in terms of the whole human community. -in terms of source: there are many moral doctrines to: the doctrine of heterogeneity and dependency: a doctrine that does not see man himself as a source to determine the moral values and behavior of man, but linking it in others, linking him to god and religious ethics based on this basis; moral and moral purpose, but other is the one who developed these principles after setting him the end. the doctrine of independence and non-guardianship of others in determining behavior: a doctrine that believes that the human mind can determine the actions and determine the moral values and moral purpose and human independent in this and do not need a message inspired by heaven, and plato and aristotle in their moral philosophy issued from this trend of independence regardless of any religious knowledge-although in reality they were not affected by the influence of the greeks’ religious doctrine, but in any case they took this independent direction. the doctrine of the will: it is the doctrine that believes that the human will dye the humanitarian work ethically, what is consistent with the strong will of the acts was in itself a virtuous behavior and what achieves this will was a moral goal, and the doctrine of the will is the doctrine embraced by nietzsche and schopenhur. in terms of the purpose of humanitarian action: ethical doctrines vary to: the doctrine of happiness: it is the doctrine that makes psychological happiness as an emitter and an end to the pursuit of man and his work. the doctrine of sensual pleasure: it is the one who directs human activity to the collection of sensual pleasure by describing the work connected to it virtue and good and aristip and put it from the thinkers of the greeks. this doctrine has evolved to make the purpose of humanitarian action, to remove distress and pain from the human soul and nietzsche opposed in this last picture that the request that the will of man is not a moratorium on this negative world but must be directed to positive action. the doctrine of utility: it is the doctrine that takes the benefit of the group benefit the individual www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 94 published by scholink inc. himself to the work of man and his motto: the greatest degree of happiness for as many as possible, and the builders of this doctrine and leaders bentham in the eighteenth century, and john stuart mill in the nineteenth century. the doctrine of perfection: a doctrine that determines the very moral work in human capacity and activity to connect the human towards perfection, and from his companions leibniz, kant, and shaftesbury. -in terms of the subject in which the moral outlook is concentrated: we find some moral doctrines, the most important of which are: the doctrine of the individual or self: it is the doctrine that comes from the sense of (i) and thinking about (i) himself, that is, the original instinct in the preservation of survival. community doctrine: it is a moral doctrine that takes from justice and love of humanity in general a moral goal of the individual pursuit and work. -ethical doctrines and ghazali: can we ask, in the light of moral doctrines, which are different, and not all of which are consistent with the moral view of religion, how to find imam al-ghazali among them or his position on them. what about the source of determining human behavior and moral principles? is it religion, mind, or will? what about the moral end? is it a human happiness psychological? or is it a physical sensual pleasure? or is it the benefit? or is it human perfection? what is the means to achieve the moral goal? is it the passivity of man in life and trying to strip and escape from it? or is it positive human and try to control it? al-ghazali sometimes depends on shara and reason together to clarify these views, and once depends on shara and inspiration together as well, and abolishes the mind in explaining and explaining, which is the preservation of the law, but then hesitated between the consideration of mind and consideration of inspiration and insight, and had to maintain shara always; a muslim scholar and imam, then he recognizes the mind next to the shariah a thousand greek thought and embraced the platonic or aristotelian view or are both in defining the moral law, and we may see him deny the mind and its value and turn his face to the sufi view and take what it sees as a source of knowledge which is inspiration, an alternative to the mind which is greek thought in his view. ghazali may appear echoing between the thought of islam and greek thought, and a mystical view of his moral views, ghazali echoed here between revelation, mind, and inspiration, all different sources, and often meet each other or against each other revelation is not contrary to the nature of the mind as a mind, but it may the work of a thinker occurred under the influence of other factors far from being considered the pure and ghazali mind. when we say that he relied on reason we mean that he relied mostly on greek thought, and here the message of revelation in islam often contradicts the thinking of greek philosophers. revelation is a divine message, a communication from god through the king to the prophet mustafa. it has holiness and infallibility. the mind is a human nature in which man travels as he moves and is influenced by what is affected by man in his environment, and inspiration reveals and reveals from man www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 95 published by scholink inc. to the divine presence that he is prepared to convey his view there. the average human who did not reach the state of detection and manifestation. the messenger is the one who intentionally inspired him, and was tasked with commissioning what he was inspired and his task of reporting and not the status of the message, and independent thinker relied on his human mind in what he sees, and is prone to error and righteousness because he is a human, and inspiring an independent man also relied on psychological struggle and spiritual sport, until it reaches what he calls case (disclosure), which tells what he sees there in the upper world, telling as a human has no infallibility, and not to say what the certainty, philosopher and inspiring, therefore, both human being trying to know, that the work of thought, and this by the struggle of himself, both prone to error in what he sees or in what tells. the messenger alone is infallible, and for saying the status of truth always because it is a house and the amount of it, and not what is the fruit of his intellectual or psychological efforts. because al-ghazali combines in his moral views between the law that is the message of revelation and greek thought, and then between the law and inspiration, he is a philosopher and mystic in his morals. it includes: -ghazali philosopher in his morals: in the book revival of the sciences of religion, al-ghazali organized philosophy and ethics. he added to the greek thought the treatment of islam between the slave and his lord, and between the slave and creation, which the muslim scholars had meant before. psychological, political and social influence on the schools of the greeks, and especially about the schools of plato and aristotle. the most important of those issues addressed: virtue, and what is virtue? then he addressed the way to attain virtue. he then addressed the moral purpose of collecting virtue and behavior. in each of these issues, al-ghazali linked sharaand mind. -virtue: virtue was once defined as the mind of the mind and the law, and mahmoud identified as: (middle), he also described the two parties, which is located between this center as vilified vain say in this: mahmoud mind and legitimacy is the center, which is virtue, and the parties vilified. and defines it again as (moderation) the four pillars of the soul, and the pillars of the soul is his forces, namely: the power of anger, and the power of lust, and the power of wisdom, justice, and says in this: and the power of anger and moderation is expressed by courage, and the strength of lust and moderation is expressed in chastity, the power of anger tends to moderation to the party of the increase is called recklessness, although it tends to weakness and decrease is called cowardice and chora, although the strength of lust to the party of the increase is named evil, decrease is called khmuda, but wisdom is called excessive, when used in corrupt purposes malicious, and is called negligence balha, and the middle is the one who specializes in the name of wisdom, and justice, if it does not have two parties: increase, decrease, but has against one and opposite: which is injustice, and if mothers of morality its origins are four: wisdom, courage, chastity, and justice. if astt four pillars and moderated and proportioned, got a good character is the power of science, the power of anger, the power of lust, and the power of justice between these three forces. as for the power of science, good and good in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 96 published by scholink inc. becoming so that it is easier to realize the difference between honesty and lying in words and between the right and wrong to believe, and between the beautiful and ugly in deeds, if repaired this power obtained from the fruit of wisdom, and wisdom is the head of good morals, which is where god said: أُولُواأْلَْلبَابِ { ُرإاِلَّ )البقرة(})269(يُْؤتِياْلِحْكَمةََمْنيََشاُءَوَمْنيُْؤتَاْلِحْكَمةَفَقَْدأُوتِيََخْيًراَكثِيًراَوَمايَذَّكَّ (wisdom) comes from whom he wills and who brings wisdom has been given much good and what is mentioned only oulu albab (269) (albaqarata). as for the power of anger, it is good for it to become constriction and its extinction to some extent required by (wisdom), as well as lust improved and goodness to be under the signal of wisdom, i mean the sign of reason and the law. the power of justice is the control of lust and anger under the signal of reason and sharia (wisdom) in mind example adviser marshal and the power of justice is the ability and example of the outlet of the sign of reason, and anger is implemented taha hussein. his example is a hunting dog. it is astot in which these qualities and moderation is good character at all, and what is moderated by each other is good character in addition to that particular sense, which improves some parts of his face without some. al-ghazali is very courteous and well presented. a combination of aristotle’s identification with plato’s professors of virtue, he was found by aristotle to identify it in the middle between two vilified parties, and famous for plato’s determination of justice or moderation between the three forces of self-not the four as ghazali mentioned here-the power of lust, the power of anger, and the power of wisdom. the power of justice, which increased by al-ghazali here is not known to plato only as a balance between these three forces, and not forces corresponding to them or one of them. and this balance is a virtue, and the balance does not happen to him unless the wisdom controls the other two forces the power of anger and lust. the way to collect the virtue and attain in human behavior as seen by ghazali is the sport of self with worship is not worship alone, but must be with the psychological sport so that the performance of worship with the desire and love, not with the resignation and hatred, and sport is not alone enough, but must with it of worship; because worship is meant to influence the heart. without worship, sports do not affect the heart, although it is easier to work. the sport and the mujahideen with worship together create a delicate heart and serenity with the pleasure and desire to bring virtuous work. as for the purpose of morality is to interrupt the love of the world, and entrenched the love of god, it is not something i love him to meet god almighty, not use all his money only on the face that leads him. his anger and lust of his savings is not used only on the face that connects to god, and that the balance of the balance of shara and reason, and then be happy with it, astlth him. psychological pleasure and spiritual pleasure is a final episode in the very work of the moral when ghazali, and immediately before the episode overcome the self-love of god without the love of the world, and not be something i love them to meet god. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 97 published by scholink inc. -ghazali sufi in his morals: in his ethics, al-ghazali does not depart from the moral philosopher al-ghazali in regarding religion as the source of his moral views. aristotle, where he abandoned him, replaced him with mystic inspiration. his approach to ethical research almost followed the approach of islamic philosophers before him, such as al-farabi and ibn sina. it is the initiation of logic and dependence upon entering into the search, even if this research close to completion, ignored logic and reason and replaced by that inspiration, which is the basis of mysticism and its pillar. here, on the mystical side in the ethics of ghazali almost limit his research to inspiration and its findings and introductions, and the meaning of this is that besides religion puts inspiration: as for talking about virtue and its limits, and the purpose of moral work, the exposure was subjected to research, not change and contrary to before. al-ghazali was particularly interested in inspiration. he who has revealed something to him, even if it is easy, through the path of inspiration and falling into the heart from where he does not know, has become aware of the health of the road, and who did not realize it from himself should never believe in him, the degree of knowledge of him is very dear therefore, evidence of sharia, experiences and anecdotes. the evidence includes the words of allah almighty: َ لََمَع اْلُمْحِسنِينَ { ،)العنكبوت(})69(َوالَِّذيَن َجاَھُدوا فِينَا لَنَْھِديَنَُّھْم ُسبُلَنَا َوإِنَّ هللاَّ (and those who have struggled with us to guide them in our ways, and that god is with the benefactors (69) (alenkbwt). every wisdom appears from the heart to persevere in worship without learning, it is through disclosure and inspiration, it was said: “whoever did what he inherited, god knew what he did not know, and according to what he does in order to require paradise, and who did not do what he knows tah what he knows and did not he succeeds in what he does, so that it requires fire”. al-ghazali is here in his sufi ethics, looking at the struggle and the sport of self, and the renunciation of the world, and in the second part of the two main sections of his book (revival of the sciences of religion), he devoted, in this aspect, what must be the one who struggles and tamed himself, so as to purify his heart and throw in terms of not knowing the light of disclosure and inspiration. in order to do this must be the mujahid of the self on two things: first: to abandon the world and its joys altogether. this depicts what he wrote about defamation of the world, vilification of money, stinginess, vilification of ignorance and hypocrisy. the second thing: that seeks to poverty and asceticism, self-control and accountability and thinking in the same god almighty, and remember death, and called the first side balmkhalat, and called the second almnjiat. then it shows in clear clarity and detail jalal practical way for each adjective must be abandoned by the mujahid, and every other adjective must be sought by the mujahid, which indicates the depth of his relevance to life, and the many experiences in it, and his understanding of the self and conditions and habits. 2.3 the diversity of the verbal case verbal issues vary, in terms of mental evidence from which to reach judgment. each has its own method, and its usefulness. and then we present three of the most important, and that in three points. they are: the issue of assets, the issues of pregnancy and conditionality, and the exceptional and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 98 published by scholink inc. conjugate measurements. this is as follows: 2.3.1 the issue of the existing (almawjud) what has occupied man since ancient times is to control mental thinking and map it, so they were before consideration and research they must develop a conceptual frame of mind for what can be researched and considered and through it, and therefore researched muslim scholars in the question of existence, and since the greeks preceded them, in this and introduced in this issue branched issues to discuss beyond the presence and presence, and imagine a physical presence of the almighty existence of what they describe. the scholars of islam purified that matter by proving the monism of god, the almighty and its unilaterality, and that the living duty is the living duty that comes after all existence from his will and his will. hence, the existence is the creature, that is, the hidden object is permissible, that is, what god has created, and what can be found in the future or to appear for existence, and then can be divided according to the following: -universe/permissible/creature: o exists and created by god almighty and created. there is no god almighty has not yet been created (la mawjud), and there may be a future or not.  available (almawjud): biased (mathiz): it has a space that is physically aware of the sense, and occupies a specific area with dimensions in the perceived cosmic reality. impartial (la mutahayz): does not have a prominent physical presence aware of the sense of dimensions.  bias (mathiz): (jawhar) an essence, a self or an object, that has an independent existence, and appears for physical perception. (aard) an offer that does not exist on its own and needs essence to be solved, such as love, hate, victimhood and disease.  the essence (jawhar): moving by will (mutaharikbial’iiradat): it moves where it wants, whether it is rational or irrational, such as the absolute of animals, birds and fish. unmoved by will (ghyrmutaharikbial’iirada), which is completely immobile, such as inanimate objects and plants.  moving by will (mutaharikbial’iiradat): sane (aaqil): what was voluntarily moving rationally on the choice, and his mind in the sense of human reason. beast (bahima): what was his movement, will and thinking on the human logic and his mind of animals, birds and other terrestrial beings. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 99 published by scholink inc. 2.3.2 pregnant and conditional issues (alhamliatwaalshartiat) the evidence is either transcendental or mental. the transcription is called what was one of its introductions, and relates to the issue of proving either hyperbolic, such as the holy qur’an and the frequency of the sunnah. the mental evidence has occurred in instinct, and is called what was a complex of pure mentalities, such as consisting of two introductions, ratifications, which may not have in one part of the proportion of news, the issue of pregnancy. or, in one part, there is a news rate, which is the conditional case. they are being considered so as to serve between them a mental process of approaches, approaches and perception of relationships, and the underlying deduction, that can be judged. -pregnancy issue (alhamliat): it is what is judged by something on the other, that he or not he, and consists of two parts, the first convicted is the subject which is assigned to him (beginner in the news sentence, which is the actor in the event), while the second part is the verdict which is mobile (news in the sentence, news, a verb in the event phrase). the case consists of two sentences, namely two introductions, one minor and one large. and a mental process that requires by deleting a balanced, of the two components of the two sentences, a certain result, such as saying: man is a talking animal. (minor introduction) every talking animal is a thinker. (major introduction) by conducting a budget and a mental process, the following becomes clear: subject: in the foreground minor: is (human). and in the great introduction: is (all hthwan talking) mobile in the foreground: is (talking animal) and in the foreground is (thinker). with the deletion of the minor introduction, the subject of the major introduction, we conclude: the result, which is certain for the two introductions. the result: a human thinker. -the conditional case (alqadiatalshartiat): it is what is judged by something on others, that he or not he, and there is in one part of the proportion of the news, and the proportion between its parts are either in the case of affirmative action and communication, which is a related conditional issue. either the conditional issue in the news rate of stubbornness and separation so that the violation occurs in the meeting and abstinence, they do not come together in the context of a single introduction, a separate conditional issue. by conducting a mental process between the two components of the two preloads, a consequence of certainty or close. it includes: -the related conditional case (alqadiatalshartiatalmotslt): it is an ordinary conditional issue, but it relates to and is not separated or mutually reinforcing, some of which are macro and partial, each positive and negative. so we can find them in: www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 100 published by scholink inc. a fully connected conditional case, as we say: whenever the sun rises; the day is there. a conditional case that is totally negative, as we said: not at all if the sun is rising; the night exists. a partial, positive policing issue, as we said: it may be if the sun is rising; the day is there. a negative, partial policing issue, as we said: not whenever the sun was rising; the night exists. separate conditional case (alqadiatalshartiatalmunfasilat): it is an ordinary conditional case, but the real and non-real ones, both total and partial, and both macro and partial positive. so we can find them in: the real separate conditional issue: the conditional issue which he pronounced using (either) and (either) inhibit the combination of its parts, or the absence of them. including what is macro and partial, and both positive and negative. that’s like saying: the real, separate, conditional issue of the overall positive: as always, it is either the number is a pair, or an individual. the detached conditional issue is the real total negative: as we said, it is not always either. the number is a pair, or divided equally. the real, partial, detached conditional issue is, as we said, it could either be the number is a pair, or an individual. the detached conditional issue is the real total negative: as we said, it may not be either the number is a pair, or divided equally. discrete conditional case is not true: it is a conditional issue, which was pronounced using (either), and (either) inhibit the combination of its two parts, without free. or it is free without combination. including what is macro and partial, and both positive and negative. that’s like saying: separate non-real conditional case the separate, non-real conditional condition of the collection without the total free positives: as we say: the mobile is always either inanimate, or a plant. the separate, non-real conditional case that prevents collection without the total negative emptiness: as we said, the mobile is not always either a human being, or a spokesperson. the separate, non-real conditional non-collection conditional condition without the partial positive void: as we said, it may be either a mobile inanimate, or a plant. the separate, non-real conditional case that prevents collection without the partial negative void: as we said, it may not be that the moving person is a human being, or a spokesperson. separate non-real conditional non-plural conditional issue: a separate, non-real conditional, anti-free condition without a plural positive cation: as always, the body is either not black, or not white. a separate, non-real conditional, anti-void condition without a plural negative: as always, the body is not either white, or black. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 101 published by scholink inc. a separate, non-real conditional, anti-free condition without a partial positive combination: as we said, the body may be either not black, or not white. a separate, non-real conditional, anti-free condition without a negative partial combination: as we said, the body may not be either white, or black. 2.3.3 extraordinary measurement and conjugate measurement (alqiasalaistithnayiyu, walqiasalaiqtirani) -exceptional measurement (alqiasalaistithnayiy): it is the measurement in which the eye of the result or its antithesis is already mentioned, for example, our saying: if this is an object, it is biased, but it is an object. the result is that it is biased. consists of two introductions, or two useful sentences, the first is inherent, and consists of a presenter and a subsequent, between the inseparable correlation. the second sentence is the exception. the result is then after the mental process, which is certain. it is either connected, or disconnected. if it is connected, the appropriate for it is required, either it is necessary, or it is obliged to him (for the wanted). it is their saying: if it is necessary, it is necessary for the absence of the obligatory absence, such as: if we are required: that the sun is rising, we said: if the sun is rising, the day is there. (inherent) if we say: but the day does not exist. (exception) by performing the mental process we reach: presented in the inherent sentence is: daytime exists. next in lieutenant: the sun is horoscope. exception: daylight not found. unnecessary (result): the sun is not up. the extraordinary measure is binding on what is required, as is required: that daytime exists. we say: if the sun is rising, the day is there. the said: the sun is horoscope. necessary: daytime exists. if the extraordinary measurement is separate, the appropriate interview may be genuine, or not true. it is their saying: if it is true, it is correct to infer the existence of the interviewer on his absence, and his absence on his existence, because of the necessity of the impossibility of combining them and being free of them. as we say: number is either a pair, or an individual. it binds the existence of the individual’s absence from the spouse, as well as the necessity of having the spouse’s absence. however, if the interview is not true, either it is a non-plural barrier without preventing them from being free, or it is a non-placement barrier without preventing the plural in them. if the extraordinary measurement of his separate interview is not real prevent the collection without free, it is necessary to the existence of one absence of the other, for the impossibility of the collection, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 102 published by scholink inc. and does not require the absence of the presence of the other; however, if the extraordinary measurement of separate interview is not true free without the combination, it is necessary to the absence of one and the existence of the other, the impossibility of the absence of them, and does not require the absence of the other; -conjugated measurement (alqiasalaqtirani): it is the measurement in which the eye of the result or its antithesis is not already mentioned. for example, we say: the body is composed, and every author is updated. the result is that: the body is up to date. it is not what is produced nor its antithesis mentioned in the measurement. it appears that its elements are coupled, and the result is present in its chapters by force, not by force, that is, by article and not by image and body. this measurement was named in conjunction with the apparent association of its cases, without being mediated by an exception or remediation tool. 3. the second requirement: controlling the scientific mentality and fundamentalist controversy looking at the applicants to deal with the controversy, but finds special attention to control the work of this controversy, in order not to turn into mere chatter, and material for the adversary or an arena to deepen the differences and conflicts coated with a verbal substance, is not disciplined and useless. hence, we have paid special attention to controlling the scientific mentality and fundamentalist controversy, to reduce the distances of disagreement, and to find out the specific meanings of settled issues, and standards for subtraction, understanding and presentation. in the following we deal with issues of the most important they have drawn and became the features and basis of this control, and through three issues. we deal with the first issue: the issue of knowledge and almsdak, which has three points, namely: the full limit and the identification of incomplete, and the full drawing and incomplete drawing, language and appointment and what is between them. in the second issue, we deal with the ten categories, including three points: the application of theory to reality, the dimensions of reality, and the control of reality in the mental view. the third issue deals with the issue of science between pampering and justification, which has three points: the issue of science, the issue of evidence, pampering and justification, and the issue of scientific perception. this is as follows: 3.1 the issue of knowledge and almsdq (qadiatalmaeirifwal-masidaq) the issue of knowledge and truth, is the issue of limitation or definition, or control of the intended meaning, or control of the understanding of the term of the term is intended in the context of useful speech only. shows the meaning of the identifier and determine it. the definition is to refer an unknown meaning to a known meaning, which is either linguistic or idiomatic. the linguistic definition is to show the results of the search for the meaning of the word in its general linguistic status, and its relevance to the function of the word in the context of speech. the term idiomatic or artistic, it is a special definition developed to indicate a special meaning when the people of art or scholars, and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 103 published by scholink inc. knows that significance when they do not with others. in order to be correct in the definition of the terminology must have controls and conditions, perhaps the most important. that the definition is equal to the identifier in almsaddq, which is the whole inhibitor. that the definition is clearer and clearer than the identifier, it does not involve linguistic ambiguity or harder words than the identifier. the definition should not include looting where possible. the definition does not include the metaphor, and when the metaphor is not required to use metaphor free of the presumption or that the metaphor is famous. does not include the definition of strange language. the definition does not include the provisions of the identifier. we deal with three points: the full limit and the incomplete identification, the complete drawing and the incomplete drawing, the language and the appointment and what is between them. this is as follows: that the definition is equal to the identifier in almsaddq, which is the whole inhibitor. that the definition is clearer and clearer than the identifier, it does not involve linguistic ambiguity or harder words than the identifier. the definition should not include looting where possible. the definition does not include the metaphor, and when the metaphor is not required to use metaphor free of the presumption or that the metaphor is famous. does not include the definition of strange language. the definition does not include the provisions of the identifier. we deal with three points: the complete limit and the incomplete identification, the complete drawing and the incomplete drawing, the language and the designation between them. this is as follows: 3.1.1 full limit and incomplete identification (alhadualttamuwalhadualnaaqs) the definition of a limit means bringing the sex of the identifier near or far, with separation, or separation only. it is divided into two parts: definition of the full limit: be near sex and separation. like they say: man is a talking animal. definition of incomplete: be separation only, or sex far and separation. like they say: man is talking, or: man is a spoken being. 3.1.2 full and under-drawing (alrasmalttamuwal-rismalnaaqs) the definition of the drawing is intended to bring the sex of the identifier near or far, with the special, or only the special. it is divided into two parts: definition of full drawing: be near sex and special. like they say: man is a laughing animal. the definition of incomplete drawing: be private only, or sex far and private. like they said: man laughed. or: a human being laughing. 3.1.3 language, designation and between them (allughatwal-taeyinwamabaynahuma) this may be the definition of language or division or representation, as well as appointment, the division and representation show the meaning and shown by language and external things such as www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 104 published by scholink inc. proverbs, analogies and movements, but without appointment, then division and representation falls between the language and appointment. which: verbal definition: a definition of the word clearer in the mind of the recipient. such as: definition of algdnfr or coercion: is the lion. definition of the example: be rounded the mental image of the term ambiguous in the mind of the recipient similarly than is clearer and closer. like saying about the name it: such as mohammed, ahmed, zaid, shams, najm, moon ... definition of appointment: be by highlighting the direct reference to the identifier or caught, such as saying accompanied by reference to the identifier in the definition of something: this is such. definition of division: be alert on the sections defined and its consequences until it becomes clear in the mind of the recipient. like they say in the definition of science: ratification and perception. 3.2 the case of the ten categories (almuqawilataleushr) the issue of the ten categories, is to adjust the characterization of reality and bring it closer to the mind and match it to the perceptual perception, in order to raise the reality from the random physical state to the state of mind arranged and disciplined in the understanding and characterization and adaptation and pampering and judgment. we deal with three points: the application of theory to reality, and the dimensions of reality, and adjust the reality in mental consideration. this is as follows: 3.2.1 application of theory to reality it is necessary to get the perception of cognitive formation, in order to form a scientific image, a meaning based in the mind, and the image must be the dimensions necessary for the acquisition of perception, namely the dimensions of time, space, state, body, person, depth, height, color, king, proportion, action, action and movement, collected by one of them and called categories from them, the composition of the image and the meaning necessary for scientific awareness in the work of the jurist, has collected the nazim in saying: zaid al-taweel al-malik, the son of malik, …..….. was at home yesterday in his hand ghosn luahvtwa…………….. with ten categories only 3.2.2 dimensions of reality dimensions of reality are those that need to be familiar with the beholder and the searcher of judgment, along with the legitimate evidence, on the order and control. the controls of reality are expressed by the regulator in the above two houses, namely: (self, adjective, color, proportions, spatial circumstance, temporal circumstance, body, king, kings, verb, and emotion), which is to show as follows: zaid: is the person, substance and self. long: dimensions, part of the description. blue: the color is exactly the description. ibn malik: descent, proportion. at home: situational, location. yesterday: situational and time. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 105 published by scholink inc. cannes: the sequel to the place. mutaki: the authority. with his hand: king, power and ability. ghosn: owned, the place of ownership, and what the king is located. loah valtwa: action and emotion. 3.2.3 control of reality in the mental view when considering a judgment that has to do with the taxpayer, it is necessary to take into account the perception of the person in charge, so as to determine whether he is a person in charge of this matter or not. hadith al-sharif, from aisha, may allah be pleased with her, that she heard the messenger of allah (peace and blessings of allaah be upon him) say: “there is no divorce, nor is it forbidden”, this is what fainted in his mind vervr what he does not know, as if he had hate talked what he does not want, or he is wrong in the same thing, he speaks what he does not want to speak. if there is no closure, and there are no algebraic symptoms, such as insanity, sleep, fainting and the like, the person is one of the commissioners in what he did or said, no matter what he claimed, otherwise he would not. 3.3 the issue of science between pampering and justification the issue of science between pampering and justification, which is the mother issue, and the basis, and by which disciplines thought and jurisprudence, saying, deed and belief, and science is a machine and a queen of god that enables its owner to understand and link relations and introductions and friendships, and conduct a mental process with the ability to elicit and reach judgment. we address them in three points: the issue of science, the issue of evidence, pampering and justification, and the issue of scientific perception. this is as follows: 3.3.1 the issue of science science is an adjective that does not require discrimination that is likely to be the opposite. you say: the world is an accident, requires, that your knowledge of the world and the universe and what it is and its body and your knowledge of the occurrence and denial of the foot, without proving it or deny it is conceived by an inexperienced. the proof of the existence of the world and the occurrence or denial of it is the ratification of the rate. in devising judgments, it is a firm belief corresponding to reality for evidence. he needs to imagine to reach the judgment, and does not enter it. the fact that science and jurisprudence with the proof and clarity of evidence supports the agreement, and the size of the difference and makes it to the narrowest scope, and that the real jurist can wisdom and breadth of understanding to accommodate the views of others, and excuse each other because of the entry of probability in the interpretation of the evidence or suspicion in the evidence, they do not differ if the evidence is conclusive, the evidence is definitive, but they differ if the definitive imbalance in the evidence or indication to the suspicion, there is no denying the difference in the ruling on the evidence and acceptance if the evidence of the evidence is kaland and good, or the evidence is presumed in its significance, so that more than one meaning can be questioned, or the rule of the evidence itself, such as connotation “acc e”, it means that menstruation means purity, fajtlfoa are www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 106 published by scholink inc. women unaccustomed to three menstrual cycles or three ethar, in the understanding of the words of god almighty: البقرة228}اْلُمطَلَّقَاُت يَتََربَّْصَن بِأَْنفُِسِھنَّ ثاََلثَةَ قُُروءٍ { . (the divorced divorced themselves three times read) 228 albiqrat. and people in that houses, they are in consideration: who arrived to the ruling diligently for evidence, after looking at the assets and research in the branches, is a scientist. who arrived to rule because he took the diligence of others, without independence is given in the evidence, it is imitated. if he reached the judgment by the perception of the most likely party, it is the conjecture. if he arrived at the ruling with no weighting of two judgments on the other, it is doubt. if he reached the judgment by the perception of the likely party, it is an illusion. 3.3.2 the issue of evidence, demonstration and justification evidence: he is the guide and guide, and is used in the material and moral sense, which is in the term scientists: “what is correct to be considered legitimate”. they said: “the evidence is what could have been properly considered to know what he does not know having”. it is correct to consider, is the scientific method considered for the scholars, devoid of fancy, defamation, ignorance and deviation, which adheres to the principles of scientific jurisprudence and accepted by scholars. the most accurate consideration is the order of ratifications in the mind; then those ratifications, which are the means, if they are identical to their belongings, it is the right view or else it is a corrupt consideration. and then those matching certifications, either the entire science embraced science and pieces; it would be necessary for them also science and pieces sure, or that the whole thought of doubt or significance or evidences, it would also be necessary for suspicion and suspicion likely or likely or flat, or that some of them, and some of them science, also assuming that it did not reach certainty or firm proof from all sides; because the result is suspended to get all the introductions, if some of them, the result was suspended on suspicion. the fact that the mental process pampered by the issue of jurisprudence in the mind of the jurisprudent to the legitimacy, have stages, the first receiving science from the mouths of sheikhs and his family, with the presence of his queen to the recipient, and then training to analyze the recipient of information ideas, texts and sayings of scholars, and find relationships among them, and devise the provisions of the provisions and issues, all this is trained by the recipient at the stage called the request for knowledge, and then the professor approved by the professor if he is eligible to consider. he must have the queen of cognition, which is “the image of the self-speaking”, that is, the ability to imagine the matter and to have it in his mind for what it really is, and to link it to the evidence that the judgment has entrusted to it. the beholder of the issue after the knowledge has either acquired it on its face and enables it to look at the evidence and devise the judgment, or it has not been refined in his mind to be able to consider and deduction, or may need more knowledge and training in analysis and rooting and linking relationships, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 107 published by scholink inc. the validity of the examination of the evidence and the integrity of deduction. if one of the items that did not integrate has the right ability to look, the person if not in the company of professor sheikh supervised and evaluated and raised, it may not realize the truth of his order, and then may think himself a scientist. it really is not. because information and knowledge on day is not enough for science to get in the mind and mind of the world. the amount of information and the accumulation of knowledge does not benefit science, but benefit information, such as a notebook or computer slow and forgotten. if the person stops in the collection of the amount of information or accumulation of knowledge, the mental activity tries to find the relationships or links between information, or to analyze it, by purely personal measurement that may deviate, or shorten, or may be a person who lacks the scientific and jurisprudential queen originally, yet he insists on doing the mental process and wants access to legitimate rule. such a person may get some kind of intellectual calcification and inertia as he stood there, and then get fermentation because of the activity of his mind to find the links that he was unable to understand in his educational attainment, or he turned away from him thinking that he had obtained enough and became the ranks of scientists, the problem is that in this way he has closed on himself all the doors of understanding and the possibility of perception, and thinks that whenever he kept the content or read the papers and books was an increase in his knowledge or in support of his ability to deduce. thus, if he considers a question, he is unable to recognize it properly and thus fails to describe it properly, thus resulting in a lack of knowledge of its evidence, and his mind is in a mental process that transcends his sense of powerlessness and attaches that matter to the closest thing in his mind that he knows even by mistake. the judgment is then appended on the basis of this corrupt science, and therefore the judgment is definitely wrong. or, that he appends the matter to the nearest opinion or say he keeps it, or assigns it to another saying without checking the suitability of the matter with the evidence or the ruminant will against him or his author who may be dead. the problem is that this person does not recognize this truth properly, but claims that he brought it to the origins of forensic science; therefore we find it does not start from where the world begins, but is once the matter before it reaches the opinion held by them, and then try to search for this opinion or judgment on the texts and sayings that support it, that is, it is a process of justification and not evidence. the scientist who considers the question properly, considers it and describes it properly, and adapts it to its correct evidence, then diligently searches the evidence in terms of branches and branches, then descends upon it and draws judgment, that is, the last thing that the world reaches in the matter after its examination passes through consideration. in the evidence and its provisions and controls, it is the judgment or opinion on it, which was devised by the evidence and not justification. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 108 published by scholink inc. 3.3.3 the issue of scientific perception perception: it is necessary to obtain cognitive formation, so that the scientific image is formed, a meaning that exists in the mind, and the image must be the dimensions necessary for the acquisition of perception, namely the dimensions of time, space, situation, body, person, depth, height, color, king, proportion, action, emotion and movement, which have been presented in the case of categories ten. the perception is: the occurrence of the image in the speaking soul, which is necessary to establish a useful image in the focus of the conscious mind active in the speaker (beholder/researcher/science/jurist). that is why it is necessary to distinguish in the issue of science between pure science, which is a firm belief corresponding to reality for evidence, and other bodies based in the mind, may be from the world and result from its perception, but may fall short of evidence or evidence, or where the picture falls short in the mind of the beholder, or shorten the vigor of the beholder and sold in science. it includes: doubt: it is a prejudice that does not require a distinction between the parties to the matter, one of them is likely to be overturned. in which the beholder arrives at two statements in the matter not likely one over the other, and does not deny each other. no passport level parties. suspicion: it is the authorization of one of the parties on the other apparent authorization does not have to veto. it is the perception of the most likely party in the matter, without denying the swing and contradict its existence. illusion: it is the authorization of one of the parties to say in the matter a weak authorization does not require denial. it is the perception of the likely party in the matter. tradition: it is taking the doctrine of others (beholder/scholar/scholar/jurist) without evidence. it enters the student of science, and he may ask the matter with the evidence, and has no independence of the evidence, to become a headmaster and then be the people of the evidence, and move from the rank of imitator to the rank of hardworking beholder. as the questioner enters the questioner, and it is not for him to ask for evidence, and the doctrine of the mufti. 4. conclusion and recommendations there is no doubt that the ancients meant to control the issues of verbal controversy, mosul for the fruit and benefit, and argued in his issues, and agreed, as they disagreed in some of them between the evil and proven, and was the science of philosophy and subtraction strongly present, but they were the engine and reference officer. it is indisputable that this directly affected the science of the principles of jurisprudence, and the regularity of many of its issues on verbal issues through the method of discourse and controversy, which contributed to the formation of a control mentality of perception and scientific criticism, which benefited the fundamentalist work, and make it more scientific standard, and control benefit the jurist. we may suffer in our contemporary societies and dialectical circles from the problem of controlling the fundamentalist mentality and the corresponding in the discourse, and induction and contemporary deduction, and in dealing with modern issues. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 1, 2020 109 published by scholink inc. and then we tried to discuss that officer and the state of the argument that has arisen around him, and by tracking the approach of the verbal case and its impact on the fundamentalist mind, and reached a critical thought and perceptive, able to interact positively with reality and the requirements of rhetorical text and governance. the discussion came in two demands, each with three issues. as for the first requirement: in the definition of the verbal case and its problems and diversity, through: first: the definition of the verbal case and its importance. secondly, the problems of reconciling and explaining between philosophers and speakers. third, the diversity of the verbal case and its most important types. the second requirement: in controlling the scientific mindset and fundamentalist controversy, is located in: first: the issue of knowledge and almsdq. second, the issue of the ten categories. thirdly, the issue of science between pampering and justification. we conclude from this some recommendations, and summarize the most important in the following: attention to disciplined scientific discipline awareness. spreading the culture of conscious debate based on correct perceptions, identical to the reality and the realization of its relations with the legitimate text. attention to the dissemination of educational culture through the curricula of forensic education, to the dialectical issues in philosophical and verbal thought, and its contiguous frameworks with the issues of the principles of jurisprudence and rules, and presented with a simplified thanks, encourages to deal with them, and the discipline of mental consideration and perception. work to further organize scientific events, forums and conferences, to discuss the issues of verbal and philosophical debate and deeper understanding of its dimensions, and re-put them taking into account the developments and developments in reality and thought and fundamentalist consideration. work on the 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(1999). the investigator: yousef sheikh mohammed. modern library (5th ed.). model house, beirut, saida. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 28 original paper the conflict and coordination between intellectual property law and human rights law in the context of globalization and digitization siyu tan 1 1 university of leeds ls2 9jt, leeds, uk received: january 3, 2025 accepted: january 15, 2025 online published: january 17, 2025 doi:10.22158/elp.v8n1p28 url: http://dx.doi.org/10.22158/elp.v8n1p28 abstract in the current era of digitalization and globalization, both intellectual property law and human rights law are facing unprecedented challenges and opportunities. in the process of constantly seeking the balance between the two, there are inevitably multiple conflicts, such as excessive protection of intellectual property rights that may limit the freedom of knowledge acquisition guaranteed by human rights law, and human rights demands that may also impact the exclusivity of intellectual property rights. it is necessary to explore ways to coordinate the conflicts between them in order to build a more harmonious and sustainable socio-economic and cultural environment. this article aims to analyze in depth the conflict manifestations and root causes of these two types of laws in the context of digitization and globalization, and actively explore feasible strategies for coordinating conflicts. by elaborating on the concepts and connotations of the two, analyzing their conflicts in multiple aspects such as balancing interests and acquiring knowledge resources, and exploring various strategies for coordinating conflicts in this new era environment, including the improvement of legal systems and the enhancement of public awareness of rights and interests, in order to promote the harmonious coexistence of the two under the legal framework of modern society and jointly promote social development. keywords intellectual property law, human rights law, digital background, conflict resolution www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 29 published by scholink inc. 1. introduction the digital wave is sweeping across the world and changing the way of creating and utilizing the knowledge, while globalization has made this impact cross national borders, tightly linking countries and regions together. in this context, the complex relationship between intellectual property law and human rights law has become more subtle. the intellectual property law aims to protect the rights of creators of various intellectual achievements, stimulate innovation and creative expression (feng, x. q. & zhou, h. w., 2019, pp. 188-195); the purpose of human rights law is to safeguard the fundamental rights of individuals and groups, and to uphold core values such as human dignity, equality, and freedom. however, as these two laws operate on the track of digitization and globalization, a series of collisions inevitably arise. in the digital age, the speed and scope of knowledge dissemination are faster, and the difficulty of protecting intellectual property rights has also increased. meanwhile, globalization has blurred the boundaries of intellectual property, allowing multinational corporations to use and disseminate intellectual property globally, posing new challenges to the protection of intellectual property. on the other hand, the development of internet technology has made personal privacy and information security the focus of human rights law. at the same time, the trend of globalization has made the application of human rights law more extensive, taking into account the differences in culture, law, and values among different countries and regions. therefore, in the context of digitalization and globalization, the relationship between intellectual property law and human rights law has become more complex and subtle. we need to achieve a balance and coordination between protecting intellectual property rights and encouraging innovation, while also safeguarding the basic rights and dignity of individuals. 2. some significant conflicts between intellectual property law and human rights law in the context of digitization and globalization 2.1 the challenges caused by the expansion of intellectual property on education and academic research with the advent of the digital age, the speed and scope of knowledge dissemination have become faster and wider, which has brought new challenges and opportunities for intellectual property protection. in order to adapt to this new situation, intellectual property laws are constantly being revised and improved, and their protection scope has also expanded to a certain extent (gao, l., 2022, pp. 59-69). this expansion is mainly reflected in the protection of emerging fields such as digital media and network technology. for example, many countries have introduced relevant anti piracy laws to crack down on piracy in digital media; at the same time, some countries have also strengthened online copyright protection by monitoring and combating infringement through technological means. however, the expansion of intellectual property rights has also sparked some conflicts with human rights law. on the one hand, overly strict intellectual property protection may lead to technological barriers, hindering the dissemination and application of technology, thereby affecting the public’s right www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 30 published by scholink inc. to access knowledge and information. on the other hand, the expansion of intellectual property rights may also conflict with social public interests such as the public’s right to know and education. for example, in some cases, the holder of intellectual property may restrict others’ fair use of their work, which to some extent limits the public’s free access to and dissemination of knowledge. in addition, in the context of globalization, the cross-border protection of intellectual property rights has also brought new challenges. there are differences in intellectual property laws between different countries, which may lead to an increase in cross-border intellectual property disputes. at the same time, some developed countries may use their strong economic power and technological advantages to promote the internationalization of intellectual property protection, thereby to some extent harming the interests of developing countries and vulnerable groups. in the context of digitization and globalization, education and academic research may also face the following challenges under the expansion of intellectual property rights, firstly in the process of obtaining research materials being restricted. some academic databases and research resources are strictly protected by intellectual property rights, and obtaining these resources often requires paying high fees. for educational institutions and students, this may be a significant expense that limits their access to necessary information, especially for schools with limited funds and impoverished students, which may affect the depth and breadth of their learning and research. secondly, even if one has the ability to pay the fees, they may still be subject to various constraints when using the data due to complex authorization terms and usage restrictions. for example, it can only be used in specific devices or network environments, and cannot be copied or shared in large quantities, which makes the use of materials less flexible and convenient, reducing the efficiency of research and learning. in the fields of education and academia, the potential obstruction of academic exchange and knowledge dissemination is also a prominent issue. at present, some journals and academic platforms have set strict regulations on paper publication in order to protect their intellectual property rights. this may result in some valuable research findings being difficult to publish due to not meeting specific requirements, or the publication process being lengthy and complex, affecting the timeliness and breadth of academic communication. researchers may also face limitations when sharing their findings. for example, some intellectual property regulations may not allow researchers to freely share their papers with others unless they go through a cumbersome authorization process, which hinders the rapid dissemination of knowledge in the academic community and is not conducive to the development and innovation of the discipline. in the context of this conflict, it is likely to further lead to an imbalanced distribution of educational resources, resulting in a greater concentration of high-quality educational resources in developed regions. because developed regions have stronger economic and technological capabilities to access and use educational resources protected by intellectual property rights, while underdeveloped regions may face difficulties in fully enjoying these resources due to resource and funding shortages, further exacerbating the imbalance of educational resources. from a micro perspective, large and well-known www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 31 published by scholink inc. educational institutions may obtain more intellectual property authorizations and have richer educational resources with strong funds and influence. however, small educational institutions or ordinary schools may be at a disadvantage in terms of educational resources due to their inability to afford related expenses, which affects their teaching quality and student development, and is also not conducive to the realization of educational equity. finally, this conflict pattern may also potentially inhibit innovation and academic freedom. excessive intellectual property protection may make researchers overly concerned about infringement issues when conducting research, afraid to try new research ideas and methods easily, and afraid of violating certain intellectual property boundaries. this to some extent restricts researchers’ innovative thinking and is not conducive to academic breakthroughs and development. in academic research, if intellectual property disputes are accidentally involved, researchers may need to spend a lot of time and energy dealing with legal procedures and resolving disputes, which not only affects the research progress but may also have a negative impact on the reputation and career development of researchers, causing them to have concerns when innovating. 2.2 cultural diversity and the monopoly of ethnic intellectual property rights driven by the wave of globalization, the channels for cultural dissemination are increasing day by day, and its scope of influence has reached unprecedented breadth. a few developed countries, with their strong economic strength and technological support, occupy a pivotal position in the cultural industry and hold the dominant power. the intellectual property intensive cultural products they produce, such as hollywood blockbusters and works of popular music stars, have formed overwhelming market advantages on a global scale. this phenomenon not only makes it difficult for local cultural products to establish themselves in the international market, but also poses a serious threat to global cultural diversity. taking a certain country in africa as an example, its traditional ethnic dance and music were originally loved by the local people, but with the influx of western popular music, the local music culture gradually declined. the younger generation tends to imitate and pursue foreign cultures, leading to a discontinuity in the inheritance of local culture. from the perspective of human rights law, this cultural invasion essentially infringes upon the right of different ethnic groups to maintain and inherit their unique cultures (luo, a. j. & yang, y. b., 2010, pp. 26-28). on the other hand, in regions with relatively abundant ethnic or regional cultural resources, many precious traditional knowledge and folk arts contain profound wisdom and cultural connotations (qing, y., 2012, pp. 147-152). however, in the globalized commercial utilization, these valuable resources often fail to receive the respect and fair treatment they deserve. some multinational companies or institutions use this traditional knowledge for commercial development without permission, making huge profits from it. however, regions with rich traditional culture often lack corresponding awareness and means of intellectual property protection, and are unable to effectively protect the cultural knowledge forms that have been passed down for generations. for example, certain unique medical www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 32 published by scholink inc. knowledge originates from a remote tribe, and through generations of inheritance and development, has formed a unique treatment system. however, these pharmaceutical knowledge have been stolen by some pharmaceutical companies for free, sold at high prices after packaging and promotion, and the tribes that originally possessed these knowledge have not received any economic returns. a similar situation also occurs in the field of traditional handicrafts, where some exquisite handicrafts are extensively replicated and sold at low prices, leading to livelihood difficulties for artisans in their place of origin. this exploitative development of traditional cultural resources not only damages the economic interests of traditional regions, but also tramples on their development and cultural rights. 2.3 imbalance between privacy rights and data protection within the framework of intellectual property law the digital wave has led to the generation of massive amounts of data, many of which have commercial value. some companies often optimize their products, provide services, or conduct precision marketing by collecting, analyzing, and utilizing large amounts of user data, which can easily infringe upon users’ privacy rights. for example, some companies may collect personal information from users without their explicit consent, or use user data for purposes unrelated to providing services. the collection of these data often does not obtain sufficient user consent, seriously violating the privacy rights protected by human rights law. with the development of artificial intelligence technology, works created by artificial intelligence have also sparked a large number of disputes over intellectual property ownership. at the same time, the sources of data collected for training artificial intelligence systems and the mechanisms for protecting the rights of data subjects are not yet clear, which poses a threat to basic human rights such as privacy. in terms of intellectual property ownership of artificial intelligence works, due to the particularity of artificial intelligence, the generated works often involve the rights and interests of multiple parties, including developers, users, and data providers of artificial intelligence. however, the existing intellectual property legal framework often struggles to clearly define the rights and interests of these entities, leading to an imbalance in data protection in disputes over intellectual property ownership. on the one hand, developers of artificial intelligence may believe that their works generated through algorithms and models should enjoy copyright; on the other hand, data providers may believe that the raw data they provide plays a crucial role in the generation of the work and should also enjoy corresponding rights. this kind of controversy may not only lead to legal disputes, but also affect the innovation and development of artificial intelligence technology. in terms of specific cases, there have been multiple legal cases related to copyright of artificial intelligence works in china. for example, in the case of tencent v. yingxun for infringement of copyright and unfair competition, the court determined that the article in question was created by a creative team organized by the plaintiff, including an editorial team, product team, and technical team, using artificial intelligence software, and constituted a legal person’s work, which should be protected by copyright. this case reflects the complexity of copyright ownership for artificial intelligence works and highlights the importance of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 33 published by scholink inc. data protection in it. 3. the root causes of conflicts between intellectual property law and human rights law in the context of digitization and globalization 3.1 differences in interest demands and value orientation as a specialized legal system, the core purpose of intellectual property law is to protect and reflect the interests and needs of intellectual property owners, such as enterprises, creators, inventors, and other parties. by clearly granting these owners exclusive rights, intellectual property law not only provides them with a fertile ground for innovation, but also guarantees at the institutional level that their creative achievements and investment returns can be reasonably and effectively maintained (tan, m., 2017, p. 144). this exclusive design of rights aims to motivate more individuals and organizations to engage in knowledge innovation and artistic creation, thereby promoting cultural prosperity and technological progress throughout society. however, unlike intellectual property law, human rights law takes a more macro and universal perspective, focusing on safeguarding the fundamental rights of all individuals and groups of humanity. the human rights law emphasizes core values such as fairness, equality, and sustainable human development, and is committed to ensuring that every individual, regardless of their social status, economic conditions, or cultural background, can enjoy basic dignity and rights as a human being. these rights include but are not limited to the right to life, freedom, property rights, and the pursuit of happiness, which together form the cornerstone of human rights law. it is precisely because of the fundamental differences in interest orientation between these two legal systems that they may conflict in certain situations. the maximization of individual interests pursued by intellectual property law may sometimes come into conflict with the principles of fairness and equality advocated by human rights law (wang, g. z., 2017, pp. 70-72). finally, in terms of the value orientation of both, the value of intellectual property law is mainly reflected in encouraging innovation, promoting technological progress, and cultural prosperity. its core lies in safeguarding the enthusiasm of knowledge producers through exclusive rights to knowledge achievements. and human rights law takes the fundamental rights and dignity of human beings as its core values, such as freedom, equality, fairness, etc. when facing complex issues in the process of digitization and globalization, this difference in value bias can lead to many contradictions. 3.2 differences in normative logic the normative logic of intellectual property law is deeply rooted in the soil of private rights protection, emphasizing and implementing strict exclusive protection. from copyright to patent rights, each intellectual property right is an exclusive authorization for a specific object, which grants the right holder exclusive control over the intellectual property for a certain period of time (yan, y. h. & gan, x. l., 2012, pp. 12-21). this not only reflects respect for the individual labor achievements of creators and inventors, but also ensures through legal means that they can receive the due rewards from their intellectual labor, thereby encouraging more innovation and creativity (yang, c. r., 2006, pp. 12-16). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 34 published by scholink inc. in contrast, the logical starting point of human rights law is more based on the overall fairness and justice of society. the human rights law advocates a collective and universal concept of rights, emphasizing that human rights are fundamental rights that everyone can equally enjoy and should not be restricted by any specific private rights. this concept aims to safeguard the basic dignity and living conditions of all individuals, ensuring that everyone can enjoy equal rights and opportunities at all levels of society. the universality of human rights law enables it to transcend disputes over individual interests and examine and uphold fairness and justice in the entire society from a higher perspective. therefore, although intellectual property law and human rights law differ in the objects and methods of protection, they both play indispensable roles in their respective fields. the intellectual property law promotes social progress and innovation by protecting individual intellectual achievements; and human rights laws safeguard social fairness and justice by protecting the basic rights and interests of every individual. the two complement each other and jointly build a legal system that respects individual innovation while ensuring collective fairness. 4. coordination of conflicts between intellectual property law and human rights law in the context of digitization and globalization 4.1 legal policy adjustments 4.1.1 balance the level of intellectual property protection at the legislative level, we urgently need to re-examine and adjust the scope and duration of intellectual property protection. the purpose of this review is not to weaken the protection of intellectual property rights, but to seek a more balanced and socially beneficial protection mechanism. especially for knowledge fields that involve public interests and are closely related to basic human rights, such as education, healthcare, etc., we should consider appropriately lowering the threshold for intellectual property protection. this adjustment helps to promote the free dissemination of knowledge and enhance human capabilities. taking the education sector as an example, excessively high intellectual property protection thresholds may hinder the sharing and dissemination of educational resources, thereby affecting the fairness and accessibility of education. to alleviate this contradiction, we can develop special copyright policies for educational literature materials (zeng, t., 2020, pp. 272-293). for example, an “educational copyright licensing” mechanism can be established to allow educational institutions to obtain the permission to copy, distribute, and use specific literature materials for teaching purposes after paying reasonable fees. this can not only protect the legitimate rights and interests of intellectual property owners, but also promote the widespread dissemination and fair access to educational resources. in addition to the education sector, intellectual property protection in the medical field is also worth paying attention to. in the medical field, the intellectual property protection of some key medical technologies, drugs, and treatment methods may affect the treatment effectiveness and life health of patients. therefore, for medical knowledge closely related to basic human rights, we also need to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 35 published by scholink inc. consider protecting intellectual property while ensuring that the public can access these critical medical resources in a timely and fair manner. taking the “education copyright exception” policy implemented by a certain country in recent years as an example, the policy clearly stipulates that in certain circumstances, educational institutions can copy and disseminate specific literature materials for teaching purposes without obtaining permission from the copyright owner. the implementation of this policy greatly promotes the sharing and dissemination of educational resources, reduces education costs, and improves the popularity and quality of education. at the same time, the policy also safeguards the legitimate rights and interests of intellectual property owners from excessive infringement by setting reasonable restrictions, such as limiting the quantity and scope of copying, requiring copyright information to be indicated, etc. this successful case provides us with valuable reference experience and proves the necessity and feasibility of re-examining and adjusting the scope and duration of intellectual property protection at the legislative level. 4.1.2 emphasize the positioning of human rights in intellectual property policies when formulating intellectual property policies, we should consider human rights as an important factor and explicitly incorporate it into the policy-making system. this means that when constructing policy frameworks such as trade-related intellectual property agreements, our perspective cannot be limited solely to the interests of rights holders. on the contrary, we need to broaden our thinking and deeply consider the human rights protection needs of different countries and groups. human rights are universal and inalienable, including but not limited to the right to life, freedom, dignity, etc., which are fundamental rights that every individual should enjoy. therefore, when formulating intellectual property policies, we must ensure that these policies not only contribute to innovation and economic development, but also safeguard people’s basic human rights from infringement. at the same time, we should fully embody the values of fairness, equality, and development advocated by human rights law. this means that we must strive to ensure that intellectual property policies do not lead to unfair distribution of resources and do not exacerbate social inequality. we need to promote the sharing and dissemination of knowledge, and drive the overall progress and development of society through the formulation and implementation of policies. for example, when formulating trade-related intellectual property agreements, we can consider setting up provisions to safeguard the rights of developing countries and vulnerable groups in accessing knowledge, technology, and information. this can not only promote knowledge sharing and technology dissemination globally, but also promote fair trade and cooperation among countries. 4.2 deepening international cooperation and coordination in the context of deepening globalization, international organizations such as the united nations play a crucial role in promoting global governance and maintaining international order. seeking coordination and balance between intellectual property law and human rights law has become an important issue that international organizations urgently need to address. specifically, more effective cooperation www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 36 published by scholink inc. mechanisms can be established between the world intellectual property organization and the office of the high commissioner for human rights to jointly address global challenges. in addition, the protection of traditional knowledge is also an area worthy of attention. many traditional knowledge have unique cultural and practical value, but also face the risk of abuse and theft. how to protect traditional knowledge while respecting and safeguarding the rights of indigenous peoples and traditional communities is an urgent issue that needs to be addressed. through the cooperation between the world intellectual property organization and the office of the high commissioner for human rights, we can conduct in-depth research on the protection of traditional knowledge and develop targeted action frameworks and guidelines. in order to promote this process, the world intellectual property organization (wipo), the united nations human rights council and other international platforms can be used to actively establish an effective mechanism for coordinating intellectual property law and human rights law and supervise their implementation, regularly organize expert seminars, develop cooperative research plans, and promote in-depth understanding and cooperation between the two sides in the field of intellectual property law and human rights law through information sharing, experience exchange and other ways. in addition, actively promoting the participation and voice of developing countries, strengthening bilateral and multilateral dialogue between developed and developing countries on intellectual property and human rights issues, formulating more fair and reasonable international intellectual property rules, and reflecting human rights considerations are also extremely important measures. in the process of globalization, developing countries are in a relatively special position regarding intellectual property and human rights issues. it is necessary to ensure that developing countries can actively participate in the formulation of international intellectual property rules, fully express their demands for human rights protection, and prevent international intellectual property rules from being dominated by the interests of individual developed countries, which may harm the common human rights of people in developing countries. 5. summary in the wave of digitization and globalization, the conflict and coordination between intellectual property law and human rights law have become increasingly prominent, becoming a focus of international attention. this article explores how to achieve an effective balance between the two in the current era by deeply analyzing their inherent connections and potential contradictions. with the rapid development of digital technology, the scope of intellectual property protection continues to expand and the strength of protection continues to strengthen. however, this has also brought about a series of human rights issues, such as freedom of information and protection of privacy rights. how to protect intellectual property rights without infringing on individual human rights has become an urgent problem to be solved. this article reveals the conflict points between intellectual property law and human rights law in practical operation by analyzing specific cases, and proposes corresponding www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 37 published by scholink inc. solutions. meanwhile, this article also emphasizes the important role of government, enterprises, social organizations, and individuals in coordinating the relationship between intellectual property law and human rights law. only with the joint participation and active consultation of all parties can a joint force be formed to promote harmonious coexistence between the two. in the future, with the further deepening of digitization and globalization, the conflict and coordination issues between intellectual property law and human rights law will become more complex and varied. therefore, we need to continue to pay attention to the development trends in this field, strengthen international cooperation and exchanges, and jointly explore a more perfect legal system to better safeguard human innovation achievements and basic rights. in short, the conflict and coordination between intellectual property law and human rights law in the context of digitization and globalization is a long-term and complex process. we need to adopt an open, inclusive, and cooperative attitude, constantly explore and practice, and contribute wisdom and strength to achieve a balance and win-win situation between the two. references feng, x. q., & zhou, h. w. (2019). research on the public interest value orientation of intellectual property. xuehai, (01), 188-195. gao, l. (2022). on the balance of interests in intellectual property law in the digital age. zhejiang journal, (04), 59-69. luo, a. j., & yang, y. b. (2010). the “contradiction” in intellectual property rights—human rights and private rights. intelligence exploration, (06), 26-28. qing, y. (2012). philosophical reflection on intellectual property law: from the perspective of human rights. journal of yunnan university (law edition), (02), 147-152. tan, m. (2017). a brief discussion on the value orientation and legislative purpose of intellectual property law. chizi (mid to high), (01), 144. wang, g. z. (2017). a brief discussion on the balance theory in intellectual property law. net monthly journal, (01), 70-72. yan, y. h., & gan, x. l. (2012). the historical tradition and contemporary fate of the principle of public interest in intellectual property law. intellectual property, (09), 12-21. yang, c. r. (2006). the justice value orientation of intellectual property law. electronic intellectual property, (07), 12-16. zeng, t. (2020). intellectual property law that integrates public and private sectors. private law, (01), 272-293. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 3, 2023 www.scholink.org/ojs/index.php/elp 41 original paper research on the current situation, prospects and countermeasures of digital rmb chuan lin 1,2 & xinyi xia 2 1 school of international finance and trade, sichuan international studies university, chongqing 400030, china 2 center for country economics and international business studies, sichuan international studies university, chongqing 400030, china received: november 1, 2023 accepted: november 20, 2023 online published: november 30, 2023 doi:10.22158/elp.v6n3p41 url: http://dx.doi.org/10.22158/elp.v6n3p41 supported by: sichuan international studies university (sisu 202007). abstract in the economic environment of global economic recession, weak consumption and weakened momentum of economic recovery, due to the impact of the prolonged epidemic, the global economy has become more polarized, and the development of china’s digital rmb has also fallen into difficulties, and the complex international environment has led to china’s economic development is relatively unstable; however, because the world is entering the era of informationization, the development of the digital rmb is imminent. combined with the background of economic recovery in the post epidemic era, this paper analyzes and summarizes the current situation of digital rmb at this stage, studies the existing deficiencies of digital rmb, and ultimately puts forward four relevant countermeasures and targeted recommendations to promote the development of digital rmb, which mainly include strengthening the internationalization of rmb, continuing to make efforts to reduce the difficulties in payment, improving the relevant technology, and strengthening the measures of market supervision. keywords digital rmb, optimization strategy, internationalization, payment dilemma www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 42 published by scholink inc. 1. introduction nowadays, the global macroeconomic situation is grim, and digital currencies have become a popular trend in the development of the global financial sector. up to now, more than 110 countries and regions have begun to carry out central bank digital currency research and development, trial and wide-scale use and other related work to varying degrees. in 2022, china has experienced a complex and volatile external situation, such as the ukraine crisis, soaring inflation, and the federal reserve’s interest rate hike, as well as the internal risks of recurring epidemics and economic downturn. therefore, at the beginning of 2023, china’s economic situation is unstable for the time being, but due to the changes in the external environment and the gradual emergence of the effects of china’s policies, china’s economy is also slowly picking up, and china’s economic growth rate will also show the trend of the front low and the back high, and the gradual climb. accompanied by the gradual recovery and strengthening of china’s economic strength in recent years and the level of opening up to the outside world, the international status of the rmb has been enhanced, and the internationalization of the rmb has broad prospects for development. at present, seizing the opportunity of the digital economy era and continuously promoting the normalization and internationalization of the digital rmb is inevitably the trend of the times. it is thus clear that vigorously promoting the internationalization of the digital rmb is a correct strategy in line with china’s national conditions and policies. at the same time, in terms of national policy, the report of the 20th party congress proposes to promote the internationalization of rmb in an orderly manner. therefore, vigorously promoting the development of the internationalization of the rmb is one of the more important development directions that our country is now actively promoting. for china, in the future, the development of digital rmb can be achieved by vigorously exerting the core competitive advantages of national endorsement and issuance by the central bank, so as to explore convenient, sustainable and widely-used payment channels, promote the landing of a larger scale, and empower the high-quality development of the real economy, and at the same time, carry out the pilot of cross-border payment and international cooperation, and actively seek partners from abroad to accelerate the internationalization of the rmb through a combination of measures. however, in the process of the development of digital rmb, it still faces many dilemmas, for example, from the perspective of the long term, the development of digital rmb is a gradual process, which requires a longer period of time. at the same time, there are still some problems in the promotion and use, network technology and information supervision, which hinder the rapid and steady development of digital rmb. based on the current situation of the global central bank’s digital currency and the recent situation of the digital rmb, combining the global economic situation and the domestic economy, policies and other aspects, this paper profoundly researches the current situation of the digital rmb and the dilemmas it currently faces, comprehensively analyzes the problems related to the landing, promotion and development of the digital rmb, and puts forward four strategies on how to optimize the development of the digital rmb, in order to achieve the purpose of continuing to improve and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 43 published by scholink inc. strengthen the full development of the digital rmb, so as to further improve our country’s international status. in the existing literature, for the current digital economy environment, many scholars have also done corresponding research. for example, for the current situation of digital rmb, fang ming (2023) found through a study on the demand for cross-border rmb that the demand for cross-border rmb has been rising in key regions and areas as of february 2023; shen (2022) argued that the emergence of digital currencies is conducive to the integration of the international economy; and scholars such as song qinghua (2022) argued that the development of digital rmb has a profound impact on the monetary policy of the payment system and financial stability have far-reaching impacts. regarding the existing problems of digital rmb, numerous scholars have also conducted research, for example, wang weiling (2023) proposes through her research that the promotion of digital rmb faces the obstacles of increased costs and usage habits; li liza and wendy (2022) believe that at present, there is still a certain degree of incompatibility between the digital rmb and cross-border payment mechanisms; jiang (2023) proposes that numerous countries’ digital financial new infrastructures are still to be improved. as for the development strategy of digital rmb, numerous scholars at home and abroad have put forward different suggestions; lily zhang (2022) suggests that the information security system of digital rmb needs to be further improved; zhou guangyou and yang jiemeng (2022) suggest that they should actively participate in the global governance of digital finance, enable cross-border legal tender digital currency cooperation, and promote the internationalization of digital rmb. in the analysis of the above literature, it is found that most scholars propose that there are many existing problems and difficulties in the development of digital rmb, and on the basis of which they put forward corresponding optimization strategies. however, the combination of existing problems and solution strategies of digital rmb is still a little bit lacking, therefore, this paper will combine its current situation and problems to study, so as to put forward corresponding optimization strategies. based on the above analysis, this paper mainly puts forward the development prospect of digital rmb and the analysis of existing problems and countermeasures for the development of digital rmb through the pest analysis of the current situation of digital rmb. the innovation of this paper is that, through the analysis of the current situation of digital rmb, and based on the pest analysis of the advantages and disadvantages of digital rmb respectively, the whole aspect and multi-angle profound research, and finally put forward and about optimizing the development of digital rmb development road strategy. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 44 published by scholink inc. 2. pest analysis of the current status of digital rmb development 2.1 strengths and weaknesses analysis based on the political environment 2.1.1 advantages (1) strong policy support in his report to the 20th party congress, general secretary xi jinping pointed out that high-quality development is the primary task of building a modern socialist country in an all-round way. at the same time, he also pointed out that it is necessary to stimulate the vitality of the digital economy, enhance the effectiveness of the digital government, optimize the digital social environment, build a pattern of digital cooperation, build a firm barrier of digital security, and let the digital civilization benefit the people of all countries. at present and in the next period of time, the primary task of china’s monetary policy is to stabilize growth and expand domestic demand. therefore, in the next period of time, china has the conditions to maintain normal monetary policy for as long as possible and maintain currency stability. (2) political stability of the country under the correct leadership of the communist party of china (cpc), china has a stable political situation, stability and unity, and has taken a road of modernization with chinese characteristics. under the leadership of the cpc, based on the objective reality of china’s huge population size, with the goal requirement of common prosperity for all people, and the endogenous characteristics of coordinating material civilization and spiritual civilization, harmonious coexistence of human beings and nature, and taking the road of peaceful development, a solid material and technological foundation is the fundamental prerequisite for the modernization process of the chinese style. under the correct strategic deployment of the state’s economic policy, the chinese characteristics of china’s socialist modernization have become more prominent, and more historic achievements and historic changes have been made in economic construction. this is all a reflection of our government’s management system and management ability, which has also laid a solid political foundation for the further development of china’s digital rmb. to sum up, promoting new breakthroughs in high-quality economic development, realizing a significant leap in economic strength, scientific and technological strength, and comprehensive national power, and constantly consolidating the material and technological foundation have become the essential requirements of and the primary task facing the process of chinese-style modernization, and the strong support of national policies and the stability of the country’s political situation have laid a solid foundation for the digital rmb, and the prosperous development of the digital rmb is just around the corner. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 45 published by scholink inc. 2.1.2 disadvantages (1) low degree of rmb internationalization although china has shown a certain degree of growth in all aspects of trade, investment and currency exchange in recent years, china is still at a low level in terms of the degree of rmb internationalization. as of february 2023, according to the swift report, the proportion of rmb in the international payment and clearing system is not high, accounting for only 2.19% as a payment currency, which is far lower than that of the us dollar, the euro and the british pound (the combined proportion of the former three exceeds 80%). meanwhile, the rmb’s market share in cross-border trade finance business was 4.47% in february, ranking third. according to the rmb internationalization report 2022, the amount of rmb cross-border receipts and payments in the first half of 2022 was 20.32 trillion yuan, rising to 49.1% of the total cross-border receipts and payments in local and foreign currencies in the same period. furthermore, as of 2023 rmb is only widely used in some countries, for example, less than 10% of international trade settlements in hong kong, china, are settled in rmb, which shows that rmb is not sufficiently used in cross-border trade and investment; more importantly, since china’s financial system is not yet perfect, the degree of support for the internationalization of rmb is still very low. (2) bullied by international hegemony as the development of central bank digital currencies will significantly enhance financial freedom, central bank digital currencies will eventually become part of international reserve assets (song, 2022). however, today, when international commodities and international trade are dominated by the u.s. dollar, the digital rmb developed by china is undoubtedly a challenge to the u.s. dollar. in order to maintain the world monetary system with the us dollar as the main currency, in international trade, the western developed countries, which mainly use the us dollar, want to implement financial hegemony, impose economic blockade and financial sanctions on china, and try to use swift as the main settlement method for cross-border settlement and seize the fruits of china’s economic development with the advantage of ultra-low price. due to the rapid development of china’s digital rmb, the western developed countries led by the united states, by virtue of their scientific and technological and financial advantages, have tried to cut leeks by various means, obstructing or even preventing our country, in order to achieve the purpose of lowering the prices of commodities in china’s foreign trade, so as to obtain huge profits, and then exploiting the fruits of our country’s economic development. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 46 published by scholink inc. 2.2 strengths and weaknesses analysis based on the economic environment 2.2.1 advantages (1) favorable macroeconomic environment in 2022, due to the impact of the new crown epidemic, the overall performance of global consumption is weak, and the momentum of global economic recovery is weakening. affected by the long-term epidemic, although the global economic differentiation is increasing, but thanks to china’s monetary and fiscal policies, the impact on the economy is relatively controllable. but now due to the existence of the global industrial chain important processing and manufacturing links of some emerging economies are still insufficient production problems, and thus exacerbate the global supply and demand imbalance. in 2023, china’s epidemic has been strong and effective control, china’s total economic output solidly stepped up to 100 trillion yuan, accounting for the proportion of the world economy increased by 7.2 percentage points to 18.5%; per capita gdp and high-income national standard gap narrowed considerably, the socio-economic began to gradually recover, the macroeconomic environment as a whole is gradually improving. (2) accelerated digital transformation of enterprises as the state strongly supports the digital transformation of enterprises, many relevant economic policies have been introduced. as a new digital financial infrastructure, digital rmb is a modernization path with comparative advantages to accelerate the development of enterprises by combining digital rmb in the economic context of accelerating enterprise digital transformation. the sharing characteristics of digital rmb superimposed on the application of smart contracts, blockchain and other technologies can help the integration of business and finance, upgrading of fund management, and the new structure of application scenarios of state-owned enterprises from the level of digital technology, which is conducive to promoting the digital transformation and upgrading of state-owned enterprises’ finance (zhou xuefei, 2022). in summary, it can be concluded that in the era of digital economy, digital rmb has a better development prospect. 2.2.2 disadvantages (1) more pressure on domestic economic development at present, the contradiction between the people’s growing needs for a better life and the unbalanced and inadequate development is the main contradiction of the current chinese society. under the combined influence of many factors at home and abroad, china’s economic growth has slowed down in recent years has become the new normal, and the economic development in 2023 is facing the triple pressure of demand contraction, supply shock and weakening expectations, and how to effectively cope with this challenge has become an urgent scientific problem to be solved at present. (2) economic market mechanism to be improved since the digital rmb has no interest, this will make the digital rmb much less attractive. this is because if people use digital rmb they have to give up the interest income gained from using the current third-party platform, which increases the opportunity cost of using digital rmb, which in turn www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 47 published by scholink inc. may inhibit a part of the group from using digital rmb. at the same time, the current market competition, effective supply, power transformation and institutional innovation in china are not sufficient, which constrains the promotion and application of digital rmb. 2.3 strengths and weaknesses analysis based on the social environment 2.3.1 advantages (1) mobile payment is more perfect first of all, consumers have already developed the habit of paying with cell phones, and china’s mobile payment is far ahead in terms of user scale, transaction scale, and penetration rate. with the arrival of the new consumer era, new business models such as e-commerce, e-commerce live streaming, and online-offline integration have generated more application scenarios, and new consumer relationships based on social networks and new media are more conducive to promoting the promotion of digital rmb. secondly, as of september 2023, china’s mobile payment is in a more perfect state in china and the world. in the upstream of the industry chain are mobile operators, cell phone manufacturers, ic designers, chip manufacturers, etc., in the midstream are related enterprises based on mobile payment, such as banks, third-party payment companies, and major telecom operators, etc., and in the downstream are consumers and merchants, who can download the corresponding apps on their cell phones to realize mobile payment. from the perspective of the industry chain, china’s mobile payment is now quite perfect. (2) large social group base as we all know, china is a populous country with a large population base, especially since the reform and opening up, china’s population has been growing rapidly, especially in recent years china’s population growth rate has been very high. 2022 on the morning of september 17, 2022, the national bureau of statistics released the results of the 7th national population census, which showed that as of 00:00 on november 1, 2021, the population of the country totaled 1,411,780,000 people. according to the data released by the national bureau of statistics: from 2010 to 2021, the number of births in china was more than 20 million each year. from 2010 to 2021, china’s annual birth population increased from 16.5 million to 27.6 million. this means that there is a large base of social groups in china, both existing and potential digital rmb users, which is extremely favorable to the promotion and development of digital rmb. 2.3.2 disadvantages (1) wide development gap between urban and rural areas due to china’s vast territory, unbalanced development between regions, and uneven distribution of economic income between urban and rural residents, there are still some difficulties in realizing the widespread application of digital rmb. given the geographical differences between regions, there is still a long way to go in publicizing and popularizing the digital rmb. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 48 published by scholink inc. (2) the public’s knowledge of digital rmb is still shallow nowadays, most residents use traditional currencies for payment transactions. as the central bank digital rmb is a new thing, its promotion still lacks successful experience, effective cases and relevant data, coupled with china’s huge population base and economic volume, it can be expected that the promotion of digital rmb will face many difficulties. wang weiling (2023) stated that compared with traditional currencies it is found that the consumer population of digital rmb is relatively small nowadays, and most of the residents do not know much about e-money. therefore, issues such as the security of e-money have brought more doubts to the consumption of most of the masses. 2.4 analysis of strengths and weaknesses based on the technological environment 2.4.1 advantages (1) advanced technology at present, science and technology innovation, mainly characterized by digital economy, has turned into a major driving force to stimulate the momentum of development. the rapid development and constant integration of technologies such as big data, artificial intelligence, blockchain, cloud computing and other technologies with every aspect of economic development have resulted in a large number of new development models and requirements. since the new crown epidemic at the end of 2019, the digital economy of online lectures, online offices, online shopping, and so on, supported by digital technology, has developed greatly. at the same time, this has brought about a strong demand for online consumption and financial services. the rapid development of electronic payment in the form of alipay, wechat and other major forms, in the process of promoting the development of the digital economy, has also fostered a good behavioral pattern of the public to consume through electronic payment, thus better solving the public’s needs for online consumption and financial services, and facilitating the continuous improvement of the payment system in major cities. china has been at the forefront of the world in the research and development of legal tender, with a first-mover advantage.2022 during the two sessions of the national people’s congress, chen yulu, deputy governor of the people’s bank of china, said in an exclusive interview with a reporter from the china economic times that the research and development and promotion of digital currencies is a statutory duty of the central bank, and the people’s bank of china has carried out a long term, in-depth, systematic research and deployment, and is now steadily the pboc has conducted long-term, in-depth, systematic research and deployment, and is now steadily promoting the research and development of legal tender. in terms of issuance motivation, the digital rmb focuses mainly on meeting domestic market demand and is based on the modernization of the domestic payment system. in terms of issuance design, the digital rmb is a digitized form of the rmb, positioned as a substitute for the m0, and does not accrue interest. in terms of technical route, digital rmb does not preset a technical route, is not limited to the application of blockchain technology, and the use of unique “double offline” and other functions can make up for the shortcomings of the existing payment system, break transaction barriers, and meet diversified payment needs. controllable anonymity can help protect user privacy, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 49 published by scholink inc. and at the same time better carry out anti-money laundering, anti-terrorism, anti-drugs and cross-border gambling activities. (2) complete supply chain the people’s bank of china (pboc) established the legal digital currency research group in 2014, and has continued to promote the legal digital currency project dc/ep, and by the end of 2019, it had completed the top-level design, standardization, functionality research and development, and intermodulation testing of the legal digital currency. since april 2020, it has been conducting internal closed pilot tests first in shenzhen, suzhou, xiong’ an new area, and chengdu. in october 2020, the shenzhen in october 2020, shenzhen was the first city to launch the luohu digital rmb red packet campaign, bringing the digital rmb into the public’s life. on july 16, 2021, the digital rmb r&d working group released the “white paper on china’s digital rmb r&d progress”. in addition to the people’s bank of china, hong kong, china, also carried out research on legal tender in 2017, with the hong kong monetary authority leading a group of hong kong dollar-issuing banks to launch the lionrock project, a wholesale legal tender, and carried out cross-border payment technology tests with the people’s bank of china’s digital currency research institute. in october 2022, the digital rmb will be interconnected with hong kong’s rapid payment system, the “digital express”. 2.4.2 disadvantages first of all, as a new form of currency, digital rmb still faces many challenges before it can be practically applied to cross-border payment business. as private digital currencies are highly anonymous and support peer-to-peer transactions, the prohibition of transactions does not effectively restrain cryptocurrencies and stable coins, and even if financial institutions or payment institutions are prohibited from providing crypto-digital currency-related services in china, digital trading platforms set up outside china are able to continue to provide services for domestic investors “underground”. secondly, as the rmb has unlimited legal capacity, it can be used to provide services to domestic investors. second, while rmb has unlimited legal compensation, the use and receipt of digital rmb requires both parties to the transaction to have a smart device and a digital rmb wallet, making it difficult to fully realize the unlimited legal compensation of digital rmb. although the “double offline” function of digital rmb can realize netless payment, its normal use depends on the integrity of power supply and payment equipment, and it cannot be used in the event of power outage, while the use of cash in natural disasters is more favorable. in summary, the rapid development of information technology due to the rapid updating of modern technology makes it possible to avoid technological backwardness only through long-term evolution, continuous iteration, dynamic updating, regular evaluation and continuous optimization of the choice of technological paths. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 50 published by scholink inc. 3. analysis of the development prospects and existing problems of digital rmb 3.1 advantageous prospects of digital rmb digital rmb is a legal tender uniformly issued by the people's bank of china (pboc), which is operated and exchanged to the public with the participation of designated operating organizations. it belongs to the liabilities of the central bank, has unlimited egal tender, has the same legal effect as the rmb, and is equivalent to banknotes and coins. digital rmb can be considered as a digitized form of rmb, which is not on the same level as cryptocurrencies such as bitcoin and ether. at present, china’s digital rmb has entered the pilot stage. 3.1.1 reducing costs and increasing efficiency digital rmb inherits the advantages of cash point-to-point payment, instant settlement, convenience and speed, and makes up for the shortcomings of cash in digital circulation and multi-channel payment, which greatly reduces the cost of issuance and transaction, and also enables tracking transactions when necessary, playing a role in reducing illegal activities such as tax avoidance and money laundering. taking industrial and commercial bank of china (icbc) as an example, icbc, as one of the digital rmb operating organizations, has set up 39 provincial agents and 6 directly-affiliated operating organizations in beijing, tianjin, hebei, yangtze river delta, guangdong, hong kong, macao and the greater bay area, as well as many other places in the central and western parts of the country, reaching nearly 3,000 outlets to provide services to users. the number of cell phone terminals available for digital rmb in the pilot areas will reach about 30 million, indicating that the scope of application of digital rmb is gradually expanding, and that its convenient digital services also play a positive role in reducing costs and improving efficiency at the same time. 3.1.2 ensuring information security as the digital rmb has a full life-cycle management based on the legal tender status of the people’s bank of china for issuance, circulation, settlement and other processing, it has the characteristics of legal tender, consistency and non-tampering, which cannot be replaced by physical cash. at the same time, it is irreplaceable by physical cash due to its “double offline payment” function and “account loose coupling” technology design, based on the “central bank-commercial bank” dual-layer architecture, and the “central bank-commercial bank” dual-layer architecture. at the same time, due to the features of “double offline payment” function and “account loose coupling” technology design, based on “central bank-commercial bank” two-tier architecture, “distributed ledger” technology, etc., the digital rmb can realize controlled and anonymous payment even in the absence of the network or disconnected situation. this has a positive effect on the protection of personal privacy and the legitimate rights and interests of financial consumers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 51 published by scholink inc. 3.1.3 enhancing the effectiveness of monetary policy on the one hand, the implementation of digital rmb development can help expand the space for monetary policy. on the other hand, the implementation of the use of digital rmb is conducive to improving the central bank’s ability to monitor currency flows and organize the market, reducing intermediate losses in support of small and micro-enterprises, etc., and further improving the effectiveness of monetary policy regulation. 3.1.4 enhancing financial inclusion digital currency does not rely on physical outlets and manual services, and can obtain a larger service capacity with less labor input. in nigeria, for example, according to world bank statistics, about 38 million people in the country do not have a bank account, accounting for 36% of the adult population, if the “e naira” can be extended to all cell phone users, will greatly enhance the country’s financial inclusion, and promote the more direct and effective implementation of social transfers to enhance the well-being of the people. 3.2 problems of the digital rmb 3.2.1 risks to national and social credit systems first of all, today’s world has entered a turbulent transition period, and the international environment has become more complex. this is not just a problem on the economic level, but involves problems on the political level such as international rule-making and national competition. secondly, currency competition will become more intense. at present, it has become a trend for central banks around the world to compete to issue legal tender digital currencies. some western countries are worried that the digital rmb will become the world’s first widely used technology platform for legal tender digital currencies. they are worried that china may have an impact on the design of digital currency programs and standard-setting in the future, and may even set up payment barriers and charge high fees to impede the cross-border application of the digital rmb. 3.2.2 there is the problem of payment dilemma on the one hand, due to the natural lag in the formulation of laws, digital rmb faces the problems of disputes over its legal nature and conflicts with private digital currencies in china; on the other hand, cross-border payment of the central bank’s digital currencies involves the circulation of different currency zones, and the varying regulatory rules of different countries will be an obstacle (liza li, 2022). digital rmb is difficult to achieve unlimited legal tender for the time being. as digital rmb cross-border payment faces the legal problem of digital rmb. from the perspective of traditional monetary theory, legal tender is an inherent attribute of legal tender and an important symbol that distinguishes it from other currencies. however, digital rmb is very different from cash rmb, both in terms of the form of its existence and the method of payment. digital rmb is inherently more demanding on the recipient; it requires both the recipient and the payer to use a smart device and both to have opened a digital wallet. based on the current level of device penetration and supporting financial facilities, digital rmb cannot be used in all circumstances as cash rmb can be. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 52 published by scholink inc. 4. countermeasures research on the development of digital rmb 4.1 strengthening the internationalization of rmb the research and development process of china’s digital rmb has been at the forefront of the world. over the past ten years, under the guidance of the new development concept, china has comprehensively implemented the supply-side structural reform, formulated a series of regional major strategies of overall significance, and pushed forward the construction of a new development pattern, realizing the historic leap of china’s economy and high-quality development. we should also continue to adhere to high-quality development, and continuously implement and strengthen the internationalization of the rmb, so as to strengthen the internationalization of the digital rmb. in recent years, the scale of cross-border rmb use has steadily increased under the active promotion of relevant departments (fang ming, 2023). we should promote the application of digital rmb as soon as possible in a pioneering manner to facilitate digital development. due to the essential characteristics of financial monopoly, economies around the world are actively researching and developing new legal policies, and the issuance, control and rule-making of digital currencies will be the world’s largest new track. foreign scholars have proposed that digital currency will lead to the decomposition of the existing unipolar international monetary system and the reconstruction of the diversified international monetary system, which is conducive to the gradual formation of a diversified international monetary system that can ensure economic development (shen, 2022). therefore, in order to enrich the international monetary system and further form the integration of the world economy, china should speed up its entry into the first track, play a good first move, make full use of its pioneering advantages in the field, and promote the research and application of digital rmb more actively and steadily. in addition, attention should also be paid to integrating the advantages of the digital rmb with those it possesses, and establishing a set of monetary policy system under the framework of the digital rmb that is suitable for china's national conditions, so as to continue to improve the delivery effect, timeliness and accuracy of china’s monetary policy, and to provide strong support for china’s high-quality economic development. it is only right that we actively participate in the global governance of digital finance, enable cross-border legal tender cooperation, and promote the internationalization of the digital rmb (zhou guangyou, 2022). 4.2 solving the digital rmb payment dilemma the significance of granting legal tender to currencies is to maintain a sovereign monetary system dominated by national currencies, and we also need to maintain a monetary system backed by the credit of the rmb, therefore, the digital rmb must maintain its legal tender. however, as it must match the reality of the current development of the digital economy, the application of the digital rmb should be given some special terms of constraints. in this regard, we can adopt the following measures: when using digital rmb to make payment, when the paying party encounters certain troubles in actual operation and the other party has explicitly indicated that it will not agree to it, the other party can be allowed to make choices through other payment methods; under certain circumstances, the upper limit www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 53 published by scholink inc. of the transaction amount of the digital rmb can be categorized and restricted, especially when it involves foreign organizations or individuals possessing the digital rmb within the territory of china, it can be categorized and restricted. in particular, when it comes to foreign organizations or individuals possessing digital rmb in china, a transaction limit can be set for a certain period of time, which can prevent spillover effects under the premise of ensuring a certain degree of market order. 4.3 sound new infrastructure for digital rmb in the context of digital economy, digital rmb is the new infrastructure of china, which will more effectively promote the development of china’s financial system in the direction of digitization. currently, major commercial banks such as gongnong, zhongjian, jiaotong, postal savings and china merchants, financial institutions such as alipay and weizhong, as well as companies such as jingdong, are carrying out various forms of trial runs on the digital rmb. in the future, it is important to fully promote the consumption of digital rmb by consumers, and to allow various enterprises to actively participate in and strengthen the circulation process of digital rmb. at the same time, more third-party payment companies can be attracted through the formulation of relevant preferential policies to actively promote the interaction and linkage between the digital rmb and the existing payment tools, so as to improve the quality of their services. it should also focus on polishing the technology of consensus mechanism, cross-chain expansion, privacy security and transaction smart contract of digital rmb payment procedures, so as to control the trial and error cost of blockchain development within the minimum threshold (chen, yanyan, 2022). it is only right that we continue to strengthen the new digital financial infrastructure and keep implementing the infrastructure of digital rmb to accelerate the development of digital rmb. 4.4 strengthening market regulation we can improve the relevant laws and regulations, and we should accelerate the corresponding supporting institutions, strengthen market supervision, and construct a management method applicable to digital rmb. at the same time, it is necessary to strengthen the hierarchical and categorized management of each type of digital rmb wallet, and set the upper limit of the wallet balance and the upper limit of the transaction amount, etc., so as to prevent a large number of wallets with non-original names from being used for illegal transactions. in due course, specific laws and regulations that are linked to digital rmb in various aspects should also be formulated, so as to provide for digital rmb. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 3, 2023 54 published by scholink inc. references chen, y. y. (2022). the development path of digital rmb and its economic logic. regional financial studies, 2022(11), 86-91. shen, c. m. (2022). digital rmb, rmb internationalization and sustainable development of the international monetary system. sustainability, 14(10). https://doi.org/10.3390/su14106228 fang, m. (2023). rmb internationalization needs to seize opportunities in the age of digital economy. china foreign trade, 2023(02), 50-51. li, s. l., & wen, d. (2022). construction of legal mechanism for digital rmb in cross-border payment scenarios. hainan finance, 2022(11), 60-69. meng, j. (2023). exploring the development of digital rmb in cross-border payment under the background of “the belt and road” initiative. shs web of conferences (p. 154). https://doi.org/10.1051/shsconf/202315403014 samek, m., & vlasta, m. (2021). digital yuan?—currency or policy tool? auc iuridica, 67(3). https://doi.org/10.14712/23366478.2021.28 song, q. h., li, b. h., & lv, t. h. (2022). digital currency development and the construction of a modern central banking system. regional financial studies, 2022(01), 5-18. wang, w. l. (2023). difficulties and focus points in accelerating the orderly development of the digital rmb. economic digest, 2023(02), 122-128. xinru, h. (2022). the necessity and overall significance of the development of digital rmb in china. 2022 4th international conference on economic management and cultural industry (icemci 2022), 2022. zhang, l. l., & shao, h. r. (2022). the realistic dilemma and institutional guarantees of the rural application of digital rmb in the context of financial inclusion. hubei agricultural science, 61(20), 252-256. zhou, g. y., & yang, j. m. (2022). pest-swot analysis of digital rmb in global perspective. studies in financial development, 2022(12), 3-12. zhou, x. f. (2022). playing the role of digital rmb as a “needle thread” to promote the financial digital transformation of state-owned enterprises. sasr report, 2022(12), 49-51. zhao, z. h. (2022). impact of digital rmb on rmb internationalization. 2022 2nd international conference on economic development and business culture (icedbc 2022). https://doi.org/10.2991/978-94-6463-036-7_123 https://doi.org/10.3390/su14106228 https://doi.org/10.1051/shsconf/202315403014 https://doi.org/10.14712/23366478.2021.28 https://doi.org/10.2991/978-94-6463-036-7_123 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 103 original paper research on the prevention and control of farmers’ pension risk from the perspective of law yuzhen cidan 1 1 political science and law, tibet university, lhasa, tibet, china received: march 29, 2025 accepted: april 11, 2025 online published: april 14, 2025 doi:10.22158/elp.v8n1p103 url: http://dx.doi.org/10.22158/elp.v8n1p103 abstract with the aging of the population becoming more and more serious, the problem of old-age care has become a global problem. there are many aspects of pension risks, such as economic, health and social risks, which have caused great pressure on society. the law plays a very important role in the old-age security system. perfecting the legal framework can effectively deal with the risk of old-age care. this paper first analyzes the meaning and types of pension risk, and then discusses how the pension risk is generated from the perspective of law. combined with the actual situation of our country, this paper puts forward some suggestions to improve the legal mechanism of china’s response to pension risk, hoping to provide some reference for the sustainable development of china’s pension security system. keywords law, pension, risk 1. introduction population aging is the current social reality in the world, and the issue of old-age care has become a hot topic of social concern. the law to deal with the problem of old-age security under the background of population aging needs to follow the system concept. promoting the development of old-age care and improving the old-age care service system as an important task of actively responding to the national strategy of population aging has always been highly concerned by the party and the country. the development of old-age care undertakings and industries, and the improvement and perfection of the old-age care service system are inseparable from the guidance, norms and guarantees of high-quality and high-level legislation. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 104 published by scholink inc. at present, there is an obvious aging trend in china, and the problem of old-age care has attracted much attention, and the problem of old-age care for rural farmers is a difficult problem of social security. analyzing the risks faced by rural old-age care and the causes of the risks, and putting forward relevant countermeasures and suggestions are of great significance for rural collective old-age care, improving the old-age security system and solving the problem of rural old-age care. this paper analyzes the problems faced by china’s old-age care by combining legal norms with risk management theory and dynamic risk prevention and control. 2. pension risk 2.1 definition of pension risk pension risk refers to the unexpectedness and uncertainty that people may suffer from the risk of survival due to the lack of basic living security in old age, including the uncertainty of whether the risk occurs and the degree of danger. pension risk is one of the social security risks. it is an objective existence. it is a risk that everyone must face. it is the deviation between the actual results and the predicted results caused by the uncertainty of people’s decision-making and objective conditions for future pension behavior. it is a state of risk existence with uncertainty in the occurrence of losses. pension risk has the characteristics of objectivity and inevitability. everyone will face life and death. in today’s society, we should plan for old-age care early. under different social systems and political systems, the structure and size of pension risks are different from the economic development. 2.2 classification of old-age groups 2.2.1 age classification young old people (55-70 years old) the old people in this age group are in relatively good physical condition, and have more energy and time to pursue a colorful old age life. the middle-aged elderly (70-80 years old) at this stage began to face some health problems and needed more health management services. their dependence on medical resources is gradually increasing, and they are also eager to enrich their lives through social activities and avoid loneliness. the decline of physical function of the elderly (over 80 years old) is more obvious, and they often need professional medical care and life care. they have a high degree of dependence on old-age care institutions, especially for the disabled and demented elderly, professional nursing services are crucial. for example, some old-age care institutions will provide 24-hour care services for the elderly, including feeding, cleaning, and rehabilitation training. 2.2.2 classification by physical condition self-care elderly these elderly people are in good physical condition and can independently complete various activities in daily life, such as washing, dressing, cooking and so on. their demand for old-age care is mainly focused on the spiritual and cultural level, hoping to maintain a positive attitude towards life in their later years and participate in various social activities and hobbies. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 105 published by scholink inc. semi-disabled elderly the semi-disabled elderly have some difficulties in self-care and need some assistance. they may need to use assistive devices, or need the assistance of family members and caregivers to complete some more complex activities. for such elderly people, the focus of pension services is to provide appropriate care and rehabilitation training to help them maintain their self-care ability as much as possible. disabled elderly disabled elderly people cannot take care of themselves and need to rely entirely on others for care. they have higher requirements for the medical care level and life care ability of the pension institutions, and need professional medical staff and care workers to provide round-the-clock services. dementia elderly dementia elderly mainly face cognitive dysfunction, such as alzheimer’s disease. in addition to life care and medical care, they also need professional cognitive training and emotional comfort to delay the development of the disease and maintain a certain quality of life. 3. china’s pension risks under the background of aging population in the context of aging, china’s pension risks are mainly reflected in the following aspects. 3.1 rural pension risk china’s pension risk mainly lies in rural pension. the problem of rural aging mainly focuses on the time arrangement of labor and employment of the young elderly and the time disembedding of the middle and high elderly. a large number of studies have shown that the important supporting force of china’s gradual urbanization is the rural elderly in china, who continue to accumulate capital for their children to receive good education and purchase houses at home. farmers basically do not have income and living difficulties before the age of 70, and face the risk of income and physical decline after the age of 70. in the context of the urbanization of farmers, the middle-aged and high-aged people have become a group of passive or active sacrifice, and even in some areas, the elderly have contributed to their children for life. self-marginalization and withdrawal from society to minimize self-needs are strategies for the elderly to cope with old-age care. the rural old-age care model mainly includes four modes: family old-age care, social old-age care, market old-age care and mutual old-age care. in the context of the outflow of rural population and the imbalance of intergenerational responsibility, family pension has problems such as excessive burden, poor care, and weakening ethical responsibility. most scholars believe that china’s pension model should move from family pension to social pension model. however, the substitution effect of the current social pension on the traditional family pension is very limited, and the problem of rural old-age care cannot be solved only by raising the pension. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 106 published by scholink inc. at present, mutual support for the aged is a form of voluntary service, low-paid service and “time bank” to resolve the old-age care of the elderly. some scholars have pointed out that rural areas have the advantages of acquaintance society, land system and village collective organization. local governments should give necessary financial subsidies and policy support to promote the establishment of village-led mutual pension model. 3.2 economic risk in the traditional chinese family concept, the child is the center of the family, and the only child is the only hope of the parents. once the child encounters disease, the parents often do their best to treat the child and do not give up a glimmer of hope. for families with low incomes, high medical expenses may hollow out all the family’s savings. after the death of the child, the elderly who lost their only child also fell into a poor economic situation. in some families, parents enter old age and gradually lose their economic independence. for people with weak old-age security, adult children are the only source of income for parents. economic risk is the first pension risk that the elderly who have lost their only child must face. 3.3 mental health risks the elderly are not necessarily lonely, but have to face the grief of losing their only child. the elderly generally face serious mental health risks. the grief and self-blame of losing their only child often make the elderly lose their enthusiasm for life for a long time. lead to irregular diet, insomnia and other issues. 3.4 pension payment risks the pension income and expenditure gap is widening: with the acceleration of the aging process, the pressure on pension payments has increased significantly. according to the data, from 2010 to 2023, the number of retirees of the basic old-age insurance for urban workers increased from 63 million to 136 million, and the dependency ratio of insured workers and retirees decreased from 3.2 to 2.7, that is, an average of two workers support one retiree. the chinese academy of social sciences predicts that the situation of pension income exceeding expenditure may occur in 2028 and will exhaust the accumulated balance by 2035. the sustainability of the pension system is facing challenges: the aging of the population leads to the continuous growth of pension expenditures, while the relative reduction of the contributory population has intensified the impact on the pension system. in the three-pillar pension system, the first pillar pension has a strong crowding-out effect on other pillars. the isolation between individual accounts of each pillar leads to the decentralization of pension assets, which makes it difficult to take advantage of large-scale investment and dynamic asset allocation. 3.5 medical security risks the pressure of medical expenses growth: with the increase of the elderly population, the demand for chronic disease management and rehabilitation nursing of the elderly is increasing, which stimulates the continuous increase of medical expenses. the prediction results show that 50 % of china’s medical www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 107 published by scholink inc. resources will be used for the elderly population in the future. the risk of basic medical insurance is increasing. it is estimated that under the current medical insurance system, by around 2025, china’s medical insurance fund balance will have a gap for the first time. by about 2034, the cumulative balance of medical insurance will have a gap for the first time. pension services and medical resources do not match: at present, china’s aging social environment construction lags behind, most of the urban and rural infrastructure planning and design and construction have not fully taken into account the living needs of the elderly, families, residential areas, communities, urban public places and other aging facilities are not perfect and inadequate, the elderly’ digital divide’ problem is more prominent. 4. case analysis 4.1 on the case of the family members of the insured persons in luoyang city defrauding the pension insurance benefits of the enterprise employees in december 2020, the investigation of luoyang social security center found that after the death of peng, a retired employee of an enterprise, peng’s nephew peng concealed it and asked his father-in-law zhao to fake his uncle peng’s identity information to handle identity cards and social security cards in violation of regulations. from august 2011 to december 2020, peng’s enterprise employee pension insurance treatment was 296,300 yuan. 4.2 case wang v. a nursing home right of life dispute case pan was admitted to a nursing home and enjoyed primary care. the room where pan lives is located on the third floor. the chimney is installed on the right wall of the room window. it is the exhaust pipe of a gas-fired hot water boiler in a bathroom on the first floor. the chimney pipe is close to the window. there is a rental relationship between a nursing home and a bathroom. in the early morning of a certain day, the caregiver found an abnormality when he visited pan’s room, so he sent the elderly to the emergency department of the hospital and informed his family. after diagnosis, pan was diagnosed as carbon monoxide poisoning, and died after hospitalization. according to the investigation, the gas-fired hot water boiler produces carbon monoxide in the process of operation, which penetrates into the room of pan through the exhaust pipe. wang, the successor of pan, sued and asked yuan, the investor of a nursing home and a bathroom, to jointly compensate for funeral expenses, death compensation, mental damage and so on. as a professional old-age care institution, nursing homes have the obligation of safety protection for the elderly. for the facilities and equipment with potential safety hazards, we should actively take measures to prevent and prompt, and require rectification. we should not take a disregarding and laissez-faire attitude, otherwise we should bear the corresponding responsibility if the elderly suffer personal injury. pension institutions and their operators should improve their awareness of safety protection and strengthen the rectification of safety hazards, which is not only the protection of the operators themselves, but also the embodiment of social responsibility. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 108 published by scholink inc. in the social pension, the pension service of the pension institution is often accompanied by a series of problems. the service of the pension institution is not good and the cost is too high. public-built private or private pension institutions are widespread in the county and have become an important supplement to public pension services. however, they are also facing the development trend of bottom protection and high-end development. the high cost of old-age care and the unwillingness of the elderly to leave the village for old-age care have led to a high vacancy rate of beds in pension institutions. at the same time, pension service disputes are also everywhere. 5. the present situation and problems of the law in the old-age security 5.1 current situation the legal system has been initially established: china has formed a relatively sound legal system for the protection of the rights and interests of the elderly, covering many laws such as the “constitution” law on the protection of the rights and interests of the elderly, the “social insurance law” and the “civil code”. these laws provide the basis for the old-age security of the elderly from different angles. policy support is increasing: the government has issued a series of policies to promote the development of old-age security, such as “opinions on comprehensively promoting the construction of urban communities” and “opinions on accelerating the development of home-based care services”. to a certain extent, these policies make up for the shortcomings of the law and promote the improvement of the old-age security system. local legislation actively explores: some places have formulated local regulations such as regulations on home care services according to their own actual conditions, such as beijing and suzhou. these local legislations provide a useful reference for national legislation and promote the improvement of the legal system of old-age security. 5.2 existing problems 1) imperfect legal system the system is scattered and fragmented: the laws related to old-age security are scattered in many laws and regulations, lacking systematicness and coordination. for example, the rural pension insurance system is fragmented, and the system varies greatly between different regions, and it is not well connected with other social security systems such as the basic pension insurance for urban workers. part of the law lags behind: some provisions of the “social insurance law” have not adapted to the needs of the reform of the social insurance system. for example, rural endowment insurance and urban residents’ endowment insurance have long been merged, but the relevant concepts are still retained in the law. there are many legal gaps: in the community pension service, there is a lack of national unified legislation, which leads to the lack of a unified legal framework for policy formulation. in addition, the pension service contract is not clearly stipulated in the “contract law”, and there is a legal gap in the protection of the rights and interests of the elderly. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 109 published by scholink inc. 2) insufficient protection of the rights and interests of the elderly the problem of property inheritance is prominent: property such as real estate is occupied, children refuse to support and so on. although there are laws such as “inheritance law”, at the specific operational level, detailed regulations and safeguards for the inheritance of property of the elderly are still insufficient. the performance of support obligations is not in place: some children do not fulfill their support obligations, and there are problems such as mental neglect, resulting in the lack of protection of the lives of the elderly. inadequate medical service guarantee: some medical institutions and medical staff use the lack of medical knowledge of the elderly to carry out false propaganda, excessive medical treatment and other behaviors, which damage the health and economic interests of the elderly. 3) law enforcement and supervision mechanism is not perfect enforcement is difficult: in rural areas, law enforcement faces many difficulties. rural legal resources are scarce, lack of lawyers, legal aid agencies, etc., farmers’ legal literacy is low, and their ability to understand and use the law is limited. in addition, the rural areas are sparsely populated, the law enforcement means are relatively single, and there is a lack of advanced scientific and technological equipment and information technology support. the supervision mechanism is not perfect: the democratic supervision mechanism in rural areas is not perfect, the main body of supervision is not clear, the supervision power is weak, the supervision mode relies more on the inspection and guidance of higher authorities, and lacks diversified supervision channels and means. in the field of community pension services, the supervision of pension service institutions mainly depends on administrative rules and regulations, and lacks effective legal supervision. 5.3 analysis of the current legal system china’s current pension legal system is mainly composed of the “law of the people’s republic of china on the protection of the rights and interests of the elderly”, the “social insurance law of the people’s republic of china” and related administrative regulations and policy documents, forming a multi-level and multi-dimensional legal framework for old-age security. 1) “law of the people’s republic of china on the protection of the rights and interests of the elderly” main contents: the law consists of 9 chapters and 85 articles, covering family support and support, social security, social services, social benefits, livable environment and other aspects. family support and support: clarify the financial support, life care and spiritual comfort obligations of the supporter to the elderly, and stipulate that the freedom of marriage of the elderly is protected by law. social security: the provisions of the state to establish an old-age insurance system to protect the basic life of the elderly, pensions and other benefits should be paid in full and on time. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 110 published by scholink inc. social services: the government is required to take measures to develop urban and rural community care services and encourage social forces to provide a variety of services for the elderly at home. social preferential treatment: governments at all levels should formulate preferential treatment for the elderly according to the economic and social development, and gradually improve the level of preferential treatment. livable environment: the state promotes the construction of livable environment and provides a safe, convenient and comfortable environment for the elderly. the law provides a comprehensive legal basis for the protection of the rights and interests of the elderly, clarifies the responsibilities of the family, society and government in the old-age security, and promotes the construction of the old-age service system. 2) “social insurance law of the people’s republic of china” main content: as the basic law in the field of social insurance, the second chapter “basic pension insurance” is specially set up to make principled provisions on the system mode, insured objects, fund raising and treatment determination of pension insurance. institutional model: the establishment of a legal basic pension insurance system for enterprise employees, staff of government agencies and institutions, and urban and rural residents. insured objects: clarify the insurance requirements of various groups of people, and promote the universal coverage of the pension insurance system. fund raising and treatment determination: it stipulates the raising method of pension insurance fund and the determination mechanism of pension treatment. role: it provides a basic legal basis for the operation of the pension insurance system, clarifies the rights and obligations of citizens, employers and governments in the pension insurance, and promotes the standardization and legalization of the pension insurance system. 3) administrative regulations and policy documents administrative regulations: such as the “interim regulations on the collection and payment of social insurance premiums” and the “national social security fund regulations” provide operational norms for the specific implementation of the pension insurance system. policy documents: the state council and relevant departments have issued a series of policy documents, such as “decision on improving the basic old-age insurance system for enterprise employees”, “opinions on establishing a unified basic old-age insurance system for urban and rural residents”, etc. these documents play an important role in the operation of the old-age insurance system. 5.4 existing problems 1) imperfect legal system pension insurance lacks special legislation and higher-level administrative regulations, and some provisions in the current law lag behind the practice of social insurance reform. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 111 published by scholink inc. 2) law enforcement and supervision mechanism is not perfect pension insurance cases lack an independent judicial system, judicial trials rely more on policy documents, and the implementation and supervision of laws need to be strengthened. 3) inadequate implementation of family support and support responsibilities although the law clarifies the obligation of maintenance, in practice, some children do not fulfill the obligation of maintenance. china’s current pension legal system has played an important role in protecting the rights and interests of the elderly and promoting the development of pension security. however, it also faces problems such as imperfect legal system and imperfect implementation and supervision mechanism, which need to be further improved and developed. 6. strengthen the legal regulation of the protection of the rights and interests of the elderly the legal regulation of strengthening the protection of the rights and interests of the elderly can start from the following aspects. 6.1 improving legislative work refinement of laws and regulations: at present, laws and regulations such as the “law on the protection of the rights and interests of the elderly” have problems of general provisions and insufficient operability. the legal provisions should be further refined to clarify the rights and interests of the elderly, such as medical care, pension, housing, etc., to ensure that the law is more targeted and enforceable. strengthen the unity of law application: different regions and departments have differences in the implementation of the law on the protection of the rights and interests of the elderly, resulting in inconsistent application of the law. it is necessary to unify the standards of law application through legislative interpretation and judicial interpretation to ensure the standardization of the protection of the rights and interests of the elderly nationwide. promote legislative amendments: with the development of social economy, the protection of the rights and interests of the elderly is facing new challenges, such as pension fraud, network infringement and so on. we should amend the law on the protection of the rights and interests of the elderly in a timely manner, increase the regulation of new infringements, and improve the legal liability provisions. 6.2 intensify law enforcement improve the law enforcement mechanism: at present, when law enforcement departments deal with cases of protection of the rights and interests of the elderly, there are problems such as insufficient law enforcement authority and poor coordination between departments. relevant departments should be given the necessary law enforcement authority, and a cross-departmental law enforcement coordination mechanism should be established to ensure that cases can be handled quickly and effectively. strengthen the construction of law enforcement team: improve the professional quality of law enforcement personnel, regularly carry out legal training for the protection of the rights and interests of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 112 published by scholink inc. the elderly, and improve the level of law enforcement. at the same time, encourage law enforcement personnel to go deep into the community to understand the actual needs and difficulties faced by the elderly. severely crack down on infringement: the infringement of the rights and interests of the elderly, such as fraud, abuse, abandonment, etc., should be punished. through joint special operations, such as special operations against pension fraud, a high-pressure situation is formed to deter criminals. 6.3 improve social participation strengthen the legal awareness of the elderly: in view of the lack of legal knowledge of the elderly, targeted legal publicity and education activities should be carried out. through community lectures, media publicity and other means, popularize the legal knowledge of the protection of the rights and interests of the elderly, and improve the self-protection awareness of the elderly. encourage social forces to participate: support social organizations, volunteer groups, etc. to participate in the protection of the rights and interests of the elderly. for example, a hotline for the protection of the rights and interests of the elderly is set up to provide legal advice and assistance services for the elderly. strengthen social care: advocate the whole society to respect and care for the elderly, and encourage the elderly to actively participate in social activities. provide life and spiritual support for the elderly through community mutual assistance, volunteer service and other forms. 6.4 innovation protection mechanism establish a diversified dispute resolution mechanism: set up a special protection agency for the rights and interests of the elderly, responsible for accepting and mediating disputes over the rights and interests of the elderly. at the same time, it encourages the settlement of disputes through arbitration, mediation and other ways to reduce judicial pressure. play the role of social resources: encourage enterprises and social organizations to participate in the protection of the rights and interests of the elderly. for example, enterprises can provide preferential products and services for the elderly, and social organizations can carry out public welfare projects to protect the rights and interests of the elderly. strengthen the application of science and technology: use big data, artificial intelligence and other technologies to establish an information platform for the protection of the rights and interests of the elderly. through the platform, we can discover and deal with the infringement of the rights and interests of the elderly in time and improve the efficiency of protection. 7. conclusion china’s current pension legal system has played an important role in dealing with the aging of the population, but in the face of the dynamics and complexity of pension risks, there are still some deficiencies. the dynamic nature of pension risks is reflected in the accelerated development of population aging, changes in the health status of the elderly, and rapid changes in the socio-economic environment. the complexity is reflected in the pension service system involving multiple departments, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 113 published by scholink inc. a variety of service models and different levels of security needs. the current legal system has played an important role in protecting the rights and interests of the elderly and promoting the development of old-age security, but it also faces problems such as imperfect legal system and imperfect implementation and supervision mechanism. the social construction committee of the national people’s congress has entrusted the china social security institute to complete the “expert recommendation draft of the pension service law of the people’s republic of china” and its instructions. the ministry of civil affairs has also drafted the first draft of the pension service law. it is suggested that the “pension service law” should be included in the priority project of the legislative plan of the 14th national people’s congress, and the law should be formulated and implemented before 2026. this will provide a clearer legal basis for pension services, standardize the pension service market, and protect the legitimate rights and interests of the elderly. in the future, we should strengthen the empirical research on the implementation of the old-age care law in rural areas, and deeply understand the current situation, problems and needs of rural old-age care services. at the same time, deepen the study of transnational pension legal conflicts, learn from international advanced experience, and promote the improvement of china’s pension legal system. references cheng, j., niu, y., & liu, f. (2018). the pension risk and security of the elderly who have lost their only child in china under the background of aging. chinese journal of geriatrics, 38(07), 1775-1777. fan, j. x., & ma, c. c. (2025). on the ten major problems to be solved in the legislation of pension service in china. journal of nantong university (social science edition), 41(01), 100-116, 160. fan, q. r., & yin, d. (2018). legal regulation of basic pension investment in the context of risk governance. journal of hubei police college, 31(02), 14-22. gao, w. j., & hu, h. (2024). a review of the research on the phenomenon of “accompanying pension” in rural china. social welfare, 2024(10), 36-42. hu, j. l. (2025). legal risks and prevention and control of pension real estate development. shanghai real estate, 2025(01), 47-51. huang, l. y. (2023). research on the legal issues of the risk of housing endowment insurance contract. southwest university of political science and law. li, x. s. (2023). perfecting the legal system of china’s old-age security in the context of population aging. human rights, 2023(06), 79-100. shi, m. p. (2025). anti-time disembedding: the main practice and policy enlightenment of active response to aging in rural china. theory monthly, 2025(03), 134-147. shi, m. p. (2025). anti-time disembedding: the main practice and policy enlightenment of active response to aging in rural china. theory monthly, 2025(03), 134-147. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 114 published by scholink inc. wang, y., & zhang, r. (2024). opportunities and challenges for the life insurance industry to participate in wealth security and inherit innovative legal services. insurance theory and practice, 2024(05), 34-48. wen, y. x. (2023). on the prevention of legal risks of pension consumption trust. guangdong university of finance and economics. xiong, x. q. (2025). analysis of the legal characteristics and risk prevention of the pension service contract. hebei legal vocational education, 3(01), 68-77. zhang, h. f. (2022). risks and legal governance of family support for disabled elderly. leadership science forum, 2022(07), 99-101, 106. zuo, d. (2023). research on the old-age security of employees in new business forms. liaoning university. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 5, no. 2, 2022 www.scholink.org/ojs/index.php/elp 17 original paper research on the path of digital economy promoting export trade under the background of high-quality development jingfei dong 1 & xinpeng xu 1 1 college of finance and economic, sichuan international studies university, zhuangzhi road, chongqing, china received: october 10, 2022 accepted: november 1, 2022 online published: november 19, 2022 doi:10.22158/elp.v5n2p17 url: http://dx.doi.org/10.22158/elp.v5n2p17 abstract digital economy is an economic form based on information. it focuses on the role of value chain and industrial chain in many factors affecting the high-quality development of export trade. at the same time, based on the main characteristics of the digital economy, the paper analyzes the mechanism of the digital economy on the high-quality development of export trade, and the role of digital industrialization and industrial digitalization is more obvious. at this stage, if china wants to promote the high-quality development of export trade, it should promote the development of digital industrialization and stimulate the innovation ability of foreign trade enterprises. improve the digitalization level of export trade industry and create a sound ecology for the development of international trade; improve the basic services of the digital economy and expand the development space of export trade; build a good development environment for export trade with the help of digital economy; promote the diversification of export trade products, the diversification of main bodies, and the development of low-carbon. keywords digital economy, high-quality development, export trade, innovation path research on harmonious labor relations thought of socialism with chinese characteristics in the new era (2021ybcs39) science and technology project of chongqing education commission: (kjqn202000905), (kjqn202100901), (sisu202157), chongqing education commission humanities and social sciences research project (21skgh141)/(21 skgh 134); research on the construction of the mode of systematic cultivation of international business masters from the perspective of liberal arts (yjsjg202209). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 18 published by scholink inc. 1. introduction with the gradual application of big data, blockchain, cloud computing and other emerging technologies, china’s digital economy has developed rapidly. as a new economic form, digital economy takes digital technology as the core driving force, forms new industries through new technologies, new industries promote new models, and new technologies empower traditional industries, promoting the digital transformation and high-quality development of the global economy. according to the white paper on the development of china’s digital economy (2022), china’s digital economy will achieve a new breakthrough in 2021, with a total scale of 45.5 trillion yuan, a nominal year-on-year growth of 16.2%, 3.4 percentage points higher than the nominal gdp growth in the same period, accounting for 39.86% of gdp. the digital economy will play a more stable role in the national economy and play a more significant supporting role. in the context of the global epidemic, the digital economy has maintained a rapid growth of 9.7%, which has become an important support for promoting china’s economic and social development. in november 2019, the central committee of the communist party of china and the state council issued the guiding opinions on promoting the high quality development of trade, pointing out the importance of digital economy for promoting the high-quality development of trade. in the “fourteenth five year plan”, it is proposed to promote digital industrialization and industry digitalization, strengthen the integration of real economy and digital economy, and establish a digital industry cluster with international competitiveness. the development of digital economy not only improves social productivity, but also significantly improves the efficiency of market transactions. the digital economy promotes the occurrence of trade and the expansion of market scale by reducing transaction costs and compressing the distance between time and space, and promotes the refinement of social division of labor and the deepening of specialties. the continuous growth of the digital economy has had a profound impact on the way of human production and life. in recent years, countries have paid more attention to the innovative application of digital technology, the coordinated development of digital economy and the stable prosperity of digital trade, which have promoted the development of digital economy and digital trade. digital economy promotes the development of digital trade. the emergence of digital trade has a profound impact on trade methods, trade objects, trade rules and trade patterns, especially on export trade. in terms of structure, compared with the average proportion of digital economy in developed countries accounting for 70% of gdp, china has only 38.6%, and the proportion of digital economy in gdp still has much room for improvement. the digital economy brings many opportunities to the development of china’s trade, but it is also full of many challenges. the global trade model has undergone tremendous changes. digital and intelligent trade is becoming an important breakthrough to achieve high-quality development of international trade. in this context, the author analyzes the internal mechanism between the digital economy and the high-quality development of international trade, and explores the path of digital economy to help china's high-quality development of international trade. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 19 published by scholink inc. 2. theoretical essence and main characteristics of digital economy 2.1 connotation of digital economy digital economy is a new economic form different from traditional economy. don tapscott first proposed the concept of digital economy in his book digital economy: hope and danger in the age of network intelligence published in 1996. he believed that the most powerful asset in the digital economy is data, which is a new type of asset. beomsoo kim (1998) believed that the nature of data economy activities was that goods and services were traded in the form of informatization. chen shiqing (2015) believed that the digital economy is an economic form in which human beings announce the identification, selection, filtering, storage and use of digital knowledge and information, guide and realize the rapid optimal allocation and regeneration of resources, and achieve high-quality economic development. at present, the authoritative definition of the digital economy was put forward in the g20 digital economy development and cooperation initiative in 2016. the initiative defines the digital economy in terms of elements, conditions, paths, goals, etc. think digital economy refers to the use of digital knowledge and information as an important factor of production, through the power of modern information networks, with the effective use of information technology to improve efficiency, and therefore to optimize the economic structure. on the one hand, this connotation describes that digital economy includes digital knowledge and information, that is, data, as the key factor of production; on the other hand, it shows that digital economy has modern information networks and information communication technologies, that is digital technology changes the characteristics of production mode. the production factors of digital economy include data, capital, labor and land. from the perspective of market behavior, economic development and international trade, we believe that digital economy mainly refers to the economic process of manufacturing and supplying electronic products and services for e-commerce or the trade behavior caused by e-commerce. in this process, production and management are electronic, in which all suppliers, consumers and related activities are connected through the internet and the world wide web technology. in the digital economy, if data is to become a factor of production that drives economic operation and development and innovation, it is necessary to convert data into information and information into value through digitization. with the formation and rapid development of the digital economy, new products and services, new business models and digital trade have emerged one after another. 2.2 characteristics of digital economy compared with traditional economy, the characteristics of digital economy are mainly reflected in two aspects. first, digital economy pays more attention to product use and service extension, while traditional economy pays more attention to product production process. the digital economy mainly starts from the demand side, focusing on finding potential and invisible user needs, providing customized and personalized services for customers, and realizing user value co creation. the traditional economy mainly starts from the production side, focusing on solving the cost-benefit www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 20 published by scholink inc. problems in the production process, such as reducing production costs and transaction costs, improving the efficiency of resource allocation, and realizing economies of scale. second, in terms of dealing with the relationship with consumption, digital technology enables more consumers to directly participate in production activities, making the boundary between production and consumption very vague, while the production and consumption activities of participants in the traditional economy are clearly defined. from the connotation of the digital economy itself, the digital economy shows the characteristics of marginal income increasing with the scale, with high growth, strong diffusion, cost reduction and other important characteristics. the main reason is that the particularity of digital economy is mainly determined by the attributes of information. information is significantly different from traditional production factors (such as land, oil, etc.). the accumulation of a large amount of information helps to generate knowledge, so as to obtain higher value output. the larger the information scale, the higher the accuracy of knowledge generation, and the corresponding sharp increase in commercial value. from the research results of scholars, the academic community has basically reached a consensus that digital economy can promote economic growth (oliner & sichel, 2000). digital economy is built on the basis of high-speed communication network, with universality and extensive penetration. its marginal cost is almost zero. representative technology products have strong network externalities, that is, the utility users get from digital products increases with the number of new users. the development of digital economy meets moore’s law, metcalfe’s law and davido’s law (that is, rapid technology iteration, rapid cost reduction, increasing scale effect and matthew effect of products). 3. analysis of high-quality development of export trade there are many factors that affect the high-quality development of export trade, including both macro and micro factors; there are both external and internal factors; there are both cyclical and structural factors; there are also institutional factors (pei changhong & liu bin, 2019). different scholars have explored the effective way of “high-quality development of export trade” from multiple perspectives, and have drawn some enlightening and referential conclusions. in general, trade is based on division of labor, so we need to look at the trade phenomenon at the level of international division of labor. similarly, we need to analyze the factors that affect the high-quality development of china’s export trade, supported by high-quality and high-level production factors, and seek high-quality development of export trade from the perspective of value chain and industrial chain. 3.1 value chain dimension the result of economic development is not simply measured by a certain quantitative index, but is to judge the actual value of economic output based on development goals, and judge the quality of economic development by the degree to which economic output meets the actual needs at a specific stage. under the condition of global factor division of labor, the differences in the ability of different countries or regions to create added value and obtain trade benefits are not determined by the characteristics of factor intensity in different production links and stages, but by the principle of factor www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 21 published by scholink inc. scarcity. the scarcity of high-end and advanced production factors of a country determines its monopoly and competitive advantages, and then determines its absolute dominance and control ability in the global value chain. therefore, the realization of value chain upgrading has become an important dimension of high-quality trade development. 3.2 industrial chain dimension economic development should be seen as a dynamic process of continuous change. we should not only observe the external appearance of economic development, but also analyze the corresponding internal factors, and internalize key factors such as resource endowment, institutional environment, economic structure, and technological level into the analysis framework. the so-called industrial chain mainly refers to the degree of correlation between industries, especially between different manufacturing industries, and between service industries, especially producer services and manufacturing. the high-quality development of china’s export trade should not only optimize and upgrade the structure of the tertiary industry, accelerate the development of the service industry, especially the modern service industry, and consolidate the industrial foundation of service exports, but also accelerate the transformation and upgrading of the manufacturing industry to high-end development, so as to realize the transformation of the manufactured goods export from large to strong. consolidate the industrial basis for trade development. give play to the role of market mechanism, promote the interaction between trade and industry, and promote the process of industrial internationalization. accelerate the development of modern service industry, especially productive service industry, and promote the deep integration of advanced manufacturing industry and modern service industry. 4. the role of digital economy in improving the high-quality development of export trade in the era of digital economy, data has become a key factor of production, widely integrated into the process of value creation, and promoted the development of business models. clarke and wallsten (2006) showed that the higher the degree of digital economy development of developing countries, the more they can improve their export trade to developed countries. meijers (2014) research shows that the development of the digital economy has significantly promoted bilateral trade, which has a more significant role in promoting the trade scale of low-income countries. the digital economy further drives economic growth by promoting international trade. goldfarb and tucker (2019) pointed out that on the one hand, digital economy has reduced economic costs in terms of search costs, marginal costs, transportation costs, tracking costs and verification costs, but on the other hand, digital economy will increase the uncertainty of trade, thereby reducing the scale of international trade. compared with traditional trade and value chain trade, the way and object of international trade are characterized by “digitalization”, highlighting changes in two aspects: digital industrialization and industrial digitalization. specifically, it is embodied in the digitalization of trade mode, that is, the digitalization transformation of the whole trade process and the whole industrial chain, the digitalization, networking and intelligent development of most traditional trade processes, and the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 22 published by scholink inc. realization of lower trade costs, better efficiency and more diversified subjects; the digital transformation of cross-border delivery methods of various service trade has enriched the form of trade. the digitalization of trade objects, elements and services existing in digital form have become important trading objects in international trade. 4.1 the impact mechanism of digital industrialization on export trade first, global industrial chain circulation. the development of digital industrialization promotes the effective spread of the domestic division chain, which not only expands the domestic production length in the global value chain, but also helps to realize the regional circulation of the global industrial chain led by china. the second is network connection effect. at present, most chinese enterprises integrate into the global value chain in the way of “double embedding”. the application of digital technology has prompted more small, medium-sized and micro enterprises to join the industrial cluster, forming a supply chain and production network with more detailed division of labor, and improving the convenience of domestic industrial clusters to connect with the production links of the global value chain. third, cost saving effect. the development of digital infrastructure can effectively reduce trade costs, including information search costs, coordination costs, and delivery costs, thus improving trade efficiency. fourth, upgrade the value chain. the deep integration of digital technology and manufacturing industry can accurately identify consumer needs and provide high value-added products and services. 4.2 impact mechanism of industrial digitalization on foreign trade export first, the trade environment was optimized. it is conducive to accelerating and deepening the institutional opening of china’s rules and standards, and enhancing china’s position and voice in international rule making. second, the industrial structure was optimized. with the digital transformation of traditional industries, we will accelerate the diffusion of knowledge, information and technological innovation, and promote the optimization and upgrading of industrial structure. third, the complexity of export technology has increased. the digital transformation of manufacturing industry affects the technological content of export products by reducing trade costs, promoting technology spillovers and improving efficiency. fourth, economies of scale. the integration of digital technology and the real economy will attract enterprises at the front end of the international value chain to gather in the region, which will help domestic enterprises to absorb external advanced technical knowledge and gain advantages in the international market. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 23 published by scholink inc. 5. digital economy helps to promote the realization path of high-quality development of export trade the development of digital economy has promoted the emergence and development of digital trade. the development of digital economy has promoted china’s transformation from a traditional development model of high input, high output, high energy consumption and high pollution to a low-carbon, energy-saving and efficient development model, realizing industrial upgrading and structural optimization. the form of international trade has changed from traditional export to digital trade. the development of china’s export trade is embedded in the global value chain in a digital form. the costs of restructuring the value chain, the mode of production and the interaction mode have also changed. export trade increasingly relies on digital technology. digital technology runs through all aspects of export trade, realizing high-quality development of export trade from digital industrialization, industrial digitalization, digital economy information technology, improving export trade development environment, adjusting trade product structure, etc. 5.1 improve the development of digital industrialization and stimulate the innovation ability of foreign trade enterprises accelerate the digital industrialization to create a good carrier and environment for the gathering of innovation elements, strengthen the coordination between the government and the market, and make the function of the digital economy play a greater role with the participation of more enterprises and industries. the innovation efficiency is constantly improved through the development and application of information technology. enterprise digitalization bears not only the traditional production factors, but also the collaborative cooperation between enterprise digitalization and production and operation activities. therefore, it is necessary to change the status quo that high-end factors are concentrated in the design field, promote their continuous flow to the r&d field, and accelerate the formation of customer demand oriented innovation mode. effectively promote the growth of r&d investment of high-tech enterprises, promote the transformation of china’s import and export trade from the accumulation of quantity to the upgrading of quality, formulate differentiated innovation guidance policies for different innovation subjects such as scientific research institutes, universities and enterprises, and form a good interaction between different innovation subjects. 5.2 improve the digitalization level of export trade industry and create a sound ecology for the development of international trade the achievements of high-quality development of export trade in the digital economy come from the innovation, standardization and integration of the industry itself, as well as the digital transformation. judging from the current situation of international trade, it includes both e-commerce and digital upgrading, which is a form of integrated development. as an innovative trade mode in the new era, the sustainable and healthy development of international trade under the digital economy depends on the unity and cooperation of chinese domestic enterprises. the government should implement the work of the digital bonded zone, strengthen financial support, and build a good digital ecosystem based on the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 24 published by scholink inc. actual development. the government should strengthen the upgrading of traditional trade, closely contact the real economy industry, introduce digital trade, digital economy, digital new consumption and other industries, form a good industrial chain, build a perfect ecosystem, and constantly strengthen the union between various fields, so as to build an intelligent and interconnected digital ecological network. 5.3 improve the basic services of the digital economy and expand the development space of export trade internet technology and services are the basis for the realization of digital economy services, and also the basis for the development of export trade under the digital economy. the internet penetration rate, usage cost and network speed will directly affect the degree and scale of china’s digital economy construction and will further affect china’s foreign trade situation. promote the importance of infrastructure construction of digital economy to a higher level of attention and construction, equate the construction of facilities of digital economy with the construction of national hydropower, highways and other facilities, and comprehensively improve the penetration and utilization of broadband in china. improve the basic design and construction standards of digital trade, strengthen the innovation of new technologies in the digital era, improve the network speed of the internet, and enhance the stability of the network. we will strengthen the application of information and digital services in big data, 5g, artificial intelligence, vr technology and other frontier fields, accelerate the development and cooperation of new businesses, new economies and new industries in the field of digital economy, and lead the trend and direction of global innovation and development. strengthen international exchanges and cooperation in the digital field, promote the strategic planning of digital trade driven innovation and development, implement corresponding policies, solve the problem of cross-border multi-party collaboration through the broadest international exchanges and cooperation, develop digital information channels integrating land, sea and air, and build digital information infrastructure, so as to expand the development space of export trade. 5.4 build a good development environment for export trade with the help of digital economy through intergovernmental cooperation, we will continue to strengthen international exchanges and cooperation in the field of digital trade, make full use of wto, sco, asean, g20 and other international organizations and summits for multilateral exchanges, cooperate extensively with countries around the world, jointly build free trade ports (zones), duty-free zones, cross-border industrial parks, etc., and promote investment facilitation and trade liberalization in cross-border e-commerce, digital trade and other related industries. we will continue to optimize the digital trade regulatory system and the collaborative governance system, and promote the establishment of a collaborative governance system that is managed by the government in accordance with the law and participated by enterprises and society; innovate the government’s regulatory means, and actively use high-tech technologies such as artificial intelligence and big data analysis to improve the governance capability and regulatory system; formulate the corresponding negative list of cross-border digital www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 25 published by scholink inc. trade, strengthen the regulatory governance in the field of digital trade, strengthen the security of the digital trade industry chain, and rapidly issue laws and regulations on digital trade according to the actual situation to create a good development environment for export trade. 5.5 promote the diversification of export trade products, the diversification of main bodies, and the development of low-carbon the development of digital technology makes the production of enterprises more intelligent, especially in terms of rapid response, which is more efficient than before. export enterprises can obtain market information at low cost, master the demand of consumers, and optimize their own production and marketing structure, so as to realize the diversified development trend of enterprises’ products and services. the development of digital economy makes it possible for the diversified development of export trade. more and more foreign trade enterprises choose to carry out export trade through digital means. based on the characteristics of fairness and equality of figures, enterprises of different sizes and specifications can conduct business on the same platform, especially for small, medium-sized and micro enterprises, which can fully participate in international competition, so as to promote the diversification of export trade subjects. the traditional export trade mainly focuses on goods trade and relies on low labor prices to gain competitive advantages, which have made great contributions to china’s reform and opening up. with the sharp reduction of the birth rate of china’s population and the early arrival of population aging, the problem of china’s population structure has become increasingly prominent, and the labor price advantage has gradually disappeared. the development of the digital economy has transformed the traditional trade from a high carbon model to a low carbon model, promoting the green development of enterprises and helping china achieve the goal of “double carbon”. 6. concluding remarks the high-quality development of trade is the embodiment of a country’s economic development level, which not only includes the growth rate of gdp, but also reflects the quality of national economic development and whether it is sustainable. with the arrival of the digital economy era, the advantages of information transmission have reduced the cost of international trade, and profound changes have taken place in the traditional trade model. digitalization in the economic field has become an inevitable trend of economic development. international trade has changed from price war to information war. the extensive application of information technology has weakened the influence of traditional factors such as geographical distance, economic differences and information asymmetry in international trade barriers, significantly improved the efficiency of international trade, and achieved remarkable results in increasing tradable categories, reducing transaction costs, and improving international trading mechanisms. digital technology and digitalization are reconstructing the traditional industrial chain, value chain and supply chain, changing all aspects of world development. from the initial barter to cash transactions to e-commerce, the way of trade has undergone profound changes with the rapid www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 26 published by scholink inc. development of digital technology. in general, the development of china’s digital economy has a great impact on export trade. china should always pay attention to the development trend of the digital economy and the development of international trade, constantly adjust its foreign trade development strategy, and take effective strategies to optimize the import and export structure, improve export quality and added value, strive for initiative in international trade, and provide favorable conditions for the development of the digital economy and the construction of a foreign trade power, to promote the process of trade power. references acemoglu, d. et al. 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(2020). internet platform economy and mitigating market distortions. economy of finance and trade, 541(05), 146-160. zhang, p. (2019). the nature and development logic of digital economy. economist, 2019(2), 25-33. zhao, t., & chen, z. (2020). comparative advantage and industrial policy effect: regional differences and institutional causes. economics (quarterly), 19(03), 777-796. zhu, y. y. (2021). countermeasures for the development of china’s digital service trade. commercial economy research, 2021(3), 150-152. https://doi.org/10.1016/j.jbusres.2021.02.008 https://doi.org/10.1007/s11356-020-07683-x https://doi.org/10.1007/s00191-012-0291-3 https://doi.org/10.1111/1467-9787.00262 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 4, no. 2, 2021 www.scholink.org/ojs/index.php/elp 1 original paper effects of the covid-19 measures on the economy and the environment peter stallinga 1,3,4* & igor khmelinskii 2,3,4 1 university of the algarve, fct-deei, faro, portugal 2 university of the algarve, fct-dqf, faro, portugal 3 ossónoba philosophical society, faro, portugal 4 center for electronics optoelectronics and telecommunications, faro, portugal * peter stallinga, e-mail: peter.stallinga@gmail.com received: june 2, 2021 accepted: june 23, 2021 online published: september 29, 2021 doi:10.22158/elp.v4n2p1 url: http://dx.doi.org/10.22158/elp.v4n2p1 abstract the effects of the covid-19 pandemic and governmental countermeasures are described in this work by putting it in the framework of the energy theory of value. it is found that the downturn in economy is not accompanied by an equal downturn in energy consumption nor of carbon emissions. moreover, not even the empirical fifth-power law linking the former two is any longer sustained, more so proving the state of virtualization of our economy (disconnecting it from a physical reality). it is also found that the reduction of carbon emissions had no impact on the dynamics of carbon in the atmosphere, which goes on business as usual. all these results undermine the planned policies of the world agenda. keywords energy theory of value, covid-19, carbon emissions, climate change, fiat currency 1. introduction as the new year (2021) has started and economical and natural data are coming in, we can make a balance of the effect the corona-virus (covid-19) pandemic has had so far on the world. as we look around us, the impact is enormous; people losing their jobs, traveling basically stopped, and governments endebting themselves ever more in order to prop up what is left of the economy. yet, we have to analyze this in a holistic way, and not only look at the psychological effects. for that we can make a energy-based analysis, using the energy theory of value (etv), a physics generalization of the marxian labor theory of value that expresses the socially (human) necessary effort needed to produce things. if we combine this with the political agenda, as stipulated by stakeholders in the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 2 published by scholink inc. political-economic realms, we can make an analysis of the impact of the pandemic on economy and nature. this is what we will endeavor in this work. 2. method in this work, we will analyze the publicly available data of economy and the atmosphere to find out what was the impact of the covid-19 virus on the economy and the atmosphere. 3. result to understand the impact of covid-19 on the economy, we first must discuss the fiat currency system. to start with a remarkable fact: 21% of fiat money circulating in 2021 has been ―printed‖ (electronically added) in 2020 (katusa research, 2021). it reminds us of the old joke about science that was going around in the 1980s: ―extrapolating, by the end of the 21st century the amount of space the physical review journal will occupy on the library shelves will grow faster than the speed of light. however, it does not contradict the laws of einstein, because information density will tend to zero‖. similarly, money printing in 2021 is reaching infinite speed. however, it does not go against any laws of physics, because the intrinsic value of money will tend to zero. it does, however, mean that real commodities (all those that cost energy to produce, like wheat, gold and bitcoin) will see a sharp increase in price. oil and gold can reach infinite market quotations because every barrel costs an amount of energy to produce. every next ounce of gold or barrel of oil is more difficult to obtain and hence the price can grow steadily. combined with exponential money printing, the price of physical commodities will rise exponentially. bitcoin, however, has an added property compared to natural resources. because of the increased extraction cost, oil will never be fully mined, and we can consider oil as an infinite resource. yet, bitcoin will end in 2140 when the last coin will be calculated and is thus truly finite (there will be 21 million of them (decrypt, 2021)). bitcoin is thus expected to rise in a hyperbolic way, with a singularity in 2140. but, how did we get here? to put it short, first we had real energy-based commodities (such as gold) for a direct-trade ―currency‖. more like bartering; goods were traded and gold (and the likes) were going in the opposite direction. later, storage safes (banks) emitted deposit notes that were used instead of gold for practical reasons. then the banks started emitting more banknotes than they had physical gold in the safes in a so-called fractional-reserve-banking (frb) scheme, which diluted the gold. then the link with gold was cut altogether in the fiat-currency scheme of bretton woods (after also the bank of england had already given up gold-backed money earlier). ―fiat‖ because it was based on the people‘s trust it had any value, there where it actually no longer had any value whatsoever. from this moment on, money could be printed out of thin air. this was further made worse by electronic money (not to be confused with crypto-money, the latter cannot be created out of thin air). creating money literally costs nothing. well, about e = kt = 4.11×10 −21 j, the cost of changing one bit of information, independent of the value created, the value merely depends on the numeric www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 3 published by scholink inc. position/weight of the bit changed. this energy can be considered zero. money now became an instrument of megalomaniac leaders and all those who thus had the power to control the others. some, having given the power, actually feel an obligation to act (―if i can and it is good [for mankind] i have a moral obligation to do it‖), others act merely in self interest (―if i can and it is good [for me] i am incentivated to do it‖), or are simply sociopaths (―if i can i will‖). we cannot determine the reasons for people‘s behavior; we can only see that they behave in a certain way, and note that it is enabled by the system of fiat currency. we henceforth sum them all up by ―sociopaths‖ for simplicity‘s sake, a conclusion actually reached by andrzej łobaczewski who calls those in power as such (lobaczewski, 2007). we now have world leaders that manage the world as if it was their own ant farm to run. this behavior is found uniquely on the left side of the political spectrum. that is because the ideology of the right side of the spectrum is liberalism, to leave people alone. only the left has an ideology that makes their politicians act as described above. the fiat currency system is the friend of leftist policies and politicians; one can print money out of thin air and with that finance a centralized-power society agenda. yet, this financial system is not enough to fully control the world in all its facets, and it actually destroys itself, as we have seen in the financial crisis experiment (sic) of 2008. we must understand that no money system—including fiat currency—is feasible in a free market. that can easily be understood. let‘s start with this simple observation about the three main actors in society:  citizens bring money to the bank and expect profit  banks lend money to entrepreneurs and expect profit  entrepreneurial citizens borrow money from the banks and expect profit not being philanthropists, if any of the actors lose an outlook on profit they will withdraw from the market and the game stops. however, in a zero-sum game (constant amount of money) the total profit is zero and either nobody wins anything, or at least one actor loses and the game stops. now, would you enter the game with some risk and with zero outlook on profit? no? well, don‘t expect others to do it. the game thus stops. the game has to be made into a positive-sum game. money has to be steadily increased. enters the (leftist) state. the state assumes the role of eternal loser and increases debt every year. money is printed and inserted into society through state debt (fresh money in exchange for treasury notes) and handed out to state employees and to finance lossy ppps (public-private partnerships), money that is then slowly transferred to the other actors in society, that keep on making profit on average. especially those in power, i.e., banks and large companies. of course, people want real profit, and not just more money. and profit is expressed in joule (energy) and not dollars or euros. i do not care if my 100 thousand euro investment today tomorrow becomes 200 thousand euros, if today i can buy a house for 100 thousand and tomorrow only the garage door of that house for 200 thousand euros. fortunately, the system managed to increase energetic profit for everybody (except the state), and not only financial profit. that is because the energetic value increased faster than the money supply. some credit goes to the aforementioned world managers, even if treating www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 4 published by scholink inc. other human beings as cattle is fundamentally immoral. the system thus needs an eternally increasing energy growth (as any natural biological system requires an ever-increasing entropy production). this cannot be achieved in a finite planet. even though we are still far away from saturation: seeing our planet as a single entity, earth, with a radius of 6,371 km in a radiation bath of 1.361 kw/m 2 receives 1.7x10 17 w energy, whereas the 170,000 twh/year global energy consumption is only 1.9x10 13 w, or about 0.01% of energy input. yet, we might already start seeing signs of saturation long before we get to saturation values. and technocratic leaders, foreseeing this problem of the system, started talking about ―sustainable growth‖ (a contradiction in terms). things will go bad in a system where money or capital in general will only be lent out if it leads to capital gains (energetic profit) and if no profit then the lending game stops. in 2008 an experiment was done, (not) justified on basis of a publication ―growth in a time of debt‖ of reinhart and rogoff (2010), stopping the scheme of money insertion into society through state debts. all countries with debt-to-gdp ratios above 90% were cut off from the money supply. the result was predictable (maybe more so in hindsight). the game returned to a zero-sum game and the economy immediately halted; the financial crisis. that because actors had the free choice to leave the free market and they did, because the outlook on profit was grim. immediately when the results of the experiment came in the money-printing game was restarted, with only greece as collateral damage. now with quantitative easing program of the de facto leaders of the world, the central banks (joined in the international monetary fund). the solution was thought to lie in the last phrase of the previous paragraph. the free will had to be removed from society and the free market abolished. a plan was prepared for that. while still for some years hidden from public view (and everybody that mentioned it thus conveniently called a conspiracy thinker), it is now in full sight. klaus schwab of the world economic forum is the head figure presenting this plan of the great reset (schwab & malleter, 2020; schwab & vanham, 2021). in fact, schwab is beautifully portraying the role of evil mad sociopath in his videos; talking in heavy german accented he reminds us of dr. no of any james bond movie. however, we will not analyze format, but only contents. the great reset is the financial-economic facet of the new world order that is the political system of full-spectrum dominance of the world by the leaders described above. it involves elimination of private property and abolition of all freedoms. best described by the wef statement ―you will own nothing and you will be happy‖ (parker, 2016). it finds support among nearly all of western leaders, who foresee for themselves a leading role in shaping the world, either by identifying their moral duty to do so and a megalomaniac idea that they can, or simply from their sociopathic tendencies (lobaczewski, 2007). only a few ―populists‖ still protested, but they were easily dealt with in smearing campaign on the media that the system controls (basically all of them). for the simple man in the street: ―[yo]u‘re not required to sign up. all you need do is sit still and accept the transformation to totalitarianism as it plays out‖ (casey, 2021). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 5 published by scholink inc. the first step in the process of the great reset is to fully wreck the free-market economy in such a way that people will turn to the government for handouts. people will no longer receive on basis of their contribution to society, as in a pure meritocracy or a truly free market. they will receive on basis of their needs. and it is expected from them that they will contribute according to their abilities (or government handouts will be stopped). this is the ideology of communism, as paraphrased by these famous words of karl marx in his 1875 critique of the gotha program (marx, 1875), ―to each according to his needs and from each according to his abilities‖. but, how to make people accept such radical changes in society? what was needed was a deep and profound existential crisis. the world waited for a catastrophic event such as a killer virus, or one that could be sold to the public as such, in order to create a widespread panic, at which time the economy could be wrecked (creating further misery and a stronger desire for a leading role of government, a permanent move away from liberalism). in the meantime the propaganda of the pandemic was practiced (see for example event 201, held by the world health organization [who] and other stakeholders in september 2019 (center for health security, 2020)). in january 2020 the rather harmless flu-like covid-19 virus was chosen to be the needed ―killer‖ virus. the who declared it a type-a (―most dangerous‖) virus and the wheels were set in motion. the train could no longer be stopped, because the agreements were signed by all 176 participating countries and it basically bypassed local governments once the virus was declared pandemic by the who. we now have a communistic centralized-economy system where the government determines what where and when is produced, who can have what freedoms, and what rights are forfeited. in many countries the constitutions are bypassed. to say it simply, a totalitarian society has been implemented overnight. people get paid by government handouts, there where economic activity has been reduced to the bare minimum. and this is heralded by the system. apart from giving the leaders the desired full control, it does reduce the ecological fingerprint of individuals (to be further reduced in the fight against global warming), see later on in this text. in their idealist utopist minds, mankind is eliminated (or at least reduced to a mere fraction of the current population) in order to save the planet. why a planet, a clump of atoms devoid of human life, of which there are billions of trillions in the universe, is worth aiming for is beyond our grasp. but that is how sociopaths think. to see how this can be right, a curious fact: note that the country that already had the desired economic system, china, was both the source of the virus and one of the few countries in the world that do not seem to be much affected by it. as mentioned before, in one of the great reset programs of the wef it is said ―you will own nothing and you will be happy‖. at first thought this might be a communist slogan, and in fact interpreted as such by many social media warriors. however, upon second thought, we have to think this is rather a corporate-fascist motto. that becomes clear when we analyze the program and rephrase the motto, putting stress on the word ―you‖, as in ―you will own nothing and you will be happy‖. the idea is that the new business model is one where people do not own things but rather pay for their usage. an www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 6 published by scholink inc. example may be spotify. when you listen to music, you do not own the music, but rather you pay for the pleasure of listening to it. since you pay to somebody, it means, somebody out there owns the music. therefore, ―you will own nothing, but we will [own everything] and will charge you for using it, as long as we allow it. better behave‖. this is corporate fascism, where the ownership of things belongs to the elite and managed by local ceos and politicians. but let us take a look at the economy in numbers. with the year 2020 over, and the numbers coming in, we can do an analysis of the economic impact of the covid-19 induced crisis. remember, the medical emergency is given by nature, the economic crisis decreed by government. according to enerdata (2021), the world economy shrank by 4.5% and the energy consumption dropped by 5.9%, with co2 emissions dropping even more, 8.6%, owing to the flexibility of fossil fuels to easily increase or reduce production; the installed non-fossil fuel capacity cannot be scaled down, whereas fossil fuels usage can easily be reduced. we thus indeed see the instantaneous correlation between economy and energy consumption. we remind our readers that a correlation between economy and energy consumption as 170 mw per us$ gdp in 2019 was found (stallinga, 2020a). moreover, it was found that this ratio is changing over time. empirically it was found that the gwp (gross world product) grows much faster than the energy consumption and the gwp is proportional to the fifth power of the energy used per capita, the non-linearity caused by the monetary system that is not based on energy (like gold) but is free-floating instead, i.e., not linked to anything material. in the preceding year (2019), according to the data presented by enerdata, the fifth power relation had been maintained; energy consumption grew by 0.6% and gwp by 3.1% (1.006 5 = 1.031 within the margin of error). apparently a natural fifth-power law emerges without it being clear why this should be so. in 2020 this relation was broken. the 5.9% reduction in energy consumption, if the fifth-power link with economy was a physical hard law, should have caused a gwp reduction of 26.2%, which was clearly not the case. we thus conclude that indeed the real (energetic) economy has dropped by 5.9%, which should have been accompanied by a reduction of measured gwp by 5.9% if the unit used to express the economy was well defined and based on energy somehow, but was in fact only 4.5% because of the monetary system increasingly virtualizing the economy. naturally, according to piketty (―capital in the 21st century‖, 2013), the capital grows by 5% per year, a trend that is observed in the data, where production and energy consumption are proportional to the amount of means of production (capital). world wars and the introduction of fiat money have had the same effect on this growth, stunting it well below 5%. moreover, the economy can grow faster than the increase in physical means. with virtualization of the economy we can even have economic ―growth‖ in the absence of real physical growth; we can become poorer while the economy is growing. technically what they have been doing is to order the real economy to halt and for states to borrow astronomical amounts of money, then giving this away to state employees and state-funded projects without anything given back in exchange (for example, our salaries as professors keep on being paid, even without giving – seriously–lectures, and research has stopped; no energy spent), and this then www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 7 published by scholink inc. percolating back to the banks and state. we are living in a virtual economy, with money being slushed around in the system, without anywhere labor being done. the gwp is simply that what they tell us it is. finally, the enerdata site also mentions that co2 emissions have dropped in 2020 by 8.6%. we can make an analysis how much effect this had on the planet. for that we use the co2 concentration data measured at mauna loa, as supplied by noaa (global monitoring laboratory, 2021). figure 1 shows the result. first we must note that the diffusion of co2 in the atmosphere is rather fast. as jacob writes (jacob, 1999): longitudinal wind speeds are of the order of 10 m/s, and observations show that it takes only a few weeks for air to circumnavigate the globe in a given latitudinal band. meridonal transport is slower; wind speeds are of the order of 1 m/s, and it typically takes 1-2 months for air at midlatitudes to exchange with the tropics or with polar regions. interhemispheric transport is even slower because of the lack of thermal forcing across the equator. it thus takes about a year for air to exchange between the northern and southern hemispheres. [..] vertical wind speeds are only in the range of 1 mm/s to 1 cm/s. the resulting time scale for vertical transport from the surface to the tropopause is about 3 months. faster vertical transport can take place by locally driven buoyancy. mauna loa is in the northern hemisphere, where also most economic activity and co2 emissions take place. we can thus expect that the anthropogenic co2 produced has already efficiently arrived at the keeling measuring station in hawaii. delay effects, although present, do not distort much the analysis we can do on basis of figure 1. at first look, it seems that the co2 concentration in the atmosphere was increasing business as usual. see the green curve in figure 1. however, a better way to present the data is to see the yearly increase, the relative year-on-year (yoy) increase. this is presented by the red dots that shows for every month the percentage increase relative to the same month of the previous year. these data points were then used in a linear regression (see dashed black line). as we can see, the points of 2020, with reduced co2 emissions are right on top of this line, as if nothing has happened. in the zoom-in (lower panel) we can see this better. if the increase in co2 in the atmosphere was fully due to human emissions, we would have expected the dots to be spread around the gray box, instead they are spread around a blue box that represents the statistical analysis (mean and standard error) of the 2020 data points. this box is very close to the line of extrapolation of previous year, hinting at a model where the increase of co2 is not caused by human co2 at all. it has to be noted that the fluctuations in the year-on-year data are caused by the variations in sea-surface temperatures. as shown by stallinga and khmelinskii, in warm water years (so-called el niño) oceans liberate an extra amount of co2 to the atmosphere and in cold years (so-called la niña) co2 is captured by the oceans, or less is liberated (stallinga & khmelinskii, 2018). currently we are on a path coming from an el niño to one of rather cooling down, and we can thus not attribute the lack of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 8 published by scholink inc. dropping of the yoy co2 increment rate to the warming of oceans, since that is not taking place. the conclusion we have to draw is that the effect of human activity is not visible in the atmospheric carbon-dioxide transient. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 9 published by scholink inc. figure 1. co2 concentration in the atmosphere as measured at mauna loa (green curve) and yearly increase (brown dots) source: noaa (global monitoring laboratory, 2021). the dashed line is a linear regression. the orange and yellow areas are 95% confidence interval and 90% prediction interval of the linear regression, respectively. if increase in co2 concentration in the atmosphere had 100% human origin, we would have expected the data of 2020 to lie within the red box labeled ‗expectation‘. they, however, are spread around the business-as-usual line of linear regression and extrapolation of data into 2020, as if co2 is 100% determined by nature, the blue box. the blue and red histograms below show the residuals of these two models. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 10 published by scholink inc. 4. discussion in this work we have shown what the impacts of the covid-19 virus on the economy and the climate are. first, the virus itself was doing relatively little, about the same order as any other flu epidemic that hits the world regularly. nearly 2 million people died of it during this pandemic worldwide, which is rather within normality. this is outside the scope of this paper and we just present it here at face value. the effect of governmental measures was enormous. world economy collapsed and many people saw their livelihood destroyed. as we know, many people started living on the dole. in the united states checks were handed out. in europe there comes bazooka money from brussels. since in europa access to the freshly printed money comes with the condition of reforms (business has to be organized along the ideas of central government), we recognize in this the pluriannual planned economy of the former soviet union. if government is doing this to reduce energy consumption, we have to be forewarned that it will cause widespread poverty, since energy consumption is directly related to wealth (stallinga, 2020a). moreover, if this reduction in energy consumption is planned in order to reduce carbon emissions in order to save the planet from a climate catastrophe, we have to be vigilant, since it does not seem that anthropogenic carbon dioxide has any effect on the atmosphere. this was shown in this work here: with the economy stalled, and carbon emissions falling off a cliff, the atmosphere went on, business as usual, thus hinting at a reduced impact of humans on the atmosphere and thus the climate. (this if we were inclined to believe that co2 in the atmosphere does indeed affect the climate and affect it adversely). this will put the plan of addressing the climate problem in a completely new perspective. an induced crisis to enable a restructuring of our economy to cause an energy transition in order to save the planet from climate doom is fruitless, since humans have no effect on the climate. we had already shown that co2 is not a climate forcing agent (stallinga & khmelinskii, 2018; stallinga, 2020b). here we get information that humans might also not be co2-forcing agents. a covid-19-induced crisis will then have only one remaining effect: pan-global pandemic misery. references casey, doug, doug casey‘s international man. (2021). you’ll own nothing and you’ll be happy. retrieved from https://internationalman.com/articles/you-will-own-nothing-and-you-will-be-happy/ center for health security. (2020). event 201. a global pandemic exercise. retrieved from https://centerforhealthsecurity.org/event201/ (visited 28/vi/2021). decrypt. (2021). what will happen to bitcoin after all 21 million are mined? retrieved from https://decrypt.co/33124/what-will-happen-to-bitcoin-after-all-21-million-are-mined enerdata. (2021). global energy trends-2021 edition. retrieved from https://www.enerdata.net/publications/reports-presentations/world-energy-trends.html www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 2, 2021 11 published by scholink inc. global monitoring laboratory. (2021). trends in atmospheric carbon dioxide. retrieved from https://www.esrl.noaa.gov/gmd/ccgg/trends/ jacob, d. j. (1999). introduction to atmospheric chemistry (pp. 52-53). princeton university press. katusa research. (2021). is 2021 the death of fiat currency? retrieved from https://katusaresearch.com/is-2021-the-death-of-fiat-currency/ lobaczewski, a. m. (2007). political ponerology: a science on the nature of evil adjusted for political purposes (2nd ed.). red pill press. marx, k. (1875). critique of the gotha programme. dodo press. parker, ceri. world economic forum. (2016). 8 prediction for the world in 2030. retrieved from https://www.weforum.org/agenda/2016/11/8-predictions-for-the-world-in-2030/ piketty, t. (2013). capital in the twenty-first century. editions du seuil harvard university press. https://doi.org/10.4159/9780674369542 reinhart, c. m., & rogoff, k. s. (2010). growth in a time of debt. american economic review, 100, 573-578. https://doi.org/10.1257/aer.100.2.573 schwab, k., & malleret, t. (2020). covid-19: the great reset. isbn agentur schweiz. schwab, k., & vanham, p. (2021). stakeholder capitalism: a global economy that works for progress, people and planet. wiley. stallinga, p. (2020a). on the energy theory of value: economy and policies. modern economy, 11. https://doi.org/10.4236/me.2020.115081 stallinga, p. (2020b). comprehensive analytical study of the greenhouse effect of the atmosphere. atmospheric and climate sciences, 10, 40-80. https://doi.org/10.4236/acs.2020.101003 stallinga, p., & khmelinskii, i. (2018). analysis of temporal signals of climate. natural science, 10, 393-403. https://doi.org/10.4236/ns.2018.1010037 https://doi.org/10.4159/9780674369542 https://doi.org/10.1257/aer.100.2.573 https://doi.org/10.4236/me.2020.115081 https://doi.org/10.4236/acs.2020.101003 https://doi.org/10.4236/ns.2018.1010037 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 154 original paper embedded governance perspective on the theoretical development and evolution of minority village regulations chen yaolu 1 1 school of management and economics, guangxi normal university, guilin, china received: april 17, 2024 accepted: may 31, 2024 online published: june 7, 2024 doi:10.22158/elp.v7n1p154 url: http://dx.doi.org/10.22158/elp.v7n1p154 abstract village regulations, as an informal institution, can only function when embedded in specific social networks. in traditional times, village regulations were endogenous, embedded in the “cultural governance network” of traditional rural society, forming an important part of the rural governance system. since modern times, especially since the founding of the people’s republic of china, the “cultural governance network” supported by confucian ethics, gentry, and clans has been replaced by an “organizational integration network” supported by modern state power, administration, institutions, and modern culture. the current village regulations are constructed by modern state forces and are detached from the current rural social network, thus their role in rural governance is limited. as an important form of “three-governance” integration in grassroots governance, village regulations need to be adjusted according to rural social networks to play their expected governance functions, activate autonomy to cultivate endogenous subjects, practice moral governance to revitalize the cultural foundation, and promote rule of law to optimize the state’s presence. keywords village regulations, institutional evolution, embedded governance 1. introduction in recent years, the state has increasingly valued the role of millennium village regulations in rural governance. on december 27, 2018, the ministry of civil affairs and other departments jointly issued the “guiding opinions on the work of village regulations and residents’ conventions”, requiring that “by 2020, all villages across the country should formulate or revise practical and useful village regulations”. this represents the state’s use of administrative power to promote village regulations. as an important component of the villager autonomy system, village regulations are seen as codes of conduct for regulating rural life, as well as important means for maintaining rural social order, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 155 protecting villagers’ autonomy rights, and revitalizing rural culture. in traditional chinese rural society, there was a “dual-track politics”: on one hand, the top-down imperial power, and on the other, the bottom-up gentry power and clan power. these operated in parallel, interacting to form a rural governance model where the emperor ruled without direct intervention (gao, 2013, pp. 133-136) and local governance relied on clans and gentry, which in turn relied on ethics (qu, 2005, pp. 20-22). “ethics” was the foundation of traditional chinese governance, and village regulations, as a concrete manifestation of “ethics”, played an important role in traditional rural governance. however, since modern times, especially since the founding of the people’s republic of china, rural society has undergone several profound transformations, dismantling the traditional relational networks and social structures. the cultural and institutional foundations that village regulations relied on no longer exist, and the traditional rural governance system has ceased to function. therefore, to what extent can the current top-down state-promoted village regulations play a governance role? what are the conditions for their effective governance? 2. literature review 2.1 research on minority village regulations in yunnan, guangxi, and guizhou village regulations are one of the tools for effective rural governance in china, functioning to educate the people, stabilize order, manage public affairs, and supplement the deficiencies of formal institutions like state laws (dang, liu & mo, 2022, pp. 117-129, p. 141). in areas with multiple ethnic groups, traditional village regulations might have different evolutionary paths compared to han-dominated regions and follow an independent evolution logic. since the 1990s, scholars have increasingly focused on village regulations of ethnic minorities in yunnan, guangxi, and guizhou. many scholars have made pioneering contributions to the study of these regulations, viewing them as concrete manifestations of the spiritual civilization requirements of different eras (ma, 2016, pp. 36-45). some studies have highlighted the deficiencies and limitations of minority village regulations, while others have examined their historical evolution and continued importance in modern society (chen & chen, 1992, pp. 80-86). these studies provide new research directions for subsequent academic work on village regulations. since the formation of minority village regulations in yunnan, guangxi, and guizhou, they have not only embodied minority cultures but also responded to the shortcomings of formal institutions (duan, 2011, pp. 21-25). domestic scholars have examined how traditional cultures and morals act as endogenous variables in the creation of minority village regulations and have studied the relationship between official organizations, state laws, and the evolution of these regulations (yang & zhao, 2005, pp. 63-66). existing research mainly focuses on the connotations, historical evolution, nature, characteristics, types, functions, forms, textual structures, main contents, effectiveness basis, and sources of authority of village regulations (zhou & liu, 2013, pp. 65-70). some scholars have also explored the coordination www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 156 and integration between village regulations and state laws from the perspective of national governance. specific issues studied include conflicts between minority customary laws and state laws and how these two can interact constructively (xu, 2009, pp. 13-19). scholars have also investigated the cultural characteristics and values of customary laws in ethnic regions based on historical evidence (an, 2013, pp. 8-11). 2.2 interdisciplinary perspectives on village regulations the historical origins of village regulations can be traced back to the zhou dynasty’s “codes of law (zhou & liu, 2017, pp. 126-134)”. essentially, they are customary laws of rural society, independent of state laws, based on social authority and organizations, and possessing a certain degree of enforceability (hao & zhong, 2014, pp. 75-80). the unique natural ecology and social environment have nurtured multiple overlapping governance structures, ethical content, and distinctive social customs and regulations. village regulations, also known as village conventions, have evolved from theoretical constructs to social practices. they are a cultural phenomenon involving knowledge from various disciplines, including history, law, and ethics, reflecting their interdisciplinary nature (chen & yao, 2019, pp. 90-99). from a historical perspective, scholars have traced the origins and development of village regulations, discussing their significant value in promoting rural governance, village integration, and social reforms in modern legal society. from a legal perspective, studies have examined the legal challenges of village regulations in minority areas and the constructive interaction between village regulations and state laws. from an ethical perspective, village regulations have strong ethical implications, with traditional ethics and customs becoming important criteria for regulating villagers’ daily lives and evaluating social behavior. 2.3 research on minority customs village regulations are typical informal institutional norms, reflecting the connotations and colors of customs, habits, and morals. they are products of specific regions, groups, and cultures, and are unique norms and principles of rural society (gao, 2018, pp. 56-64). customs are social norms, independent of state laws, emphasizing social ethics and behavioral norms, existing in actual life, originating from practice, and applied to practice. in the process of ethnic formation, religious rituals and customs dominate social life, maintaining and controlling the survival and development of the ethnic group (wang, y. & wang, w., 2015, pp. 100-103). minority groups, often residing in unique natural environments such as mountains, forests, and valleys with isolated transportation and limited external contact, retain natural worship and traditional customs that influence their village regulations (zhang, 2004, pp. 51-57). belief is the foundation and base of village regulations, which are rooted in local beliefs and cannot transcend or violate them. village regulations first aim to maintain the stability and authority of beliefs (xu, x. & xu, b., 2019, pp. 90-99). informal institutions combine with specific regional and cultural environments to unify and standardize basic thoughts and behaviors, guiding minority people’s www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 157 thoughts and actions within the advocated management track (zhou & liu, 2014, pp. 21-27, p. 110). shared cultural foundations and the organization and advocacy of clans and leaders form a unified ideology and belief system, relying on villagers’ will and internal constraints of universal compliance, solving the problem of shared beliefs with low educational costs for enforcement (liang, 1999, p. 60). compliance with these beliefs and customs ensures orderly social structure within ethnic communities (gao, 2013, pp. 133-136). these points of focus are both important influencing factors in the evolution of village regulations and the objective objects influenced by village regulations. as material carriers of informal institutions, village regulations involve the participation of different subjects in their evolution, shaping their current cultural characteristics and connotations. therefore, analyzing village regulations based on existing theoretical foundations helps understand the evolutionary mechanisms of village regulations in yunnan, guangxi, and guizhou minority villages and addresses the current challenges of detachment from traditional social networks. 3. analytical perspective: matching informal institutions with social network 3.1 research on embedded governance the term “embedding” originally refers to the organic combination of one system with another, or an endogenous phenomenon within other objects. polanyi first proposed the concept of embeddedness, constructing the theoretical proposition that “economic actions are embedded in relational networks”. later, granovetter proposed a new theory of embeddedness, but their interpretations and theoretical perspectives differed. while both viewed humans as social beings whose actions are constrained by social, economic, political, and cultural factors, polanyi emphasized the relationship between individual behavior and social structure, highlighting the importance of social relations in economic actions—a substantive embeddedness. granovetter advocated a “formal embeddedness”, where markets and actors are influenced by social relations and are part of these relations. granovetter further divided embeddedness into relational embeddedness and structural embeddedness. relational embeddedness refers to the embedding of actors’ behaviors in the social networks of interactions with others, where expectations of regularity, desire for approval, and reciprocity principles significantly influence decision-making. structural embeddedness refers to the connections between the network in which the actors are embedded and other networks, driven by social factors such as culture and values. the interaction and trust generated among economic actors limit opportunism and ensure smooth transactions. subsequent researchers, while criticizing and developing polanyi and granovetter’s theories, have not surpassed them. andersson expanded embeddedness to include business and technical embeddedness through network analysis of multinational companies’ value chains and internal operations. halinen explained embeddedness in terms of time, space, society, politics, market, and technology. scholars later advanced the discussion of embeddedness to hierarchical structures. jessop viewed embeddedness www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 158 as including social embedding of interpersonal relationships, institutional embedding between organizations, and social embedding of complex centrifugal social functions’ institutional orders (zhang, 2006, pp. 169-175). hagedoorn classified embeddedness into environmental embeddedness, organizational embeddedness, and bilateral embeddedness based on the characteristics of enterprise embedding and external environment. based on granovetter’s embeddedness theory, many management researchers adopted the theory to analyze organizational performance (chen, 2019, pp. 80-90). as the embeddedness theory was continuously refined, it generated different theoretical frameworks for various analytical purposes. granovetter classified embeddedness into structural and relational embeddedness, while zukin and dimaggio identified four types: (1): cognitive embeddedness, where culture and shared knowledge shape actions; (2): cultural embeddedness, where individual action norms align with community actions; (3): political embeddedness, concerning relations with political entities; (4): structural embeddedness, referring to social relations’ impacts. the concept of “embedded governance” is widely applied in rural governance studies (chi, 2017, pp. 78-82). within this field, there is a substantial body of research on the “embeddedness” of government power and endogenous rural order. these studies primarily address two issues: the distinction between state power and endogenous rural order (informal institutions) in terms of embeddedness, and the “mutual embedding” of endogenous order and state power. in general, embedded governance refers to the integration of state or governmental power into grassroots society within the overall framework of national governance (dang, liu & mo, 2022, pp. 117-129, p. 141). this effective political strategy aims to integrate various social resources to achieve effective state governance over grassroots society. to achieve effective rural governance, it is necessary to consider the normative guiding role of formal institutions, as well as the indispensable role of informal institutions, such as village regulations and customs, in rural governance. from the above, it is evident that the academic community has developed a deep understanding of the concept of embeddedness (duan, 2011, pp. 21-25). the boundaries of its connotation have expanded beyond the original concept, and its meaning has become increasingly generalized. from the diverse explanations, it is clear that “embeddedness” remains a core concept. almost all theoretical propositions can be judged based on the idea that the economy is always embedded in society, and economic actions are merely a subset of social actions. in other words, economic activities are shaped and constrained by interpersonal networks, hierarchical organizations, cultural beliefs, and economic ideologies. without these “social factors”, economic activities would be impossible. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 159 4. general theory of institutions and their evolution institutional evolution is a complex process. since adam smith, the importance of institutions to human economic and social activities has been widely acknowledged in the field of economics. many economists have been exploring theories of institutional evolution, presenting a diverse landscape of research from different perspectives. how do institutions evolve? mainstream economics often employs the concept of “institutional change”. mainstream theories of institutional change suggest that when factors such as production technology, the relative prices of resources, exogenous transaction costs, and institutional choice sets change, people demand new institutional services (fang, 2002, pp. 58-60). this disrupts the original institutional equilibrium, leading to institutional imbalance and creating opportunities for new institutional arrangements. if the transaction costs of institutional change are not prohibitively high, the change can occur, potentially altering the entire economic structure (dong zhiqiang, 2008). research on institutional evolution in institutional economics has yielded valuable insights, focusing on several aspects: 1) modes and paths of institutional change: north (1994, 2013) established a theoretical framework for analyzing “institutional change”, transitioning from a static to a dynamic perspective. this framework integrates property rights, state theory, and philosophical ideologies as core foundations of institutional change, addressing the shortcomings of neoclassical economics in explaining historical economic performance and providing a solid theoretical basis for subsequent research. 2) game theory in institutional analysis: aoki (2001) introduced evolutionary game theory to institutional analysis, defining institutional change as a fundamental shift in participants’ decision-making rules and associated common beliefs. 3) case studies of institutional change: greif (1994) examined the institutional foundations of market transactions through historical case studies, such as the genoese merchants, to explain the self-enforcing nature of market institutions. evolutionary economics focuses on the role of entrepreneurs in institutional evolution, the relationship between knowledge evolution and institutional evolution, cognitive models and institutional evolution, and the co-evolution of technological innovation and institutions. entrepreneurs and innovation are central to evolutionary economics, crucial for understanding schumpeter’s “creative destruction”. later economists extended this idea, highlighting the importance of entrepreneurs in institutional evolution. kirzner’s (1973) concept of “alertness” discusses entrepreneurship as the source of innovation in economic systems. the relationship between knowledge evolution and institutional evolution is also examined. evolutionary economics posits that human ignorance and incomplete knowledge necessitate institutions as means to reduce uncertainty. participants’ rationality and cognitive abilities are limited, leading to fundamental uncertainty about the future (fei, 2006, p. 72). this incomplete knowledge leads to the hypothesis of “bounded cognition”, where individuals rely on past experiences and others’ knowledge www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 160 to solve new problems. when these sources are insufficient, logical thinking becomes the source of institutional innovation. the santa fe school has re-examined fundamental economic propositions from behavioral and evolutionary perspectives. arthur (1995) introduced self-reinforcement mechanisms into institutional analysis, discussing increasing returns and the lock-in phenomena in institutional change, leading to multiple equilibria. prominent domestic scholars are concentrated in three research areas: 1) institutional factors as drivers of economic growth: huang shaoan and wang wei (2023) studied the economic disparity between northern and southern china from the perspective of confucian culture, revealing the differential impact of informal institutions in these regions as a deep-rooted cause of economic disparity (he & li, 2013, pp. 21-24). sheng hong (2011) analyzed the “chinese miracle” through the lens of institutional economics, discussing the role of economic liberalism in china’s economic performance (jia & li, 2016, pp. 16-20, p. 25). yang ruilong (2003) explored the relationship between economic growth and institutional change, proposing that natural endowments and institutional determinants can complement each other in economic development (jiang, 2010, pp. 17875-17877). 2) interdisciplinary perspectives on institutional change: wang dingding and colleagues (2005) studied institutional change from a behavioral science perspective, proposing an evolutionary equilibrium model based on “evolutionarily stable strategies” and discussing the genetic basis of altruistic behavior. 3) institutional change in evolutionary economics: jia genliang (2015) discussed the two main schools of thought in evolutionary economics—old institutionalism and neo-schumpeterianism—and proposed creating a new listian evolutionary economics, offering strategic and policy recommendations from an evolutionary economics perspective (miao, 2016, pp. 18-21). yang huta (2009) detailed how evolutionary economics views the world, emphasizing the formation of diversity and differences over history and employing anti-reductionism as a guiding principle (liu, 1998, pp. 42-46). in summary, the evolution of institutional change might go through several stages: unconscious natural selection, unconscious social selection, conscious social selection, and conscious design and social selection. institutional evolution involves both unconscious and conscious processes. although unconscious behaviors may lead to many unintentional social institutional changes, spontaneous order does not exclude conscious rational choices, as human decisions encompass both rational and irrational elements. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 161 5. adaptation of village regulations and conventions in rural revitalization in chinese society, particularly in rural areas, the influence of informal institutions is crucial in aspects such as economic development, social policy implementation, and even the enforcement of legal systems. informal institutions need to be the premise, integrating formal institutions within them to achieve the desired policy effects (zhou, 2006, pp. 2-10). formal and informal institutions together constitute the institutional framework; thus, the concept of “institutional embedding” applies to informal institutions. the embeddedness of informal institutions means that they are deeply understood and believed by social members, forming part of the social structure and integrating with local social culture (rao xupeng & liu haixia, 2012). therefore, when an informal institution is deeply ingrained in people’s minds and integrated into the social structure, this state can be called “embeddedness”. conversely, it is in a state of “disembeddedness”. specifically, for village regulations and agreements, when they can regulate villagers’ behaviors and effectively maintain the order of rural society, this state is “embedded” in the rural social network. on the contrary, if village regulations and agreements cannot perform their expected governance functions and maintain rural order, they are “disembedded” from the rural social network (mou & xu, 2018, pp. 117-125). in traditional periods, most village regulations and agreements were endogenous to the village, usually arising from a lack of institutional supply, leading to spontaneous order. these were customary rules among villagers, representing their interests and aligning with the actual production and living needs of the rural society. formal institutions are rigid, but humans are social animals who need the coupling of informal institutions (qin, 2004, p. 9). these endogenous informal institutions do not require coercive forces to enforce but rely on villagers’ spontaneous spiritual constraints, using ethics and morality to guide, educate, and regulate people’s behaviors, thereby embedding in the traditional rural governance network and order to perform governance functions. after the establishment of new china, the state power began to penetrate the countryside, with the state establishing rural people’s governments and gradually building a top-down administrative management system, where orders were transmitted downwards to the villages, reducing villagers’ participation in rural public affairs (wen, 2010, pp. 39-46). unlike endogenous village regulations and agreements, the new village regulations and agreements depend on external forces from the village for their generation, execution, and continuation, and they have a certain degree of coercion. the promotion of village regulations and agreements is mainly undertaken by grassroots governments and village committees, with state orders transmitted downwards and the final implementation by grassroots townships (town) governments. at this stage, grassroots governments also advance the work related to village regulations and agreements based on state directives (xu & liao, 2004, pp. 73-77). compared with the traditional period, the rural society lacks authoritative internal organizers like clans and gentry, making it difficult to genuinely penetrate the countryside and effectively mobilize the villagers’ enthusiasm with mere administrative tasks by village committees and grassroots governments. moreover, village regulations and agreements, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 162 originally tools for village self-governance, should align with villagers’ needs. however, in practice, some village regulations and agreements are often template-based and not closely related to villagers’ actual lives, making them difficult to gain villagers’ support and recognition (zhou & liu, 2014, pp. 21-27, p. 110). after being integrated by state power, the village regulations and agreements constructed by state power actually lack endogenous support and villagers’ participation in their operation. additionally, due to the loss of traditional cultural authority in rural areas, village regulations and agreements, as tools of cultural governance in traditional periods, have relatively low recognition in the current rural areas and fail to perform the expected governance functions (yuan, 2013, pp. 20-21). it can be said that they are disembedded from the organizational integration network of contemporary rural society. in summary, domestic and foreign scholars have conducted extensive research on institutional evolution and the embedded governance of village regulations and agreements, achieving fruitful results worthy of learning and reference. however, existing research still has certain deficiencies: 1) most scholars’ research on the village regulations and agreements of ethnic minority villages focuses only on the excavation and analysis of existing data, rarely exploring the evolutionary mechanisms and embedded governance of village regulations and agreements from the perspective of institutional evolution. 2) most existing literature on village regulations and agreements mainly focuses on rural governance and social governance, neglecting the exploration of the generation background and evolutionary process of village regulations and agreements in ethnic minority villages in the yunnan-guizhou-guangxi regions and the “disembeddedness” issue between village regulations and agreements and rural governance. 3) the formation of village regulations and agreements is based on the long-term development of disciplines such as anthropology, history, and law. however, existing literature on the village regulations and agreements of ethnic minority villages in the yunnan-guizhou-guangxi regions mainly interprets from a single dimension, lacking interdisciplinary comprehensive analysis (yuan, 2005, pp. 122-127). in view of this, based on field investigations of village regulations and agreements in the yunnan-guizhou-guangxi regions of ethnic minorities, we aim to collect and organize issues of traditional cultural legacy under the protection of existing systems, and through methods such as evolutionary game theory, social network analysis, text mining (python), mark coding, evolutionary dynamics modeling, combined with theories from institutional economics, evolutionary anthropology, and ethnology, explore the reasons for the evolution and current state of embedded governance of village regulations and agreements, systematically summarize their evolutionary mechanisms, and assess the problems and obstacles in protecting the traditional culture of ethnic minorities. subsequently, we aim to construct macro-universal practical paths, providing practical measures to promote the modernization of grassroots governance systems and governance capabilities in china. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 163 references an, j. (2013). a study on the folk legal order in ethnic minority areas: taking the tibetan ethnic area as an example. guizhou ethnic studies, 34(04), 8-11. chen, h. (2019). embedded rule of law: rural governance based on self-organization. journal of china agricultural university (social sciences edition), 36(01), 80-90. chen, q., & yao, j. (2019). the fission and inheritance of village regulations in the li area of hainan from the perspective of rural governance. journal of original ecological ethnic culture, 11(06), 90-99. chen, y., & chen, w. (1992). social customs of the dong ethnic group in guangxi. guangxi ethnic studies, 1992(04), 80-86. chi, j. (2017). maintenance of civil life order through village regulations: a case study of jinping documents before 1949. guizhou ethnic studies, 38(01), 78-82. dang, x., liu, x., & mo, l. (2022). the historical evolution and logic of traditional village regulations and agreements in yunnan from the ming and qing dynasties onward (1368-1949). agricultural history of china, 41(04), 117-129, 141. dang, x., liu, x., & mo, l. (2022). the historical evolution and logic of traditional village regulations and agreements in yunnan from the ming and qing dynasties onward (1368-1949). agricultural history of china, 41(04), 117-129, 141. duan, z. (2011). the promotion and reasons for village regulations and agreements among ethnic minorities in the western regions during the qing dynasty. journal of southwest university for nationalities (humanities and social sciences edition), 32(09), 21-25. fang, h. (2002). traditional virtues of ethnic minorities and the construction of democracy and the legal system in ethnic areas: a case study of the mongolian ethnic group in xingmeng township, tonghai county, yunnan province. yunnan social sciences, 2002(06), 58-60. fei, x. (2006). from the soil: the foundations of chinese society (p. 72). beijing: peking university press. gao, m. (2013). analysis of informal institutions in rural governance: a case study of luduke village in yanshan county. journal of yunnan administration college, 15(02), 133-136. gao, q. (2018). rural governance through village regulations: environmental sanitation management in biansha village, qimeng town, jinping county, guizhou province. guangxi ethnic studies, 2018(04), 56-64. hao, g., & zhong, s. (2014). from stone tablet laws to village regulations: an analysis of the unwritten stone tablets of the dayao mountains. journal of guangxi university for nationalities (philosophy and social sciences edition), 36(01), 75-80. he, q., & li, b. (2013). the origin and evolution of the customary law of the dong ethnic group. guizhou ethnic studies, 34(06), 21-24. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 164 jia, w., & li, c. (2016). village regulations and grassroots social governance in tibetan areas: a field study in hainan tibetan autonomous prefecture, qinghai. journal of hubei university for nationalities (philosophy and social sciences edition), 34(04), 16-20, 25. jiang, y. (2010). analysis of rural social organization management system. anhui agricultural science, 38(31), 17875-17877. liang, s. (1999). eastern and western cultures and their philosophies (p. 60). beijing: the commercial press. liu, z. (1998). ethnic traditional culture and the construction of spiritual civilization in guizhou. guizhou social sciences, 1998(05), 42-46. ma, j. 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(2004). understanding the attributes and cultural principles of village regulations. journal of nanjing university (philosophy, humanities, and social sciences edition), 2004(05), 51-57. zhou, j., & liu, s. (2017). theoretical development and evolution of village regulations from the researcher’s perspective. journal of yunnan normal university (philosophy and social sciences edition), 49(03), 126-134. zhou, j., & liu, z. (2013). how traditional village regulations are possible: on the conditions of village regulation governance. folklore studies, 2013(05), 65-70. zhou, j., & liu, z. (2014). study on the internal mechanism of village regulations: an analysis framework based on elements-mechanism. issues in agricultural economy, 35(04), 21-27, 110. zhou, x. (2006). ethnography of contemporary miao customary law in fanpai village, taijiang county. journal of gansu institute of political science and law, 2006(06), 2-10. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 168 original paper research on the legal protection of consumers’ personal information in online shopping xu xinyi 1 1 dalian ocean university, dalian city, liaoning province received: april 28, 2025 accepted: may 9, 2025 online published: may 10, 2025 doi:10.22158/elp.v8n1p168 url: http://dx.doi.org/10.22158/elp.v8n1p168 abstract in contemporary society, with the rapid development of the e-commerce economy, online shopping has become an essential part of people’s lives. consumers’ personal information holds significant value, which leads to an increased risk of personal information leakage in online shopping. this paper clarifies the relevant concepts of consumers’ personal information in online shopping, analyzes the current protection situation, reveals a series of existing problems, and proposes corresponding improvement suggestions. the aim is to provide theoretical references for constructing a more sound legal protection system for consumers’ personal information in online shopping, making it more comprehensive and complete. keywords online shopping, consumers, legal protection, personal information protection 1. general theories on the protection of consumers’ personal information in online shopping 1.1 the concept of consumers’ personal information in online shopping in the specific context of online shopping, consumers’ personal information refers to various types of information provided by consumers to e-commerce platforms, merchants, and various third-party entities that support and serve online shopping during their participation in online shopping activities. these are recorded in electronic or other forms and can identify a specific consumer’s identity either alone or in combination with other information. this concept encompasses a wide range of contents, including but not limited to consumers’ names, genders, ages, id numbers, home addresses, contact information (such as mobile phone numbers, email addresses), biometric information (fingerprints, facial recognition data, etc.), bank account information, consumption preferences, shopping history records, and browsing traces. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 169 published by scholink inc. 1.2 the characteristics of consumers’ personal information in online shopping in the special environment of online shopping, consumers’ personal information exhibits various characteristics. 1.2.1 diversity in the transaction scenario of online shopping, with the continuous expansion of the user scale and the high-frequency occurrence of shopping activities, the quantity of consumers’ personal information has experienced explosive growth, forming a vast information set. e-commerce platforms process hundreds of millions of user transaction data daily, including a wide variety of information types, such as basic identity verification information, financial information, and information reflecting consumption behaviors and preferences. the diversity of this information reflects the all-round needs and behavior trajectories of consumers in the online shopping process and provides rich materials for e-commerce platforms and merchants to understand consumers in depth. 1.2.2 easy collection and transmission in the digital age, online shopping platforms can easily collect personal information at every stage of consumers’ shopping through advanced information-technology-based acquisition means. when consumers register on a platform, basic information such as their names and phone numbers is already obtained by the platform. moreover, once this information is collected, it can be rapidly transmitted over the internet (shen, x. j., 2022, pp. 148-150). through network transmission, information can cross geographical boundaries and be shared and circulated among different servers, databases, and third-parties. some e-commerce platforms share part of consumers’ personal information with cooperative advertisers or data-analysis companies for precise marketing, which significantly increases the risk of information leakage. 1.2.3 property in the era of big data, consumers’ personal information has become a highly valuable asset (chen, j. l., 2025, pp. 152-154). information such as consumers’ purchase behaviors and preferences can assist merchants in analyzing consumers’ behaviors, enabling them to better understand consumer behavior and thus enhance sales and customer satisfaction. for example, online shopping platforms can accurately recommend products that consumers may be interested in based on their purchase history and browsing behaviors, promoting an increase in purchase volume. 1.3 the difference between personal information and consumers’ personal information in online shopping personal information, as a broad concept, has a rich connotation. it includes various types of information generated by natural persons in daily life, work, social interaction, and other scenarios, which can identify their identities or reflect their specific activities either alone or in combination with other information. consumers’ personal information in online shopping is a subset of personal information in the specific scenario of online shopping, with distinct scenario-specific limitations. it mainly consists of the information provided by consumers when participating in online shopping www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 170 published by scholink inc. activities, which is closely related to the online-shopping process, including information generated in links such as registering an account, browsing products, placing an order, payment and settlement, logistics and distribution, and after-sales evaluation. compared with general personal information, the main collectors of consumers’ personal information in online shopping are e-commerce platforms, merchants, and third-parties providing services for online shopping, such as payment institutions and logistics enterprises. 2. the current situation of the protection of consumers’ personal information in online shopping in china 2.1 the legislative situation china has gradually established a legal system for personal information protection, and relevant laws and regulations have regulated the protection of consumers’ personal information in online shopping. the personal information protection law of the people’s republic of china, as the fundamental law in the field of personal information protection in china, clarifies the basic principles of personal information processing and stipulates the obligations of personal information processors and the rights of individuals in personal information processing activities. the law of the people’s republic of china on the protection of consumers’ rights and interests focuses on protecting consumers’ rights and interests and specifically regulates the collection and use of consumers’ personal information by operators. it requires operators to follow the principles of legality, justness, and necessity, clearly inform the purpose, method, and scope of information collection, obtain consumers’ explicit authorization, and assume the responsibilities of confidentiality and security protection. the cybersecurity law of the people’s republic of china, in the context of network operation, clearly requires network operators to adopt technical means and other necessary measures to fully guarantee the security of users’ personal information, effectively prevent the risks of information leakage, damage, and loss, and comprehensively safeguard the personal-information-security defense line. however, there are still deficiencies in china’s personal-information-protection legal system. on the one hand, the legal provisions are relatively scattered. there are intersections and overlaps among different laws and regulations, and there is a lack of a unified coordination mechanism, resulting in difficulties in legal application. on the other hand, some legal provisions are too principle-based, lacking specific implementation rules, which makes it difficult to effectively implement them in practice. in addition, considering the particularity of the online-shopping scenario, such as the protection of personal information in emerging business forms like live-streaming e-commerce and social e-commerce, legal norms are still lagging behind. 2.2 the judicial situation according to the latest data, personal-infringement cases in online shopping in china occur frequently, and judicial practice plays an indispensable role. however, there are still many problems in judicial practice. first, the burden-of-proof allocation is unreasonable. due to the complexity and technicality www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 171 published by scholink inc. of the network environment, consumers often find it difficult to collect and preserve infringement evidence. existing laws usually require consumers to bear the main burden of proof, which makes it extremely difficult for consumers to protect their rights. second, the standards for damage compensation are vague and chaotic, frequently leading to the phenomenon of different judgments in similar cases. in addition, there are disputes over legal application. the connection and coordination between different legal provisions are not smooth enough, affecting the unity and authority of judicial judgments. 2.3 the law-enforcement situation in china, multiple departments, including the cyberspace administration of china, the market-supervision department, and the public-security department, are responsible for the supervision of the protection of consumers’ personal information. in recent years, various departments have actively carried out special rectification actions and increased the intensity of cracking down on personal-information infringement. however, the current supervision work still faces many challenges. there are problems of overlapping responsibilities and insufficient coordination among various supervision departments. since personal-information protection involves multiple fields and links, different departments have poor communication during the supervision process, resulting in low supervision efficiency. 3. problems existing in the protection of consumers’ personal information in online shopping in china 3.1 imperfect legal system 3.1.1 scattered and illogical legal provisions the legal provisions on personal-information protection in china are widely distributed in multiple laws and regulations, showing a scattered state and have not yet formed a unified legal system with strict logic and a complete structure. although the personal information protection law of the people’s republic of china provides a relatively comprehensive framework for personal-information protection, in the specific implementation process, it still needs to be coordinated and cooperated with other relevant laws. in the online-shopping scenario, the protection of consumers’ personal information involves multiple laws such as the law on the protection of consumers’ rights and interests, the cybersecurity law, and the e-commerce law. these laws have made provisions on personal-information protection from different angles, resulting in conflicts and contradictions in legal application. this scattered legislative model lacks a unified legislative concept and system, and there is a lack of effective coordination and integration among various laws and regulations. different laws have differences in the definition of personal information, protection scope, liability for infringement, etc., making it difficult to accurately grasp and apply in practice. the scatter of legal provisions also leads to legal loopholes. due to the lack of comprehensive overall planning and coordination among www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 172 published by scholink inc. various laws and regulations, there may be situations where the protection of personal information in certain fields lacks clear provisions. 3.1.2 poor operability of some legal provisions in china’s current laws, some provisions on personal-information protection are vague and uncertain in practice, resulting in poor operability. in terms of the definition of personal information, although laws such as the personal information protection law have defined the concept of personal information, in practical applications, there are still disputes over whether some special information belongs to personal information. for some information that indirectly reflects personal characteristics, whether it should be included in the category of personal information is not clearly defined by law. although this information cannot directly identify a person’s identity, it may be able to identify an individual in combination with other information. in practice, there is a lack of clear legal basis for the collection, use, and protection of such information, which is likely to trigger infringement disputes. in addition, some legal provisions lack specific implementation rules and operation procedures, making it difficult for law-enforcement departments to carry out their work. this also leaves a large operating space for personal-information processors, who may evade legal responsibilities on various pretexts. 3.2 incomplete regulatory mechanism 3.2.1 insufficient coordination and cooperation among regulatory departments in the supervision of the protection of consumers’ personal information in online shopping, multiple departments, including the cyberspace administration of china, the market-supervision department, and the public-security department, play important roles. in the actual supervision process, there are problems of insufficient coordination and cooperation among these departments, resulting in low supervision efficiency and it being difficult to form an effective supervision synergy. these problems lead to the existence of supervision loopholes and duplicate supervision in the supervision process. some illegal acts may not be promptly and effectively investigated and punished due to insufficient coordination and cooperation among departments, forming supervision loopholes. 3.2.2 backward regulatory technical means with the rapid development of network technology, the business models and technical applications of online shopping are constantly innovating, which poses great challenges to the supervision of the protection of consumers’ personal information. the existing regulatory technical means are relatively backward and difficult to meet the regulatory needs in the new situation, resulting in many difficulties and deficiencies in the supervision work. personal-information-security incidents in online shopping are often sudden and covert, requiring regulatory departments to have the ability to respond quickly and handle emergencies. the existing regulatory technical means are insufficient in emergency handling and it is difficult to take effective measures in a timely manner to reduce the losses caused by personal-information-security incidents. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 173 published by scholink inc. 3.3 difficulties in consumers’ rights protection 3.3.1 difficulties in burden of proof when consumers’ personal information is infringed in online shopping, it is often very difficult for consumers to provide evidence. in china, the principle of liability for infringement generally follows the fault-liability principle, that is, “whoever claims, whoever proves”. consumers must bear the obligation and responsibility of providing evidence if they want to protect their rights. however, in the actual process of providing evidence, consumers always encounter various problems. in many cases, consumers also find it difficult to obtain relevant infringement evidence. online shopping involves many subjects and complex information-processing processes. the collection, storage, and use of personal information are mainly controlled by e-commerce platforms, merchants, and third-party service providers. these subjects have absolute advantages in technology, resources, and information control, while consumers are in a weak position, which greatly limits consumers’ ability to prove. 3.3.2 high cost of rights protection consumers often have to pay high costs of time, energy, and money in the process of safeguarding their personal-information rights, which seriously dampens consumers’ enthusiasm for rights protection and makes them choose to give up protecting their rights when facing infringement. the rights-protection process for consumers’ personal-information-infringement cases often takes a lot of time. from the discovery of personal-information infringement by consumers to the final result of rights-protection, the whole process is cumbersome and complex. it also consumes a lot of energy. consumers need to constantly communicate and negotiate with the infringing party and relevant departments, collect evidence, and understand relevant laws, regulations, and policies during the rights-protection process. in addition, in the litigation process, consumers may need to pay litigation fees, lawyer fees, appraisal fees, and other expenses. these additional payments are a large expense for ordinary consumers, resulting in consumers giving up rights-protection because they cannot afford these costs. 4. suggestions for improving the legal protection of consumers’ personal information in online shopping 4.1 improve the legal system 4.1.1 formulate a unified personal-information-protection law from an international perspective, many developed countries and regions have formulated perfect personal-information-protection laws, providing useful references for china. the general data protection regulation (gdpr) of the european union is a model in the global field of personal-information protection. the implementation of gdpr has greatly strengthened the protection of personal information within the eu, expanded the scope of information-subject rights, enhanced www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 174 published by scholink inc. citizens’ trust in personal-information security (hong, f., & chen, y., 2021, pp. 63-65), and had a profound impact on global personal-information-protection legislation. in the united states, there is no unified legislation for the protection of consumers’ personal information in online shopping. instead, it adopts a decentralized-legislation approach in different professional fields to protect consumers’ personal information (li, x. r., 2023). at the federal level, the united states has formulated multiple laws related to personal-information protection. in terms of industry self-regulation, various industry associations in the united states have developed a series of self-regulatory norms to guide enterprises to abide by relevant personal-information-protection regulations. this protection model in the united states not only gives full play to the role of the market but also ensures the security of personal information through legal constraints. combined with china’s actual situation, when formulating a unified personal-information-protection law, the right attribute of personal information should be clearly defined as an independent personality right, and individuals should be granted a series of rights such as the right to control and the right to know about their personal information. in the collection of personal information, it should be stipulated that information collectors must follow the principles of legality, justness, and necessity, clearly inform the purpose, method, and scope of personal-information collection, and obtain the clear consent of individuals. for the collection of sensitive personal information, stricter provisions should be set. it is also necessary to establish and improve the regulatory mechanism and relief channels for personal-information protection, clarify the responsibilities and authorities of regulatory departments, and strengthen the supervision and inspection of personal-information-processing activities. additionally, punitive damages can be introduced by referring to relevant regulations (li, x., 2019). 4.1.2 improve the legal norms related to online shopping online shopping, as a unique business model, has special ways of collecting, using, storing, and transmitting personal information, and requires specific legal norms to adjust and regulate. in online shopping, the collection link of consumers’ personal information involves many subjects and complex processes, and it is easy to have infringement behaviors. special legal norms should be formulated to clarify the rights and obligations of e-commerce platforms, merchants, and third-party service providers in personal-information collection. it should be stipulated that when e-commerce platforms collect consumers’ personal information, they must provide consumers with clear and understandable privacy policies. the scope of information collection should be restricted, and personal information irrelevant to online-shopping business should not be collected. there are also many problems in the use and sharing of personal information in online shopping. in order to standardize the use and sharing of personal information, the conditions, procedures, and the rights and obligations of all parties should be clearly defined. the use of personal information must be carried out within the purpose and scope clearly defined at the time of collection, and the purpose should not be changed without permission. moreover, e-commerce platforms and related merchants should conduct limited collection of consumers’ personal information based on the principle of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 175 published by scholink inc. necessity and strictly follow the minimum-data-volume standard when collecting personal information (zhong, h. y., wang, q. r., peng, h. y. et al., 2018, pp. 92-95). in terms of personal-information sharing, the clear consent of consumers must be obtained, and relevant agreements should be signed to clarify the rights and obligations of all sharing parties. 4.2 strengthen the regulatory mechanism 4.2.1 strengthen the coordination and cooperation among regulatory departments in order to effectively solve the problem of insufficient coordination and cooperation among departments in the supervision of the protection of consumers’ personal information in online shopping, it is necessary to start from multiple aspects and establish a long-term and effective coordination and cooperation mechanism. establishing a unified information-sharing platform is one of the key measures. this platform should integrate the data and information obtained by various departments in the supervision of personal-information protection and realize the real-time sharing and interaction of information. through the information-sharing platform, various departments can break down information barriers and avoid supervision loopholes and duplicate supervision caused by information asymmetry. it is also crucial to clarify the division of responsibilities of each regulatory department. a detailed supervision-responsibility list should be formulated to clarify the work of each department. by clarifying the division of responsibilities, each department can perform its own duties, avoid the phenomenon of shirking responsibility caused by unclear responsibilities, and improve supervision efficiency. regular communication and coordination meetings can also be held to strengthen the communication and cooperation among various departments and form a supervision synergy. 4.2.2 improve the regulatory technology level facing the technical challenges in the supervision of the protection of consumers’ personal information in online shopping, active measures should be taken to increase investment in the research and development of regulatory technologies, improve the regulatory technology level, and adapt to the changing network environment and personal-information-protection needs. increasing the capital investment in the research and development of regulatory technologies is the primary task. the government should set up special funds to encourage scientific-research institutions and enterprises to carry out the research and development of regulatory technologies. the government can also guide enterprises to increase investment in the research and development of regulatory technologies through policies such as tax preferences and financial subsidies and improve the enthusiasm of enterprises to participate in regulatory technology innovation. cultivating a professional regulatory technology talent team is also of great significance. universities and vocational colleges should strengthen the construction of relevant majors to cultivate and transport professional talents for regulatory departments. regulatory departments should regularly organize internal personnel to participate in technical training and learning and communication activities to improve the technical level and business capabilities of regulators. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 176 published by scholink inc. 4.3 reduce the cost of consumers’ rights protection 4.3.1 reasonably allocate the burden of proof in personal information infringement cases, the burden of proof on consumers should be appropriately reduced. the burden of proof can be reversed, and the defendant should be required to prove that they have no infringement (xu, y., 2017). personal information processors should prove that they have followed the principles of legality, justness, and necessity in the process of collecting, using, storing, and transmitting consumers’ personal information, and have taken reasonable security measures and there is no infringement. if personal information processors cannot prove that they are not at fault, they should bear the liability for infringement. an evidence preservation system can also be established. after consumers discover that their personal information has been infringed, they can apply to relevant departments for evidence preservation in a timely manner to ensure the authenticity and integrity of the evidence and provide strong support for subsequent rights protection. 4.3.2 establish a diversified dispute resolution mechanism improving diversified dispute resolution mechanisms such as litigation, arbitration, and mediation can provide consumers with more convenient and efficient rights protection channels, reduce the cost of rights protection, and effectively resolve personal information infringement disputes in a timely manner. firstly, the litigation process can be optimized to improve litigation efficiency. special tribunals or collegial panels for personal information infringement cases can be established, and judges with professional knowledge and rich experience can be selected to hear such cases. secondly, the role of arbitration institutions in resolving personal information infringement disputes should be strengthened, and consumers and personal information processors should be encouraged to resolve disputes through arbitration. arbitration can quickly resolve disputes and reduce the cost of consumers’ rights protection. finally, the mediation mechanism should be improved, and diversified mediation organizations should be established. during the mediation process, mediation organizations should adhere to the principles of fairness and impartiality, fully listen to the opinions of the parties, and help the parties reach a settlement agreement. mediation agreements have legal effect, and the parties should perform them. if one party fails to perform, the other party can apply to the court for compulsory enforcement. 4.3.3 strengthen consumers’ rights protection education by carrying out diversified publicity activities and holding targeted training lectures, strengthening the education of consumers’ legal knowledge and rights protection awareness can effectively improve consumers’ self-protection ability, enhance their rights protection awareness, and enable consumers to take timely and effective measures to safeguard their legitimate rights and interests when facing personal information infringement. carrying out publicity activities is an important way to improve consumers’ legal knowledge and rights protection awareness. various media platforms can be fully utilized to widely publicize the laws, regulations, and policies on personal information protection. public service advertisements on personal information protection can be broadcast on tv, special columns on personal information protection can www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 177 published by scholink inc. be set up in newspapers, and publicity materials and videos on personal information protection can be released on network platforms for consumers to consult and learn at any time. offline publicity activities can also be carried out to publicize personal information protection knowledge face-to-face with consumers and answer consumers’ questions. 5. conclusion with the rapid development and continuous progress of e-commerce, the value of consumers in online shopping is constantly increasing. at the same time, although relevant laws in china provide a legal basis for its protection, cases of infringement of consumers’ personal information still occur frequently, indicating that we still need to strengthen the legal protection of consumers’ rights. facing the growing situation of online shopping infringing on consumers’ personal information, it is urgent to strengthen the protection of consumers’ personal information, safeguard consumers’ legitimate rights and interests, and construct a perfect legal protection system for consumers’ personal information. in the future, with the continuous development of network technology and online shopping models, the protection of consumers’ personal information will face more complex challenges and also new development opportunities. we need to keep up with the development of the industry, continuously optimize the legal system, improve the long-term regulatory mechanism, vigorously promote the research, development, and application of technological innovation, and actively carry out publicity and education to effectively enhance consumers’ awareness and prevention ability of personal information protection. only by making joint efforts from multiple aspects can we build a safe, stable, standardized, and orderly online shopping ecological environment and promote the healthy and orderly development of the online shopping industry. references chen, j. l. (2025). research on the protection of consumers’ personal information in the e-commerce environment. modern marketing (early edition), 2025(03), 152-154. hong, f., & chen, y. (2021). enlightenment and reference of foreign personal information protection legislation to china. northern finance journal, 2021(11), 63-65. li, x. (2019). research on the tort liability of personal information in the network environment. beijing jiaotong university. li, x. r. (2023). research on the legal issues of the protection of consumers’ personal information in online shopping. qingdao university. https://doi.org/10.31839/ibt.2023.01.40.153 shen, x. j. (2022). protection of consumers’ personal information in online shopping. heilongjiang human resources and social security, 2022(10), 148-150. xu, y. (2017). legal protection of consumers’ personal information in online shopping. capital university of economics and business. https://doi.org/10.31839/ibt.2023.01.40.153 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 178 published by scholink inc. zhong, h. y., wang, q. r., peng, h. y. et al. (2018). analysis of the principles of collection, custody, and utilization of consumers’ personal information—taking e-commerce platforms as an example. legal system and economy, 2018(05), 92-95. microsoft word elp-v2n1-p113 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 1, 2019 www.scholink.org/ojs/index.php/elp 113 original paper administrative procedure of trademark enforcement in pakistan: a comparative analysis with malaysia and usa sohaib mukhtar1*, zinatul ashiqin zainol2 & sufian jusoh2 1 faculty of law, national university of malaysia, bangi, selangor, malaysia 2 institute of malaysian and international studies, national university of malaysia, bangi, selangor, malaysia * sohaib mukhtar, e-mail: sohaibmukhtar@gmail.com received: may 7, 2019 accepted: may 14, 2019 online published: may 30, 2019 doi:10.22158/elp.v2n1p113 url: http://dx.doi.org/10.22158/elp.v2n1p113 abstract trademark is one of the component of intellectual property (ip). it is a mark, name, sign, smell or a sound which distinguishes goods and services of one undertaking from goods and services of other undertakings. it is required to be distinctive and non-descriptive. it losses its distinctiveness when registered owner of trademark does not take prompt action against its infringement. trademark enforcement procedures including administrative procedure must be expedient, adequate, fair, equitable, and must not be complicated, costly and time consuming. administrative procedure starts when application for trademark registration is opposed by the registered trademark owner before the concerned administrative authority. trademark registration authorities are: (i) trademark registry under intellectual property organization of pakistan (ipo-pakistan) in pakistan, (ii) intellectual property corporation of malaysia (myipo) in malaysia, and (iii) united states patent and trademark office (uspto) in united states of america (usa). the registered owner of trademark may apply before the concerned administrative authority against the registration of identical trademark by adopting administrative procedure of trademark enforcement. this study is qualitative method of research a comparative analysis of administrative procedure of trademark enforcement in pakistan, malaysia and usa. after a comparative analysis of administrative procedure of trademark enforcement in pakistan, malaysia and usa, it is found that there are only three ip tribunals in pakistan and there is a need of more ip tribunals which is required to give its decision within 90 days resultantly saves time and money of the people. it is also found that there is trademark trial and appeal board at uspto, where appeal against decision of the registrar may be filed by the aggrieved party thus a similar kind of body is required to be established at trademark registry in pakistan. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 114 published by scholink inc. furthermore, ip experts should be hired at ip tribunal and at trademark registry for smooth implementation of administrative procedure of trademark enforcement in pakistan. keywords intellectual property, trademark, intellectual property organization of pakistan, intellectual property corporation of malaysia, united states patent and trademark office 1. introduction administrative procedure of trademark enforcement is very important procedure for effective enforcement of trademark, therefore it is required to be expedient, adequate, equitable, and must not be complicated, costly and time consuming. agreement on trade related aspects of intellectual property rights (trips agreement) of world trade organization (wto) is the first international treaty which contains exhaustive enforcement provisions of ip in member countries of wto from articles 41 to 61. preamble of trips agreement states that member states have recognized assurance of measures and procedures for effective enforcement of ip rights, which should not become hurdle in legitimate trade. member states have also recognized that there is a need of new rules and disciplines for effective and appropriate enforcement of trade related ip rights and there is also a need for effective and appropriate procedure for settlement of disputes between contracting states and there is a need of a model to prevent disputes between contracting states. there is also a need to reduce tensions between contracting states by adopting expeditious procedures and therefore member states are required to give effect to provisions of trips agreement into their domestic laws of state and member states may adopt any suitable method for doing so. article 41 of trips agreement states that enforcement procedure of ip in member countries of wto should not be complicated, costly and time consuming, at least a judicial review must be available to aggrieved party on final administrative decision. trips agreement does not affect the capacity of enforcement of member states in their general domestic laws as such it is not obligatory upon member states to deal separately with enforcement of general domestic law and enforcement of trips agreement by redistributing resources for enforcement. the registered owner of trademark may apply before the concerned administrative authority against the registration of identical trademark by adopting administrative procedure of trademark enforcement. there is an expert examiner in charge of registration at uspto in usa, which is required to examine application of registration and decision of examiner in charge of registration may be challenged before trademark trial and appeal board. there are not many experts examiner in charge of registration neither there is trademark trial and appeal board in pakistan thus it is highly recommended that experts examiner in charge of registration should be appointed and trademark trial and appeal board should be established at trademark registry in pakistan. after a comparative analysis of administrative procedure of trademark enforcement in pakistan, malaysia and usa, it is found that there are only three ip tribunals in pakistan and there is a need of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 115 published by scholink inc. more ip tribunals in pakistan which is required to give its decision within 90 days resultantly saves time and money of the people. it is therefore recommended that more ip tribunals should be established for smooth implementation of administrative procedure of trademark enforcement in pakistan. 2. literature review trips agreement contains exhaustive provisions on enforcement of trademark law including civil procedure, criminal procedure, administrative procedure, provisional and border measures in member states of wto. trips agreement states about administrative procedure of trademark enforcement that trademark may be invalidated by administrative authority of member state if it is consisted of wine spirit wrongly indicated to the place which is not its origin by ensuring equitable treatment to producers and not misleading the consumer. member states are required to apply administrative provisions as per their legislative requirements (articles 22, 23 & 49, trips agreement). duncan matthews stated that though trips agreement implemented in member countries of wto but has not been effectively enforced in member states and there is a sharp difference between adoption of trips agreement and its enforcement. effective enforcement of trips agreement may take years to achieve. member countries should improve their civil and administrative procedures, provisional and border measures and criminal procedure of ip enforcement including trademark. trips agreement challenges capacity of developing countries in ip enforcement. member states are required to follow part iii of trips agreement to improve enforcement procedures of ip rights in member countries (matthews, 2003). former chief justice of pakistan dr. nasim hassan shah emphasized on effective enforcement system of ip rights including trademark rights in pakistan and added that counterfeiting of trademark and copyright piracy are very important factors to reduce trade and investment in the country, it damages economy, hurts consumer and spoils image of country. ip laws including trademark laws of pakistan must be amended under the light of relevant international treaties and ip special courts should be established in pakistan to deal with ip issues effectively (jaan, 2010). justice bernice bouie donald stated that enforcement of ip right in pakistan is an issue thus pakistan should learn from other countries, e.g., usa, south korea, taiwan and singapore in the field of ip enforcement to settle issues of ip enforcement in pakistan. she quoted an example of singapore and stated that piracy was spread in singapore and it was a common practice and no infringement proceedings was deterrent in the way of infringers and counterfeiters. thereafter, the government of singapore took an initiative in ip field and managed to become leader in technological advancement by restructuring ip laws of singapore. she further stated that traders and investors do not come to a country where ip legislation is weak as it does not give them confidence for full protection of their investment and there is a severe chance of loss of capital rather than earning profits. strengthening ip laws may bring investment in pakistan and it enhances confidence of traders and investors to invest in pakistan because there are minimum www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 116 published by scholink inc. chances of violations of their ip rights and it helps structuring and economic building of pakistan. she further stated that a country whose ip laws and procedures including trademark and its enforcement procedures are adequate to protect rights of trademark owner and other ip rights. trade and investment come to that country from across the globe without any fair of injustice because of the perfect system of ip enforcement including trademark as per relevant international conventions and other relevant bilateral treaties between sovereign states (donald, 2013). hamid maker stated in an article in the nation that ipo-pakistan is public organization under administration of the government of pakistan. the vision of ipo-pakistan is to put pakistan forward in ip enforcement and to portray good image of pakistan as responsible country in the world with respect to enforcement of ip rights by promoting and protecting ip rights in pakistan. the performance and activities of ipo-pakistan are not up to the mark for smooth enforcement of ip rights in pakistan. ipo-pakistan is required to arrange talks and seminars and there are no such activities arranged by ipo-pakistan on regular basis to promote awareness among public at large. every human being has a mind and it creates ideas which are required protection and for that purpose ip law enforcement must be adequate to protect ip rights. previous governments of pakistan did not give importance to ip laws and their enforcement procedures that is why international investors are reluctant to invest in pakistan. it is the dire need of the people generally and traders and investors specially to improve enforcement procedures of ip including trademark in pakistan (maker, 2014). lahore high court held in the case of messrs asli mand barfi shop v messrs mand barfi shop, that trademark registry of pakistan facing low disposal of cases under administrative authority, substantial backlog, inadequacy of staff, shortage of examiners in charge of registration, lack of ip experts and transparency. the court held that pendency of cases at trademark registry are increasing due to acute shortage of staff. it is therefore expected that trademark registry is required to take initiative for fresh recruitments, promotions and creation of new posts as early as possible and make all efforts to clear and decrease backlog of cases within minimum possible time by making full use of existing working potential till appointments of new incumbents (messrs asli mand barfi shop v messrs mand barfi shop, 2016). kari mullah adeni stated in his article in the dawn that there are not many ip tribunals in pakistan. the authority is designated to district & sessions judge in islamabad, which was also in lahore but recently retired justice of lahore high court is designated as presiding officer of ip tribunal in lahore and former registrar was designated as presiding officer of ip tribunal in karachi. ipo-pakistan is required to make more efforts for establishment of more ip tribunals throughout pakistan as currently number of ip tribunals are not sufficient for a country of more than 200 million people and a territory of around 8 lac kilometers. therefore it is a dire need of time that more ip tribunals should be established throughout pakistan (adeni, 2015). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 117 published by scholink inc. 3. trademark registration authority trademark registration authority is an autonomous body designated to register trademarks under trademark law of the land. trademark registry works under ipo-pakistan in pakistan under intellectual property organization of pakistan act 2012. intellectual property corporation of malaysia (myipo) works under intellectual property corporation of malaysia act 2002 in malaysia and united states patent and trademark office (uspto) works under lanham trademark act 1946 and title 35, united states code 1926 in usa. in pakistan, trademark registry registers and protects registered trademarks in pakistan under intellectual property organization of pakistan (ipo-pakistan). section 9 of trade marks ordinance 2001 states that trademark registry and its branches are established to facilitate registration of trademarks in pakistan (section 9 trade marks ordinance, 2001; rule 128 trade marks rules, 2004). in the case of independent media corporation private limited v shoaib ahmed sheikh, the court held that ipo-pakistan is statutory body established under intellectual property organization of pakistan act 2012 and the registrar of trademark is head of trademark registry appointed to register and protect trademarks under trade marks ordinance 2001 and trade marks rules 2004 (independent media corporation private limited v shoaib ahmed sheikh, 2015). there are only two branches of trademark registry in lahore and islamabad apart from its head office in karachi, pakistan. more branches of trademark registry are required to be established in pakistan as it is a country of more than 200 million people thus only two branches are inexpedient. trademark registry works under ipo-pakistan thus it cannot work properly and independently for promotion and protection of trademarks in pakistan hence it is required to be separated from ipo-pakistan and should be made an autonomous body for smooth implementation of administrative procedure of trademark enforcement in pakistan. trademark registry lacks men power and ip expert examiners hence ip experts should be hired and expert examiner in charge of registration should be appointed at trademark registry. in the case of messrs asli mand barfi shop v messrs mand barfi shop, the court held that low disposal, substantial backlog, inadequacy of staff in trademark registry particularly and there is shortage of examiners performing key role in processing application. trademark registry deals with rights of trademark owners in view of current surge in consumerism, there is dire requirement for protection of such rights which is not possible without ensuring transparency in manner and system maintained by trademark registry. the court issues orders that the registrar of trademark shall ensure strict adherence to policy on first come first serve basis. all applications filed prior in time shall be dealt with and processed per chronological order and transparency in system shall be maintained. the registrar will be personally held responsible for any lapse or dereliction in this respect. the court further held that there is acute shortage of staff in trademark registry hence pendency of cases over there is tremendously increasing. it is expected that ipo-pakistan and trademark registry required to take initiative for fresh recruitments, promotions and creation of new posts as early as www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 118 published by scholink inc. possible. trademark registry is required to make all efforts to clear and decrease backlog of cases within minimum possible time by making full use of existing work potential till appointments of new incumbents (messrs asli mand barfi shop v messrs mand barfi shop, 2016). according to section 107 of trade marks ordinance 2001, any person uses his place of business as trademark registry or issues document, uses word which would reasonably lead to believe that his place of business relates to trademark registry is guilty of an offence and punishable with imprisonment up to 2 years with fine or both (khan, 2010). in malaysia, intellectual property corporation of malaysia (myipo) is established under intellectual property corporation of malaysia act 2002 for implementation of ip rights in malaysia. the head office of myipo is in kuala lumpur and there are several regional offices in sabah, sarawak, johor bahru, kuantan, penang and melaka. all regional offices receive applications for entry into the register of trademark and submitting application at regional office would be deemed as submission at headquarter. the register of trademark is kept at the headquarter. all entries includes proprietor’s and registered user’s name, addresses and descriptions as well as assignments and transmissions’ record of all entries with disclaimers, conditions and limitations. if two trademarks are identical which cause confusion, trademark registered first would prevail except if it is not abandoned, refused or successfully opposed (sections 4, 4a, 5 trade marks act, 1976; kandiah, 2004). the registrar of trademark is the director general of myipo. the assistant registrars, the deputy registrars and other officers are appointed from time to time. they can do all acts as are prescribed for the registrar under trade marks act 1976. the official seal of myipo is with the registrar and any document contains the official seal is admissible evidence before the court. immunity is granted to the registrar, the deputy registrar, the assistant registrar and other appointed officers of myipo for all actions they do in good faith under trade marks act 1976 (section 3, trade marks act, 1976; chong, 1998). myipo (i) imposes fees and charges for its services, (ii) appoints an agent, (iii) consults an expert to assist it, (iv) grants loans to its employees, (v) co-operates with any other corporation or government, (vi) appoints and regulates examiner, (vii) appoints committee to assist it, and (viii) does all other acts under intellectual property corporation of malaysia act 2002 (sections 18, 19 intellectual property corporation of malaysia act, 2002; ahmad, mahmod, & kamal, 2006). in usa, uspto is specialized agency of patent and trademark registration and protection, works under the department of commerce in usa. the secretary of commerce gives directions for its policies, but financial matters would be conducted independently. registration of patents and registration of trademarks are dealt separately at uspto. the head office of uspto is at alexandra, virginia and there are other satellite offices in dallas, denver, detroit and in silicon valley. uspto issues certificates of trademark registration and provides information of registration to public. uspto makes regulations for smooth running of its affairs. uspto deals with applications submitted www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 119 published by scholink inc. online or by hand as well as to recognize representative of applicant, e.g., agent, attorney or other person and requires him to show whether he possesses required qualification, has good character and reputation in the society. uspto safeguards public interest by reviewing registration fee time to time, conducts its functions impartially, provides fruitful benefits to national economy and does other works for smooth implementation of patent and trademark rights (sections 1, 2 title 35 united states code, 1926; brown, 1995). uspto advices the president of usa on ip issues through the secretary of commerce as well as to advice the federal departments, foreign governments, domestic and international agencies, conducts and organizes programs and studies domestically and internationally and advices the secretary of commerce on such programs and studies. the director of uspto is citizen of usa and appointed by the president of usa. he performs duties of management, registration and gives policy directions in fair, impartial and equitable manner. he consults with trademark public advisory committee before submitting budget (section 2 title 35 united states code, 1926). the deputy secretary and the deputy director are nominated by the director and appointed by the secretary of commerce. the commissioner is appointed by the secretary of commerce for 5 years and his term may be renewed for next 5 years if his performance is satisfactory and he may be removed if his performance is not satisfactory. the director may appoint other officers as he deems necessary for carrying out functions of uspto and other experienced persons may be hired for giving training to examiners of trademark (section 3 title 35 united states code, 1926; quillen & webster, 2001). uspto have trademark public advisory committee consisted of 9 voting members appointed by the secretary of commerce for 3 years. they must be citizens of usa and have competency in finance, management, labor relations, science, technology and office automation. trademark public advisory committee is chaired by the secretary of commerce and he may call its meeting anytime as he deems necessary. trademark public advisory committee advises the director in fiscal matters, prepares, submits and publishes annual report (allison & lemley, 2002). trademark public advisory committee is filled up with ip experts, gives recommendations for betterment of the system hence it is required to be made at trademark registry in pakistan for smooth implementation of trademark law in pakistan. the director of uspto maintains library of domestic and international scientific works for aiding uspto. he is required to submit report before the congress containing information about earning, expenditure, purpose of expenditure, quality, quantity and nature of works, valuation of commissioner, other relevant information of uspto within 180 days after expiration of one fiscal year. any agent or attorney may be suspended or excluded by the director of uspto on grounds of incompetency, disreputableness, misconduct, fraud or deceiving, misleading and threatening applicants (section 32 title 35 united states code, 1926; ackerman, 2011). the director of uspto is required to submit report of its activities in one fiscal year before the congress which would lead for betterment of the system. the registrar of trademark in pakistan should be required to submit its report before the parliament every year which would strengthen the system www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 120 published by scholink inc. and would put check and balance on trademark registry and a step forward for betterment of trademark enforcement in pakistan. 4. opposition of trademark opposition of trademark is important part in enforcement of trademark law which takes place before the registrar of trademark in pakistan, before the director of myipo in malaysia and before trademark trial and appeal board in usa when the director of uspto transfers application of trademark registration opposition to trademark trial and appeal board for the final decision. opposition of trademark registration proceedings carried out by administrative authority therefore it is purely an administrative matter whose appeal may be filed before the court by aggrieved party. in pakistan, an aggrieved party of trademark infringement may apply before the registrar of trademark at trademark registry during application procedure of trademark registration when application is published after acceptance (section 28 trade marks ordinance, 2001; khan, 2010). applicant of trademark registration is required to defend his application before trademark registry. in the case of muhammad saleem warind v maziiar, sindh high court refer case of messrs pt selamat sempura tbk, indonesia who applied for registration of trademark “sakura” on 20th october 1997. application was accepted and advertised in trademark journal no. 588 dated 1st january 2000. pursuant to advertisement application of trademark registration was opposed but not contested by applicant of trademark registration hence application was treated as abandoned by trademark registry (muhammad saleem warind v maziiar, 2015). interested party may oppose registration of trademark through opposition letter within 2 months from the date of advertisement. the registrar serves its copy to applicant and requires him to reply within 2 months. applicant submits counter statement to the registrar and the registrar serves its copy to opponent who is required to send rejoinder within 2 months. after collection of evidences, the registrar either accepts application of trademark registration or rejects it. appeal against decision of the registrar lies before the high court in pakistan and there is no trademark trial and appeal board at trademark registry as at uspto in usa where appeal against decision of the registrar lies before going to the court. once validity of registered trademark is decided in favor of proprietor, if any person objects on validity again in any legal proceedings, proprietor has right to obtain full costs, charges and expenses of proceedings (rules 30, 31 trade marks rules, 2004; rana, 2012). registration of trademark may be opposed if (i) application is made by non-proprietor of trademark, (ii) documents filed with application are contrary to provisions of trade marks ordinance 2001, (iii) evidence or representation presented by applicant is false in material, (iv) advertisement made before acceptance of registration application is without sufficient cause, (v) trademark applied for is identical to already registered trademark, (vi) trademark applied for is consisted of false geographical indication, (vii) registered trademark is not used within 5 years from the date of its registration without sufficient cause, (vii) usage has been suspended for 5 years without valid reason, (viii) trademark has become www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 121 published by scholink inc. common name or an activity in trade of product for which it was registered, or (viii) misleads general public in respect of quality, nature or geographical origin because of usage in a sense to alter its distinctive character (section 29 trade marks ordinance, 2001; adeni, 2014). in the case of smithkline beecham p.l.c. through authorized signatory v the registrar of trademark, appellant is one of the leading global healthcare company which inter alia engaged in manufacturing business and sale of toothbrushes and toothpastes. appellants made important innovations in 1973 of toothpaste being extruded from toothpaste tube mouth into toothbrush hereinafter referred to as “speckled toothpaste slug device” commonly known as “slugs”. appellant filed application in number of countries around the world, but no application was filed in pakistan. respondent advertised similar trademark hence appellant opposed application of similar trademark which was rejected by the registrar on a ground that it would be just and equitable to grant right to applicants in respect of trademark associated with toothpaste which is in no doubt not descriptive and distinctive (smithkline beecham v the registrar of trademark, 2016). the registrar of trademark while deciding issue between disputing parties during registration process has all powers as judge of the civil court to receive oral and written evidences through affidavit, administer oaths, enforce attendance of witnesses, issue summons to produce document, issue commission to examine witnesses and issue certificate (section 111 trade marks ordinance, 2001; zafar, 2014). in malaysia, opposing party may apply before the registrar of trademark against registration application of trademark in malaysia through written notice consisting grounds of opposition, following counter statement from applicant of trademark registration. the registrar is empowered to summons witnesses, summons production of documents, takes evidences from witnesses on oath and award costs. any person summons by the registrar, does not comply with it, would be liable to imprisonment for 3 months or 1 thousand ringgits fine or both (section 75 trade marks act, 1976; kandan, 1996). after hearing both parties, the registrar of trademark either accepts application of registration in full or with some conditions or rejects it. decision of the registrar is appealable before the court within prescribed time and the court decides matter after hearing both parties and the registrar. if additional grounds are taken in the court during appeal proceedings, appellant may withdraw appeal without costs. if applicant is not resident of malaysia, the registrar of trademark may require him to submit security for costs of proceedings while giving notices, providing counter statements and submitting appeal in the court, failing which, notices, counter statements and appeal would be abandoned (section 28 trade marks act, 1976; ahmad, mahmod, & kamal, 2006). if costs are awarded by the registrar of trademark in favor of aggrieved party, it can be recovered through court proceedings of default payment by opposing party. the registrar of trademark may not give his verdict on any matter in issue ex-parte without hearing opposite party as right of hearing is fundamental right of every party in proceedings (section 28 trade marks act, 1976; khadijah, ismail, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 122 published by scholink inc. & aziz, 2016). in usa, the director of uspto is head of administrative process runs at uspto in usa. any person believes to have been damaged due to registration of trademark in trademark register may apply in a written form to the director of uspto for opposition of registration within 30 days from the date of publication or within such time as may be extended by the director as requested. the director may notify applicant for statement of opposition as well as for extension of opposition time (section 13 lanham trademark act, 1946; diggins, 1946). right of registered trademark owner is incontestable if (i) there is no decision on registration against the owner, (ii) there is no related matter pending before the court, (iii) affidavit describing goods or services registered under trademark filed within 1 year after expiration of continues 5 years’ use in commerce, or (iv) trademark is not generic name (section 15 lanham trademark act, 1946). any damage occurred to a person due to registration of trademark under lanham trademark act 1946, aggrieved party may apply for its cancellation before the director within 5 years from the date of its registration, on any of the following grounds: (i) trademark becomes generic name of goods or services, (ii) trademark has not being used or abandoned, (iii) registration of trademark is adopted by fraud, (iv) registration of trademark is contrary to provisions of lanham trademark act 1946, (v) trademark is used to misrepresent source of goods or services, (vi) trademark is registered but not published, (vii) owner of trademark does not have control over trademark, (viii) owner of trademark engages in production or marketing of goods or services for which certification mark is applied, (ix) owner of trademark permits use of trademark other than for which it is certified, (x) owner of trademark discriminately refuses to certify person who has maintained standard and conditions throughout its use, or (xi) trademark is used in a way to deceive public (section 14 lanham trademark act, 1946; uspto, 2015). 5. intellectual property tribunal intellectual property (ip) tribunal is established to settle disputes between disputing parties dealing with ip including trademark. three ip tribunals established in pakistan under sections 15-16 of intellectual property organization of pakistan act 2012. former registrar of trademark at trademark registry in karachi, district and sessions judge in islamabad and retired judge of lahore high court designated authority as presiding officer of ip tribunal in lahore, pakistan. every malaysian state has ip court and in usa, united states international trade commission established for administrative procedure of trademark enforcement as well as trademark trial and appeal board at uspto is established to settle ip issues between disputing parties for smooth implementation of administrative procedure of trademark enforcement. in pakistan, ip tribunal established under intellectual property organization of pakistan act 2012. ip tribunal is consisted of ip experts have years of experience in ip. three ip tribunals established under intellectual property organization of pakistan act 2012 in karachi, lahore and islamabad. the federal www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 123 published by scholink inc. government of pakistan has made ip tribunals for settlement of ip issues expediently in short time. accused may be prosecuted in ip tribunal on application of registered trademark owner and decision of ip tribunal is required to be made within 90 days. the presiding officer of ip tribunal is appointed by the federal government of pakistan for 3 years which is renewable for another same term and age limit of presiding officer is 65 years. ip tribunal may take help of ip experts and their remunerations may be paid by party in whose favor expert is called upon by ip tribunal (section 16 intellectual property organization of pakistan act, 2012; malik, 2010). ip tribunal is authorized to hear cases dealing with ip under ip laws of pakistan. the high court may transfer one tribunal’s case to another. an appeal on final decision of ip tribunal can be filed by aggrieved party within 30 days before the high court (sections 15 to 19, intellectual property organization of pakistan act, 2012; jaan, 2010; jilani, 2013) 90 days are given for ip tribunal to dispose of cases presented before it which would save time of the court for other disputing matters and it is going to enhance confidence of traders and investors on pakistan as well. in malaysia, every malaysian state has ip court. in 2006, the technical committee was formed by malaysian government to conduct research based on study tour to ip courts in south korea, thailand, japan and united kingdom. the technical committee suggested that it is useful to establish ip court in every state of malaysia. establishment of ip court will ensure efficient and speedy trial by ip experts. ip court staff would have exposure and expertise in ip. judges would be appointed based on their experience and long standing involvement in ip. ip court establishment would reduce possibility of appeal considerably and ultimately save time of the court and public money. it would also enhance national coordination in interpretation of ip law, encourage commercial exploitation, enhance economic development in modern society, and encourage awareness and confidence of general public on ip legal protection. it would also bring confidence to commercial and business community and provide strong indicator to international community on seriousness of malaysian government for effective ip protection (meland, 2005; zuallcobley, 2012). initially for assessing viability of ip courts in malaysia, the sessions court of kuala lumpur was designated powers of ip court on 1st january 2006. designated court tried ip cases effectively and with faster rate. ip court was not burdened to hear other criminal cases. the presiding officer and supporting staff were knowledgeable in ip matters hence in view of the outcome of research and practical experience of kuala lumpur ip court, ip court established in every state of malaysia in july 2007. ip court powers are designated to the sessions court in every state and to the high court in 6 states: kuala lumpur, selangor, johor, perak, sabah and sarawak. purpose of ip court in malaysia is to remove malaysia from ip international watch list, reduce backlog of ip cases, provide better remedies and eradicate infringement of trademark. malaysia took a giant step in july 2007 to establish ip courts making malaysia one of the first countries in the region to have specialized courts to dispose of ip www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 124 published by scholink inc. cases. 15 sessions courts have criminal jurisdiction to deal primarily with counterfeiting and piracy cases and 6 high courts have civil and appellate jurisdiction (kadir, 2008; koon, 2011). ip courts of malaysia have criminal jurisdiction under trade descriptions act 2011. according to section 60 of trade descriptions act 2011, the sessions court have jurisdiction to try offences under trade descriptions act 2011 and to impose full punishment for any such offence. aggrieved person may lodge complaint before the assistant controller against accused and provide details of accused, details of premises where offence is committed or about to be committed and details of alleged offence. the assistant controller investigates infringement of false trade description and other related offences under trade descriptions act 2011. if the assistant controller reasonably believes that offence is committed or about to be committed, he transfers case to the sessions court for trial (sections 30, 31 trade descriptions act, 2011; sahlan, 2014). in usa, united states international trade commission (usitc) established in 1916. usitc is an independent quasi-judicial agency undertakes investigations on unfair methods of competition and trademark infringement and to provide variety of powerful remedies under section 337 of tariff act 1930 (section 337 tariff act 1930). if trademark infringement is proved beyond reasonable doubt, trademark owner may claim non-monetary relief through (i) exclusion orders to bar infringing imports, (ii) cease or desist orders prohibiting respondents from engaging in specified commercial activities with respect to infringing articles. moreover, 16 months are prescribed to complete investigation of trademark infringement. after institution of investigation, usitc appoints an independent litigant to represent public interest as party to investigation. thereafter, six judges of usitc would assigned investigation. responses to written discovery are due within 10 days. parties may proceed for summary trial and judgement within 60 days (sections 1330 to 1341 title 19 united states code 1926). assigned judges will conduct evidentiary hearing for 8 to 9 months after an investigation. thereafter within few months, administrative law judge (alj) will issue initial determination whether section 337 of tariff act 1930 is violated and recommend determination, remedy and bond. thenceforth, usitc will review the initial determination issued by alj, and issue final order as well as the remedy. the president has 60 days to veto the final decision in case if violation is found (whitaker & rauh, 2017). moreover, there is trademark trial and appeal board at uspto which is consisted of the director, the deputy director, the commissioner of trademark, the commissioner of patent and trademark and administrative judges as are appointed by the director of uspto. trademark trial and appeal board is directed by the director to resolve issues of interference, opposition to registration, concurrent use of registration and cancellation of registration. the director issues notices to all relevant parties before start of proceedings directing them to participate in proceedings before trademark trial and appeal board. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 125 published by scholink inc. during proceedings, the director may refuse to register trademark, cancel registration of trademark, modify application of trademark registration, restrict use, rectify registration and fix conditions and limitations on such use. no decision can be given in favor of applicant unless trademark is registered, and applicant becomes registered owner of trademark. principles of estoppel, laches and acquiescence apply in proceedings of trademark trial and appeal board (sections 15 to 20 lanham trademark act, 1946; ehrlich, friedman, mirman, & quinn, 1997). trademark trial and appeal board is administrative body at uspto where applicants of trademark registration file appeals against decisions of examiner in charge of registration. there is a need of such body at trademark registry in pakistan for smooth administrative procedure of trademark enforcement. 6. conclusion and recommendations administrative procedure of trademark enforcement is required to be expedient, adequate, fair, equitable, and must not be complicated, costly and time consuming under the light of article 41 of trips agreement which is required to be complied by member states of wto. trademark registry under ipo-pakistan is trademark registration authority of pakistan. myipo is trademark registration authority of malaysia and uspto is trademark registration authority of usa. trademark registry of pakistan lacks men power and ip experts for smooth and timely disposing of cases. there are only two branches of trademark registry throughout pakistan in lahore and islamabad apart from its head office in karachi, which is not adequate for a country of more than 200 million people. therefore more branches of trademark registry are required to be established throughout pakistan, and more men power and ip experts should be hired at trademark registry in pakistan. trademark public advisory committee should be made at trademark registry in pakistan which is consisted of ip experts to recommend changes to the registrar of trademark for betterment of trademark enforcement procedures. trademark trial and appeal board should be established at trademark registry to hear appeals against decisions of expert examiner in charge of registration as well as conduct proceedings for opposition of trademark. the registrar of trademark should be asked to submit yearly report before the parliament for smooth conduct of trademark registry activities as the director of uspto is required to submit report on activities of uspto before the congress after every fiscal year in usa. this type of requirement should be prescribed under trademark law of pakistan and the registrar of trademark should be required to present report on activities of trademark registry before the parliament for check and balance on trademark registry in pakistan for betterment of trademark enforcement procedures including administrative procedure of trademark enforcement in pakistan. there are only 3 ip tribunals in pakistan established under sections 15-16 of intellectual property organization of pakistan act 2012 required to decide a matter within 90 days and appeal against its decision is required to be made before the high court. every malaysian state has ip court and there is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 126 published by scholink inc. usitc as well as trademark trial and appeal board at uspto in usa. only three ip tribunals are not expedient for a country of more than 200 million people thenceforth more ip tribunals are required to be established in pakistan for betterment of trademark enforcement administrative procedure. references ackerman, l. j. (2011). prioritization: addressing the patent application backlog at the united states patent and trademark office. berkeley technology law journal, 26(2011), 67. adeni, k. (2014). illegal status of intellectual property organisation. ali and associates, pakistan. retrieved from http://www.aliassociates.com.pk/article2.html adeni, k. (2015). ip courts: are we ready for them? dawn. retrieved november 16, 2015, from https://www.dawn.com/news/1219925 agreement on trade related aspects of intellectual property rights. (1994). world trade organization. ahmad, w. a., mahmod, n., & kamal, n. a. (2006). administrative law in malaysia. in sweet & maxwell asia. malaysia. allison, j. r., & lemley, m. a. (2002). the growing complexity of the united states patent system. boston university law review, 82(2002), 77. https://doi.org/10.2139/ssrn.281395 america, i. s. (2015). united states patent and trademark office (uspto). world intellectual property organization. brown, w. h. (1995). trends in patent renewals at the united states patent and trademark office. world patent information, 17(4), 225-234. https://doi.org/10.1016/0172-2190(95)00043-7 chong, j. w. c. (1998). malaysian intellectual property laws and their compliance with the trips agreement. the journal of world intellectual property, 1(6), 1003-1016. https://doi.org/10.1111/j.1747-1796.1998.tb00046.x diggins, b. (1946). the lanham trademark act. the georgetown immigration law journal, 35(1946), 147. donald, b. b. (2013). intellectual property rights: pakistan needs proper laws to attract investmen. in the express tribune. ehrlich, d. w., richard a., friedman, d. l., mirman, & quinn, t. j. (1997). trademark prosecution in the patent and trademark office and litigation in the trademark trial and appeal board. fordham intellectual property, media and entertainment law journal, 8(2), 451. independent media corporation private limited v shoaib ahmed sheikh. (2015). sindh high court. civil law digest, 1448. intellectual property corporation of malaysia act. (2002). malaysia (act 617). intellectual property organization of pakistan act. (2012). islamic republic of pakistan (act xxii). jaan, j. s. (2010). judicial enforcement of intellectual property rights in pakistan. international workshop on business incubation center, islamabad, pakistan. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 127 published by scholink inc. jilani, j. t. h. (2013). ipr laws: “courts” role crucial in implementing law. the express tribune. islamic republic of pakistan. kadir, k. f. a. (2008). the establishment of the intellectual property court in malaysia. azmi & associates: intellectual property practice group, 53 (january/february). kandan, v. l. (1996). trademark law in malaysia. intellectual property law and policy, 1(1996), 89. kandiah, p. (2004). intellectual property enforcement in malaysia. kandiah & associates, malaysia. khadijah, m., ismail, n., & aziz, a. s. (2016). prevention of trademark counterfeiting through intellectual property enforcement system in malaysia. the debt financing and financing risk persistency, 2016, 82. khan, m. f. i. (2010). trademark in pakistan. united trademark & patent services, lahore, pakistan. koon, t. h. (2011). malaysian intellectual property: dawn of a new age. skrine, kuala lumpur, malaysia. lanham trademark act. (1946). united states of america (act 15). maker, h. (2014). intellectual property rights in pakistan. the nation. malik, n. a. (2010). manual of trade marks & intellectual property laws. four star publishers. pakistan. matthews, d. (2003). globalising intellectual property rights: the trips agreement. routledge. https://doi.org/10.4324/9780203165683 meland, m. (2005). malaysia to open ip court in two-three years. in law 360 & lexisnexis. kuala lumpur, malaysia. messrs asli mand barfi shop v messrs mand barfi shop. (2016). lahore high court. civil law digest 2167. muhammad saleem warind v maziiar. (2015). sindh high court. civil law digest, 655. quillen, c. d. j., & webster, o. h. (2001). continuing patent applications and performance of the us patent and trademark office. the federal circuit bar journal, 11(2001), 1. rana, s. s. (2013). trademark registration in pakistan. s. s. rana & co advocates, new delhi, india. retrieved from http://www.ssrana.in/intellectual%20property/saarc/pakistan/trademark-registration-in-pakist an.aspx sahlan, s. a. b. (2014). intellectual property awareness among public: comparative study between malaysia and the united kingdom. international journal of technical research & applications, 10(2014), 84-88. smithkline beecham p.l.c. through authorized signatory v the registrar of trademark. (2016). sindh high court, civil law digest 1647. tariff act. (1930). united states of america (act 112-99). trade descriptions act malaysia. (2011). malaysia (act 730). trade marks act. (1976). malaysia (act 176). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 128 published by scholink inc. trade marks ordinance. (2001). islamic republic of pakistan (act xix). trade marks rules. (2004). islamic republic of pakistan (act 211 (i)). united states code (customs duties). (1926). united states of america (title-19). united states code (patents). (1926). united states of america (title-35). whitaker, m., & rauh, a. (2017). asserting trademarks and available remedies at the itc. morison & foerster, united states of america. retrieved from https://mofoatitc.mofo.com/litigation-strategy/asserting-trademarks-itc/ zafar, i. (2014). trademark infringement in pakistan. zafar & associates, lahore, pakistan. retrieved from http://www.zallp.com/trademark_law.html zuallcobley, r. w. (2012). international intellectual property institute (iipi) and united states patent and trademark office (uspto). united states of america. retrieved from http://iipi.org/wp-content/uploads/2012/05/study-on-specialized-ipr-courts.pdf microsoft word elp-v2n2-p229 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 2, 2019 www.scholink.org/ojs/index.php/elp 229 original paper an analysis of the trend of china’s export trade to the usa based on r language luo shuang-lin1, zhou min1* & tang chong-tai2 1 school of economics and trade, hunan university of technology and business, hunan, china 2 carfax, new york 20120, usa * zhou min, school of economics and trade, hunan university of technology and business, hunan 41205, china received: november 17, 2019 accepted: november 25, 2019 online published: november 29, 2019 doi:10.22158/elp.v2n2p229 url: http://dx.doi.org/10.22158/elp.v2n2p229 abstract after president trump came to power, in order to change the “imbalance” between china and us trade, he launched a trade war with china, which led to increase uncertainty in china-us trade and increased export volatility. based on r language environment, this paper compares the advantages and disadvantages of seasonal arima (p, d, q) model and double-index ets (a, n, a) model in short-term forecast of china’s total export value to the united states. then, the double-index ets (a, n, a) model is selected to predict the trend of china’s export trade to the united states in the months of 2009-2020. the forecast results show that china’s export to the united states has seasonal characteristics. the export fluctuation is smaller than that in 2018, but the total value of exports has decreased significantly. finally, some suggestions are put forward. keywords seasonal arima (p, d, q) model, double-index ets (a, n, a) model, total export value, forecast 1. introduction against the background of the trade war between china and the united states, some scholars conducted studies on the prediction of the development trend of sino-american trade through cge model, game model and tv-stvar model, and the results showed that bilateral trade, gdp growth and social welfare would be affected. in recent years, many scholars have used relevant models to predict and analyze social phenomena, industrial structure, economic growth and scientific and technological innovation in r language environment. r language is an open source data analysis solution with powerful statistical calculation and graphic display design capabilities. maria brigida ferraro (2015) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 230 published by scholink inc. used r language to conduct cluster analysis of big data on the main factors affecting obesity. xue xin (2019) predicted and analyzed the exchange rate based on r language neural network. wu mingxin (2017) applied r language into the field of auditing and conducted big data processing on auditing finance. zhang zhe (2013) established a generalized time series model and a regression-time series model under the r language environment to forecast and analyze china’s export trade volume and tax revenue. li ping (2010) used r language statistical analysis software to conduct quantitative analysis of high-tech industry. the innovation of this paper is that based on r language environment, seasonal arima (p, d, q) model and double index ets (a, n, a) model are applied in the field of international trade to predict the short-term trend of sino-american trade value, so as to study the impact of sino-american trade war and provide guidance for dealing with trade war. 2. analysis of the current situation of china-us trade according to figure 1, it can be seen that during the period from 2001 to 2018, china’s total imports and exports to the united states showed a steady growth every year except for a decrease in 2009 and 2016. china has always maintained a large surplus. except for a slight decrease in the surplus in 2009, the surplus in the other years has basically become stable. figure 1. total imports and exports from china to the united states (unit: thousands of dollars) source: “china statistical yearbook” & “china customs statistics in 2018”. for a long time, the us has been china’s largest export market, accounting for about 20% of china’s exports. in 2018, the us tariff protection measures against china have affected the proportion of us exports in china to some extent. however, in 2018, the trade value between china and the us reached us $63351,941, an increase of 8.54% year on year. the total value of exports was 47,8423,17 million us dollars, up 11.33% year on year. the total value of imports was us $155,509,623. year-on-year growth of 0.75%; the surplus reached $323.32694 million, an increase of 17.24%. judging from the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 231 published by scholink inc. data, the impact of the trade war between china and the united states on china in 2018 is limited. 3. forecast and analysis of china’s export to the united states based on r language according to china’s general administration of customs issued in june 2014-june 2019, the data of chinese exports to the united states will be 2018 before and after data is divided into training and testing, and use the double index of ets (a, n, a) model and seasonal arima (p, d, q) model to predict respectively, and comparing the prediction results of two models, select the best prediction results. 3.1 model framework and principles 3.1.1 ets (a, n, a) model exponential model is the most common model used to predict the future value of time series. the idea of exponential smoothing method is derived from the improvement of moving average prediction method, which comprehensively uses adjacent values, overall trend and seasonality to conduct prediction analysis, but gives more weight to adjacent values. this kind of model is proved to be good for short-term prediction in practice. ets function in forecast package in r language can fit the index model. among them, ets function can be divided into three index models: ses, holt, and hw, respectively. ses, holt, and hw functions are convenient packages of ets function, and the functions have preset parameter values. after data input, the best model is selected as double exponential model. general ets function is as follows: (1) where ts is the timing sequence to be analyzed, and there are three letters defining the model. the first letter represents the error term, the second letter represents the trend term, and the third letter represents the seasonal term. optional letters include: additive model (a), multiply model (m), none (n), automatic selection (z). 3.1.2 arima model arima model (autoregressive integrated moving average moving average mode) is a commonly used stochastic time series model with high accuracy for short-term prediction. it was founded by american statisticians box and jenkins with the following basic ideas: some time series are a set of random variables dependent on time t, and the change of the whole series has certain regularity. by establishing a mathematical model and analyzing and studying, the structure and characteristics of time series can be essentially understood, and the most effective prediction results can be obtained. arima model is made up of autoregressive model ar (p), ma (q) and autocorrelation model poor score (d) of three parts, so that half of the arima model has the characteristics of the autoregressive and moving average characteristics of the process, and through poor score (d) let originally non-stationary time series become stable, improve the accuracy of the subsequent forecast. the general expression of arima (p, d, q) model is: www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 232 published by scholink inc. (2) in general, if the data is a time series with seasonal effects, a product seasonal model is required for simulation, p and q are the order of seasonal autoregression and moving average, d is the order of seasonal difference, and s is the seasonal cycle. 3.2 data basis (monthly data) analysis figure 2. total value of china’s exports to the united states in r language environment (unit: ten thousand yuan) figure 3. autocorrelation of current values from june 2014 to june 2019.06 the data are mainly from the general administration of customs of china, with a total of 61 sample data. using software is r, make in time for the horizontal axis, exports for the longitudinal axis of the sequence diagram, as shown in figure 3, march 2015, in february 2016 and february 2017, in march 2018 and february 2019 was the lowest each quarter, in october 2014, in september 2015 and december 2016 and november 2017 and november 2018 were appeared in the annual peak, the whole, china’s exports to the united states trade has obvious seasonal characteristic, present the total cost of the export trade fluctuation trend of rising and it peaked in 2018-2019 at a six-year high. at the same www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 233 published by scholink inc. time, as shown in figure 4, the time series of total export trade value shows a certain tardiness in autocorrelation and obvious seasonality, i.e., non-stationary. therefore, the data belongs to non-stationary time series. in order to eliminate the growth trend, difference is needed. in order to eliminate the seasonal trend, further seasonal difference is needed. 3.3 model prediction and analysis in order to more directly reflect the impact of us sanctions on china’s export trade with the us in the two years from 2018 to 2019, this paper selected china’s monthly export trade data from june 2014 to june 2019 for time series analysis, model and model mainly uses the short-term prediction of china’s export trade value to determine whether the total value of china’s export to the united states will decrease significantly or increase after the united states imposes sanctions on china. 3.3.1 grouping the data of china’s total export to the united states from june 2014 to june 2019 are divided into two groups: the first group is the total export value data before december 2017, named training; the second group is the total export value data after january 2018, named testing. in 2018 and january-june 2019, when the trade war between china and the united states was at its peak, a division can improve the accuracy of the model ( model and model) and the prediction of the total value of china’s exports to the united states. 3.3.2 make comparative analysis the degree of fitting of the model can be determined according to the information criterion. several information criteria can be used, such as red information criteria, aic information criteria, aic revised aicc information criteria, and bayesian information criteria, bic information criteria. according to table 4, according to the arima model presented by r and the aic information criterion, aicc information criterion and bic information criterion of ets (a, n, a) model, the fitting degree of arima model is better than ets (a, n, a) model. table 1. comparison table of fitting degree aic aicc bic arima（0,1,1）（0,1,0）[12]model 954.15 954.59 954.59 ets（a,n,a）model 1405.355 1423.132 1431.773 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 234 published by scholink inc. table 2. arima (0, 1, 1) (0, 1, 0)[12] model error correlation values rmse mae mape mase training set 1508882 1074948 4.997333 0.5105552 test set 3829596 3321557 14.615813 1.5775997 table 3. ets (a, n, a) model error correlation values rmse mae mape mase training set 1344986 1021103 4.814283 0.4849811 test set 2304295 1842249 7.454881 0.8749907 rmse represents root mean square error, mae represents mean absolute error, mape represents mean absolute percentage error and mase represents mean absolute scale error. these errors are used to measure the error degree of prediction results of arima (0, 1, 1) (0, 1, 0) [12] model and ets (a, n, a) model. through intuitive comparison tables 5 and 6 error numerical, ets (a, n, a) model is far less than the error of the model arima (0, 1, 1) (0, 1, 0)[12] model, and the sample data of the average value of 231.0439665 billion yuan, ets (a, n, a) model rmse, mae, and two groups of data under mape compared with the average of the sample data is small, at the same time, the mase is less than 1, so from the angle of error, ets (a, n, a) model has better prediction results than arima (0, 1, 1) (0, 1, 0)[12] model. to sum up, the arima (0, 1, 1) (0, 0)[12] model compared with ets (a, n, a) model is more complex, the fitting degree of arima (0, 1, 1) (0, 0)[12] model occupy a certain advantage, but in the short-term forecast, in the case of data presents obvious seasonal, ets (a, n, a) model prediction error rate is lower, so choose the ets (a, n, a) model in the prediction of the trend for china’s exports to the united states. 3.3.3 ets (a, n, a) model testing ljung-box test has better sample nature (that is, more effective in statistical sense) than box-pierce test. according to ljung-box test, under ets (a, n, a) model, p-value=0.07373>0.05. therefore, there is no sufficient reason to reject the null hypothesis and the residuals should be considered independent of each other. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 235 published by scholink inc. 3.3.4 predict results figure 4. predicted value of ets (a, n, a) model—line graph run the monthly data of china’s export value to the united states from june 2014 to june 2019 in the forecast package in r, and get the predicted value line chart of ets (a, n, a) model in figure 4. the blue line is the point estimate, and the light gray and dark gray areas represent 95% and 80% confidence intervals respectively. as can be seen from the figure, the total value of china’s exports to the united states will decline significantly from 2019 to 2020, roughly approaching the level of china’s total value of exports to the united states in 2017, because the united states imposes a tariff of up to 25% on imports of chinese products. the most important thing is that it may change the long-term stable growth trend of china’s exports to the united states. the predicted values and actual values are shown in table 7 and table 8 (the influence of holiday factors in february 2019 is obvious, so it is removed from the error estimation). table 4. error between fitting value and actual value from july 2018 to june 2019 time the actual value the fitting values error rate（%） 2018.07 26766530 26025160 -2.77% 2018.08 29481821 27034012 -8.30% 2018.09 31931363 28011028 -12.28% 2018.10 29319143 26483546 -9.67% 2018.11 31885204 27145170 -14.87% www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 236 published by scholink inc. 2018.12 27942025 27339536 -2.16% 2019.01 25211055 25973371 3.02% 2019.02 15481382 19555027 26.31% 2019.03 21498523 21749741 1.17% 2019.04 21074682 23838726 13.12% 2019.05 25296472 25320438 0.09% 2019.06 26826670 25468902 -5.06% mean absolute error rate (except 2019.02) 6.59% table 5. predicted values of ets (a, n, a) model time piont forecast interval estimate of 80% confidence level interval estimate of 95% confidence level 2019.07 26012197 (23621427,28402967) (22355830,29668564) 2019.08 27496730 (24928483,30064976) (23568936,31424524) 2019.09 28874115 (26139887,31608342) (24692475,33055755) 2019.10 27073494 (24182801,29964188) (22652560,31494428) 2019.11 28224219 (25185104,31263333) (23576294,32872143) 2019.12 27389672 (24209055,30570290) (22525338,32254007) 2020.01 25847560 (22531472,29163647) (20776042,30919078) 2020.02 19773579 (16327343,23219816) (14503016,25044143) 2020.03 21224636 (17652990,24796282) (15762275,26686997) 2020.04 23540110 (19847311,27232910) (17892462,29187759) 2020.05 25267428 (21457327,29077530) (19440381,31094476) 2020.06 25591927 (21667971,29515883) (19590754,31593100) 4. analysis of prediction results according to the above empirical evidence and prediction, the summary and analysis are as follows: first of all, from june 2014-june 2019 real data, months china’s exports to the united states trade gross value of the current period has obvious seasonal fluctuations, in february or march of each year will be the lowest of the year, mainly due to the effect of china about 2 month every year the spring festival holiday, after the spring festival exports gradually recover, generally around november reached the highest value. although there were frictions between china and the united states during this period, and the united states frequently used the “double-countervailing” investigation, “337” investigation and technical barriers to trade to restrict the import of chinese products, china’s export trade with the united states was still on the rise on the whole, and the surplus was also expanding. even in 2018, when the united states started a trade war, china’s exports to the united states www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 237 published by scholink inc. continued to grow. secondly, by using the model of a ets (a, n, a) it is concluded that the july 2018-june 2019 month predicted values and the real value of the mean absolute error rate was 6.59% (remove) in february 2019, error rate is small, relatively than that of arima (0, 1, 1) (0, 0)[12] model, especially in the case of data with the seasonal characteristics, ets (a, n, a) model to predict trend has more advantages. finally, the peak value of the predicted value in november 2019 is lower than the peak value of the actual value in 2018, and the minimum value of the predicted value in february 2020 is higher than that in 2019, indicating that the fluctuation range of china’s exports to the united states during the forecast period is smaller than that in 2018, and the total value of exports drops to the level of 2017. the comparison between the predicted value and the real value also shows that the trade war between china and the united states has little impact on 2018. however, due to the long-term trend of the trade war between china and the united states, china’s exports to the united states will be restrained to a certain extent during the period from 2019 to 2020, and the prospect of china-us trade is not optimistic. 5. suggestions 5.1 we will continue to open up and expand multilateral economic and trade cooperation china should continue to open up to the outside world, strengthen the supply-side structural reform in foreign trade, and improve the tax reduction and exemption policies and measures to support small and medium-sized foreign trade enterprises. we will promote the development of the one belt and one road market and the construction of bilateral and multilateral free trade areas, further enhance trade facilitation and create a favorable new environment for opening up the economy, so as to offset the impact of the reduction in exports to the united states. 5.2 we continue to negotiate with the united states on the basis of ensuring bottom-line thinking we should stick to the bottom-line principle and the principles of equality, justice and mutual benefit in communication and negotiation with the us, strive for an early conclusion of an agreement conducive to the long-term economic development of the two countries and avoid further deterioration of china-us trade. the recent breakdown of trade talks between china and the us and trump’s threat to impose additional tariff rates have further increased the uncertainty of china-us trade, which will also seriously affect the confidence of the export market in the us in the future. 5.3 we will strengthen enterprises’ awareness of risk prevention and intellectual property protection, and foster new international competitive advantages faced with the trade war between china and the united states, enterprises should be aware of risks, adjust their export markets in a timely manner, and avoid risks of tariffs and exchange rates. properly handle the industrial cooperation with relevant american enterprises. at the same time, we need to strengthen ipr protection and create a sound business environment in china. we should encourage and intensify enterprise innovation, improve the structure of export products, and cultivate competitive advantages in the quality, technology, brand and service of export products. in particular, we should www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 238 published by scholink inc. avoid focusing on 16 categories of products for export to the united states and implement differentiation strategy. references anthony, w. c., jim, c., & v. reddy, d. (2019). the us-china trade war: dominance of trade or technology? applied economics letters, 2019, 1-6. https://doi.org/10.1080/13504851.2019.1646860 box, g. e. p. et al. (2015). time series analysis: forecasting and control. john wiley & sons. guijun, l., fei, w., & jiansuo, p. (2018). global value chain perspective of us–china trade and employment. world economy, 2018, 41. hopewell, k. (n.d.). us-china conflict in global trade governance: the new politics of agricultural subsidies at the wto. review of international political economy, 1-25. hughes, l., & meckling, j. (n.d.). the politics of renewable energy trade: the us-china solar dispute. energy policy, 105, 256-262. https://doi.org/10.1016/j.enpol.2017.02.044 ka, z. (2013). high stakes: us-china trade disputes under the world trade organization (wto). asian journal of social science, 41(3-4), 352-380. https://doi.org/10.1163/15685314-12341309 lin, j. y., & wang, x. (2018). trump economics and china–us trade imbalances. journal of policy modeling, 40(3), 579-600. https://doi.org/10.1016/j.jpolmod.2018.03.009 maria, b. f., & paolo, g. (2015). a toolbox for fuzzy clustering using the r programming language. fuzzy sets and systems, 279, 1-16. https://doi.org/10.1016/j.fss.2015.05.001 tung, r. l. (1982). u.s.-china trade negotiations: practices, procedures and outcomes. journal of international business studies, 13(2), 25-37. https://doi.org/10.1057/palgrave.jibs.8490548 venables, w. n., & smith, d. m. (2006). r development core team. zeng, k. (2013). high stakes: united states-china trade disputes under the world trade organization. international relations of the asia-pacific, 13(1), 33-63. https://doi.org/10.1093/irap/lcs014 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 5, no. 2, 2022 www.scholink.org/ojs/index.php/elp 1 original paper implementation of inclusive education policy for disabled children in primary schools in vietnam do thi bich thao 1 1 faculty of social work, hanoi national university of education, hanoi, vietnam received: july 22, 2022 accepted: august 15, 2022 online published: september 29, 2022 doi:10.22158/elp.v5n2p1 url: http://dx.doi.org/10.22158/elp.v5n2p1 abstract implementing inclusive education (ie) for children with disabilities (cwd) in primary schools is one of the essential roles of school manager to provide equal opportunities in learning and development for cdw. this paper is concerned with exploring ie implementation in primary schools in cau giay, hanoi, vietnam. ie management such as making plans, organising activities, directing, and assessing discussed related to effective implementation of ie policy in these schools indicates that ie management although is not being satisfactorily implemented in schools. the results of the study will be the bases for proposing more effective measures to manage inclusive education in primary schools in vietnam. keywords inclusive education, public policy, vietnam, primary school, disabilities 1. introduction the education for all (efa) initiative, first put forth in 1990 by the international community, marked a global movement toward providing quality basic education to all children, youth and adults (united nations educational, scientific, and cultural organization (peters, 2007). however, the majority of children with disabilities (cwd) in developing countries including vietnam are currently out of school, while many of those enrolled are not learning. removing barriers to accessing education and to learning for persons with disabilities are prerequisites for the realization of efa. successful implementation of ie could increase the number of those with disabilities receiving educational and other services in many vietnamese schools. the law on persons with disabilities 2010 defines people with disabilities as follows: “persons with disabilities by definition of this law are those who have impairment of one or more parts of their body, or functional impairment, which are shown in different forms of disability, and may cause difficulties in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 2 published by scholink inc. work, daily life and learning” (phan, 2017). to ensure that all children have access to quality education, education policies and practices must be inclusive of all learners, encourage the full participation of all, and promote diversity as a resource, rather than as an obstacle. inclusive education for all will pave the way to prosperity for individuals and society, at large. the history of services for students with disabilities in vietnam started from the french colonial government established the first school for vietnamese students who were deaf in 1886. when the vietnam-american war ended and the country was reunified, the education for all handicapped children’s act was enacted by the u.s. congress, and vietnam initiated the construction of a special separate school system for students with disabilities. the seeds of inclusive education in vietnam were sown nearly 30 years ago. by 1991, vietnam had established 36 special schools throughout the country, which served 6 000 students with disabilities. at that time, vietnam was the first country in asia to ratify the united nations (un) convention on the rights of the child. in that same year, vietnam enacted legislation in keeping with the un convention on the rights of the child that required compulsory primary education and enacted the second piece of legislation that dealt with the protection and care for children. the law of protection and care for children addressed the reintegration of students with disabilities into society, the availability of special schools, and the provision of rehabilitative services. in 1992, a new constitution was ratified that emphasized appropriate vocational training for children with disabilities. despite the supportive national legislation and constitutional changes, in practice, the early identification of children with disabilities, provision of parental support, and student inclusion in preschool, primary, or secondary schools were rare. vietnamese children with intellectual disabilities, physical disabilities, vision and hearing impairments, deaf-blindness, learning disabilities, autism, multiple disabilities, and disabilities resulting from agent orange syndrome, disease, and congenital conditions had limited access to any schooling. traditionally, children with disabilities were cared for by their families, who often viewed the children as burdens to society or sources of shame and pity. different surveys provide different figures, and the lack of accurate data is a common issue in the country. for example, the 2009 viet nam population and housing census used a set of questions based on the international classification of functioning, disability, and health (icf) framework. by this standard, the census found that 7.3% of vietnamese have impairment in one or more of the following areas: vision, hearing, mobility, and cognition (le, 2013). according to the ministry of labor, invalids and social affairs, 1.3 million people with disabilities are children between the age of 5 and 18 (le, 2013). physical disabilities, mental disabilities and hearing impairments are the three most common groups. the ministry of education and training has determined that inclusive education is the main direction to ensure equality and fairness in education for children with disabilities to achieve the goal: “developing one’s abilities, being in harmony with each other. enter and increase opportunities to contribute to the community; ensure the right to education of equal quality, quality and suitable to the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 3 published by scholink inc. characteristics and abilities of people with disabilities” (le & nguyen, 2019). managing inclusive education activities for cwd studying at primary school is essential to achieving the goal. recently, the number of cwd participating ie has increased rapidly with many different types and degrees of disability. and the management of inclusive education for children with disabilities in hanoi has faced many difficulties. this paper aims to understand inclusive education (ie) implementation in primary schools in hanoi, vietnam. 2. method the study was conducted at 7/11 primary schools in cau giay district, hanoi, vietnam to explore implementing inclusive education for cwd. the study lasted from march 2021. the questionnaire is designed for 3 groups of participants including 19 educational managers, 54 classroom teachers and 52 parents of children with disabilities. mixed methods are used as questionnaire surveys, in-depth interviews and operational product research to collect data. for the questions, we used a 5-level likert scale 5-point likert scale (poor, fair, good, very good, and excellent). the mean value for each for is calculated between the rating levels. with this scale, it is possible to indicate the following ratings: 1,0-1,80: poor; from 1,81-2,60: fair; 2,61-3,40: good; 3,41-4,20 points: very good; 4,21-5,0: excellent. 3. result 3.1 making inclusion plans for children with disabilities in schools table 1 shows that the planning of inclusive education activities for cwd in primary schools was “very good” with an average of 3.47. there are four items rated “very good”; one item was “good” and 1 content is “fair”. with the same average score of 4.03, content “making plans to accept children with disabilities learning inclusion” and “making plans for the implementation of knowledge-based educational content; social skills; health care, rehabilitation” was evaluated as performing better than other kinds of plans in schools. the content “making plans to explore the abilities and needs of cwd in inclusive learning” was assessed at the level of “fair” (m=2.44); however, the sd of 0.88 is quite high, indicating that there is a difference in the level of performance across the schools staff. in terms of percentage, 13.7% of participants rated that this item “very good”; 23.3% rated it as “fair” and 46.6% rated this content as “good” and the remaining 16.4% as “excellent”. this is an important management activity to help develop individual educational goals for each cwd, but the survey results show that a large percentage of schools are still not interested in implementing it. to clarify the planning work, when conducting interviews with 7 administrators with specific questions: “can you tell about planning educational activities for cwd in your school?”, 6/7 participants told that “the school does not have a separate plan for inclusive education activities for cwd; this activity is just a content in the school's school year plan, then the department performs any task, that department www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 4 published by scholink inc. makes a plan to organize the implementation”; 3/7 commented that: “some planning contents are not necessary, just need to be well organized”; 5/7 managers could not fully and accurately state the objectives of managing inclusive education activities for cwd. table 1. response on making inclusive education plans for students with disabilities items/content mean (sd) making plans to enroll cws learning inclusion 4.03 (0.52) making plans to explore the abilities and needs of cwd in inclusive learning 2.44 (0.88) creating a goal-setting plan, make an individual education plan 2.79 (0.48) making plans for the implementation of knowledge-based educational content; social skills; health care, rehabilitation 4.06 (0.57) making plans to test and evaluate the results of inclusive education for children with disabilities 4.01 (0.55) table 1 demonstrated that the planning of inclusive education activities for children with disabilities in primary schools in district 7 is done at “good” with an average of 3.47. there are 4 content rated “very good”; 1 content is rated “good” and 1 content is “fair”. with the same average score of 4.05, content “making plans to enroll cws learning inclusion” and “making plans for the implementation of knowledge-based educational content; social skills; health care, rehabilitation” was evaluated as performing better than other plans. the content “making plans to explore the abilities and needs of cwd in inclusive learning” is assessed at the level of “fair” with an average of 2.44; however, the sd of 0.88 is quite high, indicating that there is a difference in the level of performance across the schools. in terms of percentage, 13.7% of comments rate this content as “good”; 23.3% rated it as “fair”, 46.6% rated this content as “good” and the remaining 16.4% as “very good”. this is an important management activity to help develop individual educational goals for each child, but the survey results show that a large percentage of schools are still not interested in implementing it. to clarify the planning work, when conducting interviews with 7 administrators with specific questions: “teacher, tell me about planning educational activities for children with disabilities in your school. ms) how is it done?”, 6/7 commented: “the school does not have a separate plan for inclusive education activities for children with disabilities; this activity is just a content in the school's school year plan, then the department performs any task, that department makes a plan to organize the implementation”; 3/7 commented that: “some planning contents are not necessary, just need to be well organized”; 5/7 managers could not fully and accurately state the objectives of managing inclusive education activities www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 5 published by scholink inc. for children with disabilities. 3.2 the prevalence of organizing inclusive education activities for children with disabilities table 2. response to organising inclusive education activities items/content mean (sd) assigning to receive records of children learning inclusion 4.59 (0.49) identifying the abilities and needs of the child’s learning inclusion 3.34 (0.75) creating a goal-setting plan, make an individual education plan 3.92 (0.68) setting goals, making individual educational plans for each child with disabilities 3.95 (0.57) monitoring and evaluating the results of inclusive education for children with disabilities 4.34 (0.65) table 2 shows that the organization of inclusive education activities for children with disabilities is done quite well. all assigned content and organization achieved the level of “very good” or higher. “assigning to receive records of children learning inclusion” is best done with a mean of 4.59 and sd of 0.49 the survey results show that 41.1% of opinions rate this work at the level of “good”; 58.9% of opinions rated it at the level of “very good”. this proves that the principal does a good job of assigning vice principals and academic staff to receive records of children with disabilities for inclusive learning, and evaluate and place classes for children with disabilities for inclusive learning. the work “monitoring and evaluating the results of inclusive education for children with disabilities” is also done relatively well with a mean of 4.34; through the organization records of the periodical examination for the 2015-2016 and 2016-2017 school years at 7 schools, we find that this is relatively well-organized content, the record is fully archived because it is associated with organizational activities. test and evaluate students throughout the school, there is a specific and clear assignment in testing and evaluating children with disabilities. the work “creating a goal-setting plan, make an individual education plan” and “creating a goal-setting plan, make an individual education plan, setting goals, making individual educational plans for each child with disabilities” are carried out at the level of “good” equivalent to (mean=3.92 and mean=3.95 respectively). however, when studying the professional assignment records at the beginning of the 2016-2017 and 2017-2018 school years in 7 schools, it was found that the assignment of homeroom teachers in the class without students with disabilities and the class with students with disabilities. inclusive learning is the same, there is no clear definition of tasks and relationships between homeroom teachers, subject teachers, and individuals involved in the process of inclusive education for children with disabilities. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 6 published by scholink inc. the activity “identifying the abilities and needs of the child's learning inclusion” was carried out at the lowest level with an average score of 3.43; a rating of 5 and an sd of 0.76 indicates a disparity in the level of performance across schools on this activity. in the survey results only 6.8% rated this content at the level of “very good” but up to 50.6% of the comments rated the level of implementation at the level of “good-fair”. when conducting in-depth interviews with 7 homeroom teachers in 7 schools about the organization of identifying abilities and needs for children with disabilities, 4/7 homeroom teachers admitted that “teachers themselves have not been interested in determining the abilities and needs of children with disabilities because there is no implementation and assignment of tasks by the principal”. in general, organizing inclusive education activities for children with disabilities is carried out to a better extent than planning activities. however, through the actual situation of the survey, the principal should pay more attention to the activity. “identifying the abilities and needs of the child’s learning inclusion” because this is the basis for ensuring the quality of inclusive education for cwd in primary school. 3.3 directing of inclusive education management for children with disabilities in schools table 3. directing inclusive education for children with disabilities in primary schools items/content mean (sd) implementation orientation 3.88 (0.95) directing, instructing, training 3.24 (0.74) motivating and encouraging and motivating in the educational process for children with disabilities 3.43 (0.81) table 3 shows that the activity “orientation for implementation of inclusive education” is carried out at the level of “very good” with 3.88 points; rank 1; the activity “directing, instructing and training teachers to educate about knowledge, social skills, and rehabilitation for children with disabilities” is only rated at the level of “good” with an average of 3.24. this is the most important content but has the lowest score. when conducting in-depth interviews with 7eachers in assessing the direction and motivation of principals in implementing inclusion for cwd, 4/7 of teachers admitted “lack of instructions from superiors in implementing educational content on knowledge, social skills and rehabilitation for children with disabilities. we need more training to understand the educational knowledge for cwd according to different types of disabilities”. in addition, the teachers also said that “inclusive education for children with disabilities is very difficult, but the regime is not enough, teachers need more encouragement from the principal to do their job well”. when conducting in-depth interviews with managers to find out about the causes of the above situation, the majority said that: www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 7 published by scholink inc. “the department of education lacks direction on the work of inclusive education, only general guidance is incorporated in the plan. the school year of the primary school team”. in addition, there are very few training sessions for managers and teachers. although there are instructions for self-improvement, it is not effective. from 2015 to now, the quan cau giay department of education and training has only organized two training sessions on “teaching children with dyslexia” and “activities to support children with special educational needs especially in preschool and primary schools”. the results of the in-depth interview also showed the work of directing and instructing on the implementation of dossiers for children with disabilities; in the development of individual educational goals and plans; in testing, assessment of the inclusion of cwd is done relatively well. it proves that the principal has clear specific regulations and guidelines in directing and guiding the implementation of the above contents. thus, the work of directing inclusive education activities for cwd in primary schools is performed at a good level; however, principals need to pay more attention to directing and motivating teachers in implementing educational content on knowledge, social skills, and rehabilitation for children with disabilities, because this is a long process, throughout the school year. 3.4 monitoring and assessment of inclusive education for children with disabilities in schools table 4 shows that the evaluation is carried out relatively evenly among the three contents with the level of “very good” or higher. with 4.28 points, “checking and evaluating an application for children with disabilities” is the work that is rated at the level of “very good”, the remaining contents are evaluated at the level of “very good”. the low score of all 3 items (0.53-0.70) shows that the test performance is relatively similar in primary schools in the district. to better understand the status of testing and evaluation, we conducted in-depth interviews with management staff and technology teachers in primary schools that have implemented inclusive education. table 4. monitoring and assessment of inclusive education for children with disabilities in primary schools items/content mean (sd) checking the implementation of the dossier and application for cwd 4.28 (0.53) checking the implementation of inclusive educational content for children with disabilities 3.80 (0.70) checking results of inclusive education for children with disabilities 4.04 (0.58) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 8 published by scholink inc. with the question “how is the monitoring and assessment of the implementation of educational contents for children with disabilities at school conducted?”, 7 out of 10 teachers responded that a year the principal inspects, signs and approves individual education pans with disabilities 4 times as prescribed; 3 out of 10 said that the principal only signs and approves the individual education plan book once a year at the end of the school year. teachers are tested and evaluated through attending class hours, checking individual education plan books, and through periodic test results for disabilities. with the same survey question as above, the management staff said: “checking and evaluating the individual education plan books of children with disabilities, combined with the children’s records to consider determining capacity and needs define the educational goals of the teachers. in addition, management staff also regularly check through discussions with teachers, children with disabilities and parents of children with disabilities; statistics to evaluate the quality of inclusive education in each term of the school year”. however, commenting on the post-inspection adjustment, 8/10 teachers said that: “there is no requirement to adjust, only sometimes the vice-principal gives general reminders in the group meeting”. the general average for the level of testing and evaluation of inclusive education activities for children with disabilities in primary schools in district 7 is 4.11, which is quite good. the examination and evaluation were based on the guiding documents on the work of inclusion for children with disabilities, the examination process was carried out methodically and with full content; however, the principal needs to pay more attention to the implementation of post-inspection adjustments. figure 1. level of inclusive education implementation in schools www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 9 published by scholink inc. figure 1 shows that the level of performance of the principal’s management functions in the management of inclusion for children with disabilities is only at a good level, with which the best-performed function is “examination and evaluation” with an average score of 4.12 points; the function “planning” is implemented at the lowest level with an average score of 3.45 points. from the above analysis results, it can be seen that the principal’s management mainly focuses on the organization of assignment, inspection and evaluation; not paying attention to planning and leading the implementation of inclusive education for cwd. therefore, the effectiveness of these activities for cwd in primary schools in hanoi has many limitations existing in making plans to find out the capabilities and needs of children with disabilities to learn inclusion; identifying the abilities and needs of cwd in learning inclusion; directing, instructing and training to well perform the work of education; inspecting and evaluating the implementation of educational contents for children with disabilities. survey results on the management of inclusive education activities for children with disabilities show that principals of primary schools have paid attention to the performance of management functions; however, the level of performance of the functions is not high and uneven. 4. discussion and conclusion inclusive education is both an educational goal and a methodology (slee, 2018) a philosophy and a legislative framework, a right, a means by which all other rights are realized, and a moral obligation. it requires new and transformative legislation, policies and practices, questioning of the status quo, and the dismantling of existing barriers. the results of the current study show that inclusive education in primary schools has been performed relatively well, but there are still some limitations to inclusive education management existed. therefore, in the coming time, the principals of these schools need to focus on implementing the following management measures well: 1) strengthening the planning of inclusive activities for children with disabilities, paying attention to thoroughly grasp the goals of inclusion activities for cwd; 2) well perform the assignment of tasks and relationships between members in the implementation of inclusive education for children with disabilities; 3) training and retraining to improve the qualifications of inclusive education for teachers to well perform the direction and implementation of the contents of inclusive education; 4) regularly inspect and evaluate the implementation of inclusive education activities for children with disabilities, paying attention to the adjustment of the plan after the inspection; 5) create the best environment, learning and development conditions for cwd. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 2, 2022 10 published by scholink inc. references le, d. d., & nguyen, h. k. (2019). evaluating the effectiveness of educational policies for children with disabilities and proposing measures to manage inclusive education in vietnamese schools. vietnam journal of educational sciences, 23(11), 57-62. le, h. (2013). opening the gates for children with disabilities: an introduction to inclusive education in vietnam. washington, dc: aspen institute. peters, s. j. (2007). “education for all?” a historical analysis of international inclusive education policy and individuals with disabilities. journal of disability policy studies, 18(2), 98-108. https://doi.org/10.1177/10442073070180020601 phan, g. (2017). understanding crpd implementation in vietnam. in making disability rights real in southeast asia: implementing the un convention on the rights of persons with disabilities in asean (pp. 167-184). lexington books, lanham, md. slee, r. (2018). inclusive education: from policy to school implementation. in towards inclusive schools (pp. 30-41). routledge. https://doi.org/10.4324/9780429469084-3 tran, k. v. (2014). exploring the experience of children with disabilities at school settings in vietnam context. springerplus, 3(1), 1-11. https://doi.org/10.1186/2193-1801-3-103 https://doi.org/10.1177/10442073070180020601 https://doi.org/10.4324/9780429469084-3 https://doi.org/10.1186/2193-1801-3-103 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 1, 2023 www.scholink.org/ojs/index.php/elp 57 original paper research on the mechanism and path of rural industry revitalization enabled by digital economy in southwest china zhai haomiao 1 & gao fuxia 1 1 college of finance and economics, sichuan international studies university, chongqing, 400031, china received: april 1, 2023 accepted: april 30, 2023 online published: may 23, 2023 doi:10.22158/elp.v6n1p57 url: http://dx.doi.org/10.22158/elp.v6n1p57 abstract establishing a long-term mechanism for empowering rural industry revitalization through the digital economy is the key to comprehensively promoting rural revitalization during the 14th five year plan period. this article analyzes the influencing factors and characteristics of different models of rural industry development in the southwest region, and identifies specific models that can match the digital economy’s empowerment of different industries in the southwest region. and from the perspective of supply side structural reform, the research on the development mechanism and implementation path of rural industry revitalization in southwest china is placed under the national strategy of digital economy, aiming to provide scientific decision-making basis for the matching mode, mechanism design, and implementation path in the process of rural industry revitalization in southwest china from the perspective of supply side structural reform. keywords rural industrial revitalization, digital economy, southwest china funds supporting: chongqing social science planning and cultivation project-“research on the long-term governance mechanism of information poverty in southeast chongqing under the background of rural revitalization (2021py33)”; chongqing educational science planning project-“research on the training mode and path of diversified internationalized talents from the perspective of the belt and road” (k22yy209697); science and technology research project of chongqing municipal education commission-“research on the long-term governance mechanism of information poverty in ethnic border areas from the perspective of relative poverty (kjqn202100904)”; the chongqing higher education teaching reform research project “research on curriculum ideological and political teaching reform based on applied talent training mode-taking the course www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 58 published by scholink inc. of management as an example” (project number: 213215); the school-level educational reform project “research on the reform of curriculum ideological and political education based on the training mode of applied talents-taking the course of management as an example” (project number: jy2146240). 1. introduction in 2021, the central government's “no.1 document” clearly stated the need to “comprehensively promote rural revitalization and modernization of agriculture and rural areas, consolidate and expand the achievements of poverty alleviation and effectively connect with rural revitalization”. in the “window period” facing the “14th five year plan” and achieving the second centenary goal of socialist modernization, fully implementing the new development concept, smoothly advancing agriculture and rural areas to a new stage of development, and achieving higher quality modern agriculture have become important tasks that cannot be ignored at present. at present, china still faces shortcomings that hinder the high-quality development of agriculture, such as outdated application technology, unclear investment capital growth, decentralized production and operation, high production costs and low returns of agricultural products. this means that relying on digital technologies such as big data and blockchain to break through the bottleneck of traditional agricultural development is not only a key issue that needs to be solved urgently to fully achieve rural revitalization and accelerate the promotion of high-quality agricultural development. it is also an important task to promote digital agriculture to realize “digital china”. especially for the southwest region, which contains rich rural industrial resources, it is one of the key tasks of rural industry revitalization in the new era to realize the deep integration of agricultural technology, data, industry and scene through digital technology and accelerate the digital transformation of agriculture and rural areas. therefore, in the context of the promotion of the rural revitalization strategy, relying on the resource endowment advantages of the southwest region, in-depth and systematic research on the digital economy enabling rural industry revitalization in the southwest region and other related issues has important theoretical and practical significance for the realization of the goal of common prosperity in china and rural industry revitalization in the western region. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 59 published by scholink inc. 2. literature review (1) research status on the revitalization of rural industries. the research on the revitalization of rural industries mainly focuses on two aspects: first, industrial integration and development. rosenberg (1963) and yoffie (1997) believe that industrial integration development is not only an important research direction in industrial economics and information economics, but also has become a mainstream industrial form with social development. zhou zhenhua (2002), jiang changyun (2016), guo jun (2019) and others believe that the fundamental purpose of integrated development is to leverage the versatility of agriculture, enhance agricultural added value, stimulate farmers’ endogenous motivation, and achieve better production efficiency and economic benefits. the second is the high-quality development of agriculture and rural areas. the definition of the connotation of rural industrial revitalization in china stems from a deep understanding of high-quality agricultural and rural development, and an economic development model that better meets the growing practical needs of the people (wei houkai, 2020), fully reflecting the five development concepts (shi bo & zhang bingyao, 2018; he lifeng, 2018; yang weimin, 2018). emphasizing the coordinated development of multiple parties, it should involve various perspectives such as economy, society, ecological environment, the state, and opening up to the outside world (ren baoping, 2018; zhao xiao, 2020; gao peiyong, 2020). it should also achieve high efficiency, stable growth, and innovation driven development from multiple aspects such as supply and demand, input-output, and income distribution (li wei, 2018; lin zhaomu, 2018). focusing on the revitalization of rural industries, some literature suggests that it should be achieved from multiple dimensions such as agricultural production and management systems (zhong yu, 2018; xia xianli et al., 2019). it is an organic combination of rural ecology, culture, governance, agricultural production, and farmers’ lives, and should be consistent with the overall goal of rural revitalization (luo biliang, 2020; chen mingxing, 2020). (2) the current research status of the digital economy. one is from a conceptual perspective. don tapscott (1996) first proposed the concept of the digital economy, pointing out that the digital economy is a new type of economic relationship that emerged after the emergence of internet technology. institutions such as usdc (1999), usbc (2001), dbcde (2013), and oecd (2016) define the digital economy as the constantly developing new technologies such as the internet and big data, as well as their derived economic and social activities. secondly, from the perspective of scope, the core part is the digital sector itself. in a narrow sense, it refers to new business models created through the digital economy, such as platform economy and e-commerce, while in a broad sense, it includes all digitized economic activities, such as precision agriculture, digital media, digital transactions, etc. (bukht & heeks, 2017; peng wensheng, 2019; chen yongwei, 2020). thirdly, from the perspective of the composition of the digital economy, digital infrastructure is the fundamental support for the digital economy, and digital industrialization, as a pillar and leading industry, is steadily advancing. among them, agricultural digitization is a prominent weakness in the development of the digital economy (china academy of information and communication technology, 2019). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 60 published by scholink inc. (3) the current research status of digital economy assisting agricultural and rural development. pilat (2005) and zheng shilin (2014) believe that informatization has a promoting effect on productivity improvement. focusing on the agricultural field, research conclusions on the impact of informatization on total factor productivity in agriculture include: firstly, it has a significant promoting effect (oguttu et al., 2014; zhu qiubo et al., 2019); secondly, the impact is not significant (steeneveld et al., 2015; li shimei & yin xiwen, 2017); the third is the presence of nonlinear or heterogeneous effects (han haibin & zhang li, 2015; liu tao et al., 2019). as agricultural production itself is characterized by regionalism, periodicity, seasonality and small elasticity of demand for agricultural products, farmers lack the original capital accumulation, entrepreneurial talent, data information and other production factors, which makes the development of the agricultural sector lag behind the urban sector for a long time (zhang xiaoshan et al., 2018). at the same time, issues such as information asymmetry (stiglitz, 1981; zhou hongwei et al., 2019), financial exclusion and financial threshold effects (leyshon et al., 1993; su fang et al., 2016), inadequate rural infrastructure, and mismatched supply and demand of financial resources and services (wen tao et al., 2016; he guangwen et al., 2019) have greatly constrained agricultural development. the advantages of the digital economy, such as renewability, non competitiveness, inclusivity, and non exclusivity (bukht et al., 2018), can empower and enhance other production factors through integration. the integration and development of digital economy and agriculture and rural economy can reduce information asymmetry, expand the scale effect of agricultural production, optimize factor flow channels, effectively improve resource utilization efficiency, increase farmers’ income and happiness, and promote the transformation and upgrading of agriculture and rural modernization (irwin et al., 2010; hailu et al., 2014; huang jikun, 2018; zhang xun et al., 2019; xiao xu et al., 2019). (4) the main problems in existing research. scholars at home and abroad have conducted certain research on the empowerment of rural industries through digital economy, and the research results cover different fields, providing a foundation for this research topic. however, at least three aspects of the problem still need to be solved: 1) although existing research has raised the universal issue of digital empowering the integration of agriculture and rural development, there is relatively little research on the spatial spillover effects of high-quality agricultural development from the perspective of digital economy composition, neglecting the spatial correlation characteristics of regional economic activities in china. 2) although existing research has explored the models and paths of digital economy empowering the development of rural industries, it has overlooked the heterogeneity and particularity of regional industries due to the internal and external differences of different local governments, markets, and social participants. therefore, specific development models that are suitable for the actual situation of rural industries in the southwest region should be matched. in fact, this is the key to the success of digital economy empowering rural industry revitalization. 3) existing studies have described the development of rural industries empowered by the digital economy through qualitative research, but they have not yet been able to provide corresponding evidence through appropriate quantitative www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 61 published by scholink inc. research on how to determine the influencing factors of rural industry development empowered by the digital economy in southwest china, match different industrial development models, and the operation mechanism and implementation path of rural industry development empowered by the digital economy in southwest china. (5) the main ideas for solving the above problems in this project. in response to the existing research problems, this topic focuses on breakthroughs and research: 1) combining the characteristics and internal laws of local governments, markets, and participating entities, taking the primary, secondary, and tertiary industries in rural areas of southwest china as the research object, and focusing on the particularity of industries in southwest china, this paper studies the issue of digital economy empowering the development of rural industries in southwest china from both theoretical and empirical perspectives. 2) by analyzing the influencing factors of the digital economy on the development of rural industries in the southwest region, and combining with the practical characteristics of rural industry development in the southwest region, a real option model is constructed to match the specific models of different industry development, ensuring the feasibility, long-term effectiveness, and sustainability of the digital economy empowering the development of rural industries in the southwest region. 3) introducing various methods such as mathematical analysis, game analysis, and empirical analysis into the research topic, changing the drawbacks of existing literature that only uses qualitative methods for research. 3. research contents 3.1 research on pattern matching of digital economy empowering rural industrial revitalization in southwest china the existing research only focuses on the operational mechanism of the integration of digital economy and agricultural and rural economy, neglecting the importance of different regions as development entities, and the impact of internal and external differences in rural industries in the southwest region on the effectiveness of digital economy empowerment; the second is that only the practical model of digital economy empowering rural industrial development with chinese characteristics is provided, ignoring the differences in regional differences and the differences in local governments and regional development entities themselves. different regions should choose different practical models for rural industrial development based on the actual situation. 1) research on the influencing factors of digital economy empowering rural industrial development in southwest china. by clarifying the external constraints (such as digital infrastructure support, legal and regulatory mechanisms) and internal conditions (such as digital literacy, development status, etc.) that the digital economy empowers the development of rural industries in the southwest region, we empirically test the influencing factors of the digital economy empowering the revitalization of rural industries in the southwest region, and clarify the internal and external driving forces for the revitalization of rural industries in the southwest region. 2) research on the model of empowering rural industry revitalization in southwest china www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 62 published by scholink inc. with the digital economy. by clarifying the development characteristics of different industries in rural areas in the southwest region, classifying the operation modes of different formats, constructing a real option model, calculating the benefits of digital economy empowering rural industry development under different modes, and matching the specific models of digital economy empowering different types of industry development. 3) research on the efficiency of digital economy empowering rural industrial revitalization in southwest china. by clarifying the development conditions and resource endowment characteristics of rural industries in the southwest region, and utilizing actual data from different industries in the rural areas of the southwest region, a multidimensional evaluation index for the empowerment of rural industries in the southwest region by the digital economy is designed. a three-stage dea model is used to measure and analyze the efficiency of the empowerment of different industrial models by the digital economy. 3.2 research on the construction mechanism of digital economy empowering rural industrial revitalization in southwest china the existing literature mostly focuses on the universality of digital economy empowering rural industrial revitalization. firstly, it overlooks the need to pay attention to the relationship between different participating entities and other interest groups in different regions; the second is the failure to attach importance to the collaborative cooperation between local governments, markets, and social participation entities, which will affect the effectiveness of digital economy in empowering rural industrial development. 1) research on the linkage mechanism of digital economy empowering rural industrial revitalization in southwest china. based on the perspective of rural industry revitalization in the southwest region, guided by market demand, this study explores the advantageous roles of different entities including government, market, and rural residents, constructs an evolutionary game model, and analyzes the co construction behavior in the process of empowering rural industry revitalization in the southwest region with the digital economy. 2) a study on the incentive mechanism of digital economy empowering rural industrial revitalization in southwest china. based on the perspectives of local governments, markets, and social participants, guided by market demand, this study distinguishes the incentive forces of local governments, enterprises, and rural residents, constructs an evolutionary game model, and explores the establishment of a benefit sharing mechanism among local governments, markets, and social participants. 3) a study on the multi center collaborative guarantee mechanism for empowering rural industrial revitalization in southwest china with the digital economy. based on the perspective of multi center theory and collaborative governance theory, clarify the advantages and roles of various participating entities such as local governments, market entities, social organizations and units, and different industrial employment groups in the southwest region, construct a cooperative game model, reshape the relationship between various participating entities, and construct a collaborative security model with market leadership, social advocacy, and joint participation of new professional farmers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 63 published by scholink inc. 3.3 research on the implementation path of empowering rural industry revitalization in southwest china with digital economy although existing research has proposed the implementation idea of digital economy empowering the integration of agriculture and rural industries, firstly, it fails to combine the regional characteristics of the southwest region itself, and secondly, it fails to combine the inherent characteristics and laws of the development of rural primary, secondary, and tertiary industries. 1) research on the path design of digital economy empowering rural industrial revitalization in southwest china. by examining the models of digital economy empowering rural industry revitalization in the eastern, central, and western regions, and based on the levels of local governments, markets, and social participation entities, design institutional, policy, and collaborative paths for digital economy empowering rural industry revitalization in the southwestern region, as well as safeguard measures for digital economy empowering rural industry revitalization, to break free from the “path dependence” of digital economy empowering the integrated development of agriculture and rural economy under existing standards. 2) case study on empowering rural industrial revitalization in the southwest region with the digital economy. by selecting cases of digital economy empowering rural industrial development under different modes and industry types, we attempt to apply the theory, strategy, and implementation path proposed in the study. we empirically test the theoretical research results of the project using methods such as double difference regression model (did) and threshold regression model, and gradually feedback and improve it in order to promote its implementation in other regions. references bai, p. w., & zhang, y. (2021). the digital economy, the decline of demographic dividend and the rights and interests of low and medium skilled workers. economic research, 2021(5), 91-108. bukht, r., & heeks, r. (2018). defining, conceptualizing and measuring the digital economy. international organizations research journal, 13(2), 143-172. https://doi.org/10.17323/1996-7845-2018-02-07 chen, x. h., li, y. y., song, l. j., & wang, y. j. (2022). theoretical system and research prospects of the digital economy. management world, 2022(2), 208-224. huang, j. k. (2018). 40 years of agricultural development reform and future policy choices in china. agricultural technology and economy, 2018(3), 4-15. https://doi.org/10.22459/cyrd.07.2018.24 huang, q. h. (2023). pan ting, shi peihao. the impact and mechanism of the digital economy on the income gap between urban and rural residents. reform, 2023(3), 1-17. huang, z. h. (2018). accurately grasping china’s rural revitalization strategy. china rural economy, 2018(4), 2-12. jin, b. (2018). economic research on “high quality development”. china industrial economy, 2018(4), 5-18. https://doi.org/10.17323/1996-7845-2018-02-07 https://doi.org/10.22459/cyrd.07.2018.24 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 64 published by scholink inc. qian, x. j., xue, z. x., & sun, y. m. (2020). how new digital infrastructure affects the upgrade of foreign trade: empirical evidence from chinese cities at and above the prefecture level. economic science, 2020(3), 46-59. tapscott, d., & williams, a. (2007). wikinomics: how mass collaboration changes everything. in portfolio hardcover. wan, b. r. (2016). reflections on accelerating the improvement of agricultural competitiveness in china. agricultural economic issues, 2016(4), 4-8. wei, h. k., nian, m., & li, y. (2020). china’s regional development strategy and policies during the 14th five year plan period. china industrial economy, 2020(5), 5-22. https://doi.org/10.1142/s2345748120500086 wen, t., & chen, y. m. (2020). integrated development of digital economy and agriculture rural economy: practical models, realistic obstacles, and breakthrough paths. agricultural economic issues, 2020(7), 118-129. zhang, x., wan, g. h., & zhang, j. j. et al. (2019). digital economy, inclusive finance, and inclusive growth. economic research, 2019(8), 71-86. https://doi.org/10.1142/s2345748120500086 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 116 original paper the evolution law of the subject of enterprise compliance management in china conflicts with the logic of regulation yuxi fu 1,2 & enyi lai 1,2* 1 fujian zhongdian straits institute of intelligent equipment, xiamen, 361022, china 2 faculty of business, city university of macau, macau sar, 999078, china * enyi lai, e-mail: laienyi@163.com received: may 10, 2024 accepted: may 27, 2024 online published: may 29, 2024 doi:10.22158/elp.v7n1p116 url: http://dx.doi.org/10.22158/elp.v7n1p116 abstract this paper aims to discuss the conflict between the evolution law of the enterprise compliance management subject and the regulation logic in china. by analyzing the background and demand of the evolution of compliance management subjects, the innovative compliance management concept is put forward, and the application of this concept in enterprise compliance management is introduced in detail. the results show that this concept has significant advantages in promoting the development of enterprise compliance management and solving the conflict of regulatory logic. the study of this paper is of great significance for the deep understanding and application of the evolution law of enterprise compliance management subjects in china. keywords enterprise compliance management, subject evolution, regulation and logic logic, innovative concept 1. introduction with the continuous growth of china’s economy and the continuous change of the market environment, the importance of enterprise compliance management is becoming increasingly prominent. since the 1990s, the practice of compliance management in chinese enterprises has been gradually deepened, and the relevant regulatory policies and regulatory systems have been gradually improved. however, in practice, there is still a certain degree of conflict between the evolution of enterprise compliance management subjects and the logic of regulation, which has become a key problem to be solved urgently. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 117 this paper aims to discuss the conflict between the evolution law of the enterprise compliance management subject and the regulation logic in china. first, this paper analyzes the background and needs of the evolution of enterprise compliance management subjects, including the change of regulatory environment, the development needs of enterprises and the improvement of social responsibility awareness. this part can cite some related management studies, such as hess analysis of enterprise compliance drivers (hess, 2007, pp. 453-476), and weaver theoretical model on the evolution of compliance management (weaver, treviño & cochran, 1999, pp. 539-552). secondly, this paper identifies the stage characteristics of the evolution of enterprise compliance management subjects, and conducts an in-depth analysis combined with the corresponding regulatory principles. existing research shows that the enterprise compliance management subject has shown significant evolution characteristics from the initial passive compliance, to the later active compliance, and then to the current strategic compliance (tyler, 2005, pp. 1287-1312). however, in different stages, there are certain deviations in the goals and means between enterprises and regulatory agencies, which leads to the conflict between the logic of regulation and the evolution of subjects (hemphill & cullari, 2014, pp. 317-340). in order to solve the above problems, this paper proposed the innovative compliance management concept, and detailed the application of this concept in enterprise compliance management. this concept emphasizes the establishment of a dynamic and collaborative compliance management system to effectively integrate the regulatory needs and the reality of enterprises, and promote the balance and win-win interests of both sides. 2. the evolution background and demand of compliance management subject 2.1 the status and role of compliance management in china’s economic development in the context of china’s rapid economic development, compliance management, as an important part of enterprise operations, has gradually attracted more attention. with the increasing trend of globalization and the increasing market competition, while pursuing economic benefits, enterprises should also need to abide by national laws and regulations, social ethics and other norms to ensure the sustainable development of enterprises and the fulfillment of social responsibilities (birnik & bowman, 2007, pp. 303-324). as a modern way of enterprise management, compliance management has multiple functions, such as promoting the integrity management of enterprises, enhancing enterprise reputation and reducing legal risks. compliance management has its own new mission. first of all, compliance management is not only a simple laws and regulations to follow, but also a deep-rooted culture and concept. it requires enterprises to fully respect the rights and interests of employees, environmental protection and social responsibilities in daily operations, to achieve the organic unity of economic and social benefits (husted & allen, 2006, pp. 838-849). in the stage of china’s economic development transforming from high-speed growth to high-quality development, compliance management has been endowed with a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 118 more important mission and become an important driving force for the sustainable development of enterprises (doh, howton, howton & siegel, 2010). secondly, enterprise compliance management is not only in line with laws and regulations, but also a business mode based on integrity, reflecting the social responsibility and entrepreneurial spirit of enterprises. in a highly competitive market environment, enterprises with a good compliance record can gain the trust of consumers, investors and governments, thus winning greater market share and business opportunities. compliance management can generate more internal motivation. compliance management refers to the formulation and continuous modification of internal norms in accordance with the requirements of external regulations, and supervises the implementation of internal norms. by establishing a sound compliance management system, enterprises can detect and solve potential legal risks as soon as possible and avoid losses caused by negligence (vardi & weitz, 2016). the main body of compliance management optimizes the resource allocation of the enterprise based on compliance, reduce costs, improve production efficiency and then promote the internal control and risk control of the enterprise, so as to maximize economic benefits and stimulate the maximum internal power. 2.2 requirements and challenges under the background of the evolution of compliance management subjects enterprise compliance management subject is experiencing the evolution from a single law and regulation compliance provider to a comprehensive compliance management implementer. in this context, compliance management subjects are faced with new demands and challenges, which need to have a more comprehensive understanding of the connotation of compliance and cope with multiple challenges like in table 1. enterprise compliance management conforming to the management philosophy. the compliance management subject should realize that if compliance is insufficient to support the long-term development of enterprises, it should jump out of the scope of the middle layer of system culture and create new value under the background of the new era. in the new era of compliance management, the primary demand of enterprises is to deepen the understanding of the connotation of compliance, integrate compliance into corporate culture and strategy, penetrate into the spiritual culture of the core layer from the level of prescribed laws and regulations, and create a corporate management philosophy closely related to the strategy, mission and values of the enterprise. enterprise development is a comprehensive dimension of compliance management is no longer only to avoid fines and litigation, but also a way of sustainable development (ayres & braithwaite, 1992). compliance management subjects need to understand how compliance affects corporate image, reputation and long-term development, as well as how to integrate compliance into corporate strategic decisions and cultural construction. with the rapid changes of the market and the continuous update of laws and regulations, the compliance management subjects are faced with diversified challenges in the implementation process, and enterprises need to constantly adapt to the new compliance requirements. for example, with the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 119 rise of the digital economy, compliance issues such as data privacy protection and network security have become more complex, and compliance management subjects need to constantly learn, update knowledge, maintain sensitive risk awareness, and timely adjust compliance strategies. in addition, compliance requirements may also vary in different regions and countries, and multinational enterprises need to face compliance challenges under different legal systems and cultural backgrounds. with the deepening of the transnational operation of enterprises, enterprises need to abide by the laws and regulations of different countries or even regions at the same time, and these laws and regulations may differ or even conflict. compliance management subjects need to build a global compliance management network and establish transnational compliance teams to ensure that compliance can be achieved in different regions. international cooperation and information sharing have also become crucial to address compliance challenges on a global scale. table 1. enterprise compliance requirements or challenges normalization demand/challenge content requirement content in-depth deepen the understanding of the compliance connotation, and integrate the compliance into the corporate culture and strategy requirement diversified challenges adapt to market changes, update regulations, and maintain risk sensitivity requirement globalization challenge establish a global compliance network, transnational cooperation and communication challenge balance of regulations with commerce look for a balance between regulation and business development challenge internal and external consistency the consistency of internal management and employee behavior challenge transnational compliance dealing with the differences and conflicts between different regional regulations inspiration balance principle find a balance in the conflict and weigh the various interests inspiration multi-party cooperation cooperate to resolve conflicts and achieve common goals inspiration technological innovation innovate solutions and apply technology to solve problems www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 120 3. proposal and application of innovative compliance management concept 3.1 core concepts and principles of the new concept the new compliance management concept is an innovative way of enterprise management, aiming to regard compliance as a strategic asset, so as to achieve higher value creation in enterprise operations. the core concepts and principles of this concept cover multiple aspects to ensure that compliance is no longer limited to regulatory compliance, but in a deeper direction. the new concept emphasizes the organic integration of compliance and corporate strategy. traditionally, compliance is often seen as a passive obligation. however, the new concept holds that compliance should not be regarded as a limitation, but should be closely integrated with the strategic objectives of the enterprise. enterprises can improve their reputation and competitiveness in the market through the implementation of compliance, so as to better achieve their strategic goals. compliance can provide a more stable development environment for enterprises, and provide a strong guarantee for the sustainable development of enterprises. on the other hand, the new ideas emphasize the impact of corporate culture on compliance. compliance is no longer just a single task, but requires a consensus and values within the enterprise. the implementation of compliance needs to be integrated into the corporate culture and guide employees to form compliance consciousness, so that compliance becomes a natural behavior in daily work. enterprises should establish compliance cultures such as integrity, transparency and social responsibility, so as to effectively promote the grounding and inheritance of compliance concepts. in addition, the new concept emphasizes innovation and flexibility in compliance management. in a rapidly changing market environment, traditional compliance management methods may fail to meet diverse compliance requirements. the new concept emphasizes that compliance management needs to be innovative and flexible to timely adapt to new regulations and market changes. enterprises should establish a compliance management mechanism with rapid response, and constantly improve the efficiency and accuracy of compliance management through technical means, data analysis and other methods. 3.2 application cases of new ideas in enterprise compliance management in order to deeply understand the application of the new compliance management concept in practice, the following is a specific case to show how the new concept can have a positive impact on enterprise compliance management. when a multinational enterprise integrates the new compliance management concepts, on the one hand, it has established the core concept of “creating integrity and sustainable development”. enterprises emphasize the close connection between integrity and compliance, and regard it as an indispensable element to achieve sustainable development. subsequently, enterprises began to build a comprehensive compliance management system, covering all aspects from internal governance to supply chain cooperation. through professional training and internal publicity, the company has improved employees’ understanding and identity of the new compliance concept, and encouraged employees to consciously abide by the compliance standards. in addition, enterprises www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 121 cooperate with government agencies and industry associations to actively participate in the formulation and update of laws and regulations, which promotes the improvement of the compliance level of the industry. guided by the new compliance concept, the company has achieved remarkable results in compliance management (paine, 1994, pp. 106-117). in the control of legal risk, it has upheld the new concept, effectively reducing the possibility of violation of laws and regulations. at the same time, the enterprise has set up the image of integrity, won the trust of investors and partners, and laid a solid foundation for sustainable development. in addition, enterprises have also gained advantages in the market competition, transforming the advantages of compliance management into economic benefits, and achieving steady growth. 4. discussion on the evolution law of compliance management subject 4.1 characteristics and changes of compliance management subjects in different stages the characteristics and transformation of the evolution of enterprise compliance management subject have important enlightenment for the understanding and application of compliance management. the compliance management subjects in different stages show different characteristics and changes, which reflect the gradual deepening of the compliance concept and the continuous improvement of the compliance practice. in the early stage, the compliance management subject mainly focuses on the compliance of laws and regulations, with avoiding legal risks as the main goal. at this stage usually regard compliance as a passive obligation, and their main focus is to ensure that the enterprise operates under the framework of laws and regulations, and to ensure that the company’s production and business activities follow internal and external laws, systems, regulations, norms, guidelines, etc. at this stage, the compliance practice of the compliance management subject is relatively simple, focusing on the implementation of the compliance process, but lacking in a deeper compliance concept. with the deepening of market economy and the influence of globalization, compliance management subjects gradually realize that the importance of compliance goes beyond the scope of legal compliance. at this stage, the compliance management subject began to pay attention to the corporate social responsibility and reputation. they gradually realize that compliance is not only to avoid legal risks, but also to maintain the corporate image and long-term development. therefore, the compliance management subjects began to establish compliance management institutions within the enterprise, strengthen the construction of internal norms, and enhance the compliance awareness and education of employees. the subject of compliance management has gradually changed from passive compliance practitioners to active compliance practitioners, actively participating in social responsibility, and paying attention to the sustainable development of enterprises. with the rapid development of information technology, the compliance management subject further deepens the integration of the compliance concept and the modern management methods. at this stage, the compliance management www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 122 subjects gradually realize the importance of digitalization and informatization to compliance management. they began to combine compliance management with advanced digital tools and technologies to enable real-time monitoring and management of compliance information. at this stage, compliance management subjects pay more attention to the collection, analysis and utilization of data to predict potential compliance risks. the transformation at this stage makes the compliance practice of compliance management subjects more refined and can better respond to all kinds of compliance challenges. to sum up, the enterprise compliance management subject has experienced the transformation from passive compliance with laws and regulations to active participation in social responsibility, and then to different stages of deep integration of information technology. the characteristics and changes of different stages show that the concept of compliance management is gradually deepened and the compliance practice is constantly improved, which provides useful experience for the future compliance management. 4.2 trend and mode of the evolution of compliance management subjects the trend of the evolution of compliance management subjects is the organic combination of depth and breadth. compliance management subjects will pay more attention to the implementation of the compliance concept. in the past, compliance management subjects may pay more attention to the compliance of laws and regulations, but with the continuous improvement of social requirements for corporate social responsibility, the connotation of compliance is gradually expanding. compliance management subject is developing from a single legal compliance provider to a more comprehensive compliance practitioner. enterprises will pay more attention to ethics, social responsibility, environmental protection and other levels, and integrate compliance into their corporate culture and core values. this organic combination will enable enterprises in the pursuit of economic benefits 5. the solution strategy of regulating the logic conflict 5.1 definition and analysis of logical conflict as a key problem in the practice of compliance management, the logical conflict of regulation and management covers the complex scenarios caused by the contradictions, inconsistency and conflicts with business development strategies under the premise of compliance with laws and regulations. the existence of such conflict makes the compliance management subject in a dilemma, and it has to weigh and choose between compliance and operation to ensure compliance and achieve economic benefits. based on this, the formation and causes of the regulatory logic conflict need to be analyzed in depth. these conflicts usually result from the differences in the formulation objectives, timeliness, geography and other aspects of different laws and regulations, as well as the mutual influence between laws and regulations. enterprises often encounter different requirements of different regulations for the same problem, or the interpretation differences of the same regulation in different situations, thus resulting in compliance conflicts. in addition, updates and adjustments of laws and regulations may also lead to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 123 conflicts between old compliance practices and new regulations. therefore, understanding the background, purpose and application scope of different laws and regulations, and deeply analyzing the logic behind their formulation, are helpful to accurately grasp the essence of the logical conflict of regulation. after analyzing logical conflict and grasping the essence of conflict, the resolution of conflict requires a series of strategies to follow compliance topics. compliance management subjects need to establish a comprehensive understanding of different regulations, and start from the overall compliance system, and integrate compliance conflicts into a broader compliance strategy. it should be noted that the development of priorities and weights for compliance conflict resolution needs to give priority to regulations that affect the core values, business models and development direction of the enterprise. at the same time, a cross-departmental cooperation mechanism should be established to form joint efforts to jointly deal with compliance conflicts. in addition, risk assessment tools are used to analyze the risks and benefits of different solutions to help compliance management entities make informed decisions. most importantly, establish a compliance culture that regards compliance as a basic guideline for the enterprise and enables employees to have clear guidance in the face of compliance conflicts. in general, the regulatory logic conflict is a complex challenge in the field of compliance management, but it is also an opportunity to promote enterprises to continuously improve the compliance management system. through in-depth analysis of the causes of contradictions and conflicts between different laws and regulations, formulating reasonable solution strategies, and establishing a compliance culture with full participation, enterprises can better balance the relationship between compliance and operation, and realize the organic unity of compliance and development. this is not only of great significance for the sustainable development of the enterprise itself, but also can provide useful reference for other fields in the face of similar conflicts. 5.2 impact of innovative compliance management concept on conflict resolution the concept of innovative compliance management has a significant impact in resolving the conflicts of regulatory logic. traditional compliance management is often limited to meeting the requirements of laws and regulations, and it is easy to fall into mechanical compliance behavior, ignoring the internal connection between compliance and the long-term development of enterprises. however, the innovative compliance management concept has given compliance a broader connotation, brings compliance into the enterprise strategy and culture, and becomes a part of the enterprise value creation. an innovative compliance management philosophy emphasizes seeing compliance as part of value creation rather than simple legal compliance. under the guidance of this concept, enterprises will integrate compliance into their core price. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 124 6. conclusion 6.1 the leading role of the new ideas in the future enterprise compliance management the new compliance management concept provides a clearer direction and goal for the future enterprise compliance management. in the changing economic environment, enterprises are facing more complex and changeable compliance challenges, and the traditional compliance management methods have been unable to meet the needs. the new concept emphasizes the guidance of compliance by values, and the integration of compliance and corporate strategy, not only at the legal level, but also to be implemented at the cultural level. this will guide enterprises to pay more attention to integrity, social responsibility and sustainable development in compliance management, and enable enterprises to achieve a higher level of value creation on the basis of compliance. the leading role of the new ideas is also reflected in promoting innovation in compliance management. in the current rapidly changing business environment, enterprises need to constantly adapt to new laws and regulations while meeting the challenges brought by the technological revolution. the new compliance management concept encourages enterprises not to stick to the traditional compliance management method, but to encourage bold innovation. enterprise compliance management subjects can actively explore compliance practice methods suitable for themselves, and develop more efficient and intelligent compliance management tools with the help of scientific and technological means, such as artificial intelligence, big data analysis, etc. this can not only improve the efficiency of compliance management, but also can more accurately identify and respond to potential risks. in addition, the new concept of compliance emphasizes the close integration of compliance and corporate culture. under the leading role, the enterprise compliance management subject should take the cultivation of integrity culture as the starting point, and integrate compliance into the daily operation and employee behavior of the enterprise. by strengthening compliance training and advocating honest management, the enterprise can cultivate a staff team who consciously abide by laws and regulations in practice, so as to promote the effective implementation of compliance management at a deeper level. to sum up, the new compliance management concept provides a clear leading role for the future enterprise compliance management. by combining compliance with values, innovation, culture and other elements, enterprise compliance management subjects can better cope with the complex and changeable compliance challenges, realize the comprehensive upgrade of compliance management, and lay a solid foundation for the sustainable development of enterprises. 6.2 the reference significance of the experience of regulation and logic conflict resolution to other fields the experience of solving the conflict of regulatory logic in the field of compliance management also has far-reaching reference significance for other fields. in today’s society, various fields may face similar conflicts, such as environmental protection and economic development, privacy protection and information sharing, etc. from the experience in the compliance field, some useful implications can be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 125 used to guide other areas to solving similar issues. experience in the field of compliance management emphasizes that the key to conflict resolution is in finding a balance point. when dealing with the logical conflict of regulation, the enterprise compliance management subject usually needs to find a balance between laws and regulations and business development. this principle applies equally in other areas. for example, in the conflict between environmental protection and economic development, environmental protection technology innovation can be explored to find ways that can protect the ecological environment without hindering economic growth. in the conflict between privacy protection and information sharing, stricter data protection regulations can be formulated, while the transparency and legitimacy of data sharing can be encouraged to balance the rights and interests of both parties. references ayres, i., & braithwaite, j. (1992). responsive regulation: transcending the deregulation debate. oxford university press, usa. https://doi.org/10.1093/oso/9780195070705.001.0001 birnik, a., & bowman, c. (2007). marketing mix standardization in multinational corporations: a review of the evidence. international journal of management reviews, 9(4), 303-324. https://doi.org/10.1111/j.1468-2370.2007.00213.x hemphill, t. a., & cullari, f. (2014). corporate governance practices: a proposed policy incentive regime to facilitate sme compliance. journal of business ethics, 119(3), 317-340. hess, d. (2007). social reporting and new governance regulation: the prospects of achieving corporate accountability through transparency. business ethics quarterly, 17(3), 453-476. https://doi.org/10.5840/beq200717348 husted, b. w., & allen, d. b. (2006). corporate social responsibility in the multinational enterprise: strategic and institutional approaches. journal of international business studies, 37(6), 838-849. https://doi.org/10.1057/palgrave.jibs.8400227 paine, l. s. (1994). managing for organizational integrity. harvard business review, 72(2), 106-117. tyler, t. r. (2005). promoting employee policy adherence and rule following in work settings: the value of self-regulatory approaches. brooklyn law review, 70(4), 1287-1312. vardi, y., & weitz, e. (2016). misbehavior in organizations: a dynamic approach. routledge. https://doi.org/10.4324/9781315732565 weaver, g. r., treviño, l. k., & cochran, p. l. (1999). integrated and decoupled corporate social performance: management commitments, external pressures, and corporate ethics practices. academy of management journal, 42(5), 539-552. https://doi.org/10.2307/256975 https://doi.org/10.1093/oso/9780195070705.001.0001 https://doi.org/10.1111/j.1468-2370.2007.00213.x https://doi.org/10.5840/beq200717348 https://doi.org/10.1057/palgrave.jibs.8400227 https://doi.org/10.4324/9781315732565 https://doi.org/10.2307/256975 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 93 original paper discussion on the introduction of incomplete adoption system in china feasibility analysis shuangshuang liu 1 1 political science and law, tibet university, lhasa, tibet, china received: march 29, 2025 accepted: april 11, 2025 online published: april 13, 2025 doi:10.22158/elp.v8n1p93 url: http://dx.doi.org/10.22158/elp.v8n1p93 abstract this paper discusses the feasibility of introducing the incomplete adoption system in china. firstly, it reviews the historical evolution of the adoption system, and points out that there were two modes of complete adoption and incomplete adoption in ancient rome. then, it introduces the incomplete adoption system in french law, including the substantive elements, procedural elements and the effectiveness of incomplete adoption. france’s incomplete adoption system emphasizes the preservation of the legal relationship between the adoptee and the biological parents, while giving the adoptee a legal parent-child relationship with the adoptive parents. the article further discusses the reference significance of the french incomplete adoption system to china’s adoption system. through comprehensive analysis, this paper believes that it is feasible to introduce the incomplete adoption system in china. by drawing on the experience of france, china’s adoption system can be more perfect and flexible, providing better protection and support for minors and adoptees in special circumstances. by reasonably stipulating the substantive elements, procedural elements and the effectiveness of adoption, china can promote the development of family stability and social harmony while protecting the rights and interests of children. keywords full adoption, incomplete adoption, civil code the adoption system plays an important role in regulating kinship in society, which is also true in china. according to the provisions of the “civil code”, adoption refers to the legal act of a qualified adult citizen to legally adopt a minor child who meets the relevant conditions to establish a parent-child relationship (china legal publishing house, 2020, p. 61). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 94 published by scholink inc. the rights and obligations between adopters and adoptees are stipulated by law, and the legal relationship between minor children and biological parents is also eliminated (yang, a. y. & pan, l. q., 2017, pp. 86-91). the adoption model adopted in china is the full adoption model, which means that the traditional family model of parents and children has been formed after adoption. this model plays an important role in cultivating and protecting children’s growth, meeting the emotional needs of adopters, and maintaining social stability. however, in practical applications, there are also some problems with the full adoption model. for example, some biological parents have to send their children because of special difficulties. although they have deep feelings with their children, they make such decisions because they cannot be raised. in addition, adopted children may find it difficult to integrate and adapt in the new family. in addition, a single complete adoption system cannot solve all situations, especially with the diversification of social problems, the change of family patterns and the progress of traditional concepts, the connotation and function of the adoption system need to be moderately expanded. we should not only pay attention to raising minors, but also take into account the needs of raising the elderly and other special vulnerable groups. in order to better adapt to the reality, i think we can learn from the incomplete adoption model widely used in other countries. in this model, adoptive parents and adoptees can establish a parent-child relationship while retaining the adoptee relationship with biological parents. such a model is more flexible, can better meet the needs of different families, play the social function of the adoption system. the adoption system is an important part of china’s civil family law. the global adoption system is mainly divided into complete adoption system and incomplete adoption system, which together affect parent-child relationship, family relationship and social stability. although the full adoption system plays a key role in maintaining social harmony and stability, its shortcomings are becoming more and more obvious with the aggravation of the aging problem. therefore, it is urgent to construct an adoption model based on full adoption and supplemented by incomplete adoption. 1. overview of incomplete adoption 1.1 the concept of incomplete adoption adoption is a civil legal act in which a natural person adopts another person’s children in accordance with legal procedures to establish a similar parent-child relationship in law. from a legal point of view, the adoption behavior makes the two parties who have no blood relationship have a family parent-child relationship with legal effect, and from the perspective of social relations, the adoption creates a parent-child relationship that mimics the blood relationship. the explanations of these two perspectives are different, but both provide support for an accurate understanding of adoption. globally, the adoption system can be divided into two modes: “full adoption” and “incomplete adoption” (xuan, f. m., 2019). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 95 published by scholink inc. “complete adoption” means that the relationship of rights and obligations between adoptive parents and adoptive children is similar to that between biological parents and biological children, and the relationship of rights and obligations between adoptive children and biological parents and relatives is cut off. in short, after the establishment of the full adoption relationship, the parent-child relationship, the dependency relationship, the support relationship and the inheritance relationship are formed between the adopted children and the adoptive parents, but the legal relationship with the biological parents is interrupted. however, the “incomplete adoption” model is different. in this case, after the adoption relationship is established, the parent-child relationship between the biological parents and the adoptee is not cancelled, but the adoptive parents are added, that is, the adoptee has the rights and obligations of the parents and children between the biological parents and the adoptive parents. zhang yixing pointed out that the deficiency of the “incomplete adoption” system is that it cannot promote the healthy growth of young people, and it is difficult to meet the needs of the elderly for adopting adults. i believe that the establishment of an incomplete adoption relationship not only solves the problem of support for adoptive parents, but also takes care of the situation of biological parents, similar to the responsibility of a child to inherit two families at the same time, such as adoption or naming. the objects of adoption may include minors and adults. in view of the reality, china’s single full adoption model is no longer applicable to the basic national conditions of contemporary society. the introduction of the “incomplete adoption” model helps to improve the adoption system and can also achieve the goal of “childcare and old-age care”. this model takes into account the interests of adoptive parents, biological parents and adoptees, and is a more comprehensive and diversified choice. 1.2 the historical evolution of incomplete adoption the origin of the adoption system can be traced back to the slave society, but its comprehensive development dates back to the roman period. the adoption practice of “other rights holders” in roman law laid the foundation for the modern adoption system. in ancient times, heirs had limited rights and interests in property, but through adoption, they were able to deprive the natural father’s family of the right to inherit, in turn obtaining the right to inherit the adopter’s family. in order to protect the rights and interests of the adoptees, in 530 a.d., emperor youdi i further reformed and established that the adoptees still retained the right to inherit the biological father’s family during the adoption process. this laid the foundation for the adoption system to be divided into two modes of complete adoption and incomplete adoption, and the incomplete adoption system was formally established. in ancient rome, adoption was the way to obtain parental rights. through this system, adoptees gained family membership and became potential heirs. however, incomplete adoption, as a special form, does not give all parental rights to adopters. in the absence of a succession restriction will or the liberation of the adoptee, the adopter has a dual status of inheritance in incomplete adoption. in this historical system, the focus is on the property status of the adoptee and the establishment of the right of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 96 published by scholink inc. inheritance after incomplete adoption, aiming to protect its property interests. compared with the incomplete adoption system in modern times, the system in ancient rome highlighted the level of property inheritance. the modern incomplete adoption system pays more attention to the comprehensive family relationship, covering the maintenance of emotion, upbringing, support and other aspects. however, the incomplete adoption system in ancient rome still provides historical background and reference for the development of modern legal system. 1.3 the characteristics of incomplete adoption system incomplete adoption, as a new adoption model, has unique concepts and characteristics. compared with traditional full adoption, it pays more attention to fully respecting the rights of biological families. incomplete adoption does not mean the complete deprivation of biological parents’ rights, but through the establishment of a flexible family model, the adoptive family and the biological family are connected to each other to meet the different needs of the adopted children. in addition, incomplete adoption is also concerned with providing a stable and conditional family environment, so that adopted children can maintain a certain degree of contact with the biological family while protecting their rights and interests. internationally, the incomplete adoption system has achieved positive development in some countries. as one of the pioneers of the incomplete adoption system, the united states has provided a clear legal basis and support system for incomplete adoption by establishing a detailed legal and policy framework. the uk emphasizes the flexibility and adaptability of the family and provides more support and psychological counseling for adoptive families and adopted children. in china, although the incomplete adoption system is still in its infancy, it has begun to attract the attention of relevant departments and society. in recent years, some local pilots have been promoting the practice of incomplete adoption, which has laid a foundation for china to explore a more flexible and adaptable adoption model. 2. dilemma faced by china’s adoption system 2.1 the number of adoptions is small data in recent years show that the number of adoption registrations in china has shown a downward trend. by the end of 2020, a total of 11,000 adoption registrations had been processed nationwide, a decrease of 2,000 compared with the previous year. specifically, the number of adoption registrations in hong kong, macao, taiwan region and overseas chinese is 31, which is 59 less than last year. the number of adoption registrations of foreigners was 63, which was 907 less than that of last year (jiang, x. m., 1999, p. 13). 2.2 aging population is serious from the perspective of population age structure, china has entered a moderately aging society. by the end of 2022, china’s working-age population of 16-59 years old will be 875.56 million, accounting for 62.0% of the national population; the population aged 60 and above is 280.04 million, accounting for 19.8% of the national population, of which the population aged 65 and above is 209.78 million, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 97 published by scholink inc. accounting for 14.9% of the national population. that is to say, china’s population over the age of 60 accounts for nearly 20% of the national population! according to experts, china has entered a moderately aging society from a mild one. the acceleration of the aging process has brought about rapid changes in the labor structure, and has also caused rapid growth in public expenditures such as medical insurance and pensions, which has brought severe challenges to economic and social development. in the long run, the degree of population aging in china is deepening. in 2022, china’s new population is less than ten million, which is 9.56 million, while the new elderly population over 60 years old is 12.68 million. the elderly population is growing, exceeding the new population of 3.12 million, and there is a further increasing trend. in 2022, the elderly population over 65 years old is 209.78 million, an increase of 9.22 million. that is to say, from the beginning of 2022, china’s population has not only entered a period of negative growth, but also entered a period of rapid growth of the elderly population. according to relevant statistics, from 1962 to 1975, china’s new population was 367 million, and these people will grow old in the next ten years. according to estimates, it is expected that during the “14th five-year plan” period, the total number of elderly people aged 60 and over will exceed 300 million, accounting for more than 20% of the expected proportion, marking that china will enter the stage of moderate aging. in about 2035, it is expected that the elderly population aged 60 and over will exceed 400 million, accounting for more than 30% of the total population, marking that china will enter the stage of severe aging. the change of this demographic trend shows the aggravation of the aging problem in china, which puts forward more urgent challenges to social pension and medical care, and also emphasizes the importance of introducing incomplete adoption system to cope with the support needs of the elderly. 2.3 adoption system is not perfect the dilemma faced by china’s adoption system is that the problem of aging is becoming more and more serious. the existing “full adoption” model is limited to the adoption of minors, which cannot meet the growing demand for adult support, especially in the case of low birth rate or childless elderly, children working far away or even abroad, and the old age support of middle-aged bereaved elderly. the problem will be difficult to solve quickly. secondly, this model may damage the rights and obligations between the adoptee and the family of origin. according to the second paragraph of article 111 of the civil code, the rights and obligations between adopted children and biological parents and other relatives are cancelled due to adoption. however, china’s “adoption law” stipulates that the object of adoption is limited to minors. for minors under the age of 14, even if the parents have passed away and there is no inheritance, they can continue to enjoy the right of inheritance. however, after they are fully adopted, they will not be able to inherit the inheritance due to the establishment of the adoption relationship, which may deprive them of their inheritance rights. for minors over the age of 14, if they cannot continue to be raised due to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 98 published by scholink inc. financial difficulties or physical reasons of their parents, the choice of full adoption may affect the old-age care of their parents, and make these minors in trouble and difficult to make appropriate choices. in addition, the current system ignores the actual situation in china. in the early stage of our country, there were a large number of informal adoptions. due to the lack of information, many lost children or children who could not be raised due to economic difficulties were actually adopted informally. however, due to the imperfect law, these children after actual adoption may face disputes and troubles in inheritance, adoption and other issues. 3. the practical significance of applying incomplete adoption in china with the social change and the diversification of family structure, it is of great practical significance to apply the incomplete adoption system in china. the following are several points of view: 3.1 meet the needs of an aging society the incomplete adoption system can better meet the support needs of an aging society. under the current complete adoption system, only minors can be adopted, and incomplete adoption can cover the adoption of adults, especially those who face no care in their later years. this will help to solve the problems of elderly life and care in their later years, and provide them with a more stable living environment in their later years. 3.2 safeguarding the rights and interests of adoptees the incomplete adoption system helps to protect the rights and interests of adoptees. in full adoption, the legal relationship between the adoptee and the biological parents and relatives will be cut off, which may lead to the damage of the adoptee’s inheritance rights. the incomplete adoption model can provide additional support and care while retaining the legal relationship between the adoptee and the biological parents. in this way, adoptees can enjoy more family support and will not lose their original legitimate rights and interests due to adoption. 3.3 promoting family harmony the introduction of incomplete adoption system helps to maintain family harmony. in some cases, adoptive parents may face a choice between adopted children and children, resulting in contradictions and conflicts. incomplete adoption can enable both parties to enjoy rights and reduce tensions within the family. a more balanced relationship between family members is conducive to family harmony. 3.4 adapt to diverse family needs the incomplete adoption system can better adapt to the diverse family needs. the family structure of modern society is diverse, many people may face living alone, no children and so on. the incomplete adoption model provides these people with a reasonable choice of family support, which helps to meet their needs and also brings them more family care. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 99 published by scholink inc. 3.5 solving the problem of non-standard adoption the introduction of the incomplete adoption system also helps to solve the early problems of non-standard adoption. by clarifying the legal channels of incomplete adoption, illegal adoption and maintenance disputes can be reduced and the rights and interests of the adoptees can be protected. this will contribute to the stability of social order, ensure that every adoptee can legally enjoy their rights and interests, and avoid falling into legal risks. 4. the foreign experience of incomplete adoption system is of reference significance to china’s adoption system 4.1 the evolution of the adoption system in ancient rome, the adoption system was originally set up to inherit the family and inherit the family business, mainly including two modes of complete adoption and incomplete adoption. full adoption means that the legal relationship between the adoptee and the biological parents is completely eliminated, and the status of the adopter’s legitimate children or grandchildren is obtained. with the change of the times, the concept of incomplete adoption appeared in the justinian era, that is, to retain the relationship between the adoptee and the biological father’s family. france first regulated adoption in the “napoleonic code” promulgated in 1804, which laid the foundation of modern adoption law. however, with the social change and the importance of children’s rights and interests, the lack of incomplete adoption has gradually emerged, making the full adoption model universal and emphasizing the protection of children’s rights and interests. for example, china, japan, algeria and other countries have only a single provision for full adoption. the 1993 hague convention on protection of children and cooperation in respect of intercountry adoption vigorously advocates full adoption and prohibits the conversion of full adoption into simple adoption (jiang, x. m. & she, g. h., 2001). 4.2 incomplete adoption system in french law france’s incomplete adoption system, also known as simple adoption, is divided into adopter conditions, procedural requirements, effectiveness and other aspects of the detailed provisions. incomplete adoption emphasizes that the relationship between the adoptee and the biological parents is preserved, and the legal parent-child relationship between the adoptee and the adoptive parents is given. in terms of substantive requirements, france stipulates conditions such as the age of the adopter, the consent of the spouse, and the consent of the biological parents, while paying attention to the age and family situation of the adoptee. in the procedural requirements, the adoption needs to be examined and approved by the court to ensure the legal compliance of the procedure. incompletely adopted the validity of the law clearly stipulates that the adoptee retains the inheritance rights of the original family, and at the same time bears the obligation to support the families of both parties. the adoption relationship also has the possibility of dissolution and invalidity, but the dissolution of adoption needs to consider multiple factors to ensure the protection of the legitimate rights and interests of all parties. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 100 published by scholink inc. 4.3 the reference significance of french incomplete adoption system to china’s adoption system france’s incomplete adoption system has certain reference significance for china’s adoption system. france has fully considered the protection of children’s rights and the balance of family relations, emphasizing the legitimacy of the procedure and the participation of social institutions, thus protecting the rights and interests of both adopters. china can learn from france’s practice and appropriately relax the conditions for incomplete adoption to make it more flexible and applicable to various situations. at the same time, it emphasizes the participation of family and social institutions to ensure the transparency and legitimacy of the adoption process. for incomplete adoption in special circumstances, more attention can be paid to review and procedural guarantees to achieve the principle of the best interests of children. by drawing on the experience of france, china’s adoption system can be more perfect and flexible, providing better protection and support for minors and adoptees in special circumstances. 5. analysis of the feasibility of incomplete adoption system in china at present, france and other countries have relatively perfect experience in the incomplete adoption system, which provides a useful reference for the introduction of the system in china. the following is the feasibility analysis and related suggestions for the introduction of the “incomplete adoption” system in china: first, revise the adoption principles and regulations. by amending the second paragraph of article 1044 of the civil code, china can add prohibitive provisions, such as prohibiting the sale of minors in the name of adoption, abusing the elderly, deceiving money, etc., in order to protect the legitimate rights and interests of the adopted person. this not only conforms to the principle of child protection, but also helps to improve the function of old-age care. secondly, the scope of adoptees should be appropriately relaxed. at present, the object of adoption in china is limited to minors, but considering the social reality, the scope can be moderately expanded to allow adults to also be adopted. in particular, for young people who are economically difficult but are motivated and eager to learn, help should be provided to promote the cultivation of high-quality youth in society and realize the diversification of old-age care methods. further, improve the adoption procedures and evaluation criteria. clear adoption procedures and evaluation criteria help to guarantee the legality of “incomplete adoption”. it is recommended to amend the first and fifth paragraphs of article 1105 of the civil code to clarify the conditions for adoption registration and the criteria for adoption assessment. possible improvements include the introduction of concepts such as “adoption trial period” to ensure adequate assessment and adaptation period. finally, learn from foreign experience, improve the legal provisions. france’s incomplete adoption system is more advanced in terms of inheritance rights. after the adoptee establishes a legal parent-child relationship with the adoptive parents, it does not affect the maintenance and inheritance rights with the biological parents. china can clarify the protection of inheritance rights under the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 101 published by scholink inc. incomplete adoption mode by amending the second paragraph of article 111 of the civil code to balance the rights and interests of all parties. in the history of our country, incomplete adoption has briefly emerged and played a certain role in judicial practice. however, after the founding of the people’s republic of china, china’s adoption law has not incorporated incomplete adoption into the legal framework from the “adoption law” to the current “civil code”, but has adhered to a single complete adoption model. however, with a series of social changes such as the diversification of family structure, the decline of birth rate and the aggravation of aging problem, the complete adoption model has gradually failed to meet the actual needs. therefore, the introduction of incomplete adoption model has become an inevitable historical trend. the introduction of incomplete adoption model is not to replace the complete adoption model, but to make a useful supplement on the basis of the complete adoption model. incomplete adoption should be added to the “adoption” chapter of the “civil code”, which is located after the full adoption model. in terms of content, two modes of incomplete adoption of minors and incomplete adoption of adults should be clearly defined to meet the needs of different situations. in order to ensure the effective implementation of the incomplete adoption system, the conditions of adoption, the procedure of adoption, the legal effect of adoption and the termination of adoption should be clearly stipulated. through clear legal provisions, we can protect the rights and interests of all parties in practice and reduce the occurrence of disputes. in short, the introduction of incomplete adoption model helps to adapt to the development and changes of the current society, better meet the needs of different families, and make the adoption system more comprehensive and flexible. 6. conclusion to sum up, the introduction of incomplete adoption system in china is feasible. it can effectively cope with the challenges of social change and family diversification, provide more appropriate support choices for the elderly and adults, promote the healthy development of society, and create a more harmonious social environment. the introduction of incomplete adoption system will continue to explore and improve in practice, and make positive contributions to the progress of china’s family system and the prosperity of society. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 102 published by scholink inc. references china legal publishing house. (2020). civil code of the people’s republic of china (practical edition, p. 61). beijing: china legal publishing house. jiang, x. m. (1999). a study on the legal system of international adoption (p. 13). beijing: law press. jiang, x. m., & she, g. h. (2001). retrospect and prospect of the trend of international adoption law. chinese law, 2001(01). xuan, f. m. (2019). on the french “incomplete adoption” system and its reference to china. shanghai: shanghai international studies university. yang, a. y., & pan, l. q. (2017). reflection and reconstruction of adoption legislation in china under the background of civil code compilation. journal of neijiang normal university, 32(1), 86-91. zhiyan consulting. (n.d.). analysis of the number of orphans, the number of adoption registrations and the development trend of child adoption in 2020, 2021. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 3, no. 2, 2020 www.scholink.org/ojs/index.php/elp 26 original paper assessing the determinants of food security status in bangladesh: a micro-econometric analysis tithy dev 1 , elias hossain 1 & morteza haghiri 2* 1 department of economics, university of rajshahi, rajshahi, bangladesh 2 school of science and the environment, memorial university-grenfell campus, canada * morteza haghiri, school of science and the environment, memorial university-grenfell campus, 20 university drive, corner brook, nl, canada received: september 14, 2020 accepted: september 24, 2020 online published: october 27, 2020 doi:10.22158/elp.v3n2p26 url: http://dx.doi.org/10.22158/elp.v3n2p26 abstract food security is an intricate issue which includes diverse aspects as well as many linkages. in bangladesh, food security is tried to be achieved by increasing the production of rice both by employing modern agricultural technology as well as by increasing the area under rice production. despite the impressive gains in increasing domestic food grain production, problems of food and nutrition security still remain. bangladesh is yet to achieve comprehensive food security that resolves the problems of inadequate food intake and chronic malnutrition among those who are poor and vulnerable. the main objective of this paper is to the contribution of different factors behind household food security status of 180 households in three northern districts of bangladesh. the study area was chosen because relatively little energy consumption data are available concerning this geographical area. the study used both primary and secondary data. food security status of each household was assessed on the basis of the food security line using the daily calorie intake recommended by fao. this method has proven to be efficient in measuring food security at household level. additionally, the use of a logistic regression model identified the factors that plays crucial role in determining the food security status of the households. results from the food security index revealed that more than 60 percent of households were with food insecurity. in addition, we found that total monthly household income, age of household head, education level of household head, household size, farm size, gender of household head, livestock ownership and quantity of cereal production had significant influence on food security status at the household level. keywords food security, food security index, dichotomous models www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 27 published by scholink inc. 1. introduction food security exists when all people, at all times, have access to sufficient, safe and nutritious food to maintain healthy and productive lives (fao 2002). there are three major components of food security such as food availability, food access and food utilization. the concepts of these of food security’s components are availability of food from domestic production and imports, access of the people to food all times at their available income or financial resources, and that the food ensures enough safety and nutrition to maintain good health (omonona & agoi, 2007; kuwornu et al., 2013). recently nutrition, food safety and quality have attained considerable importance in food security issue. because food intake related problems are not only hunger and malnutrition, but underweight, obesity also. however, safety food is a part of food utilization, impacted by the preparation, processing and cooking of food in the community and household (nath, 2015). a household is food secured if it has enough food, distributed by dietary needs and ages, and ensured to nutritional needs of all members of the household. bangladesh is an agriculture dependent country in south asia with a total population of around 163.7 millions (bbs 2018). the major source of livelihood of the people in bangladesh is agriculture. however, rapid population growth, increased food demand, natural disasters and urbanization are the main reasons which have created tremendous pressure on agricultural land, making it an increasingly scarce resource. as a result agricultural land per capita has been decreasing over the years in the country. food security, therefore, remained as an important concern in bangladesh and nearly 22 percent of the population, in fact, still cannot afford an adequate diet (bbs 2018). an adequate food intake, in terms of quantity and quality, is essential for healthy and productive life. although enough food is available in the world, a huge population, about 822 million people are affected by hunger in the world and 11.3 percent of it live in the asian countries, and the trend is not falling quickly enough to achieve the goal of food security (fao 2019). ensuring the availability of food requires enough production or import of food in terms of calories available per day for every person in the population. the nobel laureate economist amartya sen pointed out in his analysis of famines that it occurs not because of unavailability of food, but due to non-accessibility to the food (sen, 1981). in the last several years, the overall condition of the bangladesh economy keeps getting better and the economy begins to find some stability. for example, bangladesh is one of the fastest growing economy in the world with a rate of 7.9 percent real gdp growth and per capita income us$ 1909 (bbs 2018). more importantly, the incidence of absolute poverty decreased from 31.5 percent in 2010 to 24.3 percent in 2016 (hies 2016). however, food security still remained as an issue to the people of bangladeshi because, in spite of important economic progresses achieved, the country remains highly food-insecure. in fact, bangladesh is ranked 88th out of 117 countries in the 2018 global hunger index (ghi 2019). the core food items in bangladesh are rice, pulse, edible oil, wheat (coarse flour and flour), powered milk, salt, sugar, potato, chick pea/gram, fish and fish products, livestock and livestock products, onion, garlic, ginger, etc. (muzaffar & haszn, 2009). in bangladesh, food security is tried to be achieved by www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 28 published by scholink inc. increasing the production of rice both by employing modern agricultural technology as well as by increasing the area under rice production. despite the impressive gains in increasing domestic food grain production, problems of food and nutrition security still remain. bangladesh is yet to achieve comprehensive food security that resolves the problems of inadequate food intake and chronic malnutrition among those who are poor and vulnerable. addressing these problems satisfactorily would not only require rethinking of strategies and policies to promote food security in the country but also require decisive actions by all stakeholders-the government, the ngos, the private sector and individual households. in fact, ensuring food security through physical availability and economic access to food would continue to be a major challenge for bangladesh in the coming years. food security has been emphasized on the policy agenda of the government of bangladesh and the government has been making efforts to augment domestic production of food grain through technological innovations and investments in irrigation, infrastructure development and subsidies. food security is an intricate issue which includes diverse aspects as well as many linkages. thus, the objective of this study is to assess the contribution of different factors behind food security status of northern bangladesh. the rest of the paper is organized as follows. section 2 briefly reviews the most recent published articles that discuss the concept of food security in bangladesh and in other countries in the world. section 3 provides the methodology used in the empirical analysis of the study including data collection, research method, and micro-econometric model. section 4 presents the results with required discussions and section 5 concludes the study. 2. recent studies of food security first, we present a brief review of those studies that examined factors that affected food security in bangladesh. second, we discuss the issue in other developing countries, such as ethiopia, nigeria, ghana, mozambique, and pakistan. 2.1 evidence from bangladesh food security in bangladesh is one of the important issues that have been analyzed comprehensively by different studies. for example, chen and lu (2018) studied key influencing factors of the food security situation in the country using the food security index (fsi) and measured the food security level during 1990-2013. they found that although the grain production increased significantly, the food demand was in shortage by around 10 percent in most years prior to 2008. because, the grain production increase was mainly driven by the improvement of crop yield, while the grain consumption increase stemmed from increasing in the rate of population growth. chen and lu (2018) suggested that it was essential to improve the irrigation and drainage systems, and crop management to increase the land use efficiency and crop yield to meet the ongoing increase in the demand for food. in addition, the adaptation of appropriate policy for family planning could be very important to slow down the rapid change in the rate of population growth and, in turn, the demand for food. ara and ostendorf (2017) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 29 published by scholink inc. analyzed that the regional variation of food security in terms of food availability, food access, and food utilization under natural and socio-economic circumstances people became vulnerable to low food security in bangladesh. they suggested that development of food polices would contribute to improved food security by considering regional food security conditions, region-specific deficits, climate change, other future risks, and devised actions related to the respective components. in another study, hossain et al. (2013) investigated the link between internal migration and food security in bangladesh. the results of their study showed that the number of migrants at household level had significantly positive impact on the per capita calorie intake which was found to be increased by 2.2 percent for one unit increase in number of migrants. the researchers concluded that food security outcome was highly appreciable both at the origin and destination of migration. anik et al. (2013) analyzed the impact of farm level corruption on households’ food security using survey data collected from 210 bangladeshi rice farmers. the researchers specified a regression model by using a multi-stage sampling technique and found that an average daily calorie intake for the sample households was 2,693 kilocalorie per person, whereas the national daily average for 2005 was 2,238 kilocalorie per person. the results showed that the cost of corruption adversely affected households’ calorie consumption as the marginal effect of corruption was higher for the low expenditure households relative to the high expenditure households. furthermore, variables such as the women education level and land ownership positively contributed to solving the problem of food security in the country. rahman and islam (2012) explored the nutritional status and food security of farm households under different land use patterns. the study revealed that households of alternate shrimp and rice farming consumed the highest amounts of food followed by year round shrimp farming whereas the highest per capita calorie intake was observed in households of alternate rice and wheat production. large households consumed the highest amount of food and protein followed by medium, small and marginal households, respectively. ahmed and garnett (2011) examined the challenges of food security and found that rice monoculture could not provide a sustainable food supply without harming the environment in the long run. the authors suggested that higher yields might be achieved by increasing inputs in the integrated farming system. using a cobb-douglas production function, the researchers suggested that higher yields might be achieved by increasing inputs in the integrated farming system. ahmed and garnett (2011) concluded that rice and fish production should be increased to meet the demand for food in the country. kashem and faroque (2011) focused on the availability of food as an essential element of food security and the role of government to get food sufficiency. the researchers found that bangladesh attained self-sufficiency in food production which marginally met the country’s per capita on a daily basis in 2010-2011. kashem and faroque (2011) concluded that the government was trying to integrate all the elements associated with food security to achieve the target of the millennium development goals (mdg) set for bangladesh by the united nations millennium summit in 2000. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 30 published by scholink inc. kazal et al. (2010) analyzed the determinants of food insecurity and formulated the strategies to overcome the food insecurity problem in the haor basin using both multiple binary and logistic regression models. the result showed that the decrease in landholdings increase the risk of food insecurity significantly irrespective of scale and the household level of education. furthermore, the researchers concluded that an increase in the level of household income reduced the risk of food insecurity significantly for all the scales. faridi and wadood (2010) investigated factors that affected households’ food security using a logistic regression model. the result of the study indicated that (i) food security indicator was highly sensitive to changes in the price of rice, and (ii) wage earners (permanent and temporary employees) were worse off in terms of food security status compared to self-employed in all economic sectors. islam et al. (2009) analyzed that farmers changed their land use crop patterns and introduced new products along with rice in different areas of bangladesh which increased households’ income and helped them chose appropriate food items that increased nutritional status of households. khanam et al. (2009) observed that mushroom cultivation was a potential source of food security for small households in the country. the result of their study showed that mushroom cultivation was profitable and increased farmers’ annual income. chowdhury (2009) investigated physical and economic access to food by exploring the link between landlessness and access to food in rural bangladesh and found that landlessness of the farmers led to their insufficient purchasing power to buy adequate nutritious food for their families. 2.2 evidence outside bangladesh there are some studies which examined the determinants of household food security using different quantitative techniques. for instance, osabohien et al. (2018) explained that the efficiency of credit facility positively contributes to agricultural sector of the agro-based economy in nigeria by the autoregressive distribution lag (ardl) econometric approach on the time series data. the results of the study showed that commercial banks’ credits and agricultural credit guaranteed scheme fund (acfsf) increased food security by 8.12 and 0.002 percent, respectively, while the rate of population reduced food security by 0.001 percent. they recommended that population growth rate should be controlled through family planning and adequate financing of the acfsf by the government and monitor commercial banks lending interest rates on credit facilities. fawole and ozkan (2016) investigated the food security status at the household level in nigeria using daily per capita calorie consumption method. the researchers found that 54 percent of the households surveyed were food insecure implying that their daily per capita calorie intake fell below the recommended daily per capita calorie requirement and food insecurity gap of 0.0038. the main limitation to this study was the inability to collect data on the income distribution, budget share on foods and socio-economic characteristics of the households which could affect households’ food security status. endalew et al. (2015) examined the factors that affected food insecurity in ethiopia. the authors found that poverty was not the only reason that caused food insecurity, but also population pressure, drought, shortage of farmland, poor soil fertility, and poor farming technologies had significant impacts on the food security www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 31 published by scholink inc. situation in the country (see also mohamed 2017). iorlamen et al. (2014) found that household size and income, and the prices of food commodities were major factors influencing urban household food demand decisions in nigeria. kuwornu et al. (2013) examined the food security status of farming households in the forest belt of the central region of ghana. the study applied a multistage random sampling method to obtain a sample of 134 farm households. the result of the research showed that 60 percent of farmers were food insecure. in addition, the researchers concluded that an increase in household’s income, having access to credit as well as an increase in the quantity of own farm production might have the probability of improving the food security status of farming households. ahungwa et al. (2013) analyzed the food security status of farming households in benue state of nigeria. the researchers assessed the socio-economic characteristics of the households using descriptive statistics and measured the household food security status using the “food security index” set by the fao benchmark of 2,500 kilocalorie per capita per day. the result of the research showed that households were profiled into food secure (36.7 percent) and food insecure (63.3 percent). ahungwa et al. (2013) recommended that the government and all stakeholders should take advantage of existing structure such as the fadama development project to improve their food security status. in another study, iorlamen et al. (2013) examined factors (i.e., socio-economic variables) that affected the food security status of urban households in nigeria. the result of the research showed that 67.3 percent of urban households were food secure in benue state of nigeria. in particular, the researchers concluded that factors such as mean age, education, household income, food expenditure, and quantity of food consumed by households were amongst other factors that had a positive impact on the food security of urban households. these results have already expressed by other researchers (e.g., omonona & agoi, 2007). mcdermott et al. (2013) assessed the contribution of agriculture to households’ nutritional security in the context of developed economy. the researchers found that agriculture improved households’ nutritional and suggested producing diversified crops, highly nutritious crops, bio-fortified foods etc. to improve nutrition of people. adeniyi and ojo (2013) investigated the food security status of rural farming households in selected local government areas (lga’s) of osun state in the south-west geopolitical zone of nigeria. they estimated the extent and magnitude of food insecurity in the aforementioned region and determined factors that affected households’ food security. the result of the research showed that majority of the rural farming households were food insecure as most of them subsisted below the food security line which was 2,280 kilocalorie. moreover, food secure households had a small family size, earned a high monthly income and used modern farm inputs. sultana and kiani (2011) examined the determinants of urban households’ food security in pakistan using a logistic regression model. the study used five main variables in addition to some other demographic indicators that might affect food security which were place of residence, dependency ratio, social capital, employment status and household’s level of education. sultana and kiani (2011) concluded that three factors were statistically significant with expected signs which were place of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 32 published by scholink inc. residence (urban), dependency ratio and households’ level of education. babatunde et al. (2010) investigated the nature of the relationship between income and calorie intake among farming households in rural area of nigeria using both parametric and nonparametric techniques. the result of the research showed that the average daily per capita calorie intake in the region was 2,428 kilocalories, which was below the recommended intake level. moreover, the findings of the study showed a positive relationship between calorie intake with income and farm size. babatunde et al. (2010) suggested that a combination of policy strategies, including income growth, agricultural development and targeted food programs might be reduced the problems of inadequate calorie consumption among poor households. finally, khan and gill (2009) examined the determinants of three aspects of food security, i.e., food availability, accessibility, and absorption in rural areas of pakistan using district level data. the study found that the production of wheat, rice, maize, pulses, oilseeds, poultry meat and fish at the district level had a positive effect on the availability of food. the researchers concluded that all the district except of sindh were more probable to be food insecure in availability. in addition, electrification and adult literacy emerged as the factors having negative impact in the food accessibility. besides, child immunization, safe drinking water, and number of hospitals had positive effects on food absorption. in summary, most of the above articles focused on different issues of food security with diversified findings worldwide. some studies found that total annual income, household size and level of educational, and quantity of food obtained from own production were the significant factors of food security in different countries. most of the studies carried out in bangladesh have analyzed the food security situation at the national level and not at the household level using production, import, and aid based data of food grains. in addition, the literature showed a few studies in the context of food security in the country for which strong quantitative tools were used in their empirical analysis. moreover, precedent studies did not cover all part of the country, such as north western bangladesh as it contains distinct geophysical and socioeconomic characteristics. our study contributes substantially to the literature on the following grounds. first, we used quantitative tools in the empirical section of the paper. second, the geographical area of our study is north western bangladesh. finally, our study is at the household level since the data collected at the national level were unable to identify differences in food security amongst the households as it is the case and data specific. 3. methodology 3.1 study area the study is undertaken in the north western part of bangladesh which is covered 43 percent area of rajshahi division known as rajshahi, natore and naogaon districts. geographically, this part of the country has been identified as the most important area for food production because of the availability of cultivable land. nearly 40 percent of total population of rajshahi division lives in this area (see figure 1). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 33 published by scholink inc. figure 1. study area map source: adopted from https://en.wikipedia.org 3.2 data sources we used a multistage sampling technique to select the households and interviewed them. the first stage involved the selection of districts from which the participants in the survey were selected for interview. this was done using purposive sampling techniques where the districts were grouped into northern part of bangladesh. the second stage involved selection of sub-districts, unions and villages using the simple random sampling method. this was achieved with the help of district’s recorded information. the second stage involved a random selection of two sub-districts from each of the three selected districts and two unions from each of the six selected sub-districts, and one village was selected for the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 34 published by scholink inc. selected unions. the final stage was the selection of the households that were interviewed. we selected households using simple random sampling and collected primary data regarding their socio-economic characteristics, food production, food consumption, and other factors. the population for the study comprised both farm-and-non-farm households of northern part of the three districts of bangladesh. in the last stage, 180 households were selected from the earlier 12 villages sampled for the study, i.e., 15 household per village. 3.3 research methods this research mainly relies upon primary data collected from sample households of the northern part of bangladesh. with a view to fulfilling the research objectives with regards to determining the food security status, identifying the factors having influence on food security and drawing a comparison among the different households belonging to different living standards and different socioeconomic characteristics, the sample was selected in such a way that it covered all the aforementioned criteria. to identify the factors influencing food security status of the households, we carried out a two-stage analysis method which was as follows. first, we constructed a food security index (fsi), and second we specified a logistic regression model to estimate the food security status of households as a function of a set of independent variables. 3.3.1 food security and head count indexes this study analyzed the food security of rural households by employing a quantitative approach. to do this some statistical techniques, such as adult equivalent unit, food security index (fsi), and head count index were applied. a couple of methods have intensively been used in the literature which wee the expenditure and calorie intake methods (maxwell, 1996). in this study we chose the calorie intake method, through constructing a fsi, as this method reflects the actual food consumption pattern of households (e.g., adeniyi & ojo, 2013; ahungwa et al., 2013; babatunde et al., 2010; iorlamen et al., 2013, 2014; and kuwornu et al., 2013). food security status of each household is a measure based on the food security line using the daily calorie intake recommended by fao (2005). the average daily calorie requirement for a moderately active adult is 2,850 kilocalorie and a safe minimum daily intake should not fall below 80 percent of the above calorie requirement (i.e., 2,280 kilocalorie). this food security line is used in this study after converting all household members into adult equivalent units (e.g., may 1996, swindale & ohri-vichaspati, 2005). for construction of the index, first, we took the quantity of food consumed by the households in 7 days period and then estimated the obtained calorie intake. we converted the quantities to gram and estimated the calorie content by using the nutrient composition table of commonly eaten foods in bangladesh (gob 2005; bids 1997). a household whose daily per capita calorie intake was at least 2,280 kcal was regarded as food secure household, while any number beyond that was regarded as food insecure household. we also calculated the head count index on the basis of the food security status of households (fao, 2005; fakiyesi, 2001; olayemi, 1998). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 35 published by scholink inc. 3.3.2 a micro-econometric model in addition to measuring the food security status of participants in the survey, we used a logistic regression model to identify the factors that determined their food security condition. to do this, precedent studies have used various models, such as the cobb-douglas production function model (e.g., ahmed & garnett, 2011), multiple regression model (e.g., babatunde et al., 2010), probit regression model (e.g., yusuf et al., 2011), and logistic regression model (e.g., adeniyi & ojo, 2013; babatunde et al., 2007; iorlamen et al., 2013, 2014; kuwornu et al., 2013). we chose the logistic model in our study because of the nature of the dependent variable, which is dichotomous and for the fact that it can estimate the probability that an event occurs or not by predicting a binary dependent outcome from a set of independent variables (greene, 2018). the model also accommodates both discrete and continuous variables, which can be ranked in a hierarchy to show which of the independent variables significantly affects the response variable and the relationship between the independent variables. the food security status of household is the dependent variable of the model that takes the value of 1 if the household is food secured and zero otherwise. the explanatory variables are total monthly household income (tmhi), age of household head (ahh), education level of household head (eshh), household size (hs), farm size of the household (fs), gender of household head (ghh), livestock ownership (ol), and quantity of cereal production (qcp). a logit model is defined as follows. let the probability that a household is food secure can be written as pi = e(y=1/ xi) = β1 + β2 xi (1) where, xi is the independent variable and y=1 means that the household is food secure. by taking logarithm of both sides of equation [1] we wind up xppl ii ii  21 ]1/ln[   (2) which means the log of the odds ratio is not only linear in xi but also linear in the parameters. the parameters of the logit function (li) are estimated using the maximum likelihood (ml) approach. in this study the empirical relationship between the dependent and independent variables is specified in equation [3]:   i i qcpolghh fshseshhahhtmhippl ii    987 654321 ]1/ln[ (3) where, li=log odds ratio in favor of a household being secure in food, tmhi=total monthly household income, ahh=age of household head, eshh=education level of household head, hs=household size, fs=farm size of the household, ghh=gender of household head, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 36 published by scholink inc. ol=livestock ownership, qcp=quantity of cereal production. since the collected sample data in the model was cross sectional the multicollinearity problem might arise. thus, we calculated partial correlation coefficients among the independent variables used in the model and found that the values of correlation coefficients were less than 0.5 implying that multicollinearity among variables did not appear to be a serious problem in the model. table 1 lists the definition of variables, their measurements and expected hypotheses. table 1. description of the variables used in the model variables value expected sign citations food security status 1=food secure, 0=food insecure omonona et al., 2007; yusuf et al., 2011; adeniyi and ojo, 2013; ahungwa et al., 2013; kuwornu et al., 2013; iorlamen et al., 2013, 2014 total monthly household income bdt + omonona et al., 2007; babatunde et al., 2010; adeniyi and ojo, 2013; kuwornu et al., 2013; iorlamen et al., 2013, 2014 education level of household head years + babatunde et al., 2010; yusuf et al., 2011; adeniyi and ojo, 2013; kuwornu et al., 2013; ahungwa et al., 2013; iorlamen et al., 2013, 2014 age of household head years +/ omonona et al., 2007; babatunde et al., 2007, 2010; yusuf et al., 2011; adeniyi and ojo, 2013; ahungwa et al., 2013; kuwornu et al., 2013 household size number (adult equivalent) +/ babatunde et al., 2010 yusuf et al., 2011; adeniyi and ojo, 2013; iorlamen et al., 2013, 2014 farm size acre + ramakrishna and demeke, 2002; babatunde et al., 2007, 2010; kuwornu et al., 2013; ahungwa et al., 2013 gender of household head 1=male, 0=female + yusuf et al., 2011; kuwornu et al., 2013; ahungwa et al., 2013; iorlamen et al., 2014 livestock ownership 1=own, 0=otherwise + ramakrishna and demeke (2002) quantity of cereal production quintal + babatunde et al., 2007, 2010; kuwornu et al., 2013; ahungwa et al., 2013 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 37 published by scholink inc. 4. results in this section, we presented the results of the empirical analysis on the issue of food security at the household level. 4.1 food security situation: aggregate level ensuring food security for all is one of the major challenges in bangladesh today. despite the impressive achievements in food grains production during the last few decades, food security at the households and individual levels remains a major concern for the government. different aspects and conditions of the food security at household level are described in this section. 4.1.1 food expenditure pattern in the sampled districts in general food access depends upon the price food, household income and its distribution within households, and household size. in addition, the sources of income and their reliability for a steady flow and reliable amounts are important to both individuals and households for ensuring food. table 2 shows the actual food expenditure scenarios in bangladesh and selected districts in 2016. it is observed that the required food expenditure of household per month at the national level was 5,346.29 (tk) with a food expenditure gap of 524.47 (tk). moreover, the average required and actual food expenditure of households in natore was higher than that of in the other two regions (table 2). when access gap is compared amongst the three regions the same pattern was observed (table 2). table 2. food expenditure scenario (tk) food consumption indicators national rajshahi natore naogaon household size 4.06 4.1 4.6 3.9 required food expenditure 5870.76 5928.6 6651.6 5639.4 actual food expenditure 5346.29 5395.6 6053.6 5132.4 gap/surplus of food expenditure -524.47 -533 -598 -507 source: hies, 2016. 4.1.2 per capita food intake per day in order to achieve food security, the food ingested must be safe and enough to meet the physiological requirements of each individual. the daily per capita food intake is essential to ensure nutritional requirement of body. figure 2 shows the distribution of food consumption on the basis of minimum requirement. it has been documented that an adult person in bangladesh requires a minimum of 906 grams of food per day, which is converted to a 2,122 kilocalorie energy (government of bangladesh 2005). the suggested food combination is 47 percent of rice, 5 percent of wheat, 4 percent of pulse, 6 percent of milk, 2 percent of oil, 1 percent of meat, 5 percent of fish, 3 percent of potato, 17 percent of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 38 published by scholink inc. vegetables, 2 percent of sugar, and another 2 percent of fruits. cereals, largely rice, are the main food in bangladesh. nearly two-thirds of the daily diet of bangladeshi people consists of rice, some vegetables, a little amount of pulses and small quantities of fish. milk, dairy products and meat are consumed occasionally and in a very small amount (islam & buysse, 2012; kabir et al., 2018). the consumption of protein and micronutrient-rich foods like fish, meat, eggs, milk, dairy products, fats and oil is often low at the rural poor areas in bangladesh (lalita et al., 2007). figure 2. minimum required food intake source: government of bangladesh 2005. figure 3 depicts the percentages of food consumption according to food items by the households per capita on a daily basis in the study area. it is revealed that the staple food and vegetables, respectively, included 50 percent and 20 percent of total consumption of food. moreover, households received most of the calories from the consumption of rice and vegetables. the next important food item is wheat followed by potato, fish, pulse, milk and milk product, egg, sugar, oil, fruits and meat. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 39 published by scholink inc. figure 3. actual food consumption source: sample data. 4.2 results from indices: micro-level to assess whether a household in the sample observation was food secured or not, we calculated the food security index suggested by fakiyesi (2001). we also compared the food security status of household in different districts which is explained as follows. 4.2.1 head count index we classified respondents in the survey into food secure and insecure on the basis of recommended daily calorie intake of 2,280 kilocalorie suggested by fao (2005). figure 4 shows the headcount index calculated for the participants in the survey. it is observed that the ratio of all sample food unsecured households was 0.61 indicating 61 percent (110 households) of the total participants in the survey were food insecure. however, this scenario was different for the three districts in the study. the headcount index of food secure for the naogaon region (0.47) was higher than the other two regions. table 4 shows that the most food insecure district was natore followed by rajshahi. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 40 published by scholink inc. figure 4. headcount index for the study area source: sample data. 4.2.2 food security status at the household level we calculated a food consumption index (fsi) that enabled us to understand whether an individual was secured in the availability of food. table 3 presents the mean value of fsi for a participant in our survey measured in kilocalorie (kcal). table 3 shows that in case of all households in the survey the mean value of fsi was higher in naogaon district than that of the other two districts. furthermore, respondents in the rajshahi district were more food secure when compared to the other regions in the survey. table 3. fsi value of sample households region all households food secured households food insecured households naogaon 0.999 1.03 0.91 natore 0.942 1.01 0.91 rajshahi 0.996 1.11 0.92 all regions 0.979 1.08 0.91 source: sample data. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 41 published by scholink inc. 4.3 estimation results table 4 presents the empirical results of the logit model obtained from collecting data from 180 participants in the survey. we conducted our analysis in three phases to explore the influence of the key factors on food security status. first, we combined all the collected data and estimated the parameters of the regression. second, we separated the sample observations into three districts where the data were collected and estimated the parameters of the regression separately. finally, we compared the estimation results of the three regions to find any significant variations amongst the districts. comparisons of regression results table 4 shows the comparative analysis of food security determinants in all three districts. it is observed that four out of eight variables included in the regression model were statistically significant at the 0.01 level. these variables were total monthly income, quantity of cereal production, educational status of household, and farm size in all study areas. table 4 indicates that mcfadden r-squared was 0.709 which means that 71% of variation in the food security was explained by the independent variables of the model. the obtained log likelihood ratio was -70.66 and the likelihood ratio (lr) statistic for the goodness of fit for the model was 99.24 which were statistically significant with 99 percent confidence. table 4. comparison of regression results variable total study area naogaon district natore district rajshahi district coefficient c -3.5159 -0.6615 0.3052 -10.2593 tmhi 0.0006*** 0.0005 0.0016*** 0.0015*** ahh -0.0164 -0.0583* 0.0656 -0.0161 eshh 0.1124* 0.0262 0.3535*** 0.0741 hs 0.2161 -0.6979* -0.8195 0.6008 fs 0.2891** 0.2973* 8.3880* 11.9347* ghh -0.5921 -0.8667 2.0232** 0.3104 ol -0.4657 -0.0694 -0.9857 -1.5949 qcp 0.1342*** 0.0998** -0.2121 0.5279* note. *** significant at 1% level; ** significant at 5% level; * significant at 10% level. source: sample data. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 42 published by scholink inc. in the following we briefly provide the explanation for each of the statistically significant coefficients. 4.3.1 total monthly income an increase in the household income helped it afford more food for the family which made the family secured in food. it was found that the coefficient of the variable “monthly income” (0.0006) was positive and statistically significant at the 0.01 level. the coefficient of the variable monthly income was positive and statistically significant with 99 percent in the natore and rajshahi districts implying that the households with higher income level had the higher probability of being secured in the consumption of food but this coefficient was not statistically significant in the region of naogaon. this result indicated that the higher the income of a household was the higher the probability that the household would be secured in the consumption of food. this result was consistent with adeniyi and ojo (2013), ahungwa et al. (2013), babatunde et al. (2010), iorlamen et al. (2013; 2014), and kuwornu et al. (2013). 4.3.2 age of household head the coefficient of the variable “age” had a negative sign and statistically significant at the 0.1 level only in the naogaon district reflecting that household head with higher age was less likely to be food secure compared to the other regions. this might stem from the fact that the respondents with less than 50 years of old were more energetic and agile to do farm work, seek off-farm income earning activities to improve the welfare and food security of their households (ahungwa et al., 2013). other precedent studies reported similar conclusions (e.g., adeniyi & ojo, 2013; babatunde et al., 2010; iorlamen et al., 2013, 2014). 4.3.3 education level of household head an educated household is more informative about the consumption of food. the result of the study showed that the coefficient of education was positive and statistically significant with 99 ercent confident only in the natore district implying that respondents in the natore district were more conscious about food consumption than the other two districts. this result suggested those households with relatively higher level of education strived better than those with lower level of education (see, e.g., adeniyi & ojo, 2013; ramakrishna & demeke, 2002). 4.3.4 household size the coefficient of the household size variable was negative (-0.69) and statistically significant at the 0.1 level only in the naogaon district. this indicated that as the household size increased, the probability of food security decreased in this district than that of those respondents who lived at the rajshahi and natore districts. in other words, large size households were more likely to be food insecure than small size households. the result of our study was in line with the findings of adeniyi and ojo (2013) and yusuf et al. (2011). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 43 published by scholink inc. 4.3.5 farm size the result of the study showed that a household with more cultivable land could produce more crops which ensure food for the family. the coefficient of farm size (0.289) was positive and statistically significant with 95 percent confidence. 4.3.6 gender of household head the result of the research showed that the gender of household head had a positive impact on the household food security. the coefficient of gender of household head was statistically significant at the 0.1 level only in the natore district. this result showed that a household with male headed was more likely to be secured in food compared to the one with female headed. precedent studies concluded the same result as the finding of this study (e.g., babatunde et al., 2010). however, this conclusion should be interpreted cautiously because the coefficients of the gender of household head were not statistically significant at the aggregate level and other districts. 4.3.7 livestock ownership the coefficient of the livestock ownership was not statistically significant for the food security status. this finding was not in line with theoretical expectation outlined in table 1. one reason that could justify this result is that most of the households participated in the survey did not own sufficient livestock population. 4.3.8 quantity of own cereal production the result of the regression model showed that the coefficient of the quantity of own cereal production (0.134) was positive and statistically significant with 99 percent confidence in the region. this implies that those households who produced more cereal crops were more likely to have security in food through increasing either their purchasing power food self-consumption. the finding of our study was also consistent with the results of ahungwa et al. (2013), babatunde et al. (2010) and kuwornu et al. (2013). 5. conclusions and policy implications the main objective of this study was to assess the contribution of different factors behind food security status of northern bangladesh. to achieve our research objectives we constructed a food security index and used a binary logit model. finding from the food security index revealed that households in the study areas were nearly food-secure as the mean of the fsi value was slightly below one. moreover, using the index along with the food security line based on calorie intakes we found that 39 percent of the respondents were food-secure. the estimation results of the econometric model showed that some factors such as monthly household income, level of education of household head, farm size, and quantity of own cereal production had positive effect on the food security of the households. any changes in these factors would change the status of food security. however, the findings of the research varied across the districts (i.e., natore, rajshahi and naogaon). it was found that four statistically significant variables which were age of household head, household size, quantity of owned cereal production and farm size www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 44 published by scholink inc. for naogaon whereas total monthly income, educational status of household, gender of household head and farm size were statistically significant for natore. in the rajshahi district, only three variables namely total monthly income, quantity of owned cereal production and farm size were statistically significant. moreover, food security situation at national/aggregate level and household level in the study area are completely different and influencing factors the food security situation in this area are also different. because, at the national level, food security situation has improved in context of availability side, although bangladesh remains a food insecure country in terms of access to food and utilization of food. considering income and food expenditure of household it is found that the households lacked to achieve the ability of food expenditure which is necessary to meet food requirement for the members of their households. based on the major findings of this study some policy recommendations might be devised. we recommended the government should expand alternative income generating activities for the people who lived in the rural regions. we also suggested that the household heads and other members who engaged in farming activities should be educated or trained through programmes like training and farmers’ field schools which would have potential to enhance their capabilities, which, in turn, would improve households’ productivities. educated households will be more conscious about their dietary composition for better health. furthermore, we recommended that farmers should have easy access to reliable and quality inputs such as seeds, fertilizers and credit support to increase production. these suggestions will help the marginal farmers enhance their farm production practicing. finally, farming households should take advantage of the food security by increasing their farmland holding through government owned land distribution. however, globalization is connect with achieving food security because globalization refers to the way in which developments in one country or area or region can rapidly come to have significant consequences for the security and well-being of communities in quite distant countries or areas or regions of the world. as a result, it has a positive influence on the globally household food security status, especially in the developing countries like bangladesh where food related crises are frequently occurring. reference adeniyi, o. r., & ojo, o. a. 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(2015). food security of bangladesh-status, challenges and strategic policy options. 19 th biennial conference of the bangladesh economy association held on 8-10 january, 2015, dhaka, bangladesh. olayemi, j. k. (1998). the nigerian food equation towards a dynamic equilibrium. university of ibadan inaugural, lecture no. 167. omonona, b. t., & agoi, g. a. (2007). analysis of food security situation among nigerian urban households: evidence from lagos state, nigeria. journal of central european agriculture, 8(3), 397-406. osabohien, r., afolabi, a., & godwin, a. (2018). an econometric analysis of food security and agricultural credit facilities in nigeria. the open agriculture journal, 12, 227-239. https://doi.org/10.2174/1874331501812010227 rahman, k. m. m., & islam, m. s. (2012). nutritional status and food security of farm households under different land use patterns in bangladesh. bangladesh journal of nutrition, 24(25), 49-64. https://doi.org/10.3329/bjnut.v24i0.14036 https://doi.org/10.18551/rjoas.2013-01.04 https://doi.org/10.1016/0306-9192(95)00074-7 https://doi.org/10.1007/s12571-013-0292-6 https://doi.org/10.2174/1874331501812010227 https://doi.org/10.3329/bjnut.v24i0.14036 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 48 published by scholink inc. ramakrishna, g., & demeke, a. (2002). an empirical analysis of food insecurity in ethiopia: the case of north wello. journal of africa development, 27(1&2), 127-143. https://doi.org/10.4314/ad.v27i1.22154 sen, a. (1981). poverty and famines: an essay on entitlement and deprivation. oxford, clarendon press. sultana, a., & kiani, a. (2011). determinants of food security at household level in pakistan. african journal of business management, 5(34), 12972-12979. https://doi.org/10.5897/ajbm11.1441 swindale, a., & ohri-vichaspati, p. (2005). measuring household food consumption: a technical guide. washington dc, food and nutrition technical assistance project. retrieved from http://www.fantaproject.org/downloads/pdfs/foodcons.pdf yusuf, s. a., ayantoye, k., omonona, b. t., & amao, j. o. (2011). food insecurity and its correlates among rural households in south-western nigeria. international journal of agricultural economics and rural development, 4(1), 43-55. https://doi.org/10.4314/ad.v27i1.22154 https://doi.org/10.5897/ajbm11.1441 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 152 original paper protection of atypical workers in the platform economy zhifeng teng 1 1 law school, shanghai university of finance and economics, shanghai, china received: april 22, 2025 accepted: may 7, 2025 online published: may 8, 2025 doi:10.22158/elp.v8n1p152 url: http://dx.doi.org/10.22158/elp.v8n1p152 abstract the platform economy has given rise to atypical labor relationships marked by formal autonomy and substantive economic dependence, challenging traditional “employee/self-employed” dichotomies in labor law. this paper analyzes how platform workers face classification dilemmas, with weakened personal, economic, and organizational subordination leading to inadequate social security, algorithmic opacity, and loss of collective rights. drawing on international experiences like germany’s “quasi-employee” framework and california’s abc test, it proposes a threefold institutional reconstruction: constructing a dynamic status determination system based on economic subordination and factual control, enhancing algorithmic regulation and data protection to address covert digital control, and establishing a tiered social security mechanism tailored to workers’ dependency levels. these measures aim to balance worker autonomy with protective safeguards, adapting labor law to the hybrid nature of platform work. keywords platform economy, platform workers, labor rights protection, algorithmic regulation 1. introduction the platform economy, an emerging economic model, differs fundamentally from traditional economies in market structure, operational frameworks, and user convenience. it enables more efficient and rational distribution of resources to balance societal supply and demand. driven by advancing digital technologies, digital platforms have now permeated all sectors, playing a pivotal role in every link of social production. as they reshape economic ecosystems, platform-based industries such as ride-hailing, food delivery, and e-commerce are transforming global labor markets. in 2022, china’s sharing economy recorded transaction volumes of 3.832 trillion rmb, a year-on-year increase of 3.9%, reflecting an overall upward trajectory. the lifestyle services sector led with 1.8548 trillion rmb in transactions, where online food delivery accounted for 25.4% of the national catering industry’s revenue, and ride-hailing trips made up 40.5% of total taxi passenger volume—signaling www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 153 published by scholink inc. deep integration into daily consumer life (national information center of china, 2023). u.s. census bureau data shows that the quantity of non-employer firms in the united states rose by 60 percent from 1999 to 2014 (rozzi, f., 2018, p. 33). this economic model based on digital platforms accurately matches fragmented service demand with distributed labor supply through technological empowerment. however, as traditional labor law is based on the ―employment and self-employment‖ dichotomy of the industrial era, its pre-existing theories and institutions are not well-suited to the present situation. ―in independent workers’ union of great britain v. roofoods ltd [2017] tur1/985, the uk central arbitration committee ruled that deliveroo riders lacked ―personal obligation‖ to perform services, thus denying employee status (independent workers’ union of great britain v. roofoods ltd t/a deliveroo [2017] tur1/985, 2016). the court ruled that the rider qualified as an independent contractor and thus was not entitled to termination compensation under the fair work act. a platform worker’s contract gives him ―virtually unlimited right of substitution‖ (i.e., the platform worker can delegate work to others), which is contrary to the ―personal obligation‖ requirement in traditional employment relationships. platform workers are highly flexible in their working hours, with the ability to choose their own time slots, and the platform does not have direct control over how they work (e.g., route planning, dress code, etc.) confronting the crisis of institutional adaptation in the transformation of labor relations triggered by the platform economy, how to construct an innovative and inclusive system for platform worker’s rights and interests protection has become an urgent matter. 2. characterization of atypical labor relationships in the platform economy the platform economy has structurally reshaped labor relations. differing from the traditional employment model, its core features are as follows: first, technology-driven diversification of labor forms, forming composite modes such as crowdsourcing (e.g., taskrabbit task subcontracting), subcontracting (e.g., regional contracting on logistics platforms), and self-employed cooperation (e.g., uber drivers independently accepting orders), and so on. second, the functionality of subordinate elements is weakened, personality subordination is dissolved due to the independent choice of working time and place, economic subordination evolves into the dynamic balance between platform commission and workers’ multi-source income; organizational subordination is replaced by algorithmic rules and digital monitoring, and the traditional theory of ―three subordinates‖ can hardly completely cover the new type of employment relationship. third, through the implicit control of data and algorithms, platforms establish algorithmic systems using user ratings and order-allocation algorithms. these systems disguise the profound interference of algorithmic rules in the labor process beneath the surface-level autonomy granted to workers. as a result, it becomes challenging to identify the organizational subordination inherent in the labor relationship. in reality, however, this setup gives rise to a new form of domination known as ―de-organizational control‖ (rani, u., furrer, m., gerecke, m., www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 154 published by scholink inc. & berg, j., 2021). 2.1 diverse and complex labor patterns the cooperation model can be broadly ambient crowd-sourced labor relations, subcontracted labor relations, and self-employed labor relations. crowdsourcing is a new type of labor model that relies on internet technology. the online platform disassembles various tasks such as transportation, food and beverage delivery, and domestic service into fragmented units such as ―gig work: and ―tasks‖, and outsources them to a large-scale and dispersed group of workers (cherry, m. a., 2019, p. 32). the platform serves as an intermediary hub, connecting the demand side at one end and the workers at the other end, assigning work and coordinating the task completion process as needed. the core of this model lies in the in-depth application of information technology: through algorithmic systems, it realizes the intelligent distribution of tasks, the precise matching of workers and needs, and the standardized acceptance and delivery of labor results. it covers a wide range of fields, from basic manual labor (e.g., distribution of goods) to professional services (e.g., design and programming, data processing), all of which can be accomplished through task splitting and distributed collaboration, combining flexibility and resource integration efficiency. in romania, some platforms use ―partner companies‖ to contract with workers, creating a ―platform-third party company-worker‖ subcontracting structure, which is subcontracting model. workers are classified as independent contractors, responsible for their own equipment and social security contributions. platforms leverage this model to sidestep labor law obligations like minimum wage and paid leave. yet they often retain operational control through algorithms, leaving workers with insufficient protections and unstable incomes (rosioru, f., 2020, pp. 423-442). self-employed work arrangements involve individuals who operate as independent contractors, freelancers, or similar professionals. it is not same as traditional employment. workers are paid by providing their customers directly with goods or services—instead of through an employer/employee relationship. typically, they manage their own business activities, take on business risks like financial obligations, and may use contractors or digital platforms to access customers, such as uber. this model gives employees considerable operational autonomy, enabling them to make their own schedules, select projects, and define service conditions. but there is a trade-off: while there are no restrictions imposed by employers, there is no standard job protection. there is no such thing as health insurance, pension plans, or paid holidays, and labor law guarantees—such as a minimum wage guarantee or anti-discrimination clause—are rare (katz, l. f., & krueger, a. b., 2016). 2.2 erosion of traditional labor subordination in work processes because of the weakening of traditional individual, economic, and organizational subordination, coupled with the effects of hidden algorithmic control, the platform labor relations exhibit distinct characteristics (xie, z., 2018, pp. 1546-1569). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 155 published by scholink inc. 2.2.1 the weakening of subordination platform workers’ apparent autonomy in choosing hours and locations challenges traditional notions of personal subordination. unlike traditional jobs, which have a fixed schedule and an employer’s job, the platform economy appears to have its own schedules and service areas. in romania, for example, uber and glovo drivers have formal flexibility: they select active hours and order zones via the platform interface. but this autonomy is strictly regulated by algorithmic rules: uber drivers must respond to orders within 15 seconds and accept at least 70% of ride requests, with account restrictions for non compliance (rosioru, f., 2020, pp. 423-442). this tension between ―technology empowerment‖ and ―algorithmic control‖ removes the direct control of traditional work hours/places, while creating a new form of individual subordination by means of digital surveillance. 2.2.2 decreasing economic subordination it is diversification of revenue sources and different levels of economic dependence on platforms. redefine economic subordination. some workers earn across multiple platforms—e.g., uber, deliveroo, and taskrabbit—adopting a decentralized model that lessens reliance on any single intermediary (goldschmidt and schmieder, 2015). in contrast, those who depend on a platform for order dispatch—such as food-deliver riders or ride-hailing drivers—exhibit pronounced economic dependence. their earnings are tightly governed by platform algorithms determining order volume and payment rates, creating financial vulnerability despite their formal status as independent contractors. 2.2.3 the weakening of formal organizational subordination platform workers lack strict binding to traditional enterprise rules, driving a fundamental shift in organizational affiliation. in traditional employment, employers directly govern workers through rules like attendance and discipline. however, platform exercise indirect control via implicit mechanisms: user ratings, algorithmic incentives, and penalties. for example, uber drivers sign third-party contracts with platforms—arrangements outside traditional corporate structures. yet platforms establish virtual management systems through service quality metrics (e.g., low ratings triggering reduced order allocations) and task completion rules (e.g., delivery time limits). workers remain subject to these digital dispatch regulations, even without formal employer-employee ties (o’connor v. uber technologies, inc., 82 f. supp. 3d 1133, 1149 (n.d. cal. 2015)). 3. the reality of the dilemma faced by workers in the platform economy platform workers often face a dilemma: they are caught between identifying as employees or self-employed, with weakened subordination leaving them unable to access adequate labor protections. this ambiguity complicates the legal identification of labor relationships. additionally, platform-specific issues—such as algorithmic opacity and the absence of collective labor rights, which exacerbates their challenges (rosenblat, a., & stark, l., 2016, pp. 3758-3766). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 156 published by scholink inc. 3.1 identity challenges traditional law defines labor relations using three subordination criteria ―personal, economic, and organizational‖: employees are under direct employer control, economically reliant on a single entity, and part of the employer’s organizational structure, while independent contractors operate fully autonomously. however, platform employees exhibit ―hybrid characteristics‖ that blend elements of both categories. romanian uber drivers have formal autonomy to choose their working hours, logging on and off the platform at will. yet the platform imposes substantive control through algorithms: drivers must accept over 70% of ride requests and respond to orders within 15 seconds, with penalties like reduced visibility for noncompliance. these mandates create a contradiction: while legally classified as independent contractors, their ability to decide work terms—both in practice and business autonomy—is deeply circumscribed by platform rules. they remain neither fully independent in operational choices nor in economic decision-making, blurring the boundary between employment and self-employment (rosioru, 2020, pp. 433-434). additionally, economic dependence decentralization and risk transfer are evident in platform labor. workers rely on platforms for order allocation and income, yet they are legally classified as ―independent contractors.‖ this classification obligates them to bear individual social security costs, while platforms evade obligations like minimum wage and paid leave. the model shifts financial responsibilities to workers—who depend on platform algorithms for earnings—while preserving platforms’ legal distance from employer obligations, creating a structural imbalance between economic reliance and legal liability (rosioru, 2020, p. 433). spanish deliveroo riders exemplify this issue: though they follow the platform’s delivery rules in practice, their ―service agreement‖ contracts classify them as independent contractors, excluding them from employee protections. despite adhering to algorithmic mandates like delivery time limits and route optimizations, their legal status under these agreements denies those rights such as minimum wage and social security. this mismatch between operational subordination to platform rules and contractual independence reveals how platforms use legal structures to avoid labor obligations (rodriguez-pinero royo, miguel, 2020, pp. 443-472). 3.2 deficiency in basic social security coverage the rapid expansion of the digital platform economy has given rise to new forms of employment. yet, globally, the welfare system for platform workers is lagging far behind. for example, in romania, its open social security framework covers the self-employed. however, the available data reveal continuing problems for platform workers. in spite of the legal provisions, obstacles such as complicated registration procedures, algorithm-driven income volatility, and unclear job classification create practical loopholes. these problems highlight a critical disconnect: although the regulatory framework tries to adapt, the unique nature of platform work outpaces social protection design, leaving workers vulnerable to systemic weaknesses. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 157 published by scholink inc. romanian platform workers face substantial social security gaps, primarily due to mismatches between their legal status and system design. the country’s social security framework theoretically covers all workers—whether employed or self-employed. yet key protections like unemployment and workplace injury insurance remain optional for self-employed individuals. yet low wages and weak enrollment drive low actual coverage: self-employed platform workers often earn below the national minimum wage (2,230 lei/465 eur monthly), with those making less than six months’ minimum wage annually required to pay health insurance based on a six-month salary base (1,338 lei/279 eur annually), exacerbating financial strain (ordonanță de urgență nr. 26/2020 art. 1, m.of. pt. i, nr. 232/25 (25 mar. 2020)). this creates a heavy financial burden, as low wages and voluntary enrollment lead to minimal actual coverage. the result: a critical gap between legal eligibility and practical access to social security, leaving these workers vulnerable to economic risks. these institutional challenges unfold in two key ways: first, platform companies classify workers as self-employed to avoid employer obligations. they contribute just 2.25% of total wages to unemployment and workplace injury funds—far less than formal employer responsibilities (ordonanță de urgență nr. 79/2017 art. 282(1), m.of. pt. i, nr. 937/29 (29 nov. 2017)). meanwhile, workers enroll voluntarily at low rates due to limited information about their options, deepening coverage gaps. second, the income-based contribution system shortchanges low-wage earners. pension levels remain constrained: the 2020 median pension stood at 1,436 lei/300 eur (felicia rosioru, 2021). 3.3 the impact of algorithmic non-transparency on labor in the platform economy, algorithms act as primary tools for labor allocation and management. platforms collect and analyze vast worker and user data to refine these algorithms internally, ensuring matching and management mechanisms serve both user needs and profit goals. this process transforms data into operational control: algorithms dictate task assignments, pricing models, and performance metrics, shaping how workers engage with the platform (zhang, l. h., 2019, pp. 63-75). yet the decision-making logic behind these algorithms often operates as opaque ―black boxes.‖ consider uber: the company exclusively controls its surge pricing algorithms and task allocation systems. drivers have no visibility into how these algorithms function or how their earnings fluctuate. research shows uber’s algorithmic ―black box‖ operates as a digital puppeteer: while drivers perceive autonomy in logging on/off, the invisible strings of surge pricing and acceptance rate thresholds dictate their earnings mobility. rosenblat (2016) likens this to a digital panopticon where drivers’ behavioral choices are algorithmically constrained (alex & luke, 2016, p. 3757, p. 3763, p. 3766). additionally, algorithmic details are shielded as ―trade secrets,‖ making it difficult for workers to prove violations. uber’s contracts typically include mandatory arbitration clauses, blocking drivers from pursuing class-action lawsuits (cotter v. lyft, inc., 176 f. supp. 3d 930, 943 (n.d. cal. 2016)). reviewing a platform’s data often requires algorithmic reverse engineering, which often runs into compliance issues (uber specifically prohibits reverse engineering of its app in the terms of service. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 158 published by scholink inc. terms, uber). for example, facebook contend that a researcher’s breach of the platform’s terms of service constitutes unauthorized access under the computer fraud and abuse act (cfaa), as their actions allegedly went beyond the scope of permitted use defined in the contractual agreement (17 u.s.c. § 1201 (2012); facebook, inc. v. power ventures, inc., 844 f.3d 1050 (9th cir. 2016)). 3.4 loss of collective labor rights the lack of collective labor rights under the platform economy is reshaping the pattern of labor relations and has a huge impact on workers in various countries. this puts workers at a disadvantage under the platform labor relationship. 3.4.1 difficulty in forming traditional trade union models as the core carrier of collective labor relations, trade unions rely on four characteristics of ―group community‖ to function: interdependence among members, shared interest goals, psychological identification, and long-term attachment to the group (malin, m. h., 2000). in traditional industrial settings, physical agglomeration (e.g., factories, workshops) and stable employment relationships provided a natural foundation for unions—workers developed identity through shared workspaces and collaborative interaction, forming not just interest communities but also social identity communities that underpinned the institutional basis for collective bargaining. however, in today’s platform economy, workers rely on mobile apps to accept orders independently, shifting the workplace from physical sites to digital platforms and transforming collaboration from offline interaction to algorithm-driven virtual matching. take food delivery riders as an example: they receive orders via apps and complete services individually, lacking meaningful communication with fellow riders. moreover, under the platform’s ―decentralized‖ task allocation model, workers engage with demand-side entities as individuals, with divergent work goals and income structures that hinder the formation of shared interest objectives. as a result, safeguarding workers’ basic rights becomes extremely challenging, as shown in the table below on the economic security and social security of platform workers. 3.4.2 loss of workers’ collective bargaining power platform enterprises reconstruct labor control through algorithms, whereby workers lack collective bargaining rights, making it difficult for individuals to negotiate pricing with companies. due to the unique characteristics of platform employment relations, negotiation outcomes often fall short of expectations, potentially leading to legal challenges. for example, in 2018, seattle ride-hailing drivers seeking collective bargaining rights were denied by courts due to antitrust law restrictions (iglitzin, d., & robbins, j. l., 2017, pp. 49-50). in european countries like denmark, belgium, and germany—where self-employed individuals are granted collective labor rights to negotiate with enterprises—economic dependence complicates legal determinations of such rights (fulton, l., 2018). spain adopted specific regulations on self-employment in 2007, requiring economically dependent self-employed workers to sign contracts with enterprises to explicitly declare their economic dependence (agut garcía, c., & núñez gonzález, c., 2012, pp. 117-132). however, in 2017 data www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 159 published by scholink inc. shows only 9,991 economically dependent self-employed workers in spain, starkly contrasting with the total self-employed population of nearly two million during the same period—revealing that protections for this group remain inadequate to meet legislative expectations (lionel, 2018, p. 62). 4. an empirical analysis of labor protection experiences in the platform economy 4.1 analysis of the applicability of the introduction of the german quasi-employee system the concept of ―quasi-employee‖ was first introduced in the 1926 labor court act (bundesministerium der justiz, 1953). subsequent legislation, such as the federal vacation act （bundesurlaubsgesetz [burlg] [federal vacation act], 1963, §3) (bundesanzeiger verlag, 1963), granted procedural rights (e.g., labor court jurisdiction) and substantive protections (e.g., paid leave, workplace accident insurance). the 1974 amendment to §12a of the collective bargaining act (tarifvertragsgesetz) further refined the definition of ―employee-like persons,‖ emphasizing their high economic dependency and social protection needs akin to employees, covering groups such as home-based workers and exclusive commercial agents (dübler, w., 1999). in a german labor case clarifying standards for the ―quasi-employee‖ (arbeitnehmerähnliche person) system, the federal labor court analyzed a dispute involving a retired self-employed insurance agent who had a service contract with an insurance company. the contract allowed the plaintiff to freely choose whether to accept individual insurance commissions and negotiate commission rates. arguing their economic dependence qualified them as quasi-employees entitled to collective agreements, the plaintiff sought legal recognition of this status. however, the court rejected the claim, ruling the plaintiff remained a self-employed worker (bundesarbeitsgericht [bag] [federal labor court of germany], mar. 22, 2000, case no. 5 azr 244/99, neue zeitschrift für arbeitsrecht (nza) 2000, 963 (ger.)). the court focused on two key factors. first, it examined the plaintiff’s income structure: their fixed monthly pension (2,402 dm)—matching germany’s median income at the time—meant they could sustain basic living expenses even without annual insurance commissions (approximately 14,000 dm). this negated the core requirement for quasi-employee classification under the german collective agreements act (tvg §12a): ―existential-level‖ economic dependence, where loss of contract income would threaten livelihood. second, the court scrutinized the plaintiff’s contractual autonomy. he declined specific insurance tasks without penalties or contract termination and successfully renegotiated commission terms for multiple products, demonstrating genuine bargaining power. the court’s ruling in this case articulated two pivotal criteria for determining quasi-employee status in germany. first, the ―ocial need for protection‖ standard focuses on whether declining assignments would realistically jeopardize the worker’s livelihood—a determination rooted in their reliance on income from the contracting entity (bundesarbeitsgericht [bag] [federal labor court of germany], mar. 22, 2000, case no. 5 azr 244/99, neue zeitschrift für arbeitsrecht (nza) 2000, 963 (ger.)). second, while the ―income share factor‖ (where over 50% of total income stems from a single source) www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 160 published by scholink inc. is referenced in tvg §12a(1)(1)(b), courts typically dismiss protection claims if workers have alternative income streams adequate to meet basic needs. this decision highlights a central tenet of the german quasi-employee framework: it requires more than just financial ties to the customer. on the contrary, the test of law looks at whether workers would be exposed to an economic threat if they were deprived of that income—in other words, if their deprivation would endanger their ability to maintain a basic standard of living. that limit is not satisfied by mere financial dependence, but by the fact that it is virtually impossible to waive contractual earnings without serious difficulties. 4.1.1 feasibility analysis of applying the quasi-employee system to platform labor relations platform labor providers, though formally autonomous—supplying their own tools and setting flexible schedules. but they face significant structural constraints from platform rules, such as algorithmic scheduling, rating systems, and performance-based incentives, which shape their work processes, while financial reliance on platform revenues is often their main source of income. this dual nature—formal independence coupled with substantive reliance—aligns with the german employee framework. first, platform workers exhibit absence of personal subordination but pronounced economic dependence. unlike traditional employees, they lack direct employer control over work details; no mandatory schedules or specific task instructions exist. yet they operate within rigid platform ecosystems: the established rules govern task allocation and performance evaluation. this aligns with the core feature of employee-like status: formal autonomy coupled with substantive economic dependence. second, platforms monopolize labor demand information, creating an ―internal labor market‖ that severs direct access between providers and clients. like uber drivers, for example, they cannot accept street-hailed rides; delivery workers rely exclusively on platform-order allocations. this strips them of traditional self-employment rights: pricing autonomy, client acquisition freedom, and direct market access. 4.1.2 challenges in applying the quasi-employee system in the previous case, the german labor federal court rejected the plaintiff’s claim, holding that the income percentage is not the only criterion, but also needs to be combined with subjective factors such as ―whether or not one is dependent on the platform for survival‖, i.e., the need for social protection. however, platform workers’ income fluctuates greatly, and how to dynamically assess economic dependence and social protection needs is an issue that remains to be resolved. in addition, the complexity of decentralized employment on platforms, where platform workers often serve multiple platforms at the same time (e.g., online car drivers taking orders across platforms), and their income sources are decentralized, makes it difficult to apply the traditional criterion of ―single economic dependence.‖ 4.2 practical insights from california’s abc test in labor relationship classification (california assembly bill 5, § 2, 2019 regular session (cal. 2019)) the ab-5 act replaces traditional multi-factor tests with a strict abc test—requiring businesses to prove workers operate free from control, perform tasks not central to the business’s core operations, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 161 published by scholink inc. and work independently. it significantly increases the likelihood of classifying gig workers as employees entitled to labor law protections. employee status entitles workers to medical care, workers’ compensation, paid sick leave, and safeguards against arbitrary termination through statutory procedures, enhancing job security (california assembly bill 5, 2019). additionally, this classification legally enables union formation and collective bargaining, empowering groups like ride-hail drivers to advocate for higher wages and better working conditions, while clarifying dispute resolution pathways and raising corporate compliance costs to foster fairer labor relations. however, ab5’s implementation directly threatens the core demand of casual laborers: work flexibility. data shows 45% of uber drivers work fewer than 10 hours weekly, and 92% work less than 40 hours—most choose this casual arrangement to control their schedules and balance family or other commitments. classifying them as employees would strip drivers of the right to accept orders freely or work across multiple platforms. companies might introduce mandatory scheduling systems, requiring drivers to work in specific zones or during set hours—a direct clash with the gig economy’s ―on-demand‖ model built on worker autonomy (remarks made for uber ab5 press call, uber: uber newsroom, (sept. 11, 2019)). additionally, tech companies have actively resisted ab5 through lawsuits, referendum initiatives, etc. uber, lyft, and others have jointly invested $60 million to launch a referendum in an attempt to obtain an exemption through a voter referendum that would advocate for maintaining the independent contractor status of drivers and provide limited benefits. at the same time, if the bill is strictly enforced, it could significantly increase the price of services (e.g., higher taxi fares), with the associated costs being passed on to consumers (roosevelt, m., bhuiyan, j., & luna, t., 2019, september 11). or companies may reduce their employment scale and even withdraw from the california market. if 400,000 drivers are classified as employees, businesses will face huge labor costs, which may result in about a large number of drivers losing their jobs (margot roosevelt, johana & taryn luna, 2019). 5. conclusion: path to institutional reconstruction for the protection of atypical workers' rights in the platform economy given the complexity of determining labor relations in the platform economy, the diverse forms of employment relationships, and enterprises’ covert managerial control over workers through algorithmic systems, it is necessary to explore dynamic status determination models and regulate algorithmic control to protect workers, while also avoiding imposing overly broad requirements on enterprises. 5.1 construction of a dynamic status determination system a comprehensive evaluation of multi-dimensional factors is essential in defining platform labor relations. taking economic subordination and factual control as core criteria, analysts must also integrate factors like workers’ reliance on platform resources, the substitutability of their tasks, and the platform’s degree of dominance over work processes to establish holistic judgment standards. this approach ensures that classification does not rest on formal contractual labels alone but accounts for the substantive power dynamics inherent in algorithmic management—such as how platforms dictate task www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 162 published by scholink inc. allocation, performance metrics, and income structures. to determine whether workers are controlled by employers (i.e., exhibit subordination) through the ―dominant attributes‖ of algorithms, we can draw from the subordination factors considered in a uk court ruling: whether the platform possesses the power to set service fees and commission rates, the authority to design transaction rules, discretion in order allocation, control over algorithmic decision-making, control over communication channels with customers, and control over opportunities for profit generation (uber bv and others v. aslam andothers, uksc5, paras.94-100, 2021). the establishment of a third category of workers should be approached with prudence. this institutional design must carefully balance fundamental worker protections with avoiding excessive burdens on enterprises that could stifle platform economy development. worker classification should first be determined through traditional subordination criteria to distinguish between employees and self-employed individuals, before considering potential qualification for this third category. specifically, we should draw upon international practice when exploring the creation of this intermediate worker status (arbeitnehmerähnliche personen, tarifvertragsgesetz [tvg] [collective bargaining act] § 12a (ger.)). where the above elements of subsidiarity are fully satisfied, workers shall be accorded the same treatment and protection as if they were employees. if the requirements are not fulfilled, minimum requirements for protection, such as minimum wages and maximum working hours, shall be established. at the same time, the basic obligations of workers, such as minimum working hours and the obligation to work faithfully and diligently on the platform, should also be defined, so as to clarify the boundaries of the rights and obligations of workers. corresponding industry associations or government agencies can set up standardized documents to clarify the rights and obligations of both parties, and at the same time quantify the elements of subordination, according to the degree of satisfaction of subordination, taking the rights and interests of regular employees as the benchmark, the more the degree of satisfaction of the platform to give the rights and interests of this type of workers such as wages and social security, the closer to the rights and interests of regular employees. dynamically assessing the subordination of workers can also effectively address complex employment patterns, such as workers participating in multiple platforms. 5.2 enhancing algorithmic regulation and data protection mechanisms the non-transparent nature of algorithms in platform economies fundamentally undermines workers’ ability to protect their rights. as these algorithmic labor rules exhibit inherent concealment through coded and dynamically adjusted operations, jurisdictional complexity across multiple platforms and entities, and illusory consent achieved through standardized terms that workers must passively accept––characteristics that collectively exceed the regulatory scope of traditional labor governance systems, necessitating the urgent establishment of an algorithmic auditing mechanism to ensure transparency and accountability while maintaining operational efficiency for platforms. this approach must carefully balance the imperative for worker protections with the need to preserve the innovative www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 163 published by scholink inc. potential of digital labor markets, requiring nuanced implementation that considers both the technical feasibility of algorithmic oversight and the economic realities of platform operations (sandvig, c., hamilton, k., karahalios, k. et al., 2022). 5.2.1 addressing covert violations from algorithmic control firstly, to address the issue of ―false self-employed or self-employed‖ in platform labor, the audit needs to verify whether the algorithm constitutes substantive labor control. for example, the dispatch rules, attendance system, and performance evaluation of the algorithm of the takeaway platform are analyzed to determine whether the workers are subject to mandatory scheduling by the algorithm (e.g., order-taking response rate thresholds, regional restrictions), and whether their income is dependent on a single platform and lacks bargaining space. if the algorithm causes the worker to lose autonomy in terms of working time and task allocation, even if the relationship is formally a contractual relationship, it should be recognized as a de facto labor relationship and be included in the scope of labor law protection. secondly, it’s important for compliance with data collection and privacy protection. review the scope and use of data collected on workers by the platform and prohibit monitoring beyond what is reasonably necessary. for example, detecting excessive monitoring through movement tracks, biometric data (e.g., facial recognition), or the use of data to manage ―hidden overtime‖ for workers (e.g., pushing tasks outside of work hours). audits need to confirm that data collection complies with data protection regulations and that algorithms do not violate workers’ rights to privacy and rest in the name of ―management optimization‖. 5.2.2 risk-based auditing: systematic risk review of algorithmic decision-making risk-based audits focus on the potential threats of algorithmic operations to workers’ rights, establishing risk early-warning and corrective mechanisms through quantitative assessment and dynamic monitoring. they analyze whether algorithmic pricing and order allocation lead to income discrimination or instability. for instance, a ride-hailing platform’s ―dynamic pricing‖ algorithm may systematically depress earnings in specific regions or for particular groups, necessitating audits to check for discriminatory categorization based on geography, gender, or other factors, as well as ―data-driven exploitation‖ that squeezes workers’ earnings margins. risk-based audits for high-risk positions like food delivery riders examine whether algorithms prioritize efficiency at the expense of safety thresholds. for example, delivery platforms’ overtime penalty algorithms may compel riders to speed, necessitating assessment of whether algorithms include reasonable time buffers and integrate traffic violation data to dynamically adjust delivery routes. additionally, audits should review whether algorithms excessively compress rest periods, normalizing ―covert overtime‖ and infringing on workers’ right to health. 5.2.3 construction of audit mechanism establish a tripartite audit system of ―government regulation, third-party institutions and worker participation‖: government authorities lead the filing and compliance review process, with cyber www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 164 published by scholink inc. regulatory bodies and labor administrative agencies jointly formulating the platform algorithmic labor rules filing checklist to mandate platforms to disclose core parameters of scheduling-decision algorithms (such as order dispatch and compensation algorithms) and their impact assessment reports. independent third-party audit institutions, composed of technical experts, labor law practitioners, and union representatives, will be cultivated to conduct evaluations of both the technical compliance and social impacts of algorithms—for example, using ―anti-discrimination‖ testing to verify the fairness of algorithmic output results. a worker participation mechanism will be established through the creation of worker representative committees endowed with the right to access algorithmic audit information and raise objections to algorithmic rules that may infringe on labor rights. additionally, algorithmic audit tools can detect whether algorithms contain discriminatory logic or hidden control mechanisms—for example, by analyzing the legality of ―exclusivity clauses‖ or ―anti-subcontracting clauses‖ in platform service agreements to ensure they do not unjustly restrict workers’ autonomy. data trajectory tracking leverages blockchain technology to record the full life cycle of algorithmic decisions, making processes like order allocation, reward/penalty applications, and performance evaluations fully traceable—such as creating a delivery data ledger for riders to prevent platforms from arbitrarily deducting payments or restricting order acceptance. 5.3 progressive mechanism for tiered social security system 5.3.1 tiered protection strategy first, classify platform workers into distinct tiers (e.g., core, semi-dependent, casual) based on their degree of platform affiliation and income stability, then design differentiated social security schemes for each tier. 5.3.2 flexible security fund mechanism establish a dedicated flexible security fund for the platform economy. for workers earning below the statutory minimum wage, platforms and governments shall jointly prepay subsidies to cover insurance contributions and provide temporary relief payments, thereby enhancing workers’ risk resilience. 5.3.3 establishment of platform enterprise employee committees corporate labor management systems must constrain corporate power while protecting worker rights. in the platform economy, flexible employment arrangements prevent traditional labor contracts, leading platforms to unilaterally define rights and obligations through standardized agreements. workers lack channels to voice objections, creating systemic risks of rights violations. given traditional unions’ ineffectiveness and potential antitrust conflicts, platform enterprises should create employee-led committees with union-like functions. these committees shall negotiate with platforms on minimum wages, working hours, and basic social security. members must have verified platform work tenure, and labor regulations must incorporate their input. jointly developed rules between committees and platforms shall be publicly disclosed and apply equally to current and future workers with binding force. the validity of such rules must be legally guaranteed to safeguard workers’ rights and interests. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 165 published by scholink inc. references 17 u.s.c. § 1201 (2012); facebook, inc. v. power ventures, inc., 844 f.3d 1050 (9th cir. 2016). agut garcía, c., & núñez gonzález, c. (2012). the regulation of economically dependent self-employed work in spain: a critical analysis and a comparison with italy. e-journal of international and comparative labour studies, 1, 117-132. arbeitnehmerähnliche personen, tarifvertragsgesetz [tvg] [collective bargaining act] § 12a (ger.). bundesanzeiger verlag. (1963). bundesurlaubsgesetz vom 8. januar 1963 (bgbl. i s. 2), zuletzt geändert durch art. 7 g v. 20.4.2022 i 614. bundesarbeitsgericht [bag] [federal labor court of germany], mar. 22, 2000, case no. 5 azr 244/99, neue zeitschrift für arbeitsrecht (nza) 2000, 963 (ger.). bundesarbeitsgericht [bag] [federal labor court of germany], mar. 22, 2000, case no. 5 azr 244/99, neue zeitschrift für arbeitsrecht (nza) 2000, 963 (ger.). bundesministerium der justiz. (1953). arbeitsgerichtsgesetz vom 3. september 1953 (bgbl. i s. 1267). §5 abs. 1 satz 2. california assembly bill 5, § 2, 2019 regular session (cal. 2019) (adding california labor code § 2750.3, effective january 1, 2020). cherry, m. a. (2019). age discrimination in the on-demand economy and crowdwork. berkeley journal of employment and labor law, 40(1), 32. cotter v. lyft, inc., 176 f. supp. 3d 930, 943 (n.d. cal. 2016). dübler, w. (1999). working people in germany. comparative labor law & policy journal, 21(1), 88. felicia rosioru. (2021). the social protection of platform workers in romania: meeting the growing demand for affordable and adequate coverage? babes-bolyai university. https://doi.org/10.1111/issr.12282 fulton, l. (2018). trade unions protecting self-employed workers. etuc, brussels, 62. goldschmidt and schmieder. (2015). document a large rise in domestic outsourcing ( ―contracting out‖) in germany as well since the 1990s, with a large growth of contracted out workers being employed by business service firms and temporary help agencies. song, et al. (2016) find related evidence for the united states of an increase in worker sorting across firms by (permanent) wage levels, a pattern that is consistent with a rising reliance on contracting out of low-wage work by many firms. iglitzin, d., & robbins, j. l. (2017). the city of seattle’s ordinance providing collective bargaining rights to independent contractor for-hire drivers: an analysis of the major legal hurdles. berkeley journal of employment and labor law, 38, 49-50. independent workers’ union of great britain v. roofoods ltd t/a deliveroo [2017] tur1/985. (2016). (cac). https://doi.org/10.1111/issr.12282 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 166 published by scholink inc. katz, l. f., & krueger, a. b. (2016). the rise and nature of alternative work arrangements in the united states, 1995-2015 (working paper no.22667). national bureau of economic research. https://doi.org/10.3386/w22667 lionel fulton, trade unions protecting self-employed workers, etuc, brussels, 2018, 62. malin, m. h. (2000). the national labor relations act in cyberspace: union organizing in electronic workplaces. 49 u. kan. l. rev., 1, 12. national information center of china. (2023). annual report on china’s sharing economy development. state information center. retrieved from http://www.sic.gov.cn/sic/93/552/557/0223/11819_pc.html (last visited may 20, 2024) o’connor v. uber technologies, inc., 82 f. supp. 3d 1133, 1149 (n.d. cal. 2015). ordonanță de urgență nr. 26/2020 art. 1, m.of. pt. i, nr. 232/25 (25 mar. 2020) (rom.). ordonanță de urgență nr. 79/2017 art. 282(1), m.of. pt. i, nr. 937/29 (29 nov. 2017) (rom.). rani, u., furrer, m., gerecke, m., & berg, j. (2021). world employment and social outlook 2021: the role of digital labour platforms in transforming the world of work. international labour organization. retrieved from https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/ wcms_771749.pdf. remarks made for uber ab5 press call, uber: uber newsroom, (sept. 11, 2019)https://drive.google.com/file/d/lthl2wvzyke5qyagvge-fhlu-juewoboy/view (transcriptavailable https://drive.google.com/file/d/1o9edg.wmgzboweumg iovezch54z. rodriguez-pinero royo, miguel. (2020). platforms and platform work in spanish industrial relations. comparative labor law & policy journal, 41(2), 443-472. roosevelt, m., bhuiyan, j., & luna, t. (2019, september 11). sweeping bill rewriting california employment law sent to gov. newsom. los angeles times. retrieved from https://www.latimes.com/business/story/2019-09-11/sweeping-bill-rewriting-california-employme nt-law-moves-to-gov-newsom. rosenblat, a., & stark, l. (2016). algorithmic labor and information asymmetries: a case study of uber’s drivers. international journal of communication, 10, 3758-3766. rosioru, f. (2020). the status of platform workers in romania. comparative labor law & policy journal, 41(3), 423-442. rosioru, f. (2020). the status of platform workers in romania. comparative labor law & policy journal, 41(2), 423-442. rozzi, f. (2018). the impact of the gig-economy on u.s. labor markets: understanding the role of non-employer firms using econometric models and the example of uber. junior management science, 3(2), 33. https://doi.org/10.3386/w22667 https://drive.google.com/file/d/1o9edg.wmgzboweumg https://www.latimes.com/business/story/2019-09-11/sweeping-bill-rewriting-california-employment-law-moves-to-gov-newsom https://www.latimes.com/business/story/2019-09-11/sweeping-bill-rewriting-california-employment-law-moves-to-gov-newsom www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 167 published by scholink inc. sandvig, c., hamilton, k., karahalios, k. et al. (2022). auditing algorithms: research methods for detecting discrimination on internet platforms[r/ol]. [2022-09-02]. retrieved from https://social.cs.uiuc.edu/papers/pdfs/ica2014-sandvig.pdf. uber bv and others v. aslam andothers, uksc5, paras.94-100 (2021). uber specifically prohibits reverse engineering of its app in the terms of service. terms, uber, http://www.uber.com/legal/terms/us/ [http://perma.cc/6ccg-djxy] (last visited sept. 14, 2017). xie, z. (2018). judicial identification of employment relationships in platform economy: a perspective of subordination theory. peking university law journal, 30(6), 1546-1569. zhang, l. h. (2019). the emergence, alienation and legal regulation of algorithmic power. studies in law and business, 36(4), 63-75. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 136 original paper implications of foreign environmental codification paradigms for china’s ecological civilization code compilation enjie liu 1 1 school of marine law and humanities, dalian ocean university, dalian, china received: april 15, 2025 accepted: april 29, 2025 online published: april 30, 2025 doi:10.22158/elp.v8n1p136 url: http://dx.doi.org/10.22158/elp.v8n1p136 abstract under the context of advancing ecological civilization, china’s codification of an eco-environmental code constitutes both a legal system upgrade and a manifestation of green governance values. this study examines the urgency of codifying china’s fragmented environmental legislation, addressing critical challenges such as regulatory gaps, normative inconsistencies, and legislative redundancies. through comparative analysis of swedish and french codification paradigms, the paper highlights codification’s systemic advantages in harmonizing environmental governance frameworks. a three-stage codification pathway is proposed: establishing value-oriented principles, defining moderate codification objectives with adaptable scope, and adopting a “general-special provisions” structure with logically sequenced chapters. the findings suggest a medium-scale codification model that integrates international experiences with china’s ecological modernization needs. this hybrid approach balances code stability with regulatory flexibility, accommodating evolving environmental challenges while providing systematic legal support for ecological civilization construction. the proposed framework addresses current legislative fragmentation through hierarchical integration while preserving necessary regulatory adaptability—a strategic response to the dynamic nature of environmental governance in developing jurisdictions. keywords eco-environmental code, french environmental code, swedish environmental code 1. introduction ecological integrity constitutes not only the cornerstone of human survival but also a vital capital for sustainable societal development. guided by the principles of ecological civilization, contemporary legal codification must prioritize ecosystem protection, ensuring comprehensive juridical recognition of ecological elements. the proposed eco-environmental code transcends conventional environmental www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 137 published by scholink inc. legislation by emphasizing holistic ecosystem conservation through lifecycle governance—from source control to terminal remediation—thereby institutionalizing systematic environmental stewardship. china’s environmental legal framework currently faces tripartite deficiencies: legislative gaps in emerging ecological domains, regulatory delays in addressing evolving challenges, and excessive abstraction that undermines enforcement efficacy. these systemic shortcomings exacerbate the disjunction between statutory provisions and practical conservation needs. concurrently, normative fragmentation manifests through interlegal contradictions across statutes and regulations, complicating judicial application, impeding administrative enforcement, and eroding public legal literacy. the codification initiative represents a paradigmatic restructuring rather than mere legislative augmentation. through systematic integration of dispersed legal instruments and structural optimization, the eco-environmental code aims to establish a coherent hierarchy of environmental norms with enhanced operational precision. this transformative approach promises dual dividends: elevating governance efficiency through normative synergy while fostering civic environmental jurisprudence—a critical foundation for mobilizing multi-stakeholder participation in ecological modernization. 2. the current status and imperatives of codifying china’s eco-environmental code china’s current environmental and ecological legal system faces several challenges, including insufficient supply, fragmentation, and high redundancy of legal provisions (pu, x. l., 2020). in terms of supply, there are notable legislative gaps and delays in specific environmental fields, with some legal provisions being too vague to implement, creating a discrepancy between legal supply and actual environmental protection needs. fragmentation is seen in conflicts and inconsistencies across different laws and regulations, complicating legal application, increasing enforcement challenges, and confusing the public. additionally, redundant provisions on the same or similar issues across legal documents waste legislative resources and undermine the system’s unity and clarity. to address these problems, it is imperative to build an integrated and systematic environmental and ecological legal system through code compilation, aiming to integrate legal resources, optimize legal structure, enhance coordination and unity, and better tackle china’s complex ecological and environmental issues. 3. sweden’s environmental code: development and characteristics 3.1 development of sweden’s environmental code sweden’s environmental code development began in the 1990s, forming a complete environmental law system through multiple legislative reforms. in 1969, sweden enacted the “environmental protection law,” creating a preliminary environmental legal framework. as environmental problems worsened, the swedish government recognized the deficiencies of existing laws, particularly in enforcement and authority. in 1992, sweden established sustainable development goals at the rio un conference on environment and development, and began drafting an environmental code in 1993. after several years, sweden officially implemented the “environmental code” on january 1, 1999, consolidating 16 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 138 published by scholink inc. existing environmental laws into one code. 3.2 characteristics of sweden’s environmental code sweden’s environmental code features a unique moderate codification model. this model emphasizes practicality, moving away from the absolute rigor and certainty of traditional codes. instead, it maintains openness through “clear authorization” and “creating entry points” to adapt to evolving environmental management needs. the code has a dynamic structure with a “general provisions-specific provisions” framework, covering various aspects such as nature protection, regulations on specific activities, supervision, penalties, and compensation. it reflects a comprehensive approach to environmental issues. additionally, the code coexists with other laws in practice. by revising conflicting provisions, it achieves coordination and unity with the existing legal system, ensuring the integrity and consistency of the law. 4. france’s environmental code: process, structure and main content 4.1 process of environmental code development in france the main process of environmental code development in france began in 1989 when the french government established a senior committee for code compilation to guide relevant government departments in code compilation for various branches of law. in 1991 the, french society for environmental law submitted a feasibility report on codification to the ministry of environment, stating that from the perspectives of legal system development and social needs, it was necessary to compile an environmental code. in 1990, the french ministry of environment announced the plan for environmental code, and in 1992, the working institutions and mechanisms for code compilation were put in place, marking the official launch of france’s environmental code compilation work (mo, f., 2018, pp. 52-54). 4.2 structure and main content of france’s environmental code with its complex structure and extensive content coverage, france’s environmental code is highly representative among civil law countries. the code consists of three main parts: legislative provisions, administrative regulations, and annexes. the legislative provisions and administrative regulations are further subdivided into seven volumes (lü, z. m., & dou, h. y., 2018, pp. 862-882). each volume contains sections, chapters, articles, sub-articles, paragraphs, and specific provisions, which are distinguished by prefixes “l” and “r” or “d”. volume i, “general provisions,” clarifies the legislative purpose of the code and the basic principles of environmental law, covering procedures such as environmental information disclosure and public participation. volume ii, “physical environment,” focuses on the management of water, marine, and atmospheric environments. volume iii, “natural spaces,” sets out provisions for the protection of various natural spaces. volume iv, “natural heritage,” covers the protection of animals and plants and the regulations on natural habitats. volume v, “prevention of pollution, risks andages dam,” includes the classification of environmental protection facilities and the management of chemical substances. volume vi is specially dedicated to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 139 published by scholink inc. environmental regulations for france’s overseas territories, while volume vii focuses on the protection of the antarctic environment. through this comprehensive and systematic approach to codification, france's environmental code aims to enhance the transparency, coordination, and enforceability of environmental law to promote sustainable environmental development. 5. implications of environmental law codification in sweden and france for china 5.1 implications of sweden’s environmental code for china sweden’s environmental code experience offers china valuable lessons as china seeks to enhance its ecological and environmental legal system. firstly, sweden’s approach shows china must choose a codification path that suits its national conditions and has foresight. its moderate codification, moving away from traditional absolute rigidity and certainty to a more flexible and practical method, offers china a new model. china could adopt a less complex and more implementable codification approach, advancing the modernization and internationalization of its environmental law system. secondly, the flexibility and openness of sweden’s code highlight the need for china to stay adaptable during codification. environmental issues evolve with economic and social progress, posing new challenges. thus, china’s future environmental code must be flexible and open-ended to remain relevant and effective. lastly, sweden’s successful implementation of its environmental code, especially in environmental courts and legal liability coordination, offers china useful references. this indicates that during codification, china should focus not only on environmental laws themselves but also on coordination with other legal fields like civil, criminal, and administrative law. such cross-departmental cooperation can ensure the effective implementation and coordination of environmental laws, fostering mutual support among different legal areas and building a more robust and efficient legal system. 5.2 implications of france’s environmental code for china france’s environmental code experience holds great significance for china’s environmental legal system construction. first, france’s codification highlights its role in promoting environmental laws towards standardization, systematization, and refinement. confronted with rapid environmental legislation and related issues like ambiguous provisions and conflicting clauses, france achieved organic integration of legal norms through codification, thereby strengthening the overall effectiveness of its legal system. this offers china practical references for tackling similar challenges. second, france gave high importance to selecting a codification model. its senior codification committee established a principle of compiling on the basis of existing laws, which was crucial for the codification process. this shows that clarifying the codification model, connotation, authority scope, content, and principles is vital for ensuring the correctness and efficiency of codification work. it provides china with strategic guidance that careful planning of the codification model and principles is needed at the early stage of codification. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 140 published by scholink inc. third, france’s experience underscores the need to break down departmental barriers when determining the scope of codification and adopt a cross-departmental perspective. some problems in france’s codification process, such as the exclusion of some environmental-related legal provisions, reflect the limitations of determining the codification scope based on a single administrative department’s authority. environmental issues are often cross-sectoral, involving the functions and responsibilities of multiple administrative departments. thus, effective inter-departmental coordination is required. for china, this means that when determining the scope of environmental code compilation, a single-department perspective must be transcended. instead, the functions and responsibilities of all relevant departments should be comprehensively considered to ensure comprehensive coverage of environmental laws, optimal allocation of legal resources, and maximization of legal effectiveness. in conclusion, france’s environmental code experience provides profound insights for china on promoting codification in the environmental law field, including the importance of codification, the strategic significance of model selection, and the necessity of cross-departmental cooperation. these insights are highly valuable for guiding china’s environmental code compilation and helping china build a more improved, coordinated, and efficient environmental legal system. 6. the path selection for the compilation of china’s ecological and environmental code based on an in-depth analysis of the successful codification experiences of sweden and france, and in line with the core values of china’s ecological civilization construction, china should adopt a moderate-scale, moderately systematic, and incremental codification model for its ecological and environmental code. this model emphasizes value leadership, using ecological civilization construction as a guide. it stresses the integrity and systematic nature of ecological and environmental protection, aiming to achieve harmony between humans and nature through legal means, rather than just addressing specific environmental problems. in terms of objectives, china’s codification should focus on phased and moderate codification. this means avoiding a blind pursuit of comprehensive code content and simple imitation of foreign models. instead, a code-compilation path that suits china’s national conditions, aligns with global trends, and has chinese characteristics should be developed. this approach ensures the code’s practicality and adaptability, enabling it to better support environmental protection in china. when defining the code’s scope of regulation, the connection between environmental law and other branches of law must be thoroughly considered to ensure the code is comprehensive and well-coordinated. given the dynamic and evolving nature of environmental law, the code should also be flexible and forward-looking, leaving room for future environmental issues. in terms of framework, the code should follow the classic “general provisions-specific provisions” structure. the general part sets out universally applicable principles and rules to guide the entire code, while the specific part is divided into chapters based on environmental law's regulatory areas (zhu, b. c., 2020, pp. 16-21). this ensures the code’s systematicness and workability. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 141 published by scholink inc. at the micro-level, the code’s internal structure should follow a logical sequence and be divided according to environmental law’s content. each chapter should be both independent and interconnected, forming an organic whole. moreover, the code should be flexible enough to incorporate emerging environmental issues, ensuring its continued relevance and effectiveness. in conclusion, the path for compiling china’s ecological and environmental code should feature moderation, systematization, and incrementality. it should focus on the present while looking to the future to establish a scientific, rational, and effective ecological and environmental legal system. this will provide solid legal support for china’s ecological civilization construction and sustainable development. 7. discussion in choosing the compilation model for china’s ecological and environmental code, it’s essential to integrate the experiences and insights from sweden and france with china’s ecological civilization values and environmental rule-of-law practices. china should opt for a moderate-scale, moderately systematic, and incremental model. this approach allows china to maintain the code’s stability while adapting to the dynamic and evolving nature of environmental law. consequently, china can establish a robust legal foundation for its ecological civilization and environmental rule-of-law construction. references lü, z. m., & dou, h. y. (2018). the “greening” of the civil code and the adjustment of the environmental code. chinese and foreign law, 30(4), 862-882. mo, f. (2018). the process and enlightenment of the codification of environmental law in france. china people’s congress, 3(2018), 52-54. pu, x. l. (2020). timely launch of the compilation of the ecological environment code. rule of law daily, december 15, 2020: 007. zhu, b. c. (2020). the structural design of china’s environmental code under the perspective of formal rationality. gansu social sciences, 1(2020), 16-21. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 214 original paper an empirical analysis of the crime of “drunk” dangerous driving—taking the plateau area as an example chenhui wang 1 1 tibet university, lhasa, tibet autonomous region, china received: october 5, 2025 accepted: october 16, 2025 online published: october 18, 2025 doi:10.22158/elp.v8n2p214 url: http://dx.doi.org/10.22158/elp.v8n2p214 abstract in may 2011, the “criminal law amendment (viii)” incorporated drunk driving into the scope of criminal law regulation. after “drunk driving into the penalty”, it has played a great deterrent role in recent years. however, with the containment of “drunk driving” and “drunk driving”, the judicial cost of our country has also increased. the inclusion of drunken dangerous driving crime into the penalty system makes the grass-roots courts spend a lot of judicial resources to deal with such cases every year. in this paper, the cases published in the judgment document network during the ten-year period from 2015 to 2024 in the plateau area are sorted out and summarized. based on objective empirical analysis, the effectiveness, characteristics and existing problems of “drunk driving into punishment” after the implementation of drunken dangerous driving crime in the plateau area are studied. finally, according to the analysis and research results, corresponding suggestions are put forward. keywords plateau region, drunk, dangerous driving, empirical analysis 1. introduction in recent years, with the development of china’s economy, automobiles have become an increasingly important means of transportation. however, before the “drunk driving penalty”, the tragedy of homebreaking caused by drunk driving has occurred repeatedly around us. the regulation of drunk driving only by administrative punishment is obviously not enough to deter the perpetrators, and the punishment is far from enough (research on the judicial determination of the crime of “drunken” dangerous driving, 2024). with the traffic accident cases caused by drunk driving and drunk driving rising in a straight line, and the nature and its bad, the people are very angry. in recent years, the relevant data also show that the number of cases of drunk driving accidents is increasing, and the degree of harm is deepening, which has posed a great threat to the safety of citizens’ lives and property. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 215 published by scholink inc. therefore, in this context, drunk driving has become a necessary link in the improvement of china’s criminal law and an inevitable result of the continuous improvement of the social protection function of criminal law (fu, y. m., 2023). 2. selection and design of sample data in this paper, the empirical analysis of the crime of “drunken” dangerous driving is based on the crime of dangerous driving published by the grass-roots courts of 6 cities and 1 city in the plateau region on the china judgment document network (tian, x., 2023, pp. 176-200) as the research sample. by demonstrating whether the high-trend development of “drunken” dangerous driving crime cases is directly related to economic development, the characteristics of relatively backward economic development, poor natural conditions, small population and underdeveloped traffic in the plateau area make it a representative research object (liu, d. f., & chen, m. f., 2021, pp. 96-98) 0 . in terms of literature retrieval methods, the author set up keywords such as “criminal case”, “grass-roots court”, “plateau area”, “dangerous driving crime”, etc. a total of 903 cases were detected, and 896 cases were selected for data analysis according to the time requirements set up in this study. in the process of data collection, induction and summary, it is found that a total of 884 cases have been concluded, and the types of cases are “drunk driving” dangerous driving crimes. this has great reference value and significance for the author to analyze the sample data related to the crime of “drunken” dangerous driving (yin, s. f., 2023, pp. 32-36, p. 41). in addition, the ten-year period from 2015 to 2024 is selected as the research period, hoping to fully and dynamically understand the application of the crime of dangerous driving in the plateau area since its application, so as to find out the problems existing in the crime of dangerous driving in practice. through empirical analysis from the perspective of subjective factors and objective factors, this paper explores the relationship between the high incidence of dangerous driving crime and the development of plateau area (li, r. s., 2023, pp. 75-86). 3. characteristics of the crime of dangerous driving 3.1 analysis of the characteristics of the main factors 3.1.1 the proportion of migrant workers is the largest according to the analysis of the sample situation, it is concluded that the crime of “drunk driving” dangerous driving in the plateau autonomous region has involved 884 people in 10 years. among them, 234 workers accounted for 26 %, nearly one-third of the total staff; the second is the unemployed, with a total of 140 people, accounting for 16 % of the total; secondly, there are 124 people with the status of farmers and herdsmen, accounting for 14 %, about half of the migrant workers; thirdly, there are 69 business people affected by population migration and local tourism development, accounting for 8% of the total, which is related to economic strength and the number of cars owned. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 216 published by scholink inc. 3.1.2 the overall distribution is dominated by localized crimes, and the occurrence of dangerous driving crimes is positively correlated with the proportion of local population according to the sample analysis, in addition to the six regions and one city in the plateau area, the distribution area of the people involved also involves more than 20 provinces such as sichuan, gansu and qinghai (sun, y., 2023, pp. 77-81). in the plateau area, lhasa and shannan are the most, followed by 136 in sichuan, while the total number of linzhi, naqu and changdu is less than half of lhasa. there is only one case of dangerous driving crime in ali area with an average population density of less than 0.2 people per square kilometer. through the data, it can be seen that the crime rate of “drunk driving type” dangerous driving crime, whether in the plateau area or outside the area, is positively correlated with the proportion of population in the area. 3.1.3 the defendant’s cultural level is generally low, and the level of cultural level is proportional to the degree of familiarity with the law and the awareness of active compliance with the law according to the relevant provisions of the “education law of the people’s republic of china” and the current situation of plateau teaching, the author sets up six types of cultural level types for the defendant. through analysis and induction, the following results are obtained: the cultural level of junior high school occupies a high position, accounting for 23%; the second is the level of primary school culture, accounting for 21%; the lowest proportion is undergraduate and above education level, only 3%. through data analysis, it can be seen that the cultural level of the people involved in the crime of drunken dangerous driving is generally low. the cultural level of junior high school and below is as high as 61%, and the level of primary school and below is 36%. in addition, according to the analysis of tibetan (including lhoba) the defendant’s cultural level is low, there are some people are illiterate, far lower than the overall cultural level evaluation ratio, this side shows that the level of education in the plateau area and the country’s 9 years of compulsory education requirements there is still a certain gap, but also the overall reflection of the plateau area “drunken” dangerous driving crime defendant’s cultural level is too low objective facts. american scholar blake once pointed out: “the change of law is proportional to culture.” it can be seen that the level of cultural level is directly proportional to the degree of familiarity with the law and the awareness of active compliance with the law. 3.2 analysis of the characteristics of objective factors 3.2.1 the proportion of cars in “drunk” dangerous driving is the highest through the data analysis of effective samples, it is not difficult to find that the motor vehicle type of “drunken” dangerous driving crime is mainly automobile. in addition to 8 three-wheeled motorcycles, 2 180-type tractors, 5 electric vehicles, 27 motorcycles, 1 walking tractor, 1 small disc tractor, the remaining 840 cases are cars, accounting for 95.02% of the cases of “drunken” dangerous driving crimes. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 217 published by scholink inc. 3.2.2 the alcohol concentration in the blood of the people involved is generally high according to the provisions of article 4 of the supreme people’s court, the supreme people’s procuratorate, the ministry of public security and the ministry of justice on the issuance of the “opinions of the supreme people’s court, the supreme people’s procuratorate, the ministry of public security and the ministry of justice on handling criminal cases of drunk dangerous driving” in 2023: “if a motor vehicle is driven on the road and the breath alcohol content is detected to show that the blood alcohol content reaches 80 mg/100 ml or more, the public security organ shall decide whether to file a case in accordance with the provisions of the criminal procedure law and this opinion.” according to the “opinion”, by comparing the blood alcohol content of the defendant in the data, the lowest alcohol content is 80.38mg/100ml, and the highest is 412.61mg/100ml. among them, there are 453 people with more than 200mg/100ml, accounting for up to 51.2%, which indicates that most of the criminal suspects have high alcohol content. on the whole, the alcohol content is positively correlated with the crime rate, and drunk drivers are still in a state of ignorance or even ignorance of “drunkenness”. 3.2.3 statistics of the application of sentencing combined with the analysis of sample data, it is found that in 884 valid data, the probation rate for drunken dangerous driving crime is as high as 81.45%. in addition, among the 844 valid data, only 1 case was exempt from criminal punishment, 7 cases were converted from dangerous driving crimes into other crimes and sentenced to fixed-term imprisonment, and the rest were criminal detention. through data analysis, the prison term of the crime of drunken dangerous driving in the plateau area is mainly low-penalty punishment, of which 2, 3 and 4 months are the most punished, accounting for 23.87%, 25.23% and 22.85% of the effective data respectively. these three prison terms account for 72% of the total sample size. when dealing with the crime of drunken dangerous driving in the plateau autonomous region, whether it is the sentencing opinion or the final trial result, the mainstream trend is to incriminate. in the process of sentencing, for cases with significantly minor circumstances and little harm, the vast majority of courts will not exempt them from criminal punishment, but adopt a median approach to their punishment. the high application rate of probation also highlights the very low threshold of dangerous driving crime in conviction and conviction, and the overall sentencing is relatively loose. 4. empirical conclusions of dangerous driving in plateau area although it has been more than ten years since the introduction of the “criminal law amendment (8)”, according to the results of statistics and analysis in six regions and one city in the plateau area, the crime rate of dangerous driving crime is still rising, and “drunk driving into the penalty” has not played a very good improvement effect on society. at the same time, after analyzing the above data, it is found that the increase of drunken dangerous driving crime year by year is not directly related to the local economic development. although the overall trend of dangerous driving crime is on the rise from 2015 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 218 published by scholink inc. to 2024, there are cases in six regions and one city in the plateau area. next, the author will take the characteristics of the dangerous driving crime case in the plateau area as the starting point, and analyze the reasons behind it by summarizing the characteristics of the case to confirm the author’s conclusion. 5. analysis of the characteristics and causes of dangerous driving crime cases in plateau area 5.1 strict conviction and light sentencing through the analysis of the previous data, it can be found that among the 884 valid sample data, only one case was exempted from criminal punishment, and the remaining 883 cases were criminalized. it can be seen that although china’s criminal law stipulates the standard of conviction for the crime of dangerous driving, it also stipulates the circumstances of innocence of “significant minor harm”. however, the vast majority of courts in the plateau region have adopted a more conservative and prudent attitude in dealing with the case of dangerous driving crime (fan, h. x., & wan, l., 2019, pp. 86-90). this makes “loose conviction and light sentencing” the most significant feature of the ruling of dangerous driving crime cases in the region. the author analyzes that there may be the following reasons for this feature. in judicial practice, cases suspected of the crime of dangerous driving are usually investigated by the public security organs first, then prosecuted by the procuratorial organs, and finally tried and sentenced by the courts. in the face of the evidence submitted by the public security organs and the sentencing opinions of the procuratorial organs, the courts are often more inclined to crack down on crimes in the trial and sentencing. in the actual sentencing process, they also rely on the sentencing opinions of the procuratorial organs to a large extent, which leads to the court’s conviction and conviction. at the same time, it also reduces its authority and independence. at the same time, because dangerous driving itself is a simple type of light crime, the trial time is short, so that the judge is more inclined to “sentence” (hou, d. y., & chen, l. c., 2023, pp. 16-20). 5.2 light punishment is obvious through the comparative analysis of the effective sample data, it can be seen that in 884 valid judgments, the application rate of probation is as high as 81.45%. at the same time, in the sentence of detention, the rate of 2, 3 and 4 months is 72% of the total sentence. this shows that the overall sentencing of dangerous driving crimes in the plateau is a trend of light punishment, and the application rate of probation is also increasing with the growth of the year. the author believes that the overall trend of light punishment of the crime of dangerous driving is inseparable from the fact that the crime itself is a misdemeanor. as a new crime stipulated in the “criminal law amendment (8)” in 2011, it has received extensive attention from the society since its implementation. the main purpose of the crime of dangerous driving included in the criminal law evaluation system is to prevent and prevent the public from drunk driving (zheng, a. q., 2024, pp. 23-45). therefore, in the case of drunken dangerous driving, the court usually takes this factor into account, and adopts the form of light imprisonment + probation in sentencing. this sentencing www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 219 published by scholink inc. consideration is more to make the subject involved repent in time and achieve the social effect of punishment. 5.3 the application rate of acquittal is extremely low during the decade from 2015 to 2024, only one case of dangerous driving in six regions and one city in the plateau area was exempt from criminal punishment, while other cases similar to the case and circumstances were not acquitted. this reflects that the plateau area has a long way to go for the acquittal of “significant minor harm” (li, r. y., 2024, pp. 60-71). in judicial practice, the understanding and grasp of the provisions of “minor harm is not significant” are different in local courts (xi, x. w., 2017, pp. 31-32). even the understanding and application of this provision in different local courts in the same area are also different, resulting in a case may be sentenced to detention in district a court, while in district b court may be found to be minor harm is not significant and acquitted. so far, there is still a certain lack of provisions on the innocence of the crime of dangerous driving in the plateau area, which leads to the fact that the grass-roots courts have no basis for reference in the innocence of this crime, resulting in the innocence of the crime of dangerous driving (huang, l. h., 2023, pp. 71-74). 6. empirical suggestions on the crime of “drunk” dangerous driving in plateau area through the comparison and analysis of the data in the previous parts, the author puts forward relevant problems and thoughts, and hopes to put forward suggestions through the following three aspects, in order to improve the high crime rate of dangerous driving crime and achieve the social effect of the introduction of the “criminal law amendment (8)”. first of all, the trial principle of dangerous driving crime in our court is still “easy to incriminate and light sentencing”. china’s judicial organs should not only abide by the principle of legality, but also abide by the principle of adaptation of crime, responsibility and punishment, adhere to the unity of subjective and objective, and fully consider the harmfulness of the behavior of the parties to dangerous driving and the circumstances of the crime. it is necessary to crack down on the subject of crime with bad circumstances and great social harm, and to carefully incriminate the subject with significant minor harm and little harm, and to identify and deal with the acquittal in time if it conforms to the “proviso”. at the same time, the multi-level distinction of drunk driving behavior should be made to avoid all drunk driving behaviors being included in the evaluation system of criminal law, so as to reduce the waste of judicial resources and improve the efficiency of judicial organs in handling cases. secondly, for the judicial status quo that the plateau area generally adopts light punishment and high probation application rate, the author believes that it is necessary to start with the circumstances of the case and the guilty attitude and harm degree of the criminal subject, and apply light punishment and probation to cases with good attitude and no specific harm results; for the behavior subject with bad circumstances or who has been legally punished for dangerous driving, the punishment should be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 220 published by scholink inc. aggravated and probation is no longer applicable. through this move, the cases of different circumstances are distinguished, and no longer a simple one-size-fits-all, for the vast majority of cases, the application of light imprisonment + probation is adopted. finally, since china has not yet formed a unified standard for the determination of the innocence of the crime of dangerous driving, the plateau region has not made relevant judicial guidance on the innocence of the crime, resulting in a very low application rate of the innocence of the crime of dangerous driving in the plateau region. according to the principle of modesty of criminal law, the plateau region should be based on the needs of judicial practice and regional considerations, the relevant legal guidance on the innocence of the crime of dangerous driving, combined with various considerations, the construction of dangerous driving in the plateau region the standard of innocence. at the same time, by making an acquittal determination of the subject involved that meets the requirements, it can also reduce the collateral consequences of the penalty, reduce the negative social consequences caused by the crime of dangerous driving, enhance the public’s sense of identity, and reduce the resistance and difficulty of the criminals who commit the crime of dangerous driving returning to society. 7. conclusion in addition to the above three suggestions, the author believes that in order to truly achieve the social effect that the dangerous driving crime legislation wanted to achieve at the beginning, it also needs the joint efforts of the whole society and the assistance of the moral level. the purpose of criminal law is not to punish, but to make every citizen perform their duties under the regulation of law and protect their own legitimate rights and interests. the author believes that with the joint efforts of all sectors of society, the crime rate of dangerous driving crime will be lower and lower, until it disappears in the long history. acknowledgments this paper was supported by the “high-level talent training program” of tibet university. project number: 2025-gsp-s179 instructor: yang yingchun. references fan, h. x., & wan, l. (2019). empirical study on the basic characteristics of dangerous driving crime and the influencing factors of sentencing-based on the analysis of 700 judgment documents of first instance of drunk dangerous driving cases. medical and legal sciences, 11(02), 86-90. fu, y. m. (2023). the judicial restriction on the crime of drunken dangerous driving. east china university of political science and law. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 221 published by scholink inc. hou, d. y., & chen, l. c. (2023). study on the influencing factors of conviction and sentencing of drunken dangerous driving crime judged by the degree of danger. journal of wuhan metallurgical management cadre college, 33(04), 16-20. huang, l. h. (2023). the dilemma and path optimization of judicial application of drunken dangerous driving crime. china price regulation and antitrust, 2023(08), 71-74. li, r. s. (2023). review of the judicial application effect of misdemeanor governance and dilemma relief-taking dangerous driving cases as the entry point. journal of nanning normal university (philosophy and social sciences edition), 44(04), 75-86. li, r. y. (2024). crime and governance of drunk dangerous driving. china applied law, 2024(03), 60-71. liu, d. f., & chen, m. f. (2021). on the decriminalization path of drunken dangerous driving crime. journal of north china university of water resources and electric power (social science edition), 37(06), 96-98. research on the judicial determination of the crime of “drunken” dangerous driving. (2024). guizhou university for nationalities. sun, y. (2023). legal adaptability dilemma and outlet of dangerous driving behavior. journal of shaanxi administrative college, 37(04), 77-81. tian, x. (2023). empirical study on the sentencing of drunk dangerous driving crime in hebei province. hebei law, 41(06), 176-200. xi, x. w. (2017). analysis of the causes and countermeasures of the high incidence of drunken dangerous driving crime. times automobile, 2017(16), 31-32. yin, s. f. (2023). research on the related issues of drunken dangerous driving crime in the era of misdemeanor. journal of wuhan metallurgical management cadre college, 33(02), 32-36, 41. zheng, a. q. (2024). observation and reflection on the dynamic research on the legal effectiveness of the crime of drunk driving dangerous driving. huxiang law review, 4(03), 23-45. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 42 original paper unilateral activities in disputed maritime areas and meaningful responses luo xiangjin 1 1 college of marine living resource science and management, shanghai ocean university, shanghai, china received: may 1, 2024 accepted: may 17, 2024 online published: may 17, 2024 doi:10.22158/elp.v7n1p42 url: http://dx.doi.org/10.22158/elp.v7n1p42 abstract unilateral activities conducted in a disputed maritime area pending maritime delimitation are considered to be a violation of the pre-delimitation obligations imposed by article 74/83(3) of the 1982 united nations convention on the law of the sea, which may trigger state responsibility. the obligations contained are negotiation in good faith and self-restraint. however, this is not a prohibition of all activities in disputed maritime areas. through a study of the relevant case law of the international courts and tribunals, this article finds leniency towards unilateral activities in disputed maritime areas, i.e., some exceptions are permitted. in the south china sea, reaching a final delimitation agreement can be a difficult and long-term task due to competing interests and the numerous countries involved. facing unilateral activities undertaken in such an area, the appropriate and meaningful responses are significant to safeguard maritime rights and interests. keywords united nations convention on the law of the sea, pre-delimitation obligations, unilateral activities, disputed maritime areas in the south china sea 1. introduction it is noteworthy that just under half of current international maritime boundary delimitation issues have been fully resolved. due to differences in the size of the maritime area and the type of resources within, resolving the issue of disputed maritime areas can be quite challenging. unilateral activities refer to unauthorized resource exploration and exploitation or other activities in disputed maritime areas without the consent of the other parties until the delineation of disputed maritime areas. under the 1982 un law of the sea convention (losc or the convention) and the law of international responsibility, the unilateral activities of the parties in disputed maritime areas are considered wrongful. according to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 43 published by scholink inc. relevant case law, international courts and tribunals do not completely prohibit development activities in disputed maritime areas. this article aims to define the permissible unilateral activities in disputed maritime areas in light of international judicial precedents, taking into account the pre-delimitation obligations. this work also discusses actions that can be taken in response to unilateral activities by other states in disputed maritime areas, given the wrongfulness of such activities. then this work presents strategies and measures to address the challenges faced by china in disputed maritime areas in the south china sea due to the unilateral activities of other countries. 2. the international legal regime governing unilateral activities there is no specific provision in international law on unilateral activities by the parties in disputed maritime areas before maritime delimitation, the basis in international law can be traced back to the pre-delimitation obligations of states parties to losc. 2.1 article 74/83(3) of losc article 74(3) of part v, and article 83(3) of part vi of losc (hereinafter referred to collectively as article 74/83(3) of the convention, for reasons of commonality) provide that: “pending agreement as provided for in paragraph 1, the states concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. such arrangements shall be without prejudice to the final delimitation”. this provision regulates the international obligations of the parties before maritime delimitation and is usually considered as two obligations of a different legal nature. the first is the obligation to reach “provisional arrangements of a practical nature” with “every effort”, while the second is the obligation “not to jeopardize or hamper the reaching of the final agreement”. 2.1.1 obligation to “make every effort” to enter into “provisional arrangements of a practical nature” the phrase “to make every effort” actually means that the parties should assume an obligation to “negotiate in good faith”/“pactum de negotiando”. that is, the parties should negotiate a future maritime delimitation treaty or agreement, which is mandatory and not a voluntary choice of the parties, and the violation of which is a breach of international law and may give rise to international responsibility. in the specific negotiation process, to “make every effort” requires that the parties not unreasonably or unnecessarily delay the negotiation or fail to negotiate by the agreed procedure and that the negotiation be conducted to reach an agreement so that the negotiation does not become a mere formality and is not meaningless. it is necessary for the parties to exchange information, or at least to propose an exchange of views, in the course of the negotiations. however, the obligation to negotiate does not mean that the parties have to reach an agreement; by its nature, it is a “process-oriented” obligation of conduct. it has been argued that the good faith attitude “to make every effort” can be demonstrated in negotiations by compromises and concessions of certain claims and interests, and is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 44 published by scholink inc. not confined to direct exchanges of legal opinions or confrontations between the parties (ye, 2016, pp. 99-109; ye, 2021, pp. 127-139). about the specific method of negotiation, the international judicial practice requires only that it be reconcilable and that the specific content of the negotiation be left to the discretion of the parties to the dispute. “interim arrangements of a practical nature” comprises two concepts, “practicality” and “interim arrangements”. “practicality”, i.e., operability, requires that the interim arrangement reached should function as it should, in other words, to regulate the activities of the parties or contracting parties to the agreement in disputed maritime areas. some scholars have further explained that operability means that the agreement reached has substantive content, is worded, specifies the rights and obligations of the parties, has a concrete implementation program, and is not confined to some provisions of principle or a repetition of general international regulation, or is merely a symbolic declaration (ye & zhang, 2014, pp. 19-27). otherwise, it is difficult to say that it has achieved “practicality”. the term “provisional arrangements” refers to transitional arrangements agreed upon by the states concerned before the delimitation of maritime boundaries for the joint development of the disputed area, or for some level of cooperation or freezing of the relevant activities for a certain period. interim arrangements are transitional in nature, and their application is theoretically limited to the period before maritime delimitation or during the lifetime of the disputed area, i.e., from the time when several states make simultaneous claims to a particular maritime area or zone to the time when the final line is drawn. 2.1.2 obligation “not to jeopardize or hamper the reaching of the final agreement” “not to jeopardize or hamper the reaching of the final agreement” means, in effect, that the parties to a dispute must not aggravate the dispute or impede its settlement, and is also known as the obligation of mutual restraint. the obligation of mutual restraint does not prohibit any activities in the disputed maritime areas, and the suspension of economic activities in the disputed maritime areas should be avoided from the point of view of dispute settlement and economic development, as long as they do not prejudice the conclusion of a final delimitation agreement. exclusive economic zones and continental shelves are created for resource development expected that the maritime delimitation dispute will be resolved in the short term. considering the economic development factor, a complete moratorium on all activities in the disputed maritime areas may not be reasonable and could worsen the current state of the dispute. the arrangement of mutual obligations of restraint reflects the objectives that the convention is intended to achieve, namely, equitable and efficient use of the resources of the oceans and seas, the strengthening of peaceful and friendly relations among states, and the peaceful settlement of disputes. this requires the parties to balance the need for economic development with the obligation of restraint concerning unilateral exploitation in the disputed area. the duty of mutual restraint is an obligation of conduct, whereby states must act “in a spirit of understanding and cooperation” before delimitation. at the same time, it is a “result-oriented concept”, which hinges on whether the conduct in question has the effect of jeopardizing or hampering the conclusion of a final agreement. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 45 published by scholink inc. regarding the scope of application of the obligation of mutual restraint, both temporal and spatial aspects are noteworthy. about the temporal scope of its application, the convention only limits it to “during the transitional period”, without specifying the beginning and the end of the transitional period. the beginning of the period of application is clearly when a delimitation dispute arises or is likely to arise. regarding the cessation of the obligation of mutual restraint, the view that the obligation of mutual restraint exists only in the absence of provisional arrangements before delimitation or in areas not covered by provisional arrangements (zhang, 2018, pp. 18-34; ye, 2021, pp. 127-139). the obligation of mutual restraint not to prejudice or impede applies throughout the transitional period, and in maritime areas where the legal status is yet to be clarified, regardless of the final attribution, prudence and restraint will be exercised as long as no final delimitation agreement has been reached. the spatial scope of the application of this obligation was disputed, with views being expressed that the obligation was limited to disputed maritime areas with overlapping claims (vasco, 2014). it has also been argued that since delimitation can only be determined by taking into account the claims of the parties and the relevant circumstances, and since the unitary and fluid nature of the sea makes it possible for unilateral acts, such as the exploitation of transboundary resources, carried out in the proximity of the disputed area to result in prejudice to the interests of the other party, the obligation should apply to the entire undelimited sea area. however, this theory remains at the theoretical level only and has no practical reality. the scope and definition of disputed maritime areas are unclear, both because of the difficulty of identifying regional territorial sovereignty disputes (e.g., islands) and because of differences in the claims of the parties. in practice, the obligation may be breached even in respect of acts occurring outside the disputed or undelimited maritime areas. it may not be necessary to define the spatial extent of the obligation of mutual restraint, but rather to focus on the extent to which unilateral acts of exploitation jeopardize or impede the conclusion of an eventual agreement. under this theory, the risk of a breach of the obligation of restraint would be much greater for unilateral acts of exploitation in disputed maritime areas than for exploitation in undisputed maritime areas. 2.2 other provisions of losc and the principle of good faith other provisions of losc also reflect its object and purpose by imposing general obligations on the conduct of the parties in the disputed area. this means, for example, that an equitable outcome of maritime delimitation is the overriding objective, as provided for in article 74/83(1) of the convention. however, the content of this criterion for achieving an equitable result is not further specified and is left to the interpretation of the international court of justice and the states themselves. the principle of equity binds the parties to “negotiate in good faith” on issues relating to maritime delimitation, which implies that the parties, in negotiating their respective claims, should be based on international law and be reasonably proportional and that the allocation of rights and resources should be subject to a certain degree of arm’s length dealing. article 123 of the convention requires the parties to fulfill their obligation to cooperate, including in the field of exploitation and use of the disputed maritime areas. the obligation of due regard in the convention as a whole is reflected in articles 56, 58, 60, 77, 80, 81, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 46 published by scholink inc. and 246 of the convention, which provide potential legal rules for the conduct of the parties for exploitation in disputed areas. in international judicial practice, the minimum level of this duty of due regard consists of at least some consultation with other states claiming rights. the general principle of good faith is reflected in the good faith and prohibition of abuse of rights set out in article 300 of the convention. the principle of “good faith” is a long-established principle in international law and the basic principle governing the exercise of rights and the fulfillment of legal obligations. coastal states have, in principle, sovereign rights and jurisdiction in disputed maritime areas, but before maritime delimitation, their claimed rights are in a state of uncertainty, and the principle of good faith restricts how states can exercise their sovereignty or jurisdiction. the principle of good faith requires that the parties should not exercise their rights in a manner that is detrimental or intended to be detrimental to the rights of others or intended to exacerbate tensions and that they should actively engage in effective negotiations to promote the peaceful settlement of disputes, i.e., engage in good faith and cooperate. in other words, there is a need to show reasonable regard for the rights of other states. essentially, good faith is a limitation on state sovereignty that is necessary to protect other states and their trust and reliance on international law (steven, 2013, pp. 40-63). the “good faith” and “bad faith” of a state party to a disputed maritime area can be screened in three ways: first, whether the state in question is convinced that it has sovereign rights in the area in question; second, whether it knew or should have known of the existence of claims by other coastal states to the area in question; and third, whether, even if it was aware of the existence of a dispute in a particular area, the state in question was aware of the existence of such claims (sean, 2020). 2.3 the law of international responsibility an internationally wrongful act of a state in breach of an international obligation of that state entails the international responsibility of that state. unilateral acts of exploitation are unlawful in two respects: first, because their unilateral nature violates the obligation to negotiate in good faith and the obligation to cooperate; and secondly, because the object of their activities, i.e., the resources of the disputed area, is affected in a way that may be injurious to the rights of the other parties, in violation of the obligation of mutual restraint and due regard. it is worth noting that the infringement of the sovereignty of the other parties concerned is not relevant to the triggering of international responsibility in the disputed area, and that infringement of sovereignty is not a prerequisite for the determination of a breach of article 74/83, paragraph 3, of the convention, which imposes on states the obligation to refrain from carrying out activities in the undelimited area that could jeopardize or impede the conclusion of a final agreement (nicholas, 2019, pp. 345-368). the diversity of legal interests in the disputed area, such as the sovereign rights of the other parties, the marine environment, and the sustainability of living marine resources, also makes unilateral acts of exploitation need to be viewed with caution and rigor. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 47 published by scholink inc. 3. international judicial practice concerning unilateral activities in the international judicial practice on unilateral exploitation, international courts or tribunals have further interpreted the two obligations to be complied with before the delimitation of maritime boundaries and have laid down more specific requirements, thus gradually clarifying the limits of the illegality of acts of unilateral exploitation. 3.1 aegean sea continental shelf cases in the aegean continental shelf cases, greece requested the court to order turkey to refrain from carrying out exploration activities in the disputed maritime areas. the court ultimately refused to order provisional measures, stating that turkey’s actions did not pose a risk of irreparable damage to the rights claimed by greece for the following reasons: such seismic exploration, carried out through sound waves generated by explosions, did not involve any risk of physical damage to the seabed; the activities in question did not involve the establishment of installations and were of a temporary nature; and it had not been demonstrated that turkey had commenced any action involving the physical possession or other use of the natural resources of the disputed area of the continental shelf. the court held that an important criterion for determining whether hydrocarbon activities in undelimited maritime areas are sufficiently prejudicial to the rights of another state to justify the adoption of provisional measures is whether they cause irreparable damage to the geological structure of the seabed and subsoil. in this case, the court distinguished between unilateral exploitation activities based on actual changes in the marine environment. the court differentiated between “temporary” and “permanent” acts of exploration carried out by the parties. according to international law, exploration activities that could cause permanent physical damage to the seabed, subsoil, and natural resources, such as establishing installations on the continental shelf or physically encroaching on its resources, are considered “permanent” exploration and should be prohibited. this is to prevent irreparable damage to the resources of the continental shelf. in this case, the court did not make any negative assessment of turkey’s unilateral exploration activities, nor did it call for the cessation of such behavior. the court considered that the seismic exploration activities carried out by both parties in the disputed maritime areas, which were temporary in nature, did not violate international law, but rather expressed the sovereign rights of the coastal state over the continental shelf. another key point is that the court referred to the exclusive competence of a state regarding access to information on natural resources in the continental shelf area. however, appropriate means could compensate for this and prevent irreparable harm to the relevant rights. 3.2 guyana/suriname case the case concerning guyana and suriname was the first to address article 74/83(3) of the convention. the arbitral tribunal examined exploration and exploitation activities in undelimited maritime areas. the tribunal interpreted article 74/83(3) of the convention and held that these provisions reflect the need to avoid a moratorium on economic development in the disputed area. mutual restraint does not imply a complete prohibition of all activities in the disputed area. the convention permits two types of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 48 published by scholink inc. activities in the disputed area: activities carried out by the parties according to provisional arrangements of a practical nature, and unilateral acts that do not jeopardize or impede the achievement of an agreement on the final maritime boundary. the arbitral tribunal acknowledged the difference between actions that result in permanent physical alterations, such as drilling operations, and those that do not, such as seismic surveys. based on this reasoning, the tribunal concluded that activities that do not cause irreversible physical changes should be permitted and not prevent the final agreement from being reached. however, unilaterally carried out drilling is considered unlawful as it may jeopardize the reaching of the final agreement. “… activities that would justify the use of an exceptional power due to their potential to cause irreparable prejudice, would easily meet the lower threshold of hampering or jeopardizing the reaching of a final agreement… the risk of physical damage to the seabed or subsoil, therefore appropriately guide this tribunal’s analysis of an alleged violation of a party’s obligations under articles 74(3) and 83(3) of the convention”. at the same time, the tribunal noted that “… international courts and tribunals should also be careful not to stifle the parties’ ability to pursue economic development in a disputed area during a boundary dispute, as the resolution of such disputes will typically be a time-consuming process”. 3.3 ghana/côte d’ivoire case this case examines the obligation in article 74/83(3) of the convention again follows the guyana/suriname case, and focuses on whether unilateral hydrocarbon exploitation in the disputed area gives rise to international responsibility. the chamber did not require ghana to cease its ongoing unilateral oil exploitation in the disputed maritime area. instead, it only required ghana to refrain from engaging in new drilling activities, unless such activities would cause irreparable prejudice to the rights of côte d’ivoire. the decision was based on the fact that the unilateral act of exploitation would cause serious harm to the marine environment. the judgment in the ghana/côte d’ivoire case differs from that in the guyana/suriname case. the tribunal noted that the delimitation judgment was constitutive, determining the attribution of the disputed maritime area and that unilateral acts committed before the delimitation and claimed based on good faith were lawful. however, the tribunal introduced the concept of “knew or ought to have known” about the obligation of “good faith” on the part of the parties. this means that the drilling activities were being carried out in a field adjacent to the license block of the other party, and in what the other party perceived to be the disputed waters (zhang, 2018, pp. 18-34). this case illustrates that international judicial bodies recognize unilateral exploitation by a disputing state in disputed waters, without further defining the criteria to be applied. the special chamber ultimately found that ghana’s unilateral mining activities did not violate the obligation of self-restraint. this was because ghana had complied with the order for provisional measures by suspending its activities in the disputed maritime area. additionally, ghana had conducted its activities only in the maritime area that was ultimately attributed to it. the judgment emphasized that the breach of obligation occurred in the maritime areas claimed by the parties, rather than in the disputed maritime areas. it focused on the suspension of activities in the disputed area, rather than on factors such as the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 49 published by scholink inc. nature of the activities carried out. the tribunal interpreted two obligations under the convention. regarding the obligation of the parties to “negotiate in good faith”, the tribunal held that the uncompromising position of the parties in the negotiations and the initial closure of the judicial settlement route did not violate that obligation. the assessment of whether the parties fulfilled their obligation to negotiate in good faith should only be made if there is an indication by the other party that negotiations are necessary due to a provisional arrangement. additionally, the relationship between the two states should take into account the other state’s tolerance of unilateral acts of exploitation. regarding the obligation of “non-harm and non-obstruction”, the tribunal concluded that ghana had fulfilled its obligation by discontinuing its exploitation. however, it is unclear how this fact led to the determination that there was no breach of the obligation in article 74/83(3) of the convention. the special chamber did not make a substantive decision on the obligation to exercise self-restraint throughout the disputed maritime area. it is important to note that any action or abstention by either party to avoid the aggravation or extension of the dispute shall not be construed as a renunciation of any of its claims or as recognition of the claims of the other party to the dispute. 3.4 commentary the case of guyana/suriname serves as an example of the test for physical changes in the marine environment. however, the idea that unilateral development activities that do not cause physical changes are generally permissible did not receive support in the subsequent discussion of the issue. this is also true for access to and use of information on resources in undelimited areas that may cause irreversible damage (stephen, 2008, pp. 119-128). considering the context of the relations between the concerned states, a flexible approach may be necessary to establish criteria based on the nature of the activities in question (david & youri, 2014). for instance, the ghana/côte d’ivoire case referred to the suspension of existing exploitation activities. the judgment emphasizes the duty of self-restraint, which obliges parties to make every effort not to jeopardize or impede the reaching of a final agreement in a spirit of understanding and cooperation. this understanding of the duty of self-restraint implies that the criteria for classification may be limited depending on the nature of the activity in question. in the ghana côte d’ivoire case, the chamber distinguished its position from its previous cases. in general, a violation of article 74/83(3) of the convention does not depend on whether the activities are carried out in the maritime area of a state or violate its sovereign rights. it is sufficient to prove a breach of an obligation if the activities are carried out in an undelimited or disputed maritime area if the state is aware of the claims made in good faith by one or more states, and if the activities may jeopardize or impede the conclusion of a definitive agreement. a breach of obligation is enough to demonstrate that the activity may be illegal, even if it occurs within the state’s territory (nicholas, 2019, pp. 345-368). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 50 published by scholink inc. the ghana/côte d’ivoire case conflicts with the previously established notion that a state has sovereign rights over its exclusive economic zone and continental shelf. this case uses the doctrine of constituent elements of delimitation. according to the philosophy of that case, the parties’ exclusive rights were uncertain before the delimitation. the delimitation agreement or judgment made their exclusive rights certain. the chamber’s assessment in the substantive decision focused solely on whether ghana’s suspension of activities in the disputed maritime area breached the obligation of restraint. the nature of the impact of ghana’s unilateral act of hydrocarbon exploitation was not examined. it is important to consider the outcome of the delimitation, as it determines the lawfulness of the act. the lawfulness of unilateral oil exploitation activities does not depend on their impact on the delimitation of the disputed area, but rather on the allocation of waters between the parties after the delimitation. it is unclear how the fact of suspension justifies a finding that there has been no breach of the obligation of restraint, despite taking into account the particular context of the dispute between the parties. this may have set a precedent for ex post facto sanctions against unilateral oil and gas drilling activities. it has been observed that unilateral hydrocarbon development activities in the disputed area may create the risk of obtaining “fait accompli” (xu, 2018, pp. 67-79). this case appears to encourage more unilateral behavior by coastal states regarding areas with seabed resources. this may lead to claimant states in the disputed area increasing resource development and production within the disputed area, which is undoubtedly a negative signal. it can be seen that, in international judicial practice, the attitude towards the prohibition of unilateral acts of exploitation has gradually become more conservative, with a greater tendency to protect the established state of rights of the parties and maintain the status quo. there are two main types of criteria for defining the wrongfulness of unilateral acts of exploitation. one is the criterion of permanent physical impact on the marine environment. secondly, the criterion of attribution of the maritime area claimed by the parties to the disputed area, where the disputed area in which the unilateral development activity of a party is taking place has subsequently been adjudicated to be allocated to the parties, the court is more likely to be inclined to find that the unilateral activity is not in breach of the obligation of restraint. however, the cases relating to the duty of self-restraint decided by these international courts and tribunals do not provide clear criteria as to the scope of the duty, and the overall lack of clarity as to the boundaries of the violation of the unilateral act of exploitation creates uncertainty in state practice. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 51 published by scholink inc. 4. permitted unilateral acts in disputed maritime areas: further definition of exceptions the exploitation and utilization of marine resources by coastal states do not necessarily require the establishment of maritime boundaries. the convention aims to resolve conflicts between parties regarding maritime delimitation, promote fair and effective use of disputed area resources, and provide parties with time to re-evaluate their positions, thus establishing a basis for future delimitation negotiations. it can be concluded from the above theories and cases that there are various criteria for allowing exceptions or restrictions on unilateral acts of exploitation in disputed areas. the permanent/temporary criterion of the nature of the act, the distinction between permanent and temporary exploitation is based on the nature of the act and its potential impact on the environment. as defined in the cases cited above, exploitation activities that cause permanent physical damage to the seabed, the subsoil, and its natural resources, such as the establishment of installations or other highly controversial developments, are likely to cause irreversible adverse effects on the marine environment, are considered “permanent” developments and should be prohibited. unilateral acts of exploitation of a temporary nature, which do not cause irreparable or irreversible harm to the rights and marine resources of other coastal states, may be permissible, taking into account the economic development needs of the states concerned. under this criterion, the most serious impacts are caused by unilateral acts of oil and gas drilling. seismic surveys also pose a risk of breaching pre-delimitation obligations due to the resource information they acquire and the potential acoustic impacts. specific activities are permitted in undermarketed maritime areas, including naval patrols, search and rescue operations, regulation and supervision of archaeological excavations of underwater cultural heritage, regulation and monitoring of marine scientific research, control of navigation, and pollution control activities (nicholas, 2019, pp. 345-368). while these activities do not rationalize claims, they indicate the special interest that a coastal state may have in a particular undelimited area, i.e., the state’s “primary interest that may play a role in future delimitations” (malcolm, 1989). therefore, in the disputed area, the risk of such activities breaching pre-delimitation obligations is low and may be considered permissible. the delimitation outcome criterion presumes good faith when the area of unilateral exploitation is on the side of the median line/equidistance line adjacent to the state’s coast. in previous jurisprudence on maritime delimitation disputes, international judicial bodies have established a three-stage approach to delimitation. firstly, a provisional median line/equidistance line is established as the demarcation line. secondly, the provisional boundary is adjusted if there are relevant circumstances that require such adjustment. finally, a proportionality test is conducted between the area delimited by the demarcation line and the corresponding length of the coastline. if the legality of a state’s unilateral conduct in the disputed maritime area is to be determined by the result of the delimitation rather than by the nature of the conduct, according to the “constitutive theory of delimitation”, then unilateral development in the maritime area on the side of the median line/equidistance line adjacent to one’s coastline, regardless of the result of the delimitation, would be a form of restraint and limitation, pending the resolution of the dispute concerning the delimitation of the disputed maritime area. however, in such cases, the state www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 52 published by scholink inc. needs to exercise restraint. however, in cases of disputed maritime areas, states should exercise caution due to the high degree of uncertainty regarding the location of the boundary and the difficulty in determining the extent of the disputed areas. this is particularly relevant in the south china sea, where unilateral exploitation is often accompanied by acts of grabbing or encroachment by neighboring states, increasing the risk of potential allocation of maritime areas to another state at a later stage. in the ghana/côte d’ivoire case, judge jin-hyun paik proposed a method of assessment that considers relevant factors within the framework of the relationship between the two states. it is not possible to determine whether a state’s conduct violates the obligation “not to endanger or impede the conclusion of a final agreement” in a general and abstract manner. when assessing a state’s breach of the obligation of restraint, it is necessary to consider relevant factors such as the type, nature, place, time, and manner of the act. this determination should be made within the framework of the relations between the concerned states. it is important to note that there is no simple criterion that can be applied to all situations. 5. potential countermeasures to unilateral activities 5.1 countermeasures potential countermeasures that can be taken in response to unilateral development behavior by a coastal state in a disputed maritime area. countermeasures have an exemplary effect, but they cannot be regarded as a punishment or reprisal in themselves. instead, they serve as an inducement for the responsible state to comply with its obligations. this substantive limitation determines the essentially temporary nature of countermeasures, which are limited to the suspension of the fulfillment of certain international obligations towards the responsible state. countermeasures must be provisional, targeted, and proportional to be justified. countermeasures must adhere to the general norm of not violating peremptory norms or fundamental human rights, such as the obligation to prohibit the threat or use of force and the humanitarian obligation to prohibit reprisals, as outlined in the united nations charter. countermeasures require that the responsible state be allowed to negotiate and that channels of communication be maintained between the states concerned. this is a general obligation required by the principle of good faith. 5.2 maritime administrative enforcement it is important to note that a unilateral act of exploitation in a disputed maritime area may acquire legitimacy and become a fact, based on the factual situation and sovereign rights. however, it is crucial to consider that the absence of protest by the other party to the disputed maritime area constitutes acquiescence to the said act. it is therefore necessary to ensure that all parties involved are aware of the situation and have the opportunity to voice their concerns. enforcement may be a necessary response to unilateral acts by other states in disputed areas, especially when there is an urgent need to prevent the violation of sovereign rights or sovereignty. this is done to safeguard the interests of the coastal state after the activity has begun and while it is taking place (sandrine, 2019, pp. 5-26). in this context, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 53 published by scholink inc. parties may increase their enforcement efforts in response to previous unilateral acts of exploitation by other states, such as the expulsion confirmed by the arbitral tribunal in the guyana/suriname case. however, according to international law, administrative law enforcement is permitted in disputed maritime areas. it is important to ensure that law enforcement behavior is reasonable and proportionate, not only within the pre-delimitation obligations of the convention but also subject to the conditions for resorting to force and the extent of the force to be applied, as provided for in the convention and the charter of the united nations. the maritime law enforcement activities carried out by the relevant states may not be considered military action “under the threat of force”. the characterization of law enforcement activities in international judicial practice is based on an objective assessment of the nature of the activity in question. such activities are essentially indistinguishable from, and not mutually exclusive of, law enforcement activities that may be elevated to the level of military activities for various reasons. the international legal nature of law enforcement activities depends on the circumstances of the case. criteria such as the functional objective of the operation, the status of the affected entity, location, and jurisdiction may play a role in determining this. the use of force in the execution of enforcement actions should only be considered as a last resort. 5.3 interim measures interim measures are safeguards for states in legal proceedings to preserve their rights pending the outcome of the case (natalie, 2005). they are used in the united nations charter, the statute of the international court of justice, and losc as a protective measure to prevent the deterioration of a situation. the justification for provisional measures is based on the fundamental legal principle that the court’s judgments should be effective. therefore, when a case is brought before the court, it must prevent either or both parties from disturbing the situation or creating a fait accompli for the adversary (merrills, 1998). provisional measures are issued only if certain conditions are met. the relevant court or tribunal must have prima facie jurisdiction. additionally, the situation must be urgent enough to pose a risk of irreparable harm to the parties’ rights or the marine environment before the final decision. there must be a genuine link between the provisional measure and the right to be preserved. finally, the adoption of the provisional measure to protect the right must be considered reasonable. in maritime delimitation disputes involving unilateral acts of exploitation, provisional measures are adopted based on two substantive criteria: whether there is irreparable harm to the rights of the parties or serious harm to the marine environment (sun, 2019, pp. 193-200). however, states frequently use interim measures as a litigation strategy, which poses a risk of abuse (yao, 2022, pp. 120-136). 5.4 compulsory arbitration procedure when a dispute arises between states parties regarding the interpretation or application of the convention and the parties fail to agree on a solution, the compulsory settlement procedure under part xv of the convention applies. the tribunal in the ghana/côte d’ivoire case observed that the parties did not violate the obligation to negotiate in good faith by initially closing the judicial settlement route, provided that they had made a prior exclusionary declaration based on article 298 of the convention. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 54 published by scholink inc. the issue at hand is whether the compulsory dispute settlement mechanism can be applied after a party has made an exclusionary declaration. specifically, the question is whether unilateral acts of exploitation constitute a breach of pre-delimitation obligations. the main issue concerns the extent of the exclusion being discussed, which is addressed in the interpretation of article 298 of the convention. there is also the possibility that a declaration made under article 298 of the convention may not cover the exclusion of claims related to liability for breaches of pre-demarcation obligations from judicial arbitration proceedings. the analysis of whether article 298, paragraph 1 (a) (1), of the convention deals with delimitation or pre-delimitation obligations must be conducted on a case-by-case basis. articles 74 and 83 not only provide for the actual delimitation of maritime areas but also address issues related to the pre-delimitation transition period. furthermore, considering the purpose of the convention for the peaceful uses of the sea, excluding articles 74/83 under article 298, and interpreting it as a blanket exclusion of paragraph 3, would contradict that purpose. the 2016 compulsory conciliation between timor-leste and australia (decision on jurisdiction) noted that contracting states may exclude disputes concerning the interpretation or application of articles 15, 74, and 83 relating to the delimitation of maritime boundaries from compulsory judicial arbitration proceedings by declaration. however, it was held that such disputes fall within the scope of compulsory arbitration. disputes are subject to compulsory judicial arbitration proceedings, including interim arrangements during the transitional period and the obligation “not to endanger or impede”. the exclusion of delimitation disputes does not cover the question of responsibility for pre-delimitation obligations and is limited to delimitation disputes. however, the optional regime of exceptions was established because some disputes are considered politically sensitive, and resolving conflicts through diplomatic channels or negotiations may be preferable (alexander, 2017). article 298, paragraph 1(a), in particular, reflects the political and economic significance of maritime delimitation as a process for determining the extent of the coastal state’s authority (natalie, 2005). it could be argued that the reasoning for permitting optional exceptions does not pertain to disagreements regarding the duty of self-restraint, as the disagreement itself is not connected to the standards or approach to defining boundaries (yumi, 2017, pp. 37-47). 6. china’s position and countermeasures the south china sea holds significant economic and strategic value and is abundant in fishery, waterway, and mineral resources, particularly oil and gas. most of the disputed sea areas between china and neighboring countries in the south china sea are under the actual control, management, and exploitation of the neighboring countries from the perspective of the unilaterally developed areas. however, china has not yet carried out any substantial oil and gas resource development activities in the disputed areas of the south china sea. in 2019, china proposed the idea of a “community of maritime destiny”, promoting the sharing of marine resources and the joint management of maritime affairs by all nations. this demonstrates china’s willingness to negotiate and cooperate. however, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 55 published by scholink inc. illegal exploitation and interference by other countries in the south china sea have hindered joint development. to safeguard its rights and interests in the south china sea, china may need to take certain countermeasures and strengthen unilateral development. china has the right to lodge a formal objection, known as a protest, in response to any unlawful unilateral development activities carried out by other countries. this objection is made when a state believes that an act or claim is contrary to international law or unfounded (hui, 2013, pp. 43-61). by protesting, china is indicating that it does not agree with the behavior in question. after the sino-philippine arbitration in the south china sea, china is at risk of other coastal countries in the south china sea following the philippines’ example of judicializing the issue. this could involve initiating arbitration proceedings under annex vii to the convention, which may result in provisional measures or compulsory arbitration proceedings against china. in response to an application for provisional measures by another state, china may counteract it following article 294 of the convention. it is important to note that international judicial bodies tend to distinguish between maritime delimitation and pre-delimitation obligations. disputes related to unilateral exploitation issues may not be subject to the optional exceptions. china should continue to make legal preparations and use favorable rulings in international jurisprudence to claim its rights and interests. if china engages in unilateral development in the south china sea, it aims to counter the previous unlawful unilateral development of other countries, compel relevant countries to consider the proposal of joint development and advance the negotiation process of the south china sea provisional measures or delimitation agreement. this is a legitimate and provisional countermeasure. china can enhance its development efforts within the scope of allowed unilateral development. depending on the nature of the exploitation, unilateral exploitation activities that do not cause irreparable or irreversible damage to marine resources may be carried out for economic development purposes. if unilateral development activities occur on the side of the median line/equidistance line of the disputed sea area against the coast of one’s own country, goodwill tends to be presumed, regardless of the outcome of the delimitation. references alexander, p. 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(2021). whose rights? what obligations? the boundary of unilateral actions of states in disputed maritime areas. contemporary law review, 2021(5), 127-139. ye, q., & zhang, x. l. (2014). the application of provisional arrangements prior to maritime delimitation in the south china sea. southeast asian affairs, 2014(2), 19-27. yumi, n. (2017). procedures for the settlement of maritime disputes and the rule of law. international affairs, 11(666), 37-47. retrieved from https://cir.nii.ac.jp/crid/1523951029964245760 zhang, x. j. (2018). unilateral hydrocarbon activities in the disputed area pending maritime delimitation and state responsibility: a note on the ghana/côte d’ivoire case. chinese review of international law, 2018(3), 18-34. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 187 original paper the right to a healthy environment is litigable from a global perspective pathway study liu xvwei 1 & xing zheng 1 1 institute of problem solving, dalian ocean university, dalian, china received: may 12, 2025 accepted: may 22, 2025 online published: may 23, 2025 doi:10.22158/elp.v8n1p187 url: http://dx.doi.org/10.22158/elp.v8n1p187 abstract the right to a healthy environment has long been the application of human rights in the field of environmental rights. despite the fact that countries around the world have explicitly recognized and adopted this right, judicial remedies still face severe tests. justicitization is one of the core ways to achieve judicial remedies for the right to a healthy environment. starting from the framework of international law and combining with regional judicial practice, this article will analyze the theoretical basis, practical obstacles and breakthrough directions for the litigability of the right to a healthy environment, and promote the transformation of the right to a healthy environment from an abstract right to a litigable right. keywords the right to a healthy environment, litigable, collaborative governance 1. the international law basis for the litigation of the right to a healthy environment the international law basis for the litigability of the right to a healthy environment lies in the intersection of international human rights law and international environmental law, specifically in the normative promotion of some treaty obligations, customary law principles, etc. under the promotion of this basis, the realization space of the litigability of the right to a healthy environment is not just empty talk on paper, but also provides a blueprint for the future litigability of the right to a healthy environment. 1.1 the extension of rights within the framework of international human rights law in october 2021, the un human rights council adopted resolution 48/13, officially for the first time declaring the right to a clean, healthy and sustainable environment as a fundamental human right and calling on un member states to cooperate in implementing this right. this marks a shift in the right to a healthy environment from a moral claim to a legal right. although the resolution is not binding, it has www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 188 published by scholink inc. reached an international consensus, providing a new authoritative basis for the legislative and judicial practices of various countries. on july 29, 2022, the united nations general assembly adopted a historic resolution on environmental health with 161 votes in favor and 8 abstentions, declaring the enjoyment of a clean, healthy and sustainable environment as a universal human right. the resolution highlights the immediate threat of environmental destruction to human rights and calls on countries to accelerate the fulfillment of their environmental and human rights obligations. this historic resolution establishes the legal status of the right to a healthy environment at the global level for the first time, providing a practical legal basis for subsequent climate change lawsuits and domestic legislation. in addition, article 24 of the convention on the environmental rights of the child requires states parties to safeguard the child’s right to health. in august 2023, the united nations committee on the rights of the child issued general comment no. 26, clarifying children’s right to a clean environment, demanding that countries be held accountable for environmental damage both within and outside their countries, phasing out fossil fuels and ensuring children’s participation in environmental decision-making. 1.2 obligations and principles in international environmental law 1.2.1 the principle of common but differentiated responsibilities article 3 of the united nations framework convention on climate change clearly states: “each party shall, on a fair basis and in accordance with their common but differentiated responsibilities and their respective capabilities, protect the climate system for the benefit of the present and future generations of humanity. therefore, developed contracting parties should take the lead in addressing climate change and its adverse effects”. since then, the same rule has been made in international documents such as the kyoto protocol and the montreal protocol. the principle requires developed countries to take on more obligations in responding to climate change, while developing countries enjoy policy flexibility. although article 8 of the paris convention does not explicitly define the litigability of the right to a healthy environment, its recognition of the connection between climate and human rights provides indirect support for judicial practice. 1.2.2 the precautionary principle the precautionary principle was first introduced in the vienna convention for the protection of the ozone layer in 1985, requiring states to take forward-looking measures to avoid environmental damage. the principle mainly prevents countries from harming their foreign environment when they develop their sovereign rights. based on this principle, the eu’s 2024 prohibition investigation directive on corporate sustainability also requires companies to assess environmental risks in their supply chains and strengthen transnational responsibilities. 1.2.3 the principle of not harming the foreign environment article 21 of the stockholm declaration of 1972 and article 2 of the rio declaration of 1992 establish the obligation of states not to harm other countries or the global public environment through their own www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 189 published by scholink inc. activities. for example, the inter-american court of human rights made it clear in its 2017 advisory opinion that states must ensure citizens’ rights to clean air, water and a habitable climate, a principle that was cited as the legal basis for holding the peruvian government accountable in the 2024 la oroya case. 1.3 the promotion of judicial precedents and legal interpretations international and domestic judicial precedents have expanded the litigability of the right to a healthy environment through legal interpretation. in 2023, a montana court ruled in youth v. state government that the government needs to review the climate impact of fossil fuel projects based on the state constitution’s “right to a healthy environment” clause, marking the first climate victory in the united states. while the case relied on state law, its logic can be extended to international law, demonstrating a direct link between climate change damage and the right to health. in the 1993 minors oposa case, the supreme court of the philippines interpreted the “right to healthy ecology” in the constitution as a negotiable right, demanding that the government revoke logging permits for deforestation. the case established the principle of “intergenerational justice” and laid the legal basis for the protection of environmental rights across time and space. while playing the advisory role of the international court of justice, the international tribunal for the law of the sea (itlos) plans to issue an advisory opinion on state obligations on climate change, which may clarify the judicial review criteria for state emission reduction responsibilities and further enhance the enforceability of the right to a healthy environment. 2. real obstacles to the litigability of the right to a healthy environment 2.1 fragmentation of the international law framework and ambiguity of norms the treaty rules and provisions of international law in the field of the right to a healthy environment are characterized by high fragmentation. there are currently over 1,100 international environmental agreements around the world, but there is a lack of a unified enforcement mechanism, resulting in overlapping or conflicting obligations under different treaties. for example, the paris agreement emphasizes the connection between climate action and human rights protection, but does not clarify the grounds for the right to a healthy environment. although the united nations convention on the law of the sea (unclos) regards greenhouse gas emissions as marine pollution, its liability provisions need to be interpreted in conjunction with documents such as the stockholm declaration, adding to the complexity of judicial application. in addition, there is no consensus on the legal nature of the right to a healthy environment. although un human rights council resolution 48/13 affirms its human rights status, it has not translated into a binding treaty obligation, and there are differences among countries regarding the specific standards for a “clean, healthy and sustainable environment”. for example, in la oroya, the inter-american court of human rights regarded the right to a healthy environment as a combination of the right to life and the right to health, while the european court of human rights protected environmental rights more www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 190 published by scholink inc. indirectly through the right to private life (such as article 8 of the european convention on human rights). the ambiguity of such norms makes it difficult to unify the standards of judgment in judicial practice. 2.2 conflict between the principle of sovereignty and state jurisdiction international law is based on sovereign equality of states, but the transboundary nature of the right to a healthy environment challenges this principle. according to the draft articles on liability of states for international wrongful acts, states are only liable for acts within their territory or effectively controlled areas, while global issues such as climate change and cross-border pollution are often held accountable beyond traditional sovereignty. for example, when small island states resort to the international tribunal for the law of the sea due to rising sea levels, it is difficult both scientifically and legally to prove that there is a direct causal relationship between the emissions of a particular country and the loss of its territory. furthermore, the regulatory dilemma of the activities of transnational corporations highlights the conflict between sovereignty and extraterritorial obligations. although the united nations guiding principles on business and human rights encourage home countries to restrain the overseas activities of enterprises, there is a lack of mandatory rules. in peru’s la oroya case, the us renco group, as the parent company of polluting enterprises, evaded accountability because peruvian courts had no extraterritorial jurisdiction, and ultimately only the peruvian government was held liable for compensation. such cases show institutional deficiencies in international law in balancing sovereignty with the responsibility of multinational corporations. 2.3 deficiencies in causality proof and accountability mechanisms the cumulative and lagging nature of environmental damage makes it difficult to clarify the chain of causality. in the case of climate change, the link between greenhouse gas emissions and specific health damages, such as respiratory diseases, relies on long-term scientific data, and the international court of justice lacks uniform standards for assessing environmental damage. while the 2024 advisory opinion of the international tribunal for the law of the sea acknowledges that emissions constitute marine pollution, it does not specify the proportion of responsibility allocated among countries and merely calls for “necessary measures”. 2.4 weak enforcement mechanisms and limited relief effects the lack of enforceability in international law is a fundamental obstacle to the litigability of the right to a healthy environment. the resolutions of the united nations general assembly and the judgments of regional human rights courts, such as la oroya, are symbolic but rely on voluntary fulfillment by states. for example, although the peruvian government was ordered by the inter-american court of human rights to compensate the victims and restore the environment, its implementation progress was constrained by domestic political unrest and a shortage of funds, and the actual restoration results were far from what was expected. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 191 published by scholink inc. in addition, the jurisdiction of international judicial institutions is limited. the international court of justice (icj) only accepts disputes between states, and individuals or communities cannot directly prosecute; the rulings of regional human rights courts, such as the inter-american court of human rights, require pressure from the organization of american states and lack direct sanctions. even if the beijing fourth intermediate people’s court promotes environmental restoration through the “three-in-one” trial mechanism, its experience is still limited to domestic judicial collaboration and has difficulty dealing with transnational environmental disputes. 2.5 the imbalance of interests between developing countries and developed countries the right to a healthy environment is facing structural contradictions between the north and the south. developed countries advocate “universal obligations”, demanding that all countries assume equal responsibility for emissions reduction; while developing countries emphasize “common but differentiated responsibilities” and assert that historical emitters should undertake more obligations. this divergence is particularly evident in climate change lawsuits: small island states demand compensation for climate losses from wealthy countries, but the latter defend themselves on the grounds of “sovereign immunity” and “policy discretion”, leading to a deadlock in the lawsuit. at the same time, the technical funding gap has exacerbated enforcement difficulties. the lack of environmental monitoring and remediation technology in developing countries and the failure of developed countries to fulfill the $100 billion annual climate funding promised under the paris agreement have reduced judicial remedies for the right to a healthy environment to “paper rights”. african countries, for example, have incorporated environmental rights provisions in their constitutions, but due to insufficient financial capacity, they are unable to establish effective public interest litigation systems. 3. paths to the realization of the right to a healthy environment being litigable 3.1 innovation and strengthening of international justice mechanisms 3.1.1 expansion of the advisory function of the international court justice international judicial institutions provide authoritative interpretations of the right to a healthy environment through the accumulation of advisory opinions and precedents. for example, the international tribunal for the law of the sea (itlos) plans to issue an advisory opinion on state obligations regarding climate change, making it clear that greenhouse gas emissions constitute marine pollution and requiring countries to take emission reduction measures in accordance with the united nations convention on the law of the sea. such opinions, though not binding, provide a legal basis for global climate change litigation and promote the formation of a uniform standard of responsibility by the international community. 3.1.2 the establishment of specialized international environmental tribunals drawing on the model of the international criminal court, a judicial institution dedicated to handling cross-border environmental disputes will be established to address the fragmentation of existing www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 192 published by scholink inc. international law. for example, in the la oroya case in peru, the inter-american court of human rights provided a judicial precedent for transnational pollution cases by demanding that the government compensate the victims and restore the environment through enforcement. such special tribunals can focus on cases such as climate change and cross-border pollution, and define judicial review standards for state and corporate responsibilities. 3.1.3 legislation on the enforcement of corporate supply chain liability the eu’s due diligence directive on corporate sustainability (2024) requires large enterprises to assess the environmental and human rights impact of global supply chains and drive industry transformation through market pressure. for the first time, the directive incorporates enterprises’ overseas environmental responsibilities into the legal framework, strengthening the extraterritorial applicability of the right to a healthy environment. similar legislation can fill regulatory vacuums for multinational corporations, such as in peru’s la oroya case where the us renco group evaded direct accountability but its home country’s legislation could restrain its actions. 3.1.4 technology empowerment for international criminal justice assistance enhance the efficiency of cross-border evidence acquisition and enforcement through digital tools. for example, chinese procuratorial organs have enabled rapid tracking of pollution sources through data sharing platforms, and blockchain technology has been used to make carbon emissions data transparent and enhance the credibility of international compliance. the revision of the supporting rules of the international criminal judicial assistance law could also clarify the review standards for foreign evidence and reduce the cyclical uncertainty of judicial assistance. 3.2 regional collaboration and transnational judicial linkage 3.2.1 the exemplary role of regional human rights courts in the la oroya case, the inter-american court of human rights established standards for state compensation and ecological restoration, promoting procedural protection of the right to a healthy environment. latin america’s escassu agreement (2021) requires contracting states to guarantee the right to public participation in cross-border projects and to resolve environmental disputes through judicial relief mechanisms, providing a model for regional collaboration. 3.2.2 construction of cross-regional judicial cooperation mechanisms take china, a developing country, as an example to implement coordinated governance in the beijing-tianjin-hebei region. the fourth intermediate people’s court of beijing signed the “memorandum of cooperation on judicial protection of the ecological environment in the beijing-tianjin-hebei region” with courts in tianjin and hebei, promoting the unification of cross-regional case filing, joint enforcement and restoration standards, and solving the problem of pollution in the river basin. at the same time, international coordination was achieved. the nanjing environment and resources court promoted the establishment of the country’s first judicial protection facility for biodiversity, and its “9+1” trial mechanism was recommended by the united nations environment programme to provide a chinese solution for global ecological restoration. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 193 published by scholink inc. 4. conclusion the litigability of the right to a healthy environment needs to be advanced through multiple paths such as international judicial innovation, regional collaboration and technological empowerment. the core lies in bridging the gap between law and enforcement, strengthening international responsibility, and ultimately achieving the leap from “textual rights” to “substantive relief”. china’s localization practices as a developing country, as well as the regional mechanisms of the eu and the americas, provide replicable governance paradigms for the world. references shi, x. y., & tian, j. (2023). interpretation of the right to a healthy environment and its generation of rights in china. journal of ningxia university (humanities and social sciences edition), 45(03), 154-161, 178. ye, z. x. (2023). the right to a healthy environment in climate change litigation: a case study of mexico to explore the possibility of localization. law, 11(6), 6577-6587. https://doi.org/10.12677/ojls.2023.116943 zou, h. (2009). on the basic principles of international environmental law. environmental protection, 2009(04), 81-83. https://doi.org/10.12677/ojls.2023.116943 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 1, 2025 www.scholink.org/ojs/index.php/elp 46 original paper research on the determination of joint debt of husband and wife qin yuan 1 1 political science and law, tibet university received: february 2, 2025 accepted: february 14, 2025 online published: february 15, 2025 doi:10.22158/elp.v8n1p46 url: http://dx.doi.org/10.22158/elp.v8n1p46 abstract the identification of joint debt is in a fundamental position in the settlement of marital debt disputes, but the existing research has exposed the defects of insufficient connection between procedures and entities. on the basis of systematically interpreting the rules for determining the joint debt of husband and wife, through the case situation, it can be found that there are problems such as value imbalance, vague standards and mechanical application of the rules of proof in article 1064 of the civil code. based on this, targeted suggestions for improvement can not only help the couple’s debt disputes to be properly handled, but also effectively respond to the legislative expectations of “summarizing practical experience”, promote the couple’s debt litigation rules to get rid of the “extreme” legislation, and gradually realize the balance of multiple values. keywords common interests, joint debt of husband and wife, balance of interests 1. introduction the settlement of marital debt disputes mainly involves the determination, settlement and execution of debt nature, which directly affects the interests of debtors and creditors, and indirectly affects the stability of marriage and family and the safety of market transactions. once it is determined that a joint debt is established, the husband and wife should bear the responsibility of jointly paying off the debt, and the joint property and personal property should be taken as the object of execution in the execution procedure. it can be seen that the determination of joint debt is in a fundamental position in the handling of marital debt disputes. however, for the identification of the joint debt of husband and wife under the triple role of family law, property law and procedural law, compared with the fruitful research results at the entity level, the procedural issues have been put on hold for a long time, and the connection between entities and procedures is pending due to the lack of necessary care. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 47 published by scholink inc. in addition, the burden of proof, as a link between substantive and procedural issues, is the closest combination of substantive law and procedural law. there are not only obvious theoretical differences in the burden of proof on the facts of the use of debt by one of the spouses, but also the problems of generalization of application. this is not only contrary to the consensus of strengthening the collaborative research of entities and procedures, but also does not help to promote the resolution of practical problems by breaking the internal disciplinary barriers of law. therefore, it is necessary to study the criteria for determining the joint debt of husband and wife and the burden of proof directly related to it from the perspective of civil integration. 2. the historical evolution of the rules for the determination of joint debts of husband and wife the different legislative values in different periods lead to frequent changes in the rules for the determination of joint debts of husband and wife. from article 24 of the interpretation of the supreme people’s court on several issues concerning the application of the marriage law of the people’s republic of china (ii) (hereinafter referred to as the interpretation of the marriage law (ii) ) to article 1064 of the interpretation of the supreme people’s court on several issues concerning the application of law in the trial of cases involving marital debt disputes (hereinafter referred to as the interpretation of marital debt) and article 1064 of the civil code of the people’s republic of china (hereinafter referred to as the civil code), the determination of the joint debt of husband and wife has always been a matter of great concern to the legislative, judicial organs and researchers, during which a fierce exchange of views has been formed. (1) interpretation of marriage law (2) interpretation of article 24 article 41 of the “marriage law of the people’s republic of china” (hereinafter referred to as the “marriage law”) first established the criteria for determining the joint debt of husband and wife “living together for husband and wife”. according to the “normative theory” of the distribution of the burden of proof, each party must claim and prove the conditions of the legal effect on its own favorable norms. article 91 of the interpretation of the supreme people’s court on the application of the civil procedure law of the people’s republic of china (hereinafter referred to as the “interpretation of the civil procedure law”) clearly stipulates the rules for the distribution of burden of proof for different legal elements. specific to the husband and wife debt disputes, the creditor who claims that the debt of one of the husband and wife is a common debt should bear the burden of proof of the fact that “living together for the husband and wife”. however, as a third party outside the relationship between husband and wife, the creditor is often difficult to prove the specific use of the debt. in addition, a large number of husband and wife colluded with each other and transferred property at that time, which caused great damage to the interests of the creditor. the supreme people’s court passed the “marriage law interpretation” (2) article 24 stipulates that the people’s court can directly presume that the debt’s “husband and wife live together” is true according to the basic fact that the debt of one of the spouses www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 48 published by scholink inc. occurs during the “duration of marriage”, and then determine the establishment of the joint debt of the husband and wife. unless one of the spouses can prove that “the creditor and the debtor clearly agreed to personal debt” or belong to the “marriage law article 19, paragraph 3” of the situation. the marital property relationship plays an external guarantee role in the personal relationship. as an important part of the marital property system, the determination of the joint debt of husband and wife directly affects the maintenance of marriage and family relations. correspondingly, the protection of creditors’ interests in the determination of joint debts of husband and wife not only affects the security of market transactions based on private lending, but also has a direct impact on financial investment transactions, which is enough to see its social value in market transaction mode and security guarantee. if the application field of the rules for determining the joint debt of husband and wife is limited to the divorce process, in fact, the rules for adjusting the external legal relationship of husband and wife are limited to the internal legal relationship of husband and wife. the social value of creditors and their representatives will inevitably be obscured, which will not help the balance of multiple values. (2) analysis of “husband and wife debt explanation” in order to enable creditors to control risks in the early stage to avoid the difficulty of proof in the later stage, under the premise that the “husband and wife debt interpretation” refines the criteria for determining the joint debt of husband and wife, the “joint debt presumption” of one spouse’s external debt is changed to “individual debt presumption”. it is stipulated that in addition to the debt of one spouse’s “daily life needs of the family” is directly presumed to be the joint debt of husband and wife, other debts must be proved by creditors’ “joint debt co-signing” or “living together for husband and wife, common production and operation” in order to be recognized as joint debt of husband and wife. in the specific litigation process, the parties’ claims, denials, defenses, re-defenses and other attack defense systems constitute the basic framework for the distribution of the burden of proof. in view of the facts of various legal elements, the proof activities of the parties who bear the burden of proof belong to this certificate, and a high probability proof standard needs to be achieved; the proof activity of the other party is counter-evidence, and it is only necessary to lower the fact that the judge has formed the essential facts to the state of unclear authenticity. such a cycle, supplemented by the judge’s interpretation of the provisional evidence based on the proof activities of the parties, gradually promotes the identification of the facts of the elements, and finally forms the evaluation of the authenticity of the facts of the elements. according to the “interpretation of husband and wife debt”, “joint debt signing” and “living together for husband and wife, common production and operation” need to be borne by the creditor who advocates the establishment of joint debt of husband and wife. the burden of proof should meet the high probability proof standard, and there is basically no difference in understanding. however, there is a view that it is a “beautiful-looking” practice to set different rules of proof for the “daily life of the family” as the boundary of the “husband and wife debt interpretation”, which is ultimately the creditor’s burden of proof for the purpose of the debt. this is obviously inconsistent with the basic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 49 published by scholink inc. requirements of the application of the presumption rules. (3) analysis of article 1064 of the “civil code” the compilation of the civil code provides an opportunity for the improvement of the rules for the determination of joint debts of husband and wife. researchers have made suggestions. there is a view that the “joint debt and joint signature” of husband and wife should be incorporated into the “civil code” and used as a principled standard for the determination of the joint debt of husband and wife; however, there is a view that the “joint debt and joint signature” of husband and wife is not established. the “interpretation of marital debt” establishes the rule only to correct the influence of article 24 of the “interpretation of marriage law” (2), and to guide judicial practice to avoid the expediency of extreme cases; it is also believed that based on the particularity of the relationship between husband and wife, the independence of husband and wife as the subject of legal relationship and the protection of creditors’ rights, the joint debt and joint signature of husband and wife can only be an exceptional supplementary rule at most. in the face of fierce academic debate, the attitude of the legislature on the determination of the joint debt of husband and wife has also changed significantly, and has made difficult choices. the draft absorbs the provisions of the new judicial interpretation and clarifies the scope of the joint debt of husband and wife. however, the rules for determining the joint debt of husband and wife established in article 1064 of the civil code have not achieved the balance of interests of all parties in the handling of marital debt disputes, and there is still room for further improvement. the academic debate and the change of legal rules on the determination of the joint debt of husband and wife are all to meet the complicated practical needs. the judicial situation is not only the best yardstick to test whether the academic point of view is reasonable or not, but also the guide to grasp the direction of rule improvement. at present, although there are a small number of research results on the empirical analysis of the determination of the joint debt of husband and wife, they often criticize the practice of not strictly judging according to law in judicial practice, lacking comprehensiveness, objectivity and neutrality, which is obviously inconsistent with the supreme people’s court’s interpretation of article 1064 of the “civil code”. the expectation that “it needs to be further explored and summarized in judicial practice to balance the interests of creditors and non-borrowing spouses” is obviously inconsistent. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 50 published by scholink inc. 3. analysis of the judicial determination of the joint debt of husband and wife article 1064 of the civil code fully inherits the interpretation of matrimonial debt. the application of the interpretation of matrimonial debt still has important reference value for the study of article 1064 of the civil code. this part examines the judicial determination of the joint debt of husband and wife from the macro and micro levels. at the macro level, taking private lending disputes as a reference system, it can be intuitively seen that in private lending cases involving the identification of joint debts of husband and wife, the appeal rate and retrial rate of the parties are generally significantly higher than those of ordinary private lending cases, which can explain the complexity of the identification of joint debts of husband and wife. in order to further understand the judicial application of the rules for the determination of the joint debt of husband and wife, this part next takes the identification standard as the main line from the micro level, and examines the judge’s derivation of the legal elements of the joint debt of husband and wife according to the facts of the case by summarizing the demonstration of specific cases. (1) the husband and wife’s “joint debt and joint signature” are different the couple’s “joint debt co-signing” includes the debt formed by the couple and the creditor based on the common meaning at the beginning of the debt, as well as the debt that one of the spouses bears externally and is subsequently recognized by his or her spouse. the above two types of situations have differences in application in practice. first, as to whether the couple’s “joint debt and joint signature” can be determined according to the guarantee behavior of the debtor’s spouse, a judge believes that “although meng signed the loan contract as a guarantor, the signature is sufficient to prove that he agreed to xiao’s loan to li, and the loan involved should be regarded as the common intention of xiao and meng, so the loan in this case belongs to the joint debt of the couple”; however, a judge believed that for the debts of one of the husband and wife, the spouse’s signature as a guarantor indicated that he was only willing to assume the guarantee responsibility and did not have the intention to borrow jointly with the borrowing husband and wife. the loan does not belong to the joint debt of the husband and wife. second, as to whether the couple’s “joint debt co-signing” can be determined according to the money involved in the case of the debtor’s spouse account, a judge believes that “although the defendant niu did not sign the debit, the plaintiff transferred some of the loan to niu’s account, indicating that the defendant niu was aware of the loan, and supported the plaintiff’s claim for the joint debt of the husband and wife according to the provisions of article 1 of the “husband and wife debt interpretation”; however, a judge held that “although part of the loan involved in the case occurred during the marriage of the two defendants and part of the money was transferred to a bank card of zeng, whether the loan involved in the case was a joint debt of the husband and wife should still be proved by the plaintiff”. if such differences are summarized as the debtor’s spouse account “partial collection, full debt recognition”, and the referee judge’s insistence on “partial collection, partial recognition”. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 51 published by scholink inc. thirdly, whether the debt can be recognized as “joint debt and joint signature” according to the debtor’s spouse’s knowledge of the debt, a judge believes that the defendant yang mouli is not a guarantor, but he is in a husband-and-wife relationship with the defendant wang, and should be aware of the generation of the debt. therefore, the debt is a joint debt of the husband and wife, and the defendant yang mouli should bear the joint repayment responsibility; however, a judge held that “although mr. qin and mr. shi were still in the husband-and-wife relationship during the period when mr. qin issued a loan to the plaintiff, according to the statements of both parties, mr. shi’s behavior of taking the loan to the plaintiff and informing mr. qin of the proper use of the loan can only prove that he was informed of mr. qin’s borrowing from the plaintiff, and cannot directly presume that mr. shi made a joint loan with mr. qin”. (2) the boundary of “for the daily needs of the family” is unclear in order to make up for the defects that the family agency disputes caused by the lack of legislation cannot be solved smoothly, and the rights and interests of the bona fide counterpart and the transaction security cannot be guaranteed, article 1060 of the civil code clearly stipulates the family agency system for the first time, and stipulates that the debts borne by one of the husband and wife “for the daily needs of the family” have legal effect on both husband and wife unless otherwise agreed with the counterpart. however, because this article does not specify the scope of application of the family agency right, it leads to the judicial chaos of determining the joint debt of husband and wife by this standard. first, there are obvious differences in the judgment cases on whether it can be directly determined that it is “for the daily needs of the family” according to the amount of debt raised by one of the spouses. first of all, according to the appearance of the small amount of debt raised by one of the spouses, it is directly determined that the debt is “for the daily needs of the family”. a judge believes that “the defendant wang weixia borrowed a small amount from the plaintiff zhao shishan, which did not exceed the daily living expenses of the family, and should be identified as the joint debt of the husband and wife”; but some judges hold a negative view. in addition, for one of the husband and wife to buy a house, a family car and other large debts, a judge classified it into the category of “daily life needs of the family”; however, some judges believe that the expenditure has gone beyond the scope of “for the daily needs of the family”, and require creditors to prove the objective use of the debt. second, as to whether one of the husband and wife’s “daily life needs of the family” includes business activities, a judge believes that “daily life needs include both production needs and life needs”. in this case, the second defendant owes the seasoning money for business needs during the existence of the relationship between husband and wife. according to the second provision of “husband and wife debt interpretation”, it should belong to the joint debt of husband and wife. however, some judges believe that “sun did not sign the loan contract, and cheng also recognized that the loan was mostly used for company operation, and did not submit evidence to confirm that the loan was used for the daily needs of husband and wife, so he did not support cheng’s claim for joint debt of husband and wife”. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 52 published by scholink inc. thirdly, on the issue of whether “for the daily needs of the family” includes the infringement of one of the spouses, a judge believes that the debt of compensation for infringement damages arising from the case arises from the defendant guo’s driving during the duration of the marriage relationship to maintain the daily needs of the family. during the operation of the van that benefits the family, and it has not been proved that there is an agreement between the husband and wife that the marital property is owned separately, and the two defendants should share it; however, some judges first recognized that the debt of the husband and wife to foreign infringement occurred on the way to pick up their spouses and children, which was for the daily needs of the family. however, after a turn of words, it was pointed out that the existing rules for the determination of joint debts of husband and wife focused on contract disputes based on private lending, and there was no clear response to the determination of joint debts of husband and wife in infringement disputes. based on the principle that the tort liability should be borne by the actor himself, the debt involved in the case does not constitute the joint debt of the husband and wife. (3) the application of the standard of “living together for husband and wife, common production and operation” is chaotic in the criteria for the determination of the joint debt of husband and wife, the most difficult dispute between the parties and the court is “living together, producing and operating together”. the staff of the legislature also admitted that there is great uncertainty in the judicial application of the standard, and “the issue of who will prove the proof is the most complex and controversial issue”. first, it is strictly recognized by the standards established in article 1064 of the civil code. due to the privacy of husband and wife’s life, it is often difficult for creditors to prove whether the debt is “for husband and wife to live together and jointly produce and operate”. according to the logic of judicial syllogism, deductive reasoning is carried out, and the vast majority of cases are ultimately lost to creditors because of the inability to prove. because the husband or wife’s business behavior in social life is generally ultimately to meet the needs of family life, if the debt involved in the case is identified as the joint debt of the husband and wife, the legal provisions will be generalized in use. that is to say, in this case, even if the judge considers that it is highly possible for one of the spouses to borrow money to meet the needs of family life, but as long as the creditor cannot prove that the debt is directly used for the couple’s common life, the joint debt will not be established. second, with loose standards, it is determined that “couples live together and produce and operate together”. in the face of the harshness of the criteria for determining the joint debts of husband and wife established in article 1064 of the civil code, some judges have relaxed the conditions for determining the objective use of the debts of one of the spouses beyond the daily needs of the family, and given full play to the judicial initiative. with the help of daily life experience and marriage and family living habits, reasoning, through the facts of specific cases, “living together for husband and wife, common production and operation”, forming a free evaluation of the use of debts of one of the spouses. but unfortunately, the logic of some judges’ inferences has exposed obvious differences. for www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 53 published by scholink inc. example, there are a large number of judges presume that the joint debt of the husband and wife is directly based on the fact that the debt of one of the husband and wife occurs during the “duration of marriage”; another judge held that “according to common sense of life, during the period of husband and wife living together, the husband or wife’s foreign farming cooperatives are one of the economic sources of family life, and there is no evidence to confirm that the debt involved in the case is the debt of a certain person, and the debt of a certain person in the name of a person during the existence of the relationship between husband and wife should belong to the joint debt of husband and wife”. according to the facts of the case, the judges inferred that the husband and wife “co-debt co-signing”, “for the daily needs of the family”, “for the husband and wife to live together, co-production and operation” have different conclusions, exposing the obvious problem of “different judgments in the same case”, which is obviously inconsistent with the general requirement that the legal argumentation field should strengthen the consistency of supporting judicial adjudication argumentation. under the background of gradually promoting the “case retrieval” mechanism of difficult cases to assist judicial adjudication, the above-mentioned differences exposed in the judicial determination of the joint debt of husband and wife will not only make the judges of similar cases at a loss, but also obviously contradict the requirements of “further standardizing the application of unified law, ensuring the unified and correct implementation of law, effectively safeguarding the dignity and authority of the national legal system, ensuring judicial justice and improving judicial credibility” proposed in the “implementation measures for the unified application of law by the supreme people’s court”. 4. analysis of the causes of the judicial determination of the joint debt of husband and wife and suggestions for improvement the reasonable identification of the joint debt of husband and wife first needs to establish the basic concept of balancing and protecting the interests of the parties to the dispute. then, it is necessary to clarify the applicable boundary of each identification standard. finally, the proof mechanism of the use standard of the husband and wife should be optimized. (1) to establish the basic concept of balancing the interests of creditors and debtors’ spouses in the whole development process of modern law, although the courts, legislators and jurists are likely to lack a clear conclusion about what is being done, they are engaged in seeking practical adjustment and coordination methods for various conflicting and overlapping interests under the control of a clear practical purpose instinct. on legislative issues, legal norms are formulated by legislators to solve various conflicts of interest; in judicial activities, judges should make a just judgment and balance the conflicting interests. when the legislative value is biased, the burden of balancing the interests should be borne by the case judge. the treatment of marital debt disputes is also fundamentally a balance of interests between creditors and debtor spouses. a perfect husband and wife debt system design should seek a balance between the two, not only to protect the legitimate rights and interests of creditors, but also to prevent the debtor’s www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 54 published by scholink inc. spouse from unwarranted joint debt settlement responsibility. although countries and regions outside the region have different legislative models, it is a common legislative purpose to seek balanced protection between the interests of creditors and debtor spouses. on the contrary, the presumption rule of joint debt of husband and wife established in article 24 of china’s “interpretation of marriage law (ii)” adheres to the purpose of giving priority to the protection of the interests of creditors. article 1064 of the “interpretation of marital debt” and “civil code” is too biased towards the prevention of the risk that the debtor’s spouse may be unjustifiably “indebted”, and enters the other end of giving priority to the protection of the interests of the debtor’s spouse. the problem of “different judgments in the same case” in the determination of the joint debt of husband and wife is ultimately reflected in the fact that the judge adheres to the legislative norms with unbalanced value and exerts judicial initiative to balance the interests of the parties. whether it is based on the behavior of the debtor’s spouse to guarantee the debts of one of the spouses, the referee judge determines that the husband and wife “jointly sign the debts”, or infers that the debtor’s spouse benefits directly or indirectly from the debts involved in the case based on daily life experience. it is all to protect the interests of creditors by expanding the scope of the legal elements of the joint debt of husband and wife. (2) to clarify the relationship between the criteria for determining the joint debt of husband and wife on the basis of clarifying that the determination of the joint debt of husband and wife needs to adhere to the basic concept of balancing the interests of creditors and debtor spouses, it is necessary to further clarify the relationship between the various identification standards to prevent functional disorders caused by unclear relationships. first, the primary and secondary relationship between the “subjective meaning theory” and the “objective use theory” standards. the debate on the primary and secondary relationship between the criteria of “subjective meaning theory” and “objective use theory” in the determination of husband and wife’s joint debt is due to the researchers’ differences in the understanding of “individual standard” and “family standard” of marriage and family life in the current social transformation process. this paper argues that the family is not a place of complete personal will and private autonomy. on the contrary, it is a love-based ethical entity composed of family members with husband and wife as the core, and follows the principle of “identity”. even in the tide of modernization transformation, the traditional principle of the unity of husband and wife has added the other-body factor, and the independent personality and equal status of husband and wife have become increasingly prominent. however, as the core of modern family, husband and wife still show a community of family and property that is blessed and difficult to share, carrying the integrity of the family and the characteristics of the identity community. from the perspective of the joint property system of husband and wife, those who implement the property system generally take the principle of husband and wife integration as the basic principle. husband and wife usually share the interests of debt, and should give priority to the recognition of husband and wife debt as common debt, supplemented by the judgment standard of individualism. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 55 published by scholink inc. second, the relationship between the “subjective meaning theory” standard and the “objective use theory” standard. on the whole, the “subjective meaning theory” and “objective use theory” standards for the determination of the joint debt of husband and wife are in parallel. if the couple reaches a “joint debt agreement”, the debt should be recognized as a joint debt regardless of whether the couple shares the debt proceeds. and vice versa. this means that not only does some of the referee judges know that one of the spouses borrows foreign debts according to the spouse, and finds that the husband and wife have a “common debt agreement”, and then finds that the inference that the debt involved in the case is “living together for the husband and wife, common production and operation” is not necessarily established, and some of the referee judges directly determine that the debt is objectively “living together for the husband and wife” according to the subjective use indicated by the spouse when borrowing. the inference is also difficult to establish. 5. conclusion the rules for determining the joint debt of husband and wife have changed frequently, and the legislative value has been swinging at both ends of the protection of the interests of creditors and debtor spouses, exposing the obvious “extreme” legislative tendency. in the final analysis, this is closely related to the social background of rapid transformation. because the transitional society shows the “multiplication effect of mutual tearing and divergence of social systems”. but there is no doubt that the transformation still contains the mainstream social values and behavior habits, and maintain stability in a certain period of time. in the process of determining the joint debt of husband and wife, whether it is to expand the interpretation of the constituent elements, or to use the rule of thumb to derive the statutory elements from the specific facts, it shows the practical rationality of the referee judge to ease the strictness of the rules for determining the joint debt of husband and wife, and has certain rationality in balancing the interests of the parties to the dispute. however, in order to prevent the “black box operation” in the process of factual reasoning by applying the rule of thumb and enhance the acceptability of the parties to the dispute and the public for the judicial judgment, it is necessary for the judge to strengthen the interpretation and reasoning of the judgment documents and disclose their psychological evidence in time when the judge deduces the debt use of one of the spouses according to the specific facts. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 1, 2025 56 published by scholink inc. references cai, w. r. (2023). why does one party guarantee form the joint debt of husband and wife ?—analysis and development based on “common interests”. legal forum, 38(03), 75-85. dou, h. y. (2024). the defects and remedies in the judicial application of the joint debt system of husband and wife in china. people’s justice, 2024(20), 7-10. li, z. (2021). judicial determination of joint debts of husband and wife in private lending disputes. modern law, 43(02), 75-88. liu, z. f. (2021). identification of joint debt of husband and wife. jurisprudence, 2021(11), 115-129. wang, y., & bao, d. y. r. (2021). empirical study on the identification and settlement rules of joint debts of husband and wife. journal of east china university of political science and law, 24(01), 6-23. zhu, x. f. (2022). on the rules for determining the joint debt of husband and wife in the protection of balance of interests. rule of law society, 2022(02), 77-93. zi, p. y. (2023). research on the identification of joint debt of husband and wife from the perspective of civil integration. journal of henan university of finance, economics and law, 38(04), 145-156. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 3, no. 2, 2020 www.scholink.org/ojs/index.php/elp 49 original paper the us regulations on foreign ownership of land-practical and theoretical perspectives xiaojing qin 1 1 beijing normal university school of law, beijing, china received: october 29, 2020 accepted: november 10, 2020 online published: november 18, 2020 doi:10.22158/elp.v3n2p49 url: http://dx.doi.org/10.22158/elp.v3n2p49 abstract this article examines the us regulations on foreign owenrship of land from practical and theoretical perspectives. it focuses on the broad theme of political, economic, human rights and national security factors that affect the property rights of foreigners in the us. it aims to address the underlying theoretical issues by examining whether these social forces provide a satisfactory jurisdiction for the host state’s management of land ownership; and pursues an assessment of the current pattern of treatment towards further modification or improvement, against the background of the new established criteria. keywords us foreign ownership of land, political forces, economic forces, human rights forces, national security forces 1. introduction this article examines us domestic policies on alien land ownership. in particularly, it exames the deeper establishing and social forces shaping foreign real estate investment, namely the political, economic, human rights and national security factors that affect the property rights of foreigners in the us. it first examines the legal framework governing alien land ownership within the regime of both federal and state legislation. the depiction of such a framework matters not only because of its indispensable role in supporting further analysis in this study, but also because of its significance in advancing research by other scholars, as it gathers all the primary statutes that are issued recently and thus developed a comprehensive legal framework in this area. then the historical and political forces that shaped us alien land regulations will be addressed. after that, the following section focuses on the economic perspective, looking at the effectiveness of alien land law in facilitating foreign trade. next, the human rights and national security rights justifications for the laws are addressed. finally, it www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 50 published by scholink inc. concludes. 2. existing state and federal legislations on alien land ownership 2.1 federal legislations federal regulations expressly state that aliens shall not acquire any land in the territories of the us except under rules that provide otherwise (note 1). in particular, federal laws tend to exclude aliens from acquiring public land and having any interest therein (note 2). however, a wide range of exceptions exist to modify the effect of the restrictions. firstly, the restrictions do not apply to aliens who have declared the intention to become a citizen of the us or who are going to become bona fide residents of the us (note 3). secondly, the restrictions cannot be construed to prevent aliens from acquiring or holding land in an incorporated city, town or village or any mining claim (note 4). thirdly, the restrictions do not apply to acquisition by devise, inheritance, by process of law in the collection of debts, as security for indebtedness, by any procedures for the enforcement of a lien or claim thereon, provided that all land so acquired is disposed of within ten years of the acquisition (note 5). furthermore, aliens’ right to hold and transfer land may also be secured by treaties between the us and foreign countries of which the aliens are citizens or subjects (note 6). regardless of the form of acquisition, foreign persons holding interests in agricultural land are required to file with the secretary of state within ninety days of acquisition (note 7). apart from the federal regulations on the acquisition of immovable property by aliens, the state’s regulative power in terms of alien land ownership is exercised directly through control over enemy and hostile aliens and the administration of tax policies. 2.2 state legislation state laws present a variety of landholding restrictions which fall into one or more of the following categories: (1) full national treatment of individual aliens; (2) national treatment of individual aliens with certain exceptions; (3) statutory restrictions on land ownership applied to non-resident aliens; (4) statutory restrictions on land ownership applied to all aliens; (5) statutory restrictions on land ownership applied to foreign corporations; and (6) statutory restrictions on land ownership applied to both domestic and foreign corporations. 2.2.1 full national treatment of individual aliens among the fifty states that make up the us, thirteen provide aliens with full national treatment both in terms of ownership rights and inheritance rights (note 8). they are alabama, california, connecticut, delaware, florida, indiana, maine, michigan, tennessee, washington, west virginia, arizona and utah (note 9). by virtue of the common rules under these jurisdictions, aliens are entitled to take by purchase, devise or inheritance and hold, convey, devise or otherwise dispose of land in the same way as citizens. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 51 published by scholink inc. the principle of national treatment is confined to ownership rights only in six states (louisiana, massachusetts, north dakota, rhode island, kansas and north carolina) (note 10). among them, the new enactments of louisiana, massachusetts, north dakota and rhode island expressly state that aliens may take, hold, transmit, and convey real estate as fully as us citizens, while the statutes of north carolina and kansas have similar effects by retaining only the restrictions on the inheritance rights of aliens (note 11). in north carolina, an alien is required to prove the existence of reciprocal rights in order to acquire land by inheritance (note 12). kansas provides that any devise or other such disposition of real estate made from decedents to foreign corporations and their subdivision thereof as beneficiaries or grantees shall be prohibited except for religious, educational or charitable purposes (note 13). on the other hand, national treatment is confined to inheritance rights in another ten states; colorado, hawaii, minnesota, new jersey, pennsylvania, virginia, wisconsin, ohio, new mexico and alaska provide that an alien individual is qualified to take as an heir, even when the individual, or an individual through whom he claims, is an alien (note 14). in nebraska and wyoming, a non-resident may be allowed to take real property by succession or testamentary disposition if the nation in which such alien is a resident or citizen grants reciprocal rights to us citizens (note 15). 2.2.2 national treatment of individual aliens with certain exceptions eleven states allow national treatment, generally, but restrict the ownership rights of certain types of aliens, primarily, enemy aliens and aliens who have not declared their intention to become us citizens. the five states that restrict landholding by enemy aliens are maryland, new jersey, georgia, virginia and pennsylvania. in another six states (kentucky, vermont, california, idaho, oregon and hawaii), statutory restrictions apply to aliens who have not filed a declaration of intention to become a us citizen. 2.2.2.1 land ownership rights of alien friends friendly aliens are entitled to the same rights to acquire real estate as citizens in maryland, new jersey and georgia (note 16). virginia guarantees to grant friendly aliens the same land ownership rights as us citizens, except if the foreign countries in which the aliens are residents deny virginian residents the same benefits (note 17). in pennsylvania, friendly aliens may acquire, hold and transfer real estate in the same way as us citizens as long as it is under five thousand acres (note 18). 2.2.2.2 land ownership rights of declarant aliens the laws of kentucky and vermont permit aliens who declare their intentions to become us citizens (declarant aliens) to acquire and hold land of any sort on the same basis as citizens, while, in california, idaho and oregon, such aliens are entitled to full ownership, equivalent to that of us citizens, in so far as the purchase of public land is concerned (note 19). california grants declarant aliens the right to acquire oil, gas and mineral leases on public land, unless there is a treaty right or reciprocity provision to the contrary (note 20). such aliens are also granted the right to purchase inland lakes, unsegregated swamps and overflowed land, for their own use and benefit, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 52 published by scholink inc. up to an aggregate area of 640 acres, including all other state land acquired previously (note 21). in nevada and oregon, declarant aliens, upon the discovery of a vein or lode on public land, may locate the lode and make a mining claim (note 22). in hawaii, only citizens and declarant aliens who have resided in the state for a period of more than five years are eligible to acquire or lease a residence lot in the oahu land development if the residence lot is disposed by the board of land and natural resources (note 23). 2.2.3 statutory restrictions on land ownership applied to non-resident aliens non-resident aliens are subject to statutory limitations on the acquisition and holding of real property in eighteen states, which, pursuant to the relevant legislation adopted, include restrictions on the acquisition of agricultural land (iowa, pennsylvania, south dakota, missouri, north dakota and minnesota), restrictions on the dimensions of landholding (wisconsin, ohio, mississippi) and also other types of restrictions regarding landholding by non-resident aliens (arkansas, michigan, new hampshire, wyoming, oklahoma, hawaii, alaska, kentucky and texas). 2.2.3.1 restrictions on the acquisition of agricultural land by non-resident aliens aliens in iowa may, in general terms, enjoy the same rights in respect to the possession, conveyance and descent of real property as us citizens. the only departure from the principle of national treatment is the restrictive provisions concerning agricultural landholding by non-resident aliens (note 24). non-resident aliens are not allowed to acquire agricultural land unless it is by devise or descent, by judicial process, or otherwise if it is to be used for non-farming purposes and has an acreage not exceeding 320 acres (note 25). agricultural land so acquired must be disposed of within a certain period of time, which may vary due to the nature of its acquisition. for land acquired through devise or descent this is two years (note 26); land acquired by judicial process within two years after the title is transferred (note 27); and for land acquired for non-farming uses, the period is five years (note 28). non-resident aliens who acquire agricultural land for non-farming uses or who own interests in agricultural land must also file a report with the secretary of state (note 29). non-resident aliens in pennsylvania are not allowed to hold more than 100 acres for agricultural use, except such as may be acquired by devise or inheritance, or such as may be held as security for indebtedness or otherwise, as may be secured by treaty (note 30). south dakota follows the same rules, both in terms of general agricultural holding restrictions and specific exception provisions, except that its maximum acreage holding is 160 acres (note 31). in missouri, bona fide residents have the right to acquire and hold agricultural land, which must be divested of within a certain period of time after the cessation of their residence (note 32). foreign persons in missouri who do not qualify as bona fide residents are prohibited from acquiring agricultural land, except for non-farming purposes (note 33). land or any interests therein acquired must be filed with the department of agriculture unless it is a security interest or an interest for the exploration and production of natural resources (note 34). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 53 published by scholink inc. the law of north dakota contains the general rule of non-discrimination for anyone who is a us citizen, canadian citizen or a permanent resident alien of the us regarding any vested interest in agricultural land, and also extends national treatment to other alien individuals, if such rights are acquired by devise, inheritance, as security for indebtedness, by judicial process or are otherwise secured by any sort of treaty (note 35). minnesota provides similar provisions by allowing aliens qualifying as permanent residents to acquire agricultural land, along with other groups of aliens, such as treaty aliens, alien heirs or devisees, those taking land by judicial process or those pursuing non-farming operations (note 36). an additional filing requirement is imposed on permanent residents upon the acquisition of the agricultural land (note 37). 2.2.3.2 restrictions on the dimensions of landholding by non-resident aliens wisconsin places on non-resident land acquirers a limitation of 640 acres and an additional obligation to file with the state (note 38). however, aliens may acquire land in excess of such acreage under certain exceptional circumstances, for purposes of natural resource exploration or for manufacturing or business establishment (note 39). the exemption rules are also applicable to land acquired by devise, inheritance or in the collection of debts (note 40). non-resident aliens in ohio may not acquire land in excess of three acres or with a market value of more than one hundred thousand dollars, the acquisition of which must be filed with the secretary of state (note 41). resident aliens in mississippi may be granted the same land ownership as us citizens non-resident aliens, on the other hand, may acquire land of no more than 320 acres for industrial development or no more than five acres for residential purposes (note 42). the acreage limitation does not apply if non-resident aliens acquire land as security for indebtedness or for the enforcement of a debt payment (note 43). it also provides a specific exception to allow citizens of syria or the lebanese republic to inherit property from citizens or residents of the state of mississippi (note 44). 2.2.3.3 other restrictions regarding landholding by non-resident aliens arkansas, michigan, new hampshire and wyoming guarantee that no distinction shall be made by law between resident aliens and citizens in regard to the possession, enjoyment, conveyance or descent of property while colorado grants such privileges to bona fide residents only (note 45). in hawaii, only citizens and aliens who have resided in the state for more than five years qualify to hold a residential lease on public land if the land falls into the type that may be leased without public auction (note 46). a three-year residency qualifies in the case of the acquisition of such public land for agricultural use (note 47). the legislation of hawaii also provides that bona fide residents of the state shall be eligible for the purchase of a residential houselot within a development tract (note 48). oklahoma does not allow aliens to acquire land in the state, except for native-born indian aliens, bona fide residents of the state, the current alien holders of such land, or those taking land by devise or descent (note 49). in the case of alaska, there is a disclosure requirement for the transfer of real estate interests to non-resident aliens (note 50). kentucky entitles resident aliens to take and hold any land for the purposes of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 54 published by scholink inc. residence, trade or business (note 51). non-resident aliens, meanwhile, have eight years to dispose of holdings on land, after which time they will be escheated to the state (note 52). in texas, land acquired by a non-resident alien or by a foreign government may not qualify for appraisal as timber land, if registration is required for such acquisition (note 53). 2.2.4 statutory restrictions on land ownership applied to all aliens nine states employ a more restrictive technique by subjecting all aliens, regardless of their residency status in the us, to statutory limitations. among them, arkansas and missouri inhibit landholding by aliens for agricultural purposes, while the laws of louisiana, alaska, montana and new york contain measures preventing aliens from acquiring any interests in public land. other forms of restrictions are seen in the jurisdiction of nebraska, georgia and south carolina. 2.2.4.1 restrictions on the acquisition of agricultural land by all aliens aliens in arkansas are allowed to acquire interests in any type of real estate, except agricultural land, in the same manner as us citizens (note 54). however, a foreign party may take a valid title to the agricultural land through the enforcement of the lien or other process of law and any agricultural interest acquired thereof must be filed in the office of the circuit clerk (note 55). a reporting obligation is required in illinois for any foreign person who acquires or transfers an interest in agricultural land in the state, subject to the exception of leaseholds of ten years or less and security interests (note 56). missouri follows exactly the same rules as illinois in regulating agricultural land ownership by foreign persons (note 57). 2.2.4.2 restrictions on the acquisition of public land by all aliens louisiana imposes acreage limits on the leasing of public land for both nationals and aliens (note 58). many states are also keen to control natural resources discovered in or upon public land. new york provides that all deposits of gold and silver, as well as deposits of minerals and fossils, discovered within the state, belong to its citizens only (note 59). alaska and montana have reciprocal rules in granting aliens landholding rights in their jurisdictions for the undertaking of coal explorations on public land (note 60). 2.2.4.3 other restrictions regarding landholding by all aliens aliens in nebraska are generally prohibited from acquiring any real estate interests in land except for leasehold interests with durations of less than five years (note 61). south carolina limits the purchase of land by aliens to five hundred thousand acres, which does not apply to land acquired through foreclosures of mortgages after march 9, 1986, but in that case aliens must dispose of any excess of land within five years unless holding onto the land is otherwise approved (note 62). georgia is the only state that prevents aliens from owning or controlling land located within the boundaries of airports (note 63). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 55 published by scholink inc. 2.2.5 statutory restrictions on land ownership applied to foreign corporations legislation regarding the acquisition of land ownership by foreign corporations can be identified in eighteen jurisdictions. the relevant measures adopted reveal a pattern of geographical concentration with respect to national treatment (alabama, nevada, delaware and michigan); agricultural landholding (north dakota, oklahoma, south carolina, iowa and missouri); public landholding (mississippi and montana) and acreage limitations (wisconsin, south carolina and ohio). other types of measures are also observed in the following jurisdictions: wisconsin, louisiana, florida, georgia, nebraska and texas. 2.2.5.1 national treatment of foreign corporations among the statutes that expressly govern landholding by corporations, the enactments of alabama, nevada and delaware allow foreign corporations owning land in these states to exercise all the rights and privileges of ownership granted to domestic corporations (note 64). michigan even provides favorable financing rules for foreign corporations, by allowing them to purchase loans secured by the mortgage of real property through the individual person if such loans are insured or guaranteed in whole or in part by the agency of the federal government, without the establishment of the authority in the state for such purpose (note 65). 2.2.5.2 restrictions on the acquisition of agricultural land by foreign corporations many states limit or prohibit the acquisition of agricultural land by alien corporations. the legislation of north dakota and oklahoma provide that in general terms no foreign corporation may acquire any interest in any title to agricultural land, or engage in farming or ranching, subject to listed exceptions (note 66). north dakota allows foreign corporations to acquire agricultural land only if the ultimate beneficial interest in the entity is held by us citizens or permanent resident aliens of the us. however, such a restriction does not apply to agricultural land acquired by devise, inheritance, as security for indebtedness, by process of law or for the enforcement of a lien or claim. the statute further contains a saving clause for foreign corporations acquiring agricultural land for industrial purposes or whose right to hold is secured by treaty (note 67). in south carolina, any corporation engaged in agricultural activities is taxed at six percent of its fair market value if it has a non-resident alien as a shareholder, as opposed to the tax of four percent that is applied to other corporations (note 68). in iowa, foreign business is generally prohibited from obtaining agricultural land (note 69). however such an acquisition may be allowed if (1) it occurred on or after january 1, 1980 (note 70); (2) the land is no more than 320 acres and acquired for an immediate or pending use other than farming (note 71); (3) it is made through the operation of law in the collection of debt or for the purpose of undertaking; or (4) it is distributed by devise or decent (note 72). in addition to this, agricultural land acquired by foreign corporations for non-farming purposes must be converted to such purposes within five years (note 73). any rights acquired either by devise, decent or by a process of law must be divested or disposed of within two years of acquiring the rights (note 74). foreign corporations which acquire agricultural land for non-farming use or which own an interest in agricultural land must file a report www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 56 published by scholink inc. with the secretary of state (note 75). a non-farming purpose also suffices for an acquisition of agricultural land in missouri (note 76). however, corporations who acquire, hold or transfer any interests in agricultural land in missouri may also be subject to the filing requirement, unless they held a security interest in agricultural land on september 28, 1979 or acquired the interest in order to facilitate exploration for natural resources (note 77). 2.2.5.3 restrictions on the acquisition of public land by foreign corporations mississippi provides that no corporation owned in whole or in part by non-resident aliens may acquire public land (note 78). the legislation of montana employs a more tactful technique and conditions the rights of foreign-controlled corporations to acquire coal leases on public land upon the existence of reciprocity (note 79). 2.2.5.4 restrictions on the dimensions of landholding by foreign corporations ohio, wisconsin and south carolina restrict the acreage of land held by foreign corporations (note 80). in ohio, a foreign corporation in which a single non-resident alien acquires more than ten percent of the stock, or non-residents aliens in aggregate acquire over forty percent of the stock, must file with the secretary of state for real estate holdings in excess of three acres or one hundred thousand dollars (note 81). in the case of wisconsin, corporations or trusts having more than twenty percent of their stock held by non-resident aliens or foreign corporations may acquire land of up to 640 acres; they must also fulfill the filing requirement (note 82). south carolina allows land to be held up to a maximum of five hundred thousand acres by corporations in which aliens have controlling interests (note 83). however, land purchased to foreclose any mortgage acquired after march 9, 1996 is not subject to such an acreage limitation, as long as any land in excess of five hundred thousand acres is disposed of within five years (note 84). 2.2.5.5 other restrictions regarding landholding by foreign corporations nebraska prohibits aliens from acquiring title to any land or holding any leasehold interests for a period of more than five years (note 85). it also exempts foreign corporations from acquiring different types of landed property by descent, devise, or purchase except for real estate located within their corporate limits of cities or for manufacturing or industrial establishment (note 86). many states require foreign corporations to register their land ownership interests. for example, alien corporations in florida and georgia are required to maintain registered offices and registered agents and file with the department of state notice of the registered offices and the designation of the registered agents (note 87). in wisconsin and louisiana, foreign corporations must undertake filing prior to accessing real property (note 88). in other states, corporations with substantial foreign interests may find it hard to acquire title to real estate. for example, land acquired in texas, by a legal entity in which non-resident aliens and/or foreign governments own a majority interest, is not eligible for appraisals as timber land if such an acquisition has to be registered (note 89). in wisconsin, domestic corporations and trusts with more than 20% of their stock held by non-resident aliens must file their real estate interest in the same manner as foreign corporations (note 90). additionally, in georgia, businesses with substantial foreign www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 57 published by scholink inc. ownership are not allowed to acquire land located within the boundaries of airports (note 91). 2.2.6 statutory restrictions on land ownership applied to both domestic and foreign corporations as well as the restrictions applied to foreign corporations, it is worth noting that certain states have adopted legislation to extend the restrictions to all corporations. these states are nebraska, missouri, maine, south dakota, kansas, north dakota, oklahoma and west virginia. 2.2.6.1 restrictions on the acquisition of agricultural land by all corporations nebraska and south dakota impose a general prohibition on all corporations with respect to real estate used for farming or ranching (note 92). maine requires all corporations wishing to hold agricultural land to comply with the reporting requirement, unless the land is owned by family farm corporations or partnerships or is less than ten acres (note 93). the legislation of kansas states that no business entities, except certain specific types of agricultural entities, may be allowed to acquire or obtain an interest in the title to agricultural land (note 94). however it gives outright exceptions in this regard that, in practice, may circumvent the general rules to a large extent. these include, inter alia, agricultural land taken by bona fide encumbrance for the purposes of security; that acquired by business entities in an acreage necessary for non-farming operations; that held by educational, religious or charitable corporations or other corporations for research and experimental purposes; that owned by process of law in the collection of debts or by any procedure for the enforcement of a lien or claim (note 95). corporations, both domestic and foreign, seeking to hold agricultural land in kansas must fulfill an additional reporting requirement, but land of less than ten acres and state-assessed railroad-operating property is excluded from this requirement (note 96). missouri has provided similar provisions to those of kansas, both with respect to the general principle and the listed exceptions (note 97). corporations in north dakota are generally prohibited “from owning or leasing land used for farming or ranching and from engaging in the business of farming or ranching” except as is necessary either for surface coal-mining operations, or for industrial and business purposes, or in the case of certain non-profit organizations who own or lease the land for the purpose of conserving natural areas and habitats, in the land with an dimension of no more than twelve thousand acres (note 98). among these exception provisions, corporations engaged in farming or ranching, except for certain organizations performing the fiduciary duties on an estate or trust, must undertake the filing requirement with the secretary of state (note 99). furthermore, corporations not engaged in farming or ranching businesses, but which hold an ownership or lease of more than twenty acres for farming or ranching, must also file a report in this regard with the attorney general (note 100). 2.2.6.2 other restrictions regarding landholding by all corporations oklahoma contains a provision entitling all corporations to own, hold, or take any real estate located within an incorporated city or town, and makes a variety of exceptions in terms of land acquired for necessary and proper business purposes, real estate held solely as security for indebtedness, real estate mortgages held to secure any loans or debts, real estate acquired through a mortgage foreclosure or in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 58 published by scholink inc. the collection of a loan or debt, real estate acquired for the purpose of a sale or a lease to another corporation, or real estate possessed by religious, educational, charitable or scientific corporations (note 101). south dakota allows for the holding or taking of real estate by corporations of any sort, as is necessary and proper for carrying out their business (note 102). west virginia makes corporations holding land in excess of ten thousand acres subject to a differential tax rate on the excess (note 103). 3. historical background and constitutional limitations on alien land law in the us: a political perspective 3.1 historical background the present law affecting foreign investment in land is best understood in the context of its history. the history of alien land rights in america is characterized by considerable complexity and fluctuation. liberalization and restrictions have competed with each other under different social settings, and states’ legislation concerning alien landholding have always been subject to modification. generally, restrictions on alien land tenure have moved through four phases in american history, each of which, without exception, has been closely followed by the active action of replacement. 3.1.1 alien land law in the colonization era the first phase can be traced back to the colonial era, when america accepted the notion of alien disability from the english colonists (note 104). english colonists brought with them a complex set of restrictions on alien handholding when they arrived on the american continent. while they dominated the new land, in colonial times, these rules had the effect of excluding non-english people from acquiring, holding and transferring land (note 105). non-british people could seek a prerogative for their landholding by acquiring the status of denizens or, preferably, by obtaining naturalization (note 106). the desire to acquire landholding abilities was regarded as the predominant incentive to acquire the status of a british subject at that time (note 107). 3.1.2 alien land laws after american independence american courts after the revolution initially applied the common law doctrine of alien land disability in essentially the same form, merely replacing feudal subjects with citizens and the feudal king with the state (note 108). this brought about a substantial number of important legal questions regarding alien land possession in nineteenth-century us (note 109). land speculation was quite popular during the early parts of the nineteenth century. restrictions on aliens’ rights to conveyance thus became “that great spur to the industry, and one of the dearest privileges known in civil society” (note 110). strict enforcement of alien land restrictions generated great concerns about the marketability of land in the new states. land, as the necessary component, for entrepreneurial activities, was increasingly involved in the economic domain. clear and sound legal titles to land were especially important to the health of the market (note 111). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 59 published by scholink inc. furthermore, the high frequency of land speculation made it impossible for the citizen vendee to check the alien purchaser’s naturalization certificate prior to land exchange transactions. on the other hand, the innocent buyer might not be able to fully rely on the complete legitimacy of their legal title to engage in a land transaction and were forced to bear unfairly the risk of escheat created by others (note 112). creditors were another party whose rights could often be affected by the restrictive alien land ownership rules (note 113). accordingly, both the legislature and the judiciary recognized the great uncertainty in land title created by the common law doctrine. they both pushed forward the reformation of common law rules and attempted to perfect the defensible titles of aliens engaged in land transactions through general regulations, private bills and judicial decisions (note 114). courts in this process modified some key elements of alien land restrictions and applied the law in the manner believed to be the most appropriate to the new undertaking of economic activities (note 115). court decisions which fashioned the new rules of alien land rights fell into the following categories (note 116). firstly, although, theoretically, the courts fashioned restrictive rules to govern alien land conveyance, in terms of practical significance, the defensible title served only to cast a cloud upon the nature of the title which an alien might convey to a citizen (note 117). states seemed to modify such defensible titles so as to perfect transaction chains in certain circumstances. the south carolina court, in discussion of the case of lauren’s v. jenney, stated that a conveyance of real property that used to be held by an alien did not carry with it the state’s right of inquest of office and, therefore, the subsequent purchasers of alien-owned land would acquire a full-fee simple title in the chain of conveyance (note 118). the modified policies carried with them the attempt to secure titles conveyed to citizens from aliens (note 119). furthermore, trust instruments were increasingly permitted to allow aliens to hold real property. at the very beginning of the nineteenth century, most courts resisted the arguments that trusts vesting legal title to a citizen for the benefit of an alien should be prevented, as courts argued that, by such an attempt, aliens might secure the ownership of real property by circumventing the common law rules (note 120). courts believed that fictional designs attempting to avoid the underlying restrictive principles should not be sustained (note 121). however, such arguments were modified later to a more permissible regime under which trusts for the benefit of aliens were more likely to be protected and maintained (note 122). in summary, the courts were increasingly permissive of attempts by aliens to secure real property through private arrangements of trust instruments; the courts now interpreted such circumventions with a more text-based approach; that is, the legal title of land was held by a citizen, which was fully consistent with the requirements of the state policy to confine land ownership to citizens (note 123). secondly, the courts permitted aliens to bring suit and defend their possessory right to land, which they were unable to exercise under english law (note 124). thirdly, the courts started to permit aliens or citizens to devise land to each other through valid wills (note 125). all of these actions represented a more lenient approach towards aliens’ rights regarding land (note 126). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 60 published by scholink inc. however, it was of great importance to recognize that these amendments were merely modifications of the common law, and not a replacement of it. the tenet of common-law tradition remained, thus still restricting the land rights of the foreign-born (note 127). on the one hand, the court recognized the necessity to reform the old common-law rules tying land rights to allegiance. on the other hand, the underlying doctrines, such as the prohibition of inheritance rights between aliens and citizens, were held not to be repugnant to the new institutions. the underlying doctrine remained, despite social forces which had been expected to lead a change. the common-law traditions had a tenacity that was deeply rooted and could not be removed overnight (note 128). the strict judicial enforcement of the common-law doctrine accelerated the tendency to treat the political and civil rights of citizenship as separate categories (note 129). the selection of citizen as the relevant standard for exclusion furthered the dichotomy between a citizen’s civil rights, including the right to own real property, and a citizen’s political rights, such as the right to vote and hold office (note 130). when the vast territory of the new states required a larger population to increase the market economy of the land, the newcomers were widely welcomed and allowed to reside first, before proceeding to naturalization (note 131). by granting the alien residents certain economic rights prior to naturalization and relaxing restrictions on land rights, these judicial efforts affected citizenship in a way that furthered the separation of political and civil rights. 3.1.3 alien land law in the era of western movement towards the end of the nineteenth century, these alien land restrictions were gradually removed; by 1880 aliens were granted the same treatment as citizens in more than half of the states and others had greatly modified the pervasive view of the common-law rules (note 132). moreover, western states tended to relax alien land restrictions more radically than eastern ones (note 133). these new legislative and judicial efforts can almost certainly be attributed mostly to the need to attract settlers to the vast territory of the western regions, with their harsh natural environment (note 134). with thousands of aliens swarming into the western frontier to acquire large areas of land, the extensive alien land ownership in the frontier territories of the great plains gradually became a matter of great concern (note 135). the increased landholding of aliens engendered a certain sense of fear in the territory among local people. states considered themselves at great risk of being re-colonized by european landowners and held that such a large scale influx of alien population might threaten the independence of newly-established states (note 136). the territorial land act 1887 was passed to exclude european investors from acquiring large tracts of land in newly-opened territories (note 137). 3.1.4 alien land law in the era of racial intolerance resentment of alien land ownership arose later, during the 1880’s and 1890’s, as a result of the depressed agricultural condition and the perceived dangers of large-scale land acquisition by aliens (note 138). alien landholdings were extensive and large amounts of farmland had been acquired by aliens through different forms of ownership, such as the cattle company, mortgage loan corporations and property trusts (note 139). the wide range of companies of such nature caused the businesses of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 61 published by scholink inc. local farmers to shrink dramatically and, gradually, their existence was believed to threaten the existence of many local farm companies and families (note 140). motivated by racial intolerance, or by the fear of strong competition from the hard-working aliens, local farmers created the anti-alien movement known as the populist movement (note 141). legal enforcement against absentee landlordism was one of the measures proposed. in the face of economic downturn, along with increased land tenancy by aliens, the legislature appears to have prevented any form of outright ownership or indirect means of acquisition by aliens. courts also attempted to prevent aliens from circumventing the restrictive rules by piercing the corporate veils in certain cases if the title of land was transferred to local corporations designed to avoid the statutes (note 142). as most of the farming aliens during this period were british-born, the movement operated primarily against british citizens (note 143). as the farm depression passed and the agitation against absentee landlords diminished, a new wave of protectionism arose (note 144). this was the result of a large-scale influx of japanese immigrants and their establishment of farming communities in the pacific-coast states (note 145). the anti-japanese sentiment in these states remained until the end of the second world war (note 146). strong economic pressures, along with racial prejudice, led to protective policies being enacted throughout most regions of the us. california was the first state to curtail the landholding of the japanese and turned out to be the model for other states to follow (note 147). following world war ii, the strong support for alien land ownership on the grounds of equal protection and due process greatly overruled alien land restrictions, and thus anti-japanese regulations were substantially repealed (note 148). encouraged by the courts’ new stance, the legislative practice discriminating against landholding by orientals was either invalidated or removed (note 149). 3.1.5 conclusion the review of these historical fluctuations indicates that social forces were often the incentive behind reforms of state constitutions and provisions. in the midst of economic downturn and native agitation, the alien landholding laws were tightened, while economic prosperity brought about a more permissive regime (note 150). history also suggests changes in the rights of aliens and citizens, which are increasingly connected in more integrated economic structures, meaning that any deterioration in aliens’ rights will have a consequent effect on the quality of living of the national citizens (note 151). 3.2 constitutional and treaty limitations on alien land ownership law although the history of us alien land law relies heavily on nationality as a basis, it can be seen that over time the rules have undergone substantial modifications in the direction of equal rights of acquisition for aliens. currently, state alien land law may be subject to direct and indirect limitations imposed by the us constitution and treaties. the direct limitations arise from the fourteenth amendment dealing with equal protection and due process, while indirect restraints are placed through the constitutional subordination to federal authority under the supreme clause of article vi of the federal constitution. under these clauses, the exclusive federal power of foreign relations and foreign www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 62 published by scholink inc. commerce might override any conflicting state regulations, while the treaty provisions will supersede inconsistent state statutes. 3.2.1 equal protection the equal protection clause of the fourteenth amendment has been a significant protection instrument for aliens, especially resident aliens (note 152). there are two standards of review used to interpret alien land laws in terms of equal protection, namely, strict scrutiny and deferential review (note 153). strict scrutiny applies if the regulations affect fundamental rights or special public interests (note 154). the deferential review requires only fair and substantial relations between the classification and the objectives of the legislation (note 155). the supreme court since 1940s identified classification based on alienage as one subject to strict scrutiny. it argued that aliens were one of the “discrete and insular” minorities against which discrimination could be retained only if necessary to the achievement of a permissible state interest (note 156). as the burden of proof of that interest lay with the state and was unlikely to be fulfilled given the particular nature of discrimination inherent in the state law governing alien land ownership, the supreme court has struck down many state statutes forbidding aliens from land ownership (note 157). the courts, in applying the equal protection clause, have limited its application to resident aliens—those who have been lawfully permitted to reside in the us but are ineligible for citizenship. accordingly, only statutes that disadvantage resident aliens are subject to the strict scrutiny of judicial review. in the case of oyama v. california, the court held invalid the californian statutes which did not permit the alien father to pay consideration for the purchase of land by his citizen son, as a way of circumventing the restrictions. in the later case of takahashi v. fish and game commission (note 158), the court reiterated the permissibility of treating citizens and resident aliens indistinguishably with respect to the right to hold commercial fishing licences. the court defined the acquisition of the licence as the basic right to earn a living and rejected the state’s proposition to limit the distribution of its resources to its citizens only (note 159). the claims of non-resident aliens are treated quite differently. although this group of aliens still belong to a minority group, they are not treated as part of a “discrete and insular minority for whom heighted judicial solicitude is appropriate” (note 160) and thereby can only establish claims based on the lower standard of review—the deferential review. in the case of lehndorff geneva, inc. v. warren (note 161), the court applied the lower level of review to the wisconsin statute prohibiting non-resident aliens from owning land. the court held that the duties and burdens that the resident alien had in common with the citizen entitled him to most of the benefits enjoyed by citizens. but burden sharing, except for the payment of taxes in connection with the ownership or development of land, was lacking in the case of non-resident aliens (note 162). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 63 published by scholink inc. in other words, the rights protected by the higher level test of the equal protection doctrine involve only those basic human rights that might affect the alien’s ability to survive (note 163). insofar as acquisition of land seems necessary to the permanent living of resident aliens, it is legitimate to classify their claims as of fundamental concern (note 164). the claims of non-resident aliens, however, who acquire land purely for investment reasons, are assessed at the lower level, which has been taken in certain cases as a test for economic and social legislation (note 165). 3.2.2 substantial due process substantial due process is another doctrine applied by the court to invalidate anti-oriental legislation. unlike the equal protection clause, the due process clause is not limited to persons “within the jurisdiction” of the state and, thus, any rule regarding the land ownership of non-resident aliens is covered by the provisions contained in it. to satisfy the due process requirement, the state has to present a rational link between the purpose of the law and legitimate state interests (note 166). to make this clearer, the doctrine of equal protection was established to identify the legitimacy of the classification of aliens, while substantial due process was created to address the legitimacy of the objectives of statutes; they are two doctrines by which the court reviews alien land statutes from two different perspectives (note 167). although the due process doctrine conveys no substantial limitation on the legislative power of the state, it demands a more clear articulation of the legislative purpose and offers another means of removing alienage regulations by resorting to constitutional examination. it is without doubt that any restrictive statutes currently being applied will have a rational relationship to certain state interests. the real issue is whether the state interest underlying the restrictions on alien land ownership is sufficiently legitimate to survive due process review (note 168). due process requires a more substantial basis behind the state interest. therefore a mere declaration that a state is trying to exclude the influence of aliens from the local economy would not suffice to make the statutes at issue valid under substantial due process (note 169). more substantial and convincing arguments would have to be given (note 170). so far, there are still sixteen states that impose constraints on land ownership by non-residents and eleven states that subject all aliens to discriminatory measures. in the absence of a legitimate purpose, the states have no justification for imposing any restrictions on aliens’ land ownership. the due process clause is seen to have another important effect, that is, it incorporates the fourteenth amendment’s obligation to provide compensation for taking a property for public use (note 171). it offers an alternative to remedy the embedded common-law restrictions imposed on alien landholding. therefore, aliens could receive governmental compensation for losses incurred either in the case of escheat or as a result of failure to dispose of a property within the required period of time (note 172). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 64 published by scholink inc. 3.2.3 foreign commerce the federal power over interstate and foreign commerce presents another challenge to the restrictions imposed by states on alien landholding. justice marshall, in the case of gibbons v. ogden, held that the concept of foreign commerce may not be limited to “traffic … buying and selling, or the interchange of commodities” (note 173). it may be understood in a wider sense as the “commercial intercourse between nations, and parts of nations, in all its branches (note 174)”. real estate transactions cross states and borders and therefore fall into the scope of commerce as they involve cross-border money transfers and business management. however, the courts have held that the commerce clause, by its own terms, may prove difficult to invalidate state legislation (note 175). by defining alien landholding as traditional activities within the scope of state authority, the courts attempt not to interfere with the traditional power reserved by the states (note 176). in terms of real property, although the devolution of real property, when aliens are involved, may include some extraterritorial elements, such as foreign banking transactions, and foreign real estate agencies, these activities are only elements facilitating alien land transactions, rather than elements that reflect the fundamental aspects of the transactions (note 177). the fundamental element pertaining to an alien land transaction involves the transfer of title over the land, which is traditionally presumed to be within the scope of state authority (note 178). failure to recognize the nature of real estate transactions may lead to some improper conclusions that certain transactions involving aliens might be immune from the regulatory power of commerce clause, in cases where all these facilitating activities are fully completed within the territory of the us. on the other hand, a transaction involving only us citizens might turn out to be subject to the commerce clause regulation if it is enforced through the application of international facilities, such as international telephone calls or foreign capital transfers (note 179). the federal government has also ratified a number of treaties that maintain the validity of state statutes excluding alien ownership of real estate (note 180). by doing so, the federal government seems to be implicitly recognizing the exclusive authority of states to regulate their own land ownership matters. in view of the recognition of the state authority in doing so, the national legislation at issue may not be regarded as measures which interfere with the federal exercise of supreme power (note 181). 3.2.4 foreign relations the foreign relations powers of the federal authority are used in another argument to justify state alien land law. it is held that foreign affairs issues are in the exclusive realm of the federal government (note 182). the participation of aliens in economic transactions within a state makes them a matter of international concern and therefore enables the federal government to interfere by applying their foreign relations powers (note 183). however, given the fact that regulations on alien landholding are traditionally a local concern (note 184), there has been a tradition for the courts to expressly uphold state statutes that have an implicit or indirect effect on foreign affairs issues. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 65 published by scholink inc. cases before 1968 held that the alien landholding statutes with reciprocity clauses did not represent an interference with foreign relations (note 185). these regulations were claimed to be only incidental to foreign relations and could not, by itself, be taken as intruding on the exclusive domain of the federal government (note 186). in 1968, through the case of zschernig v. miller (note 187), the supreme court first established the principle that state alien landholding statutes may be invalidated solely due to the “intrusion by the state into the field of foreign affairs” (note 188). in that case, the supreme court invalidated the state statute that excluded alien heirs from the true benefits of inheritance by conditioning inheritance rights on reciprocity. by doing so, the supreme court seemed less concerned with the validity of the reciprocity statute, and more with the way in which the local judicial organs applied the statute. the local courts were found to generally engage in political inquires “into the type of governments that obtain in particular foreign nations” (note 189) and acted in quite an undiplomatic way, which impeded the effective exercising of national foreign relations powers. the supreme court removed this criterion and stated that the discriminatory nature of the statute alone warranted its invalidation in the following cases. in bethlehem steel corp. v. board of commissioners (note 190), a california appellate court struck down the california “buy american act”. the court held that conditioning the granting of public construction contracts to the consent to use and supply american-made materials had a “direct impact upon foreign relations” (note 191), and was an “intrusion into an exclusive federal domain” (note 192). the pennsylvanian court also invalidated its statute, based purely on reading the discriminatory policy implicit in the law, without inquiring into its application, in its decision regarding demczuk estate (note 193). as indicated in the above cases, the court still refused to remove the restrictive statutes based on federal foreign relations powers at the beginning of the twentieth century. however, towards the middle of that century, the courts slightly modified this position, deeming the statutes to be repugnant to the constitutional power of federal foreign relations in certain cases and, finally, established criteria to level out certain restrictive rules (note 194). although the authority to regulate land ownership has been taken as the exclusive domain of the state, it has been seen from the cases mentioned above that such a tradition is gradually being dismantled. furthermore, the cases bring about the idea that laws with discriminatory provisions against or in favor of particular nations might impair relations with those or other nations and thus have to be disapproved (note 195). 3.2.5 treaty obligations us treaty obligations under international law perform as the supreme law of the nation and, thus, may override conflicting state legislation. the existing treaty obligations of the us regarding alien land ownership are found in the multilateral agreement of gats, regional integration agreements and bilateral free trade agreements. however, upon the ratification of such treaties, treaty nationals are no longer subject to any conflicting rules prescribed in the relevant statutory law, although this does continue to apply to non-treaty aliens (note 196). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 66 published by scholink inc. it is apparent that these treaties tend to legitimize acquisitions for the purpose of business operations and residential undertakings, but not those for agricultural development or of land located in special areas (note 197). in this way, the us aims to ensure domestic public interest objectives, primarily national security and food security interests, which will be discussed in section 6. 3.3 conclusion it is apparent that these legal doctrines maintain direct links between full national rights of land ownership and the nationality or residency status of the landholder. from the standpoint of legal philosophy, only those who contribute are entitled to the rights granted by the states. as non-resident aliens do not contribute to society or the states to the same extent as permanent residents or citizens, states feel there is no requirement to grant them the same benefits. however, this still reflects the traditional view of treating landholding rights as political and social rights, rather than economic ones. alien investors, in the pursuit of economic benefits, have to acquire land in order to carry out their normal economic activities in the state. such rights are protected by the substantial due process doctrines, as well as by the treaties between the us and various foreign countries. the traditional view, which treats the restrictive alien land law as the realm of the state is not sufficient to sustain the restrictions, as there are no substantial and legitimate rationales behind this view—it is simply taken as fact (note 198). therefore, unless there is a necessary and over-riding reason in the public interest to the contrary, states may find it hard to defend their restrictive alien land measures, especially when they create obstacles to alien investment activities. 3.4 alien land ownership in the us: an economic perspective an examination of the us alien land law suggests that foreigners are generally allowed to acquire real property for business purposes. in mississippi, south dakota and kentucky, aliens or foreign corporations are entitled to land ownership to the full extent if it is for business purposes (note 199). however, it cannot be denied that almost all the states have maintained restrictive measures which affect investors’ rights regarding land. only thirteen state jurisdictions have granted aliens national treatment in acquiring and holding real property. eleven of these ensure equal treatment of residents and aliens, except for certain groups of aliens, such as alien enemies and aliens who have not declared an intention to become a citizen. sixteen states offer resident aliens the same treatment regarding landholding as citizens (note 200). nine jurisdictions restrict the acquisition of land by all types of aliens. however, most international investors that are drawn to the us for real estate investment do not qualify as temporary or permanent residents (note 201). they are drawn to the us mainly for economic reasons rather than political benefits. as most of the measures currently in force ensure only the equal treatment of residents and nationals, it is apparent that foreign investors still face a number of barriers with respect to ownership of us real estate, in most state jurisdictions. apart from the requirement that they be residents, foreign investors are also subject to a wide range of restrictions, such as the requirement regarding the form of legal entity, the dimension and duration of foreign landholding, restrictions on landholding by companies with foreign capital participation, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 67 published by scholink inc. different land tax measures applied to foreigners and restrictions on capital entry requirements for foreign real estate investors. for example, foreign corporations are required to have a registered office in order to own real property in florida and georgia (note 202). other states restrict the dimension or the duration of a foreign real property investment (wisconsin, south carolina, ohio and nebraska) (note 203). foreign-controlled enterprises are not permitted to acquire real estate in wisconsin, georgia, ohio, south carolina and texas (note 204). given the essential role of land as an input to trade and services as well as an investment, barriers to its access and use may stifle efficiency and growth in the real estate sector and the national economy in general. foreign investors are generally attracted to the us because of its strong property rights protection, liquid capital markets and political stability. however, the legal environment remains one of the few obstacles that may impede foreigners’ confidence, in particular during the current recession, and it thus requires more radical liberalization. 3.5 alien housing rights in the us: a human rights perspective states may, in order to ensure the secure and peaceful enjoyment of housing rights by their nationals, treat foreigners in a discriminatory way with respect to property rights. such an approach stems from the essential need to guarantee national public interests and remedy basic issues in the lives of local people. in the us, this has been applied in its allocation of social housing, which is an important program used to fulfill the basic housing needs of the most disadvantaged. the department of housing and urban development (hud), as the us federal department responsible for housing, has funded many social housing programs (note 205). each may carry detailed and specific eligibility criteria, with schemes funded locally determined locally. although national eligibility rules are often built into specific social housing programs, the general principle remains that only lawful immigrants and refugees can be eligible for social rented housing (note 206). for example, in hawaii, only bona fide residents of the state are eligible to purchase residential houselots within development tracts (note 207). 3.6 alien land ownership in the us: a national security perspective as mentioned above, some restrictions applied by the us states on aliens may be justified if they meet national security objectives, such as maintaining domestic control over agricultural land, land in particular designated areas, prohibiting land acquisitions by alien enemies or land obtained for exploration for natural resources. fourteen states prohibit aliens from acquiring agricultural land to ensure state food security interests (note 208). many states grant aliens land ownership but restrict the purposes it may be used for. for example, iowa, missouri, north dakota, and oklahoma allow agricultural land to be acquired by aliens who undertake to keep the land for non-farming purposes or as industrial sites (note 209). this is similar to the legislation adopted by nebraska, kansas, south dakota, minnesota and arkansas, which is based on an approach excluding aliens from obtaining a title to real estate that will be used for farming or otherwise engaged in farming (note 210). in certain cases, the acquisition of agricultural www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 68 published by scholink inc. land with the continuing farming establishment may be permitted, such as land acquired by devise or descent, by a process of law in the collection of debts, or by any procedure used for the enforcement of a claim on the land (note 211). however, agricultural land so acquired must be disposed of within a certain period of time after the title is transferred (note 212). such a requirement thus entails the exemption of agricultural landholding by aliens. additional authorization obligations are also imposed on foreigners pursuing an interest in agricultural land by a large number of states (iowa, missouri, kansas, maine, north dakota, arkansas and illinois) (note 213), as well as restrictions on landholding dimensions that are in place in pennsylvania, discriminatory tax rules in south carolina and restrictions on the agricultural use of public land in california (note 214). all of these measures of a restrictive nature enable states to ensure that agricultural interests are held domestically. it is clear that such legislation has been adopted in relation to national security and food security, in particular which could be used to justify such discrimination. other restrictions that may be justified on the grounds of national security are measures applied to land in sensitive areas, measures applied to enemy aliens and measures applied to protect national resources. for example, nebraska and oklahoma prohibit foreign corporations from acquiring land located outside the limits of the incorporated city or town in which it is based (note 215). georgia prohibits aliens or businesses with substantial foreign ownership from acquiring ownership of airports (note 216). alien enemies are subject to statutory limitations or restrictions on the acquisition and retention of real property in maryland, new jersey, georgia, virginia and pennsylvania (note 217). the trading with the enemy act 1917 established the principle that states could confiscate property holdings by alien enemies for the sake of national security. the us government and the states also restrict foreign investment in real estate obtained for the use of or exploration for natural resources. foreign investors with the intention of developing natural resources, such as minerals, coal, oil and gas, are required to qualify either through declarant resident status or be secured through the reciprocity provision in states such as alaska, california, montana, nevada, oregon and new york (note 218). in california, foreigners have to fulfill both requirements in order to obtain a lease or license for such activities (note 219). 3.7 conclusion while broad restrictions remain in the alien land statutes promulgated by the federal government and the states, the trend of globalization, coupled with the process of economic integration, has induced a change in the us. although, historically, us alien land law was biased heavily in favor of nationality, it can be seen that over time the criteria used have undergone substantial modifications towards equal rights of acquisition for aliens, and in particular non-resident aliens. measures making the acquisition of land dependent on the nationality and residency status of the acquirer has been viewed as unconstitutional under the equal protection and due process doctrines and challenged by treaty provisions. the traditional view that only those that show their allegiance to the nation may be entitled www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 69 published by scholink inc. to land ownership has had to be reconsidered. as the trend of globalization is expected to continue, state measures are like to be the most dominant remaining barriers to foreign real estate investment in the us. their elimination, or at least their modification, will be necessary. the foregoing analysis arguing against the restrictive alien land law does not mean that aliens should be allowed to acquire treatment fully equivalent to that of citizens in all circumstances. given the crucial importance of land ownership rights in achieving and maintaining public interests, it is unsurprising that both the federal government and the states continue to take regulatory measures against ownership by foreigners. firstly, the states must ensure the basic living conditions of their own citizens and not allow them to deteriorate through the participation of foreign investors in the real estate market. secondly, the states must ensure that the removal of such measures does not constitute a threat to national and public security. references alexander, g. s. (1997). commodity & property: competing visions of property in american legal thought 1776-1970. university of chicago press. https://doi.org/10.7208/chicago/9780226013527.001.0001 fitzpatrick, s., & stephens, m. (2007). an international review of homelessness and social housing policy. department of community and local government homeless research summary no. 6. madison, j. (1988). alien landownership in the united states: a matter of state control. brooklyn journal of international law, 147. morrison, f. (1975). limitations on alien investment in american real estate. minnesota law review, 621. nar (national association of realtors). (2003). foreign investment in u.s. real estate current trends and historical perspective. retrieved from http://www.realtor.org/wps/wcm/connect/ff3abe0043207e1fa7b8b7d4db880d7c/research_foreign_ invest_2010.pdf?mod=ajperes&cacheid=ff3abe0043207e1fa7b8b7d4db880d7c, accessed 15 september 2020 neuman, g. (1996). strangers to the constitutions: immigrants, borders and fundamental law. princeton university press. https://doi.org/10.1515/9781400821952 price, p. j. (1999). alien land restrictions in the american common law: exploring the relative autonomy paradigm. the american journal of legal history, 152. https://doi.org/10.2307/846284 sullivan, c. (1962). alien land laws: a re-evaluation. temple law quarterly, 15. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 70 published by scholink inc. notes note 1. 48 uscs § 1501. note 2. 48 uscs § 1507. note 3. 48 uscs § 1502. note 4. ibid. note 5. 48 uscs § 1503. note 6. 48 uscs § 1501. note 7. 7 uscs § 3501. note 8. aliens’ ownership rights mean the rights to take, hold, transmit and convey real estate; aliens’ inheritance rights mean the rights to take real estate by devise or descent. note 9. code of ala. § 35-1-1 (2010); cal const, art. i § 20 (2009); conn. gen. stat. § 47-7a (2010); 25 del. c. § 306 (2010); 25 del. c. § 308 (2010);25 del. c. § 307 (2010); fla. const. art. i, § 2 (2010);fla. stat. § 732.1101 (2010); burns ind. code ann. § 32-22-2-5 (2010); 33 m.r.s. § 451 (2010); mcls § 554.135 (2010); tenn. code ann. § 66-2-101 (2010); tenn. code ann. § 66-2-102 (2010); rev. code wash. (arcw) § 64.16.005 (2010); w. va. code § 36-1-21 (2010); a.r.s. § 14-2111 (2010) and utah code ann. § 75-2-111 (2010). the old arizona statute subjected the right to take property by devise or descent to reciprocity but the new law has clearly invalidated the effect of alienage on the distribution of estate by stating that “no person is disqualified to take as an heir because that person or a person through whom that person claims is or has been an alien”. note 10. kan. const. b. of r. § 17 (2009); la. const. art. i, § 4 (2010); alm gl ch. 184, § 1 (2010); n.d. cent. code, § 47-01-11 (2010); r.i. gen. laws § 34-2-1 (2010) and n.c. gen. stat. § 64-1 (2010). note 11. la. const. art. i, § 4 (2010); alm gl ch. 184, § 1 (2010); n.d. cent. code, § 47-01-11 (2010); r.i. gen. laws § 34-2-1 (2010); kan. const. b. of r. § 17 (2009); k.s.a. § 59-602 (2009); n.c. gen. stat. § 64-1 (2010) and n.c. gen. stat. § 64-3 (2010). note 12. n.c. gen. stat. § 64-3 (2010). note 13. k.s.a. § 59-602 (2009). note 14. c.r.s. 15-11-111 (2010); hrs § 560:2-111 (2010); hrs § 560:2-111 (2010); minn. stat. § 524.2-111 (2010); n.j. stat. § 3b:5-12 (2010); 68 p.s. § 22 (2010); va. code ann. § 64.1-4 (2010); wis. stat. § 710.01 (2010); orc ann. 2105.16 (2011); n.m. stat. ann. § 45-2-111 (2010) and alaska stat. § 13.12.111 (2010). note 15. r.r.s. neb. § 4-107 (2010) and wyo. stat. § 2-4-105 (2010). note 16. md. real property code ann. § 14-101 (2010); n.j. stat. § 46:3-18 (2010) and o.c.g.a. § 1-2-11 (2010). note 17. va. code ann. § 55-1 (2010). note 18. 68 p.s. § 28 (2010). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 71 published by scholink inc. note 19. krs § 381.290 (2010); v.s.a. const. § 66 (2010); cal pub resources code § 8105 (2009); idaho code § 58-313 (2010) and ors § 273.255 (2009). note 20. cal pub resources code § 6801 (2009). note 21. cal pub resources code § 7601 (2009). note 22. nev. rev. stat. ann. § 517.010 (2010); nev. rev. stat. ann. § 111.055 (2010) and ors § 517.010 (2009). note 23. hrs § 206-9 (2010). note 24. iowa code § 9i.2 (2010) and iowa code § 558.44 (2010). note 25. iowa code § 9i.3 (2010) and iowa code § 9i.4 (2010). note 26. iowa code § 9i.5 (2010). note 27. iowa code § 9i.3 (2010) and iowa code § 9i.4 (2010). note 28. ibid. note 29. iowa code § 9i.8 (2010) and iowa code § 9i.7 (2010). note 30. 68 p.s. § 41 (2010). note 31. s.d. codified laws § 43-2a-2 (2010). note 32. § 442.586 r.s.mo. (2010). note 33. § 442.591 r.s.mo. (2010). note 34. § 442.592 r.s.mo. (2010). note 35. n.d. cent. code, § 47-10.1-02 (2010). note 36. minn. stat. § 500.221 (2010). note 37. ibid. note 38. wis. stat. § 710.02 (2010). note 39. ibid. note 40. ibid. note 41. orc ann. 5301.254 (2010). note 42. miss. code ann. § 89-1-23 (2010) and miss. code ann. § 29-1-75 (2010). note 43. miss. code ann. § 89-1-23 (2010). note 44. ibid. note 45. ark. const. art. 2, § 20 (2010); mcls const. art. x, § 6 (2010); rsa 477:20 (2010); wyo. const. art. 1, § 29 (2010) and colo. const. art. ii, section 27 (2010). note 46. hrs § 171-74 (2010). note 47. hrs § 171-68 (2010). note 48. hrs § 516-33 (2010). note 49. okl. const. art. xxii, § 1 (2010). note 50. alaska stat. § 09.25.010(b) (2010). note 51. krs § 381.320 (2010). note 52. krs § 381.300 (2010). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 72 published by scholink inc. note 53. tex. tax code § 23.77 (2010). note 54. a.c.a. § 2-3-109 (2010). note 55. a.c.a. § 2-3-103 (2010). note 56. 765 ilcs 50/3 (2010). note 57. § 442.592 r.s.mo. (2010). note 58. la. r.s. 41:1216 (2010). note 59. ny cls pub l § 81 (2010). note 60. alaska stat. § 38.05.190 (2010) and mont. code anno., § 77-3-305 (2010). note 61. r.r.s. neb. § 76-402 (2010). note 62. s.c. code ann. § 27-13-30 (2009) and s.c. code ann. § 27-13-40 (2009). note 63. o.c.g.a. § 6-3-20.1 (2010). note 64. code of ala. § 10-2b-3.02 (2010); nev. rev. stat. ann. § 111.055 (2010) and 25 del. c. § 305 (2010). note 65. mcls § 450.2013 (2010). note 66. n.d. cent. code, § 10-06.1-02 (2010) and 18 okl. st. § 951 (2010). exceptions apply when agricultural land is acquired as security for indebtedness, by process of law in the collection of debts, by any procedure for the enforcement of a lien or claim or when otherwise used for industrial establishments. note 67. n.d. cent. code, § 47-10.1-02 (2010). note 68. s.c. code ann. § 12-43-220 (2009). note 69. iowa code § 9i.2 (2010) and iowa code § 558.44 (2010). note 70. iowa code § 9i.3 (2010) and iowa code § 9i.7 (2010). note 71. iowa code § 9i.3 (2010) and iowa code § 9i.8 (2010). note 72. iowa code § 9i.2 (2010) and iowa code § 558.44 (2010). note 73. iowa code § 9i.3 (2010). note 74. iowa code § 9i.5 (2010) and iowa code § 9i.3 (2010). note 75. iowa code § 9i.8 (2010) and iowa code § 9i.7 (2010). note 76. § 442.586 r.s.mo. (2010). note 77. § 442.592 r.s.mo. (2010). note 78. miss. code ann. § 29-1-75 (2010). note 79. mont. code anno., § 77-3-305 (2010). note 80. orc ann. 5301.254 (2011); wis. stat. § 710.02 (2010); s.c. code ann. § 27-13-30 (2009) and s.c. code ann. § 27-13-40 (2009). note 81. orc ann. 5301.254 (2011). note 82. wis. stat. § 710.02 (2010). note 83. s.c. code ann. § 27-13-30 (2009) and s.c. code ann. § 27-13-40 (2009). note 84. ibid. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 73 published by scholink inc. note 85. r.r.s. neb. § 76-402 (2010). note 86. r.r.s. neb. § 76-402 (2010) and r.r.s. neb. § 76-414 (2010). note 87. fla. stat. § 607.0505 (2010) and o.c.g.a. § 16-14-15 (2010). note 88. wis. stat. § 710.02 (2010) and la. r.s. 9:3423 (2010). note 89. tex. tax code § 23.77 (2010). note 90. wis. stat. § 710.02 (2010). note 91. o.c.g.a. § 6-3-20.1 (2010). note 92. ne. const. art. xii, § 8 (2010) and s.d. const. article xvii, § 7 (2010). note 93. 7 m.r.s. § 33 (2010) and 7 m.r.s. § 34 (2010). note 94. the specific types of agricultural entities that are not subject to the general prohibition rules include family farm corporations, authorized farm corporations, limited liability agricultural companies, family farm limited liability agricultural companies, limited agricultural partnerships, family trusts, authorized trusts and testamentary trusts. note 95. k.s.a. § 17-5904 (2009). note 96. k.s.a. § 17-5902 (2009). note 97. §350.015 r.s.mo. (2010). note 98. n.d. cent. code, § 10-06.1-02 (2010); n.d. cent. code, § 10-06.1-06 (2010) and n.d. cent. code, § 10-06.1-07 (2010). note 99. n.d. cent. code, § 10-06.1-17 (2010) and n.d. cent. code, § 10-06.1-19 (2010). note 100. n.d. cent. code, § 10-06.1-18 (2010). note 101. 18 okl. st. § 1020 (2010). note 102. s.d. const. article xvii, § 7 (2010). note 103. w. va. code § 11-12-75 (2010). note 104. sullivan, c., “alien land laws: a re-evaluation” (1962) 36 temple law quarterly 15; p. 26. note 105. ibid., p. 27. note 106. see 1 blackstone’s commentaries 374, which states letter of denization conveyed no political rights but gave the aliens capacity to purchase and hold land and to transmit it to any children after born after denization. but the authority of colonial governors to issue such letters is often curtailed by british crown. therefore naturalization is preferential approach to acquire landownership. note 107. sullivan, supra n. 104, p. 17. note 108. price, p. j., "alien land restrictions in the american common law: exploring the relative autonomy paradigm" (1999) 43 the american journal of legal history 152, p. 157. note 109. ibid., p. 156. note 110. commonwealth v. martin [va. app. 1816] 5 munf. 117, p. 153. note 111. alexander, g. s., commodity & property: competing visions of property in american legal thought 1776-1970, (university of chicago press 1997), p. 190. note 112. the term is referred to the situation where a legal interest in land is transferred to the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 74 published by scholink inc. government if the person dies interstate without a will or an heir to his or her estate. note 113. price, supra n. 108, p. 187. note 114. see 21 michigan 1827 and 50 u.s.c. app. §1 (1970). note 115. price, supra n. 108, p. 162. note 116. ibid. note 117. ibid. note 118. see lauren's v. jenney [s.c. 1843] 1 speers 356, pp. 363-364. note 119. price, supra n. 108, p. 163. note 120. hubbard v. goodwin [va. app. 1832] 30 va. 492, p. 551. note 121. price, supra n. 108, p. 182. note 122. marx v. mcglynn [1882] 88 n.y. 357, p. 376. note 123. price, supra n. 108, p. 182. note 124. ibid., p. 194. note 125. ibid., p. 174. note 126. ibid., p. 195. note 127. ibid., p. 191. note 128. pound, r., the formative era of american law, (little, brown and co. 1938), p. 82. note 129. price, supra n. 108, p. 196. note 130. ibid., p. 197. note 131. ibid., p. 169. note 132. sullivan, supra n.104, p. 29. note 133. see 31 c.f.r. pt. 500 (1975); 8 c.f.r. pts. 501-10 (1975) and cal. stat. 1913. note 134. price, supra n. 108, p. 169. note 135. morrison, f., “limitations on alien investment in american real estate” (1975) 60 minnesota law review 621, p. 625. note 136. ibid. note 137. 48 u.s.c. §§ 1501-07 (1970). note 138. sullivan, supra n. 104, p. 31. note 139. the greatest cause of resentment was the activity of an anglo-irish absentee, william scully, who attempted to implant “irish landlordism” in america which finally led to resentment from local farmers and, to a great extent, the populist movement that followed. note 140. sullivan, supra n. 104, p. 31. note 141. morrison, supra n. 135, p. 626. note 142. sullivan, supra n. 104, p. 32. note 143. ibid., pp. 31-32. note 144. ibid., p. 32. note 145. morrison, supra n. 135, p. 626. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 75 published by scholink inc. note 146. ibid. note 147. ferguson v. skrupa [1963] 372 u.s. 726 (hereinafter “ferguson v. skrupa”); the anti-japanese legislation had spread throughout the pacific coast and extended as far as delaware; oregon, idaho, montana, arizona, kansas, texas and delaware followed such an regulation while new mexico and louisiana declared the restriction in their institutions. note 148. morrison, supra n. 135, p. 625. note 149. ibid., pp. 627-628. note 150. price, supra n. 108, p. 174. note 151. neuman, g., strangers to the constitutions: immigrants, borders and fundamental law, (princeton university press 1996), p. 59. note 152. madison, j., "alien landownership in the united states: a matter of state control" (1988) 14 brooklyn journal of international law 147, p. 171. note 153. morrison, supra n. 135, pp. 639-40. note 154. loving v. virginia [1967] 388 u.s. 1 note 155. dandridge v. williams [1970] 397 u.s. 471, p.485; mcgowan v. maryland [1961] 366 u.s. 420, pp. 425-427. note 156. see ferguson v. skrupa. note 157. see graham v. richardson [1971] 403 u.s. 365; sugarman v. dougall [1973] 413 u.s. 634; re griffiths [1973] 413 u.s. 717. note 158. see takahashi v. fish com’n. note 159. madison, supra n. 152, p. 172. note 160. see shaffer v. heitner [1977] 97 s.ct. 2569. note 161. demczuk estate [1971] 444 pa. 212, 282 a. 2d 700 (hereinafter “demczuk estate”). note 162. lehndorff geneva, inc. v. warren [1976] 74 wis. 2d 369, 246 n.w. 2d 815. note 163. morrison, supra n. 135, p. 642. note 164. ibid., pp.642-643. note 165. ibid., p. 643. note 166. north dakota state board of pharmacy v. snyder's drugs [1973] 414 u.s. 156, pp.164-7; nebbia v. new york [1934] 291 u.s. 502; ferguson v. skrupa, pp. 731-732. note 167. morrison, supra n. 135, p. 645. note 168. ibid. note 169. ibid. note 170. ibid. note 171. chicago, b. & q. r. co. v. chicago [1897] 166 u.s. 226. note 172. shames v. nebraska [1971] 323 f. supp. 1321, p.1341 (van pelt, j., dissenting). note 173. gibbons v. ogden [1824] 22 u.s. (9 wheat.) 1, pp. 189-190. note 174. ibid., p. 190. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 76 published by scholink inc. note 175. morrison, supra n. 135, p. 652. note 176. great atl. & pac. tea. co., inc. v. cottrell [1976] 424 u.s. 366, p.371; raymond motor transp., inc. v. rice [1978] 434 u.s. 429, p. 441. note 177. madison, supra n. 152, p. 164. note 178. ibid. note 179. ibid. note 180. see for example, treaty of amity, economic relations and consular rights with muscat and oman, 1960 2 u.s.t. 1835,t.i.a.s. no. 4530; treaty of friendship, establishment and navigation with belgium 1963 2 u.s.t. 1284, t.i.a.s. no. 5432; treaty of friendship, establishment and navigation with luxembourg, 1963 1 u.s.t.251, t.i.a.s. no. 5306; treaty of amity and economic relations with thailand, 1968 5 u.s.t. 5843, t.i.a.s. no. 6540. note 181. morrison, surpa n. 135, p. 652. note 182. ibid., p. 646. note 183. fisch, w. b., "state regulation of alien land ownership" (1978) 43 missouri law review 407, p. 424. note 184. madison, supra n. 152, pp. 167-168. note 185. clark v. allen [1947] 331 u.s. 503, p. 517. note 186. ibid. note 187. zschernig v. miller [1968] 389 u.s. 429. note 188. ibid., p. 432. note 189. ibid., p. 434. note 190. bethlehem steel corp. v. board of commissioners [1969] 276 cal. app. 2d 221, 80 cal. rptr. 800. note 191. ibid., p. 85. note 192. ibid. note 193. see demczuk estate. note 194. fitch, supra n. 183, p. 427. note 195. ibid. note 196. morrison, supra n.135, p. 659. note 197. ibid., p. 661. note 198. the illustration of definitional powers of state can be seen in the decision in the case hauenstein v. lynham [1880] 100 u.s. 483, p.484; however, in the case of reed v. reed [1971] 404 u.s. 71, the court held that some more substantial basis has to be established for the discriminatory regulations. note 199. miss. code ann. § 89-1-23 (2010); s.d. const. article xvii, § 7 (2010) and krs § 381.320 (2010). note 200. morrison, supra n. 135, p. 663. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 77 published by scholink inc. note 201. nar (national association of realtors), “foreign investment in u.s. real estate current trends and historical perspective”, (2003), available at http://www.realtor.org/wps/wcm/connect/ff3abe0043207e1fa7b8b7d4db880d7c/research_foreign_inve st_2010.pdf?mod=ajperes&cacheid=ff3abe0043207e1fa7b8b7d4db880d7c, accessed 15 september 2020, p. 11 note 202. see e.g. fla. stat. § 607.0505 (2010) and o.c.g.a. § 16-14-15 (2010). note 203. wis. stat. § 710.02 (2010); s.c. code ann. § 27-13-30 (2009); s.c. code ann. § 27-13-40 (2009); orc ann. 5301.254 (2011) and r.r.s. neb. § 76-402 (2010). note 204. wis. stat. § 710.02 (2010); o.c.g.a. § 6-3-20.1 (2010); orc ann. 5301.254 (2011); s.c. code ann. § 27-13-30 (2009); s.c. code ann. § 27-13-40 (2009) and tex. tax code § 23.77 (2010). note 205. fitzpatrick, s. and m. stephens, “an international review of homelessness and social housing policy” (30 november 2007) department of community and local government homeless research summary no. 6, p. 13. note 206. see ibid., p.89, annex 1. note 207. hrs § 516-33 (2010). note 208. they are missouri, nebraska, north dakota, illinois, oklahoma, south dakota, south carolina, pennsylvania, california, iowa, kansas, maine, arkansas and minnesota. note 209. iowa code § 9i.8 (2010); iowa code § 9i.3 (2010); iowa code § 9i.4 (2010); §442.591 r.s.mo. (2010); §442.591 r.s.mo. (2010); n.d. cent. code, § 47-10.1-02 (2010) and 18 okl. st. § 951 (2010). note 210. ne. const. art. xii, § 8 (2010); k.s.a. § 17-5904 (2009); s.d. codified laws § 43-2a-2 (2010); minn. stat. § 500.221 (2010); a.c.a. § 2-3-109 (2010) and a.c.a. § 2-3-103 (2010). note 211. see for example, iowa code § 9i.5 (2010); iowa code § 9i.3 (2010); south dakota: s.d. codified laws § 43-2a-2 (2010) and minnesota: minn. stat. § 500.221 (2010). note 212. for example, in iowa, agricultural land acquired by aliens by devise or descent or acquired by a process of law must be disposed of within two years of the title being transferred. see iowa code § 9i.5 (2010) and iowa code § 9i.3 (2010). note 213. see, for example, iowa: iowa code § 9i.2 (2010); iowa code § 558.44 (2010); iowa code § 9i.8 (2010); iowa code § 9i.7 (2010); missouri: §442.592 r.s.mo. (2010); kansas: k.s.a. § 17-5904 (2009); maine: 7 m.r.s. § 33 (2010); 7 m.r.s. § 34 (2010); north dakota: n.d. cent. code, § 10-06.1-17 (2010); arkansas: a.c.a. § 2-3-109 (2010); a.c.a. § 2-3-103 (2010) and illinois: 765 ilcs 50/3 (2010). note 214. 68 p.s. § 41 (2010); s.c. code ann. § 12-43-220 (2009) and cal pub resources code § 8105 (2009). note 215. r.r.s. neb. § 76-414 (2010) and 18 okl. st. § 1020 (2010). note 216. o.c.g.a. § 6-3-20.1 (2010). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 78 published by scholink inc. note 217. md. real property code ann. § 14-101 (2010); n.j. stat. § 46:3-18 (2010); o.c.g.a. § 1-2-11 (2010); va. code ann. § 55-1 (2010) and 68 p.s. § 28 (2010). note 218. alaska stat. § 38.05.190 (2010); mont. code anno., § 77-3-305 (2010); nev. rev. stat. ann. § 517.010 (2010); nev. rev. stat. ann. § 111.055 (2010); ors § 517.010 (2009) and ny cls pub l § 81 (2010). note 219. cal pub resources code § 6801 (2009). microsoft word elp-v1n1-p105 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 1, no. 1, 2018 www.scholink.org/ojs/index.php/elp 105 original paper trump and u.s. immigration policies. lessons from the eisenhower administration alia k. nardini1* 1 adjunct professor, spring hill college italy center, bologna, italy * alia k. nardini, collegio alma mater, via giovanni sacco 12, 40127, bologna, italy received: april 30, 2018 accepted: may 10, 2018 online published: may 21, 2018 doi:10.22158/elp.v1n1p105 url: http://dx.doi.org/10.22158/elp.v1n1p105 abstract while u.s. immigration entry policies after 1953 became a hallmark of ideological openness, designating the united states as the unquestioned leader of a freer and more just world order, donald trump’s current immigration strategies isolate america, damage her economy, and fuel divisive feelings among citizens. this paper hopes to persuade the republican party not to revert to its pre-1953 restrictionist and nativist stance, thereby undoing the crucial work undertaken by the eisenhower administration. the author argues that a sound grasp of the debate that led to the approval of the refugee relief act in 1953 can lead to better informed political decision-making, tracing a new phase of america’s active presence on the world stage, in line with the country’s national interest and cold war tradition. keywords trump, muslim ban, u.s. immigration policy, restrictionism, nativism, eisenhower, cold war 1. introduction on august 7, 1953, president eisenhower signed the refugee relief act. this document authorized permanent entry on special visas for 214,000 refugees, orphans, expellees, and relatives of u.s. citizens or aliens in the united states. with the refugee relief act, america abandoned the idea of immigration quotas based on the country of origin, developing a more flexible concept of national security. at a crucially unstable phase of the cold war, with the soviet troika fighting over power after stalin’s death and the korean war coming to an end, the republican party chose to embrace a more liberal approach to immigration. with the refugee relief act, america’s immigration policies became an ideological, economic, and political asset used by republicans to fight communism both in the domestic and international realms. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 106 published by scholink inc. this pivotal shift in the republican party’s thinking on immigration paved the way for forthcoming legislation, such as the immigration and nationality act of 1965. in addition, the 1953 refugee relief act proved to be consistent with national security requirements, upholding the conservative tradition of american exceptionalism during the cold war. from then onwards the u.s. officially abandoned entry mechanisms centered upon country of origin, recasting its public image as a safe haven among the oppressed and politically persecuted. furthermore, with the passing of the refugee relief act the united states assumed a more ideologically authoritative role in world politics, promoting the american dream overseas. despite the contingent and temporary fluctuations that inevitably characterize policymaking, u.s. legislation has been consistent with its liberal tradition since the end of world war ii (de laet, 2000). america has always been a country of immigrants: they are vital to the long-term prosperity and security of the united states, and they constitute an increasingly important asset for the u.s. armed forces. allowing people into the country to visit, study, or work, is “one of the surest ways to build friendships with future generations of foreign leaders and to show america’s best face to the world” (bush, mclarty, & alden, 2009, p. ix). nevertheless, the traditionally open response to immigration into the united states is under severe scrutiny today, as the republican party reverts to a much older political tradition, epitomized by the doctrines of restrictionism and nativism. donald trump’s executive order protecting the nation from foreign terrorist entry into the united states, colloquially known as the muslim ban, has sparked heated debate both domestically and abroad, proving as divisive as it is resilient. this paper argues that the logic underlying trump’s nativist and restrictionist entry policies for immigration is not only negatively affecting national interest; it also fails to propel the u.s. forwards on the world stage, making america look hesitant and fearful. the administration’s position on immigration also shows disengagement from ideals that are conventionally associated with cold war strategies and the american dream. assessing the entirety of current u.s. immigration policies, or discussing the constitutionality of donald trump’s executive orders, are beyond the scope of this paper. similarly, this essay does not wish to address the domestic and international effects of u.s. immigration strategies, past and present. instead, this research will outline the reasoning behind the refugee relief act of 1953, and compare it to the narrative on immigration that has shaped the campaign and the presidency of donald trump to the present day. available research on migration considers the juxtaposition of two historical periods immensely fruitful, pointing out the benefits of such methodology (gerstle & mollenkopf, 2001). by looking at similarities and divergences in republican immigration strategies at two different historical moments, this paper hopes to transcend contingent perspectives and suggest an alternative way of thinking about immigration today. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 107 published by scholink inc. 2. the 1953 republican turn on immigration in the fifties, the issue of immigration in the united states reached an important turning point. at the end of world war ii, the allies had pledged to assist and relocate a massive number of political refugees and displaced persons in europe. many of them, because of family ties or economic necessity, dreamed of moving to the u.s. approaching the end of his presidential term, and following the famous speech of march 24, 1952, harry truman appointed a presidential commission on immigration and naturalization. its testimonies, collected in the document whom we shall welcome, pointed almost univocally to the call for a more tolerant america, which would be open to migratory flows from southern europe (woolley & peters, 2009). this led to the belief that a greater number of visas for dps from world war ii, victims of political persecution, and unemployed greeks, italians and germans, would match the image of a free and generous nation, in contrast with the obscurantism of communist countries (loescher & scanlan, 1986, pp. 44-47). congress, however, was divided. on one side, the most numerous were the restrictionistsː those who believed in strict regulatory policies, irrespective of the circumstances and motivations of migrants. on the other, a minority who was clamoring for a review of the entire quota system, in order for it to become more liberal. in this view, visas would be allocated regardless of provenience and solely based on so-called “functional” priority: special skills and individual humanitarian motives. the largely centrist area supported the continuation of the current quota system instead, granting “emergency” visas to refugees, based upon the country of origin (robbins, 1956, p. 313). after taking office, eisenhower seemed willing to follow the path charted by truman. unlike most republicans, who held restrictionist views, the president was convinced that migrants did not represent a threat to u.s. security. the president was certain that a more open policy toward immigration would be a valuable resource in the ideological struggle against the soviet union. therefore, eisenhower requested congress to consider the entry of a greater number of migrants in the united states. a more open and pragmatic attitude on u.s. immigration would allow america to strengthen her bond with other nato countries, facing the cold war with a solid coalition led by the united states. in fact, a more fluid approach to immigration could consolidate support and gain electoral traction for centrist coalitions in office in allied nations, such as italy. this policy could thus ensure that these countries would not fall hostage to a communist party intent on presenting itself as a champion of the weak, by supporting governments that could fend off economic and social malaise. hence, it would help keep both government spending and the social discontent of citizens under control. to make the proposal more palatable, eisenhower argued that these were temporary measures, solely aimed at protecting the interests of the united states abroad. this idea was particularly intriguing for republicans, due to its decisive anticommunist tinge. however, senator robert taft’s isolationist legacy was holding strong, as the senator of ohio still benefited from much popularity after running for the grand old party primaries in 1952. mccarthyism was equally cumbersome: in 1953, senator mccarthy was chairman of the senate committee on government www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 108 published by scholink inc. operations and amply used his powers to investigate supposed communist infiltrations in the u.s. also, the only document on immigration that had been approved after the displaced persons act of 1948 was the immigration and nationality act (ina) of 1952, known as the mccarran-walter act. the mccarran-walter act, proposed by the democrats, had become law on june 27, 1952 despite a presidential veto by truman. it regulated immigration in the united states and the expulsion of illegal immigrants, making the naturalization process more difficult, and many conservatives did not see reason to change an agreement so recent and, until proven otherwise, still effective. even though the number of immigrants who were accepted into the united sates had increased with the ina, communist sympathizers were banned and the government maintained highly restrictive categories based on the country of origin. mccarran’s reasoning had been that it could be highly risky to let foreigners come to the united states, especially when they came from countries where communism was strong and poverty was widespread. social discontent could be a catalyst for revolutionary talk, and this could not be permitted on u.s. soil (campi, 2004; shanks, 2001). therefore, a more liberal policy towards immigration was unacceptable to many pragmatist conservatives, whose notions of patriotism and citizenship were framed in primarily restrictive terms. nevertheless, between 1952 and 1953, republicans redefined their positions. with the prospect of a prolonged cold war, the party needed new and bold strategies. for this reason, the eisenhower administration adopted the arguments of the liberalizing front, highlighting the possibility of opening its borders to counter the communist ideology. a new immigration program would first need to rectify the apparent stigma associated with minorities from southern europe, whom republicans had long ignored, as they could turn into a valuable source of future electoral support (bon tempo, 2008, pp. 36-37). republicans also understood that new immigration legislation was politically attractive because it fulfilled eisenhower’s electoral promises of revising the mccarran-walter act, in order to better deal with recent changes in the geopolitical landscape. it also aligned with the president’s will to review truman’s containment policies in a more active way, emphasizing deterrence and rolling back the iron curtain. still, it did not represent a radical break with the past, given that the new proposal would assume an extraordinary and temporary character and not be presented as a comprehensive immigration reform. as rorty (1955) explains, “both mr. eisenhower and his democratic opponents had repeatedly denounced the disastrous inequities, injustices, and obstructions embodied in our basic immigration law. but neither party was politically willing or able to legislate a statesmanlike immigration policy, or even, as it turned out, to pass an effective emergency palliative” (pp. 301-309). working in the eisenhower administration, william draper, then air force aide to the president, was first to suggest the use of increased immigration quotas into the united states to influence election results in countries with communist leanings. a memorandum by harold linder (1986) and james c.h. bonbright, sent to secretary of state john foster dulles and dated february 25, 1953, brought to the president’s attention the need to accelerate the approval by congress of specific legislation that would allow about 240,000 immigrants to enter the united states within the following two years, including www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 109 published by scholink inc. 75,000 italians (p. 1605). the specific reasoning on the italian case better exemplifies the goals of the eisenhower administration. as bon tempo (2008) observes, “in italy, american experts worried that population pressures—from both refugees and ‘overpopulation’—might lead to political discontent, which would facilitate the rise to power of the italian communist party. the upcoming italian elections in may 1953 sharpened state department apprehensions” (p. 35). admittedly, the eisenhower administration viewed immigration law as one of the keys to keep the italian communist party (pci) under control. through new legislation, the united states could support and strengthen then prime minister alcide de gasperi’s party, the christian democracy, viewed as the most moderate and balanced player in the political arena. at the same time, it would erode support for the pci, and simultaneously show to the people on both sides of the atlantic that america cared about italy’s fate, and was prepared to welcome its citizens who were in difficulty and wanted to leave. this would provide an additional source of income to the families most in need, expand democratic consensus, and therefore, by extension, the power of the dc in future government coalitions. following the aforementioned memorandum by linder and bonbright, secretary of state dulles wrote a document on march 26 addressed to president eisenhower, in which he recommended congress to authorize the entry of 240,000 non-quota immigrants. dulles also noted that representatives emmanuel celler and ruth thompson, as well as senators william langer and robert c. hendrickson, would support the project (dulles, 1983a). for his part, celler had reminded the president in a personal meeting that such an initiative would be consistent with his recent state of the union address, insisting on the bipartisan character that the proposal ought to assume (rep. celler, 1953). it was also fundamental that this type of legislation would not be purported as a revision of the mccarran-walter act. indeed, many in the administration feared that mccarran would resort to filibustering: he had already proposed an all-refugee amendment, which in practice would reduce the quotas, leading to negative political and diplomatic repercussions among america’s allies (dulles, 1983b; zolberg, 2009, p. 322). on may 31, 1953, republican senator arthur watkins, who chaired the senate judiciary subcommittee on immigration and the national interest, presented to the senate the project known as the emergency migration act. the rationale in support of the document was that of national security, in line with cold war policies, adding emphasis on the economic benefits which would be reaped from a major influx of workers into the country. at the same time, a national security council memorandum recommended the passing of the law, “to encourage defection of all ussr nations and ‘key personnel from the satellite countries’ in order to ‘inflict a psychological blow on communism’” (zolberg, 1995, pp. 123-124). still, despite the cautious optimism shown by the president’s special assistant in his communication to ambassador to italy clare booth luce on july 6 (jackson, 1953), many senators remained vehemently opposed to the project (dulles, 1983b). nevertheless, in the conference with the legislative leaders on july 20, the president renewed his www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 110 published by scholink inc. support for the document in its latest form, even recommending increasing the number of permits for special categories (eisenhower, 1983, p. 1631). resolution hr 6481 was approved in the house 221-185 on july 28, 1953, lowering the threshold of immigrants to be admitted from 240,000 to 217,000. 132 republicans, 88 democrats and one independent declared themselves in favor, and 74 republicans and 111 democrats opposed. the day after, the senate agreed to a revised version by a 63-39 roll-call vote, with the support of 38 republicans and 24 democrats, again lowering the total number of immigrants allowed to enter to 214,000. all the senators from the south, besides two, expressed a negative opinion, showing the presence of a more visceral and traditionalist conservatism in the southern part of the nation (cisek, 2006, p. 67; rorty, 1995, p. 302). however, such opposition did not have a lasting impact, as on july 31, 1953, the house accepted the report, and the senate granted its final approval on the next day. on august 7, 1953, president eisenhower signed the bill and the proposal outlined for the emergency migration act finally became the refugee relief act. the fixed annual immigration quotas (154,657 visas) had already been established by the immigration and nationality (mccarran-walter) act of 1952. additionally, the refugee relief act of 1953 authorized the permanent entry of 214,000 refugees, orphans, expellees, relatives of us citizens or aliens temporarily in the united states, on special non-quota visas. it remained in place for three years, until december 31, 1956 (refugee relief, 1956, pp. 312-315). it was a significant event for several reasons. first, with the refugee relief act america officially committed to abandoning immigration quotas based on the country of origin, paving the way for a possible revision of the walter-mccarran act. more specifically, the refugee relief act laid the theoretical basis for subsequent legislation, like the refugee-escapee act (rea) of 1957, and the refugee fair share act of 1960 (martin, 2011, p. 179). however, in the following years, conservative democrats from the south in powerful congressional positions prevented racial egalitarians in their own party from enacting more profound and lasting immigration reforms. therefore, the national-origins system was not erased from legislation entirely until the introduction of the immigration and nationality act of 1965 (the hart-celler act), which openly relied on a preference system focused on immigrants’ family relationships with u.s. citizens or legal permanent residents, or their skills (fitzgerald, 2014, pp. 119-120). the eisenhower administration was pivotal in liberalizing immigration laws. after 1953, the republican party developed a more flexible concept of national security, up to then limited by unrealistic and overly oppressive rules towards asylum seekers. additionally, the refugee relief act introduced for the first time in american legislation the term “escapees”, which brought together the idea of refugee and expellees within a broader notion of “fugitives”. the term “asylum seeker” was under all aspects considered applicable to individuals “unable to return to a communist country, or dominated by the communists” (henson, 2013, pp. 1816-1817), an idea that would later be resumed and expanded in the united states escapee program (usep), which officially began in 1954 (curti, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 111 published by scholink inc. 1963, pp. 538-539; carruthers, 2005). this meant that national security could be protected precisely by welcoming those oppressed, persecuted, and politically moderate elements who came from countries “at risk”—and not keeping them out because of their provenience. the refugee relief act also legitimized the use of the concept of “parole”, previously introduced—albeit in a restrictive manner—by walter and mccarran in the immigration and nationality act of 1952. after the hungarian revolution in 1956, eisenhower authorized the entry of 38,000 fugitives into the u.s. through the hungarian parole program. the president took advantage of a provision in the mccarran-walter act that allowed special access to the united states through the mechanism of paroling, for medical reasons, family reunification or other humanitarian reasons, at the discretion of the attorney general. the recipients of this extraordinary act were allowed entry in the country not as permanent residents, but as asylum seekers instead. with a remarkable decision, eisenhower then assigned those visas that lay unused as part of the refugee relief act, in order to rectify the hungarian escapees’ precarious situation. such action directly connected the possibility of paroling with the term “refugee”, making the two concepts interchangeable, and drawing a continuum in us legislation for the use of immigration to oppose communism (buff, 2008, p. 32; bon tempo, 2008, pp. 70-71). despite the difficulties and the controversies related to the implementation of the refugee relief act, as it appears from the profuse literature on the corsi affair (immigration, 1955; corsi, 1955; u.s. congress senate committee on the judiciary, 1955), changes in immigration policies were met with high approval ratings among u.s. citizens. americans responded positively to a liberalizing turn in immigration law, as popular support for the admission of refugees rose to 47% in 1953, double the percentage of 1947 (fetzer, 2000, p. 40). although the republican party was not able to create unequivocal internal support for the proposal, the refugee relief act became a valuable tool for foreign policy in the gop during the cold war (zucker, n. l., & zucker, n. f., 1992). in this sense, the progressive abandonment of isolationism and a more resolute anti-communism in the republican party exemplified the conservatives’ attempt to differentiate themselves from liberal intellectuals after world war ii, as the latter were perceived as consistently ready to ignore, and sometimes excuse, the great evils of communism in the world. furthermore, the approval of the refugee relief act marked the moment when the eisenhower administration realized the immense potential that laid in soft power. the u.s.’s open support for refugees and escapees, broadcast by “radio free europe”, “voice of america”, and “radio liberation”, echoed strong behind the iron curtain. the use of these media to purport the u.s. as a safe haven for refugees supported the image of a powerful country, which nonetheless cared about the oppressed and politically persecuted, and was ready to offer shelter (radio free europe/radio liberty, 2009; puddington, 2000). finally, this legislation completed truman’s work, who had already tried to tie refugee policies to national security interests (rudolph, 2006, pp. 47-49). refugees were no longer considered a high www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 112 published by scholink inc. security risk, but were instead becoming “potentially valuable instruments of a foreign policy and moral purpose aimed at supporting and encouraging disaffection with the tyranny of the communist satellites” (rorty, 1955, p. 305). 3. donald trump and the return to restrictionism until the 1990s, the immigration debate in the united states centered upon economic issues, such as the number and type of immigrants who would benefit the american economy, or legal strategies to deter people from entering the country illicitly (alden, 2016). with 9/11, both the domestic and the international security scenario changed, and the immigration debate changed with them. increased security threats gradually pushed the discussion on migration towards issues of national security, mainly in the form of augmented entry restrictions (bier, 2018). consequently, the last fifteen years have witnessed a progressive increase in checks and control mechanisms, such as biometric screenings, identity tracking, and information gathering, in order to make it more difficult for potential terrorists to operate within american borders. the political priority today, in the words of the u.s. president, is firmly settled on “protecting american lives from foreign nationals who intend to commit terrorist attacks” (trump, 2017b). donald trump’s approach to immigration maintains the tone of urgency introduced with 9/11. since the appearance of his immigration plan on his presidential campaign website, trump has progressively worked to bring together the concepts of national interest, national security, and economic benefit, in a tenacious argument to restrict migration (trump, 2016b). the president has also called for a comprehensive review of all existing immigration policies “to determine what legislative reforms are essential for america’s economic and national security” (trump, 2017d). the claim, clearly stated in a presidential letter to all house and senate leaders, upholds that illegal, unqualified, and chain migration, have to be drastically curbed, as they irreparably damage the u.s. the idea that immigration creates serious economic distress, as well as a threat to public safety in the united states, is not new to donald trump’s political discourse. in his presidential announcement speech, trump (2015a) notoriously accused mexico of sending to america “people that have lots of problems”, who inevitably bring such problems with them. mexicans, he claimed, are taking jobs away from the american people. “they’re bringing drugs. they’re bringing crime. they’re rapists”, trump declared, as he identified a grave danger not just with immigrants in general, but with their country of provenience. immediately after its inauguration, the republican administration set out to translate the president’s thoughts into applicable legislation by means of executive orders. this also contributed to the sense of an incumbent threat that required immediate action. just one week after the swearing-in ceremony of january 20, 2017, donald trump signed executive order 13769 protecting the nation from foreign terrorist entry into the united states (trump, 2017b). the eo, “delayed for litigations”, was amended and eventually superseded by executive order 13780 (trump, 2017c). large influxes of foreigners, the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 113 published by scholink inc. document asserts, are a source of concern for the country’s national interest and national security. following the signing of the aforementioned executive orders, an increase in immigration restrictions, procedural delays, fewer refugees accepted in the united states, augmented deportations, and more visible hostility against asylum seekers have followed (pierce & selee, 2017; harvard immigration and refugee clinical program, 2017). although during his presidential campaign trump advocated for “a total and complete shutdown of muslims entering the united states” (trump, 2015b), the legislation on immigration drafted by the current administration has progressively shifted from a religious-based exclusivist principle to a geographical one. in fact, what is colloquially known as the “muslim ban” centers upon country of provenience instead. as the president confirmed, “the muslim ban has morphed into an extreme vetting from certain areas of the world” (trump, 2016c). the shift became necessary when trump realized that a religious qualifier was too controversial. “people were so upset when i used the word muslim”, the president noticed. “you can’t use the word muslim. remember this. and i’m okay with that, because i’m talking territory instead of muslim” (trump, 2016d). even though executive order 13769 and 13780 were introduced as temporary measures, they were pivotal in translating the administration’s theoretical thinking on immigration into formal legislation, paving the way for the indefinite suspension of travel from certain countries through the notion of “extreme vetting” (panduranga, patel, & price, 2017). the idea of additional scrutiny for certain groups in u.s. entry mechanisms is neither new to the american tradition, nor illegitimate. for this reason, screenings for obtaining a permanent visa or refugee status have always been rigorous in america, even more so after 9/11, focusing on suspicious activities and personal history—mostly criminal and medical records. however, donald trump affirms that the country needs much tougher entry standards, as foreign nationals might slip through the visa process, posing a serious terrorism risk in the u.s. (trump, 2017c). as religious vetting has proven politically indefensible, the republican party is working to elaborate a renewed proposal of “extreme vetting” centered upon national security threats presented by foreign nationals. in the words of the 45th president of the united states, such vetting would be based on a rather discretionary procedure, screening people for “who they are, where they are from, what their feeling about our country is” (trump, 2016c). for the current administration, restrictions based upon the country of provenience may even take precedence over already approved visas. as the hameed khalid darweesh case shows, where a person comes from might even temporarily override that person’s rightful claim to enter the u.s. (american civil liberties union, 2017; brownley, 2017). the threats to national security and national interest posed by immigration, as identified by the current administration, are a rise in the number of undocumented migrants; higher rate of criminal behavior among immigrants, compared to u.s. born citizens; an increase in terrorist activities; resistance to cultural assimilation and to english language learning processes; and economic burden/damage for the host country (woods & arthur, 2017, pp. 1-26). however, no conclusive evidence has actually been presented in support of these arguments. the economic benefits of more open migration policies have www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 114 published by scholink inc. been noted elsewhere (clemens, 2011; cortes, 2008; ottaviano & peri, 2012). additionally, the hazards posed by foreign terrorism are not large enough to warrant extreme action, as immigration checks already in place already provide a solid amount of screening, and vetting failures are rare and pose a minimal risk to the united states (bier, 2018). there are appropriate procedures in place, and no findings show them to be inadequate, or suggest that the lack of more extreme vetting procedures will harm national interests (panduranga et al., 2017). additional studies confirmed that foreign-born terrorists have killed roughly only one american per year since 9/11 (nowrasteh, 2016). conversely, identifying risks in a foreign nation, rather than in its citizens, potentially constitutes a danger: woods and arthur (2017) claim that coupling the idea of the threat of terrorism and violent crime with that of immigration is a dramatization that is not useful in advancing national security, nor promoting national interest, nor projecting force (pp. 140-141). the insistence on coupling immigration policies with security threats and economic recession has developed alongside a return of the traditional debate on nativism. nativism is not new to the american tradition, although it clearly struggles to find an acceptable place alongside its historical heritage as a nation of immigrants. prior to world war i, u.s. laws did not explicitly restrict the selection or composition of immigrants based on race or nationality, with the exception of asian immigrants. in general, legislation attempted to exclude people based on income level, education, and moral, biological, and physical qualities (young, 2017, p. 223). however, after the turn of the century, the provisions in the immigration act grew increasingly strict. the rationale for this crackdown was a 40-volume report published by the dillingham commission, which was formed in 1909 by congress in order to assess the effects of asian and southern and eastern european immigration. the commission “began its work convinced that the pseudoscientific racist theories of superior and inferior peoples were correct and that the more recent immigrants from southern and eastern europe were not capable of becoming successful americans” (fuchs & forbes, 2003, p. 55). throughout the years, nativists have been portraying new immigrants as unfit to become american citizens: “they were too infected by catholicism, monarchism, anarchism, islam, criminal tendencies, defective genes, mongrel bloodlines, or some other alien virus to become free men and women in a democratic society” (schrag, 2010, p. 4). this idea is recurrent in trump’s reasoning, where immigrants are portrayed as less able to identify with, and contribute to, national interest, becoming an unwanted burden on dutiful citizens who should instead, “come first” on the government’s priority list (trump, 2017a). kibria, bowman, and o’leary note how “reconciliation of nativism with the ideology of america as an immigrant nation has occurred in part through the differential assessment of immigrant groups” (2014, p. 9). this logic aptly fits the president’s remarks on “good” and “bad” mexicans, previously quoted in his campaign speech (trump, 2015a). by combining the ideas of nativism (americans first) with restrictionism (less immigration), donald trump has reinforced the good immigrant/bad immigrant dichotomy. the current administration’s perspective is that not only is it capable of identifying “good” www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 115 published by scholink inc. migrants—lawful citizens who subscribe to american values and are ready to uncompromisingly assimilate into the social fabric embodying the “real” america—it is also able to uncover “bad” migrants, who are a threat to national security and would be an economic burden on american society, by means of tougher vetting procedures. in the president’s words, “in addition to screening out all members or sympathizers of terrorist groups, we must also screen out any who have hostile attitudes towards our country or its principles” (trump, 2016a). therefore, trump advocates restrictions against “bad migrants” who are not able to pass increasingly tight security restrictions centered upon their country of provenience, as well as other rather arbitrary considerations about their moral character. the idea that terrorism—and more generally national security threats—can be tackled by vetting immigrants from specific geographical areas, trump argues, was commonplace during the cold war and resembles the “ideological screening test” administered in those years to identify communist and anarchic sympathizers and prevent their admission into the u.s. (trump, 2016a). what the president is claiming is that there is continuity in vetting procedures against ideologically treacherous beliefs spreading on u.s. soil. trump proudly considers himself to be leading such a return to tradition. the president possibly deduces the existence of said tradition from the persistence of state department ds-260 form, which prospective immigrants still have to fill in to enter the country today, and enquires into possible communist leanings of the person requesting admittance (said-moorhouse & browne, 2016). however, the theoretical debate on the refugee relief act in 1953 in the previous section of this essay clearly shows that the republican strategy on immigration at the time switched to welcoming individuals who came from communist countries as refugees, escapees, and survivors, rather than classifying them as potentially dangerous because of their provenience. a restrictive approach to immigration based on the country of origin became politically indefensible after the eisenhower presidency, and slowly faded away. the supposed parallel claimed by the president with barack obama’s policy for temporary extra screenings of 2011, placed on visas for iraqi citizens̕ resettlement program, does not seem to constitute a valid precedent (kessler, 2017). further research also highlights that providing a safe haven to persons fleeing persecution and violence mirrors core values in u.s. history, the american tradition, and its commitments to liberty, freedom and dignity (kerwin & warren, 2017). for this reason, donald trump likening his own immigration policies to an uncompromising, staunchly anti-communist political tradition, reminiscent of robert taft, is factually incorrect, and seems more functional than principled. the president’s return to pre-1953 policymaking, perhaps to score domestic political points by appealing to foreign policy issues, rather makes joseph mccarthy a much more apt term of comparison (thompson, 2016). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 116 published by scholink inc. 4. conclusion the current republican administration claims that individuals arriving from certain countries into the u.s. create economic burdens and higher security risks. immigrants, the president argues, pose threats to law-abiding citizens, and damage the u.s. economy. it is not surprising that such a bleak portrait of immigration has led the republican administration to embrace both a restrictionist and a nativist stance, returning de facto to pre-1953 policies. however, evidence suggests that more open immigration strategies benefit u.s. economy and do not present increased security threats. stringent screenings and vetting procedures are already in place, and they are highly effective. america must remember the debate that led to the approval of the refugee relief act in 1953, and subsequent changes in cold war immigration policies. while still acknowledging the domestic and international security risks posed by subversive individuals, the eisenhower administration welcomed those who fled from communist countries with the precise aim to fight communism itself. this projected an image of america that was strong, confident, and ready to work with foreign nationals to win the battle against its enemy in the cold war. the eisenhower administration’s position on entry policies specifically suggests that terrorism could be defeated today by welcoming to the u.s. those who escape it, in order to fight alongside america against obscurantism and oppression in the name of liberal values. by receiving refugees from countries at risk, the u.s. could revamp its cold war tradition, strengthen its internal unity and better confront foreign threats. kerwin (2017) argues that the us immigration system ought to reflect liberal democratic values and an inclusive vision of national identity (p. 545). the driving principle behind the eisenhower administration policy debate that produced the refugee relief act of 1953 seemed to do just that. it advocated for a more open america, a country that was stronger because it is able to project outwards its founding values, by embracing all those who came to share them. it found allies, not enemies, in those who escaped oppressive, illiberal political regimes and economic hardships to live out a fuller, better life in america. the debate on immigration entry policies and the related drafting of executive orders during donald trump’s presidency have taken america very far away from its cold war tradition. the doctrine of american exceptionalism, which has traditionally belonged to conservatism and to the republican party since world war ii, is contaminated by a return to restrictionism and nativism. however, eisenhower’s work on the refugee relief act shows that it is possible to reconcile the republican ideal of a great america with a liberal, more open standing on immigration—an inclusive, rather 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(2009). a nation by design: immigration policy in the fashioning of america. cambridge, ma: harvard university press. zucker, n. l., & zucker, n. f. (1992). from immigration to refugee redefinition: a history of refugee and asylum policy in the united states. journal of policy history, 4(1), 54-70. https://doi.org/10.1017/s0898030600006503 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 3, no. 2, 2020 www.scholink.org/ojs/index.php/elp 1 original paper the study on poverty reduction effects of chinese urban minimum living standard guarantee system—empirical analysis based on chip 2002 and 2007 chen zongsheng 1* & wen wen 2 1 institute of economics, nankai university, tianjin, china 2 china center for economic research, fudan university, shanghai, china * chen zongsheng, institute of economics, nankai university, #94 weijin road, nankai district, 300071, tianjin, china received: june 8, 2020 accepted: june 18, 2020 online published: july 13, 2020 doi:10.22158/elp.v3n2p1 url: http://dx.doi.org/10.22158/elp.v3n2p1 abstract the chinese urban minimum living-standard guarantee system, mainly functions to guarantee the poor people to have minimum living-standard life; at same time it can make some people to get rid of poverty by some poverty lines. but how much of the rates can be reduced? what differences among provinces, and what impact on all kind of families? the paper tries to answer these questions by using chinese household income project (chip) 2002 and 2007, taking international poverty line, minimum living standard line, martin’s poverty line and relative poverty line respectively to measure the poverty reduction impact of urban minimum living standard guarantee. on the whole, the urban minimum living standard guarantee is effective to alleviate absolute poverty and even part of relative poverty. for example, taking international poverty line as standard, in 2002 the urban minimum living guarantee respectively decreased absolute poverty rate, poverty gap and squared poverty gap of national urban area by 4.58%, 11.41% and 16.32%, while in 2007 decreased respectively by 47.24%, 70.87% and 83.04%. taking relative poverty line as standard, in 2002 respectively poverty rate, poverty gap and squared poverty gap of national urban area decreased by 1.92%, 4.65% and 8.37%, while in 2007 the 3 indices reached by 3.28%, 11.63% and 22.57% respectively, but which are lower than by international poverty line. on the whole, according to different poverty lines and indices, the urban citizen in different provinces and families gained different poverty reduction effects brought by the urban minimum living standard guarantee. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 2 published by scholink inc. keywords minimum living standard, guarantee system, poverty line, poverty rate 1. introduction after 35 years of reform and opening up, china has entered the middle-income countries from a low-income country with backward economic development and weak government financial resources. however, china is still a developing country with a per capita gdp of just over $6,000. therefore, except the poverty of rural residents need to be figure out, whether absolute or relative poverty of urban residents, both of them still have in different degrees. it has always been an important problem in the economic development of social, averting the poverty pass on the generation’s gap and immobilization, and eliminating urban poverty by hardworking (note 1). in the 1990s, in order to alleviate the social impact caused by the transformation of enterprises in urban areas (note 2), and to guarantee the basic living conditions of laid-off workers, the urban minimum living standard guarantee system came into being, building the last survival “defense line” for urban residents, namely the livelihood income line (note 3), or urban poverty line. after more than a decade of development, the system has become increasingly perfect, playing an important role in ensuring residents' right to subsistence and maintaining “bottom line equity”. however, since it was not until 1999, china formally established the minimum living standard guarantee system, the data which can be used to evaluate the policy effect is scarce at that time (hong dayong, 2004; wang weiping, 2007; yang lixiong, 2008; zhang haomiao, 2010). the good news is that the quantitative analysis of poverty reduction effect of minimum living standard guarantee by domestic and foreign scholars has been gradually carried out in recent years, and achieved some research results. for example, chen, ravallion and wang (2006), used the china’s urban households for short-term survey (uhss, 2003) data, to measure the aim of targeting and poverty reduction effect of the urban minimum living standard guarantee system in 35 large and medium-sized cities in china, found that urban poverty reduction effect is mainly reflected in reducing the intensity and depth of poverty, which may well prevent the leakage to the non-poor, but due to the low coverage affected its role in poverty reduction. wang (2007) used the data of 14 small and medium-sized cities in the “china urban employment and social security survey 2004” and five different poverty line, to measure the poverty reduction function of the urban minimum living standard guarantee system. the results showed that the urban minimum living standard guarantee reduced the absolute poverty rate by 11%-16% on average and the relative poverty rate by 2%-4% on average. therefore, she thought that the poverty reduction effect of the urban minimum living standard guarantee could be measured and more effective. du yang and albert park (2007) analyzed the poverty reduction effect of urban minimum living standard guarantee, laid-off subsidy and unemployment insurance based on the labor market surveys conducted by the chinese academy of social sciences in shanghai, wuhan, shenyang, fuzhou and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 3 published by scholink inc. xi’an in 2001 and 2005. they found that the poverty rate in 2001 and 2005 decreased by 0.86 and 2.09 percentage points respectively when measured by the minimum living standard guarantee line; compared with two years, the reduction in poverty rate in 2005 was mainly due to the effect of the implementation of the minimum living standard guarantee system. gustafsson and deng (2007) used chinese household income project (chip) 2002 in the town of survey data, using khan (2004) of high and low absolute poverty line for the standard, and estimates the poverty reduction effect of urban poor, the results show that in high poverty line, low-income residents and all samples of absolute poverty rate fell 16% and 5%, respectively, poverty gap fell by 29% and 12% respectively, the square poverty gap dropped by 38 percent and 20 percent, respectively. gao et al. (2009) obtained similar results using the same data and methods (note 4). xia qingjie et al. (2007) used the data of (chip) (1988, 1995, 1999 and 2002) to evaluate the impact of subsistence assistance, unemployment allowance and minimum living standard guarantee policies paid by work units on poverty rate with the international poverty line, and found that the effect of these three social welfare subsidy systems on reducing poverty rate was less than 1 percentage point. therefore, the social welfare system still has a lot of space for improvement in urban anti-poverty. in a word, by reviewing the empirical measurement and theoretical analysis of the poverty reduction effect of social assistance system in the above-mentioned literatures, we can clearly find that the effect of the current urban minimum living standard guarantee system in china is mainly to help the recipient families reduce the poverty depth and intensity, but not to lift them out of poverty. some policy simulation results show that the poverty reduction effect will be further improved if the urban minimum living standard guarantee can be fully covered and the amount of minimum living standard guarantee is fully distributed. in addition, the above studies mainly focus on the early stage of the minimum living standard guarantee system, so it is difficult to carry out a comparative study on the effects of cross-period policies. at the same time, due to the short implementation time of the minimum living standard guarantee system, the inconsistency among different regions, and the relative lack of information, it has not been clearly answered how much the poverty reduction effect of the national urban minimum living standard guarantee is, and how much the poverty reduction effect is different among different regions and family types. this paper makes comprehensive analysis and conducts measurement of the poverty reduction effect of urban minimum living standard guarantee in china based on the two large-scale micro-survey data of “chinese household income project (chip)” (2002 and 2007), which can make up for the above deficiencies to some extent and provide the corresponding basis and reform ideas for the future development of china’s minimum living standard guarantee system. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 4 published by scholink inc. 2. data, methods and metrics 2.1 data description the data used in this paper are urban part of the chinese household income project (chip) in 2002 and 2007. the chip sample is taken from a large sample of the national bureau of statistics by stratified sampling. chip (2002) provides population characteristics, income and expenditure information of 12 provinces and province-level municipality in the east (beijing, liaoning, jiangsu, guangdong), the middle (shaanxi, anhui, henan, hubei), the west (chongqing, sichuan, yunnan, gansu). the original sample includes 6835 households and 20632 individuals. after the author removes the coding errors and repeated data, the effective sample package is obtained including 6823 households and 20573 individuals. chip (2007) provides the demographic characteristics, income and expenditure information of nine provinces and province-level municipality in the east (shanghai, jiangsu, zhejiang, guangdong), the middle (anhui, henan, hubei), the west (chongqing, sichuan). the original sample includes 5002 households and 14683 individuals. the effective sample after the author’s collation includes 4999 households and 14673 individuals. there are two questionnaires in chip (2002 and 2007), one is consistent with the questionnaire of national bureau of statistics, the other is a more detailed questionnaire designed by chip research team. both questionnaires ask questions related to urban minimum living standard guarantee income. in the questionnaire of the national bureau of statistics, one item directly asks about the minimum living standard guarantee income received by family members, while the questionnaire in the appendix asks about the social assistance income received by family members. using the former to calculate the rate of urban minimum living standard guarantee is 2.1%, which is far lower than the statistical data officially published by china’s ministry of civil affairs. it is also quite different from the measurement results of chen, ravallion and wang (2006), duyang and albert park (2007) using large-scale survey samples. this shows that the “minimum living standard guarantee income” item in the main questionnaire is seriously underreported, while according to the survey in the appendix, the rate of urban minimum living standard guarantee is 3.7%, which is closer to the official results. therefore, this paper refers to the practice of gustafsson and deng (2007) and gao et al. (2009), and regards “social assistance income” in chip (2002 and 2007) as “minimum living standard guarantee income”. 2.2 selection of poverty indicators and measurement method the selection of poverty indicators is related to the accuracy of poverty measurement. an appropriate poverty indicator will help to make a comprehensive evaluation of the poverty situation and the effect of poverty reduction policies. poverty index usually needs to meet a series of normative requirements, such as monotonicity axiom, transferability axiom, transferability sensitivity axiom, subset monotonicity axiom, etc. these normative requirements are important criteria to judge the merits of poverty index. according to these standards, the comprehensive poverty index (fgt) proposed by foster, greer and thorbecke (1984) was adopted as the poverty index in this paper, while the poverty www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 5 published by scholink inc. reduction effect of the urban minimum living standard guarantee system was based on the difference value of the comprehensive poverty index (fgt) fe before and after the implementation of the minimum living standard guarantee measures. ( ) ( ) ( )fgt pre postfe fgt fgt    (1) the ratio of its difference to the former comprehensive poverty index re: ( ) ( ) ( ) ( )fgt pre post prere fgt fgt fgt    （ ） (2) 1 1 ( ) ( ) q i i z y fgt n z      (3) where q, n, z and y respectively represent the number of poor population, the number of total population, the poverty line and income of the i-th poor population. while, “α” is the poverty aversion coefficient. the larger α is, the higher the society’s aversion to poverty is. when α=0, q fgt h n   (4) the h index represents the incidence of poverty in the total population, reflects the extent of poverty; when α=1, 1 1 1 q q i i i i z y z yq fgt hi n z n qz        (5) here, fgt is the poverty gap index, which represents the relative gap between the income level of the poor population and the poverty line, and reflects the depth of poverty; when α=2, 2 2 2 1 1 ( ) (1 ) q i i z y fgt h i i c n z        (6) here, fgt is the square poverty gap index, where c represents gini coefficient of the income distribution of the poor population and reflects the income difference among poor population. as this index gives higher weight to the individual with more serious poverty, it is mainly used to reflect the intensity of poverty. when α>0, fgt index satisfies the monotonicity axiom and the subset monotonicity axiom. when α>1, fgt index satisfies the transferability axiom. when α>2, fgt index satisfies the transfer sensitivity axiom. in addition, fgt index also satisfies the decomposability axiom, that is, the overall poverty index is equal to the weighted average of each group’s poverty index, that is, 1 ( , ) ( , ) k i i i i fgt y z p fgt y z    (7) where p i represents the population weight of group i, and ( , )i ifgt y z represents the comprehensive poverty index of group i. since the fgt index has a good character and reflects the poverty degree comprehensively, this paper also uses the fgt index to measure the poverty degree before and after the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 6 published by scholink inc. implementation of the urban minimum living standard guarantee, so as to analyze the poverty reduction effect of urban minimum living standard guarantee. 2.3 the choice of poverty line in the above measurement formula, the determination of the poverty line is an important selection factor. the urban poverty line, as the basis for judging the urban poverty level, reflects the acceptable minimum living standard of a city under certain economic conditions. there is no unified national urban poverty line in china. in this study, the international poverty line, the line of minimum living standard guarantee, other poverty lines and the relative poverty line were used to measure the effect of urban poverty reduction policies on different occasions. because of the sensitivity of the effect analysis of poverty reduction policy to the choice of poverty line (duyang, albert park, 2007; gustafsson & deng, 2007; gao et al., 2009; xia qingjie, 2007), it is a reasonable method to choose several poverty lines to illustrate the poverty reduction effect of policies from different perspectives. after careful comparison, this paper selects international poverty line, minimum living standard line, martin’s poverty line, relative poverty line and other related poverty lines to evaluate the poverty reduction effect of the policy. according to purchasing power parity, the world bank sets the standard of $1, $2 and $3 per capita per day as a representative poverty line standard for low-income countries (ravallion, datt and van de walle, 1991). although this kind of poverty standard ignores the differences of price levels in different parts of the country, it is a simple, effective and operable measure for uniform comparison of poverty in different regions and even different countries. this paper assumes that u$1 per person per day is the rural poverty line, and chooses $2 per day as one of the urban poverty lines (note 5). it is found that the evaluation of purchasing power of rmb in 2005 (between 2002 and 2007) is 3.45 yuan/dollar (deaton & heston, 2008). therefore, the international poverty line of urban residents is converted into rmb 2484 yuan in 360 days. by this single standard, the change of poverty of urban areas in china and other provinces can be measured. the results can also be compared internationally. this is a feature that none of the other criteria below have. the minimum living standard guarantee line is a subsidy standard for the poor formulated by each city according to the local economic development level, residents’ income and consumption and local financial resources. therefore, the biggest deficiency of using the minimum living standard guarantee line as the poverty line is that the poverty line varies by the local financial resources, so that the poverty rate measured by the minimum living standard guarantee line cannot uniformly reflect its poverty situation in some areas. however, the benefit of measuring the poverty reduction effect using the minimum living standard guarantee line as the poverty line is that it can combine poverty reduction effects with assistance practices to examine the implementation effect of the policy. some scholars have tried to measure the poverty reduction effect of the minimum living standard guarantee directly using the minimum living standard guarantee line as the poverty line (note 6). in view of the unbalanced regional economic development in china, the urban minimum living standard guarantee www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 7 published by scholink inc. line is also selected as one of the urban poverty lines. it was calculated that the national urban minimum living standard guarantee line was 1824 yuan per person per year in 2002 and 2188.8 yuan per person per year in 2007. the urban minimum living standard guarantee line varies from province to province (note 7), as shown in table 1. table 1. four types of urban poverty line in 2002 and 2007 (yuan/person per year) region 2002 region 2007 minimum living standard guarantee line international poverty line martin’s poverty line relative poverty line minimum living standard guarantee line international poverty line martin’s poverty line relative poverty line nation 1824.0 2484 2863.9 3558.2 nation 2188.8 2484 3216.8 7626.0 jiangsu 1872.0 2484 2742.0 3890.2 jiangsu 2943.6 2484 3095.1 8226.7 anhui 1716.0 2484 2335.7 2986.4 anhui 2416.8 2484 2674.5 6365.5 henan 1632.0 2484 2567.4 3039.0 henan 1818.0 2484 2997.1 5625.1 hubei 1572.0 2484 2615.3 3439.8 hubei 1953.6 2484 3057.3 6466.2 guangdong 2184.0 2484 3436.0 4784.1 guangdong 2617.2 2484 3822.6 12630.3 chongqing 1608.0 2484 2889.1 3319.8 chongqing 2139.6 2484 3257.2 5596.4 sichuan 1560.0 2484 2233.8 3023.6 sichuan 2104.8 2484 2625.9 6140.2 yunnan 1788.0 2484 2758.7 3912.2 shanghai 4200.0 2484 4638.1 10130.4 gansu 1536.0 2484 2635.7 2834.9 zhejiang 3144.0 2484 4355.4 9361.3 shanxi 1872.0 2484 2274.4 3173.6 liaoning 2064.0 2484 2455.9 3538.4 beijing 3420.0 2484 4173.8 5717.2 sources: 1) the international poverty line is calculated by the author at an annual rate of $2 per day (see text). it is a uniform poverty line for all countries, regions and years; 2) the relative poverty line is calculated at 50% of the national and local average income for the year; 3) in 2002, the urban minimum living standard guarantee standards of the whole country and sample provinces were cited from hong dayong (2003), and in 2007, the urban minimum living standard guarantee standards were cited from china civil affairs statistical yearbook 2008; 4) martin’s poverty line was cited by wang youjuan (2006). in addition, the data in table 1 are adjusted using the consumer price index of urban residents. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 8 published by scholink inc. compared with other methods, martin’s poverty line has greater advantages in operability, data availability and theoretical completeness (note 8) (yang lixiong, 2010). therefore, the martin’s poverty line is also used in this paper to measure the urban poverty line. the national urban poverty line calculated by the martin’s poverty line was 2861.3 yuan per person in 2002 and 3215.3 yuan per person in 2007. the two-year martin’s poverty line varies in province (note 9), as shown in table 1. in addition, this paper also chooses the relative poverty line calculated by 50% of the median of per capita disposable income of households before receiving minimum living standard guarantee. in general, the relative poverty rate in urban areas is significantly higher than the absolute poverty rate (note 10), which reflects the difference between the two poverty standards. 3. measurement results of poverty reduction effect by provinces and by types of urban households 3.1 measurement of poverty reduction effect of urban minimum living standard guarantee by provinces based on the selected data, this paper takes the international standard of two dollars per day per capita, the urban minimum living standard and the poverty line calculated by martin’s poverty line as the absolute poverty line, and takes 50% of the median of per capita disposable income of households before receiving minimum living standard guarantee as relative poverty line, and uses the above comprehensive analysis formula to analyze the poverty reduction effect of implementing the urban minimum living standard guarantee in china. the results of poverty reduction in urban areas measured by international poverty line of $2 per day are shown in table 2. in 2002, the overall urban poverty rate dropped by 4.58%, the poverty rate in guangdong, chongqing, shanxi and liaoning all dropped more than the national average. among them, the province with the largest decline was guangdong, which reached 33.34%, followed by chongqing, which declined by 11.11%; the average decline of other provinces is less than 5%, while beijing, jiangsu, anhui, hubei and yunnan remained roughly unchanged. the poverty gap index, which measures the depth of poverty, fell by 11.41% nationwide. in all provinces, except beijing, the poverty gap of all provinces has declined to some extent. the most significant is chongqing, yunnan, gansu and anhui, which are located in the middle and west of china, the decline range is more than 20%, of which chongqing reaches 32.51%, which is the largest, while beijing, jiangsu and henan have the smallest decline range, which is less than 1/3 of the national level on average. the intensity of poverty, which reflects the extent of disparities within poor groups, has declined by 16.32% in the whole country. chongqing, yunnan and gansu are 3.23 times, 2.46 times and 2.05 times of the national average, respectively, indicating that the minimum living standard guarantee plays an important role in alleviating poverty intensity in these areas. however, the average degrees of falling in the provinces of beijing, jiangsu and henan was less than 5 percent. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 9 published by scholink inc. in 2007, the overall poverty rate, poverty gap and poverty intensity dropped by 47.24%, 70.87% and 83.04%, respectively, 9.3 times, 5.2 times and 4.1 times higher than that in 2002, which show that poverty reduction has intensified. from jiangsu and other seven sample provinces included in both surveys showed a significant increase in the decline of all three indicators. among them, the three indicators of jiangsu province decreased by 0%, 2.83% and 1.64% respectively from 2002, and increased to 49.98%, 72.76% and 87.68% respectively in 2007; in henan province, the poverty index decreased by less than 5% in 2002, and by more than 40% in 2007. in particular, the poverty gap and poverty intensity decreased by 76.34% and 92.55%, respectively. the declines of sichuan increased from 1.92%, 4.03% and 9.05% in 2002 to 62.50%, 87.26% and 96.06% in 2007. the absolute poverty in shanghai and hubei province has been completely eliminated. this clearly shows that the implementation effect of the policy is more and more significant and effective. but is it the same with other indicators? the following is measurement of other poverty lines. table 2. fgt index reduction measured by international poverty line before and after the implementation of urban minimum living standard guarantee in 2002 and 2007 (%) region 2002 region 2007 refgt(0) refgt(1) refgt(2) refgt(0) refgt(1) refgt(2) nation 4.58 11.41 16.32 nation 47.24 70.87 83.04 jiangsu 0.00 2.83 1.64 jiangsu 49.98 72.76 87.68 anhui 0.00 21.80 31.28 anhui 22.23 47.47 59.23 henan 2.04 3.32 3.60 henan 41.76 76.34 92.55 hubei 0.00 10.49 21.18 hubei 100.00 100.00 100.00 guangdong 33.34 19.59 6.47 guangdong 66.71 44.46 34.15 chongqing 11.11 32.51 52.64 chongqing 25.00 56.10 75.59 sichuan 1.92 4.03 9.05 sichuan 62.50 87.26 96.06 yunnan 0.00 23.68 40.13 shanghai 100.00 100.00 100.00 gansu 4.00 23.20 33.50 zhejiang — — — shanxi 10.26 12.63 18.13 liaoning 7.69 15.17 20.49 beijing 0.00 0.00 0.00 note. 1) the corresponding data of fgt index refgt(0), refgt(1) and refgt(2) in table 2 respectively represent the percentage reduction of poverty rate, poverty gap and poverty intensity, that is, the decline rate of the same index before and after the implementation of the minimum living standard guarantee in the same year. it is calculated according to the fgt method introduced in the second part of this paper; 2) the “0.00” in table 2 indicates that the implementation of urban minimum living standard guarantee has no effect on the poverty rate (as well as the poverty gap and poverty intensity) of the sample area; “100%” means that the urban minimum living standard guarantee reduces the poverty rate, poverty gap and poverty intensity of the sample areas by 100%, that is, poor households are lifted out of poverty; “-“ means that there is no poverty in the sample area under the set poverty line. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 10 published by scholink inc. the poverty reduction results in urban areas measured by minimum living standard guarantee line are shown in table 3. in 2002, according to the poverty line of urban minimum living standard guarantee assistance, first, the national urban poverty rate dropped by 10.56%, much larger than that calculated by the international poverty line, which is mainly the result of the change of measurement standard. according to the results measured by minimum living standard guarantee line in each province, except that the poverty rate of beijing, jiangsu and yunnan has not changed, the other provinces and province-level municipality have declined, the largest decline is chongqing, which is 6.3 times of the national average level. second, the poverty gap of urban areas has dropped by 16.2 percent nationwide, 61.47 percent in chongqing and 46.79 percent in yunnan, 3.8 times the national average and 2.9 times the national average. the poverty gap in henan has decreased by 2.91%, which is far lower than the national level. beijing and jiangsu have not changed. third, the decline of square poverty gap is the largest, reaching 20.43%; among the provinces, chongqing, yunnan and anhui saw steeper declines of 70.57%, 60.94% and 43.03%, respectively, which were 3.5, 3.0 and 2.1 times of the national average level, while henan and guangdong dropped by less than 5%, while beijing and jiangsu did not change. on the whole, the poverty reduction effect of urban minimum living standard guarantee was measured by the absolute poverty line based on the minimum living standard guarantee standard in 2002. chongqing had the strongest effect, while beijing, jiangsu and henan had the weakest. in 2007, the poverty rate in urban areas decreased by 57.2%, and the absolute poverty of urban poor families in hubei was completely eliminated. the declines in henan and sichuan reached 85.74 % and 75.0 % respectively. the declines in anhui, chongqing and shanghai were only 50 %, 52% and 58% of the national levels. second, the poverty gap of urban areas has dropped by 79.11 percent on average, henan province and sichuan province decreased by 98.61% and 98.02% respectively. guangdong province and anhui province were the smallest, with a decrease of 44.40% and 55.59% respectively. the decrease of urban poverty gap in shanghai and jiangsu province was 9.92 and 9.74 percentage points lower than the national average, and the urban poverty gap in hubei disappeared. the intensity of urban poverty in china has declined by 88.3% on average, among which the decline in hubei, henan and sichuan provinces has basically reached 100%, guangdong is less than 50% of the national level, and shanghai and jiangsu are close to the national average. the above facts show that in 2007, hubei, henan and sichuan provinces had an outstanding effect in reducing poverty through urban minimum living standard guarantee, while anhui and guangdong provinces are significantly behind the national level. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 11 published by scholink inc. table 3. fgt index reduction measured by the line of minimum living standard guarantee before and after the implementation of urban minimum living standard guarantee in 2002 and 2007 (%) region 2002 region 2007 refgt(0) refgt(1) refgt(2) refgt(0) refgt(1) refgt(2) nation 10.56 16.20 20.43 nation 57.20 79.11 88.30 jiangsu 0.00 0.00 0.00 jiangsu 49.98 69.37 83.68 anhui 33.33 27.67 43.03 anhui 28.57 55.59 64.83 henan 5.56 2.91 3.92 henan 85.74 98.61 99.90 hubei 12.50 27.53 35.01 hubei 100.00 100.00 100.00 guangdong 25.00 14.37 3.13 guangdong 66.71 44.40 34.12 chongqing 66.67 61.47 70.57 chongqing 30.00 66.63 85.05 sichuan 4.76 10.35 15.50 sichuan 75.00 98.02 99.89 yunan 0.00 46.79 60.94 shanghai 33.33 69.19 88.92 gansu 33.34 26.73 17.53 zhejiang shanxi 5.27 17.84 26.71 liaoning 10.53 19.67 24.24 beijing 0.00 0.00 0.00 the poverty reduction results in urban areas measured by martin’s poverty line are shown in table 4. in 2002, the urban poverty rate calculated by martin’s poverty line decreased by 1.85%, which was lower than that measured by international poverty line; among urban areas in each province, the urban poverty rate of shanxi declined the most, reaching 10.81%. the poverty rates in beijing, anhui, henan and sichuan did not change; the average drop in urban poverty gap across the country was 6.66 percent, with the largest drops in anhui and chongqing, at 20.96 percent and 18.12 percent. jiangsu, henan and sichuan is only 37%, 34% and 63% of the national average, while that in beijing was unchanged; the decrease of the square poverty gap of urban area is 11.29% in china, the decrease of chongqing, anhui and gansu is more than 25%, and that of jiangsu and henan is only 18% and 29% of the national average. it can be seen from this that in 2002, the poverty reduction effect of urban minimum living standard guarantee was measured by martin’s poverty line, and the effect of chongqing and gansu was good, while that of beijing, jiangsu and henan was not ideal. in 2007, according to the martin’s poverty line, the urban poverty rate decreased by 36.58% on average, and that of hubei and sichuan reached 75.06% and 75.00% respectively, which is 2.05 times of the national average level. zhejiang and chongqing are significantly on the low side. for example, zhejiang only decreased by 0.68%; the poverty gap of urban areas decreased by 61.62% on average, 98.82% in hubei and 88.22% in sichuan, and less than 50% in zhejiang, anhui and chongqing; in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 12 published by scholink inc. china, the square poverty gap urban area has declined by 76.19%, in hubei and sichuan, by more than 95%, and in guangdong, zhejiang and anhui, respectively, by 58%, 60% and 77% of the national average. it can be seen that in 2007, when martin’s poverty line was used to measure the poverty reduction effect of urban minimum living standard guarantee, hubei and sichuan were more effective, while zhejiang, anhui and guangdong were less effective. table 4. fgt index reduction measured by martin’s poverty line before and after the implementation of urban minimum living standard guarantee in 2002 and 2007 (%) region 2002 region 2007 refgt(0) refgt(1) refgt(2) refgt(0) refgt(1) refgt(2) nation 1.85 6.66 11.29 nation 36.58 61.62 76.19 jiangsu 2.94 2.43 2.02 jiangsu 49.98 68.08 81.99 anhui 0.00 20.96 30.86 anhui 27.28 46.72 58.68 henan 0.00 2.28 3.24 henan 26.78 66.76 86.83 hubei 3.57 8.08 15.62 hubei 75.06 98.82 99.97 guangdong 3.23 11.48 13.91 guangdong 25.10 50.87 43.86 chongqing 4.76 18.12 36.80 chongqing 15.38 47.45 66.41 sichuan 0.00 4.20 9.50 sichuan 75.00 88.22 96.66 yunnan 3.12 9.87 23.43 shanghai 33.33 59.80 79.28 gansu 3.23 16.79 27.15 zhejiang 0.68 26.18 45.45 shanxi 10.81 12.94 18.70 liaoning 6.45 13.94 18.88 beijing 0.00 0.00 0.00 the results of poverty reduction in urban areas measured by relative poverty line are shown in table 5. in 2002, the relative poverty rate of the whole country decreased by 1.92%, which was smaller than the previous two poverty rates measured by the absolute poverty line. the relative poverty rate of seven provinces and province-level municipality such as beijing, shanxi and liaoning did not change. although the relative poverty rate of five provinces and province-level municipality such as henan, hubei and chongqing decreased, it was significantly smaller than that measured by the absolute poverty line value. the relative poverty gap of urban areas decreased by 4.65% in china, that of gansu and chongqing by 14.86% and 14.28%, respectively, while that of jiangsu, henan, sichuan and guangdong was lower than the national average, while that of beijing remained unchanged. the relative square poverty gap of urban areas decreased by 8.37% in china, chongqing and gansu by 2.6 times and 1.96 times higher than the national average respectively, and jiangsu, henan and sichuan by 22%, 34% and 74% of the national average. by comparison, in 2002, according to the relative poverty www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 13 published by scholink inc. line, chongqing and gansu were the areas with the greatest poverty reduction effect, while beijing, jiangsu and henan were the areas with the worst poverty reduction effect. in 2007, the relative poverty rate of urban areas decreased by 3.28% in china, with shanghai and guangdong remaining unchanged, zhejiang and jiangsu falling by less than 2%t and anhui, hubei and chongqing by more than 8%. the relative poverty gap of urban areas decreased by 11.63% in china, 26.21% in hubei and 22.3% in chongqing, less than 10% in shanghai, zhejiang and guangdong, and only 0.89% in guangdong. the relative square poverty gap of urban areas fell by 22.57% in china, while those in hubei, chongqing and sichuan provinces fell by 46.87%, 38.74% and 35.71%, respectively. the declines in shanghai, zhejiang, anhui and guangdong provinces were all lower than the national average, of which only 7.26% was in guangdong. this shows that in 2007, according to the relative poverty line, hubei and chongqing had the greatest poverty reduction effect, while shanghai, zhejiang and guangdong had the least. table 5. fgt index reduction measured by relative poverty line before and after the implementation of urban minimum living standard guarantee in 2002 and 2007 (%) region 2002 region 2007 refgt(0) refgt(1) refgt(2) refgt(0) refgt(1) refgt(2) nation 1.92 4.65 8.37 nation 3.28 11.63 22.57 jiangsu 0.00 1.36 1.85 jiangsu 1.61 10.17 21.96 anhui 0.00 9.56 19.98 anhui 8.33 11.52 18.12 henan 1.15 1.86 2.85 henan 3.64 17.76 35.98 hubei 5.00 5.66 10.72 hubei 8.85 26.21 46.87 guangdong 0.00 4.40 8.60 guangdong 0.00 0.89 7.26 chongqing 4.35 14.28 30.13 chongqing 8.16 22.30 38.74 sichuan 0.00 2.95 6.18 sichuan 6.76 18.00 35.71 yunnan 1.30 4.79 10.58 shanghai 0.00 8.29 18.28 gansu 2.86 14.86 24.77 zhejiang 0.67 5.52 11.38 shanxi 0.00 7.55 12.49 liaoning 0.00 6.62 11.21 beijing 0.00 0.00 0.00 based on the above four poverty line measures, the results of poverty reduction in urban areas are summarized in table 6. it can be found that firstly, the most significant effect is to compare the poverty index values measured by various poverty lines in each year. for example, the reduction of poverty rate measured by minimum living standard guarantee line is 5.98, 8.71 and 8.64 percentage points higher than those measured by other poverty lines in 2002, and 9.96，20.62 and 53.92 percentage points higher www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 14 published by scholink inc. than those measured by other poverty lines in 2007. the same situation also appears in the measurement of poverty gap and poverty intensity. secondly, we focus on the ranking of the measurement results of various poverty lines in each year. except for the changes in the ranking of martin’s poverty line and relative poverty line in 2002 (marked by the bottom line), the rest are arranged in the order of “minimum living standard guarantee line, international poverty line, martin’s poverty line and relative poverty line”, which is the order in table 6. the above findings indicate that there is a large gap in the poverty reduction effect measured by selecting different poverty lines. compared with the poverty line in table 1, the lower the poverty line is selected, the more significant the poverty reduction effect is measured, and vice versa. because there are fewer people who can get rid of poverty through the minimum living standard guarantee according to the high poverty line, that is, the high (low) poverty line pulls down (high) the poverty reduction effect of the minimum living standard guarantee system. this is the sensitivity of poverty line selection. thirdly, compared with the decline rates of various poverty indicators, poverty intensity has decreased more significantly, followed by poverty gap and poverty rate. see the overall comparison of the three indicators in table 6. this illustrates the sensitivity of measurement of poverty reduction effects to the selection of poverty indicators. fourth, the comparison of the poverty reduction effect between the two years shows that the poverty reduction effect in 2007 is more prominent, and the decline of some indicators in 2007 is more than 60 percentage points higher than that in 2002. see the comparison in the last row of table 6. this shows the level of minimum living standard guarantee is an increasing function of the level of economic development. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 15 published by scholink inc. table 6. comprehensive comparison of the poverty reduction results of urban minimum living standard guarantee in china measured by four poverty lines year refgt(0) (%) minimum living standard guarantee line international poverty line martin’s poverty line relative poverty line 2002 10.56 4.58 1.85 1.92 2007 57.20 47.24 36.58 3.28 2007-2 002 46.64 42.66 34.73 1.36 year refgt(1) (%) minimum living standard guarantee line international poverty line martin’s poverty line relative poverty line 2002 16.20 11.41 6.66 4.65 2007 79.11 70.87 61.62 11.63 2007-2 002 62.91 59.46 54.96 6.98 year refgt(2) (%) minimum living standard guarantee line international poverty line martin’s poverty line relative poverty line 2002 20.43 16.32 11.29 8.37 2007 88.30 83.04 76.19 22.57 2007-2 002 67.87 66.72 64.9 14.2 source: according to the relevant data in tables 2-5. 3.2 measurement of poverty reduction effect of urban minimum living standard guarantee system by types of urban households next, this paper attempts to measure the poverty reduction effect of urban minimum living standard guarantee by household type, such as family size, gender, age, physical condition and employment status of household head. in order to simplify the analysis, only two poverty lines are selected: one is the international poverty line of $2 a day, which is roughly between the minimum living standard guarantee line and the martin’s poverty line; the other is the relative poverty line calculated by 50% of the median of per capita disposable income of households before receiving minimum living standard www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 16 published by scholink inc. guarantee to measure the poverty reduction effect of urban minimum living standard guarantee on different types of families. the poverty reduction effects of urban minimum living standard guarantee on different types of urban households measured by international poverty line of $2 per day are shown in table 7. according to this poverty line standard, in 2002, the minimum living standard guarantee had no effect on single households; among two-family, three-family and multi-person households, the decline in poverty was greatest for multi-person households. among the impacts on poverty gap and square poverty gap of all kinds of households, the decline range of three person households is the largest, and that of multi-person households is the smallest. this shows that the minimum living standard guarantee system can promote the family with large population to get rid of poverty, and also help the family of three to reduce the depth and intensity of poverty. for urban resident with different gender heads of households, poverty reduction effect of the female-headed households brought by the minimum living standard guarantee was more significant than that of male-headed households. for urban households with different age heads, the poverty rate and poverty gap of middle-aged households decreased more than that of elderly households and young households, but the square poverty gap decreased less than that of young households. for households with different physical conditions, the poverty rate of households with physical disability after receiving the minimum living standard guarantee decreased by 0.27 percentage points lower than that of households without physical disability, but the poverty gap and square poverty gap are 2.03% and 3.23% higher than the latter. for the urban households with different heads of employment, the poverty rate, poverty gap and square poverty gap of the unemployed households decreased by 4.55%, 14.14% and 18.74% respectively in 2002, among which the poverty rate of the unemployed households was 0.07 % lower than that of the employed households, while the other two poverty indexes were 4.97% and 5.48% higher than the latter. this shows that the urban minimum living standard guarantee system can promote the head of household employment families out of poverty, so that the \head of household unemployment family effectively reduce the poverty level. in 2007, the ability of minimum living standard gurantee to reduce absolute poverty improved significantly. among the four categories of households divided by population size, the effect of poverty reduction was the most significant for single-person households after receiving the minimum living standard guarantee. the absolute poverty rate, poverty gap and square poverty gap decrease by 80%, 95.85% and 99.14% respectively; however, the three poverty indicators of double-person households, three-person households and multi-person households decreased by more than 35%, 55% and 75% respectively, while the above poverty indicators of these three-person households in 2002 did not decline by more than 5%, 15% and 25%.in 2007. the decline of absolute poverty rate, poverty gap and square poverty gap of female headed households were 6.7 times, 4.9 times and 4.3 times of 2002 respectively, and the decline of three indicators of male headed households were 12.7 times, 6.4 times and 5 times of 2002 respectively; in terms of poverty rates alone, female-headed households declined www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 17 published by scholink inc. less than male-headed households; in terms of poverty gap and square poverty gap, the decline of female headed households is significantly higher than that of male headed households. in 2007, the poverty rate of middle-aged households fell by the most after receiving minimum living standard guarantee, to 53.03%, nearly 8 times higher than in 2002. in terms of the poverty gap and the square poverty gap, the largest decline was in the elderly households, which reached 82.44% and 92.66% respectively, 9.1 times and 6.8 times higher than that in 2002, indicating that the elderly households’ minimum living standard guarantee achieved remarkable poverty reduction effect in 2007. in 2007, the decline rate of the three poverty indicators of households with head disability reached 100%, which means that the absolute poverty of disabled households has been completely eliminated by the aid of minimum security; but all three indicators fell by less than 20% in 2002. in 2007, the three poverty indicators of unemployed households decreased by 52.80%, 73.86% and 84.21% respectively, 17.38, 14.25 and 9.10 percentage points higher than that of employed families. table 7. fgt index reduction of different types of households measured by international poverty line before and after the implementation of urban minimum living standard guarantee in 2002 and 2007 (%) household type 2002 2007 refgt(0) refgt(1) refgt(2) refgt(0) refgt(1) refgt(2) family size: single — — — 80.00 95.85 99.14 double 2.94 11.17 12.73 36.42 73.88 79.25 three 4.67 14.51 21.90 48.07 59.77 76.32 many 5.00 6.68 9.16 41.80 62.86 78.30 gender of household head: female 6.95 15.66 20.95 46.67 76.69 89.88 male 3.77 9.96 15.04 47.94 63.70 74.92 age of household head: elder 3.45 8.14 11.92 45.58 82.44 92.66 middle-aged 5.92 12.68 15.53 53.03 68.38 78.74 youth 2.33 10.11 18.98 25.00 50.98 63.98 physical status of household head: disability 4.35 13.03 18.86 100 100 100 no disability 4.62 11.00 15.63 45.17 69.49 82.13 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 18 published by scholink inc. employment status of household head: unemployment 4.55 14.14 18.74 52.80 73.86 84.21 employment 4.62 9.17 13.26 35.42 59.61 75.11 source: calculation results of stata. the poverty reduction effects of urban minimum living standard guarantee on different types of households measured by relative poverty line are shown in table 8. in 2002, the relative poverty rate of single households and double-person households was not affected by the minimum living standard guarantee. the relative poverty rate of three-person households and multi-person households decreased by 0.76% and 1.56%. the poverty gap and the square poverty gap of all types of households have declined to varying degrees, among which, the poverty gap of multi-person households has declined the most, and the square poverty gap of three-person households has declined the most. according to the gender of household head, the contribution of minimum living standard guarantee to the decrease of poverty rate of female household head is less than that of male household head, while the contribution to the decrease of poverty gap and square poverty gap of female headed households is 0.97% and 1.22% higher than that of male households respectively. according to the age of the household head, the relative poverty rate of middle-aged households decreased by 1.55% in 2002, while that of young households and elderly households decreased by only 0.61% and 0.57 %. but in terms of their relative poverty gap and square poverty gap, the decline of young households was the largest. according to the physical condition of the head of household, the decline rate of the three poverty indicators of the disabled family is 0.84, 2.19 and 2.84 percentage points higher than that of the not disabled family. according to the employment status of household heads, the three indicators of unemployed household heads decreased by 1.34%, 4.73% and 8.53% respectively, which were 1.10, 2.48 and 4.14 percentage points higher than those of heads of employed families, indicating that the minimum living standard guarantee in 2002 played an important role in alleviating poverty of unemployed household heads. in 2007, the relative poverty rate of single households was not affected by the minimum security assistance, while the poverty rate of double-person households, three-person households and multi-person households decreased by 1.62%, 0.65% and 2.79% respectively; in terms of the poverty gap and the square poverty gap of all kinds of households, the decline of single households was the largest, with 15.86% and 37.4% respectively, followed by 8.06% and 15.51% for multi-person households. according to the gender of the household head, the three indicators of female-headed households dropped by 1.95%, 6.80% and 15.91%, respectively, and were 0.82, 1.05 and 3.7 percentage points higher than that of male households. according to the age of the household head, the relative poverty rate of the middle-aged households decreased by 118%, which was the largest. however, the poverty gap of elderly households decreased by 3.51% and 8.76% more than that of middle-aged households and young households, and the square poverty gap decreased by 9.30% and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 19 published by scholink inc. 20.52% more than that of middle-aged households and young households, respectively. according to the physical condition of the household head, the decline rate of the three indicators of the disabled family reached 37.5%, 52.63% and 71.94% respectively, which was the largest. according to the employment situation of the head of household, the decline of the three indicators of the head of household unemployed households reached 1.97%, 12.50% and 25.58%, 1.13%, 9.15% and 18.61% higher than that of the head of household employed families respectively, and 0.47 times, 1.6 times and 2 times higher than that of 2002. table 8. fgt index reduction of different types of households measured by relative poverty line before and after the implementation of the minimum living standard guarantee in 2002 and 2007 (%) household type 2002 2007 refgt(0) refgt(1) refgt(2) refgt(0) refgt(1) refgt(2) family size: single 0.00 1.87 4.80 0.00 15.86 37.40 double 0.00 2.94 5.20 1.62 6.29 13.31 three 0.76 3.63 7.46 0.65 5.29 11.64 many 1.56 4.53 6.62 2.79 8.06 15.51 gender of household head: female 0.27 3.80 6.97 1.95 6.80 15.91 male 0.37 2.83 5.75 1.13 5.75 12.21 age of household head: elder 0.57 3.19 5.06 0.86 11.11 25.26 middle-aged 1.55 3.00 5.81 1.18 7.60 15.96 youth 0.61 3.69 7.16 0.55 2.35 4.74 physical status of household head: disability 1.22 4.94 8.32 37.50 52.63 71.94 no disability 0.38 2.75 5.48 1.42 5.76 12.93 employment status of household head: unemployment 1.34 4.73 8.53 1.97 12.50 25.58 employment 0.24 2.25 4.39 0.84 3.35 6.97 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 20 published by scholink inc. 4. brief conclusions and policy recommendations based on the urban data of china’s household income survey (2002 and 2007), this paper measures the poverty reduction effect of china’s urban minimum living standard guarantee system and policies in a more comprehensive way than previous studies and draws the following brief conclusions: china’s minimum living standard guarantee system are effective. the direction of the minimum living standard guarantee system is to help the majority of poor families to alleviate poverty. this goal has been basically achieved from all angles, and the result also makes a few families completely out of poverty. this paper measures the poverty reduction effect of the urban minimum living standard guarantee system at the national level by using international poverty line, urban minimum living standard guarantee line, martin’s poverty line and relative poverty line. comprehensive comparisons based on uniform standards at the national level are more comparable and accurate, so the conclusion is more reliable. of course, because of the different poverty line standards, different poverty indicators, different years and different regions, the effect of the significant level is different. from the comparison of the measurement effects of various poverty line standards, the poverty reduction effect measured by urban minimum living standard guarantee line is the most significant in each year, followed by the international line and martin’s poverty line, and the poverty reduction effect measured by relative poverty line is the smallest. and this is actually a ranking of the heights of the poverty lines, that is, the height of the poverty lines is inversely proportional to the effect of the implementation. once again, this proves the sensitivity of the poverty reduction effect of the policy to the selection of poverty line, and also shows that it is very necessary to adopt multiple poverty lines to measure. from the effects of absolute and relative poverty line measures on different poverty indicators in different years, the effects of absolute standard, recent years and poverty intensity are more significant. for example, according to the international poverty line, the absolute poverty rate, absolute poverty gap and absolute square poverty gap were reduced by 4.58%, 11.41% and 16.32% respectively by the national urban minimum living standard guarantee in 2002. in 2007, the three indicators measured by the same poverty line fell by 47.24%, 70.87% and 83.04%, respectively. in 2002, the three indicators, which measured by the relative poverty line, dropped by 1.92%, 4.65% and 8.37%, respectively. in 2007, it was 3.28%, 11.63% and 22.57%, respectively. the comparison of these indicators is significant. first, it shows that with the economic development, the poverty reduction effect of the urban minimum living standard guarantee in 2007 has significantly improved compared with that in 2002; second, it shows that urban minimum living standard guarantee reduces absolute poverty more significantly than relative poverty; third, it also shows that urban minimum living standard guarantee reduces poverty intensity more significantly than poverty gap and poverty rate. comparing the poverty reduction effects of the urban minimum living standard guarantee system in different provinces and province-level municipality, it can be seen that the effect of most provinces and regions is significant, even all of them have been lifted out of poverty, but some of them are not www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 21 published by scholink inc. significant or have no effect. for example, in 2002, no matter what standard is used, chongqing is the most effective area for urban minimum living standard guarantee poverty reduction, while beijing, jiangsu, henan and sichuan are the areas with weak poverty reduction effect. among them, beijing has the worst effect, and several indicators have no impact. this may be mainly because the income level of that year is low, so that all kinds of standards are similar, and the measurement results are almost. in 2007, according to the absolute poverty line, the areas with the strongest poverty reduction effect were hubei and sichuan, the former were all out of poverty, the weakest areas were anhui and chongqing; in terms of the relative poverty line, the strongest regions are henan, hubei, chongqing and sichuan, with some individuals lifted out of poverty, while the weakest are shanghai, jiangsu, zhejiang and guangdong. in 2007, under the premise of the general improvement of income level, various measurement standards opened the gap, so the measurement results are different. this illustrates the impact of economic development level on the measurement of poverty reduction effect of minimum living standard guarantee. the comparison of poverty reduction effects of urban minimum living standard guarantee on different family types cannot be generalized, but must be treated differently. one is in addition to the individual circumstances all types of families after accepting threshold has the effect of different degrees, but various indicators, the poverty rate of decline is less than the poor from the peace party from declines, it shows that the threshold of poverty reduction effect on poverty reduction to the sensitivity of the index selection, namely not only single poverty reduction index for measure. first, except for some cases, all types of families have different effects after receiving the minimum security assistance, but various indicators are different, in which the decline of poverty rate is less than that of poverty gap and square poverty gap, which shows that the poverty reduction effect of the minimum living standard guarantee is sensitive to the selection of poverty reduction indicators, that is, it is not easy to use a single poverty reduction indicator as a measure. second, the effect of different households is different in different years: for example, in 2002, according to the standard of absolute poverty, female headed households and three person households benefited the most; according to the standard of relative poverty, households with unemployed heads and disabled heads benefited the most. in 2007, according to the standard of absolute poverty, disabled households, single households and elderly households benefited the most; in terms of relative poverty, households with a disability, single households and households with an unemployed head benefited the most. this shows the sensitivity of household types to poverty reduction policies, that is, it cannot be assumed that the same poverty reduction criteria will benefit all households equally, which requires that poverty reduction policies should be more targeted and differentiated. to sum up, the current urban minimum living standard guarantee system and policies in china can alleviate the absolute poverty and partial relative poverty of urban residents to a large extent, reduce the poverty level of most households, and the more poverty-stricken households, the more significant the effect of poverty reduction, and even make some people completely out of poverty, of course, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 22 published by scholink inc. according to different standards, different indicators, different years, different places the degree of poverty reduction is different in districts and different types of households. in order to better cope with challenges of urban poverty and make all the residents including the poor, share the fruits of economic development, the urban minimum living standard guarantee system should be further improved. first, in the standard design of the urban minimum living standard guarantee system, we should break through the concept of subsistence and anti-absolute poverty, and emphasize the relative standard and enhance the self-development ability of the recipients. second, in the process of institutional construction, we should gradually establish a normal growth mechanism and a dynamic subsidy mechanism in which the security standard is linked to the level of economic development, build a diversified financing mechanism with the government as the main body and multiple social participation, and ensure the supply of minimum living standard guarantee funds. the third is to gradually improve the level of management and the unity degree of urban minimum living standard guarantee system. fourth, in view of the fact that the measurement of poverty reduction effect is quite sensitive to the selection of poverty line and poverty indicators, when evaluating the implementation effect of various social security policies, such as the minimum living standard guarantee, we must emphasize the comprehensive application of multiple poverty lines and indicators to prevent the possible biases caused by certain poverty lines and indicators. reference armstrong, p., & burger, c. 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(2012). counteracting material deprivation: the role of social assistance in europe. journal of european social policy, 22(2), 148-163. https://doi.org/10.1177/0958928711433658 ravallion, m., datt, g., & van de walle, d. (1991). quantifying absolute poverty in the developing world. review of income and wealth, 37(4), 345-361. https://doi.org/10.1111/j.1475-4991.1991.tb00378.x rowntree, b. s. (1901). poverty: a study of town life. london: macmillan. sainsbury, d., & morissens, a. (2002). poverty in europe in the mid-1990s: the effectiveness of means-tested benefits. journal of european social policy, 12(4), 307-327. https://doi.org/10.1177/a028598 saraceno, c. (2002). social assistance dynamics in europe: national and local poverty regimes. the united kingdom: the policy press. https://doi.org/10.2307/j.ctt1t89hvw szulc, a. (2010). checking the efficiency of the social assistance system in poland. in warsaw school of economics working papers 43. institute of statistics and demography. tasseva, i. v. (2012). evaluating the performance of means-tested benefits in bulgaria. in iser working paper series no. 18. wang, m. (2007). emerging urban poverty and effects of the dibao program on alleviating poverty in china. china & world economy, 15(2), 74-88. https://doi.org/10.1111/j.1749-124x.2007.00062.x xia, q. j., song, l. n., & simon, a. (2007). trends and patterns of urban poverty in china: 1988-2002. economic research journal, 2007(9), 96-111. https://doi.org/10.1111/j.1475-4991.2009.00334.x http://econpapers.repec.org/paper/iseisegwp/ https://doi.org/10.1177/0958928711433658 https://doi.org/10.1111/j.1475-4991.1991.tb00378.x https://doi.org/10.1177/a028598 https://doi.org/10.2307/j.ctt1t89hvw https://doi.org/10.1111/j.1749-124x.2007.00062.x www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 24 published by scholink inc. zhou, y. b. (2009). a study on rural income distribution gap, poverty and non-agricultural employment in china. beijing: economic science press. notes note 1. literature review shows that since the poor law in britain, countries have been committed to establishing social assistance system as the main body, helping poor groups improve their lives and creating conditions for them to get rid of poverty. due to the early establishment of social assistance system and complete assistance projects in western developed countries, researchers in various countries can systematically measure and compare the poverty reduction effect of this system within and across regions. you can refer to m. gouveia and c. f. rodrigues (1999), c. behrendt (2000), d. sainsbury and a. morissens (2002), a. szulc (2010), p. brunori, m. c. chiuri and v. peragine (2009), ben-shalom et al. (2011), i. v. tasseva (2012), k. nelson (2012). note 2. in addition to the traditional “three no”, a series of problems caused by the adjustment of industrial structure, the restructuring of enterprises, the aging of the population, urbanization and so on have become the main causes of new urban poverty. the problem of poverty after affluence also appears gradually. note 3. see income distribution in economic development by chen zongsheng for discussion on livelihood income. note 4. absolute poverty rates for low-income households and all sample households fell by 1 percent and 0 percent, poverty margins fell by 22 percent and 13 percent, and square poverty margins fell by 37 percent and 30 percent, respectively. note 5. the authors calculated that below the absolute poverty line of $1 a day, poverty rates were significantly lower in urban areas. below the absolute poverty line of $3 a day, the urban poverty rate is significantly higher, indicating that neither of them is suitable for measuring the poverty reduction effect of urban minimum living standard guarantee line as an absolute poverty line. therefore, this article chooses to use $2 per day as the standard. note 6. for example, wang (2007), li shi, yang sui (2009), chen, ravallion and wang (2006). note 7. in 2002, beijing, guangdong and liaoning were 1596 yuan, 360 yuan and 240 yuan higher than the national average. in 7 provinces and province-level municipality, the line is lower than the national average, among which, the line in hubei, sichuan and gansu is less than 1600 yuan per person per year, only reaching about 45% of the line in beijing. in 2007, the minimum living standard guarantee in shanghai and zhejiang were 2011.2 yuan and 955.2 yuan higher than the national average, respectively. henan, hubei, chongqing and sichuan are all lower than the national average, especially henan, which is only 43% of shanghai’s. it can be seen that such a poverty line in the local difference is still relatively large. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 3, no. 2, 2020 25 published by scholink inc. note 8. for example, gustafsson and deng (2007) and gao et al. (2009) calculated the poverty reduction effect of urban minimum living standard guarantee based on khan (2004)’s high and low poverty lines calculated by the cost of basic needs method. that is, in 2002, the high and low poverty lines of urban areas in china were rmb 2,534 and rmb 1,774 respectively (see khan (2004) for details). because these poverty lines are calculated using different principles and methods, it is difficult to judge their merits. for example, zhu hailing (2003) thinks it is more appropriate to use engel’s coefficient method and basic demand method to measure the poverty line. luo zuoyan (2006) found that the engel coefficient method was not suitable for directly measuring poverty degree in china, and the poverty rate was too high indirectly by this method. zhu meijuan (2003) and yao jinhai (2007) pointed out that the extended linear expenditure system method was superior to other methods. note 9. among them, in 2002, the poverty line calculated by beijing and guangdong was 1313.3 yuan and 572.4 yuan higher than the national level respectively; 9 provinces and province-level municipality were lower than the national average level, and the poverty line calculated by shanxi, anhui and sichuan was less than 2400 yuan/person year, only about 54% of beijing. in 2007, the poverty line calculated by shanghai and zhejiang reached more than 4000 yuan/person year; the poverty line obtained by anhui, henan and sichuan was less than 3000 yuan/person year, among which the poverty line of sichuan was only 57% of that of shanghai. note 10. due to the limitation of space, this paper does not list the urban poverty rate calculated by the international poverty line, urban minimum living standard guarantee line, martin’s poverty line and relative poverty line, etc., but only gives the rate of change before and after the implementation of the minimum living standard guarantee system. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 148 original paper research on the system of effective criminal defense chen xinlong 1 , yijia guo 2 , tongxu ren 2 & yangbo jiang 2 1 institute of problem solving, dalian ocean university, heishijiao street, dalian, china 2 school of marine law and humanities, dalian ocean university, liaoning, china received: november 29, 2024 accepted: december 12, 2024 online published: december 14, 2024 doi:10.22158/elp.v7n3p148 url: http://dx.doi.org/10.22158/elp.v7n3p148 abstract this article, based on the current state of china’s criminal procedure system and with a focus on improving the quality of criminal defense, explores the construction of an effective defense system tailored to china’s national context by incorporating international concepts of effective defense and practices of ineffective defense systems from other jurisdictions. by analyzing the concept of effective defense and its procedural and substantive values, the article identifies issues in china’s existing criminal defense system, particularly regarding lawyers’ visitation rights, access to case files, and the role of duty lawyers. the article argues that introducing the principle of effective defense and establishing an ineffective defense system with clear standards for lawyers’ performance and remedial mechanisms are essential steps in improving china’s criminal defense framework. moreover, ensuring the protection of lawyers’ rights is a crucial prerequisite for achieving effective defense. through the institutionalization of the effective defense concept, the article aims to enhance the fairness and authority of china’s criminal procedure system, thereby advancing the high-quality development of the rule of law. keywords criminal defense system, effective defense, ineffective defense, duty lawyers, extraterritorial reference 1. introduction the criminal defense system plays a critical role in safeguarding the legitimate rights of defendants and reflects the level of human rights protection and the development of the rule of law in a country. in the evolution of china’s criminal litigation system, the scope of lawyers’ defense rights has gradually expanded, progressing from being limited to the trial stage to encompassing the review and prosecution stages. however, problems such as low criminal defense rates and inconsistent defense quality have persisted over time. to address these issues and enhance the efficiency and quality of criminal www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 149 published by scholink inc. litigation, the supreme people’s court issued the measures for the pilot program of full coverage of lawyer defense in criminal cases in 2017. this initiative significantly increased defense representation rates in pilot regions, achieving the initial goal of “ensuring representation”. nevertheless, merely achieving “representation” is not sufficient to meet the demands of a modern rule-of-law system. numerous challenges remain in criminal defense practice, including the inadequate protection of lawyers’ rights to visitation and access to case files, as well as the unclear legal status of duty lawyers. these issues hinder the effective functioning of the defense system and make it difficult to achieve a transition from “representation” to “effective defense”. the concept of effective defense provides a theoretical foundation for addressing these challenges and offers guidance for further improving the criminal defense system. however, academic and practical research on effective defense in china remains limited, and there is no unified standard for evaluating its effectiveness. therefore, it is imperative to explore the connotation, criteria, and implementation pathways of effective defense from both theoretical and practical perspectives to advance its integration into china’s criminal litigation system. 2. the basic theory of effective defense and ineffective defense 2.1 the concept of effective defense and determination of standards the concept of “effective defense” can be directly interpreted from the meanings of “effective” and “defense” in chinese. first, “effective” refers to “achieving the intended purpose”, while “defense” means “providing arguments to protect oneself or a third party”. therefore, “effective defense” refers to a defense counsel’s activities aimed at achieving the intended objectives on behalf of the defendant literally. but there is no unified standard for what constitutes “effective defense” in either academic or judicial circles, as interpretations vary depending on individual perspectives. the way of people judging whether the defense behavior is effective various. some scholars evaluate the effectiveness of a defense based on the lawyer’s behavior and the defense process, while others focus on the purpose and outcome of the defense. still, some believe that effective defense is defined by the lawyer’s due diligence. for a better understanding of this concept, we need to know the core of this, and the core heart lies in whether the defense counsel’s efforts ultimately achieved the expected results. to judge whether a defense is valid in criminal proceedings should be judged from two different angles. from the perspective of the defense counsel’s actions (process-oriented): it involves evaluating the objective conduct of the lawyer, such as whether the lawyer fulfilled their professional duties and strived to secure reasonable interests for the defendant. from the defendant's perspective (outcome-oriented): this approach assesses the lawyer’s defense based on the outcome of the trial, specifically whether the quality of the defense aligned with the defendant’s expectations. these two perspectives provide different criteria for effective defense: one focuses on the diligence and responsibility of the defense counsel, while the other emphasizes the outcome of the defense in achieving the expected results. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 150 published by scholink inc. however, there would be very serious problems if defense results alone were used as the criterion for defining an effective defense. for example, a defense attorney may fully fulfill their defense obligations, meticulously prepare for the case, skillfully apply appropriate defense techniques during the trial, and present a highly reasonable argument. however, the ultimate decision on the case outcome lies with the trial committee, which may not adopt the views of the defense attorney. it is clearly unfair to condemn or even punish a lawyer based solely on the defendant’s perspective of negative defense outcomes, while defining “ineffective defense” without considering the lawyer’s efforts and fulfillment of their obligations. another example that aligns with common understanding is when a defense lawyer successfully persuades the judge to accept part of their arguments, resulting in a significantly reduced sentence for the defendant. in such a case, the defense would undoubtedly be considered successful. however, for a defendant striving for a complete acquittal, the lawyer’s efforts might not meet their expectations. this highlights the inherent unreasonableness of solely emphasizing defense outcomes from the defendant’s perspective. herefore, effective defense behavior standard, it should and is refers should refer to whether the lawyer, during the defense process, has actively fulfilled their corresponding obligations, performed their duties, and exercised due diligence. for example, in practice, this includes whether the lawyer has engaged in meaningful communication with the defendant, presented valuable arguments during the trial, and provided a substantive defense to challenge the prosecution’s case. the effective defense of the lawyer should be judged by a relatively controllable and determinable standard of conduct rather than a standard of result, since the outcome of the case is affected by various factors and no one can guarantee the outcome of the trial. the author believes that the effective defense is the defender in the defense process to actively perform the corresponding professional obligations, as far as possible to ensure that the legal rights and obligations of the accused, effective defense and the results of the defense does not have a direct relationship, which be supported by the research results of most scholars. no defense party can guarantee that their arguments will be accepted by the court, and an unreasonable definition of effective defense could undermine the professional enthusiasm of defense lawyers. however, without clear constraints on effective defense, if a lawyer merely goes through the motions, the defendant’s interests may not be adequately protected. therefore, it is crucial to establish clear boundaries. the u.s. “ineffective assistance of counsel” doctrine offers valuable insights to ensure the implementation of the concept of effective defense in criminal proceedings. while the u.s. supreme court has not provided a specific definition of “effective defense”, it has clarified what constitutes “ineffective defense” through reverse legislation, thereby safeguarding effective defense as a constitutional right. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 151 published by scholink inc. 2.2 the value of effective defense 2.2.1 value in procedural terms from the perspective of protecting human rights and unholding the rule of laws, the defendant’s lawful rights should be fully guaranteed in accordance with the law. only under such a premise can the criminal justice system be convincing, its outcomes credible and trustworthy, and ultimately deemed effective. this is even more important for some financially disadvantaged defendants. in criminal proceedings, whether it involves expedited procedures, simplified procedures, or standard procedures, if the accused can receive professional assistance, their comparatively weaker private rights, when juxtaposed with the vast state machinery, can be reasonably protected. this enables them to respond more effectively to unfair or unreasonable demands. the absence of such professional assistance would further imbalance the scales of justice. without an effective defense system, the government may benefit from improper conduct, while the rights of the accused are undermined by such misconduct. this issue is even more critical for economically disadvantaged defendants who cannot afford legal representation. the concept of effective defense requires judicial authorities to protect the accused’s right to defense, ensuring that defense lawyers’ rights to meet with clients, review case files, and cross-examine evidence are not subject to third-party interference. introducing the concept of effective defense into the system would enhance the protection of lawyers’ rights, set higher standards for defense conduct in litigation, and compel lawyers to improve their professional capabilities. this would establish a more equal confrontation between defense and prosecution, thereby better safeguarding the legal rights of the accused. 2.2.2 value on the entity from a substantive perspective, the concept of effective defense reduces the likelihood of the accused facing unjust penalties. unjust penalties can lead to wrongful convictions, resulting in violations of the accused’s personal freedom or even their right to life. although the responsibility for wrongful convictions may not entirely rest with judges, and judges may fulfill their corresponding ethical duties, judicial rulings may still deviate from the facts of the case due to various factors. in practice, judges primarily understand cases through reading case files, questioning the accused, listening to the arguments of both the prosecution and the defense, and reviewing evidence and facts during trial cross-examinations. these approaches, however, are relatively limited, and relying solely on them to comprehend the case may still result in wrongful convictions. although courts have the authority to investigate and collect evidence, for the sake of efficiency, this power is seldom exercised. this common practice creates an awkward situation in judicial proceedings: normal exercise of investigative powers may be perceived as proactive intervention in the case, which contradicts the principle of trial-centeredness and undermines the image of judicial impartiality and neutrality. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 152 published by scholink inc. therefore, the accused cannot rely on the judicial authorities to protect their interests but should instead place their trust in defense lawyers. the primary value of defense lawyers lies in safeguarding the rights of the accused. through their professional expertise, defense lawyers enhance the defendant’s ability to protect themselves against the immense power of the state. 2.3 the concept and recognition standard of invalid defense the relationship between effective defense and ineffective defense is not a binary, mutually exclusive one. effective defense is an abstract legal concept aimed at safeguarding the legitimate rights of the accused. it primarily serves as a guiding principle for the conduct of defense lawyers. in contrast, ineffective defense is a legal doctrine that establishes specific criteria and punitive measures to regulate defense behavior and prevent harm to the rights of the accused caused by inadequate or improper defense. together, they form a complementary system that ensures the protection of rights in criminal proceedings. while effective defense is a goal that cannot be directly quantified or implemented, ineffective defense provides a practical framework through institutionalized rules. for example, in the u.s. legal system, the consequences of ineffective defense can include the overturning of a prior judgment by a higher court and the remanding of the case for retrial or disciplinary action by a bar association against the defense lawyer. the determination of ineffective defense requires the simultaneous fulfillment of three elements: first, the lawyer fails to perform their duties with diligence and competence; second, the judicial authority renders an unfavorable decision against the accused; and third, there is a direct causal relationship between the lawyer’s misconduct and the unfavorable decision. for instance, if a defense lawyer fails to meet with the accused before trial or deliberately abstains from participating in court proceedings, such actions may violate the principles of effective defense but do not necessarily constitute ineffective defense. if the trial court, despite the lawyer’s negligence, issues a favorable ruling for the accused, the lawyer’s misconduct, though problematic, does not meet the criteria for ineffective defense. this demonstrates that ineffective defense requires not only misconduct on the part of the lawyer but also an adverse outcome for the accused as a key prerequisite. in summary, the determination of ineffective defense requires the simultaneous fulfillment of all three elements, with the result-oriented criterion—an adverse outcome for the accused—being a critical prerequisite. if there are flaws in the defense process but no adverse consequences occur, it typically does not constitute ineffective defense. while effective defense as an abstract concept cannot be directly implemented, the institutionalization and enforcement of the ineffective defense doctrine not only regulate the conduct of defense lawyers but also enhance the overall protection of the rights of the accused. this ultimately serves to uphold fairness and legitimacy in criminal proceedings. 2.4 consequences of ineffective defense in the united states, where the concept of ineffective defense originated, the determination of ineffective defense requires a higher court to assess the conduct of the lawyer. if the lawyer’s actions meet the standards defined under the ineffective defense doctrine, they are deemed to constitute www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 153 published by scholink inc. ineffective defense. the core objective of this doctrine is to ensure the practical implementation of the principle of effective defense, which is recognized as a constitutional right in the united states. to safeguard the rights of the accused, higher courts may rule that a lawyer’s conduct violates the constitution and order a retrial of the case. 2.5 the current situation in china and suggestions in contrast, china’s criminal procedure law has not yet established the principle of effective defense, nor has it enshrined effective defense as a constitutional right. cases where lawyers fail to fulfill their obligations, neglect their duties, or commit significant misconduct are typically classified as breaches of contract or violations of the lawyers law or professional ethics. however, these standards lack clarity and are insufficient to comprehensively and effectively regulate the conduct of defense lawyers. the author suggests that integrating the principle of effective defense with the doctrine of ineffective defense to create a system tailored to china’s national context would help address many of the current issues in criminal defense. and this article explores the integration of the principle of effective defense with the doctrine of ineffective defense to develop a system tailored to china’s national context, aiming to address the current issues in criminal defense. such a system would not only provide defense lawyers with clear behavioral guidelines but also safeguard the legitimate rights of the accused through institutional mechanisms, thereby enhancing the fairness and authority of criminal proceedings in china. 3. the current state and issues of criminal defense in china the rate of criminal defense in china has remained relatively low for a long time. according to statistics from the ministry of justice, the defense rate by lawyers in criminal proceedings was less than 30% in 2017. this situation improved significantly after the 2018 amendment to the criminal procedure law and the implementation of the measures for the pilot program of full coverage of lawyer defense in criminal cases. the defense rate by lawyers during the trial phase of criminal cases has steadily increased nationwide, with some regions seeing rates exceed 80%. 3.1 current status of legislation according to article 130 of the current constitution of the people’s republic of china, “people’s courts shall hear cases in public, except as otherwise provided by law. defendants have the right to defense”. this provision serves as a basis for defendants to exercise their right to defense. however, since this article is stipulated within the scope of the powers of the people’s courts, some scholars argue that it is insufficient to establish the right to defense as a fundamental right of chinese citizens. with societal progress, it has become increasingly necessary to incorporate the right to defense into the basic human rights of citizens. protecting citizens’ right to defense is, to some extent, also a means of safeguarding the power of effective defense. if defendants, as citizens, do not enjoy basic rights, how can lawyers effectively defend them? www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 154 published by scholink inc. in addition, in recent years, china’s criminal procedure law has introduced provisions such as the leniency system for those who plead guilty and accept punishment, as well as the duty lawyer system. these measures further enhance the likelihood of defendants receiving relatively fair penalties and judicial assistance. 3.1.1 the leniency system for those who plead guilty and accept punishment in 2018, china’s criminal procedure law established the leniency system for those who plead guilty and accept punishment, reflecting the nation’s approach of “leniency for confession”. in practice, this system has provided protection for criminal suspects willing to plead guilty and accept punishment. however, it also raises concerns about potential violations of defendants’ human rights, such as wrongful convictions resulting from false confessions. the risk of wrongful convictions due to false guilty pleas is difficult to eliminate and is influenced by factors such as the quality of evidence, the authenticity of confessions, and the professional competence of investigators. for individuals who falsely plead guilty and accept punishment, the “lenient treatment” reduces the cost of convicting a crime, which itself constitutes an unjust misrepresentation of the concept. a defendant’s decision to plead guilty and accept punishment should stem from their own free will. if this disposition severely contradicts objective facts or the individual’s true intent, it clearly deviates from the foundational principles of this system. ensuring the voluntariness of guilty pleas and acceptance of punishment is a crucial core of this system. if defendants are coerced into admitting guilt against their will, it constitutes forced self-incrimination, which should be excluded under the rules governing illegal evidence. defendants must possess sufficient capacity to make rational judgments about whether to plead guilty and accept punishment. however, in reality, defendants often lack professional negotiation skills. their decisions are frequently based on a rudimentary understanding of legal justice and emotional reasoning, which may be mixed with misconceptions about the law. facing the highly specialized state judicial apparatus, they are often in a disadvantaged position. therefore, safeguarding the voluntariness of defendants requires the support of negotiation skills. in this process, the active performance of lawyers and duty lawyers is particularly critical. they should ensure that defendants clearly understand the legal consequences and make decisions regarding guilty pleas and acceptance of punishment based on this understanding, thereby securing fair sentencing. as one practical analysis points out, “those who are well-prepared and professionally supported achieve the best negotiation outcomes”. in the current judicial context of advocating leniency for guilty pleas and acceptance of punishment, integrating the concept of effective defense is of great significance in protecting the voluntariness of defendants. if, in such cases, defense lawyers fail to fulfill their duties of negotiation with judicial authorities and the process becomes merely perfunctory, it diminishes the defendants’ chances of receiving lighter sentences. this clearly undermines the original intent of the leniency system. the concept of effective defense can regulate the passive behavior of defense lawyers, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 155 published by scholink inc. ensuring that guilty pleas and acceptance of punishment proceed on a voluntary basis. therefore, embedding the concept of effective defense within the leniency system is essential. 3.1.2 duty lawyer system in 2018, china’s criminal procedure law formally established the duty lawyer system, stipulating that duty lawyers provide legal assistance, such as consultation and procedural advice, to criminal suspects or defendants who have not formally appointed a defense lawyer and do not meet the criteria for legal aid. however, the legal status of duty lawyers has been a topic of debate in both judicial practice and theoretical discourse. the positioning of duty lawyers determines whether they can exercise some or even all the rights of defense lawyers, which would significantly enhance the protection of the accused’s right to effective defense. according to the language of the criminal procedure law, it is clear that the rights of duty lawyers are distinct from those of defense lawyers. article 36 specifies that duty lawyers can provide legal consultation, procedural advice, and assistance in applying for changes to coercive measures. duty lawyers operate as “legal assistants”, which differentiates them from “legal aid lawyers” and “defense lawyers”. their limited scope of rights allows them to provide only partial legal assistance, which is often insufficient to fully protect the accused. there are two primary perspectives in academic discourse regarding the legal status and improvement of the duty lawyer system. the first perspective: duty lawyers are seen as legal assistants to ensure efficiency. proponents of this view argue that defendants requiring full legal defense should independently seek a lawyer. the second perspective: duty lawyers are viewed as potential defense lawyers. however, this perspective includes several distinct proposals: first, transform the current duty lawyer system into a true appointed defense system, ensuring every defendant has access to legal defense. this would allow duty lawyers to exercise rights such as meeting with defendants, reviewing case files, and conducting investigations, as well as negotiating equally with the prosecution. second, reform the duty lawyer system by shifting from a “legal assistant” model to a “mandatory defense lawyer” model, granting lawyers the right to interrogate suspects during the investigation stage. third, integrate the roles of duty lawyers, legal aid lawyers, and defense lawyers into a unified system. under this model, duty lawyers would handle legal consultation during the investigation stage while fulfilling defense responsibilities during the prosecution review phase. the author believes that although the criminal procedure law distinguishes between duty lawyers, defense lawyers, and legal aid lawyers, it is feasible to expand the interpretation of duty lawyers to include their role as defenders. from the perspective of their functions, the duty lawyer system is designed to ensure that defendants receive legal consultation and guidance on procedural choices during the investigation stage, guaranteeing that they make procedural decisions voluntarily. at its core, the system fulfills a defense function based on safeguarding the rights of defendants. since the right to defense is a fundamental litigation right that spans the entire criminal procedure, it naturally includes the investigation stage. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 156 published by scholink inc. the defense activities of duty lawyers are aimed at preventing potential abuses of state power that could harm defendants. therefore, duty lawyers must not only understand the basic facts and evidence of a case but also provide substantive defense, as procedural defense alone is far from sufficient. the primary focus of improving the duty lawyer system lies in establishing the legal status of duty lawyers as defenders, which is the cornerstone for ensuring that defendants can access effective defense. 3.2 judicial practice 3.2.1 lawyers’ visitation rights is limited the right to visitation is a fundamental privilege of defense lawyers. through visitation, lawyers can understand the situation of the accused, listen to their opinions and defenses regarding the accusations made by the prosecution, and establish effective communication with them. this step is often the first in carrying out defense work. although the current criminal procedure law grants lawyers the right to meet with clients, the issue of “difficulty in arranging visitation” remains particularly severe in judicial practice. the primary obstacles to the exercise of visitation rights include the following: firstly, insufficient judicial resource allocation. for instance, the shortage of meeting rooms in detention centers often requires lawyers to schedule appointments in advance and wait in line, significantly reducing litigation efficiency. additionally, although the criminal procedure law stipulates that lawyers need only provide an authorization letter, law firm certificate, and lawyer’s license for visitation, in practice, additional documents such as identification cards are often required, further complicating the process. there are also several issues with the remedies available for violations of lawyers’ visitation rights. first, the remedies are overly simplistic. the current measures are very limited; when lawyers encounter obstacles in exercising their visitation rights, they can only request the procuratorate to issue corrective opinions. in more severe cases, the procuratorate may issue a “notice of correction of illegal acts”, but beyond these measures, there are few effective remedies available. second, although regulations require detention centers to arrange lawyer visitation within 48 hours at the latest, there are no clear or mandatory punitive measures for failure to arrange timely visits. this highlights the lack of enforcement of the time limit. third, the penalties for violations of lawyers’ visitation rights are insufficiently stringent. even in serious cases, the current approach is limited to issuing a “notice of correction of illegal acts”, which lacks both enforceability and deterrence. these problems result in narrow remedies, weak penalties, and inadequate deterrence, making it difficult to effectively constrain or warn against actions that obstruct lawyers’ visitation rights. in summary, the current remedial mechanisms for protecting lawyers’ visitation rights lack diversity and enforceability, failing to provide sufficient deterrence against violations. this necessitates further improvement and reform. 3.2.2 the investigation stage lawyer’s right to read the file is restricted the current criminal procedure law grants lawyers the right to review case files during certain procedural stages of criminal litigation. however, defense lawyers are still restricted from exercising this right during the investigation phase, which creates obstacles to effective defense in the early stages www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 157 published by scholink inc. of a case. from the perspective of legislators, limiting defense lawyers’ access to case files during the investigation phase is primarily aimed at avoiding interference with the investigative authorities’ evidence collection process, preventing the disruption of investigations, and mitigating the risk of suspects evading legal accountability. nevertheless, from the standpoint of human rights protection, granting defense lawyers a certain degree of access to case files during the investigation phase is both feasible and necessary. this would not only strengthen the protection of the rights of defendants but also help establish a more balanced and fair adversarial mechanism early in the legal process. 4. extraterritorial reference and inspiration for the effective defense 4.1 international references of effective defense with the evolution of legal systems, the litigation models of civil law and common law jurisdictions have increasingly influenced and merged with each other. the concept of effective defense has transcended the boundaries of legal traditions and has been adopted in civil law countries. in germany, for instance, article 338, section 5 of the code of criminal procedure identifies specific grounds for absolute legal appeals. it stipulates that holding court hearings in the absence of the prosecution or other legally required participants constitutes grounds for appeal. this provision also applies to cases where defense lawyers are absent from court proceedings. the legislation aims to safeguard the defendant’s right to effective defense during criminal proceedings. if a trial is conducted and a verdict is rendered without the assistance of a defense lawyer, the higher court is authorized to annul the original judgment and order a retrial. similarly, japan has established provisions regarding ineffective defense, particularly concerning the misconduct of court-appointed defense attorneys. article 38-3, clause 4 of the code of criminal procedure stipulates that defense lawyers who “clearly violate their duties” must cease to perform their roles. the term “clearly violate their duties” is generally limited to severe negligence or actions that entirely disregard the wishes of the suspect or defendant. this legislation explicitly recognizes that a defense lawyer’s negligence, which infringes on the defendant’s right to effective defense, constitutes a serious procedural violation. its purpose is to ensure that the defendant’s right to defense is not compromised by the misconduct of their lawyer. a comparative analysis of the criminal procedure laws in germany and japan reveals that both countries use specific provisions to define serious passive behavior by lawyers as significant procedural errors to protect the defendant’s right to effective defense. although the concept of effective defense is not explicitly mentioned in their criminal procedure laws, the codified rules reflect substantive protection for effective defense, aligning with the characteristics of codified legal systems. as a principle, the concept of effective defense is present, to varying degrees, in criminal procedure laws across different jurisdictions. in china, for instance, article 11 of the criminal procedure law states: “the defendant has the right to defense, and the people’s court has the obligation to ensure the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 158 published by scholink inc. defendant’s right to defense”. this provision can be considered a partial embodiment of the principle of effective defense. in contrast, ineffective defense is more specific and operates within a defined legal framework. although the provisions for ineffective defense vary across jurisdictions, they generally encompass issues such as lawyers failing to fulfill their obligations, excessive interference by public authorities, and conflicts of interest among lawyers. for example, under china’s criminal procedure law, the interpretation of the supreme people’s court on the application of the criminal procedure law explicitly prohibits a defense lawyer from representing more than one co-defendant or any defendants in related but separately handled cases. however, situations where public authorities hinder the defendant from receiving defense assistance or where lawyers fail to perform their duties are not explicitly addressed in the criminal procedure law. given the implementation of a nationwide system of comprehensive lawyer representation in criminal cases, such issues are likely to become increasingly prominent in judicial practice. 4.2 the implications of the concept of effective defense in criminal proceedings although the concept of effective defense originates from the sixth amendment of the u.s. constitution, its applicability has transcended legal traditions with the establishment of criteria for determining ineffective defense. as discussed earlier, both germany and japan have incorporated ineffective defense systems into their legal frameworks, providing valuable insights for the potential adoption of such systems in china. in 2017, the supreme people’s court and the ministry of justice jointly issued the measures for the pilot program of full coverage of lawyer defense in criminal cases. this significant judicial reform effectively increased the defense rate in pilot regions and addressed the issue of low defense representation in criminal cases. this reform demonstrates that the issue of low defense rates can be resolved progressively. however, improving defense rates is only the first step. the next critical task is to enhance the quality of legal defense, which is essential for advancing the construction of the rule of law in china. the concept of effective defense provides a viable pathway to achieve this goal. under the broader framework of comprehensive lawyer representation in criminal cases, the concept of effective defense not only improves the defense system but also lays the foundation for enhancing defense quality. furthermore, both common law and civil law jurisdictions have implemented effective defense principles in practice, demonstrating its broad applicability and practical significance. however, determining the extent to which the concept of effective defense should be emphasized in criminal proceedings remains a challenging issue. overemphasizing effective defense may hinder the efficiency of legal proceedings, potentially leading to procedural stagnation. conversely, neglecting the concept of effective defense risks failing to safeguard the legal rights of defendants. while balancing these two extremes presents a significant challenge, the promotion of effective defense undoubtedly encourages professional growth and development among lawyers. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 159 published by scholink inc. theoretically, there are no barriers to introducing an effective defense system in china. establishing the concept of effective defense would not only drive the reform and development of china’s criminal defense system but also hold significant practical value. 5. the pathway to achieve an effective defense 5.1 introducing the principle of effective defense while the concept of effective defense has not been explicitly incorporated as a fundamental principle in the criminal procedure laws of codified legal systems, its core ideas are reflected in specific institutional arrangements. with the development of the leniency system for guilty pleas and the duty lawyer system, it is necessary to establish the principle of effective defense within these frameworks to demonstrate the state’s commitment to protecting human rights. as an abstract principle, effective defense can be embedded in existing laws by amending the principles outlined in articles 3 through 18 of the criminal procedure law. for instance, article 15 could be revised to state: “if criminal suspects or defendants voluntarily and truthfully confess their crimes, acknowledge the facts of the charges, and are willing to accept punishment, they may receive lenient treatment in accordance with the law and have the right to effective legal defense”. in the context of china’s legal practice, effective defense should be interpreted more broadly. in the u.s., effective defense is generally understood as effective legal assistance, but the terms “defense” and “assistance” hold different connotations in china. for example, under current law, duty lawyers are considered legal assistants and cannot act as defenders. their assistance is also not subject to ineffective defense regulations. thus, effective defense should be expansively interpreted to encompass both “effective defense” and “effective assistance”. since both concepts aim to protect the legal rights of the accused, they align with the value of due process. 5.2 establishing an ineffective defense system although the law protects the right of defendants to defense, there are no remedial measures in cases where lawyers fail to fulfill their duties, creating a legislative gap. establishing a specific system for ineffective defense could address this gap. as discussed earlier, ineffective defense requires three elements: (1) the lawyer fails to fulfill their duty of diligence; (2) the judicial authority issues an unfavorable ruling against the accused; and (3) there is a direct causal relationship between the lawyer’s misconduct and the unfavorable ruling. when lawyers or duty lawyers fail to perform their duties, leading to unfavorable outcomes for defendants, the question arises: who bears the burden of proof, and who is accountable for the consequences? the author argues that the defendant should bear the initial burden of proof to demonstrate that the lawyer’s misconduct rendered the defense ineffective, constituting a “behavioral flaw”. additionally, the defendant must show that the misconduct resulted in an unjust trial or unreliable judgment, meeting the “adverse outcome” criterion. however, as the u.s. has abandoned this stringent standard in cases like frye and cooper, the focus should instead be on proving and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 160 published by scholink inc. identifying behavioral flaws. courts can more easily verify defense lawyers’ actions through materials such as defense arguments and written evidence, while defendants only need to provide preliminary evidence. in leniency plea cases, the focus of defense and assistance shifts to the pretrial phase. if a duty lawyer misleads a defendant into pleading guilty without voluntary intent, this violates the principle of voluntariness. in such cases, procedural adjustments should be made based on the circumstances, transitioning from expedited procedures to simplified or standard procedures to ensure a fair trial. if such issues are identified during an appeal, they could fall under article 238 of the criminal procedure law, which stipulates that violations of legal procedural rights that may affect the fairness of the trial constitute grounds for annulment and retrial. judges must thoroughly review the voluntariness of guilty pleas, the factual basis of the charges, and sentencing recommendations to ensure procedural justice. 5.3 protecting lawyers’ rights 5.3.1 ensuring the right to visitation although the criminal procedure law specifies the materials required for lawyer visitation, additional documentation is often requested in practice. judicial authorities should enhance legal education for detention centers, clarifying that no additional materials beyond the legally mandated three documents may be required. moreover, remedies for denied visitation should be diversified, extending beyond prosecutorial oversight, and penalties for such violations should be strengthened to enhance deterrence. 5.3.2 ensuring access to case files during investigation access to case details during the investigation phase is crucial for effective defense. without case materials from the investigative authorities, defense lawyers cannot provide timely and effective representation. therefore, defense lawyers should be allowed to review case files within a defined scope, provided this does not hinder investigative efforts. the law should advance the timeline for granting access to case files to the investigation phase and specify penalties for obstructing investigations, ensuring a balance between lawyers’ rights and investigative needs. 6. conclusion the concept of effective defense, though originating from common law systems, holds significant value for the reform of china’s judicial system. while china has yet to explicitly define the principle of effective defense, its essence is already embedded in the nation’s existing legislation. against the backdrop of comprehensive coverage of criminal defense, the primary issue in china’s criminal proceedings is expected to shift from “low defense rates” to the need for “high-quality defense”. the principle of effective defense addresses the challenge of ensuring high-quality defense by regulating passive behavior among lawyers and safeguarding clients’ legitimate rights through proactive legal representation. moreover, the principle of effective defense not only addresses potential future issues in criminal proceedings but also provides solutions to existing shortcomings in the plea leniency system and the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 161 published by scholink inc. duty lawyer system. in plea leniency cases, effective defense plays a critical role in ensuring voluntariness and enhancing sentencing negotiations. it even rectifies certain “gray areas” within the plea leniency system and the broader defense framework, thereby advancing fairness and justice. by incorporating the principle of effective defense, the ambiguous positioning of duty lawyers can be alleviated, granting them expanded rights to ensure that defendants have access to advantageous procedural choices and enabling effective dialogue with prosecutors under conditions of equitable negotiation capability. references chen, r. h. (2017). some controversial issues of plea bargaining leniency system. china jurisprudence, 2017(01), 35-52. han, x. (2016). effective participation of defense lawyers in plea bargaining leniency system. nandu academy, 36(06), 65-69. joshua, d. et al. (2009). american criminal procedure law in a nutshell (volume i). wu hongyao translation. beijing:peking university press. ma, m. l., & zhang, x. s. (2005). an empirical analysis of criminal legal aid in china—with an account of the impact of legal aid on the modern litigation system (chen, r. h.). in an empirical examination of the criminal defense system (p. 152). beijing: peking university press. moriichi, t. (2010). criminal procedure law (zhang, l., & yu, x. f., trans., p. 170). beijing: china university of political science and law press. qian, c. (2020). effective defense in the leniency system of plea bargaining: from origin to embedding. academic exchange, 2020(03), 72-85, 19. wayne, r., lafever et al. (2001). the law of criminal procedure (first book). translated by bian jianlin et al. beijing: china university of political science and law press 2001 edition. xiong, q. h. (2014). international standards and localized thinking on effective defense and ineffective defense. chinese journal of criminal law, 2014(06), 129-135. xu, j. l. (2019). legal aid duty lawyer system revisited. jiangxi social science, 39(09), 194-201. yang, j. g., & li, y. y. (2017). the composition and application of effective defense under the view of trial center—analyzing the implications of nian bin’s case on defendants’ access to effective defense. journal of politics and law, 34(01), 42-50. zhang, w. (2020). research on the construction of effective defense system in china. changjiang university. zhang, w. (2020). research on the construction of effective defense system in china. changjiang university. zhao, x. l. (2019). research on effective defense system. henan university. zhao, x. l. (2019). research on effective defense system. henan university. zong, y. k. (2013). german code of criminal procedure (p. 239). beijing: intellectual property press. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 2, 2024 www.scholink.org/ojs/index.php/elp 114 original paper regional judicial cooperation in combating cross-border telecommunication fraud: research and countermeasures junyu chen 1 , minna qiu 2* & junjie ruan 1 1 criminal law school, east china university of political science and law, shanghai, china 2 law school, shantou university, guangzhou, china * minna qiu, law school, shantou university, guangzhou, china received: august 11, 2024 accepted: august 26, 2024 online published: august 29, 2024 doi:10.22158/elp.v7n2p114 url: http://dx.doi.org/10.22158/elp.v7n2p114 abstract in recent years, cross-border telecommunication fraud has become an increasingly serious global issue that demands urgent resolution. this paper aims to investigate the role of regional judicial cooperation in combating cross-border telecommunication fraud and propose corresponding countermeasures. firstly, it provides an overview of the definitions, characteristics, and main methods of cross-border telecommunication fraud, analyzing its development trends and data performance. the paper then explores the theoretical foundation of regional judicial cooperation, including its concepts, legal frameworks, and a comparison between international and regional cooperation. by examining the current status and challenges of various regional judicial cooperation mechanisms, it reveals successful cases and existing problems. this paper further proposes specific countermeasures for combating cross-border telecommunication fraud, including the improvement of legal regulations, formulation of effective policies, and utilization of technological means, and offers suggestions for enhancing the efficiency of regional judicial cooperation. through case analysis, the role and experiences of regional judicial cooperation in handling actual cases are discussed. finally, the paper looks forward to future research directions and identifies new challenges and opportunities that may arise in the context of cross-border telecommunication fraud and regional judicial cooperation. the research provides valuable references and suggestions for improving measures against cross-border telecommunication fraud. keywords cross-border telecommunication fraud, regional judicial cooperation, legal countermeasures, policy measures www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 115 published by scholink inc. 1. introduction in recent years, cross-border telecommunication fraud has surged rapidly, becoming a significant global security challenge. due to the rapid development of information technology and the advancement of globalization, the methods of cross-border telecommunication fraud have become increasingly complex, involving a broader range of regions and countries. this type of crime not only poses a severe threat to the financial security of victims but also impacts international trust and cooperation in cyber security. to effectively address this issue, regional judicial cooperation is particularly crucial. regional judicial cooperation enhances the efficiency and effectiveness of combating cross-border telecommunication fraud through multi-national collaboration, information sharing, and resource integration. this paper aims to explore the role of regional judicial cooperation in combating cross-border telecommunication fraud, analyze existing cooperation mechanisms and practices, identify major challenges, and propose practical countermeasures. through this research, it is hoped to provide theoretical support and practical guidance for countries working together to combat cross-border telecommunication fraud and to promote international cooperation and consensus in the field of cyber security. 2. overview of cross-border telecommunication fraud 2.1 definition and characteristics of cross-border telecommunication fraud cross-border telecommunication fraud refers to fraudulent criminal activities involving multiple countries or regions, utilizing telecommunication technologies. its main characteristics include: firstly, cross-border telecommunication fraud often involves transnational criminal organizations that conduct fraudulent activities through cross-border networks, exploiting legal and enforcement differences between countries to conceal their crimes. secondly, the methods used in these frauds are diverse, including fraudulent phone calls, phishing messages, and online scams, which deceive victims into providing personal information or transferring funds by masquerading as legitimate commercial activities or personal contacts. furthermore, victims of cross-border telecommunication fraud are spread globally and are often difficult to trace or hold accountable, as criminals typically use technological means to hide their true identities and locations. lastly, with the continuous advancement of information technology and communication tools, fraudulent methods are constantly evolving, and the sophistication of criminals’ disguises increases, making prevention and enforcement more challenging. therefore, cross-border telecommunication fraud not only directly causes economic losses to victims but also poses a serious threat to national financial security and social stability (sitompul, 2020, pp. 1-322). 2.2 types and methods of cross-border telecommunication fraud cross-border telecommunication fraud encompasses a broad spectrum of deceptive practices that are constantly evolving, leveraging advancements in technology and communication to exploit victims worldwide. among the most prevalent types are false prize fraud, identity theft and account fraud, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 116 published by scholink inc. impersonation of customer service fraud, false investment and financial fraud, fraudulent websites and e-commerce scams, romance scams, and fake job and part-time frauds. false prize fraud is one of the most widespread and recognizable forms of telecommunication fraud. in this scam, perpetrators notify victims via phone calls, text messages, or emails that they have won a prize, such as a lottery, a travel package, or cash rewards. to claim their winnings, victims are often required to pay processing fees, taxes, or other charges upfront. in reality, the prizes do not exist, and the scammer’s goal is to trick the victim into providing personal information or making payments under false pretenses. identity theft and account fraud involve obtaining sensitive personal information through phishing, malware, or data breaches. once the fraudsters have access to this information, they can commit various types of economic fraud, such as stealing money from bank accounts, making unauthorized purchases, or committing further financial crimes. the stolen data is often used to open new accounts in the victim’s name, incur debt, or transfer funds illicitly. impersonation of customer service fraud typically involves scammers pretending to be representatives from well-known companies. these fraudsters contact victims under the guise of addressing issues with their accounts or performing necessary maintenance. they may request sensitive account information or remote access to the victim’s computer. by exploiting the victim’s trust in a familiar brand, the scammers gain access to confidential information and potentially compromise the victim’s financial security. false investment and financial fraud schemes attract victims with promises of high returns on fictitious financial products, such as virtual currencies, stocks, or real estate investments. the scammers create elaborate schemes that seem credible, often using professional-looking websites and marketing materials. once victims invest their money, it is diverted to the fraudsters, leaving the victims with substantial financial losses and no recourse to recover their funds. fraudulent websites and e-commerce scams involve creating fake online shopping platforms that appear legitimate. victims are enticed to make purchases for non-existent goods or services. after making payments, the victims may find that the products never arrive and may also face additional risks, such as personal information theft or further financial exploitation. romance scams exploit emotional connections formed on dating sites or social media platforms. scammers build fake romantic relationships with their victims, gradually manipulating them into providing financial support under various pretenses, such as medical emergencies or travel expenses. fake job and part-time frauds involve posting false job advertisements or part-time opportunities to attract job seekers. scammers may ask for personal information or upfront fees for training materials or job placement services. once the victim provides this information or makes a payment, the scammer disappears, leaving the victim with neither a job nor the promised services. these fraudulent methods exploit the pervasive use of modern communication technology and the global network environment. the ability of fraudsters to use sophisticated disguises and false identities makes detection and enforcement challenging, as their activities often span across multiple jurisdictions, complicating efforts to track and prosecute them (chu & deng, 2022, pp. 37-46). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 117 published by scholink inc. 2.3 current trends and data analysis of cross-border telecommunication fraud current trends in cross-border telecommunication fraud indicate that these criminal activities are becoming increasingly complex and covert. firstly, rapid advancements in technology have led to the evolution of fraudulent methods. fraudsters use artificial intelligence, big data analysis, and deepfake technology to make their scams more realistic and harder to detect. for example, artificial intelligence can generate highly realistic voices and videos, allowing scammers to impersonate real individuals or institutions, significantly increasing the difficulty for victims to identify fraud. secondly, the diversification of fraud methods is becoming more apparent. in addition to traditional phone and email scams, new fraud methods such as social media scams, cryptocurrency scams, and online gaming scams are becoming mainstream. these new forms of fraud often employ principles of social engineering, manipulating victims’ psychology to extract funds or information. moreover, the trend of transnational criminal organizations is becoming more prominent. increasingly, cross-border telecommunication fraud cases involve criminal networks across multiple countries, often with efficient technical support and financial resources, operating across borders to evade legal penalties. data shows that in recent years, the incidence rate and financial losses of cross-border telecommunication fraud cases have risen significantly, with increasing complexity and covert nature of fraudulent methods. the global range of victims has also expanded, with individuals and corporate executives alike falling prey to such fraud. data analysis highlights not only the globalization of cross-border telecommunication fraud but also the complexity and urgency of combating this crime. countries and international organizations need to respond collectively by enhancing cooperation and information sharing, and upgrading technological measures to effectively curb the spread of cross-border telecommunication fraud (zhang, shao & zhang, 2023, pp. 1-22). 3. theoretical basis of regional judicial cooperation 3.1 concept and importance of regional judicial cooperation regional judicial cooperation refers to the collaborative efforts undertaken by neighboring countries or regions within a specific geographical or political area to jointly combat crime and maintain legal order. this form of cooperation typically includes information sharing, cross-border investigations, joint actions, and legal assistance. the core of regional judicial cooperation is to enhance the effectiveness of combating cross-border crime by integrating resources and coordinating actions, which is particularly crucial when addressing complex crimes such as cross-border telecom fraud. since telecom fraud often involves legal and judicial systems of multiple countries, handling it independently may not achieve optimal results. through regional judicial cooperation, countries can share crime information, coordinate investigative actions, and implement joint efforts, thereby forming an effective cooperation mechanism and enhancing their ability to sanction criminal behavior. additionally, regional judicial cooperation helps reduce legal conflicts, unify legal standards, and improve law enforcement efficiency, thereby promoting regional security and stability. with the acceleration of globalization and the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 118 published by scholink inc. increase in cross-border crime, regional judicial cooperation plays an increasingly important role in the global governance system and is a key means of effectively combating cross-border crime and maintaining legal order (corcoran, 2020, p. 1). 3.2 legal framework and mechanisms of regional judicial cooperation the legal frameworks and mechanisms of regional judicial cooperation provide the legal basis and operational norms for cross-border cooperation among countries. typically, these frameworks and mechanisms include bilateral or multilateral treaties, cooperation agreements, and relevant regulations established by international organizations. these legal documents institutionalize regional judicial cooperation, ensuring the legality and effectiveness of cooperative activities. for example, the european arrest warrant among eu member states is a successful regional judicial cooperation mechanism. it simplifies the extradition process between member states, allowing for rapid extradition across different countries after the arrest of a criminal suspect, thereby expediting case handling. the european arrest warrant not only improves judicial efficiency but also reduces legal obstacles in the extradition process, facilitating smooth cross-border cooperation. in asean, member states have strengthened their efforts against cross-border crime through the asean criminal justice cooperation framework. this framework includes information sharing, legal assistance, and joint actions, aiming to enhance cooperation capabilities among member states in criminal justice. cross-border cooperation conducted by asean countries under this framework has achieved significant results in combating crimes such as telecom fraud within the region. international organizations such as the united nations and interpol also support regional judicial cooperation. the un promotes global legal cooperation through the formulation of multilateral treaties and international cooperation mechanisms. interpol, through its global network, provides support for cross-border crime intelligence sharing and joint actions, assisting countries in addressing complex cross-border crimes. additionally, regions may establish dedicated cooperation agencies or committees responsible for coordinating and advancing judicial cooperation within the region. for example, eu judicial cooperation bodies such as eurojust and the european public prosecutor’s office play important roles in the investigation and prosecution of cross-border cases. these agencies facilitate cooperation and information exchange among member states by providing legal and technical support. in summary, the legal frameworks and mechanisms of regional judicial cooperation provide effective institutional support for combating cross-border crime by offering clear legal bases, operational norms, and support agencies. legal cooperation mechanisms within and among countries and regions play a crucial role in enhancing cross-border cooperation, improving judicial efficiency, and maintaining regional security (luo, 2022, p. 344). 3.3 comparison of international and regional judicial cooperation international and regional judicial cooperation exhibit significant differences in form and content, reflecting their distinct strategies and challenges in addressing cross-border crime at the global and regional levels. international judicial cooperation generally involves global coordination through international treaties, organizations, and meetings to promote legal collaboration between countries. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 119 published by scholink inc. for example, the un provides a global framework through the un convention against transnational organized crime to enhance cooperation among countries in combating cross-border crime. interpol supports multinational crime intelligence sharing and joint actions through its global network. the advantages of international judicial cooperation lie in its broad coverage and global coordination capabilities, but it also faces challenges related to complex coordination and significant legal and policy differences. in contrast, regional judicial cooperation focuses more on the specific needs within a geographical or political region, typically achieved through regional treaties and agreements. for example, eu member states use mechanisms such as the european arrest warrant and eurojust to efficiently collaborate on cross-border crime within the region. asean countries address regional crime issues like telecom fraud through the asean criminal justice cooperation framework. this regional cooperation model better adapts to the specific needs and legal environments of member states, enabling more precise and efficient collaboration. the advantages of regional judicial cooperation include its ability to adjust to the actual situation within a specific region and provide targeted solutions. however, regional cooperation may also face issues related to legal differences and political sensitivities among member states, which can impact the effectiveness and depth of cooperation. in terms of content, international judicial cooperation often covers broader areas, including extradition, international criminal investigations, and transnational intelligence sharing, aimed at solving global issues. regional judicial cooperation, on the other hand, is more focused on specific regional issues, such as cross-border telecom fraud and particular forms of regional crime, addressing practical challenges within a specific area. overall, international and regional judicial cooperation each have unique advantages and challenges in addressing cross-border crime. international cooperation provides broad support through global frameworks and organizations, while regional cooperation enhances specificity and effectiveness through mechanisms and agreements that are closer to practical realities. the effective combination of both can offer more comprehensive solutions to cross-border crime at both global and regional levels (han, emma & liu, 2023, pp. 60-83). 4. current situation of regional judicial cooperation in combating cross-border telecom fraud 4.1 current status and challenges of regional judicial cooperation mechanisms regional judicial cooperation mechanisms have made some progress in combating cross-border telecom fraud, but they also face various challenges. these mechanisms enhance the ability to combat cross-border telecom fraud through information sharing, joint investigations, and cross-border actions. however, due to differences in laws, cultures, and technologies within regions, these mechanisms often encounter difficulties in practical implementation. in the eu, regional judicial cooperation mechanisms such as the european arrest warrant and eurojust have played important roles in handling cross-border telecom fraud cases. the european arrest warrant has streamlined the extradition process between member states, enabling rapid transfer of suspects across different countries and speeding up case www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 120 published by scholink inc. resolution. additionally, eurojust, as the eu’s judicial cooperation agency, coordinates investigations and prosecutions among member states. despite these achievements in efficiency, challenges persist in enforcement coordination and information sharing. legal and procedural differences between member states, as well as language barriers, often lead to delays in information transmission and action execution. in asean, member states have strengthened their efforts against cross-border crime, including telecom fraud, through the asean criminal justice cooperation framework. this framework provides a legal and practical cooperation platform that facilitates information exchange and joint actions among member states. however, significant differences in legal systems and judicial capacities among asean countries have created difficulties in handling specific cases. inconsistent legal standards and uneven resource distribution impact the effectiveness of cooperation. additionally, cultural differences and language barriers within asean pose challenges for cross-border cooperation. in other regions such as latin america and africa, regional judicial cooperation mechanisms are also evolving but face more complex challenges. these regions often lack unified legal frameworks and coordination mechanisms, and the varying judicial capacities and technological levels among countries lead to lower efficiency in handling cross-border telecom fraud cases. political and economic instability within regions may also affect the smooth execution of cooperation. overall, while regional judicial cooperation mechanisms have achieved some success in combating cross-border telecom fraud, numerous challenges remain in practical implementation. addressing these issues requires strengthening legal coordination and standardization within regions, improving technical support and resource sharing, enhancing information transmission mechanisms, and overcoming language and cultural differences. by continuously optimizing and improving regional judicial cooperation mechanisms, the effectiveness of combating increasingly complex cross-border telecom fraud can be enhanced. 4.2 successful cases and experience analysis in the fight against cross-border telecom fraud, several regional judicial cooperation mechanisms have achieved notable success. these cases not only demonstrate effective cooperation models but also provide valuable experience for future cooperation. a typical successful case is the “eu/us joint action” conducted within the eu. this operation, initiated by europol and the fbi, aimed to combat cross-border telecom fraud networks. through this operation, law enforcement agencies coordinated actions across multiple countries, successfully dismantling an international fraud syndicate. during the operation, participating countries shared extensive intelligence, conducted cross-border investigations and searches, ultimately apprehending numerous suspects and freezing fraud proceeds. this case highlights how close international cooperation and information sharing can efficiently combat complex cross-border crime networks. another successful case is the “asean anti-fraud operation”, where asean member states collaborated to address cross-border fraud. coordinated by the asean secretariat, this operation involved law enforcement agencies from member states working together. through a unified information-sharing platform, countries could exchange real-time information and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 121 published by scholink inc. evidence related to fraud cases. this operation effectively targeted several cross-border telecom fraud gangs and promoted legal and technical cooperation among asean member states. notably, the operation achieved breakthroughs in information technology support and legal coordination, enhancing the region’s ability to combat telecom fraud. in latin america, the “latam anti-fraud operation” is also a successful case. conducted through regional cooperation mechanisms, this operation involved latin american countries sharing intelligence about fraud groups, coordinating cross-border investigations, and successfully dismantling several fraud networks. this case demonstrates that even with limited resources, effective regional cooperation and coordination can yield positive results. the experience analysis of these successful cases shows that effective regional judicial cooperation relies on several key factors. firstly, the mechanism for information sharing is crucial, requiring participating countries to establish efficient platforms for real-time intelligence exchange. secondly, cross-border coordination ability is essential, with law enforcement agencies needing to achieve tight coordination to ensure the unity and efficiency of actions. additionally, technical support, including data analysis, monitoring technologies, and legal tools, is vital. these experiences not only showcase the practical effectiveness of regional cooperation in combating cross-border telecom fraud but also provide operational insights and references for future actions. in summary, the analysis of successful cases indicates that the effectiveness of regional judicial cooperation in combating cross-border telecom fraud largely depends on information sharing, cross-border coordination, and technical support. these successful experiences offer practical guidance for further optimizing regional cooperation mechanisms and enhancing the efficiency of cross-border crime fighting. 5. legal and policy measures against cross-border telecom fraud combating cross-border telecom fraud requires a comprehensive approach involving both legal and policy measures to establish a systematic and effective prevention and control system. firstly, countries should focus on improving their legal frameworks by clearly defining telecom fraud, specifying criminal responsibilities, and establishing penalty standards to create a comprehensive legal system. specifically, it is recommended to draft and amend dedicated laws against telecom fraud and actively integrate international legal documents, such as the united nations convention against transnational organized crime, to enhance international legal coordination and cooperation. this measure can improve the responsiveness and effectiveness of legal systems against telecom fraud and overcome barriers in legal applicability. secondly, information sharing is a core aspect of tackling cross-border telecom fraud. countries should establish and optimize cross-border information-sharing platforms to facilitate real-time data exchange and evidence sharing among law enforcement agencies. such platforms can help countries obtain timely information about fraud cases, improving their ability to identify and combat fraud networks. moreover, strengthening cooperation with international organizations like interpol and europol, leveraging their global and regional network resources, will further enhance the effectiveness and efficiency of cross-border cooperation. technical support and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 122 published by scholink inc. training are also crucial. countries should increase investment in advanced technological tools, such as data analysis, network monitoring, and electronic evidence collection technologies, which can significantly enhance investigative and preventive capabilities against telecom fraud. additionally, enhancing the professional training of law enforcement personnel to improve their skills and knowledge in cybersecurity and telecom fraud is essential for addressing complex cross-border fraud cases. in terms of international and regional cooperation, promoting cooperation mechanisms at both international and regional levels can improve the effectiveness of combating telecom fraud. regional organizations such as asean and the eu should formulate and implement regional legal frameworks and cooperation agreements to promote coordination and collaboration among member states. simultaneously, it is advisable to drive global cooperation and standardization through international organizations like the un to form a united international effort against telecom fraud. furthermore, public awareness and education are key to preventing telecom fraud. governments and relevant agencies should conduct extensive public awareness campaigns to enhance the public’s understanding and prevention capabilities regarding telecom fraud. through multi-channel promotion and education, spreading knowledge about common fraud techniques and preventive measures can reduce the occurrence of fraud cases from the source. improving cross-border legal assistance mechanisms is also necessary. countries should establish efficient cross-border legal assistance mechanisms, simplify extradition procedures, and strengthen cross-border judicial assistance and legal aid agreements to accelerate case processing and enhance the efficiency of handling international cases. such mechanisms will aid in quickly obtaining evidence and conducting judicial proceedings, thereby improving the effectiveness of combating telecom fraud. finally, international coordination of laws and policies is crucial. in the context of globalization, countries should strengthen dialogue and negotiation to promote the development of unified international standards and policies against telecom fraud to enhance legal and policy consistency. this will help reduce legal conflicts and improve the overall effectiveness of international cooperation. in summary, combating cross-border telecom fraud requires action on multiple fronts, including legal frameworks, information sharing, technical support, international and regional cooperation, public awareness, legal assistance, and international coordination. through these comprehensive legal and policy measures, the ability to combat telecom fraud can be significantly improved, protecting public rights and maintaining international security and stability. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 123 published by scholink inc. 6. conclusion cross-border telecom fraud, as a growing international crime, not only causes serious economic damage but also threatens global social stability. this study clearly demonstrates that addressing cross-border telecom fraud requires comprehensive and systematic regional judicial cooperation. firstly, understanding the definition, characteristics, types, and methods of cross-border telecom fraud is the foundation for developing effective measures. the evolving nature of fraud techniques and the complexity of cross-border crimes require deep cooperation among countries in legal frameworks, technical support, and information sharing. current trends show that fraud gangs are becoming more covert and specialized, necessitating continuous innovation and improvement in anti-fraud measures. regional judicial cooperation plays a crucial role in combating cross-border telecom fraud. through theoretical analysis, we recognize that establishing robust regional judicial cooperation mechanisms can not only enhance the efficiency of handling cross-border cases but also improve the effectiveness of combating fraud through information sharing and coordinated actions. however, existing cooperation mechanisms still face many challenges, such as legal and institutional differences, poor information communication, and insufficient technical support, which affect the smoothness and effectiveness of cooperation. addressing these challenges requires improving legal frameworks, strengthening information sharing, enhancing technical support, promoting international and regional cooperation, raising public awareness, and optimizing legal assistance mechanisms. implementing these measures can effectively tackle the complex issues posed by cross-border telecom fraud and improve overall anti-fraud effectiveness. additionally, international and regional legal and policy coordination will be a key focus for future efforts, with countries needing to strengthen cooperation and communication in the context of globalization. overall, combating cross-border telecom fraud is a long-term and challenging task that requires joint efforts from countries, regions, and international organizations. only through systematic legal measures and policy actions, and by establishing effective cooperation mechanisms, can a strong prevention and control network be formed globally to protect public interests and maintain social order. future work should continue to address existing problems, optimize cooperation methods, and adapt to the evolving nature and development of telecom fraud crimes. references chu, y., & deng, y. c. (2022). study on the risk prevention measures of china’s network payment from the perspective of regulators. law and economy, 1(5), 37-46. https://doi.org/10.56397/le.2022.12.05 corcoran, b. (2020). a comparative study of domestic laws constraining private sector active defense measures in cyberspace. harv. nat’l sec. j., 11(2020), 1. https://doi.org/10.56397/le.2022.12.05 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 2, 2024 124 published by scholink inc. han, c., emma, m., & liu, w. d. (2023). reading the forum on china-africa cooperation (2000-2021): geoeconomics, governance, and embedding “creative involvement”. area development and policy, 8(1), 60-83. https://doi.org/10.1080/23792949.2022.2092018 luo, y. d. (2022). a general framework of digitization risks in international business. journal of international business studies, 53(2), 344. https://doi.org/10.1057/s41267-021-00448-9 sitompul, j. (2020). cross-border access to electronic evidence: improving indonesian law and practice in investigating cybercrime (pp. 1-322). zhang, y. z., shao, y. t., & zhang, j. (2023). challenges to sustainable development in china’s banking industry: a structural equipment modelling approach for fighting phishing in china. public organization review, 2023, 1-22. https://doi.org/10.1007/s11115-023-00713-5 https://doi.org/10.1080/23792949.2022.2092018 https://doi.org/10.1057/s41267-021-00448-9 https://doi.org/10.1007/s11115-023-00713-5 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 3, 2024 www.scholink.org/ojs/index.php/elp 55 original paper research on compulsory contracting obligation of civil liability under the civil code yixi quzhen 1 1 school of political science and law, tibet university, lhasa, tibet, china received: october 20, 2024 accepted: november 5, 2024 online published: november 7, 2024 doi:10.22158/elp.v7n3p55 url: http://dx.doi.org/10.22158/elp.v7n3p55 abstract this paper introduces the concept of compulsory contracting obligation from the case analysis, and analyzes the characteristics and types of compulsory contracting obligation. subsequently, the civil liability for breach of the compulsory contracting obligation is analyzed from its nature and constituent elements, and its liability method is proposed and introduced in detail. keywords compulsory contracting obligation, violation, civil liability 1. case review the plaintiff is the owner of the house in xingcheng city, and the defendant shuangxing heating company is an enterprise that provides heating services for the third phase of century huafu district in xingcheng city. in august 2020, the plaintiff purchased xingcheng housing from xingcheng fubang real estate development co., ltd. in october 2022, the plaintiff obtained the housing ownership certificate of xingcheng city. on october 18, 2022, the plaintiff paid the defendant 3944 yuan from 2022 to 2023 according to the heating price of 24 yuan per square meter and the billing area of 164.35 square meters (including the basement area of 48.74 square meters). during the acceptance of the defendant shuangxing heating company, it was found that the door connecting the garage and the basement of the household was still not completely closed, which was an illegal act of unauthorized expansion of the heating area. the plaintiff was asked to make rectification and said that the heating was suspended before the rectification. on october 22, 2022, the plaintiff complained through the 8890 platform that the heating unit refused to heat because there was a door between the network area and the non-network area. the heating office of xuanxing city went to the scene of the house involved in the case to consult with the plaintiff and the defendant on the issues reflected by the plaintiff, and no agreement was reached. on october 28, 2022, the xingcheng heating office replied that it was found www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 56 published by scholink inc. that the household was room 102, unit 1, building 16, phase 3, century huafu community. the basement of the original design drawing of the house was not connected to the garage. the user changes the building structure of the house without authorization, so that the garage is connected with the basement (with a warm room). according to article 33, paragraph 5 of the “huludao city heating regulations”, the user may not expand the heating area without authorization. if heating is needed, the user needs to rectify it himself. the defendant shuangxing heating company has not restored heating to the house involved in the plaintiff’s case. in another investigation, in july 2018, the defendant shuangxing heating company and xingcheng fubang xingcheng fubang real estate development co., ltd.signed a “heating access agreement” on the issue of community access heating in the case. in october 2019, the defendant shuangxing heating company conducted a preliminary test of the heating facilities of the xingcheng century huafu phase iii community. during the acceptance process, the company found that there were 21 households with basements on the ground floor of the community, and there was a connection between the network basement and the garage. among them, the basement containing 102 rooms in unit 1 of building 16 is connected to the d4-51 garage, and it is proposed that the garage is connected to the network basement. it is necessary to go through the network access procedures by the development enterprise, or restore the original wall of the basement door to the garage to maintain the independence of the basement space. in november 2019, the defendant shuangxing heating company began to provide heating for the third phase of xingcheng century huafu district. again, there is a burglarproof door between the basement of the plaintiff’s house and the garage. the plaintiff provided invoices, housing warrants, the defendant’s submission of the network access agreement, on-site video, 8890 platform reply, etc., and the statement transcripts of the parties. the court of first instance believes that civil subjects engaged in civil activities should follow the principle of fairness and reasonably determine the rights and obligations of all parties. according to article 648 of the civil code of the people’s republic of china; the power supply contract is a contract in which the power supplier supplies power to the electricity user and the electricity user pays the electricity fee. the power supplier who supplies power to the public shall not refuse the reasonable contract requirements of the power user. in combination with the relevant provisions of the civil code on the reference to the applicable power supply contract for the heat supply contract, the heating service enterprise shall also provide the heating obligation in accordance with the state regulations and shall not refuse the heating in accordance with the above provisions. although there is no written heating agreement between the plaintiff and the defendant, the defendant is responsible for the heating service in the district where the house is located. the plaintiff has paid the heating fee, and a de facto legal relationship has been formed between the plaintiff and the defendant. article 26 of the “regulations on urban heating in liaoning province” stipulates that “during the heating period, the heating unit shall ensure normal, stable and continuous heating, implement 24-hour uninterrupted service, strengthen inspections, find problems or receive repairs, and shall deal with them in a timely www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 57 published by scholink inc. manner”. in the life of residents, electricity, water, gas and heat are all public goods closely related to people’s livelihood. ordinary residents generally cannot directly choose the main body to provide products and services. in the district where the plaintiff lives, the defendant is the only unit that provides heating services. the heating pipelines and other facilities in the district are managed by the plaintiff. the plaintiff, as the owner of the house involved in the lawsuit, can only accept the heating services provided by the defendant. if the defendant refuses to provide services, the plaintiff will be in a situation where heating services cannot be obtained, which is unfair and does not conform to the basic principles and spirit of the law. therefore, the defendant, as the only heating institution in the heating service area, cannot refuse to provide heating services for the plaintiff. the plaintiff has paid the heating fee, and the defendant should fulfill the heating obligation. therefore, the plaintiff requests to resume heating and support it according to law. in this case, we can see that the compulsory contracting obligation guarantees the plaintiff’s own rights and interests. chapter x contracts for the supply of electricity, water, gas and heat in title iii of the civil code contracts for the supply of electricity, water, gas and heat in title iii of the civil code are contracts in which one party provides electricity, water, gas and heat for the use of the other party, and the other party makes use of these resources and pays remuneration. the characteristics of the contract include the public nature, that is, it has a compulsory contracting obligation. 2. concept of compulsory contracting obligation the concept of compulsory contracting first appeared in germany. german scholar medikus explained the compulsory contracting in his own works. german scholar medikus believes that compulsory contracting is under the legal norms. in order to protect the rights and interests of the beneficiaries, the obligor has the obligation to sign a contract with the beneficiaries, and the content of the contract should be specific or neutral and fair. professor wang liming believes that compulsory contracting is the conclusion of a contract. it is not based on the consent of the person at that time. as long as one party makes a contracting request, the other party has a statutory contracting obligation. article 494 of the “civil code of the people’s republic of china” states that where the state issues national ordering tasks or mandatory tasks in accordance with disaster relief, epidemic prevention and control, or other needs, the relevant civil subjects shall conclude contracts in accordance with the rights and obligations stipulated in relevant laws and administrative regulations. the parties who have the obligation to issue an offer in accordance with the provisions of laws and administrative regulations should issue a reasonable offer in a timely manner. the parties who have the obligation to make commitments in accordance with the provisions of laws and administrative regulations shall not refuse the other party’s reasonable contract requirements. therefore, compulsory contracting refers to the obligation of the civil subject to conclude a contract with the counterpart at the request of the counterpart, or the obligation of the civil subject to issue an offer to the counterpart to conclude a contract. the former is mandatory commitment, and the latter is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 58 published by scholink inc. mandatory offer. the civil subject who has the obligation to sign a contract with the counterpart is called the contracting obligor. the contracting obligor has the obligation to make an offer to the other party or to make a commitment to the offer made by the other party, which is the compulsory contracting obligation. this obligation is legal, and the contract concluded because of the performance of the compulsory contracting obligation is a compulsory contract. china’s civil code stipulates the following compulsory contracting obligations: (1) the “civil code of the people’s republic of china” stipulates that if the state issues mandatory tasks or national ordering tasks as needed, the relevant legal persons and other organizations shall conclude contracts in accordance with the rights and obligations stipulated in relevant laws and administrative regulations; (2) the “civil code of the people’s republic of china” stipulates that the lessor who sells a rental house shall notify the lessee within a reasonable period of time before the sale, and the lessee shall have the right to purchase first under the same conditions; (3) the “civil code of the people’s republic of china” stipulates that the carrier engaged in public transportation shall not refuse the usual and reasonable transportation requirements of passengers and shippers. 3. characteristics of compulsory contracting obligation 3.1 the power of compulsory contracting to the contracting obligor comes from the law the compulsory contracting obligation is imposed by law on the obligor, which is a legal obligation. it cannot be refused without justifiable reasons, and must bear the relevant legal consequences of violating this obligation. mr. liang huixing once proposed that the supervision of contract freedom plus public law is to protect the relatively weak party. the compulsory contracting obligation has its particularity and needs to be applied cautiously. from this point of view, the power of compulsory contracting to the contracting obligor must come from the law. the law of our country is statute law, so the law is lagging behind the development. at this time, the legal principles can play a complementary and bottom-up role. in the face of great controversy among judges and the lack of specific provisions in the current law, it is difficult to apply directly. it is necessary to rely on legal principles to make judgments and allow them to play a command and auxiliary function. in addition, the “honesty and credit, public order and good customs, equality and voluntariness” in the legal principles are highly abstract and can be flexibly used to properly fill the legal loopholes caused by the lag of the law. 3.2 compulsory contracting has the dual attributes of public law and private law public law is related to national interests. the object of its adjustment is the state and public interests. one party is the state, and the other party is subordinate or obedient, which is mainly reflected in mandatory norms. the private law is the object of adjustment is personal interests, the main emphasis is the equality and freedom of the individual. from the above, we can find that there is a clear boundary www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 59 published by scholink inc. between public law and private law. however, with the rapid development of society, there is a trend of public law infiltrating and integrating into private law in various places and countries. in order to realize the right of equality in law, many compulsory contracting obligations are stipulated. “compulsory” has the color of public law, and “contracting” has the characteristics of private law. the compulsory contracting obligation originates from the law, which naturally has the nature of public law. in addition, the compulsory contracting obligation still needs to be established through the offer and commitment of both parties, which is the core and manifestation of private law autonomy. and the compulsory contracting obligation is to achieve substantive justice, which corrects the “non-free” part, which is an important principle and value of private law. to sum up, compulsory contracting not only has the nature of public law, but also has the nature of private law. on the one hand, it reflects the mandatory nature of the state, and the scope of adjustment is not only limited to the scope of private law, but also covers public law-such as administrative law, economic law, criminal law and so on. on the other hand, compulsory contracting still conforms to the characteristics of private law, follows the essential attributes of private law, and runs on the track of private law. 3.3 the contractual freedom of the forced contracting party is limited the principle of freedom of contract refers to the freedom of the parties to decide whether to enter into a contract and who to enter into a contract. the freedom here refers to the decision to decide completely according to their own wishes without any restrictions. the compulsory contracting obligation makes the forced party not have no way to exercise the right to freely contract, and to force the conclusion of the contract according to the law. although the compulsory contracting obligation limits the contractual freedom of the forced contracting party, its essence is to protect the overall interests of the relatively weak party and prevent some units with strong economic strength and monopoly status from arbitrarily using their own advantages to infringe on the interests of ordinary people. because of the huge strength and economic gap between the two sides, in order to avoid the ordinary people being forced to accept some unfavorable and harsh terms due to this gap and monopoly relationship, only the contractual freedom of the forced parties can be restricted to a certain extent. 3.4 neutrality and extensibility of compulsory contracting obligation the compulsory contracting obligation is neutral, because the compulsory contracting obligor needs to comply with the compulsory contracting obligation, but it cannot stipulate the specific content and terms of the contracting contract. in addition, the establishment of the contract also requires the parties’ own meaning to complete the direct offer and commitment. therefore, the compulsory contracting obligation is a means, which can only balance the interests of both parties in a neutral position and safeguard the overall interests as much as possible. the compulsory contracting obligation is also extended. the development and change of society is extremely rapid, and the law often lags behind the development of society. we often face some areas where the compulsory contracting obligation originally needed is no longer needed, and the areas that were not originally needed need to apply the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 60 published by scholink inc. compulsory contracting obligation for development reasons. in order to better adapt to the development and changes of society, protect the interests of vulnerable groups and maintain social justice, the obligation of compulsory contracting also needs to change with the development of these situations. 4. types of compulsory contracting obligations 4.1 direct compulsory contracting direct compulsory contracting means that the law has direct provisions on compulsory contracting obligations, mainly some public utilities, such as the supply of hydropower, coal, natural gas and other units, or based on a specific identity, occupation and obligations, such as motor vehicle drivers and so on. at present, china’s direct compulsory contracting mainly includes: (1) public transportation: like buses, taxis are closely related to the lives of ordinary people, and are important means of transportation for people’s daily travel. the service objects of these vehicles are uncertain. therefore, many places have issued relevant laws and regulations. taxi drivers are required not to refuse passengers when passengers make reasonable demands. however, it is also determined that the following three conditions can be rejected: taking a taxi in a place where parking is prohibited; taking a taxi when a person who is restricted or incapable of civil conduct travels alone; passengers put forward unreasonable compliance legal requirements. (2) public utilities: the compulsory contracting obligations in this area are mainly stipulated in water supply, electricity, coal, heating and other industries closely related to the lives of ordinary people. these industries have something in common: first, the goods and services provided by these industries are necessities in people’s daily life, and people’s daily life is inseparable from these goods and services; second, most of these industries are monopoly enterprises. if the enterprise does not perform the contract, people’s daily life will lose the basic living conditions and quality of life. therefore, as long as the compulsory contracting obligation is implemented from the legal level, people’s daily production and life can be guaranteed. (3) medical treatment : article 27 of the “medical law of the people’s republic of china” points out that doctors should take emergency measures to treat patients in need of emergency treatment, and should not refuse emergency treatment; if the opinions of patients and their close relatives cannot be obtained due to emergency situations such as rescuing dying patients, the corresponding medical measures can be implemented immediately with the approval of the head of the medical institution or the authorized head. therefore, doctors and hospitals have a mandatory contracting obligation in the case of acute illness. (4) insurance industry: in china’s “motor vehicle traffic accident liability compulsory insurance regulations”, article 10 points out that the insured should choose to engage in motor vehicle traffic accident liability compulsory insurance business qualifications insurance company, the selected insurance company may not refuse or delay underwriting. however, most of the contracts in the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 61 published by scholink inc. insurance industry are based on the results of free consultation between the parties. 4.2 indirect compulsory contracting indirect compulsory contracting refers to the compulsory contracting that is not expressly stipulated by law but is applied by analogy according to the relevant principles of public order and good customs in civil law. at present, china’s indirect compulsory contracting includes the following two types: (1) easement: a party is the state and for the public interest of the society to lay or build canals and other reasons need to use other people’s land, if the use of easement mode, according to the relevant provisions of the “property law”, the parties to set up the easement shall be concluded in writing the contract. and the law stipulates that the land owner, the right to land contractual management and other land applicable rights holders in the content of the contract should have a mandatory contracting obligation. (2) specific service industries: such as catering accommodation and even haircut and other service industries, although there are many similar shops, ordinary people in a refused service will not affect people’s living conditions. however, in a specific area or situation, there may be only one catering and accommodation enterprise in this area or during this period. at this time, this enterprise refuses customers to eat and stay, which will affect the daily life of ordinary people. therefore, these industries have compulsory contracting obligations under certain conditions. 4.3 distinguish between direct and indirect meaning its significance is that the law has very clear and specific provisions for direct compulsory contracting, which can be directly applied with reference to the law. the indirect compulsory contracting is derived from legal provisions or legal principles, and its application is more complicated than the direct compulsory contracting, which may lead to improper application. 5. civil liability for breach of compulsory contracting obligations 5.1 the nature of civil liability for breach of compulsory contracting obligations compulsory contracting is that the law expressly stipulates that the obligor bears legal obligations and cannot arbitrarily change the obligor’s corresponding obligee to enjoy legal rights. they have the right to request the contracting obligor’s right to contract with him. however, contracting is, after all, a legal act that can only be reached by consensus between the two parties, requiring the parties to perform in accordance with the specific content of the offer commitment. if the obligor fails to perform its obligations in accordance with the content of the compulsory contracting, the relevant rights of the obligee cannot be realized or even cause damage to the interests, the obligor needs to bear the corresponding legal liability for its failure to perform its obligations. however, at present, there is no clear stipulation on the specific nature of civil liability in legislation, and there are different opinions in academic circles. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 62 published by scholink inc. at present, there are four main theories about the specific nature of the civil liability of the compulsory contracting obligor: (1) the theory of contracting fault liability: the point of view of this theory is that civil liability should be borne for breach of compulsory contracting obligations, and civil liability is contracting fault liability. professor wang liming believes that the party’s refusal to enter into a contract with the other party in violation of the compulsory contracting obligation is a kind of contracting fault behavior. therefore, the compulsory obligor should bear the contracting fault liability for his refusal to enter into a contract. professor wang liming’s reason is that the violation of the compulsory contracting obligation occurs at the contracting stage and will damage the interests of the counterpart. (2) tort liability theory: the point of view of this theory is that the liability for breach of compulsory contracting obligations is tort liability. at present, germany, france and china’s taiwan region all agree with this view. in the tort law of germany and france, the act of violating the obligation of compulsory contracting is considered to be an act of infringing the rights of the counterpart, and it is also a kind of tort. therefore, german and french countries define civil liability for breach of compulsory contracting obligations as tort liability. (3) liability for breach of contract: the point of view of this theory is that compulsory contracting is an obligation expressly stipulated by law. the content of this obligation is that it is necessary to conclude a contract with the counterpart, and most of the compulsory obligors are units or organizations that provide public services. therefore, according to the legislative purpose and content, the rest within the scope of the compulsory contracting obligation should be established on the basis of legal provisions. that is to say, even if the compulsory contracting obligor refuses to conclude a contract with the counterpart, the contract is still valid. therefore, the doctrine holds that the civil liability for breach of compulsory contracting obligations should be characterized as liability for breach of contract. (4) independent liability theory: the point of view of this theory is that the civil liability for breach of compulsory contracting obligations is an independent civil liability. the reason is that the purpose of the state’s establishment of compulsory contracting obligations is to urge public service agencies to actively fulfill their social responsibilities and ensure that the daily lives of ordinary people can be met. therefore, the public service institution rejects the contracting request of the counterpart, and the public service institution should bear the responsibility of “actually fulfilling” the compulsory contracting obligation. therefore, the civil liability for breach of the compulsory contracting obligation should be a type of liability independent of the existing liability. 5.2 constitutive elements of civil liability for breach of compulsory contracting obligations (1) operators have compulsory contracting obligations in the contract: the following three operators have obligations in the contract. the first is the monopoly of quasi-public goods or service contracts: the contract mainly includes life resource-based and basic service-oriented quasi-public goods branding service contracts. the second is the monopoly of private goods or service contracts: although private goods are not of a public nature, it should be to fully allow the market to compete freely, and operators www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 63 published by scholink inc. enjoy contract freedom. therefore, only if the operator abuses the relevant status to infringe on the rights and interests of the general public, it will have a compulsory contracting obligation. and the law explicitly prohibits the act, for example, “refuse to trade with the counterparty without proper reason”. third, non-monopolistic but discriminatory private product or service contracts: although it is said that the operator is essentially aiming at profit in the business process, there will be no discrimination caused by some other reasons. however, sometimes due to the operator’s own political position, interests or religious beliefs, it will set up some special conditions for products or services or refuse to provide products or services to certain types of consumers. (2) the operator has the behavior of violating the compulsory contracting obligation: first of all, the operator must refuse the contracting behavior, which will violate the compulsory contracting obligation, and then there is the possibility of civil liability. in addition to the positive act of refusing to conclude a contract, the operator’s violation of the compulsory contracting obligation also includes acts that do not constitute implied commitments, omissions of intention realization, and improper contracting conditions: first, unless the operator has reasonable reasons, it cannot expressly inform the consumer of its non-compliance with the compulsory contracting obligation, otherwise it will constitute a violation of compulsory contracting. second, although it is not clear to refuse to perform the contract, but the establishment of some unreasonable restrictions, which is actually equivalent to the refusal to perform the contract, its legal effect is consistent with the refusal to perform the contract, need to bear civil liability. (3) the consumer’s request for contracting is legal and has the possibility to perform: the operator must first have the obligation to force the contracting, and secondly, it must also be based on the legality and enforceability of the contracting request. otherwise, the civil liability is not legitimate, and the compulsory contracting obligation will lose its meaning. the understanding of the legality and enforceability of the contracting request proposed by the consumer is as follows : first, the contracting request should be specific and include the intention to enter into a contract with the operator, and the operator should be reasonably convinced of the contractual rights it requires to establish through the commitment; at the same time, the inviter has issued an offer to the counterpart, and the content and form of the offer are in accordance with the law. secondly, the contract is enforceable. firstly, the compulsory contracting obligation is essentially to ensure that the ordinary people can enjoy the rights and interests they should enjoy, emphasizing the conclusion of the contract and the realization of the interests after the conclusion, so as to ensure that the ordinary people can obtain the necessary resources and services for life. therefore, the service advocated by the contracting request should be within the scope of the service business of the operator with the compulsory contracting obligation and its service capacity. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 64 published by scholink inc. 5.3 ways of bearing civil liability for breach of compulsory contracting obligations (1) forced conclusion of a contract in the above, we have repeatedly mentioned that the compulsory contracting obligation is essentially to protect the basic life of the ordinary people. the purpose of its establishment is not to compensate for the losses caused by the violation of the compulsory contracting obligation, but to urge the public service units to perform their duties and reach a contract with the counterpart to ensure that the basic needs of the ordinary people are met. the core of the compulsory contracting obligation is also to protect the rights of relatively vulnerable groups. therefore, for forcing the obligor to refuse to conclude a contract without good reason, the most important way of responsibility is to actually fulfill its obligations and conclude a contract, which is not only more practical than compensating for losses, but also more able to protect the rights and interests of ordinary people. for example, a opened a factory in a city with frozen goods as the main product, which needed to use a lot of power facilities in the process of production and life, but the local power company refused to conclude the contract. from the case, we know that, compared with the compensation for the existing losses, the performance of the contract with the local power company is the most meaningful way to bear the responsibility. (2) damages as mentioned above, although the most effective and practical way to bear responsibility is compulsory contracting, it is not applicable or partially applicable to some contracts. professor cui jianyuan proposed that the compulsory obligor should give the counterpart corresponding compensation for the part that has not been compensated for the compulsory contracting. especially in the case of damage to personal rights and interests, damage compensation is more reasonable and more able to protect the rights and interests of the other party. therefore, damage compensation plays an important complementary role. for example, a took a taxi to a city, but the driver refused to carry it on the way and asked a to get off the highway. subsequently, the rear car caused a serious collision with a, resulting in serious injury to a. in this case, it is no longer meaningful to continue to enforce the contracting. relatively speaking, damage compensation can better safeguard the interests of a. (3) apology apology is a common way to make up in daily life, and it is also a common way to bear civil liability, which is also applicable to the violation of compulsory contracting obligations. for example, the compulsory obligor’s refusal to perform does not cause substantial damage to the counterpart, but has a certain impact on its spirit, and the impact does not reach the level of compensation, then the act of apology can be reflected. for example, the refusal to perform the contract leads to the dissatisfaction of the counterpart, resulting in his mental discomfort. at this time, the apology can play a role in soothing and alleviating the emotion of the counterpart. furthermore, apology basically does not produce economic costs and is easy to use. it can not only resolve the contradiction between the two sides, but also play a disciplinary role in the obligor. it is a good way to achieve both ends. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 3, 2024 65 published by scholink inc. 6. conclusion the purpose of the state’s establishment of compulsory contracting obligations is to urge public service agencies to actively fulfill their social responsibilities and ensure that the daily lives of ordinary people can be met in order to safeguard the interests of vulnerable groups. at present, there is no provision in china’s legislation that violates the legal consequences of compulsory contracting obligations, and only administrative and criminal responsibilities are stipulated, and there are few provisions on civil liability. and the nature of civil liability for breach of compulsory contracting obligations has not been clearly defined, and the academic community has more controversy about its nature. references cui, j. y. (2006). forced contracting and its sinicization. social science front, 2006(05), 214-221. guo, j. (2020). on compulsory contracting obligations. east china university of political science and law. ji, r. j. (2009). on compulsory contracting obligations. china university of political science and law. jiang, j. f. (2015). on civil liability for breach of compulsory contracting obligations. nanchang university. li, x. (2021). on civil liability for breach of compulsory contracting obligations. zhong nan university of economics and law. liu, f. (2012). on compulsory contracting obligations. liaoning university. sun, l. y. (2015). on the compulsory contracting obligation. capital university of economics and business. wang, l. m. (2002). contract law research. beijing: renmin university of china press. wang, s. s., & liu, f. (2020). analysis of the compulsory contracting obligation of the “civil code” power supplier. electricity for the public, 35(09), 9-10. xiao, m. k. (2022). interpretation of compulsory contracting obligations in the civil code. southeast jurisprudence, 2022(01), 196-207. microsoft word elp-v1n1-p122 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 1, no. 2, 2018 www.scholink.org/ojs/index.php/elp 122 original paper review of trademark and its enforcement procedures of pakistan under trips and paris convention sohaib mukhtar1*, zinatul ashiqin zainol2 & sufian jusoh3 1 faculty of law, national university of malaysia, selangor, malaysia 2 professor/dean faculty of law, national university of malaysia, selangor, malaysia 3 professor/deputy director, institute of malaysian and international studies, national university of malaysia, selangor, malaysia * sohaib mukhtar, faculty of law, national university of malaysia, selangor, malaysia received: may 8, 2018 accepted: may 22, 2018 online published: june 11, 2018 doi:10.22158/elp.v1n2p122 url: http://dx.doi.org/10.22158/elp.v1n2p122 abstract enforcement of trademark law has been in evolution for decades in pakistan. pakistani laws dealing with trademark and its enforcement procedures are trade marks ordinance 2001, trade marks rules 2004, intellectual property organization of pakistan act 2012 and relevant provisions of pakistan penal code 1860 and specific relief act 1877. civil procedure is dealt in pakistan as per code of civil procedure 1908 and criminal procedure as per code of criminal procedure 1898. this article is qualitative method of research analyses trademark and its enforcement procedures of pakistan as per relevant trademark laws of pakistan under the light of relevant provisions of agreement on trade related aspects of intellectual property rights (trips) and paris convention. paris convention is the first international convention containing trademark and its enforcement provisions (6-9) as trips is the first international agreement containing exhaustive provisions on trademark and its enforcement procedures (15-21, 41-61). part iii of trips deals with enforcement of trademark including civil procedure, administrative procedure, provisional measures, border measures and criminal procedure of trademark enforcement. trademark registry established under section 9 of trade marks ordinance 2001 and works under intellectual property organization of pakistan (ipo-pakistan) which is a statutory body established under section 3 of intellectual property organization of pakistan act 2012. the registered trademark owner in pakistan can avail civil procedure, criminal procedure, administrative procedure as well as provisional and border measures for enforcement of his registered trademark right in pakistan. trips and paris convention have been ratified by pakistan, but ratification of international convention and its implementation are two different things. better www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 123 published by scholink inc. enforcement of trademark law may take years to achieve as per relevant provisions of international conventions therefore designated authorities of pakistan are required to establish more trademark registry branches, more ip tribunals, appoint and induct more ip experts, examiners in-charge of registration and spread ip awareness throughout pakistan for betterment of trademark law enforcement in pakistan. keywords intellectual property, trademark, intellectual property organization of pakistan (ipo-pakistan), agreement on trade related aspects of intellectual property rights (trips), paris convention 1. introduction trademark is a mark, name, sign, smell or a sound which distinguishes goods and services of one undertaking from goods and services of other undertakings. trademark is required to be distinctive and non-descriptive, it losses its distinctiveness when registered trademark owner does not take prompt action against its infringement. therefore, enforcement procedures of trademark including civil procedure, administrative procedure, provisional measures, border measures and criminal procedure of trademark enforcement must be adequate, expedient, and must not be costly, complicated and time consuming. enforcement of trademark in pakistan is under trade marks ordinance 2001, trade marks rules 2004, intellectual property organization of pakistan act 2012, relevant provisions of pakistan penal code 1860, specific relief act 1877 and customs act 1969. civil procedure is dealt in accordance with code of civil procedure 1908 and criminal procedure in accordance with code of criminal procedure 1898. trade mark ordinance 2001 is the main statute of pakistan dealing with trademark which is an addition to other related laws and does not bar implementation of other relevant laws for protection and implementation of trademark rights in pakistan. duration for the protection of registered trademark is 10 years and renewable after expiration of the duration as domain name is protected for 5 years. trade mark rules 2004 are made by the federal government of pakistan under section 132 of trade marks ordinance 2001 for smooth process of trademark registration and its enforcement in pakistan. intellectual property organization of pakistan (ipo-pakistan) established in 2005 under intellectual property organization of pakistan ordinance 2005, which was later repealed by intellectual property organization of pakistan act 2012. ipo-pakistan is an autonomous body under control of the cabinet division of the federal government of pakistan. ipo-pakistan is required to work for strengthening ip laws, rules and regulations, take measures related to protection of ip rights and do all other works for smooth implementation of ip laws in pakistan. trademark registry works under ipo-pakistan for registration and enforcement of trademarks throughout pakistan. it works as an administrative body to register trademarks and to hear opposition applications as well as it is empowered to work as ip tribunal. appeal against decision of the registrar lies before the high court. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 124 published by scholink inc. keeping in mind part iii of trips, aggrieved party of registered trademark can adopt and avail civil procedure, administrative procedure, provisional measures, border measures and criminal procedure of trademark enforcement in member states of world intellectual property organization (wipo) and world trade organization (wto). pakistan is a member state of wipo as well as wto, therefore parliament has made changes in trademark laws of pakistan as per relevant provisions of trips and paris convention. ratifying international convention and applying it are two different things, better enforcement of ip including trademark may take years to achieve. designated authorities of pakistan are required to put more efforts for enforcement of trademark law in pakistan. trademark registry only have one branch, therefore more branches are required for a country of more than 200 million people, more ip experts are required to be inducted, more ip tribunals are required to be established and most importantly awareness of ip including trademark must be spread in public through workshops and seminars for giving trainings to public generally and executive authority specially for betterment of trademark and its enforcement procedures of pakistan. this article is qualitative method of research analyses trademark and its enforcement procedures of pakistan including civil procedure, administrative procedure, provisional measures, border measures and criminal procedure of trademark enforcement under the light of relevant provisions of trip and paris convention. 2. trademark section 2 (xxiv) of trade marks ordinance 2001 defines trademark as mark, device, brand, heading, label, ticket, name of natural or juristic person, abbreviation, signature, word, letter, numeral, figurative elements, color, sound, certification mark, collective mark, domain name, well known mark and service mark used to distinguish goods/services of one undertaking from goods/services of other undertakings (trade marks ordinance of 2001 section # 2 and deveci, 2003). article 15 of trips defines trademark as any sign or combination of signs, capable to distinguish goods/services of one undertaking from those of other undertakings. signs include words, personal names, letters, numerals, figurative elements and combination of colors/signs. section 2 (xxiv) of trade marks ordinance 2001 defines trademark comprehensively but without wordings: sign/signs and combinations of signs which is there under article 15 of trips, it is therefore recommended that wordings: sign/signs and combination of signs should be added in the definition of trademark under section 2 (xxiv) of trade marks ordinance 2001. subject matter of trademark includes certification mark, which is a mark certified by proprietor indicating goods/services in connection with which it is used and it is a mark which is certified by proprietor for its use with respect to goods/services as their characteristics given in certificate, it may be registered in respect of geographical indication and may be consisted of a sign or an indication designates geographical origin of goods/services protected under certified mark but it does not stop an entitled person to use it in industrial and commercial matters honestly and it must not be misleading to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 125 published by scholink inc. mislead public in respect to character and significance and it should not be against public policy and principles of morality (trade marks ordinance of 2001 section # 83 read with 2nd schedule and taylor, 1958). in the case of tawakkal general export corporation and tawakkal garment industries limited v. collector of customs (tawakkal general export corporation and tawakkal garment industries limited v. collector of customs, 1992), sindh high court held that the central government through the ministry of commerce is empowered to prohibit/restrict export of articles which do not bear standard certification mark under section 8 of pakistan standards institution (certification marks) ordinance 1961, under section 19 of sea customs act 1878 and under section 3 of imports and exports (control) act 1950. subject matter of trademark includes collective mark, which is registered in respect of more than one person jointly as an association and it can be registered in respect of geographical indication to distinguish geographical origin of goods/services protected under collective mark and it should not be misleading to public at large (trade marks ordinance of 2001 section # 82 read with 1st schedule and wong, 1986). in taxpayer v. department (taxpayer v. department, 2012), appellate tribunal inland revenue held that collective mark users have exclusive right collectively of a thing/equipment being used. it is immaterial whether use of that equipment results into service in return or relates to production of tangible thing. subject matter of trademark includes domain name under trade marks ordinance 2001. domain name is user friendly mark substitute to an internet address, may be registered if it is used as source identifier and if proprietor uses it to offer goods/services via internet, it may be registered in respect of geographical indication with respect to goods/services, it must not be misleading in respect of character and significance of mark. a mere directional reference like a telephone number or a business address cannot be registered as domain name (trade marks ordinance of 2001 section # 84 read with 3rd schedule and mockapetris & dunlap, 1988). in the case of alle’nora beauty salon and parlor v. mrs. qurat-ul-ain mansoor (alle’nora beauty salon and parlor through partner v. mrsqurat-ul-ain mansoor, 2016), sindh high court held that registered trademark including domain name is protected pursuant to procedure laid down in trade marks ordinance 2001, for this reason, legal system is built to protect trademark of a person who is first one to use trademark, trade name or any other similar source identifier including domain name. the court held that whenever rights in a trademark are attacked, wheel of legal system will spin in the direction of protecting honest and first adopter to safeguard his right as well as to save customers from such disguise. contrary to terms of protection for other subject matters of trademark, domain name is registered for 5 years and may be renewed at the end of that period under provision 6, 3rd schedule of trade marks ordinance 2001. as per article 18 of trips, registration and renewal of registration of trademark shall www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 126 published by scholink inc. be for a term not less than 7 years. sindh high court held that legal system is built to protect trademark, trade name or any other similar source identifier including domain name and there is no provision in trips and paris convention, and trademark laws of pakistan dealing with domain name separately. it is therefore recommended that term of protection of domain name should be increased to at least for 7 years as per article 18 of trips. subject matter of trademark includes well-known mark, which is recognized worldwide and in pakistan without registration under article 6bis of paris convention and under article 16 (2) (3) of trips. well-known mark must have a distinct character and duration of use in pakistan and worldwide made it well known because of its commercial value, geographical scope, quality, image and its exclusivity of use. it is protected in pakistan under paris convention and trips and there is no need to apply for its registration under trade marks ordinance 2001 but if it causes confusion, its use may be restrained in pakistan through an injunction. it is protected in pakistan if proprietor is national of a convention country or domiciled in a convention country or has an established commercial establishment in one of the member states of paris convention (trade marks ordinance of 2001 section # 85-86 and safro & keaty, 2004). in the case of hero motors limited v. babar auto trading and manufacturing company (hero motors limited v. babar auto trading and manufacturing company, 2011), hero motors company limited is manufacturer of motorcycles since 1997 under well-known trademark “hero”. it came to know in 2005 that babar auto trading and manufacturing company started manufacturing and assembling motorcycles under identical trademark “asiahero”. hero motors company limited approached sindh high court for permanent injunction against babar auto trading and manufacturing company for using “aisahero” as trademark. single member bench of sindh high court rejected plea of applicant hence hero motors filed an appeal before divisional bench of sindh high court. justice amir hani muslim and irfan saadat khan rejected plea of appellant on a ground that word “hero” is used as common parlance and used in number of varieties and cases, it is a general word which is used across the board hence appeal of hero motors limited rejected by divisional bench of sindh high court. when trademark is registered in the register of trademark, the owner of registered trademark may start legal proceedings of trademark infringement against infringement of his registered trademark and in case if trademark is not registered but protected as well-known trademark under article 6bis of paris convention and under article 16 (2) (3) of trips, the owner of trademark may start legal proceedings of passing off to obtain damages and to obtain injunctions to prevent further infringement of well-known trademark (trade marks ordinance of 2001 section # 86 and wadlow, 2011). in the case of mrs. samreen liaquat malik v. m/s aqmar health foods (mrs. samreen liaquat malik v. m/s. aqmar health foods, 2009), plaintiff mrs. samreen liaquat malik affiliated with m/s matrix pharma private limited, introduced nutritional food supplement to reduce folic acid necessary for healthy body. sale of plaintiff product exceeds millions during 2006-2008. plaintiff applied for www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 127 published by scholink inc. registration of trademark “foreva pearls” in 2008 and heard about identical trademark “foliqam pearls” which has been used by defendant’s ex-employees of plaintiff and have stolen trade secrets and using identical product in color scheme, calligraphy, label, packaging and design of capsules. plaintiff issued letter for defendant under section 27 of trade marks ordinance 2001 on forged and subsequent application for registration of trademark “foliqam”. defendant reluctant to reply thus plaintiff filed civil suit of passing off against defendant for using identical trademark “pearl”. defendant replied in written statement that he and other defendants never been employed by plaintiff and they have already applied for registration of trademark “foliqam” and product “foliqam pearl” has been in market since april-2007. issue before sindh high court was while comparing both trademarks, point to be noted is that deceived persons are purchasers of goods and purpose of comparison is to determine whether essential features of plaintiff’s trademark is to be found used by defendant and when 2 trademarks are not identical, plaintiff would have to establish trademark used by defendant so nearly resembles with plaintiffs’ trademark that it is likely to deceive and cause confusion in relation to goods in respect of which it is registered and these factors consume much significance in cases of drugs sold on prescription by doctors, chemists and druggists, this is a well-established principle noted for deciding similarity question of 2 trademarks. sindh high court held that plaintiff has emphasized much on the word “pearl” which is commonly used throughout the world. label and bottle used by defendant is strikingly different with dominating features and brightly colored therefore it will not affect mind of public and would not cause loss to business of plaintiff and not a single instance has been produced to substantiate that product caused any loss to plaintiff’s business therefore plaintiff’s plea was rejected by sindh high court (mrs. samreen liaquat malik v. m/s. aqmar health foods, 2009). the owner of trademark may use his trademark and take all its potential benefits as it is personal property of its owner and he may transfer it through assignment, testimony or it may be transferred by operation of law either fully or partially. transfer of registered trademark may be made by act of parties which must be in writing with signatures of both parties. article 21 of trips prohibits compulsory licensing and allowing trademark owner to transfer his registered trademark with or without transferring business to which trademark belongs (trade marks ordinance of 2001 provision # 8-9, 4th schedule and scafidi, 2001). it is necessary to apply for entry in the register of trademark for recording relevant transactions otherwise transactions cannot be protected under trade marks ordinance 2001. an application may be made before the registrar of trademark for amendments in the register of trademark for adding record of an assignment, grant of license, grant of security interests, grant of an assent to make personal representative or transferring order of the court. if license is for fixed time, modification part may be removed after expiration of such prescribed time and the registrar removes it after giving notices to parties concerned. if the owner of trademark wants to give right of usage to a company which is not www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 128 published by scholink inc. registered yet in pakistan, company must be registered within 6 months from the date of trademark registration application otherwise the registrar may remove his entry from the register of trademark (trade marks ordinance of 2001 section # 72 and rana, 2013). as per section 75 of trade marks ordinance 2001, proprietor of registered trademark may issue limited license for a limited use as to some goods/services protected under registered trademark, limitation as to use it in a locality as well as unlimited license when there is no limitation subject to terms and conditions prescribed in trade marks ordinance 2001. section 75 (2) (b) of trade marks ordinance 2001 states that license may be issued in relation to trademark use in a specified manner or in a particular locality which is against the requirement prescribed under article 20 of trips which states that use of trademark during trade shall not unjustifiably be encumbered with special requirement. it is therefore recommended that unjustifiable special requirement while granting license for use in a manner within a locality should be removed. trademark owner may issue exclusive license where proprietor gives permission to licensee for exclusive use of his registered trademark and no one can interfere in his exclusive right even proprietor cannot interfere. license must be in writing and signed by the trademark owner or on his behalf by an authorized person. licensee may issue sub license if proprietor authorizes him to do so. apart from transfer of right, proprietor of registered trademark may surrender trademark in respect of all or any of goods/services it was registered (trade marks ordinance of 2001 section # 74-79 and calboli, 2005). registered trademark is personal property of registered trademark owner and nobody can use that trademark without prior permission of registered trademark owner. if anyone infringes his personal right, he may obtain remedies available under trade marks ordinance 2001, trade marks rules 2004, intellectual property organization of pakistan act 2012, pakistan penal code 1860, customs act 1969 and specific relief act 1877. no trademark owner can start legal proceedings of trademark infringement in pakistan unless trademark is registered under trade marks ordinance 2001 except legal proceedings under passing off (trade marks ordinance of 2001 section # 117 and nair & kumar, 1994). detailed procedures of trademark enforcement in pakistan including civil and administrative procedures, provisional and border measures and criminal procedure of trademark enforcement analyzed and reviewed under next heading. as per article 6ter of paris convention and sections 87 of trae marks ordinance 2001, trademark consisted of national flag, state emblem, official mark, hallmark of convention countries cannot be registered in pakistan without prior approval of concerned authority of convention country except if there is no requirement to such authorization. any other kind of national images of convention countries only protected in pakistan if convention country notifies to pakistan for that purpose and notification remains enforced at the time of registration application (trade marks ordinance of 2001 section # 87 and zaheer, 2016). similarly, emblems, abbreviations and names of international organizations cannot be registered in pakistan unless it appears that there is no connection between them and international organization or www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 129 published by scholink inc. registration does not mislead public at large. if authorization of international organization is required for registration of trademark, international organization can abstain any person to use that trademark in pakistan through an injunction (trade marks ordinance oof 2001 section # 88 and malik, 2010). after general analyses of trademark, discussion is moving towards specific analyses of trademark enforcement procedures of pakistan including: (i) civil procedure, (ii) administrative procedure, (iii) provisional measures, (iv) border measures, and (v) criminal procedure under the light of relevant provisions of trips and paris convention. 3. enforcement of trademark enforcement procedures of trademark in pakistan run are under different statutes viz trade marks ordinance 2001, trade marks rules 2004, intellectual property organization of pakistan act 2012, specific relief act 1877, pakistan penal code 1860 and customs act 1969. trade marks ordinance 2001 does not deal exhaustively with civil and administrative procedures, provisional and border measures and criminal procedure of trademark enforcement thus trade marks ordinance 2001 should be amended in a way to clarify all procedures of trademark enforcement in pakistan. enforcement provisions spread in different parts of trade marks ordinance 2001 and there is no distinction for judicial and administrative procedures for enforcement of trademark law. civil procedure can be adopted by aggrieved party for obtaining damages and injunctions under trade marks ordinance 2001 and specific relief act 1877. administrative procedure of trademark enforcement may be adopted by aggrieved party under trade marks ordinance 2001 and trade marks rules 2004 to present his grievance before ip tribunal or trademark registry under intellectual property organization of pakistan (ipo-pakistan). provisional measures governed by specific relief act 1877 and code of civil procedure 1908. border measures prescribed in a separate chapter in trade marks ordinance 2001 thus it is dealt under relevant provisions of trade marks ordinance 2001 and customs act 1969 as borders measures enforced through customs authority of pakistan. criminal procedure of trademark enforcement may be adopted by registered trademark owner in pakistan under relevant provisions of pakistan penal code 1860 and code of criminal procedure 1898. table 1. comparison of trademark statutes in pakistan statutes civil procedure administrative procedure provisional measures border measures criminal procedure trade marks ordinance 2001 x x x x trade marks rules 2004 x www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 130 published by scholink inc. intellectual property organization of pakistan act 2012 x specific relief act 1877 x x code of civil procedure 1908 x x customs act 1969 x pakistan penal code 1860 x code of criminal procedure 1898 x 3.1 civil procedure trips provisions dealing with civil procedure of trademark enforcement are articles 42-48 as per which civil procedure is required to be fair and equitable, right of notice must be timely and contains all sufficient details including basis of claim, parties may be represented through independent legal counsels, no compulsory requirement should be for personal appearance of parties and they must be allowed to substantiate their claim and present evidence, ask other party to produce evidence for proving claim of opposite party, right of hearing must be observed, judicial authority is required to pronounce judgment if any party to civil proceedings does not take part in proceedings and voluntarily use delaying tactics, provide mean to identify and protect confidential information. remedies in civil proceedings must include: (i) injunctions, (ii) compensation, (iii) damages, (iv) expenses including attorney’s fee, (v) profits, (vi) removal of trademark affixed unlawfully, (vii) goods disposed of outside channels of commerce, and (viii) infringer may be required to inform right holder identity of third person involved and channel of distribution. applicant may be asked to pay indemnification to defendant in case abuse of civil procedure of trademark enforcement (trips of 1994 article # 42-48). all civil proceedings in pakistan are required to be dealt in accordance with prescribed provisions of code of civil procedure 1908. if aggrieved party wants civil infringement remedy in pakistan, he may apply before the civil court under section 117 of trade marks ordinance 2001 for obtaining civil remedies including injunctions, damages, compensation, costs or handing over trademark infringed material to applicant or authorized authority for destruction (brown, 1992). injunctions are: (i) temporary, (ii) perpetual, or (iii) mandatory. injunction is temporary when it is for a specific time until next order of the court and injunction is perpetual when it is not limited for specific www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 131 published by scholink inc. time and mandatory injunction is to order defendant preventing illegal act or to order him to do legal act as per orders of the court. the court may award perpetual injunction based on presented evidence when it believes that: (i) defendant is trustee of property which is subject matter of issue, (ii) there is no parameter to determine loss of plaintiff, (iii) pecuniary relief can never be satisfactory relief for plaintiff, (iv) pecuniary relief cannot be taken, or (v) injunction is necessary for multiplicity of judicial proceedings (arain, 2016 and specific relief act of 1877 section # 53-54). sindh high court held in the case of m. sikander sultan v masih ahmed sheikh (m. sikander sultan v masih ahmed sheikh, 2003) that trademark is not meant for benefits of trademark owner only as it is also used for benefits of public and its main purpose is to use it for secure and free enjoyment of manufacturing and marketing products of its owner and to prevent deceiving public through its infringement. injunction in trademark is granted to prevent further infringement of trademark to protect the owner of registered trademark and consumer from consuming infringed trademark material. injunction may be refused to: (i) stay proceedings pending before the court where injunction is sought except when it is necessary for multiplicity of proceedings, (ii) stay of proceedings against applicant, (iii) apply for relief before legal body, (iv) stay of criminal proceedings, (v) interfere in public duties of government department, (vi) prevent breach of contract whose performance cannot be specifically enforced, (vii) prevent nuisance when there is no clarity whether act is nuisance or not, (viii) prevent continues breach where applicant is acquiesced, (ix) avail another appropriate relief available except in breach of trust, (x) when conduct of applicant or his agent resultantly disentitle them from assisting the court, and (xi) when applicant has no personal interest in issue (specific relief act of 1877 section # 56). no suit for infringement of registered trademark can be instituted inferior to the district court. if civil proceedings related to registered trademark is pending before the district court or the high court, application related to it could be made to the court in which matter is pending and in case if matter is pending before the registrar, application is required to be made before the registrar and he then is required to refer application to the court if so required (trade marks ordinance of 2001 section # 59-65). in the case of pioneer cement limited v. fecto cement limited (pioneer cement limited through company secretary v. fecto cement limited and others, 2013), appellant pioneer cement limited filed suit of declaration, infringement and passing off before the district court and applied for interim injunction which was granted to him but later taken back because respondent no. 2 argued that two elephants’ mark is also registered with his name in afghanistan and respondent no. 3 is using “ps” as trademark rather than “p”. appellant filed an appeal before lahore high court which held that appellant has right to use two elephants’ trademark as it is not registered in favor of respondents in pakistan. the court held that appellant has made out prima facie case in his favor and is likely to suffer irreparable loss if respondents are restrained from using logo “p” and two elephants’ trademark. trademark rights are lifelines of businesses and unauthorized use of owner’s trademark by third www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 132 published by scholink inc. parties’ results in un-quantifiable loss and damage to its goodwill and business which is irreparable in nature thus appellant likely to suffer loss due to use of his trademark by third party and damages cannot be calculated in terms of monetary compensation and would be irreparable in nature. civil procedure of trademark enforcement may be adopted by registered trademark owner by filing civil suit before the district court. thereafter appeal against decision of the district court is required to be filed before the high court under section 96 of code of civil procedure 1908 and second appeal is required to be filed before the supreme court of pakistan under section 100 of code of civil procedure 1908. in the case of roznama hamdard through chief editor v. hamdard national foundation (roznama hamdard through chief editor v. hamdard national foundation, 2015), trademark “hamdard” was registered trademark of hamdard national foundation and there were two publications “hamdard naunehal” and hamdard-e-sehat”. roznama hamdard published with trademark “hamdard”. hamdard national foundation filed suit for infringement of his registered trademark. the district court gave a decision in support of hamdard national foundation and ordered roznama hamdard to stop using trademark “hamdard” for its publications. roznama hamdard went to lahore high court and filed an appeal against decision of the district court. on appeal, lahore high court upheld decision of the district court and ordered appellant not to use trademark “hamdard” for its publications. thereafter, roznama hamdard filed second appeal before the supreme court of pakistan which held that there is a clear-cut deception which leads to confusion in the mind of consumer at the market place hence supreme court of pakistan upheld decisions of the district court and lahore high court. appeal on decision of the registrar lies before the high court but no appeal can lie against extension of time decision and the registrar is not required to hear parties before ordering extension of time and cost of the registrar in proceedings is on discretion of the court, but he cannot be held liable to pay costs to any party of the matter in issue (trade marks ordinance of 2001 section # 114 and trade marks rules of 2004 part # 1, chapter 12, rule 78). in pending proceedings before the court, it may require disputing parties to give written or oral evidence by submitting affidavit, copies of opposition letter, application of rectification, counter statement, other documents which are available at trademark registry and copies are obtainable by applying for it in a prescribed manner after paying prescribed fee. if any party of proceedings dies, his successor may join proceedings on his behalf if permitted by the registrar or by the court and if they think fit that there is no need for any successor to defend interests of deceased person, proceedings can be continued without any successor. the registrar cannot be compelled to produce the register or any related document where required contents can be proved through certified copy or through oral statement, but the court may require him to produce them in special cases (trade marks ordinance of 2001 sections # 121-124 and jennings, 1989). in the case of m/s national tools industries registered v. m/s azhar enterprises (m/s. national tools industries registered v. m/s. azhar enterprises, 2009), appellant national tools industries is www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 133 published by scholink inc. manufacturer of shovel with trademark “single camel” while respondent m/s azhar enterprises is manufacturer of shovel carrying trademark “two camels”. appellant filed civil suit of trademark infringement for obtaining damages and permanent injunction to prevent further infringement of his registered trademark. the court dismissed plea of appellant holding that trademark used by respondent is distinct having no similarity with trademark of appellant. the court held that infringement of trademark cannot be proved by bringing buyers in witness box as each side of proceedings are required to lead evidence of its own choice and pass through tool of cross-examination. thereafter, the court is required to examine material and relevant evidence. in this case, trial court has not committed material irregularity while reaching conclusion but has neglected to follow law. the court held that appellant has failed to prove damages and his claim has rightly been declined by the trial court and appeal to that extent stood dismissed, but suit of appellant is decreed for permanent injunction restraining respondent from infringing appellant’s registered trademark thus appeal is partially allowed. the court further held that claim of plaintiff for damages is permissible only when damages claimed used asserted in suit under each head separately and proved through evidence. apart from institution of civil suit by registered trademark owner, if registered user suspects that any person infringes his right of registered trademark, he can ask proprietor to take legal action against him within 2 months otherwise he can bring proceedings with his own name but he cannot proceed further if he does not add name of proprietor as joint plaintiff or defendant except if the court permits him to proceed and proprietor cannot be held liable for costs except if he takes part in proceedings and registered user apply and proceed without adding proprietor for temporary relief (trade marks ordinance of 2001 provision # 12, 1st schedule and schechter, 1927). apart from registered user of trademark, licensee is also authorized to ask proprietor to take legal action against infringement of trademark which affects right of licensee and if proprietor does not reply within 2 months and refuses or fails to take legal action, licensee may institute civil proceedings with his name but he cannot proceed further unless the court allows and licensee makes proprietor joint plaintiff or defendant in proceedings but in case of temporary relief, licensee can proceed alone without including proprietor. if proprietor is added as defendant but does not take part in proceedings, he would not be held liable for costs in action and if legal proceedings brought by registered trademark proprietor and licensee suffered loss due to proceedings, the court would consider and may make such directions as it thinks fit and licensee holds right to apply in the court for pecuniary relief (trade marks ordinance of 2001 section # 41, 77 and offner, 1958). when civil proceedings is brought for infringement of registered trademark in the name of more than one person, proceedings cannot undergo except if co-owners are made plaintiff or defendant and if any co-owner does not participate in legal proceedings, he would not be held liable to pay costs in action (trade marks ordinance of 2001 section # 24 and trade marks rules 2004 6th schedule). when application for infringement of trademark is made before the court, it can make an order requiring infringer to erase, remove or obliterate trademark if it is reasonably practicable and may be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 134 published by scholink inc. required to hand over material used under trademark to such authority for erasure, removal, obliteration or destruction or directs infringer to hand over material to the owner of trademark if he applies for occupation of infringed material within 3 years (trade marks ordinance of 2001 clause # 12, 1st schedule and trade marks rules of 2004 part # 1, chapter 7). in the case of fawad jan v. m/s interlink communication private limited (fawad jan v. m/s. interlink communication private limited, 2015), m/s interlink communication private limited is registered company under section 32 of companies ordinance 1984 for selling mobile accessories brought civil suit before district court peshawar for obtaining permanent injunction against fawad jan to stop him from using registered trademark, its design, getup, color, scheme and for grant of damages rs 10,00,00,000/due to illegal usage of registered trademark. respondent has a good trade reputation hence petitioner used similar trademark for selling its mobile accessories as well as packing of products with slight dissimilarity of letter n. respondent m/s interlink communication private limited lodged first information report (fir) at nearby police station against illegal practice of mr. fawad jan under relevant sections of code of criminal procedure 1898 and pakistan penal code 1860 thus concerned authority raided on alleged premises and 165 pieces were recovered. apart from criminal procedure of trademark enforcement, m/s interlink communication private limited also brought civil suit before the district court hence mr. fawad jan applied for rejection of plaint under order vii, rule xi of code of civil procedure 1908 and for summoning documents from plaintiff to enable him to submit written statement but the district court rejected both applications thus he filed a writ petition under article 199 of the constitution of pakistan 1973 against decision of the district court before peshawar high court. peshawar high court held that plaintiff has right under section 117 of trade marks ordinance 2001 to bring civil suit against infringement of his registered trademark before the district court which is rightly performed by plaintiff as infringed logo is already registered under trade marks ordinance 2001 and infringed trademark is in process of registration and section 33 of trade marks ordinance 2001 states that date of registration of trademark is the date when application for registration of trademark is filed before trademark registry thus defendant/petitioner is an infringer of registered trademark and has not submitted written statement in the district court yet and filed this petition thus it is dismissed. once civil suit is decreed in favor of registered trademark owner, he may apply for handing over infringed goods/article to him or to some authorized person within 3 years. limitation time of 3 years does not apply if the owner of registered trademark has any type of disability or he is not aware of the fact due to fraud or concealment. infringing goods are those goods which are used for trade in pakistan under trademark which is identical to registered trademark for same classification of goods. infringing article is that article which is made to make copies of registered trademark and it is in possession of a person who reasonably believes that this is to be used for production of infringed goods. the court may order for compensation and destruction of infringed material and with order of destruction or feature of infringed goods, the court may order for compensation to the owner/user/licensee if the court thinks www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 135 published by scholink inc. reasonable for protection of their interests (trade marks ordinance of 2001 section # 50-51 and malik, 2010). lahore high court held in the case of hafiz muhammad ramzan v. hafiz habib-ur-rehman (hafiz muhammad ramzan through legal heirs v. hafiz habib-ur-rehman, 2006) that plaintiff is manufacturer of sweet with description multani suhan halva and tradename of his product has been in use since 1947 and registered as trademark in 1963. the defendant was one of plaintiff’s employee and after leaving job, defendant started making identical sweet with tradename hafiz ka multani sohan halva. plaintiff filed civil suit of trademark infringement against defendant for infringing his registered trademark “hafiz”. two trademarks are of same inscription, color and both goods are sold in a similar resembled packet too. the court held that hafiz means protector, preserver, guardian, governor and hafiz is not a word which cannot be accepted as trademark. acceptance of word hafiz as trademark by trademark registry can by no stretch of imagination be taken as violation of any provision of trade marks ordinance 2001 hence this word does not injure religious feelings of any sect of muslims. the court held that word hafiz was rightly adopted by registered proprietor in 1963 hence he has been working since then continuously without interruption. the court held that word hafiz neither descriptive nor surname and found capable of being registered as trademark. trial court rightly decided in favor of plaintiff which is upheld by appellate court. 3.2 administrative procedure trips provision dealing with administrative procedure of trademark enforcement is basically article 49. articles 22-23 of trips also contain requirements to be complied by administrative authority of member state. administrative authority of member state is required to comply with civil procedure provisions of trips (42-48). as per article 22 (2) (b) of trips, registration of trademark may be invalidated if it contains geographical indication misleading public about its true place of origin. similarly, article 23 (2) of trips requires member states to invalidate registration of trademark consisted of wine/spirit wrongly indicated to the place which is not its origin by ensuring equitable treatment to producers and not misleading the consumer (trips of 1994). administrative procedure of trademark enforcement runs in pakistan before trademark registry during registration process as well as afterwards and before ip tribunal. once application for registration of trademark is filed before the registrar, the examination section checks application and the registrar accepts or rejects application. opposition letter can be filed within 2 months against trademark registration before the registrar of trademark, he decides issue on presented evidence. apart from opposition procedure during registration before the registrar at trademark registry, administrative procedure runs through ip tribunals in pakistan, established under sections 15-16 of intellectual property organization of pakistan act 2012. the registrar of trademark at trademark registry works as the presiding office of ip tribunal in karachi and authority is designated to the sessions judge in lahore. only two ip tribunals are not sufficient and there is requirement to establish more ip tribunals throughout pakistan (adeni, 2015; bently & sherman, 2014). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 136 published by scholink inc. ip tribunals are established for settlement of ip issues in pakistan and decisions of ip tribunals are required to be made within 90 days. the presiding officer of ip tribunal is appointed by the federal government of pakistan after consultation with the chief justice of high court. ip tribunal is empowered to consult ip experts during proceedings between disputing parties and remuneration of experts are required to be paid by parties (trade marks ordinance of 2001 section # 2 (xliv)). subject to any other law in pakistan, ip tribunal is authorized to hear all cases related to ip in pakistan. transferred cases from the court to ip tribunal is required to be heard from the point where the court stops, there is no need to start case from beginning and record evidences again by calling witnesses. once ip tribunal announces its decision, appeal on decision of ip tribunal can be filed by aggrieved party within 30 days before the high court (trade marks ordinance of 2001 section # 19 and dutfield & suthersanen, 2008). in the case of well aktineesellschaf v. shamim akhtar (wella aktineesellschaf v. shamim akhtar and other, 2015), wella aktineesellschaf is manufacturing and exporting cosmetics company applied for registration of “welaform”, “welaflex” and “wela with device” in respect of manufacturing and exporting soap, perfume, oil, cosmetic, cleaning products, products in relation with hair and related products before trademark registry in pakistan. the registrar of trademark accepted his application of registration and registered trademarks “welaform”, “welaflex” and “wela with device”. thereafter, the ministry of commerce, government of pakistan put a ban on exportation of cosmetics, cleaning and related products hence registered trademark owner did not able to use his registered trademarks within prescribed time of 3 years. respondent shamim akhtar applied for registration of similar trademarks and simultaneously opposed registration of appellant before the registrar of trademark on a ground that appellant has failed to use them in favor of registered goods within prescribed time. the registrar of trademark accepted application of respondent and removed entry of appellant’s trademarks “welaform”, “welaflex” and “wela with device” from the register. appellant wella aktineesellschaf filed an appeal before sindh high court against decision of the registrar as sindh high court upheld decision of the registrar. appellant filed second appeal before supreme court of pakistan which held that trademarks “welaform”, “welaflex” and “wela with device” is personal property of appellant and rightly registered in his favor hence dismissed orders passed by the registrar on ground that when appellant applied for registration of trademarks, it means that he wants to use it and hindrance was created in his way which was beyond his control thus his registered trademarks are validly registered and entries in trademark register should be kept intact in his favor. ip tribunal is less expensive, less formal and faster way of deciding disputes thus ip tribunal saves time of disputing parties. ip tribunals in pakistan is beginning of new era which may lead nation to economic growth because ip tribunal is required to decide cases within 90 days. currently, there are 2 ip tribunals established by the federal government of pakistan in lahore and karachi and there is a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 137 published by scholink inc. need of more ip tribunals throughout pakistan especially in peshawar and quetta (jilani, 2013). the presiding officer of ip tribunal has powers as judge of the civil court to receive oral/written evidences through affidavit, administer oath, summons attendance of witnesses, summons production of document, issue commission, examine witnesses and issue certificate. he is also empowered requiring applicant to furnish security for costs of proceedings related to an opposition or an appeal. in case if he fails to provide security, his application would be treated as abandoned. he is also empowered to require the registrar to appear before it or to submit written statement consisting record of proceedings related to matter in issue raised before him, grounds of decision given by him and any other matter relevant to concerned issue (trade marks ordinance of 2001 section # 72 and trade marks rules of 2004 part # 1, chapter 11, rule 63). the registrar of trademark has authority to decide ownership of trademark as in the case of cephalon france v. himont pharmaceuticals (cephalon france v. himont pharmaceuticals, 2015), appellant cephalonia france entered agreement with respondent himont pharmaceuticals to import and sale products of respondent under trademark “spasfon”. respondent applied for registration of trademark “spasfon” with his own name under category of “antispasmodic pharmaceutical preparation”. appellant filed application of opposition before the registrar of trademark and respondent filed declaratory suit before lahore high court by adopting civil procedure of trademark enforcement. both parties applied for stay of administrative proceedings before the registrar of trademark hence the registrar transferred matter to the court which held that ownership of trademark is required to be decided by the registrar of trademark and not by the court thus matter is transferred to the registrar for determination of ownership of trademark “spasfon”. while deciding issue between parties, the registrar of trademark must provide equal opportunities to both parties of proceedings which is also prescribed requirement under article 42 of trips. in the case of messrs gujranwala food industries v. messrs coral enterprises (messrs gujranwala food industries (pvt) ltd v. messrs coral enterprises (pvt) ltd, 2013), appellant messrs gujranwala food industries opposed registration application of respondent messrs coral enterprises and submitted application of opposition followed by counter statement by respondent who applied for registration of trademarks “zombie chews”, “sherbet shockers” and “wicked fizz”. the registrar of trademark disallowed opposition on a plea that appellant failed to provide prima facie evidence to prove his claim beyond reasonable doubt within a prescribed time and that time is not increased by the registrar hence appellant went to lahore high court which held that right of hearing must be fulfilled during proceedings thus matter is remanded to the registrar of trademark for resolution and the court asked the registrar to comply with right of hearing and parties should be duly entitled to substantiate their claims and present relevant evidence. once validity of registered trademark is decided in favor of proprietor by ip tribunal and a final decree is issued in his favor as well as certificate to that effect. if any person objects on validity again in any legal proceedings with proprietor, the proprietor has a right to obtain full costs, charges and expenses of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 138 published by scholink inc. proceedings which is also prescribed requirement under articles 46-48 of trips (dutfield & suthersanen, 2008; haseeb, 2014). 3.3 provisional measures trips provision dealing with provisional measures is article 50 which states that judicial authority is empowered to order prompt and effective provisional measures to prevent trademark infringement in future and to protect evidence required to be presented to prove claim of applicant before competent authority. provisional measures may be invoked if delay in granting injunction may cause irreparable harm to applicant or evidence concerned may be destroyed. injunction order passed by the court will cease to have effect within 20 to 31 calendar days if aggrieved party applies for cancellation of injunction order because no legal proceedings has been initiated against the defendant (trips of 1994). purpose of provisional measures is to permit effective/expeditious actions against continuous illegal use of registered trademark, protect evidence which put light in favor of party to prove his plea before the court, stop alleged trademark infringement when there is likelihood that an irreparable harm may be caused to right holder and when there is a clear risk that evidence would be destroyed and prevent infringed trademark goods to come up during trade after customs clearance. alleged trademark infringement is that infringement which is not prima facie proved before competent authority as it is in process of proving or disproving hence right holder needs some protection for himself and for evidences he relies upon to prove his claim beyond reasonable doubt before competent authority (reichman, 1995; schankerman & scotchmer, 2001). in the case of dollar industries private limited v. nisar traders stationery and general order suppliers (dollar industries private limited v. nisar traders stationery and general order suppliers, 2011), plaintiff dollars industries private limited is engaged in business of manufacturing, trading marketing, selling, supply and exporting large variety of high quality stationery items and writing materials including ball points, pens, fountain pens, pencils, markers and other allied goods since 1954 under trademark “dollar”. dollars industries private limited filed civil suit against defendant for using trademark “scot” with similar design of product as of plaintiff and applied for grant of temporary injunction to prevent defendant form further usage of identical trademark and design of plaintiff’s products. sindh high court held that both designs in question are like each other and capable of creating confusion and deception in the mind of public. furthermore, resemblance in two designs would be sufficient to establish infringement but similarity thereof to each other in all respects would not be necessary thus there is a prima facie case in favor of plaintiff to justify grant of injunction and balance of convenience also appeared to be in favor of plaintiff who would suffer irreparable loss if injunction is refused thus temporary injunction is granted. provisional measures come under the ambit of judicial procedure as well as under administrative procedure but separate from trademark infringement proceedings as plaintiff may apply for grant of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 139 published by scholink inc. injunction any time during trademark infringement proceedings and the civil court or administrative authority required to deal both matters separately. in the case of leo pharmaceutical products v. shaigan pharmaceutical (leo pharmaceutical products v. shaigan pharmaceutical (pvt) ltd, 2013), leo pharmaceutical products and shaigan pharmaceutical are manufacturer and exporter of an antibiotic cream under trademark “fudic”. leo pharmaceutical products filed suit of trademark infringement against shaigan pharmaceutical and asked for grant of temporary injunction before the district court which was rejected. leo pharmaceutical products filed appeal before lahore high court which held that supreme court of pakistan has laid down principle that when suit is fixed for arguments on an application for grant of temporary injunction, the court only decides application for grant of injunction and would not proceed to reject suit. lahore high court remanded matter to the district court again and ordered parties to appear and record evidences before the district court for final decision. in another case between muhammad ashraf alias makhan v. muhammad akram (muhammad ashraf v. muhammad akram, 2015), supreme court of pakistan held that registration of trademark gives rise to prima facie case, balance of convenience and likelihood of irreparable loss for grant of injunction against an infringement of already registered trademark and if applicant fails to prove his claim prima facie, his petition would be dismissed. once provisional relief is granted by the court and application of injunction is decided in favor of plaintiff, applicant has a right to go for civil legal action or adopt criminal procedure or administrative procedure to prevent defendant from using his registered trademark. in the case of malik muhammad rafiq awan v. javed iqbal (malik muhammad rafiq awan v. javed iqbal and others, 2012), malik muhammad rafiq awan owned “dera restaurant” and “fazl-e-haq family restaurant” is owned by javed iqbal, located side by side near qadafi stadium, lahore, pakistan. later, name of “fazl-e-haq family restaurant” was changed to “fazl-e-haq dera” due to success of “dera restaurant”. the owner of “dera restaurant” malik muhammad rafiq awan filed suit of declaration before the district court in lahore and applied against infringement of his trademark “dera” against the owner of “fazl-e-haq dera” restaurant javed iqbal and asked the court to provide preventive relief of injunction immediately stopping defendant to use trademark “dera”. the court denied provisional relief to plaintiff thus plaintiff went to lahore high court which held that word “dera” either be used in similar font size with “fazal-e-haq” or be dropped from the name otherwise appellant has a right to go for penal action against respondent. in another case between m/s golden thread industries karachi v. j & p coats company uk (m/s. golden thread industries karachi v. j&p coats limited company u.k., 2013), appellant golden thread industries packed their products in a packing which is almost identical in appearance to that of respondent and in this way, appellants deceived ordinary purchasers of products. the court rightly awarded temporary injunction in favor of respondents and prevent appellant from identical packaging of products. golden thread industries filed appeal before sindh high court which held that there is no www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 140 published by scholink inc. doubt that color per se cannot be trademark, however where colors have been formed into device or devices or where device or devices are used in backdrop of any color combination, trademark as a whole may form distinctive trademark and in this case, though trademarks of appellant “golden (s)” and “butterfly” are phonetically and visually quite different and distinct from respondents’ registered trademark “anchor”. however, when packets are kept side by side, an ordinary purchaser would not be able to distinguish them because identical size of packs in backdrop of yellow color with typical rectangular border running across packing, they would tend to cause confusion in the mind of unwary purchaser. trademark is not meant to protect rights of right holder only as it is also made to protect consumer to distinguish source of goods and to differentiate between goods/services of one undertaking from goods/services of other undertakings. the court prevented appellant to use identical packaging to deceive consumer at market place. in the case of hamdard laboratories (waqf) pakistan v. muhammad fahim (hamdard laboratories (waqf) pakistan v. muhammad fahim, 2016), appellant hamdard laboratories (waqf) pakistan is registered trademark owner of “rooh afza” while respondent muhammad fahim is registered trademark owner of “rooh-e-samar”. appellant filed application for grant of temporary injunction against use of identical trademark which was declined by the court. hamdard laboratories (waqf) pakistan filed appeal before divisional bench of sindh high court consisted of chief justice sajjad ali shah and justice zulfiqar ahmad khan. sindh high court held that one could see clear resemblance including identical caps, ribs at bottom of bottle, word “rooh” as predominant feature of respondent’s label, devices of fruits and placement of wrapper at same place that on appellant’s products thus overall impression left in the mind of unwary purchaser is nearly same thus it is reasonable to grant injunction and prevent respondent to use identical trademark to protect rights of registered trademark owner and to protect consumer. 3.4 border measures trips provisions dealing with border measures are articles 51-60 as per which right holder of trademark should be allowed to make an application in writing administratively or judicially for seizure of suspected counterfeit trademark goods by providing evidence and adequate detail description of goods. the competent authority may ask applicant to provide security/equivalent assurance to protect defendant. the customs authority is required to give notice of suspension as well as release of counterfeit trademark goods to right holder and give him time at least 10 days to start legal proceedings against importer/owner/consignee of seized counterfeit trademark goods. the competent authority may destruct or dispose of counterfeit trademark goods and may not allow re-exportation of such goods except in exceptional circumstances (trips of 1994). if the owner of registered trademark suspects that infringed goods are about to arrive in pakistan through importation of trade, he may apply before the customs officer in a written form to treat goods as infringed and the owner of registered trademark must mention time and place of arriving goods. the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 141 published by scholink inc. owner must furnish undertaking with notice acknowledging if his apprehension is not correct, he would compensate the owner, importer and consignee of goods for their loss and for that purpose he is required to furnish security or an equivalent assurance (cychosz, 2003). complaint against infringed trademark goods are required to be made in accordance with statutory requirements. in case of collector of customs v. messrs decent autos (collector of customs v. messrs decent autos, 2015), messrs reckitt and colman limited appointed messrs reckitt and benckiser as its sole agent for import, distribute and sell its products. mortein brand of insecticide spray being shipped by reckitt and colman overseas to reckitt and benckiser pakistan. messrs reckitt and benckiser issued letter to the collector of customs to stop parallel imports of mortein brand. matter went to the appellate board which held that letter issued by respondent is not in accordance with sections 53-55 of trade marks ordinance 2001. notice must accompanied by undertaking to indemnify customs authorities and section 54 of trade marks ordinance 2001 states that trademark owner would compensate importer, consignee and the owner of goods in case of damage due to wrongful suspension and customs authority may ask the owner of registered trademark to provide adequate security which would not be as such to deter recourse of border measures under section 55 of trade marks ordinance 2001. complaint by respondent is out of statutory requirements which are required to be fulfilled. customs authority cannot invoke section 15 of customs act 1969 against complaint made in contradiction with sections 53-55 of trade marks ordinance 2001 hence there is no case of trademark infringement. applicant/complainant is required to submit security but when applicant submits an insufficient security and compensation amount is higher than that, remaining amount is due as debt upon the applicant and may be recovered by the federal government of pakistan as per prescribed procedure under section 202 of customs act 1969. the federal government of pakistan is not liable to loss, damage, delay due to seizure, failure to seize or release of goods (customs act of 1969 sectrion # 202 and trainer, 2008). if the collector of customs reasonably believes that there are sufficient grounds to suspect that imported goods are counterfeit trademark goods, he is required to seize them and put them in a secured place. he is required to notify the owner of trademark: identity of goods and provide full name and address of importer. thereafter, applicant is required to start legal proceedings against importer within 10 days from the day of receiving notice or within such other time as extended by the collector of customs otherwise seized goods would be released to importer/consignee/owner of goods (trade marks ordinance of 2001 section # 56-58 and grossman & lai, 2004). customs authority of pakistan is required to act against goods bearing counterfeit trademark under section 15 of customs act 1969, if there is a prima facie evidence. in the case of mian ziauddin shaikh v. federation of pakistan (mian ziauddin shaikh v. federation of pakistan, 2014), the deputy collector of customs issued show cause notice to zia uddin sheikh stating goods bearing alleged infringed trademark “ahmad” would be confiscated followed by penal action. mr. ziauddin shikh filed www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 142 published by scholink inc. writ petition against show cause notice before sindh high court asserting that though trademark “ahmad” is registered with the name of ahmed foods private limited but he has been authorized importer of goods bearing trademark “ahmed” for 16 years and customs authority do not have right to commence proceedings against him under section 15 of customs act 1969. ahmed foods private limited replied that petitioner’s authority of importation is revoked in 2012. petitioner further asserted that respondent is not empowered to revoke his authority of importation as who holds affairs of ahmed foods private limited is pending question before the court thus sindh high court held that show cause notice issued by customs authority should be withdrawn as there is no prima facie evidence against petitioner thus he should be allowed to import goods bearing trademark “ahmed”. the collector of customs may release goods if applicant does not start legal proceedings within prescribed time, withdraws legal proceedings, consents in writing that he does not suspect seized goods anymore, legal proceedings have been started and the court orders for release of seized goods or the collector of customs reasonably believes that there is no sufficient ground to believe that goods are infringed goods (trade marks ordinance of 2001 section # 59 and khan, 2014). the court may order release or forfeiture of seized goods, but the court is not empowered to order exportation of seized goods, removing trademarks which are affixed on counterfeit trademark goods, local sale of seized goods but if the court decides matter in favor of defendant, orders plaintiff to compensate the owner of seized goods for losses he has suffered due to seizure. if the court orders for disposal of forfeited goods, the collector of customs must not facilitate exportation of seized goods or their local sale or removal of trademark from counterfeit trademark goods which is also prescribed requirement under article 59 of trips (tanwiri & qamar, 2011). after seizure of counterfeit trademark goods, registered trademark owner starts legal proceedings and if decision of the court is announced in favor of registered trademark owner, he is required to apply for execution of decision within 3 weeks and if the owner of trademark does not apply for execution order of the court within 3 weeks, the collector of customs releases goods to importer/consignee/owner of goods. the collector of customs may apply in the court for retaining control over counterfeit trademark goods if release, disposal or any other action against seized goods is required (trade marks ordinance of 2001 section # 62-63 and lakshmi & patro, 2009). in the case of messrs akhtar muhammad and brother v. haji muhammad nabi (messrs akhtar muhammad and brother through proprieter v. haji muhammad nabi and brother, 2011), haji muhammad nabi claimed that he has been using trademark “frutti” for a long time thus he has right to use it during trade and no one has right to infringe his trademark right. akhtar muhammad started using trademark “frutti” for his product of juice powder. haji muhammad nabi applied against importation of counterfeit trademark goods of akhtar muhammad before the collector of customs. application was duly rejected by the collector of customs thus appellant akhtar muhammad could legally import his product of juice powder under trademark “frutti”. thereafter, haji muhammad www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 143 published by scholink inc. nabi applied against infringement of his trademark “frutti” before the district court and prayed for temporary injunction to prevent further infringement of his trademark. the district court issued interim injunction and ordered to stop akhtar muhammad from further usage of trademark “frutti”. mr. akhtrar muhammad appealed before lahore high court hence the court dismissed orders passed by the district court on a ground that trademark “frutti” is registered in favor of akhtar muhamad thus importation of goods containing legal registered trademark cannot be stopped and no border measures can be taken against goods containing registered trademark. the collector of customs is eligible to make regulations for notification in respect to process of seizure, forfeiture, disposal and release, require applicant to furnish evidence of his ownership and require applicant to pay fee to cover administrative costs (trade marks ordinance of 2001 section # 66 and chiang, 2004). customs authority may ask importer to provide all necessary information about his imported goods. in the case of kashif naseem v. federation of pakistan (kashif naseem v. the federation of pakistan, 2008), petitioner kashif naseem is an importer of goods, filed writ petition before sindh high court against customs authority that his products are protected under ip laws and he is not under obligation to disclose information of his goods. chief justice of sindh high court sabihuddin ahmad and justice faisal arab held that protection of imported goods under ip laws cannot be used as a shield to resort under-invoicing and deprive ex-chequer of customs duties and charges at actual transaction value. the court further held that it is the duty of an importer to provide information of his imports so that customs authority may proceed smoothly with their obligation to ascertain actual transaction value. the court further held that petitioner instead of providing necessary information unduly rushed to the high court and filed instant petition thus his petition is dismissed, and he is ordered to furnish information to customs authority. 3.5 criminal procedure trips provision dealing with criminal procedure of trademark enforcement is article 61 as per which member states are required to apply penalties at least in willful counterfeiting of trademark and occurred on commercial scale. remedies must include imprisonment, fine, seizure, forfeiture and destruction of infringing goods (trips of 1994). apart from adopting administrative and civil procedures of trademark enforcement, an aggrieved party may adopt criminal procedure of trademark enforcement by filing first information report (fir) at the nearest police station where offence of trademark infringement is committed. thereafter, police officer is required to start investigation as per procedure prescribed in code of criminal procedure 1898. later, case is required to be presented before authorized officer and either charge is framed or not and if charge is framed trial would follow and resultantly accused would either be acquitted or be punished as per prescribed provisions of pakistan penal code 1860 (blakeney, 2009; khan, 2010; christopher, 2012). there is distinction under pakistan penal code 1860 between trademark and property mark. trademark www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 144 published by scholink inc. is a mark which signifies manufacture or merchandise goods of trade. property mark is a mark which signifies property of a person. person uses another person’s registered trademark with a purpose to signify it with his manufacture or merchandise goods is an infringer and would be punished with one year imprisonment or fine or both except if he used trademark without intent to defraud however a person counterfeits registered trademark in pakistan is punishable with imprisonment for 2 years or fine or both but a person counterfeits trademark of a public servant for entitlement of any exemption is punishable with imprisonment for 3 years or fine or both (pakistan penal code of 1860 sectiosn # 478-484 and gaur, 2009). any person possesses things which are used for making counterfeiting mark or possesses counterfeiting mark is punishable with imprisonment for 3 years with fine or both. any person sells, exposes or possesses goods, having counterfeiting trademark is punishable with imprisonment for 1 year or fine or both except if he acted innocently. tampering or removing registered trademark from goods/services is punishable offence for 1-year imprisonment or fine or both (mahmood, 1981; miceli, 1991). sindh high court held in the case of haji danu mian saudagar v. shaikh muhammad idris (haji danu mian saudagar v. shaikh muhammad idris and another, 1969) that a person is considered counterfeiting trademark only when two prerequisite conditions occur: (i) accused use trademark resembling registered trademark for his products as both trademarks are same or of similar description, and (ii) accused intends by that resemblance to practice deception or is saddled with knowledge that while causing resemblance, is likely that deception would thereby be occasioned. person is considered an infringer if he uses trademark in the course of trade for goods/services identical with registered trademark, uses registered trademark as his trade name or domain name without prior consent of proprietor, uses any property under infringed trademark without authorization of proprietor/licensee, uses trademark after alteration and obliteration except if he does not have knowledge of fact and he has used trademark in good faith, sells, offers to sell, exposes or takes in possession goods having an infringed trademark except he acted innocently and had reason to believe that it was a genuine trademark or the owner of registered trademark uses some part of his registered trademark he already disclaimed (trade marks ordinance of 2001 section # 40 and vardag, 2012). the supreme court of pakistan held in the case of mehmood raza v. the state (mehmood raza v. the state, 2006) that allegations against petitioner mehmood raza are that he is not only blending, refining and marking fake oil but also using forged seals, cans, tapes, stickers and trademark having monograms of pakistan state oil company (pso). petitioner is not only causing wrongful loss to company but also wrongly gaining from their illegal acts. pso is directly aggrieved by illegal and wrong act of petitioner. petitioner deliberately using registered trademark of pso with fake stickers which amounts to direct threat and attacked on property owned by pso. in such circumstances, criminal action can be taken under sections 478-486 of pakistan penal code 1860 to protect property and right of pso. deliberate violation is punishable under law hence sections 468-469 and 471 of pakistan penal code 1860 are applicable in the instant case as petitioners forged monograms, sticker’s, tapes of pso with an intent to www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 145 published by scholink inc. cause damage or injury which is liable to be punished under relevant provisions of pakistan penal code 1860. person cannot be considered an infringer if he uses registered trademark in good faith, registered trademark as his name, name of his predecessor, place of business name or place of predecessor’s business name, subject to restrictions prescribed under trade marks ordinance 2001 (trade marks ordinance of 2001 section # 42 and carmen, 2013). false trade description, false registry in trademark register, falsely representing trademark as registered and using government emblem and place as trademark registry are considered criminal offences under trade marks ordinance 2001 and are dealt as per criminal procedure of trademark enforcement in pakistan. any person applies false trade description or makes false entry in the register is punishable with imprisonment for 3 months to 3 years and can also be liable to 50 thousand rupees fine. in case of repeat false trade description offence, imprisonment is for 6 months to 3 years and fine is 1 hundred thousand rupees. any person falsely represent trademark as registered is punishable with imprisonment for 1 to 6 months and can also be liable to 30 thousand rupees fine (trade marks ordinance of 2001 section # 98-100 and vardag, 2012). using place as trademark registry is offence and punishable with imprisonment for 2 years, fine or both. up to 15% fine can be deducted as compensation for aggrieved party if they have suffered losses due to infringement of trademark. if a person does an abetment of trademark infringement, he may be tried for that offence at any place in pakistan as if he has done that trademark infringement in pakistan. company’s head is responsible if trademark infringement is occurred by company and if he is unaware of trademark infringement and other authoritative persons of company like the secretary or the manager have done trademark infringement, they are responsible for their offences (trade marks ordinance 2001 section # 101-107 and christophe, 2012). in the case of riasat ali v asad rafi (riasat ali v asad rafi, 1987), civil suit about trademarks “polka” and “salva” is pending adjudication in the civil court and matter is also under consideration with the registrar of trademark at trademark registry. simultaneously, petitioner riasat ali was prosecuted by asad rafi for counterfeiting trademark “polka” and “salva” but was acquitted from charges by 1st class magistrate as per presented evidence. the respondent challenged acquittal order through revision under section 439-a of criminal procedure code 1898 before the additional sessions judge who accepted same hence set aside acquittal order of riasat ali and remanded case for fresh decision as per law. riasat ali filed petition before lahore high court for quashing remand order of the additional sessions judge. lahore high court held that a person is said to use false trademark if he indicates goods, case, package or other receptacle containing goods, case, package or other receptacle in a manner reasonably calculated to cause it to believe that goods so marked, or goods contained in any such receptacle so marked are manufacture or merchandise of a person whose manufacture or merchandise they are not. lahore high court further held that respective rights of parties of this case are subject-matter of dispute in the civil www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 146 published by scholink inc. court and under consideration before the registrar of trademark at trademark registry hence criminal proceedings before the magistrate is required to be stayed when administrative proceedings are already going on and civil proceedings are also carried out by the civil court. 4. conclusion and recommendations trips provisions dealing with trademark are articles 15-21 and dealing with enforcement of trademark are articles 41-61 as relevant provisions of paris convention are articles 6-9. trips and paris convention have been ratified by pakistan, but ratification of international treaty and its implementation are two different things. effective enforcement may take years to achieve by positive steps taken by pakistan under the light of relevant provisions of trips and paris convention for betterment of trademark and its enforcement procedures. trademark enforcement procedures must be adequate, expedient, and must not be complicate, costly, and time consuming. trademark definition is prescribed under section 2 (xxiv) of trade marks ordinance 2001 which does not contain wordings: sign/signs and combination of signs which is there under article 15 of trips, it is therefore recommended that wordings: sign/signs and combination of signs should be added in the definition of trademark under section 2 (xxiv) of trade marks ordinance 2001. applicant may apply before trademark registry at karachi/lahore pakistan for registration of trademark on prescribed application form providing his details and details of his agent, description of trademark and statement of goods/services for which trademark is required and pay prescribed fee. trademark registry only have one branch in lahore which is not sufficient for a country of more than 200 million people. therefore, more trademark registry branches are required to be established throughout pakistan for betterment of trademark registration process. moreover, there is lack of ip tribunals therefore more ip tribunals are required to be established throughout pakistan and more ip experts and examiners in-charge of registration are also required to be hired for betterment of trademark enforcement procedures in pakistan. registered trademark can be opposed within 2 months before the registrar of trademark after its publication in a prescribed journal. opposition party is required to send notice of opposition to the registrar. the owner is required to provide counter statement and opposition is required to give rejoinder. thereafter, evidences would be recorded before the registrar and he decides matter finally after giving full opportunity of hearing to parties. trademark infringement takes place when unauthorized person uses registered trademark as his own property for exhibition of his goods/services. the owner of registered trademark may take an action against trademark infringement and he can inform infringer about ownership of his trademark, but he cannot threat infringer without adopting due process of law. the owner of trademark may avail civil or administrative procedures for enforcement of his registered trademark and can also take help from provisional and border measures and avail criminal procedure of trademark enforcement for protection of his registered trademark in pakistan. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 2, 2018 147 published by scholink inc. the registered trademark owner may institute civil suit at the district court under section 117 of trade marks ordinance 2001 for claiming damages under section 28 of trade marks ordinance 2001 or for obtaining preventive relief under sections 52-57 of specific relief act 1877. trademark owner may apply against trademark registration application before the registrar under sections 28-29 of trade marks ordinance 2001 and may also apply before ip tribunal under section 15 of intellectual property organization of pakistan act 2012. ip tribunal is required to pronounce its decision within 90 days and appeal against it may be filed before high court within 30 days under section 19 of intellectual property organization of pakistan act 2012. customs authority may seize counterfeit trademark goods under section 56 of trade marks ordinance 2001 and sections 15-17 of customs act 1969. criminal procedure runs under code of criminal procedure 1898. if accused proved guilty in a trial would be punished under sections 478-489 of pakistan penal code 1860 and sections 98-107 of trade marks ordinance 2001. trips provisions dealing with trademark are articles 15-21 and dealing with enforcement of trademark are articles 41-61 as relevant provisions of paris convention are articles 6-9. trips and paris convention have been ratified by pakistan, but ratification of international convention and its implementation are two different things as better enforcement of trademark may take years to achieve. pakistan needs more trademark registry branches as only 1 branch for a country of more than 200 million people is not sufficient. more ip tribunals are required to be established throughout pakistan for betterment of trademark enforcement procedures. ipo-pakistan and trademark registry are required to appoint and induct more ip experts and examiners in-charge of registration for betterment of trademark enforcement procedures in pakistan. references adeni, k. 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(2016). registration process of trademark in pakistan: a complete guide. karachi, pakistan, qzadeer & zaheer law firm. retrieved from http://www.zaheeradvocate.com/registration-process-of-trademark-in-pakistan-a-complete-guide/ economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 5, no. 1, 2022 www.scholink.org/ojs/index.php/elp 36 original paper back to the genuine american dream a call to move toward a people-oriented economics amos avny 1* 1 omnidev international, jehud, israel * amos avny, e-mail: amosav@smile.net.il received: january 29, 2022 accepted: february 25, 2022 online published: june 8, 2022 doi:10.22158/elp.v5n1p36 url: http://dx.doi.org/10.22158/elp.v5n1p36 “labor is prior to, and independent of, capital. capital is only the fruit of labor, and could never have existed if labor had not first existed” (abraham lincoln) abstract the essay’s author argues that time comes for reconstructing some of america’s social-economic set-ups. the covid-19 pandemic strengthened this requirement by teaching two important lessons. 1) the magnitude of the unknown world, as well as the amount of universe mysteries still are threatening. thus, significant efforts are required for resolving future dangers. 2) the most promising way for coping with such dangers is by enacting collaboration, cooperation and partnerships between the public, private and business sectors. the author claims that this was, in fact, the original spirit of the founding fathers. what is required now, is just to go back to basics. today is needed, a reconstruction of the american dream, that originally was offered some ninety years ago. since the running brutal capitalism concept fails in providing satisfactory remedies to america’s failing social services, it makes sense to use other methods that work well in other places. moreover, this move is justified because hard work, devotion, working together and collaboration are indispensable parts of the american genuine heritage. traditionally they helped us to resume its role as the world’s leader. the brutal russian invasion to ukraine, in february 24 th, just demonstrates how serious and intimidating is the current international complex situation. keywords hard-work, collaboration, leadership, american dream www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 37 published by scholink inc. 1. introduction january 2022 is a good time for me, as a senior writer, to recollect my thoughts about america today. the ending process of the covid-19 pandemic, which takes place now, is also a proper time for reexamining, rethinking and summing up ideas on future developments. thus, we shortly explore history and some of the events occurred during the past 150 years. the well-known statue of liberty, is a good departing point for any discussion on people’s freedom and general liberty. for many immigrants, who came to america by sea, the statue of liberty symbolizes the promise land of new hopes. it signifies the opening of many new opportunities. it was for them: “an iconic symbol of the american dream” (wikipedia). the covid-19 plague, on the other hand, with already millions death worldwide, even if it is not the worst-case event, is serious enough for being a proper opportunity for reexamining and rethinking some of our main paradigms. because the subject is so large, we focus here mostly on united states of america with the hope that some of the conclusions will be applicable for other countries. figure 1. the statue of liberty note. the statue of liberty, designed by auguste bartholdi, was a gift from france to usa as a symbol of american freedom and was dedicated on october 28, 1886 (wikipedia). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 38 published by scholink inc. 2. the argument the corona pandemic taught us, during the past two years, some important lessons. this general impression, which is too fresh for being regarded as a solid scientific material, is good enough for generating doubts and wonders about the relevancy of the current socio-economic system-the american capitalism, and its ability to face future challenges. thus, after discussing two main lessons learnt from the current covid-19 pandemic, a general socio-economic fresh perception is proposed. we hope that these ideas could be used as a platform for rebuilding american socio-economic system and improve its ability to meet future challenges. 2.1 unknown mysteries still characterize the universe despite the tremendous technological advancements and in spite of all the most impressive medical achievements, a small unseen tiny virus challenges the world in the 21 st century. it is fair to assume that the whole world, over eight billion inhabitants, was surprised by this little creature, while nobody really knows what the next unknown threats have to be expected. it is true that the advanced pharmaceutical industry, was able, due to current r&d, to offer reliable vaccination and some types of supporting drugs, but unknown developments are still waiting around the corner. the simple lesson learnt from the pandemic is quite clear–future, withholds some interesting, mysterious or even dangerous medical surprises for humankind. how to prepare and what exactly should be done in order to be able and qualified for meeting such challenges is a subject of another and a more specific paper. this paper intends only to attract the intention of state-persons, politicians and other decision-makers to the coming challenges. the covid-19 pandemic reminds us all that in addition to the earth and climate hazards we have now and also will have in the future, a threat of many less-known medical plagues. recognizing and addressing these intimidations is the first step for confronting and resolving the dangers. on the other side, we have to realize that future events may be surprising, un-precedential and un-conventual. thus, as george bernard show recommends, we have to encourage un-conventional scholars to confront and meet future events. “the reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. therefore, all progress depends on the unreasonable man” (george bernard shaw) in any case, governments have to be smart enough for choosing the right capable and courageous people (frequently not politicians) for preparing the world for the future. 2.2 a decent public health system is a must today the covid-19 pandemic clearly indicates that medical threats are international, boundaries-less and do not accept any political or man-made borders or limits. world nations, have no choice, they have to cooperate for fighting together against these threats. although every nation is entitled to run the battle according to its policy and priorities, but at the end, all horses drink the same water from www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 39 published by scholink inc. the same bucket. moreover, the present corona plague indicates that overcoming this threat depends on the ability to combine all the relevant organizations for the common goal. the two main sectors, the private and the public health organizations must come together for this purpose. in this case, like in others, life indicates that the former capitalist competitive system, which negates such a cooperation, cannot resolve the issue alone. only collaboration, teamwork and partnerships can provide the necessary solution. this type of action should be enacted in all levels, between local organizations, among nations, between different regimes and on the global arena. men and women have no choice; they have to cooperate against nature’s hazards. this world crisis point out quite clear that the right way to go and hope for succusses is by national and international cooperation and working together. as albert einstein had noted: “today we must abandon competition and secure cooperation. this must be the central fact in all our considerations of international affairs, otherwise, we face certain disaster”. after discussing the above two lessons learnt from the covid-19 pandemic a short historical review is provided. then the stage will be ready for presenting the main course–a more comprehensive outlook on some of the central principles that should guide and direct american capitalist society. the discussion focuses on us mostly and little on other industrialist nations, because the author knows little about less developed countries. usually, and practically, the author tends to minimize his remarks on subjects he knows little. 3. the present situation over ninety years had passed since the “american dream” was portraited by james truslow adams in 1931. it was a dream and a hope that millions of immigrants, from all parts of the world, had borne in their minds and hearts. for many this dream came through as they have enjoyed good and pleasant life in america. however, toward the end of the 1980s, two main processes took place; first, the collapse of the soviet union and the communist ideology, as an ideology and as political-economic regimes worldwide. secondly, president george bush, while addressing this promising change had expressed the wish for coming of a world new order, under the auspices of the american capitalism. what happened in russia is beyond the scope of this paper. with regard to us and the advancements of the american capitalist regime, two perceptions took place: 1) an optimist–a nonrealistic, and 2) a pessimist–a more realistic one. two known books reflect the two options. they have tried foreseeing the situation in the coming millennium: the first was francis fukuyama’s “the end of history and the last man”. the second was sam huntington’s “the clash of civilizations”. fukuyama assumed, mistakenly, that as the cold war is ending, and there will be no more wars–meaning, no more historical violent. such a naïve wish-full thinking proved to be a utopia, which was failed within few years. sam huntington argued almost the opposite. he suggested to divide the world into nine www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 40 published by scholink inc. civilizations while assuming that future wars or conflicts, will be between them. this forecast was more realistic since it foresaw more wars and conflicts. however, with the moving into the new millennium, american capitalism continues galloping for increasing corporates’ wealth while the new york’s stock market continued to sky rocketing. president bill clinton encouraged the economy while young people start having hope. but then occurred the big terror attack of september the 11 th . this was a living example of the theses expressed in the above two books. it was a terror attack–a new type of post-modern war signifying that, wars do not stop, as fukuyama mistakenly hoped. they became a battle or a fight between civilizations, as sam huntington foresaw. the 9/11 th terror attack, later drag us into 20 years of the afghanistan war, that costed several trillion dollars. with the incoming of the new millennium scholars started wondering whether the american capitalism is the best qualified system for resolving the sever social-economic issues of the time. joseph stiglitz (2002) questioned the value and the worth of the globalization in his book “globalization and its discontents”. additionally, another nobel prize laurette paul krugman (1999) examined the world economy, denied the classical capitalist solutions and proposed some different ways and monetary reforms in his book: “the return of depression economics”. a third critic was presented prof. ha-joon chang (2010), who paraphrased the maxim on democracy. he claims that the free-market capitalism is the worst economic system on earth. further he argues that by ignoring or omitting the free-market system, as the sole solution, other forms of capitalism could be much better. for this purpose, he published his book: “23 things they don't tell you about capitalism”. however, and in spite all precautions, the american brutal capitalism was so eager that it pushed the economy to the 2008-9 financial crisis. many explanations proposed for justifying the crisis. however, only few dared to blame the american capitalism for this unresponsible greediness. as many times in the past, easy-to-be-made capital, is always the easy-to-evaporate one. this was another clear evidence that genuine capitalists care first for their own interests and less about the “common good”. moreover, those who loudly oppose any public intervention in private business, did not hesitated to be the first who pursed and asked for public moneys for helping them in bad times. the next denial of the capitalist principle of open competition at the free market was expressed few years later, by president donald trump, when declaring on his policy of “america first”. this challenging declaration surprised many traditional economists, who blindly followed, the idea of free international market and competition, disregarding and sometime even contradicting the basic interests of local industries. by this declaration president trump indicated that sometimes, and maybe frequently, national interests precede theoretical economic maxims. it is fair to assume that often, providing decent employment and meaningful jobs to fellow citizens, precedes increasing dividends to the stockholders. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 41 published by scholink inc. this astonished move, even if or when it came out of political reasons, has a remarkable impact on national economy. it clearly indicates that: the “free market” is no more the sole and exclusive smart and right decision-maker, there are also other participants within every decision-making process. such a policy, stating by president trump, contrasts the teaching of many professors of economics and the advice of similar consultants. it preferred supporting people’s first and increasing the value of the employees. a worry, economists frequently forget. and then came the 2019-2022 covid-19 pandemic, that put many business initiatives at hold. it raised doubts about the strength of the current system to run and lead the economy. consequently, it forced to run an unprecedented policy of public support of private enterprises and the use of government budgets for assisting small, medium and large businesses. summing up things together, one may say that at present, at the 2020s, american society is in a mess. many of the previous rules and arrangements are questioned and even denied. some politicians and social activists argue that the historical american dreams does not match present-day’s us reality. it is just a past remarkable declaration that is far away from being achieved. many political fractions try to lead politics, run the streets and impose their bizarre ideas. america is political divided into two large groups while one group does not even listen to the other. the 2019-2022 covid-19 pandemic reality, does not resolve the existing popular conflict. it even increases it. many agree that such a situation is bad and even dangerous. they call and wait for a change. as a humble contribution, we offer hereby some notions and ideas for promoting the required change and encouraging its execution. since always a good idea requires having competent followers for ensuring its execution, these thoughts may help them a little. george bernard shaw had already referred to these “change agents” by noting: “those who cannot change their minds cannot change anything”. thus, we try here to bridge over those social conflicts by offering some different paradigms. ones that were learnt from the pandemic behavior but are connected also to america's past heritage. let us start with basics. 3.1 we the people who are “the people”?–those that presidents and governments’ officials frequently claim that they represent. throughout the past 75 years, since the ending of world war two, american population grew by about 100 million people. that population grew not only quantitatively, by almost 50 percent, but, have changed characteristically also. it has changed from a homogeneous anglo-saxon dominated society into a heterogeneous mixed-races society. such a heterogeneous society evokes many new or different problems, never appear before. not only that the new emigrants seemed different, they differed in their thinking, their basic education, their customs and daily behavior. naturally some of the “old-timers” old and young, feel bad about these differences, while some were even more violent against the new-comers. although similar feelings and actions appear in other similar countries americans are little too extremist. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 42 published by scholink inc. us’s prudent, strength, competence and ability springs mainly from its history as an immigrant country. although some tend to forget or hide this legacy the facts remain so. history shows that when various people of different countries join together, they have the chance to succeed in building a new mighty super-power. this was in the past and may happen in the future also. let us and every single individual support this idea. this is the way great ambitious nations are created. we believe that this idea will assist us overcoming its present crisis. 3.2 how to assess people? “labor is the superior of capital, and deserves much the higher consideration” (abraham lincoln) following lincoln’s above statement, we have to added that labor is carried out by people–laborers. there is no anonymous labor. labor means laborers, working people, doers, human beings. thus, our interpretation of lincoln’s phrase is that nurturing, developing and empowering people, specifically working ones, precedes promoting capital interests. the basic capitalist value chain should be reversed–human-beings can invent, create, produce and increase capital, while capital cannot and is incapable of creating or producing human-beings, hardly it can hire or buy them. based on that axiom, it is right recommending that the people of america, their needs, desires and hopes, should be the first and foremost future concern of every us administration, government or agency. this is our interpretation to the constitutional “we the people”, and the right meaning of the “blessing of liberty” goal. the above statement should be the highpoint, the moto and the north-pole star of every public and private job-holder and of organizations or individuals, who are involved in the work of government. 4. two notions on labor and laborers “try not to become a man of success, but rather try to become a man of value.” (albert einstein) although many agree that a change is required and even indispensable, few will point on the specific points. thus, two critical subjects are referred below. even if they are self-understandable, known, old and daily practice indicates that many job-holders tend to forget these commitments. some will wonder why, when trying to improve american social-economic system, we begin with touchy points like people in general and laborers in particular. the answer is that, following the founding fathers teaching, we see the people as the basic cornerstone, the crucial component and the main leverage for any initiative and improvement in both the public or the private sectors. moreover, while discussing the people, and accepting the “people come first” statement, two subjects have to be considered in detail: 1) hard work, and 2) team work. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 43 published by scholink inc. 4.1 hard work american and western history, legacy, literature and culture are full with many stories and examples about the critical role hard work has in any marches to success. hard work is almost the crucial prerequisite for any attempt to initiate or accomplish anything. thus, those who are not ready or willing to work hard are gently advised to look for other opportunities. pele, a famous brazilian soccer player, explains: “success is no accident. it is hard work, perseverance, learning, studying scarifying and most of all, love of what you are doing or learning to do”. margaret thatcher, former british prime minister, point on hard work as a prerequisite for a successful career: “i do not know anyone who has got to the top without hard work. that is the recipe”. while sam ewing, an american baseball player, reflects on the character of the hard workers: “hard work spotlights the character of people: some turn up their sleeves, some turn up their noses, and some don't turn up at all”. 4.2 team work “talent wins games, but teamwork and intelligence win championships” (michael jordan) business persons want money, military generals pursue victories, sportspersons compete for championship while social activists and upscale national leaders seek prosperity and success. the quotes at this paper indicate that most social leaders understand that these goals could be achieved only by working together, as a nation, a group or a team. although such a claim may contradict some of the american individualistic and traditional maxims, the 20 th century’s technological achievements, such outer space flights and deep ocean diving, demanded that execution will be carried out by teams. helen keller, the bright blind social personality, had said it simple: “alone we can do so little, together we can do so much”. the current struggle against the covid-19 virus also indicates how cooperation and collaboration within and between the medical teams is important and crucial for getting success and conquering the plague. the huge unknown universe, which threatens human civilization, forces all power involved to find ways of working and researching together. the world needs individual talents, breakthroughs initiated by individuals, but further r&ds depend on team works. hard work and team work have also an additional effect. besides their effect on the quality of the work and the execution’s worth, they also have a remarkable effect on the type and the form of the formal and un-formal relationships within the organizations. similarly, they affect the inner culture and climate. such a positive atmosphere is a crucial requirement for building a healthier and supporting environment for social and communal life. people working together, in a given department, a group, a team, like fire-fighters or other emergency’s squads run special in-house relationships, maintain a special supporting climate and use unique jargon. working within such a given designated organization www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 44 published by scholink inc. helps people to adopt unofficial rules and behaviors beyond the formal requirements of the organization. it also trains them to care for their colleagues and support them in bad times. these are the places where fraternity gets its true shape and meaning. unfortunately, the business competitive atmosphere does not encourage such relations in many greater organizations. henry ford has nicely expressed his feelings on this topic by saying: “coming together is a beginning. keeping together is progress. working together is success”. american manufacturing industries, learning from their foreign competitors, had replaced their former “classical assembly line” systems by different forms of team or group works. time came that the rest, the industries that stick to old “scientific management methods”, will move forward and will adapt the more effective and human-oriented team-work. 5. a promising future requires a fresh outlook “most people do not really want freedom, because freedom involves responsibility, and most people are frightened of responsibility” (sigmund freud, civilization and its discontents) for about two hundred years americans believed that capitalism, as a social-economic system, will resolve their problems and will bring them successes and pleasure. many scholars, in the academy and in the business-world promise them that this is the only and may be the exclusive way for making good life in united states. unfortunately, at the second decade of the 21 st century and at the hopefully ending of the covid-19 pandemic, many americans, of all walks of life, are still looking for a better future. for being fair with the readers and respecting our fellow citizens, we tend to be very moderate by pointing out on some reconstructing strategies, that if smartly be inactivated, may bring some satisfaction and prosperity to many. further, some refreshing ideas are addressed. 5.1 meaning of life “ever more people today have the means to live, but no meaning to live for” (viktor frankl) having a vision, a goal or a given meaning to a person’s initiative seemed today relevant and self-explainable. it is unfortunate that only in the second half of the 20 th century researchers, scholars, managers and executives had come to this conclusion. it is pity that many well-known academicians realized that workers, laborers, scholars and actually everyone, will act better and will function more professionally when being familiarize with the organization's vision and when being acquainted with the firm’s goals. most organizations, for-profit and not-for-profit, experience during their life, bad times. usually, they fail meeting their employees’ financial demands. providing an inspiring picture of the future, setting meaningful goals for the coming days and empowering the employees' self-esteem, may, to a given extent, replace monetary compensations. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 45 published by scholink inc. the last pandemic indicates how important, assisting and effective are human touch in bad times. the struggle against the covid-19 virus and all the public-health campaigners, who work so hard for overcoming the plague should remind us on the thanks and credit we owe them. it is another example of human initiative, which is so required and demanded around. with regard to this medical effort, it is worth citing winston churchill, who noted in the “never give in!” speech, at the british parliament: “never in the field of human conflict was so much owed by so many to so few”. advanced technology and the digitation movement in particular, drive many to ignore and disregard the value of human touch. many do not understand that as high and sophisticated technology can go, so must be the staff who serve it. from our early days of childhood, throughout school and university genuine americans taught us–“make money and that will make you happy”. they have said it, not because it reflected their own experience, but rather, because it was the american dream. unfortunately, the covid-19 pandemic, besides similar events taught that this is not the right equation for good life. money, capital or wealth are very helpful and assisting for enjoying life but, not necessarily the crucial ones. viktor frankl, based on his observations in nazi concentration camps, during world war two, claims that in order to maintain qualitative life, one should permanently pursue meaning to his/her life. moreover, he explains that this “meaning of life” must be concrete and particular “the meaning of life differs from man to man, from day to day and from hour to hour. what matter, therefore, is not the meaning of life in general but rather the specific meaning of a person’s life, at a given moment” ([viktor frankl) the corona pandemic taught us how little money can do in critical moments and how unbelieving help may provide a supporting gesture or an encouraging word. the conclusion, the saying: people should join together and collaborate in struggling against natural catastrophes, man-made tragedies or terror disasters, is a lesson should be taught to young children from their early days in kindergartens. when young children will properly be educated accordingly, it will be easier for them later to act similarly along their life. 5.2 a visionary nation should evoke a genuine dream a nation, which is inspired to be a super-power, a union that pretends to lead the world and a country that wishes to be a nice place for decent life, should be a visionary nation. it should rest on inspiring ideas, just rules, fair play and equal opportunities. after all the bad occurrences, the mal functions and the unjust behaviors, enumerated along the previous pages, the united states yet, is not a lost case. thus, we do not wait for an extreme revolution or a similar event to lead a radical change. we just suggest to change some of the leading capitalist theoretical guidelines. we offer to install a more moderate people-oriented, political-economic system, based on the positive elements taken from capitalism and socialism. it should rest on practical experience in every country and should be more people-oriented than capital friendly. we should never forget abraham lincoln’s statement: “labor www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 46 published by scholink inc. is prior to, and independent of, capital”. with this vision in mind and for carrying out this mission we do not have to go too far away. we can just adopt a ninety years old original text of the american dream: “the american dream is a national ethos of the united states, the set of ideals (democracy, rights, liberty, opportunity and equality) in which freedom includes the opportunity for prosperity and success, as well as an upward social mobility for family a and children, achieved through hard work in a society with few barriers” (wikipedia) this is the proper place for asking, first, what, really people want? and secondly, how to get it? however, it is beyond our duty to ask whether such a demand is really needed or justified. similarly, we refer only to just and legitimate ways of provision and negate any type of unjust ways of supply, like violent or terror. 6. conclusion “i have a dream” speech (martin luther king) in concluding this assay, we have also a dream, we, hope to see america regains its position as the world leader. we hope it resumes its historical stand as the world’s prophetic and visionary nation. we wish to face a novel global vision. a vision, which contains, resolving nature’s unknown mysteries, leading advance science and technology efforts, while promoting and empowering human ambitions. however, we hope that these wishes will not remain as dreams or wishful desires. we believe that while those expectations gradually will be fulfilled a decent, meaningful and just, satisfying and happy daily life will endure for generation to come. p.s. writing in mars 2022, when autocratic regime’s armies attack against and invade into, a democratic state, while all international means fail to prevent it, reminds me of the darken days of autumn 1939, when hitler began world war two. we can only paraphrase winston churchill, who noted in the “never give in!” speech, at the british parliament: “never in the field of human conflict” were so few autocrats responsible for so many sorrows and deaths done by the running dictators of russia. as our tiny contribution we can only offer pete seger’s song: “we shall overcome” that “became the anthem of the american civil right movement of the 1950 and 1960”. “we shall overcome, we shall overcome, we shall overcome someday oh, deep in my heart, i know that i do believe, we shall overcome, someday we shall be all right, we shall be all right, we shall be all right, someday we shall live in peace, we shall live in peace, we shall live in peace, someday.' this song is so inspiring because it offers courage, comfort and hope” for people all over the world (wikipedia). thus, let us wish victory and peace to all today’s freedom-fighters and the supporters of liberty and democracy. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 5, no. 1, 2022 47 published by scholink inc. references adams, j. t. (1931). the american dream. wikipedia. chang, h.-j. (2010). 23 things they don’t tell you about capitalism (heb. ed., 2011). kinneret, zmora-bitan, dvir-publishing house ltd. churchill, w. (1941). never give in speech. wikipedia. einstein, a. (n.d.). selected quotations. wikipedia. ewing, s. (n.d.). quotes on hard work. wikipedia. ford, h. (n.d.). quotations on team work. wikipedia. frankl, v. (1946). meaning of life quotes. wikipedia. freud, s. (n.d.). civilization and its discontents. wikipedia. fukuyama, f. (1992). the end of history and the last man (heb. ed., 1993). or’ am publishing house. huntington, p. s. (1996). the clash of civilizations (heb. ed., 2003). jerusalem, shalom center. jordan, m. (n.d.). quotations on team work. wikipedia. keller, h. (n.d.). quotations on team work. wikipedia. king, m. l. (n.d.). i have a dream speech. wikipedia. krugman, p. (1999). the return of the depression economics and the crisis of 2008 (heb. ed., 2009). yedioth books. https://doi.org/10.2307/20020239 lincoln, a. (n.d.). selected quotations. wikipedia. pele-brazilian soccer player-quotes on hard work. (n.d.). wikipedia. president bush, g. h. (2001). in e. miller, & s. yeti (eds.), the new world order, in theory and practice. new york; wiley. shaw, g. b. (n.d.). selected quotations. wikipedia. stiglitz, j. e. (2002). globalization and its discontents (heb ed., 2005). hakibbutz hameuchad ltd. thatcher margaret-quotes on hard work. (n.d.). wikipedia. https://doi.org/10.2307/20020239 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 1, 2023 www.scholink.org/ojs/index.php/elp 1 original paper constraints and challenges to the legal relationship: from the legal entity to the animal and the robot jose luis bonifacio ramos 1 1 faculty of law, university of lisbon, portugal received: january 17, 2023 accepted: february 3, 2023 online published: february 23, 2023 doi:10.22158/elp.v6n1p1 url: http://dx.doi.org/10.22158/elp.v6n1p1 abstract the purpose of this article is to reflect on the constraints placed on the legal relationship, due to the autonomy of the legal person, as well as the possible attribution of rights to animals and robots. such modifications, by implying the correlative quality of legal subjects, raise new challenges to the legal relationship, bearing in mind, above all, the recent emergence to the re-personalization of civil law. keywords legal relationship, subject, object, legal person, animal rights, animal as subject, robot, re-personalization, right of personality 1. introduction on this occasion, we set out to study, albeit in brief, the challenges facing the legal relationship, particularly the idea of re-personalising civil law. above all, this does not overlook the constraints brought about by the autonomy of the legal person and the decline of human beings as the sole addressees of legal rules and the sole subjects of rights. in addition, we also approach those doctrines seeking to revisit the autonomy of the legal person and the new challenges posed by the legal nature of the animal and, more recently, of robots or electronic persons. 2. the legal relationship and the legal person the autonomy of the legal person provides the grounds for revisiting the theory of the legal relationship. we must understand that this does not emerge in direct antinomy to or in duality with the natural person but rather within the framework of reconfiguring the civil system, thus, the germanic classification of civil law. indeed, we must hereby emphasise the breadth attributed to the subject of the legal relationship. as this recognition generally references the state or the legislator, the quality of subject receives an enormous range of amplitude and not in any way restrictive or a mirror image of the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 2 published by scholink inc. natural person. the admissibility of the legal person, as a subject, within the legal relationship, was justified by heise in his argument that a legal person constituted everything that, in addition to the natural person, was recognised by the state as a subject for rights (note 1). this position was subsequently maintained by savigny who accepted alongside the natural person, the legal person as the subject of rights and the centre of imputed liabilities (note 2). other authors have also defended this broad meaning, opening up the main pole of the legal relationship, the subject or legal person, to whatever comes to be understood as such. within this framework, beseler then characterised the legal entity as everything that, in general, is accepted as a true subject of law (note 3). furthermore, those who delved into studying subjective right, and accordingly did not highlight the components of the legal relationship in the same way, approached this issue from an eminently technical standpoint. it was thereby understandable that the subject of the legal relationship was not characterised in any restrictive or highly conditioned manner. in fact, ihering, after explaining the subjective right as a legally protected interest, then broadly admits the protection of interests (note 4). therefore, the focus of interest falls on the position of any legal subject, a legal person (note 5), even when not corresponding to an individual interest, a natural or legal person. this even allows for the existence of a general interest (note 6) without the necessary correspondence with any individual interest belonging to individual or collective persons. however, according to menezes cordeiro, this technically based conception of the legal relationship, by covering both natural and legal persons, promotes a progressive decline in the previously existing ethical reference framework for legal persons, the subjects of legal relationship (note 7). the professor even accepts that the notions of subjective right and legal personality indicate a proximate, even an intrinsic, relationship (note 8). moreover, such proximity can clearly be identified in the incessant and lengthy debate on the legal nature of legal persons. in this respect, binder, saleilles and ferrara made paradigmatic contribution. firstly, binder analyses both the legal relationship and the subjective right in relation to the personality of the legal person (note 9). he then accordingly argues that the legal person and the subjective right are the product of human relations, of legal relations (note 10). all the more so given that, as he had previously proposed, the subject, that is the legal person founded on a subjective right, constituted one of the pillars and a defining vertex of the legal relationship (note 11). secondly, and according to saleilles, individuals take on legal personality because of the need to assume ownership of rights (note 12). a similar case would serve for legal persons and thereby emphasising autonomy and will in accordance with positive law (note 13). thirdly, ferrara maintained this understanding through underlining the attribution of legal personality by the legal system in force at a particular moment (note 14). he adds that the term person cannot be limited to a natural person but must rather at least extend to legal persons as entities holding rights and obligations (note 15). in short, legal personality at least encompasses all legal persons as legal entities defined in terms of rights and obligations (note 16). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 3 published by scholink inc. 3. consequences of endowing animals with rights while the identification, or at least the equation between animals and things persisted into the late 1980s (note 17), it is clearly important to appraise the consequences of the subsequent alteration. while animal ceased being things, there came the need to ascertain the rights resulting and involving an assessment of the consequences for the various components of the legal relationship. this especially becomes the case when this change was only enacted into the portuguese legal system after decades of delay. in fact, the approval of the legal status of the animal, in 2017 (note 18) implied the end of the aforementioned equation that triggered other relevant modifications to the wording of the portuguese civil code (cc hereafter). for example, immediately prior to article 202, which opens the section on things, another provision was added, article 201 b, stating that animals are living beings endowed with sensitivity and subject to legal protection by virtue of their very nature. hence, article 202, when setting out to broadly characterize the nature of things, cannot encompass animals. however, across other aspects, reforms have only been timid, confused and disappointing. indeed, should the legal protection of animals derive from the provisions of the cc, the portuguese criminal code (cp hereafter) and special legislation, the regime for things ends up as applicable, subsidiarily, under the terms of article 201 d cc. furthermore, besides ownership of things, ownership of animals is admitted in accordance with article 1302 no. 2 cc. article 1305a was also added to stipulate the content of animal property that highlights unavoidable duties and restrictions. these include, firstly, respect for animal welfare, for example guaranteeing access to water and feed, as well as to veterinary care, including prophylactic measures, identification and vaccination as provided for by the respective legislation (note 19). secondly, there is the safeguarding of the characteristics of each species and compliance with special provisions concerning the breeding, reproduction, keeping and protection of animals coupled with the safeguarding of endangered species (note 20). finally, there comes the duty not to inflict, without legitimate reason, pain, suffering or maltreatment resulting in unjustified suffering, abandonment or death (note 21). after ending the equating of animals with things and, above all, in accordance with the set of legally established duties, it becomes important to ascertain as to whether or not animals hold the correlative rights, whether they can be configured as subjects of rights and, ultimately, as legal persons. in fact, faced with the about turn triggered by the abolition of the old equation between animals and things, a contradictory position seems to arise among those insisting on prefiguring the animal as an object of rights. they therefore, correspondingly, end up defending how animals, while after all ceasing to be things in the strict sense, nevertheless do not cease to be things in the broad sense (note 22). there also seems to be little gained in heading down the direction of establishing tertium genus. in fact, while we might, a priori, accept a third category, somewhere between a subject and a thing, some authors defending this third way, nevertheless end up arriving at results similar to those who, from the outset, insist on characterising the animal as an object of rights. thus, filipe albuquerque de matos and mafalda miranda barbosa, despite starting out by maintaining the animal statute corresponds to a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 4 published by scholink inc. tertium genus, in a later moment, however conclude that animals are no longer things even while still the objects of legal relations (note 23). faced with the dissatisfaction brought about by the conclusions above, it then makes sense to ponder the viability of the positions configuring animals as holders of rights, as the subjects of rights. naturally, these ideas do not necessarily derive from postulates of an ethical, philosophical or political nature. indeed, they above all constitute assertions of a technical nature that take into consideration the ending of the equation between the animal and the thing and the enactment of different legislative reforms, for example, the recognition of rights as well as for animal welfare. as a matter of fact, in the 1980s, erbel had in this sense defended that the rights of animals, in addition to being consistently affirmed in ethical and philosophical terms, require acceptance by legal theory and even by positive law (note 24). in this view, the construction of specific rights for animals, as special categories of subjective rights, requires consideration in keeping with the lack of any obstacles to establishing animals as holders of rights and legal subjects (note 25). according to erbel, should the animal be a living being, an indivisible vital unit, it must be endowed with a legal capacity that the legal framework already does not restrict to human beings as such a capacity extends to collective persons, fictional, abstract constructs, without any biological existence or tangible corporeality (note 26). therefore, the conclusion becomes unavoidable and animals clearly possess legal interests worthy of legal protection as the allegations made in the sense that animals are incapable of expressing a will directed by reason fail just as new born infants and mentally disabled persons also display this incapacity regarding the formation and expression of a free and enlightened will and this does not determine any denial of their quality as legal subjects (note 27). following the reform of the bgb, the debate around this doctrinal facet intensified. while the more conservative sector insisted on characterising the animal as a thing, another current affirmed, with greater determination and assertiveness, the animal as a subject and the holder of rights. within this scope, brüninghaus insists precisely on the situation of newly born infants and severely mentally impaired individuals (note 28). consequently, this author proposes there is a clear need for the legal system to tread new paths, to confront those perspectives that reject the attribution of the quality of legal subject to animals with those that, on the contrary, defend such a position (note 29). he furthermore adds it would be erroneous to suppose that beings unable to assume duties are equally unable to assume rights because there are persons without the capacity to assume such duties (note 30). according to brüninghaus, there are many reasons inherent to legal dogmatics for classifying animals alongside human beings as subjects of law (note 31). in particular, the interests of animals, as subjective rights represented by fiduciary entities, coupled with the necessary openness of the legal system, represent aspects consistent with marked cultural progress in modern societies (note 32). moreover, according to brüninghaus, the law can be neither fixed nor immutable but must rather integrate a process of development, based on new ethical and cultural considerations, in order to continuously adapt to the demands of contemporary society (note 33). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 5 published by scholink inc. furthermore, raspé, drawing support from a schematic diagram, seeks to explain how the attribution of the quality of legal subject to animals does not imply any immediate equivalence to human beings (note 34). he even points out the difficulties in prefiguring a complete theory concerning the legal personality of animals across every aspect and all the complex consequences (note 35). however, out of his belief in the inevitability of prefiguring animals as legal persons, he describes the need to introduce further reforms in the bgb, in addition to § 90a, and in particular to § 903 regarding the contents of property rights in order to adapt the framework for animal ownership (note 36). his position also extended to advocating changes in procedural law to enable the representation of animals’ subjective rights before civil and administrative courts (note 37). in short, according to raspé, there is no incompatibility between the dignity of human persons and the legal personality of animals. this holds especially true as the anthropocentric ideology was deemed to have been surpassed through the constitutional revision introducing article 20a into the constitution of the federal republic of germany (note 38). this issue has emerged in other legal systems in other latitudes. brazilian law particularly stands out among them, especially in the wake of the paradigm shift brought about by the 1988 federal constitution. accordingly, following the proclamation of article 225 enshrining the right to an ecologically balanced environment, under the terms of §1, one of the strands designed to ensure this right stipulates the protection of fauna and flora and legally prohibiting those practices which endanger ecological functions, cause the extinction of species or subject animals to cruelty. the federal supreme court (stf) later gained the opportunity to review these constitutional amendment within the scope of ancestral practices, allegedly of a cultural nature, laid down and protected under state laws but likely to cause suffering and mistreatment to the animal. in particular, the state prescriptions of santa catarina, rio de janeiro and ceará, over bull running, cockfights and cattle gathering respectively, were all declared unconstitutional (note 39). in the case of the cattle gathering practice, certainly the most sensitive due to the economic interests at stake, the court ascertained that the vaqueros pull the animal’s tail, entrap and whip the animal before forcing it out through the gate of the stall. thus, faced with the technical reports identifying the severe consequences for the health of cattle due to this forcible tail-pulling and whipping, the stf disregarded the alleged cultural significance and accepted the prevalence of environmental protection and, accordingly, declared the ceará state law unconstitutional (note 40). however, due to the resulting controversy, congress decided to intervene, primarily as a result of pressure from agro-business interests. thus, congress moved to enact legislation reversing the ban on cattle gathering on the grounds of its status as a national artistic-cultural expression and therefore a facet of the national intangible cultural heritage (note 41). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 6 published by scholink inc. as regards brazilian doctrine, special reference should be made to braga lourenço who, after boldly criticising the conservative position that considers the subject of law as a prerogative of rational beings, concluded there persists an undue exclusive link between persons and the subject of rights (note 42). in his view, if the subject of law is a centre for imputing rights and obligations, not every subject is a natural person and not all persons are necessarily human beings (note 43). within this framework, braga lourenço highlighted important changes in brazilian jurisprudence. above all, following the granting of the habeas corpus request for the chimpanzee named switzerland, imprisoned in the getúlio vargas zoo and botanical park in a cage of 77.54 m2 (note 44), animals, or at least sentient beings were, in his opinion, henceforth recognised as holders of rights while also accepting this position inherently involves the affirmation of new poles of legal subjectivity (note 45). in the portuguese legal literature, the position of fernando araújo stands out as a precursor; after highlighting the interests of animals, he displays no hesitation in advancing with recognition of their rights (note 46). even while first defending the existence of minimum rights, aimed at protecting animals from suffering and safeguarding their quality of life, at a second level, he affirms the rights of animals are enforceable against human individuals and states (note 47). then, in order to emphasise the arrival of the time for animals, he refers to the unesco universal declaration of animal rights, the bgb reforms and the innovations introduced to the german and brazilian constitutions (note 48). at a later stage, he also advocates revising the portuguese constitution and the civil code in order to terminate the assimilation between animals and tangible things and to expressly recognise the rights of animals (note 49). on our own account, after analysing the reforms of the austrian, german and french civil codes, in addition to the ending of the equation between animals and things, we underlined the inconsequential nature of tertium genus and, above all, the imperative of characterising animals as legal subjects and true holders of subjective rights (note 50). subsequently, following the latest amendments to the cc, we emphasised the outstanding need to reposition animals as subjects, true holders of rights (note 51) within the framework of animal rights such as the right to life, well-being and freedom from pain (note 52). we also underlined the innovative position of some international jurisprudence that now provides for attributing procedural legitimacy to animals and thus accepting them for litigation, in their own name, as subjects of rights, as non-human persons (note 53). we also refuted the idea that accepts, or seems to accept, the end of the equation of animals as things but then reframes them as an object of rights, on account of their lacking a reasoning capacity, running counter to the conclusive evidence defining animals as authentic holders of rights (note 54). taking into consideration the most recent doctrinal contributions, we would here reaffirm our understanding especially given that legislative reforms have since assisted in confirming prior assertions. in particular, there is the case of the alleged sporting and recreational activity of pigeon shooting. our annotations criticized a 2010 ruling by the supreme administrative court, which rejected any ownership over rights to animals in order to justify pigeon shooting as a legitimate www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 7 published by scholink inc. sporting activity (note 55). we are therefore only able to praise the wisdom of the legislator in, only very recently, deciding to ban recourse to pigeons for training and shooting competitions (note 56). indeed, we may also hope that, in an equally near future, another practice will also be subject to prohibition as every bit as barbaric and offensive not only to animal rights but also to the values of civilised societies. such becomes the case with all bullfighting activities. in particular, this spans bullfighting and the running of bullocks, whether or not they involve the death of bulls inside bullrings, based on historical and supposedly cultural practices. 4. does the rights of animal issues impact on the legal relationship? at this stage, it would be best to ascertain the impacts of the directional change in the animal’s legal nature on the theory of legal relationships. there would be particular interest in concluding as to whether the progress made regarding the legal status, especially as regards welfare, the criminalization of maltreatment and, above all, the concept of animals as the subjects of rights, causes any impacts on the legal relationship prevailing. furthermore, this requires grasping whether, on the contrary, perceptions of the legal relationship and/or the rigidity of its components constrains or limits any understanding of the animal issue. this topic takes on marked relevance because, as already seen, natural persons have long since lost their exclusivity as the only subject of rights in keeping with the appearance of the corporate person. furthermore, at that time, there was resistance to exclusively accepting this other subject. in fact, ever since the 19th century, the quality of the subjects of legal relationships has been viewed with great openness and we need only to revisit the contributions made by heise, savigny, ihering, binder, ferrara or saleilles. the common denominator here seems to be an understanding according to which the legal person statute extends to, in addition to the natural person, everything that is recognised by the state as a subject of rights. these authors have never argued that the subject should be limited only to natural and legal persons. instead, they alluded to the theme, with great amplitude, pointing out how the quality of subject of rights depends on state recognition and the admissibility under positive law. we are surprised, even borderline incredulous, when noting how certain sectors maintain a defence of some restrictive quality for the subjects of rights in legal relationships. after all, we are no longer in the 19th century but have entered significantly far into the 21st century. following their resistance to abandoning the anthropocentric tradition, this seems almost as if an attempt made to return to it. in fact, this resistance was well signposted by orlando de carvalho when warning that the old tradition was maintained, implicitly or surreptitiously, for a long period of time. hence, the neutralism or technicality of the theory of the legal relationship at various times appears more apparent than real in keeping with how, implicitly or consciously (note 57), the attribution of the predominant role to the person still persists. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 8 published by scholink inc. however, the technicality of the legal relationship and the positioning of the subject cannot be reconciled with any anthropocentric approach. in fact, the legal relationship seeks to replace the agglutinating pole, anchored around the human figure, with another more technical approach and necessarily less ideological or ontological. therefore, in admitting that the law is capable of attributing rights and obligations and that personality arises as a direct consequence of ownership of those rights and obligations, this then accepts not only that legal personality is not immanent or exclusive to the human person but, and above all, that this can be endowed to other entities by the legislative authority. legal relationship theory does not proclaim any ineluctable commitment to the natural person as the subject of rights. in fact, the natural person has not always been deemed the exclusive subject of the legal relationship. within this scope, manuel de andrade, after describing the subjects of the legal relationship as terminal points or means of supporting the relationship, qualifies the object as equivalent to an object of rights (note 58). therefore, in personal family rights, the object may be a person and, in obligations, the object of the creditor’s right will be the person of the debtor (note 59). in addition, carlos mota pinto, pinto monteiro and paulo mota pinto, after pondering the object of the legal relationship, that which underlies the powers of the active holder of the relationship, accept that other persons, tangible or intangible things, ways of being of the person him/herself and other rights can serve as the object of legal relationships (note 60). in short, in this approach, some doctrinal positions hold that the individual may, under certain circumstances, assume the quality of the object in a legal relationship. however, other authors, even while sharing similar assumptions, seek to distance natural persons from the rigid consequences of the technicality of legal relationship for ideological reasons. thus, hörster, after concurring that the object of the law is that on which the subject’s power rests, states that a thing, a service, a right and a person may all be covered by this qualification (note 61). however, immediately afterwards, he decides to exclude natural persons from that technical position on deeming the resulting solution to be obsolete and illegal (note 62). we thus run into a newly restrictive conditioning of an ideological nature, limiting the full affirmation of the legal relationship across all of its different facets and consequences. we may note such constraints in earlier periods, in late anthropocentrism and even in the theory of fiction regarding the legal nature of the legal person. for example, in the mid-19th century, puchta was propositioning man as the only true subject of rights even though circumstances drove the consideration of another entity by way of mere fiction (note 63). surprisingly, as the 21st century advances, we encounter other constraints, animated by an ontological or ideological pre-understanding. indeed, hörster, while admitting the scope for isolating certain manifestations of the person, rendering such objectifications as objects of law (note 64), rejects, on the grounds of something external to the technicality of the legal relationship, the direct consequence of that relationship functioning in keeping with its components whose characterization and functioning he nevertheless validates. on the other hand, the ideas concerning a re-personalisation or re-humanisation of civil law instil new reservations into the civil www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 9 published by scholink inc. legal relationship (note 65). from our own perspective, we would agree that the legal relationship theory deserves more extensive reflection, particularly as regards certain postulates deriving from the immediate and automatic technicality. however, any alleged valuation of the legal relationship (note 66) risks contaminating, with ideological and ontological positions, something that has not been perceived as such. therefore, reflection on the rights of personality should not entangle the problematics of civil legal relations. hence, by taking this position, we correspondingly accept that opening up the subject of the legal relationship, the subject of rights, to other entities distinct from the natural person is both unavoidable and irreversible. on revisiting legal realism, we may duly note that the legal subject has been understood as a form attributed by the legislator and, in the last resort, by the state (note 67). in fact, we also find cautious positions on this issue. in particular, larenz warns on the importance of the legislator’s will and the affirmation of the legal personality of legal persons as subjects of law and as a reality in the legal world in terms equivalent to natural persons (note 68). moreover, larenz refutes any complete identification between the two in terms of personality rights (note 69). this careful moderation also emerges in the portuguese realist doctrine. among others, we highlight galvão telles who underlines how the recognition of the legal person does not entail a position of an ontological nature but rather only the identification of another category of legal person (note 70). subsequently, carvalho fernandes, in accepting the theory of legal reality or technical reality with relative clarity, writes that the legal personality of man is imposed on the law by virtue of the dignity of the human person and that such reason does not hold for collective personifications (note 71). however, as legal personality is generally a creation of the law, this author then proposes attributing personality to other entities bearing interests that deserve legal protection (note 72). in addition, pais de vasconcelos, after pointing out how the collective personality cannot be confused with the singular personality even though the law establishes the former in the image and likeness of the latter (note 73). and legal persons display a legal nature analogous to natural persons, the legal personality of human beings (note 74). therefore, although they are similar realities, they are not the same even if they are also not entirely different either (note 75). even though menezes cordeiro concurs with the hypothesis that legal realism represents an empty formula for considering legal personality and the legal reality (note 76), the fact nevertheless remains that such a formula signifies openness in view of the options available to the legislator as regards the attribution of rights and legal personality to other entities distinct from the natural person. this may even mean, through emphasising the technical aspect, the overcoming of certain constraints raised by the assimilation of the natural person, the legal person and other legal persons recognised by the legislator. this also holds worth for contrasting the legal relationship with the legal situation, and with an undeniable advantage for the former (note 77) as well as the admissibility of the reversal of reality on the initiative of the legislator in view of the various circumstances disregarding legal personality (note 78). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 10 published by scholink inc. clearly, this densification, this openness, cannot be restricted to the legal person. this was accepted even back in the 19th century when the motive was the legal person but already endowed with great amplitude in terms of the respective subjects of rights. in other words, as we have already noted, this recognition of the technicality of legal relationships and the initiatives of the legislator on behalf of a duly recognised state already has a long history. therefore, following the entry into force of the legal statute for animals and the inherent attribution of duties and rights in 2017, it makes perfect sense to recognise living beings endowed with sensitivity, animals, as a subject of rights. moreover, there is no incompatibility between the dignity of the human person and the attribution of the quality of subject, of a legal relationship, to animals. in fact, as menezes cordeiro indeed allows, the personalization of animals is neither repugnant to civilists nor does it undermine the dignity of the human being (note 79). therefore, should the technique of the legal relationship replace the anthropocentric weighting, this cannot end up becoming entangled in inconsequential revivals or nostalgia. in fact, the various acts of resistance against this greater amplitude of the quality of the subject of legal relationships are, to a large extent, remnants of the old anthropocentric tradition that implicitly persists to a greater or lesser extent. hence, the neutralism or technicality of the legal relationship has been dulled and limited due to exogenous reasons interlinked with a certain return to the previous model. indeed, just as the defence of human dignity has never been thrown into question, we understand less well why re-personalisation has to limit and even asphyxiate the legal relationship. we must therefore note that it will not be the animal problematic that will topple the unicity of the legal personality around the natural person. after all, this happened a long time ago. this epistemological rupture occurred, at the least, at the time of accepting collective persons as a subject of rights. this inherently involved assent that legal personality is a creation of the law and, accordingly, the capacity to attribute personality to other entities or organisms that deserve the corresponding legal protection. 5. robot or electronic person: a new challenge? the problem concerning the qualification of animals as persons is not the only question on the agenda of contemporary societies. in fact, besides the legal person and the animal, the attribution of legal personality to the robot, the electronic person, is under active consideration. indeed, the problem concerning the legal personality of robots or electronic persons has gained increasingly insistent prominence. thus, in addition to the legal personality extending to recognition of other living beings, animals, we also still face the scope for electronic persons deserving a similar prerogative. irrespective of more detailed analysis of this matter, we believe it pertinent to highlight, albeit very briefly, the doctrinal positions attributing legal personality to robots or electronic persons. most certainly, the impressive technological advances and the need to solve questions arising from the actions of devices with great decision-making autonomy, in particular in terms of guardianship or civil liability, raises the question of whether or not we may attribute legal personality to robots or electronic www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 11 published by scholink inc. persons as mechanisms endowed with artificial intelligence. furthermore, in addition to the technological and functional developments, there is the unavoidable question of their autonomy vis-à-vis human beings (note 80). we should note here the european parliament resolution on robotics, adopted in 2017 (note 81), called on the commission to establish a legal regime for robots and electronic persons. indeed, this resolution, as well as emphasising the preservation of the dignity, autonomy and self-determination of individuals, does accept that artificial intelligence will, in time, surpass human intellectual capacities (note 82). this also provides for, as regards liability, proportionality in the instructions given to the robot, its autonomy and the need to adopt a legal statute enabling more sophisticated robots to hold the prerogative, as electronic persons, of responsibility for remedying any damage they cause as well as extending this personality to situations in which robots take autonomous decisions or interact independently with third parties (note 83). while there is understandable resistance and imaginative formulations rejecting any electronic legal personality (note 84), it is no less true that we come across consistent recommendations and doctrinal positions advocating such a hypothesis (note 85). however, while not wishing take sides in this dispute, which is likely to rise in prominence over the medium term (note 86), we cannot fail to raise this at a time when the legal personality of animals requires affirming without hesitation or prejudice. therefore, the rupture in the aforementioned monopoly, triggered by the advent of collective persons, can be substantiated by the rights attributable to non-human and eventually to electronic persons. hence, this would consequently take into due consideration the challenges and potential of the legal relationship, overcoming the atavisms and constraints motivated whether by tradition or by a less than correct understanding of the foundations of legal relationship theory and the affirmation of its respective components. 6. conclusions the admissibility of legal persons as subjects within legal relationships has been based on a broad understanding of legal persons. in these terms, a legal person may be anything that, in addition to the natural person, is recognised by a particular state as a subject of rights. in other words, this extends to everything which, in general terms, is assumed as a true subject of law, ratified by the legislator under the auspices of positive law. moreover, the technicality of the legal relationship and the positioning of the subject is not compatible with any anthropocentric approach. indeed, the legal relationship seeks to replace an agglutinating pole, anchored around the human figure, with another more technical approach and necessarily less ideological or ontological. therefore, on accepting that the law can attribute rights and obligations, that personality arises as a direct consequence of ownership of such rights and obligations, we correspondingly concur not only that legal personality is neither immanent nor exclusive to the human person but also that legal personality can, above all, be attributed by the legislator to other beings and entities. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 12 published by scholink inc. regarding animals, a doctrinaire sector has consistently defended the attribution of the quality of legal subject to such beings even when this does not mean any immediate and complete equation to human beings. furthermore, there is no incompatibility between the dignity of the human person and the attribution of legal personality to animals through taking into account the supersession of the anthropocentric perspective. hence, the neutralism or the technicality of the legal relationship has been dulled and limited due to exogenous reasons interlinked with a certain revival of the previous model. alternatively, there has been an alleged re-personalisation of civil law in defence of human dignity, which was clearly never under question in any case. in short, we would note that it will not be the animal rights problematic that will shake the unicity of the legal personality revolving around the natural person. after all, this occurred at the time of the acceptance of collective persons as subjects of rights. on the other hand, we still find understandable the resistance and imaginative formulations posited within the scope of rejecting any electronic legal personality. nevertheless, it remains no less true that there are consistent doctrinal recommendations and positions underpinning such a hypothesis. however, although it is not down to ourselves to take sides in this dispute at this moment, we cannot fail to raise the issue at a time when there is such a need to clearly affirm the legal personality of animals without any undue prejudice. this becomes all the more the case given that the rupture in the aforementioned monopoly, triggered by the establishment of collective persons, can be consolidated through the rights attributable to non-humans and perhaps to electronic persons. in addition, this stance, in paying attention to the challenges and potentials of the legal relationship, overcomes the atavisms and constraints whether driven by tradition or by an inadequate understanding of the theoretical foundations of the legal relationship and the role played by each component. references alves, h. r. 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(1910). de la personnallité juridique. paris. https://doi.org/10.1177/016224399802300402 https://doi.org/10.5771/9783845280066-139 https://doi.org/10.1007/978-94-007-6564-1 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 14 published by scholink inc. savigny, f. v. (1840). system des heutigen römischen rechts (vol. 2). berlin. https://doi.org/10.1515/9783111692302 silva, n. s. (2017). direito e robótica: uma primeira aproximação. in revista da ordem dos advogados (i-ii, pp. 487-553). telles, g. (1948). direito civil (teoria geral). coimbra. vasconcelos, p. p. d. (1999). teoria geral do direito civil (vol. i). lisbon. notes note 1. arnold heise not only presents a classification system, later recognised as the germanic classification of civil law, but also justifies his options in lucid explanatory notes. cf. grundriss eines systems des gemeinen civilrechts, heidelberg, 1807, pp. 25 et seq. note 2. cf. friedrich von savigny, system des heutigen römischen rechts, vol. 2, berlin, 1840, pp. 235 et seq. note 3. cf. georg beseler, system des gemeinen deutschen rechts, vol. i, leipzig, 1847, pp. 296 et seq. note 4. cf. rudolph von ihering, geist des römischen rechts auf den verschiedenen stufen seiner entwicklung, vol. iii, leipzig, 1865, pp. 351-352. note 5. cf. rudolph von ihering, geist des römischen rechts…op. cit., pp. 340 et seq. note 6. cf. rudolph von ihering, geist des römischen rechts…op. cit., pp. 355-356. note 7. cf. menezes cordeiro, tratado de direito civil, vol. iv, 5th ed., coimbra, 2021, pp. 635-636. note 8. cf. menezes cordeiro, tratado de direito civil, vol. iv, op. cit., p. 638. note 9. cf. julius binder, das problem der juristichen persönlichkeit, leipzig, 1907, pp. 31 et seq. note 10. cf. julius binder, das problem… op. cit., pp. 141 et seq. note 11. cf. julius binder, das problem… op. cit., pp. 48-49. note 12. cf. raymond saleilles, de la personnallité juridique, paris, 1910, p. 573. note 13. cf. raymond saleilles, de la personnallité…op. cit., pp. 616 et seq. note 14. cf. francesco ferrara, le persone giuridiche, 2ª ed., turin, 1956, pp. 5-6. note 15. cf. francesco ferrara, le persone giuridiche, op. cit., pp. 31 et seq. note 16. cf. francesco ferrara, le persone giuridiche, op. cit., pp. 33 et seq. note 17. in 1988, the austrian civil code (abgb) introduced a paragraph stating that animals are not things. shortly afterwards, in 1990, the german civil code (bgb) added § 90 a, in order to stipulate that animals are not things. in that same decade, there was an amendment to the french civil code article 524 in order to distinguish animals from appropriable objects (1999). note 18. cf. law no. 8/2017 of 3 march. note 19. cf numbers 1 and 2 of article 1305 a cc. note 20. cf. no. 1 of article 1305 a. note 21. cf. no. 3 of article 1305 a. https://doi.org/10.1515/9783111692302 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 15 published by scholink inc. note 22. cf. barreto menezes cordeiro, “a natureza jurídica dos animais à luz da lei no. 8/2017, de 3 de março” in revista de direito civil, year 2, no. 2, 2017, pp. 330 and seq.. note 23. cf. filipe albuquerque matos and mafalda miranda barbosa, o novo estatuto jurídico dos animais, coimbra, 2017, pp. 7-8. note 24. cf. gunther erbel, “rechtsschutz für tiere: eine bestandsaufnahme anlässlich der novellierung des tierschutzgesetzes” in deutsches verwaltungsblatt, 1986, p. 1254. note 25. cf. gunther erbel, “rechtsschutz…” in op. cit., p. 1254. note 26. cf. gunther erbel, “rechtsschutz…” in op. cit., p. 1254-1255. note 27. cf. gunther erbel, “rechtsschutz…” in op. cit., p. 1254-1255. note 28. cf. birgit brüninghaus, die stellung des tieres im bürgerlichen gesetzbuch, berlin, 1992, pp. 127-128. note 29. cf. birgit brüninghaus, die stellung…op. cit., pp. 128 et seq. note 30. cf. birgit brüninghaus, die stellung…op. cit., p. 132. note 31. cf. birgit brüninghaus, die stellung…op. cit., p. 133. note 32. cf. birgit brüninghaus, die stellung…op. cit., p. 133 et seq. note 33. cf. birgit brüninghaus, die stellung…op. cit., p. 138. note 34. cf. carolin raspé, die tierliche person, berlin, 2013, p. 306. note 35. cf. carolin raspé, die tierliche…op. cit., p. 307. note 36. hence, carolin raspé proposes a legal framework capable of ensuring the owner respects the particular stipulations relating to animal protection. cf. die tierliche…op. cit., p. 321. note 37. cf. carolin raspé, die tierliche…op. cit., pp. 325 et seq.. note 38. this precept, on account of the responsibility prevailing towards future generations, in determining the need for the state to act to protect natural and animal resources, according to carolin raspé, requires a decisive change in mentalities. cf. die tierliche…op. cit., pp. 332-333. note 39. bull running was declared unconstitutional on 3 june 1997 with cock fighting following on 29 june 2005. note 40. cf. stf direct action of unconstitutionality of 12 august 2015. note 41. cf. articles 1 and 2 of law no. 13,364 of 29 november 2016, published in the official gazette of the union on the following day. note 42. cf. daniel braga lourenço, direito dos animais: fundamentação e novas perspectivas, porto alegre, 2008, p. 498. note 43. cf. daniel braga lourenço, direito dos animais…op. cit., p. 499. note 44. cf. daniel braga lourenço, direito dos animais…op. cit., pp. 524-525. note 45. cf. daniel braga lourenço, direito dos animais…op. cit., pp. 532 et seq. note 46. cf. fernando araújo, a hora dos direitos dos animais, coimbra, 2003, p. 285. note 47. cf. fernando araújo, a hora…op. cit., p. 286. note 48. cf. fernando araújo, a hora…op. cit., p. 286-287. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 16 published by scholink inc. note 49. cf. fernando araújo, “the recent development of portuguese law in field of animal rights” in journal of animal law, no. 61, 2005, pp. 69-70. note 50. see our “o animal: coisa ou tertium genus?” in estudos dedicados ao professor doutor carvalho fernandes, lisbon, 2011, p. 255. note 51. see our manual de direitos reais, 3ª ed., lisbon, 2022, pp. 77 et seq. note 52. see our article “problemática animal: vulnerabilidades e desafios” in revista da faculdade de direito da universidade de lisboa, year lxii, no. 1, 2021, pp. 553 et seq. note 53. on another occasion, we have studied an important decision handed down by the administrative and tax litigation court of the city of buenos aires in 2015 that recognised the orangutan sandra as a subject of rights and, consequently, a non-human person. see our manual…op. cit., p. 79. note 54. see our “problemática animal…” in op. cit., p. 555. note 55. see the sta (administrative supreme court) judgement of 23 september 2010. note 56. law no. 6/2022 of 7 january, introducing the fourth amendment to the law on animal protection, law no. 92795, inserted paragraph g), in article 1, in order to prohibit the usage of pigeons as targets in the practice of shooting sports, including both training and competitions. note 57. cf. orlando de carvalho, para uma teoria da relação jurídica, vol. i, 2nd ed., coimbra, 1981, pp. 56 et seq. note 58. cf. manuel de andrade, teoria geral da relação jurídica, vol. i, coimbra, 1992, pp. 19-20. note 59. cf. manuel de andrade, teoria…op. cit., p. 21. note 60. cf. carlos mota pinto, antónio pinto monteiro and paulo mota pinto, teoria geral do direito civil, 4th ed., coimbra, 2005, pp. 189-190. note 61. cf. heinrich hörster, a parte geral do código civil português, 2nd ed., coimbra, 2020, pp. 186-187. note 62. cf. heinrich hörster, a parte geral…op. cit., p. 187. note 63. cf. georg puchta, cursus der institutionen, vol. i, leipzig, 1853, pp. 78 et seq. note 64. cf. heinrich hörster, a parte geral…op. cit,, p. 187. note 65. cf. nuno pinto oliveira, “os princípios de um personalismo ético como projecto de materialização do direito privado” in estudos em homenagem ao prof. doutor josé lebre de freitas, vol. i, coimbra, 2013, p. 488. note 66. on this matter, nuno pinto oliveira, “os princípios…” in op. cit., p. 494. note 67. cf. francesco ferrara, , le persone giuridiche, op. cit., pp. 34 et seq. note 68. cf. karl larenz, allgemeiner teil des deutschen bürgerlichen rechts, 3ª ed., munique, 1975, p. 168. note 69. karl larenz highlights the restrictions on legal persons in the context of their personal rights. cf. allgemeiner teil…op. cit., p. 169. note 70. cf. galvão telles, direito civil (teoria geral), coimbra, 1948, pp. 126 et seq. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 17 published by scholink inc. note 71. cf. carvalho fernandes, teoria geral do direito civil, lisbon, 1995, pp. 426-427. note 72. cf. carvalho fernandes, teoria geral…op. cit., p. 427. note 73. cf. pedro pais de vasconcelos, teoria geral do direito civil, vol. i, lisboa, 1999, p. 98. note 74. cf. pedro pais de vasconcelos, teoria geral…op. cit., p. 98. note 75. cf. pedro pais de vasconcelos, teoria geral…op. cit., p. 98. note 76. cf. menezes cordeiro, tratado de direito civil, vol. iv, op. cit., p. 651. note 77. diogo costa gonçalves successfully defends the potential of the legal relationship over the legal situation. cf pessoa coletiva e sociedades comerciais, coimbra, 2015, pp. 980 et seq. note 78. hugo ramos alves focuses on this aspect, directed at the use of legal persons to circumvent injunctive legal commands. cf. “a pessoa coletiva entre a ficção e o realismo” in dos 30 years da faculdade de direito de bissau, lisboa, 2021, p. 474-475. note 79. cf. menezes cordeiro does not take this step, however, due to unresolved challenges. in particular, the source of personification and the system of representation. cf. tratado de direito civil, vol. iii, 4th ed., coimbra, 2019, p. 314. note 80. by way of example, matthew elton, “persons, animals and machines”, in science, technology and human values, vol. 23, no. 4, 1998, pp. 384 et seq. ugo pagallo, the law of robots: crimes, contracts ant torts, heidelberg, 2013, pp. 18 et seq. ruth janal, “die deliktische haftung beim einsatz von robotern: lehren aus der haftung für sachen und gehilfen” in intelligente agenten und das recht, baden-baden, 2016, pp. 141 et seq. mafalda miranda barbosa, “inteligência artificial, e-persons e direito: desafios e perspectivas” in revista jurídica luso-brasileira, year 3, no. 6, 2017, pp. 1480 et seq. note 81. cf. european parliament resolution of 16 february 2017 (2015/2103 inl). note 82. cf. recitals p and q of the resolution, op. cit. note 83. cf. articles 56 and 59(f). note 84. cf. mafalda miranda barbosa, “personalidade jurídica eletrónica?” in boletim da faculdade de direito, vol. xcvii, tomb i, 2021, pp. 117 et seq.; ana rita maia, “a responsabilidade civil na era da inteligência artificial: qual o caminho?” in julgar online, may 2021, p. 39. note 85. cf. shawn bayern, “the implications of modern business entity law for the regulation of autonomous systems” in stanford technology law review, no. 19, 2015, pp. 93 et seq.. mark lemley and bryan casey, “remedies for robots” in the university of chicago law review, vol. 86, no. 5, 2019, pp. 1311 et seq. note 86. this seems to be nuno sousa e silva’s position when, citing collingridge’s dilemma, he alludes to the risks of regulating a technology in full evolution. cf. “direito e robótica: uma primeira aproximação” in revista da ordem dos advogados, i-ii, 2017, p. 538. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 6, no. 1, 2023 www.scholink.org/ojs/index.php/elp 18 original paper the current situation, problems and countermeasures of high-quality economic and social development of securities companies serving districts and counties yinzhong chen 1 , shichuan huang 2 , jing lu 1 & jieyue luo 1 1 school of economics and finance, sichuan international studies university, chongqing, pr china 2 southwest securities research and development center, chongqing, pr china received: march 1, 2023 accepted: march 28, 2023 online published: april 6, 2023 doi:10.22158/elp.v6n1p18 url: http://dx.doi.org/10.22158/elp.v6n1p18 abstract districts and counties are the most basic units of administrative divisions in china. therefore, the key to promoting high-quality economic and social development in china lies in promoting high-quality economic and social development in districts and counties. with the deepening of the “one division one county” twinning assistance initiative, the role of securities companies in serving the high-quality economic and social development of districts and counties has become increasingly apparent. in order to better promote the high-quality economic and social development of securities companies serving districts and counties, this paper summarizes the main problems based on the analysis of the current situation of the high-quality economic and social development of securities companies serving districts and counties, and puts forward corresponding policy suggestions from the aspects of giving full play to the role of associations, building bridges serving districts and counties, giving full play to the professional advantages of securities companies, and creating characteristic comprehensive financial services. keywords securities companies, high quality development, problems and countermeasures www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 19 published by scholink inc. 1. the status quo of high-quality economic and social development of securities companies serving districts and counties 1.1 the current situation of high-quality economic and social development in districts and counties the first is the steady decline in the number of district and county administrative units. with the continuous advancement of china‟s urbanization and the further improvement of the level of industrialization, the number of districts and counties in china has generally shown a steady. the number of administrative units in districts and counties has dropped from 2859 in 2008 to 2843 in 2021. the number of county administrative units decreased from 1463 in 2008 to 1301 in 2021. among them, some county administrative units were transformed into municipal districts or county-level city administrative units, which increased the number of municipal districts from 856 in 2008 to 977 in 2021, and the number of county-level city administrative units increased from 368 in 2008 to 394 in 2021. with the further implementation of the rural revitalization strategy and the continuous improvement of urbanization level, the merger and transformation of county administrative units will be further promoted, and it can be expected that the number of county administrative units will further decline in the future. table 1. changes in the number of district and county administrative units from 2008 to 2021 unit: pcs year municipal district country-level cities country autonomous country country division 2008 856 368 1463 117 2859 2010 853 370 1461 117 2856 2015 921 361 1397 117 2850 2020 973 388 1312 117 2844 2021 977 394 1301 117 2843 note. the data comes from the china statistical yearbook over the years. the second is the proportion of county household population decreased year by year. the number of registered residents in districts and counties continued to rise from 1.025 billion in 2016 to 1.031 billion in 2019, and then began to decline. in 2020, it fell to 1.025 billion, the same as in 2016. the district and county administrative units absorb nearly three-quarters of the country‟s population. the proportion of the registered population in the total population of the country has slowly declined from 73.64 % in 2016 to 72.59 % in 2020. it can be seen that districts and counties are of great significance to the realization of the national economic and social development and common prosperity goals. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 20 published by scholink inc. figure 1. the number and proportion of registered population in districts and counties from 2016 to 2020 unit: 100 million yuan/% note. the data comes from the china county statistical yearbook and china statistical yearbook 2021, which was compiled by the research group. the third is the county industrial structure has been continuously optimized. the proportion of primary industry output value decreased from 13.40 % in 2016 to 11.80 % in 2018, and then began to rise, rising to 13.38 % in 2020, which was basically the same as that in 2016, indicating that the basic role of the primary industry as the county economy remained unchanged; the proportion of secondary industry output value decreased from 47.68% in 2016 to 41.19% in 2020, and the proportion of tertiary industry increased from 38.92% to 45.43%. in 2020, the proportion of the tertiary industry in the country is 54.50%, indicating that china has shifted from an industrial economy to a service-oriented economy. under the background of the great development of service economy, the rapid development of the tertiary industry will promote the optimization of the industrial structure of districts and counties. figure 2. industrial structure of districts and counties from 2016 to 2020 unit: % note. the data are from china county statistical yearbook, organized by the research group. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 21 published by scholink inc. the fourth is the county general public budget revenue and expenditure gap continues to expand. the general public budget revenue of districts and counties continued to rise from 2814.649 billion yuan in 2016 to 33438.75 billion yuan in 2019. in contrast, the general public budget expenditure of districts and counties increased from 51045.03 billion yuan in 2016 to 89914.24 billion yuan in 2019, and the budget revenue and expenditure gap expanded from 22898.54 billion yuan in 2016 to 56475.49 billion yuan in 2019. due to the impact of the new coronavirus epidemic, the general public budget expenditure in 2020 decreased slightly to 31491.66 billion yuan, while the general public budget expenditure rose to 93872.22 billion yuan instead of falling, and the general public budget revenue and expenditure gap further increased. figure 3. general public budget revenue and expenditure in 2016-2020 unit: 100 million yuan note. the data comes from the “china county statistical yearbook” over the years. the fifth is the imbalance between urban and rural economic development has intensified. the scale of economic development in districts and counties has been expanding, and the total output value has increased from 4048.581 billion yuan in 2016 to 50205.48 billion yuan in 2020, but the proportion of the national total output value has decreased from 54.24 % in 2016 to 49.42 % in 2020. it can be seen that during this period, the growth rate of economic development in districts and counties was significantly lower than that of national economic development, and the imbalance between urban and rural economic development was not improved, but more prominent. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 22 published by scholink inc. figure 4. gdp and its proportion of districts and counties in 2016-2020 unit: billion yuan/% note. the data are derived from the “china county statistical yearbook” and “china statistical yearbook 2021” over the years. the sixth is the county government debt pressure is increasing. at the same time as the sustainable development of the county economy, the contradiction between the revenue and expenditure of the county government is increasing, and even the situation that the repayment funds of individual counties exceed the disposable financial resources of the year. the “audit report on provincial budget implementation and other fiscal revenue and expenditure in 2020” pointed out that in 2019, county government debt not only accounted for about 30% of local government debt balance, but also showed the characteristics of high debt balance and fast growth rate. in 2019, the overall debt ratio of district and county governments reached 61.5%. among them, the county-level city government has the highest debt ratio, reaching 66.9%, and the autonomous county has the lowest debt ratio of 56.5%. from a regional perspective, the county government debt ratio in the western region is the highest, at 65.1%. under the continuous promotion of the rural revitalization strategy, with the increase of investment in rural infrastructure construction, ecological green transformation and other fields, the debt rate of district and county governments will further rise, and the debt pressure will also continue to increase. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 23 published by scholink inc. table 2. district and county government debt ratio in 2019 unit: % region county area county county-level city autonomous county east 63.4 64.3 63.0 53.0 midst 55.3 53.5 59.8 66.1 west 65.1 60.9 84.0 58.3 northeast 61.2 53.9 71.0 41.2 whole country 61.5 59.1 66.9 56.5 note. the data comes from “the scale, structure and sustainability of county government bonds under the new pattern”; the debt ratio is the ratio of county government debt balance to the total value of local general public budget expenditure and government fund income. 1.2 the current situation of securities companies serving the economic and social development of districts and counties the first is the coverage of service counties continues to expand. during the period of poverty alleviation, the securities industry association launched the “helping poverty alleviation, fulfilling social responsibility-securities companies” one division one county “twinning action initiative to help poverty-stricken counties”, calling on each securities company to help at least one national poverty-stricken county in pairs. according to the statistics of china securities association, by the end of 2020, 101 securities companies have helped 294 state-level poverty-stricken counties in pairs, including 22 provinces and cities across the country, covering 35% of state-level poverty-stricken counties, and these poverty-stricken counties have all lifted out of poverty. after comprehensively solving absolute poverty, 84 securities companies will continue to help 290 poverty-stricken counties in 2021. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 24 published by scholink inc. figure 5. the number of poverty-stricken counties assisted by securities companies “one company, one county” in 2020 unit: jia note. the data comes from the securities company s one company, one county twinning assistance achievement exhibition. table 3. the implementation of securities companies in helping poverty alleviation counties in 2016-2021 unit: pcs year number of securities companies number of pairs to help poverty-stricken counties implemented 2016 79 132 2017 91 263 2018 89 258 2019 87 270 2020 86 271 2021 84 290 note. data are from the website of china securities association. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 25 published by scholink inc. the second is financial resources continue to flow to districts and counties. with the help of the financing function of the capital market, the securities industry association calls on securities companies to give full play to their professional advantages, comprehensively use various financial means and various financial instruments, provide professional services for enterprises in poverty-stricken areas and promote industrial revitalization. from 2017 to 2021, there are 33 enterprises in the first public offering and listing of enterprises in poverty-stricken areas of districts and counties served by securities companies. among them, there are 6 in 2017, 3 in 2018 and 2019, 11 in 2020 and 10 in 2021. it can be expected that with the help of securities companies and the gradual improvement of china‟s securities market construction, the number of enterprises in poverty-stricken areas will continue to rise. during this period, the total amount of financing for enterprises in poverty-stricken areas in other ways reached 282.309 billion yuan, and a total of 42 projects were recommended for enterprises in poverty-stricken areas to be listed in the national sme share transfer system. table 4. the flow of financial resources of securities companies to poor areas in 2017-2021 year other ways to service enterprise financing (billion yuan) initial public offering and listing (jia) share transfer system listing project (pcs) 2017 758.28 6 — 2018 390.24 3 22 2019 545.28 3 7 2020 520.22 11 7 2021 609.07 10 6 sum 2823.09 33 42 note. the data come from the website of china securities industry association, organized by the research group. the third is the forms of service are increasingly rich. based on their own advantages, combined with the actual situation of resource endowment and industrial development in districts and counties, securities companies have increasingly diversified forms of assistance services. the current forms of assistance services involve public welfare assistance, intellectual assistance, industrial assistance, and talent assistance. according to the statistics of the china securities industry association, as of the end of 2020, securities companies have established or participated in the establishment of 66 public welfare funds with a scale of 608 million yuan, and 48 industrial funds in poverty-stricken areas with a scale of 253.93 billion yuan; purchase 357 million yuan of characteristic products in poverty-stricken areas, promote and sell 268 million yuan of characteristic products ; it subsidizes 10.04 million poor students and 126,100 poor families; support 559 characteristic industrial projects in poor areas; in-depth www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 26 published by scholink inc. research and visits to poor areas of 12,900 people, research and guidance of local enterprises 3462 times. the forth is financial instruments continue to innovate. under the call of the securities industry association, securities companies continue to innovate financial instruments in the process of helping rural revitalization and promoting high-quality economic development in districts and counties. some securities companies underwrite the issuance of rural revitalization theme bonds, such as guangxin holding group‟s first special corporate bond for rural revitalization, and china energy conservation solar energy co., ltd. successfully bookmarked the issuance of the country‟s first “carbon neutral „+‟ rural revitalization” double-label corporate bond with a scale of 1 billion yuan. cicc and china bond valuation center jointly launched the first rural revitalization bond index in the market; tianfeng securities and yunnan trust successfully issued the first trust-assisted abs product in china that fully supports new agricultural business entities. at the same time, in view of the fluctuation of agricultural product prices and the instability of farmers‟ income, securities companies also actively explore the “insurance + futures” model. 2. problems faced by securities companies in serving high-quality economic and social development of districts and counties 2.1 the initiative of securities companies to serve districts and counties needs to be strengthened in the “one company, one county” organized by the securities industry association, many securities companies actively participated and achieved good results. later, some securities companies also continued the practice of “one company, one county” providing more services for the high-quality economic and social development of districts and counties. however, few securities companies can further carry out services for new districts and counties on the basis of “one company, one county”, especially the lack of comprehensive, long-term and strong services, which has not yet formed the continuity and normalization of district and county services. 2.2 the coverage of securities companies’ service districts and counties is relatively small although a few securities companies, such as caitong securities, have carried out services to districts and counties, and some securities companies have established cooperative relations with district and county governments in their regions, in terms of the number of securities companies and the number of securities company outlets in the country, the coverage of districts and counties that have already provided services is still narrow, and the number of districts and counties that have obtained the services of securities companies is small, and the number of poor counties in the districts and counties supported by the “one division and one county” activity is very large. moreover, the behavior of existing securities companies serving districts and counties mostly occurs in the eastern region, and the situation of securities companies serving the economic and social development of districts and counties in the central and western regions is still less. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 27 published by scholink inc. 2.3 the professional services provided by securities companies are still not enough at present, in the process of serving the economic and social development of districts and counties, securities companies still focus on public welfare services, such as donations, support for education, and investor education activities for poor areas, which are more reflected in the poverty alleviation of the “blood transfusion” nature. however, professional and characteristic services, such as the introduction of “hematopoietic” financial resources based on industrial prosperity, are still very lacking. there are very few capital market service projects and service products that rely on professional advantages, and it is impossible to give full play to the effect of securities companies using professional strength to promote the high-quality development of districts and counties. 2.4 the mode of securities companies serving districts and counties is more homogeneous due to the differences in resource endowments and geographical location advantages, the economic and social development foundation, development model, development path and development goals of different districts and counties are not consistent, which means that securities companies need to adapt to local conditions and combine the actual situation of economic and social development in districts and counties to provide characteristic services. moreover, the securities companies themselves are also different in terms of asset size, business orientation, business point setting, and talent reserve. therefore, they should also fully consider their own particularities when providing services to districts and counties. however, at present, the services provided by securities companies for districts and counties are mostly similar and repetitive. on the whole, the service innovation is insufficient, the characteristic financial projects and financial products are still lacking, and the economic development of districts and counties and the particularity of securities companies have not been fully considered. 2.5 the comprehensiveness of securities companies’ service districts and counties is relatively lacking districts and counties need securities companies to provide comprehensive financial services. however, on the one hand, the current services provided by some securities companies are mostly based on a certain department or branch as the main force of services, which cannot effectively meet the comprehensive financial demands of districts and counties. this means that securities companies need to integrate the power of multiple departments, multiple lines, and even forward-looking investment in services. however, there are relatively few securities companies that can provide similar services. on the other hand, including district and county governments, district and county enterprises, and district and county residents all need services from securities companies. however, at present, most securities companies‟ services tend to focus on a single service object, failing to design the three to a unified service model, and lacking the organic combination of the three in the service process. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 28 published by scholink inc. 3. the countermeasures and suggestions for the high-quality economic and social development of the securities companies serving the districts and counties 3.1 play the role of the association organization, build a service district bridge (1) play the guiding role of the association, and guide the brokers to actively serve the districts and counties from the mechanism. the first is to issued a call to serve the high-quality economic and social development of districts and counties. led by the securities industry association, we will organize and guide securities companies to participate in and serve the high-quality economic and social development of districts and counties, continue the “one company, one county” model, call on securities companies to organically combine service districts and counties with rural revitalization on the basis of their original activities, and open a new round of “one company, one county” or “one company, multiple counties” activities, focusing on expanding the depth and breadth of services, and striving to add 10% of the country‟s districts and counties; the second is to establish a professional committee to serve the high-quality economic and social development of districts and counties. the establishment of a secondary professional committee can be adopted to attach importance to the management mechanism, clarify the connotation and extension of work responsibilities, take the lead in organizing securities companies to explore the value of high-quality economic and social development in districts and counties, tap the potential of the capital market of enterprises in districts and counties, and guide securities companies to organically combine the main business with the coordinated and shared economic and social development in districts and counties; the third is to guide securities companies to innovate the mode of serving the high-quality economic and social development of districts and counties. encourage securities companies to give full play to their own strengths, actively integrate into the new pattern of national and local economic and social development, and explore new products, new tools, new businesses and new services in service districts and counties, and form a normal mode of securities companies serving districts and counties. taking the service area county as one of the special evaluation contents of securities companies to fulfill their social responsibilities, it pays attention to the esg evaluation of securities companies, and combines with the classification evaluation to improve the positive incentive degree. the forth is to strengthen the cultural propaganda work of securities companies serving the high-quality economic and social development of districts and counties. the securities industry association can list the publicity work of securities companies serving the high-quality economic and social development of districts and counties as an important part of the cultural construction of the securities industry. by setting up columns on the website of the securities industry association, publicly releasing data, publishing case compilations, and producing results propaganda films, the work progress and typical deeds of the service districts and counties are publicized and reported, and special recognition is given to outstanding securities companies and staff to produce incentive effects. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 29 published by scholink inc. (2) play the role of the association platform, do a good job of the bridge between securities companies and districts and counties. the first is to build a cooperation platform composed of associations, district and county governments, and securities companies. the securities industry association can adopt the way of setting up “special members” to attract the district and county governments to join the association, and rely on the good relationship that has been formed with many local governments, take the initiative to graft resources between securities companies and district and county governments, and give full play to their own advantages in coordination, communication and information, and jointly build a “securities industry service district and county comprehensive platform” to gather functional information such as service demand, industrial and financial docking, public welfare support and financial training, so as to reduce the cost of information collection and communication among various entities, and also attract more district and county government resources for securities companies. the second is to organize in-depth investigation of districts and counties and coordinate and match various resources. the securities industry association can continue to organize securities companies to conduct in-depth research on the districts and counties that determine the establishment of strategic cooperative relations, involving industry, people‟s livelihood, finance and other dimensions, summarize and sort out the common and individual problems encountered in the process of pursuing high-quality development in districts and counties, understand the latest financial needs, and then organize special research and provide matching financial services, which will help improve the reproducibility of services. in addition, we can also consider introducing the resources of listed companies into this link, and promote the exchange and docking of district and county industries and listed companies on the basis of research; the third is to lead the forum on high-quality economic and social development of securities industry service districts and counties. the securities industry association can, in coordination with other departments such as the china securities regulatory commission, invite government departments, academia, industry and others to jointly convene a special forum to discuss how securities companies serve the real economy and how to effectively serve the high-quality economic and social development of districts and counties, listen to the latest demands of districts and counties in the process of economic and social development, exchange the institutional mechanisms and methods of securities industry serving districts and counties, and organize securities companies to conduct follow-up thematic research on district and county financial services. 3.2 give full play to the professional advantages of securities companies and create characteristic comprehensive financial services (1) based on the top-level design, strengthen the system guarantee of service districts and counties. the first is the top-level design into the development plan of securities companies. securities companies should regard the high-quality economic and social development of service districts and counties as an important work in the future, fully understand its long-term and arduous nature, and incorporate it into the company‟s medium-and long-term development plan and annual work plan, or separately introduce the development plan of service districts and counties. according to the pre-procedure of the party www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 30 published by scholink inc. committee‟s discussion as a major decision-making matter, the position of service districts and counties in the company‟s development should be clarified and implemented; the second is to integrate into the specific work system of securities companies. improve and strengthen the specific work system of securities companies serving districts and counties, write the work content, work methods, and work objectives of the service districts and counties into the daily work system of securities companies, or separately design the institutional arrangements for securities companies serving districts and counties, including establishing a sound internal multi-sectoral business linkage mechanism to form a comprehensive financial service capability of the service districts and counties. at the same time, clarify the relevant responsibilities of personnel at all levels of securities companies, and promote the implementation of specific work in service districts and counties under the constraints of the system; the third is to integrate into the self-evaluation system of securities companies. in combination with the evaluation system of the securities industry association for securities companies, the system and mode, the impact and the role formed in the economic and social work of each business department serving the districts and counties are incorporated into the annual assessment of the securities company itself. play the role of assessment baton, avoid a single business assessment system, and focus on the balance of social and economic benefits. (2) based on specific regions, explore differentiated service paths. the first is to lock in specific areas and gradually carry out pilot projects. in the early stage, the securities company can fully consider the characteristics of the environment, humanities, economy, region and industry of the proposed service area, and carry out centralized services to a number of districts and counties adjacent to a certain which helps to form the industrial clustering effect and the scale effect of the service, and also helps the securities company to form the differentiated characteristics; the second is to carry out differentiated exploration based on their own endowments. securities companies should formulate a package of service plans based on the development characteristics of the districts and counties to be served and the fit of financial needs with their own resource endowments and business expertise. securities companies located in the central and western provinces and cities should fully consider the weakness of the economic and social development foundation of the districts and counties and the urgency of financial services, give full play to the location advantages, and increase the resource tilt of the district and county services. securities companies with headquarters in different places can focus on how to plan the mode and path of serving districts and counties through the joint service mechanism of headquarters and branches or regional headquarters. (3) promote talent strategy and increase the supply of financial talents in districts and counties. the first is to build a strong service talent team in the county. the securities companies can coordinate and select a group of middle-level cadres who are political, business and management to enter the service areas and counties on the spot, and actually participate in the economic and social development of the districts and counties, such as investment promotion and capital introduction, poverty alleviation, economic management and other work, focusing on docking securities companies and county financial www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 31 published by scholink inc. service needs. at the same time, we should also strengthen the construction of the staff of the county branch of the securities company, and give full play to the service ability of the business department outlets; the second is to build a strong service county reserve force. on the one hand, we should strengthen the training of middle-level cadres or reserve cadres of securities companies, organize special courses on high-quality economic and social development in service districts and counties, and apply for crediting the learning hours to the securities industry association vocational training information database. securities companies can also use the development of service districts and counties as an important assessment indicator for the proposed promotion of cadres, and stimulate the initiative and enthusiasm of reserve cadres to start businesses and take on responsibilities. on the other hand, securities companies can also carry out special training activities for grassroots cadres of district and county governments, especially financial and economic cadres, and establish friendly and cooperative relations between securities companies and district and county grassroots. (4) based on professional advantages, meet the needs of comprehensive financial services for high-quality economic and social development in districts and counties. the first is to use industrial research as a link to promote the rational development of district and county governments and enterprises. first, assist in the formulation and implementation of county economic development planning and financial revenue and expenditure plan. the securities company can give full play to the advantages of industrial research and actively strive to become an external “think tank” for the district and county governments to formulate economic planning. combined with the in-depth investigation of the districts and counties, based on the national industrial economic policy, as well as the local fiscal revenue and expenditure and debt constraints, the securities company can provide planning suggestions for the development of the district and county economy and society or industrial parks, assist in formulating corresponding operation plans, balance risks and benefits, and mobilize the company‟s strength to provide targeted industrial, financial or resource support in the follow-up project implementation process. second, help formulate and implement district and county industrial development and investment attraction plans. industry is the foundation of high-quality economic and social development of districts and counties. industrial planning and investment attraction are the pain points and difficulties of district and county work. on the basis of industrial research and regional research, this paper clarifies the existing industrial foundation, industrial advantages, geography, climate, resources and population of districts and counties. through the comparison of industrial research across the country, from the perspective of the integration of industrial development and financial capital, it fully considers the sustainability of resource endowment and industrial development of districts and counties, and finally puts forward a reasonable industrial development direction based on its own experience, forming an ecological system of financial and industrial circulation. in the follow-up, securities companies can find the target enterprises in the market based on industrial planning, and combine “going out” with “bringing in” to attract external industrial linkages to the ground, thus driving the development of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 32 published by scholink inc. district and county industries. third, help county enterprises to develop business development and financial services programs. enterprises are an important carrier of county economic development. mature enterprises usually do not have the dilemma of lack of financial services. however, a large number of county enterprises generally have the characteristics of low maturity and small scale. in the early stage of development, industrial support is urgently needed to solve the survival problem. securities companies can timely discover the operational risks faced by small and medium-sized enterprises in districts and counties through continuous industrial research, visits, research and other activities, and give reminders, and help to resolve them. therefore, securities companies should not be limited to ready-made business opportunities, but should participate in the medium and long-term development of enterprises. they can use industrial research as a link to help coordinate various resources of listed companies, provide “financial companionship” services for a large number of start-up and growth enterprises, and organize investment banks and investment departments to participate in a timely manner. the second is to enhance the new vitality of high-quality economic and social development in districts and counties based on investment and financing. financing is the most direct appeal of local governments. securities companies have helped solve the financing problems of district and county governments by assisting in the issuance of local bonds, direct investment, and public welfare assistance. at the same time, the following services can be continued: first, help revitalize the county resources and improve the financing hematopoietic function. first of all, within the scope of policy provisions, securities companies can become consultants for local government resource integration and platform standardization development, help sort out, revitalize and integrate stock assets, enhance the hematopoietic function of the platform through mergers and acquisitions, and promote the improvement of credit rating of high-quality entities. secondly, at present, the demand for the establishment of industrial funds funded by the county governments in various regions is very strong. securities companies can study the corresponding supporting policies and mechanisms by assisting in the establishment or co-construction of co-managed industrial funds, accelerate the transformation of simple financial subsidies in districts and counties into equity investment, guide the participation of social capital and industrial capital, and improve the efficiency of the use of government funds. second, aim at comprehensive needs and innovate products or services. first of all, securities companies can cooperate with district and county financial supervision bureaus, economic and information commissions, development and reform commissions, state-owned assets supervision commissions, finance bureaus and other departments to classify and cultivate district and county enterprises, and formulate differentiated service plans for traditional industries, special and new industries, strategic emerging industries, etc. secondly, securities companies can actively promote green bond business and abs business according to the actual situation of enterprises, and learn from domestic and foreign experience to explore innovative products such as “urban bonds”. furthermore, in the face of the more comprehensive financial needs of the district and county governments, securities www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 33 published by scholink inc. companies can take the lead in integrating commercial banks, insurance companies, futures companies, guarantee companies and other financial institutions to carry out joint cooperation, build a comprehensive service platform for the financing needs of the district and county governments, and promote diversified financial institutions to help the economic and social development of the district and county. the third is to promote the harmonious development of district and county society with teaching as the focus. first, strengthen investment awareness and enhance the cognitive ability of district and county residents to the securities market. for residents in districts and counties, especially in districts and counties with relatively backward economic development, due to the relatively low income of such groups, residents‟ willingness to save is stronger, their willingness to invest is relatively weak, and the layout of financial institutions in some districts and counties is relatively small, and residents have fewer investment channels. this requires securities companies to use their own professional advantages, fully understand the investment needs of district and county residents, connect appropriate products to appropriate district and county investors, give full play to the professional services of securities companies in social risk management, and also promote district and county residents to correctly and objectively understand the securities market and securities investment, appropriately promote district and county residents to convert savings into investment, and provide more investment and financial management channels for district and county residents. second, strengthen the development of investor education activities at different levels of districts and counties. securities companies should carry out corresponding investment education according to the characteristics of different investors in districts and counties. for the elderly investors in districts and counties, we should focus on educational activities to prevent financial fraud and protect the “money bags” of the elderly; for young and middle-aged investors in districts and counties, we should focus on education to establish a good investment concept, and enhance the investment ability of these investors, so as to enhance the investment effectiveness of young and middle-aged investors. for young investors in districts and counties, investor education can be used as a platform to strengthen the improvement of students‟ ability to prevent risks, reduce the probability of financial fraud in student groups, and also strengthen the popularization of basic knowledge of youth securities investment. through the continuous development of investor education activities, it can effectively open up a new pattern of investor education, and also help to promote the stability and progress of district and county society. funding this work was supported by the fundamental research funds for the chongqing social science planning project (project no. 2019ybgl050) and the sichuan international studies university research project (project no. sisu2018010). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 6, no. 1, 2023 34 published by scholink inc. references chen, j. s., & ren, l. (2022). from county competition to county co-cooperation strategic choice of high-quality development of county economy. reform, 338(04), 88-98. du, z. x. (2022). insiting on urban-rural integration, and promoting high-quality development of county-level economies. agricultural economics and management, 76(06), 1-4. fan, y., wang, j. x., & zhang, x. x. (2020). thoughts and suggestions on promoting the high-quality of county economy. macroeconomic management, 443(09), 60-62, 88. ma, y. (2017). financial innovation of securities company serves the real economy. chinese & foreign entrepreneurs, 585(31), 99-100. meng, x. p. (2020). promoting the high-quality development of county economy in underdeveloped areas. chinese cadres tribune, 385(12), 79-81. zhuang, j. q. (2021). the scale, structure and sustainability of county government bonds under the new pattern. financial control, 504(18), 17-23. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 4, no. 1, 2021 www.scholink.org/ojs/index.php/elp 7 original paper provisional measures of trademark enforcement in pakistan: a comparative analysis with malaysia and usa sohaib mukhtar 1* , zinatul ashiqin zainol 2 & sufian jusoh 3 1 law department, bahria university, islamabad, pakistan 2 faculty of law, national university of malaysia, bangi, selangor, malaysia 3 institute of malaysian and international studies, national university of malaysia, bangi, selangor, malaysia * sohaib mukhtar, e-mail: smukhtar.buic@bahria.edu.pk received: september 23, 2020 accepted: october 10, 2020 online published: march 1, 2021 doi:10.22158/elp.v4n1p7 url: http://dx.doi.org/10.22158/elp.v4n1p7 abstract trademark is mark, name, sign, smell or a sound distinguishes goods and services of one undertaking from goods and services of other undertakings. it is required to be distinctive and non-descriptive. it losses its distinctiveness when registered owner of trademark does not take prompt action against its infringement. provisional measures of trademark enforcement is a measure initiated by the owner of trademark during civil or administrative procedure of trademark enforcement to prevent further counterfeiting of his trademark and to protect evidence he relies upon during civil or administrative procedure of trademark enforcement. provisional measures of trademark enforcement in member states of world trade organization (wto) must be expedient, adequate, fair, equitable, and must not be complicated, costly and time consuming. provisional measures of trademark enforcement is a civil procedure where owner of trademark may ask the court to prevent counterfeiter from trademark counterfeiting. this study is qualitative method of research a comparative analysis of provisional measures of trademark enforcement in pakistan, malaysia and usa. after a comparative analysis of provisional measures of trademark enforcement in pakistan, malaysia and usa, it is found that lanham trademark act 1946 is comprehensive trademark law of united states of america (usa) prescribed grounds to grant and refuse to grant injunctions to prevent trademark counterfeiting. it is also found that there is a requirement in lanham trademark act 1946 for a person against whom injunctive relief is passed to submit report in writing about manner and method of compliance with injunction order. these findings are required to be prescribed in trademark law of pakistan for betterment of provisional measures of trademark enforcement. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 8 published by scholink inc. keywords intellectual property, trademark, preventive relief, injunction 1. introduction provisional measures of trademark enforcement is very important procedure for effective enforcement of trademark, therefore it is required to be expedient, adequate, equitable, and must not be complicated, costly and time consuming. agreement on trade related aspects of intellectual property rights (trips agreement) of world trade organization (wto) is the first international treaty which contains exhaustive enforcement provisions of intellectual property (ip) in member states of wto from articles 41 to 61. article 50 of trips agreement states about provisional measures of trademark enforcement in member states of wto that the court of member state may order an injunction when there is a reasonable cause to believe that if injunction is not ordered, it may harm applicant or evidence may be destroyed. the court of member state may ask plaintiff to provide security or surety before ordering injunction to prevent abuse and to protect defendant. defendant’s right of notice and right of hearing are required to be accorded before pronouncing injunction order and he may also have the opportunity of review upon decision of the court within prescribed time. if injunction order is overruled on review application of defendant, the court of member state may order plaintiff to give compensation to defendant for the loss he has suffered. the injunction order may be passed by administrative authority keeping in view principles laid down in trips agreement. injunction is preventive relief applied by the aggrieved party to prevent further harm if case is prima facie in his favor as well as balance of convenience and an irreparable harm will occur if injunction order is not passed by the competent authority. temporary injunctions are awarded during proceedings for temporary time as permanent injunctions are awarded after final decision of the competent authority to prevent further harm and to protect evidence. mandatory injunction is order of the competent authority to ask someone to do something which is obligatory upon him or ask him not to do something which he is bound not to perform it. this research is qualitative method of research a comparative analysis of provisional measures of trademark enforcement in pakistan, malaysia and united states of america (usa). important topics of provisional measures of trademark enforcement discussed in this treatise are (i) injunctions and types of injunctions in pakistani, malaysian, and usa laws, (ii) grounds to grant and refuse to grant injunctions in pakistani, malaysian, and usa laws. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 9 published by scholink inc. 2. injunctions and types of injunctions in pakistani, malaysian, and usa laws in pakistan, specific relief act 1877 deals with matter of injunctions. aggrieved party of trademark infringement may apply before the civil court for obtaining injunctions to prevent further infringement or to protect evidence. injunction is either temporary for specific time, perpetual for time immemorial or mandatory for directing party to do or refrain to do something (§52-57 specific relief act, 1877; fiss, 1978). purpose of provisional measures is to permit effective and expeditious action against continuous illegal usage of registered trademark and protection of evidence which put light in favor of aggrieved party to prove his plea before the court. alleged infringement is that infringement which is not prima facie prove before competent authority as it is in process of proving or disproving. right holder needs protection for himself and for evidence he relies upon to prove his claim beyond reasonable doubt before competent authority. hence preventing infringement when there is likelihood that an irreparable harm may be caused to right holder and when there is a clear risk that evidence may be destroyed and to prevent infringed goods to come up during trade after customs clearance (khan, 2010; malik, 2010). according to section 46 of trade marks ordinance 2001, an infringement of registered trademark shall be actionable by proprietor of trademark and have all such reliefs by way of damages, injunctions, accounts or otherwise available to the proprietor of trademark as available in respect to infringement of any other property right (s46 trade marks ordinance, 2001; maker, 2014). sindh high court held in the case of asian consumer care pakistan limited v hilal foods that trademark infringement occurs when one party uses trademark that is identical to trademark owned by another party in relation to identical goods or services. infringement of registered trademark can be addressed by civil litigation and in several jurisdictions under criminal law as well (cld 2016, sindh 804). according to section 40 of trade marks ordinance 2001, a person shall infringe registered trademark if such person uses it during trade a mark which is identical with another trademark in relation to goods or services which are identical with those for which it is registered (s40 trade marks ordinance, 2001). according to section 53 of specific relief act 1877, injunction is either temporary or perpetual. temporary injunction continues until specified time or until further order of the court granted at any time of the suit and are regulated by code of civil procedure 1908 (s53 specific relief act, 1877; busuttil & mccafferty, 2010). where it is proved that any property in dispute is in danger of being wasted, damaged, alienated, wrongfully sold, defendant threatens to remove or disposes of his property, the court may grant temporary injunction to restrain staying and preventing wasting, damaging, alienating, sale, removal or disposition of property. plaintiff may apply to the court for temporary injunction to restrain defendant from committing injury complained or breach of contract or injury of like kind arising out of same contract. in case of disobedience or breach, the court may order property of a person to be attached for not more than 1 year and may also order that person be detained in prison for not more than 6 months. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 10 published by scholink inc. if disobedience and breach continues, attached property may be sold out and its proceeds be awarded as compensation by the court (r1-2 o39 code of civil procedure, 1908; foster, 1986). an interim injunction passed in absence of defendant shall not ordinarily exceed 15 days except when there is failure of its service on to defendant and when defendant seeks time for defense of application to injunction. in any case, order of injunction shall cease to have effect on expiration of 6 months unless extended by the court after hearing parties again and for reasons to be recorded for such extension and report be submitted before the high court. injunction order passed by the court may be discharged, varied or set aside by the court on application made by any party dissatisfied with such order (r4 o39 code of civil procedure, 1908; rendleman, 1973). applicant is required to apply early during civil proceedings before the court as delay in applying may cause rejection. sindh high court held in the case of rexona proprietary limited v majid soap work that it is perfectly true that normal delay in applying for temporary injunction is fatal and reasons seems clear if person delays in coming to the court, he himself confesses that case is not so urgent as to requires interim relief (pld, 1956 sindh 1). sindh high court held in another case of sindh madrasatul islam board society v shamim that high court azad kashmir held in the case of ismail and other v faleh alam and other, where temporary injunction is issued ex-parte and notice is issued to opposite party, he has two remedies (i) come up in appeal against order issuing temporary injunction ex-parte, or (ii) apply before the court issuing temporary injunction under order 39, rule 4 of code of civil procedure 1908 and the court may discharge, vary or set aside injunction (clc, 1982; sindh 2242). according to order 39, rule 3, code of civil procedure 1908, the court may grant ex-parte injunction for 2 to 7 days for default in payment within stipulated time, injunction against the government, government servant, statutory authority, board or corporation set up and established by the government (thorup, 1984; r3 o39 code of civil procedure, 1908). according to section 53 of specific relief act 1877, perpetual injunctions can only be granted by decree made at hearing and upon merits of suit. defendant is thereby perpetually enjoined from assertion of right or from commission of act which would be contrary to rights of plaintiff (s53 specific relief act, 1877; smoot, 1956). plaintiff must prove his claim beyond reasonable doubt to adopt remedy of perpetual injunction. peshawar high court held in the case of qazi sallah ul din and others v roman that plaintiff roman opted for declaratory decree under section 42 of specific relief act 1877 but failed to prove his possession therefore decree for perpetual injunction could not be granted to him as consequential relief. it is settled law that where plaintiff is not in possession of property, he cannot seek mere declaration of title without asking for possession as consequential relief (cr, 2017 peshawar 898-p/2009). in the case of syed zahir shah v syed muhammad ali shah bacha, facts of the case are that respondent syed muhammad ali bacha filed suit for declaration and perpetual injunction against syed zahir shah and others to the effect that land falling situated in village badraga, tehsil dargai is inherited by his www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 11 published by scholink inc. father through mutation in 1946 which later came into the ownership of respondent as ancestral property in 1969. respondent averred in his plaint that dower mutation allegedly executed by grandfather of respondent in favor of mst. khaista bibi being fake, fictitious, illegal and ineffective upon his rights. the trial court accepted contention of respondent and awarded perpetual injunction, which was challenged before peshawar high court by petitioner syed zahir shah. peshawar high court held that learned counsel for petitioners failed to show any evidence to have been misinterpreted by both the courts and any evidence in favor of petitioners without proper appraisal. concurrent findings of both the courts are based on sound reasons wherein no illegality or irregularity could be pointed out during arguments, hence same cannot be interfered with by this court in exercise of its jurisdiction of revision. resultantly, petition of revision in hand, being devoid of force stands dismissed with no order as to costs (ylr, 2017 peshawar 630). according to section 55 of specific relief act 1877, the court may in its discretion grants mandatory injunction to prevent breach of complained obligation and to compel performance of requisite acts (s55 specific relief act, 1877; klein, 1898). sindh high court held in the case of m. sikander sultan v masih ahmed sheikh that purpose of trademark is to use it for secure and free enjoyment of manufacturing and marketing products of its owner and to prevent deceiving public through its infringement. injunction would be granted when there is likelihood of damage due to infringement of trademark (cld, 2003, sindh 26). the supreme court of pakistan held in the case of muhammad ashraf v muhammad akram that registration of trademark gives rise to prima facie case, balance of convenience and likelihood of irreparable loss for grant of injunction against infringement of registered trademark (c&tlr, 2015 lahore 1425). in malaysia, application for grant of injunction may be made by any party of proceedings before or after trial by notice of application supported by affidavit. granting injunctions by the court is called preventive relief and injunctions include temporary injunctions which are interim stay orders of the court applicable until specified time mentioned in order or when time is not mentioned until further order of the court. temporary injunctions can be awarded at any time of proceedings before the court. perpetual injunctions can be granted by the court at the time of decree upon merits of the case to stop defendant perpetually from asserting right and to stop defendant from doing any other act perpetually. mandatory injunctions awarded to prevent breach of performance and to stop breach of obligations as well as to compel someone to do or prevent to do some act (ss50-55 specific relief act, 1950; ahmad & kamal, 2006). where case is of urgency may be made ex-parte and must contain (i) clear and concise statement of facts giving rise to claim, (ii) facts giving rise to application, (iii) facts relied on to justify application ex-parte, (iv) details of given notice to other party, (v) answer by other party, (vi) facts which may lead the court not to grant application ex-parte, (vii) any similar application made to another judge, and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 12 published by scholink inc. (viii) precise relief sought. interim injunction obtained on ex-parte application shall automatically lapse in 21 days from the date it was granted (r1 o29 roc, 2012; cohen, 1991). according to section 70b of trade marks act 1976, the proprietor of trademark is entitled to restrain use of trademark which or essential part of which is identical with or so nearly resembles with proprietor’s trademark in respect of same goods or services and when use is likely to deceive or cause confusion (s70b trade marks act, 1976; mccarthy, 2009). according to section 50 of specific relief act 1950, injunction is preventive relief which is granted at discretion of the court temporarily or perpetually. according to section 51 of specific relief act 1950, temporary injunction is granted at any time of suit, regulated by law relating to civil procedure and continues to apply until specified time or until further order of the court. perpetual injunction is only awarded at decree of the case decided by the court (mckenna, 2007; ss50-51 specific relief act, 1950). the high court of malaya held in the case of muhammad hilman bin idham v kerajaan malaysia that an order for temporary injunction can be sought only in aid of prospective order for perpetual injunction. if in event of plaintiff’s success, he cannot obtain decree for perpetual injunction, it is not competent for him to ask for temporary injunction. temporary injunction will not be granted in cases where permanent injunction is not available under sections 52-54 of specific relief act 1950 (mlj, 2011 hc malaya 565; mlj, 1968 fc putrajaya 283). the high court of malaya held in another case between tidalmarine engineering sdn bhd v kerajaan malaysia that specific relief act 1950 recognizes distinction between temporary and perpetual injunctions issued by the court. judicial views are however divided as to whether temporary injunction or as is commonly referred to interlocutory injunction as opposed to permanent injunction can be issued against government (mlj, 2011 hc malaya 400). according to section 53 of specific relief act 1950, mandatory injunction is granted to (i) prevent breach of obligation, and (ii) compel performance of certain acts (s53 sra 1950; dogan, 2010). the high court of malaya held in the case of jasmine food corporation v leong wai choon that the high court is clearly empowered and have jurisdiction to grant summary judgment for trademark infringement even if it involves a claim for permanent mandatory injunction (mlj, 2011 hc malaya 812). the court of appeal putrajaya held in the case of credit guarantee corporation malaysia v ssn medical products that the court recognizes force of argument that defendant should not be compelled to apologize against his will as very spirit of apology is that it must come from heart, something which defendant wishes to do because wrong he has done to plaintiff. on other hand, order compelling defendant to merely withdraw or correct offending statement after trial seems to be of different character or genre from that of an apology. in same way that the court compels defendant to pay damages for defamation, there is no reason or principle why it cannot compel issue of correction. of course, cases where the court should think that justice requires grant of mandatory injunction to issue www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 13 published by scholink inc. either letter of withdrawal or correction must be quite exceptional (mlj, 2017 coa putrajaya 629). in usa, according to section 34 of lanham trademark act 1946, the court vested with jurisdiction of civil actions have powers to grant injunctions as per principles of equity and upon such terms as the court may deem reasonable to prevent violation against rights of registered trademark owner. the court in which civil infringement proceedings is instituted can pass injunction against infringer and require him to file report in writing under oath, manner and form of compliance order of injunction within 30 days. in case if defendant does not comply with order on injunction, plaintiff may file contempt of court application against him (s34 lanham trademark act, 1946; s1116 usc, 1926). this type of requirement should be added in provisional measures under trademark law of pakistan where alleged infringer should be required to submit a report in writing under oath within 30 days about manner and method of compliance order of injunction announced by the court otherwise contempt of court proceedings could be commenced against him. in case of civil action with respect to violation consists using counterfeit trademark for sale, offer to sale or distribution of goods or services, the court may grant injunction order upon ex parte application for seizure of goods and counterfeit trademarks involved in such violation and means of making such trademarks, records documenting manufacture, sale or receipt of things involved in such violation. application must base on affidavit consisted of (i) verified complaint establishing facts sufficient to support findings of fact and conclusions of law required for such injunction order, (ii) description of matter to be seized and description of place at which such matter is to be seized, (iii) time period which shall end not later than 7 days after the date on which such order is issued, (iv) amount of security required to be provided by applicant, and (v) date for hearing parties (cohen, 1991). the supreme court of united states held in the case of park n’ fly incorporation v dollar park and fly incorporation that power of the court under section 34 of lanham trademark act 1946 is to grant injunctions as per principles of equity which does not encompass substantive challenge to validity of incontestable trademark on grounds that it lacks secondary meaning. otherwise, meaning of equity would be expanded to point of vitiating more specific provisions of lanham trademark act 1946 (469 us 185, 1985). the united states court of appeal for the sixth circuit held in the case of tandy corporation v malone & hyde incorporation that substantive and remedial doctrines of trademark law draw upon legal principles developed both at law and in equity. although trademark litigation began as early as 1600's as law of trademark did not undergo significant development until 19 th century when use of trademarks increased to symbolize and market products created need for defining and protecting owners’ rights (769 f.2d 362, 1985). according to section 34 of lanham trademark act 1946, injunctive relief is allowed as per principles of equity. both equity and law courts decided trademark cases in england during early stages of trademark development, but equitable principles seem to have dominated that process because injunctive relief was generally considered first and most effective step for courts to take in redressing www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 14 published by scholink inc. trademark infringement. american courts also stressed equitable relief and principles in their responses to trademark disputes. prior to statutory protection for trademarks, courts determined rights and liabilities primarily based on equitable theory, treat damages portion of such suits as an equitable action in nature of accounting consistent with the history of trademark law. 3. grounds to grant and refuse to grant injunctions in pakistani, malaysian, and usa laws general grounds to grant and refuse to grant injunctions are prescribed in pakistan under specific relief act 1877 and in malaysia under specific relief act 1950 which are almost the same. contrary to pakistani and malaysian laws, specific grounds to grant and refuse to grant injunctions in trademark infringement matters are prescribed in usa under section 43 of lanham trademark act 1946. in pakistan, according to section 54 of specific relief act 1877, the court would award perpetual injunction when (i) there is a need to prevent breach of obligation arisen from contract existing in favor of applicant whether expressly or by implication and defendant invades or threatens to invade plaintiff’s right, (ii) defendant is trustee of property for plaintiff, (iii) there exists no standard for ascertaining actual damage caused or likely to be caused by invasion, (iv) invasion is such that pecuniary compensation would not afford adequate relief, (v) it is probable that pecuniary compensation cannot be acquired for invasion, and (vi) injunction is necessary to prevent multiplicity of judicial proceedings (s54 specific relief act, 1877; mcleod, 2005). sindh high court held in the case of m/s maxim advertising company private limited v province of sindh that no injunction can be issued unless all required ingredients including prima facie case, balance of convenience and irreparable loss to aggrieved party were found to subsist. irreparable loss would mean and imply such loss which is incapable of being calculated on yardstick of money. contracts involving collection of monetary benefits having been obtained on specific monetary consideration, could not involve irreparable loss (mld, 2007; sindh, 2019). sindh high court held in another case between shahzad trade links through sole proprietor v mtw pak assembling industries private limited that relief of injunction is discretionary and is to be granted by the court as per sound legal principles of justice. existence of prima facie case is to be judged or made out based on material evidence on record at time of hearing injunction application and such evidence of material should be of nature that by considering same, the court should or ought to be of the view that plaintiff applying for injunction was probably to succeed in suit by having decision in his favor. prima facie case is not specifically defined in code of civil procedure 1908. judge made law or consensus is that to satisfy existence of prima facie case, pleadings must contain facts constituting existing right of plaintiff and its infringement at hands of opposite party. the court held that balance of convenience means if an injunction is not granted and suit is ultimately decided in favor of plaintiff, inconvenience caused to plaintiff would be greater than that would be caused to defendant if injunction is granted. it is for plaintiff to show that inconvenience caused to him would be greater than that which may be caused to defendant. irreparable loss would mean and simply www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 15 published by scholink inc. such loss which is incapable of being calculated on yardstick of money (clc, 2016, sindh 83). according to section 56 of specific relief act 1877, interim, perpetual or mandatory injunctions would not be granted if (i) plaintiff applies for stay of pending judicial proceedings except if restraint is necessary to prevent multiplicity of judicial proceedings, (ii) restraint person to apply before any legislative body, (iii) interfering in public duties of the federal, provincial or foreign governments, (iv) stay of proceedings in any criminal matter, (v) preventing breach of contract, (vi) performance of which would not be specifically enforced, (vii) preventing ground of nuisance when it is not reasonably clear whether it is nuisance or not, (viii) prevent continuing breach in which applicant has acquiesced, (ix) when equally efficacious relief can certainly be obtained by any other usual mode except in breach of trust, (x) when conduct of applicant or his agent is as such to disentitle him to assist the court, or (xi) applicant has no personal interest in the matter (s56 specific relief act, 1877; smith, 1987). sindh high court held in the case of sayyid yousaf husain shirazi v pakistan defense officers’ housing authority that injunction is writ framed as per circumstances of case commanding an act which the court regards as essential to justice or restraining as act which it esteems contrary to equity and good conscience. an injunction is an equitable remedy and accordingly conform well-known law of equity maxim that “he who seeks equity must do equity”. law as contained in specific relief act 1877 is governed by this principle, therefore, plaintiff asks for an injunction must be able to satisfy the court that his own acts and dealings in matter have been fair, honest and free from any taint or illegality. if in dealing with person against whom he seeks relief has acted in unfair and un-equitable manner, he cannot obtain this relief (mld, 2010 sindh 1267). in malaysia, according to section 52 of specific relief act 1950, perpetual injunction can be granted at time of decree on merits of the case by the court when (i) preventing breach of expressed or implied obligation which is in existent in favor of plaintiff through contract, (ii) defendant is trustee of property of plaintiff, (iii) damage of an invasion cannot be ascertained, (iv) pecuniary relief of damages is not adequate, (v) pecuniary compensation cannot be granted, or (vi) injunction is required to prevent multiplicity of legal proceedings (mohamed, 2016). the high court of malaya stated in the case of jothi impex sdn bhd v yashree store sdn bhd that purpose of injunction is to protect plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in action if uncertainty were resolved in his favor during trial. the court must determine balance of convenience unless material available to the court fails to disclose that plaintiff has real prospect of succeeding in his claim for permanent injunction at trial. the court should go on to consider whether balance of convenience lies in favor of granting or refusing to grant preventive relief (mlj, 2006 hc malaya 742). governing principle is that the court should first consider whether plaintiff succeeds at trial in establishing his right to permanent injunction, he would be adequately compensated by an award of damages for loss he would have sustained as result of defendant’s continuing to do what was sought to be enjoined between time of application and time of trial. if damages would be adequate remedy and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 16 published by scholink inc. defendant would be in financial position to pay them, no injunction should normally be granted. if damages would not provide an adequate remedy to plaintiff in event of his succeeding at trial, the court should consider whether defendant were to succeed at trial in establishing his right to do that which was sought to be enjoined. he would be adequately compensated under plaintiff’s undertaking as to damages for loss he would have sustained by being prevented from doing so between time of application and time of trial. the high court of malaya gave reference of house of lord case between american cyanamid company v ethicon limited, that based on salutary principles established by house of lords in american cyanamid company v ethicon limited, it becomes duty of the court to consider following matters when deciding grant of injunction (i) whether there are any bona fide serious questions to be tried, (ii) balance of convenience lies, (iii) damages an adequate remedy for plaintiff in circumstances, (iv) plaintiff has given adequate undertaking as to damages, and (v) there has been full and frank disclosure of all material facts on plaintiffs’ part (1975 ac 396). according to section 54 of specific relief act 1950, temporary, perpetual or mandatory injunctions can be refused if (i) required to stay judicial proceedings except if required to stop multiplicity of judicial proceedings, (ii) required to stop judicial proceedings pending before the court, (iii) required to stop any person to apply before any legislative body, (iv) required to stop public authorities of malaysian government to perform their public duties, (v) required to stay criminal proceedings before the court, (vi) required to prevent breach of contract whose performance is not specifically enforced, (vii) required to stop nuisance when it is not clear whether it comes under definition of nuisance or not, (viii) required to prevent continuing breach of contract, or (ix) any other effective relief available to be obtained through normal procedure of law except in case of breach of trust, required to disentitle applicant or his agent to assist the court or personal interest of applicant is not attached with the matter (s54 specific relief act, 1950; kandiah, 2004). the court of appeal kuala lumpur held in the case of keet gerald francis noel john v mohd. noor bin abdullah that judge hearing application for granting injunction should ask himself whether (i) totality of facts presented before him disclosed bona fide serious issue, (ii) identify issues raised whether they are serious enough to merit a trial, (iii) found that raised issue requires further investigation, (iv) consider where justice of case lies, (v) consider all relevant matters including practical realities of case before him. the judge must have in forefront of his mind that remedy he is asked to administer is discretionary, intended to produce just result for period between date of application and proper trial and to maintain status quo. it is a judicial discretion capable of correction on appeal. a judge should briefly set out in his judgment several factors that weighed in his mind when arriving at his conclusion (mlj, 1995 coa kl 193). the supreme court held in the case of tinta press sdn bhd v bank islam malaysia bhd, that discretionary power of the court to grant injunction is prescribed under specific relief act 1950. power is extended to grant of mandatory injunction before trial. such discretion must be exercised, and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 17 published by scholink inc. an injunction should be granted only in exceptional and extremely rare cases. case must be unusually strong and clear. the court must feel assured that similar injunction would probably be granted during trial on ground that it would be just and equitable that plaintiff’s interest be protected by immediate issue of an injunction, otherwise irreparable injury and inconvenience would result (mlj, 1987 sckl 192). in usa, the owner of famous trademark has a right to obtain injunctive relief from the court against infringement of his legitimate right. trademark is famous when it is recognized by public in usa. the court while awarding preventive relief is required to take into consideration requisite degree of trademark recognition by considering duration, extent, geography, advertisement, publicity, amount volume and geographic extent of sale of goods or services protected under trademark and entry of registration whether in principal register, supplemental register or registered under previous enactments of trademark in usa (bible, 1995). this is very important development made under trademark dilution act in 1995, while deciding injunctive relief application, the court is required to consider degree of trademark recognition, entry of trademark registration, duration, extent, geography, advertisement and publicity of trademark, as well as amount, volume and geographic extent of sale of goods or services. it is therefore recommended that this type of requirement should be added in trademark law of pakistan and malaysia for betterment of provisional measures of trademark enforcement. to claim injunctive relief before the court, applicant is required to prove prima facie trademark infringement and for proving trademark infringement, plaintiff must prove ownership of valid trademark, likelihood of confusion between registered trademark and alleged infringing use by defendant and an irreparable loss will occur to applicant if injunction is not granted. in the case of ty incorporation v jones group incorporation, the court held that plaintiff toy company sought preliminary injunction in its trademark infringement claim against defendant. plaintiff had better than negligible chance to prove its trademark was not generic because plaintiff prevented other competitors from using trademark. plaintiff had not used trademark generically and dictionary definition of trademark and media’s use of term indicated it was not generic (llc 17-c7872 usdc). plaintiff’s use of trademark combined with widespread publicity high sales volume and result of plaintiff's consumer survey clearly rendered chances of establishing that name had acquired secondary meaning better than negligible. weighing necessary factors, plaintiff had better than negligible chances of showing likelihood of confusion with defendant’s product. since plaintiff established had a better than negligible chance of success on merits, had no adequate remedy at law, and would suffer an irreparable injury in absence of preliminary injunction, therefore preliminary injunction was issued. in another case between coca cola company and others v william s. purdy and others, defendants willliam s. purdy and others registered over 60 internet domain names that incorporated plaintiffs’ famous trademarks. websites for domain names displayed content that did not originate from and was not sponsored by plaintiffs including color pictures that purported to be dismembered aborted fetuses www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 18 published by scholink inc. and links to fund-raising appeals. defendants sought to permanently enjoin plaintiffs from using domain name that incorporated was identical to and confusingly like plaintiffs’ famous protected trademark. the court granted plaintiffs’ motion and issued permanent injunction while referring to reasoning in its prior orders and the court of appeals’ opinion, which were analyzed on strength of plaintiffs’ claim. additionally, the court found that plaintiffs are entitled to relief on their trademark infringement claim as there is likelihood of confusion between registered trademarks and alleged infringing use by defendants (u.s. dist. lexis, 1226). 4. conclusion and recommendations provisional measures can be acquired by registered trademark owner in pakistan, malaysia and usa to acquire injunctive relief to prevent further infringement of registered trademark and to protect evidence which would be beneficial to prove his claim before competent authority. the court while ordering injunctive relief is required to consider recognition, registration, duration, extent, geography, advertisement and publicity of trademark as well as amount, volume and geographic extent of goods or services. a person against whom injunctive relief is passed by the court, is required to submit written report under oath within 30 days about manner and method of compliance with injunctive order of the court, otherwise registered trademark owner may start contempt of court proceedings against him as per prescribed provision of lanham trademark act 1946. these requirements should be added in trademark law of pakistan for better implementation of provisional measures of trademark enforcement. references ahmad, w. a., & kamal, n. a. (2006). administrative law in malaysia. malaysia: sweet & maxwell asia. american cyanamid company v ethicon limited. (1975). house of lords. appeal cases, 396. asian consumer care pakistan private limited v hilal foods private limited. (2016). sindh high court. civl law digest, 804. bible, p. m. (1999). defining and quantifying dilution under the federal trademark dilution act of 1995: using survey evidence to show actual dilution. university of colorado law review, 70, 295. busuttil, g., & mccafferty, p. (2010). interim injunctions and overlap between privacy and libel. journal of media law, 2(1), 1-13. https://doi.org/10.1080/17577632.2010.11427349 coca cola company and others v william s. purdy and others. (2005). united states district court for district of minnesota. u.s. dist. lexis, 1226. code of civil procedure. (1908). islamic republic of pakistan, act v. cohen, d. (1991). trademark strategy revisited. the journal of marketing, 55(3), 46-59. https://doi.org/10.1177/002224299105500305 https://doi.org/10.1080/17577632.2010.11427349 https://doi.org/10.1177/002224299105500305 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 19 published by scholink inc. credit guarantee corp malaysia bhd v ssn medical products sdn bhd. (2017). court of appeal putrajaya. malaysian law journal, 2, 629. dogan, s. l. (2010). trademark remedies and online intermediaries. lewis & clark law review, 14, 467-489. fiss, o. m. (1978). the civil rights injunction. united kingdom: indiana university press, bloomington & london. foster, j. j. (1986). the preliminary injunction-a new and potent weapon in patent litigation. journal of patent & trademark office society, 68, 281-291. j. thomas mccarthy. (2009). are preliminary injunctions against trademark infringement getting harder to achieve?. intellectual property law bulletein, 14, 1. jasmine food corp sdn bhd v leong wai choon & anor. (2011). high court of malaya. malaysian law journal, 11, 812. jothi impex sdn bhd v yashree store sdn bhd. (2009). high court of malaya. malaysian law journal, 742. kandiah, p. (2004). intellectual property enforcement in malaysia. pakistan: kandiah & associates. keet gerald francis noel john v mohd. noor bin abdullah. (1995). court of appeal kual lumpur. malaysian law journal, 193. khan, m. f. i. (2010). trademark in pakistan. lahore, pakistan: united trademark & patent services. klein, j. (1898). mandatory injunctions. harvard law review, 12(2), 95-118. https://doi.org/10.2307/1321379 lanham trademark act. (1946). united states of america. act 15. m.sikander sultan v masih ahmed sheikh. (2003). sindh high court. civil law digest, 26. m/s maxim advertising company private limited v province of sindh and others. (2007). sindh high court. monthly law digest, 2019. maker, h. (2014). intellectual property rights in pakistan. pakistan: the nation. retrieved from https://nation.com.pk/20-apr-2014/intellectual-property-rights-in-pakistan malik, n. a. (2010). manual of trade marks & intellectual property laws. pakistan: four star publishers. mckenna, m. p. (2007). the normative foundations of trademark law. notre dame law review, 82(5), 1839. mcleod, r. (2006). injunction junction: remembering the proper function and form of equitable relief in trademark law. duke law & technology review, 5(1), 1-22. mohamed, k. (2016). prevention of trademark counterfeiting through intellectual property enforcement system in malaysia. the debt financing and financing risk persistency, 82. muhammad ashraf alias makkhan v muhammad akram. (2015). lahore high court. pakistan company and tax law reports, 1425. https://doi.org/10.2307/1321379 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 4, no. 1, 2021 20 published by scholink inc. muhammad hilman bin idham & ors v kerajaan malaysia & ors. (2011). high court of malaya. malaysian law journal, 6, 565. park n’ fly incorporation v dollar park and fly incorporation. (1985). united states supreme court. united states, 469, 189. qazi salah ul din & others v roman. (2017). peshawar high court. civil revision, 898-p/2009. rendleman, d. (1973) toward due process in injunction procedure. university of illinois law forum, 221-251. rexona proprietary limited v majid soap works. (1956). sindh high court. pakistan law digest, 1. rules of court malaysia. (2012). p.u. (a). sayyid yousaf husain shirazi v pakistan defense officers’ housing authority. (2010). sindh high court. monthly law digest, 1267. shahzad trade links through sole proprietor v mtw pak assembling industries private limited. (2016). sindh high court. civil law cases, 83. sindh madrasatul islam board society v shamim. (1982). sindh high court. civil law cases, 2242. smith, n. a. (1987). obtaining early and effective relief against trademark counterfeiting. communications and entertainment law journal, 10, 1049. smoot, t. (1956). stranger picketing: permanent injunction or permanent litigation? american bar association journal, 42(9), 817-888. specific relief act. (1877). islamic republic of pakistan. act i. specific relief act. (1950). malaysia. act 137. syed zahir shah v syed muhammad ali shah bacha. (2017). peshawar high court. yearly law report, 630. tandy corporation v malone & hyde incorporation. (1985). united states court of appeals for the sixth circuit. united states, f.2d 362, 769. thorup, a. r. (1984). injunctions against payment of standby letters of credit: how can banks best protect themselves? banking law journal, 101, 6-30. tidalmarine engineering sdn bhd v kerajaan malaysia. (2011). high court of malaya. malaysian law journal, 2, 400. tinta press sdn bhd v bank islam malaysia bhd. (1987). supreme court kuala lumpur. malaysian law journal, 192. trade marks act. (1976). malaysia. act 176. trade marks ordinance. (2001). islamic republic of pakistan. act xix. ty incorporation v jones group incorporation. (2000). united states district court for northern district of illinois, eastern division. u.s. dist. lexis, 7872. united states code: trademarks. (1926). united states of america. title-15. vethanayagam v karuppiah & ors. (1968). federal court putrajaya. malaysian law journal, 1, 283. microsoft word elp-v2n2-p133 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 2, 2019 www.scholink.org/ojs/index.php/elp 133 original paper the right to a fair trial before the european court of human rights alaa mohamed ismail abdrabo1* 1 department of criminal law, faculty of legal studies and international relations, pharos university in alexandria (pua), egypt *alaa mohamed ismail abdrabo, department of criminal law, faculty of legal studies and international relations, pharos university in alexandria (pua), egypt. received: april 10, 2019 accepted: april 17, 2019 online published: july 4, 2019 doi:10.22158/elp.v2n2p133 url: http://dx.doi.org/10.22158/elp.v2n2p133 abstract article 6 of the european convention on human rights (echr) guarantees the right to a fair trial, applies to disputes relating to civil rights and obligations as well as to criminal charges. the right to a fair trial includes, inter alia, the right of access to a court, the right to be heard and the equality of arms between the parties. this challenging new work elucidates the meaning of the fair trial and looks at the fair trials jurisprudence of the echr. article 6 of the european convention on human rights has become the defining standard within europe for determining the fairness of criminal proceedings. its success has been attributed to the fact that it is not based on a particular model of criminal procedure. keywords fair trial, equality of arms, human rights, impartiality, the european convention on human rights, the european court of human rights 1. introduction signed at rome on 4 november 1950, and entered into force on 3 september 1953, the european convention for the protection of human rights and fundamental freedoms has so far been ratified by 43 states. it guarantees the right to a fair trial in article 6, and established, by its articles 19 to 51, a permanent judicial mechanism, composed at the origin of a commission and a court, and, since the entry into force of additional protocol n° 11, of the only court, organized differently. these bodies are responsible for ensuring that the rights set out in the convention by the signatory states are respected in respect of their litigants (e.c.h.r., 2018). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 134 published by scholink inc. through the decisions of these bodies, the convention has had on the national rights of the signatory states an influence which is now no longer to be demonstrated. this is particularly the case with regard to the organization and functioning of the judicial systems (note 1): article 6 has for several years been the source of quantitatively (note 2) and qualitatively important european jurisprudence (batjom b., 1995, p. 11). the court was led to clarify the scope of this article. in particular, it adopts its own definition of the terms “civil nature” and “criminal matters”: european concepts are defined autonomously in relation to the qualification given to different disputes by the internal rights of the member states, and are not identical to that of the internal homonymous concepts. this autonomy of notions is a fundamental aspect of the european protection of the fair trial: the civil nature or of the procedure governing the application of article 6, it is not conceivable to allow the internal qualification of the procedure to define this nature, under the penalty of seeing article 6 giving rise to a fair trial “with varying geometry” according to the state concerned. only the adoption of autonomous concepts makes it possible to ensure a uniform application of the right to a fair trial, thereby subtracting the definition of the scope from domestic rights. in its definition of “civil nature”, the court attaches particular importance to the consequences of the envisaged procedure, and has brought into the scope of article 6 § 1, in addition to “classical” private law, a part of the litigation considered administrative in several internal rights “litigation of liability administrative (note 3), pensions (note 4) or wages disputes (note 5)...”. similarly, with regard to the european definition of “criminal matter”, the court, using a method close to the cluster of evidence, uses three criteria to determine the criminal nature of a charge: the internal qualification of the sanction, the severity of the factor behavior and the purpose and severity sanction, which led it to include certain disciplinary sanctions, including penitentiary (note 6), military (note 7) or ordinal (note 8). it should be noted that, if it has long been thought that autonomy was one-way, i.e., it was used by the court only when it allowed the scope of article 6 to be extended in relation to domestic law (the european concept the internal qualification, plus the elements added by the court, can now be asked whether this is still the case (note 9). a large number of matters, non-criminal within the meaning of internal law, have been entered into the scope of article 6; but, also, the european court was able to consider that a sanction which was criminal in domestic law did not fall within the meaning of article 6 of criminal matters (note 10). but the study of the right to a fair trial is not exhausting in the examination of the application of article 6 of the convention made by the european court or in the identification of the obligation imposed by the court on the signatory states to the convention (note 11). by creating bodies responsible for ensuring the proper application of guaranteed rights, the convention has also created an autonomous judicial system, which is obedient to a number of procedural rules, and thus likely to be subject to the requirement of fair trial: because it is the body that ensures a good and uniform application of the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 135 published by scholink inc. convention, because it is at the origin of rules imposing on states, it is obviously necessary for the court to respect the “standards” which considers the author (flecheux, 2000, oct. 25). this is undoubtedly one of the main originalities of the protection of this right in the european order: the right to a fair trial acquires double dimensions. first, the quality of the procedure the european court imposes on the states. second, it is the quality of the european procedure itself. and if this article will be essentially devoted to the first of these dimensions, the richest in developments and frictions of the systems, but also the most conducive to a possible standard voyage, the second will also be mentioned, in the part devoted to the originality of the space. 2. generic concepts of a fair trial in the normative space concerned the generic concept in the european order is, of course, the “right to a fair trial”, which is the title of article 6 in the official text of the convention. the analysis of the guarantee cannot be stopped there: the text of article 6 is made up of different elements, and the court has also considerably enriched this text, either by providing a definition of these elements or by deducting guarantees “implicit”. this text therefore has a “pullout” type of construction: some of its terms have given rise to several rights or principles, defined and delineated by the court, and that internal procedures must respect (beignier & blery, 2001). therefore, only a somewhat precise observation of these elements makes it possible to identify exactly the fair trial which the convention and the european court of human rights protect (genevois, 2001). 2.1 identification the very structure of article 6 identifies two sets of elements of the right to a fair trial: the first paragraph sets out the guarantees enjoyed by any individual in the context of a civil or criminal procedure; the second paragraph is devoted to the special guarantees enjoyed by any person prosecuted in criminal proceedings (note 12). our part dedicated to identifying the elements of the fair trial will take over this structure. 2.1.1 the general guarantees of a fair trial in civil or criminal matters 2.1.1.1 the right to a court established by law the legality of the court is a little problematic in the member states of the council of europe, and is therefore subject to little development in the jurisprudence of the court, which simply states that the words “established by law” are understood as “in accordance with the law”, in particular with regard to the composition of the tribunal (note 13). on the other hand, it should be noted that the judicial-type trial is not exclusive in the meaning of article 6 § 1 as interpreted by the e.c.h.r. the court initially clarified that «the term tribunal only implies that the authority to adjudicate must be judicial in nature, i.e., independent of the executive power as the parties involved; it does not relate in any way to the procedure to be followed» (note 14), then, in a second time, that «no matter (...) the nature (...) of the competent authority (general court, administrative body, etc.)» (note 15), this authority is a “court” within the meaning of article 6 § 1 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 136 published by scholink inc. because «it is independent of the executive as the parties involved, its members shall be appointed for five years and the procedure before it shall provide the necessary guarantees» (note 16). it is now clearly established that “by” a “court”, article 6 § 1 «does not necessarily mean a classic type of court, integrated with the ordinary judicial structures of the country» (note 17). considering that, for the purposes of article 6 § 1, [the regional authority] is a “tribunal” «in the material sense of the term: it is for the court to decide, on the basis of norms of law and at the end of an organized procedure, any matter within its competence» (note 18), the court adopts finally rather classical criteria of the court, and therefore a definition which has as its essential characteristic (unique?) not to take over the internal qualification: on this point there is the question of the autonomy of the concepts referred to above, and attachment to a substantive definition of the tribunal ultimately confirms the tendency to consider that the scope of the fair trial is not enclosed within strict limits defined, a priori, by the states. in any case, this excludes that a criterion ratione personae limits the scope of article 6: it is not because the body making the decision is not a court “classical”, i.e., in the sense of domestic law, which it is not subject to the european requirements of the fair trial (note 19). the question of access to the tribunal was also raised. the court states that «the right of access is an inherent element of the right set forth in article 6 § 1», which «guarantees everyone the right to have a court know of any challenge relating to its civil rights and obligations. it thus devotes the “right to a court”, who’s right of access, namely the right to bring the court in civil matters, is only one aspect» (note 20). it subsequently clarified that any possible waiver of this right to a court (e.g., by setting a fine or paying amicable settlement) must be made without constraint and unequivocally, emphasizing «that “the right to a court” is (...) too much importance in a democratic society (...) for a person to lose the benefit by that alone that he or she has subscribed to a prejudicial arrangement»; «among the conditions to be fulfilled [by such a prejudicial arrangement, in this case, the payment of a lump-sum fine] is in any case the absence of coercion» (note 21). the right to a court includes, to a certain extent, the right to appeal: if article 6 does not guarantee the double degree of jurisdiction “protected by article 7 of protocol no. 4” (sudre, 2001), the court has nonetheless considered that by depriving individuals of the exercise of a remedy, the state had deprived them of access to a court (fabre, 1998). access to the tribunal has an obvious financial aspect and raises the question of legal aid. as regards «protest against civil rights and obligations», the convention does not oblige states to organize a system of legal aid, but to make effective the right of access to the court: «article 6 § 1, if it guarantees to litigants an effective right of access to the courts for decisions relating to their “civil rights and obligations”, leaves to the state the choice of means to be used for this purpose»; «however, [...] article 6 § 1 may sometimes compel the state to provide assistance to a member of the bar when it proves indispensable to effective access to the judge, either because the law prescribes representation by a lawyer, as the national legislation of certain contracting states does for various categories of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 137 published by scholink inc. litigation, either because complexity of the procedure or cause» (note 22). in criminal matters, free assistance by a lawyer is expressly provided for in article 6 § 3 (c), “where the interests of justice so require”. 2.1.1.2 the fairness of the procedure the term “fairly” gave rise to several principles, kinds of “implicit” procedural guarantees in article 6 (sudre, 2001). let’s note, before detailing these different principles, that this is a perfect example of the mechanism of article 6: a multi-level source concept, this guarantee is a set of sub-guarantees, which constitute as many subsets, and which, themselves, group together other “sub-sub-guarantees”; all can be detailed and developed at will... thus, it is the principle of equality of arms, a fundamental guarantee of fair trial, which arises from the requirement of article 6 § 1 that the case be “heard fairly”. this principle requires that «any party to a [civil or criminal] action shall have a reasonable opportunity to expose its case to the court under conditions which do not in any appreciable way disadvantage the opposing party» (didier, & melin-soucramanien, 1993). in criminal terms, this principle imposes a balance between the person prosecuted and the crown, but also between the accused and the civil party (harris, o’boyle, & warbick, 2009). also arise from the requirement of fairness of the procedure, the principle of the contradictory, which requires the judge to ensure that all the elements of the dispute are the subject of a debate between the parties, and which the court says is «one of the main guarantees of judicial proceedings» (note 23), and the obligation to motivate decisions of justice, on which the court points out that« article 6 § 1 obliges the courts to motivate their decisions, but it cannot be understood as requiring a detailed answer to each argument. similarly, the european court is not called upon to investigate whether the arguments have been adequately addressed» (note 24). the same applies to the right to appear in person, which, if it is particularly concerned with the criminal trial, is not wholly absent in civil matters when the character or behavior of one of the parties strongly contributes to forming the opinion of the court, and that the principle of fairness of evidence: the law of evidence (burden, probative force, admissibility...) is in principle a matter for the assessment of states (note 25), but the court considers that it «must, however, seek whether the evidence relating to the prosecution against the claimants had been collected in a manner that would ensure a fair trial» (note 26). if the european court is not in favor of fraudulent or illegal evidence, this illegality is not necessarily (mole & harby, 2006), a violation of the guarantees of article 6, if the element so proved was otherwise corroborated by other elements regularly collected (calvo-goller, 2006, p. 46): «the court cannot therefore, exclude in principle and in abstract to the admissibility of evidence collected in an illegal manner, of the kind in question. it is only up to the court to find out whether the trial [...] has generally presented a fair character » (note 27); «the court also attaches weight to the fact that the telephone registration was not the only means of proof to motivate the conviction » (note 28). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 138 published by scholink inc. 2.1.1.3 publicity of the procedure the publicity of the proceedings (debates and pronouncements of the decision) is «a fundamental principle enshrined in article 6 § 1. the said advertisement protects litigants against a secret justice beyond the control of the public; it is also one of the ways to help maintain confidence in the courts and tribunals. by the transparency it gives to the administration of justice, it helps to achieve the purpose of article 6 § 1: the fair trial, the guarantee of which is one of the principles of any democratic society within the meaning of the convention» (note 29). the principle of publicity of the procedure may have certain limitations, provided for in article 6 § 1, second sentence, which concerns the conduct of proceedings before the judge. these flexibilities to the principle of publicity of the debates were admitted by the court also with regard to the pronouncement of the public decisions: either that the judgments of the courts inferior to the image of the revision were made publicly (note 30), or that access of the public to this decision was ensured by other means, such as the possibility of requesting a copy of the judgment at the court registry and its subsequent publication in an official compendium of jurisprudence (note 31)... in any event, there may be a waiver of the publicity of the proceedings on the part of the litigant, provided once again that this renunciation is made unequivocally: «neither the letter nor the spirit of [article 6 § 1] precludes a person from voluntarily waiving it in an express or tacit manner, but such renunciation must be unequivocal and shall not be subject to any significant public interest» (note 32). 2.1.1.4 the reasonable time the court appreciates the reasonableness of the delay in terms of the complexity of the case, the conduct of the applicant and the attitude of the public authorities (note 33). it should be noted that, with regard to “civil rights and obligations”, the time limit is taken into account from the referral of the judge to the end of the proceedings, including remedies. as far as “criminal charges” (flauss, 1991) are concerned, the time limit runs from the day on which suspicions of the litigant have an effect on his or her legal situation, namely from the moment a person is “accused”; this may be a date prior to the referral of the court of judgment […], including the arrest, indictment and initiation of preliminary investigations […]. the “accusation” within the meaning of article 6 § 1, may be defined as “the official notification, emanating from the competent authority, of the reproach of having carried out a criminal offence”, an idea which also corresponds to the concept of “significant impact on the situation of the suspect” (note 34). «article 6 § 1 also indicates as a final term the judgment on the merits of the charge, which may extend to a decision of a court of appeal when it decides on the merits of the charge» (note 35). 2.1.1.5 the independence of the court independence is appreciated in relation to executive power as to the parties involved. the court’s method of assessment is clearly stated: «in order to establish whether an organ can be considered as independent, it chet to take into account, inter alia, the method of appointment and the duration of the mandate of its members, the existence of protection against external pressures and whether or not there www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 139 published by scholink inc. is the appearance of independence» (note 36). for an illustration of the lack of independence: «once a court counts among its members a person who is, as in this case, in a state of subordination of functions and services in relation to one of the parties, litigants may legitimately doubt the independence of that person (lambert, 1991). such a situation seriously underscores the confidence that the courts must inspire in a democratic society» (note 37). 2.1.1.6 the impartiality of the tribunal the european judge draws a distinction between objective and subjective impartiality (the terms of personal and functional impartiality have been proposed) (koering, 1998, p. 1). subjective, or personal, impartiality corresponds to what the judge may think in his or her interior; she’s presumed (frison-roche, 1999). objective or functional impartiality leads to the question of the objective indices suggesting that the judge has a priori on the dispute that he must decide (autin & sudre, 1996). it is appreciated on a case-by-case basis, but in an almost constant way through the prism of the appearance of justice, the court applying a principle of english law: «justice must not only be done, it must also be seen to be done». a doctrine directly flows from the english jurisprudence (note 38). among the objective indices of impartiality is the question of the cumulating of different functions in the same procedure: cumulating of the functions of prosecution and instruction, prosecution and judgment, instruction and judgment, or consultative and adjudicative... such cumulating is in principle prohibited (note 39), but certain flexibilities are allowed because of the minimal role of the magistrate in exercising one of the cumulative functions (spielmann, 1996): «the fear that the trial court may not have been impartial is based on the fact that one of the judges interviewed witnesses during the pre-trial. undoubtedly, such a situation may arouse doubts in the accused about the impartiality of the judge, but they cannot be regarded as objectively justified only according to the circumstances of the case; that a trial judge had already had to deal with the case before the trial could not in itself justify apprehensions as to his impartiality» (note 40). or, «that a trial judge or a court of appeal, in a system such as danish, has already made pre-trial decisions, in particular with regard to remand detention, cannot, therefore, be able to justify apprehensions of impartiality in itself» (note 41), «except, as in the case at bar, if the decision on pre-trial detention involved ensuring the existence of particularly strong suspicions» (note 42). in addition to the problem of cumulating of duties, the requirement of impartiality also raised the issue of the deliberate participation of bodies or persons involved in the proceedings, but without being qualified, within the meaning of their domestic law, as “party to the procedure” (goyet, 2001). we are, of course, considering the case of the government commissioners before the french council of state, which was the subject of the so famous and commented judgment kress v. france rendered on june 7, 2001 (flauss, 2001). the court condemned france for lack of impartiality of the tribunal, believing it conceivable «that a litigant might experience a sense of inequality if, after hearing the commissioner’s conclusions in a way unfavorable to his thesis at the end of the hearing public, he sees him withdraw with the judges of the judgment formation in order to attend the deliberate in the secret of the chamber www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 140 published by scholink inc. of the council» (note 43). this after having found, however, in the immediately preceding sentence, that «an unbroken litigant in the arcane of administrative justice may quite naturally tend to regard as an adversary a government commissioner who for the dismissal of his appeal (chabanol, 2002). on the contrary, it is true; a litigant who would see his thesis supported by the commissioner would perceive him as his ally» (note 44). if one can only praise the will of the court to strengthen «the confidence that the courts inspire to litigants in a democratic society» (note 45), it is possible, on reading this paragraph, to question the limits it sets to this requirement of objective impartiality, and the repository it uses to assess its infringement (rolin, 2001). 2.1.2 specific safeguards for criminal matters article 6, in paragraphs 2 and 3, specifies the guarantees enjoyed by “any accused person” (§ 2) or “any accused” (§ 3). the presumption of innocence, article 6 § 2, implies that the burden of proof weighs on the charge. it is necessary for the judge (all litigants must have the possibility to explain themselves and possibly provide counter-evidence), but also to some extent to private persons (especially journalists). the right to be informed, as soon as possible, of the nature and cause of the accusation, is provided for in article 6 § 3 (a). the right to have the time and facilities necessary for its defense, article 6 § 3 (b), implies a right of access to the file, through a lawyer or directly by the accused directly if he has chosen to defend himself (note 46). the convention also provides for the right to defend itself, oneself or with the assistance of a lawyer of his choice, article 6 § 3 (c), and the right to witnesses, article 6 § 3 (d), the right to summon, interrogate or interrogate witnesses at a charge or a discharge. the right to an interpreter, provided for in § 3 (e), «includes, for any person who does not speak or understand the language used at the hearing, the right to be assisted free of charge by an interpreter without being able to be claimed after the payment of the costs resulting from that assistance» (note 47). finally, the court, without specifying what part of article 6 it is based on, nevertheless stresses that «there is no doubt that, even if article 6 of the convention does not expressly mention it, the right to remain silent during police interrogation and the right to not contributing to its own incrimination are generally accepted international norms which are at the heart of the concept of a fair trial enshrined in article 6» (note 48), thus incorporating the right to silence in the guarantees protected by article 6. 2.2 sanction the transgression here is a violation of the requirements of article 6 by the internal courts of the member states and found by the european court. this litigation is, in the first place, essentially declaratory: the court has before any vocation to observe the violation of a right guaranteed by the convention or one of its additional protocols (matscher, 1997). but the convention also imposes on states the obligation to draw the consequences of a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 141 published by scholink inc. conviction for their internal order, and to erase, for the applicant (and for him alone), the consequences of a violation of a right guaranteed by the convention (moderne, 1997). article 41 (former article 50) providing that “if domestic law [...] only imperfectly erases the consequences of this breach, the court grants to the injured party, where appropriate, a fair satisfaction”, this litigation also acquires a large indemnity dimension, the applicants obtaining then financial compensation for the damage suffered as a result of the violation (commaret, 1998). it should be noted that a conviction or the extreme likelihood of a conviction effectively often leads states to change their right or internal practices (note 49). nevertheless, a conviction pronounced by the european court may have another consequence: it should be noted that many signatory states to the convention have “or have had to” (lambert, 1999) established procedures for the review of trials following a conviction by the court for violation of a right guaranteed by the convention. thus, a conviction handed down by the internal courts at the end of a procedure judged then unfair by the european court could then be re-examined in the context of a new procedure, at the request, most often, of the litigant concerned. one can therefore, wonder about the real value of the decisions of the european court of human rights in the matter of fair trial, and whether the european litigation, at least in this area, does not evolve from a relief role towards litigation of the validity of the sanction... it should be noted that the right to a fair trial is not a right to a particular model of the trial. the european fair trial is limited to an obligation on the part of the national authorities to allow litigants to benefit from a fair trial, it does not oblige states to adopt procedural mechanisms whose structures and operation would have been defined in strasbourg (bonichot & abraham, 1998). 3. origin of concepts in space and time 3.1 reception it is not possible to identify “reception” in the proper sense with regard to the right of the european convention on human rights. there are some influences in the text of the convention, and the interpretations made by the court are often reminiscent of concepts in a particular legal order, but this is never a pure and simple transfer to the european order of human rights. this is much more a source of concepts (and especially in the matter of fair trial, for which it seems even to have become a “order-reference”) than a reception order. the study of the preparatory work of the convention reveals the extent to which its elaboration was a work of confrontation (and negotiation) between legal systems and very different concepts, which probably limited the possibility (or temptation?) for a system or a right to impose beyond its own designs. similarly, the concepts developed by the court, even though they sometimes seem to be strongly influenced by a particular influence, are equally imbued with autonomy: it is impossible for the court to reconcile often very different systems and concepts, either willingness on its part to mark its autonomy, each of the elements of the fair trial is interpreted by the court in a largely independent www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 142 published by scholink inc. way from internal definitions and conceptions. thus, if one can sometimes talk about the influence of a right (internal or international) on theeuropeanhuman rights law, or similarities between this or that internal conception of the fair trial and the european definition, the terms “source of inspiration” seem to us to be closer to what actually translates into the decisions of the court that the idea of reception. the influences in question will therefore, be studied as buckles and not as receptions (lambert, 1996). 3.2 warping 3.2.1 with regard to the text of article 6 e.c.h.r. it should be noted that there is a strong similarity between the text of article 6 of the convention and two other international texts: article 10 of the universal declaration of human rights (note 50) and article 14 of the international covenant on civil and policies. the reference to article 10 of the universal declaration is present at the first session of the council of europe consultative assembly. the work of elaborating a convention was initially entrusted to the legal and administrative affairs committee of this house. in his draft report, submitted to the commission at its meeting on 5 september 1949, mr. teitgen cites article 10 of the declaration as part of the rights and freedoms to be guaranteed in full: the same draft report stresses that «the commission considered that it was appropriate (both for the sake of coordinating the action of the council of europe and that of the united nations, that because of the moral authority and the technical value of the document in question) to use as much as possible the definitions provided by the universal declaration of human rights». but, immediately thereafter, it «was clarified, however, that by referring to a particular article of the united nations declaration, in order to better define such or such freedom, the resolution adopted by the commission did not intend to refer to all provisions of the article concerned, but only to those which set the content of the freedom referred to in that resolution» (council of europe, 2003). the first reference to the work on the elaboration of the international covenant on civil and political rights, now underway at the o.u.n, intervenes in 1950, in the preparatory report of the general secretariat for a preliminary draft convention. although it has often been said that the convention is directly inspired by the universal declaration of human rights, the parallel with the covenant must not be neglected. the drafters of the european convention had, at the very time they were working on the drafting of the convention, knowledge of the work in progress at the o.u.n. for the elaboration of this pact. it should be noted that, however, in relation to article 14 of the covenant, the general reference to “reasonable time” (present in the covenant in respect of only those accused of a criminal offence, § 3 (c). 3.2.2 on the definition of the elements of the fair trial beyond the influences that the text of article 6 may have undergone, the jurisprudence of the court is also marked by various influences, most often difficult to identify (weissbrodt, 2001). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 143 published by scholink inc. here, the migration sought is then a migration of an internal right to european law. in particular with regard to article 6, although the influences are unclear, there is a kind of consensus (at least in france) to consider that this text is imbued with english (note 51) concepts. several clues seem to support this idea (kriegk, 2000). in the first place, it should be noted that many elements of the fair trial (in the european sense), as studied in the first part, are much more familiar and older in the english system than in other internal systems. it is thus clear that there are similarities between the european system and the english system, similarities which are not found, at least in relation to article 6, the equivalent with the romano-germanic systems (renucci, 2002, p. 480). that is the case with the definition of the tribunal. beyond the necessary autonomy of the european definition, it can only be seen that the material conception adopted by the european court is closer to the anglo-saxon conception which envisages the trial as any contentious procedure initiated before an authority, whatever it may be. similarly, these elements are found in the anglo-saxon logic which does not generally distinguish between the “trial” (process or procedure), in order to apply to them the guarantees of fair trial, depending on whether they fall within the concept of natural justice or fair procedure (flauss, 1995). this kind of similarity is also found with regard to the fairness of the procedure, and the very approach which governs this principle: the pullout construction of this principle in the jurisprudence of the european court is done by virtue of a very close argument of that of the british judges. like the european fair trial, natural justice is a concept-source. if in france there has been a question of general principles of law, this notion is not confused with the previous ones. the pullout construction devoting the idea of multiplicity of a single principle is less openly apparent in the french theory of the general principles of jurisprudential origin. the anglo-saxon influence thus seems very probable, to simply consider the very model of formation of the rule of law at common law. the idea of progression of the right by incrementing implies the emergence of various rules, constituting a single principle surviving the time-consuming and thus finding application in each case (compernolle, 1994). more than a concept with varying content, the fair trial, in the image of natural justice, presents itself as a concept of potential content, and therefore progressive. in the european system, as in the english system, the main merit of the text is the designation; it is then up to the judge to specify the contents. since the principle of permissible enunciation is rational, the judge will have to abide by the rules of reason and intelligibility; in other words to the only rule of coherence (trechsel, 2005). according to this theory, the fair trial as well as the natural justiceis only expanding over the course of the cases. they only make themselves clear even if they expand and occupy new fields. the only constraint being of the logic of rational nature, the constitutive rules gradually specifying the content of the fair trial should not contradict each other. admitting that the fair trial of the e.c.h.r. evolves in the context thus described, one can understand the notion as developed (it is the term commonly used!) by the judge of strasbourg as the continuation of the novel begun many www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 144 published by scholink inc. centuries ago by the british judge. this may be an interpretation that explains the heavy kinship between section 6 § 1 e.c.h.r. and the common law, which is so difficult to get out of. this kinship would therefore go so far as to form the constitutive rules of the general principle itself (velu & ergec, 1990, p. 701). finally, there is again a kinship with regard to the independence and impartiality of the court: in its assessment of these two elements, the european court openly, and almost systematically, reiterates the english adage already quoted which wants “justice must not only be done, it must also be seen to be done” (benoit-rohmer, 1997). at the same time, certain aspects of the right to a fair trial in europe seem entirely new to the french law (taken here as an example of romano-germanic law): this is the case for example of the principle of equality of arms: it is a novelty in law french. the same goes for the question of the reasonable time, unknown in french criminal law before the development of the law of the european convention (note 52), or the right to silence, now enshrined in certain procedural guarantees (note 53). it should also be noted that, without any mention of transfer, but always and at the most influential or inspiring, the court sometimes consults, in its work of defining an element of the fair trial, other international instruments. more often than not, it proceeds to enrich or clarify a particular element of the fair trial. therefore, these instruments, if they are not directly at the origin of the standard so defined, nevertheless participate in its elaboration (pettiti, decaux, & imbert, 1999, p. 340). thus, in the golder case v. the united kingdom, and on the particular point of access to court, the court refers to the vienna convention in order to draw a kind of general principle of law (le gloan, 1999): «the thesis presented to the court focused first on the method to be followed for the interpretation of the convention and in particular article 6 § 1. the court is prepared to consider, with the government and the commission, that it is appropriate for it to draw inspiration from articles 31 to 33 of the vienna convention of 23 may 1969 on the law of treaties. this convention is not yet in force and it states in article 4 that it does not be retroactive, but its articles 31 to 33 lay down, for the most part, the rules of international law commonly accepted and to which the court has already resorted. as such, they are taken into account for the interpretation of the european convention, subject, where appropriate, to “any relevant rules of the organization” in which it was adopted, the council of europe (article 5 of the vienna convention)» (note 54). another example is provided by the john murray case against the united kingdom, in which the court, on the right to silence, cites an argument developed by amnesty international, which is based itself on instruments international: «amnesty international argues that allowing unfavorable conclusions to be drawn from the silence of the accused is an effective means of coercion that drags the burden of proof of the charge on the accused and is inconsistent with the right not to be obliged to confess guilt or testify against oneself; the accused, in effect, would not be left with any reasonable choice between being silent—which will be considered a testimony to be charged—and testifying. the organization stresses that article 14 § 3 g) of the united nations international covenant on civil and political rights www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 145 published by scholink inc. expressly provides that the accused “cannot be compelled to testify or confess guilty”. it also refers, on the one hand, to article 42 (a) of the rules of procedure and evidence of the international tribunal for the former yugoslavia, which expressly provides that the suspect has the right to remain silent and, on the other hand, to the draft statute of a court criminal law, submitted to the general assembly of the united nations by the international law commission which, in draft article 26 § 6 a)i), clarifies the right to silence: “without such silence being taken into account in determining [the] guilt or innocence of the suspect”» (note 55). 4. the originality of the normative space: the double problem of the fair trial in the european human rights area the main characteristic of the european order of human rights, especially with regard to the protection of the fair trial, is of course its referential dimension. the guarantee defined by the convention and the court, which is comprehensive, complex and constantly evolving, has become the essential reference for any study on the fair trial. it may even be asked to what extent it has not become the standard measure of the “evenness” of the trial (canivet, 2001). in addition to the resistance of national systems and the reluctance to deal with certain decisions in sometimes sensitive areas, it must be noted that european reflection is self-imposed in terms of procedural rights, to the point of become a reflex. so much so that it now seems difficult to conceive the guarantees of a fair trial without making this reference, and especially without being absorbed by european definitions and conceptions (guinchard, bandrac, lagarde, & douchy, 2001, p. 620). but another aspect is also very specific to the european guarantee of fair trial, it is its double dimension: the european court of human rights can condemn states whose internal procedures would not conform to the european guarantee of the fair trial, but it does so at the end of a decision-making process which itself is a procedure. it is therefore not pointless to try to assess the extent to which this european procedure is itself in conformity with the guarantee laid down by the convention, or, in other words, to what extent the court itself is subject to the requirements which it imposes on respect to the states (note 56). title 2 (note 57) of the convention is entirely devoted to the court, and certain procedural elements are specified therein. article 21 § 2 provides that «judges sit in the court on an individual basis. during their term of office, they may not exercise any activity incompatible with the requirements of independence, impartiality or availability required by a full-time activity (...) » (note 58). article 27 provides that «the judge elected in respect of a state party to the dispute shall be a member of the law of the chamber and the grand chamber; in the event of the absence of that judge, or where he is unable to sit, that state party shall designate a person who sits as a judge». finally, section 40 provides that «the hearing shall be public unless the court decides otherwise by reason of exceptional circumstances», and that «the documents filed in the registry are accessible to the public unless the president of the court decides otherwise» (marston, 1993). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 146 published by scholink inc. but it is in the court’s rules of procedure that we find the most precise rules relating to the conduct of the proceedings. this regulation is adopted by the court, meeting in plenary (article 26 (d) of the convention). it is thus the court itself which adopts the procedural rules which it will then have to submit to. the first rules of procedure were adopted in 1960 and then renewed in 1977 and 1983. the current regulations have been in force since 1st november, 1998. there is a great deal of dynamism in the evolution of the rules of the court: it has become increasingly concerned to frame its own procedure in principles similar to the constituent elements of the fair trial studied in the first part, and the regulations were therefore more and more complete and precise (kastanas, 1996, p. 130). this dynamism was sometimes integration into this text of practices initiated by the commission. thus, in the face of the inability of the applicant to be associated with the hearing before the court, the commission’s use was to rely on article 61 of the rules of procedure (of 1977) to communicate to the applicant his report, yet in principle confidential, and to invite him to comment (autin & sudre, 1996). it was based in parallel on article 29 § 1, first sentence, which provided that the delegates of the commission could, if they so wished, “be assisted by any person of their choice”, in order to intervene in the proceedings before the court representative of the applicant (note 59), sometimes the applicant himself (note 60). these two processes, which were intended to correct the absence of contradictory in the european procedure, were the object of protests by the governments concerned, but were authorized by the court. it even incorporated them into its regulation of 1983, article 33 of which provided that the registrar of the court should communicate any introductory document and a copy of the commission’s report to the “natural person, non-governmental organization or group of persons who had seized the commission, and invited him to indicate whether he wished to “participate in the proceedings pending before the court” and, if so, “the names and addresses of the person designated by him” to represent him (canivet, 1995). after a series of such additions to the regulations, the one entered into force on 1st november, 1998 presents a relatively complete inventory of a fair trial guarantees (note 61). the regulation provides for a system of judicial assistance in chapter 10 (art. 91 to 96), which, as we have seen in the first part, participates in the access to the court and therefore the right to the court. such assistance shall be granted by the president of the chamber, either by office or at the request of the applicant (art. 91), if it is found that «the granting of such assistance is necessary for the proper conduct of the case before the chamber» and that «the applicant does not have sufficient financial means to deal with all or part of the costs it is required to expose» (art. 92). there are a number of rules which are similar to those which would fall within the scope of article 6 of the convention as a fair procedure. with the entry into force of protocol no. 11, the question raised above the applicant’s participation in the court hearing, which had been partially settled with the 1983 regulation, does not even seem to arise: once the commission’s filter deleted, and the court is now seized directly, it would have been relatively strange that this participation still raises the question (quillere-majzoub, 1999, p. 118). and, as well, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 147 published by scholink inc. his principle now seems to be admitted once and for all. thus article 36 organizes directly the representation of the applicant at the hearing before the court, even providing, in paragraph 2 (c), that «in exceptional circumstances and at any time of the proceedings, the president of the house may consider that the circumstances or conduct of the council (...) warrant it, that such lawyer or person may no longer represent or assist the applicant and that he must seek another representative»; this is not to allow the court interference with the representation of the applicant, but to guarantee the quality of the representation of the petitioner (haim, 1999). the publicity of the procedure is the subject of article 40 of the convention, several sections of the regulation. article 33: first, it contains the provisions of article 40 of the convention. it states in its first paragraph that «the hearing shall be public, unless, under paragraph 2 of this article, the board decides otherwise by reason of exceptional circumstances, either by office or at the request of a party or any other interested person», a number of exceptions are immediately provided for in paragraph 2: «access to the room may be prohibited to the press and the public during all or part of the hearing, in the interest of morality, public order or security in a democratic society, where the interests of minors or the protection of the privacy of the parties so require, or to the extent deemed strictly necessary by the house, when, in special circumstances, advertising is to nature to undermine the interests of justice» (jacob, 1996). perfect identity between the grounds for restriction of the advertisement in this text and those provided for in article 6 § 1 of the convention... the rules relating to the procedure before the court, contained in paragraph 3 of that article, even organize wider publicity than doesn’t article 6 of the convention. it is indeed stated that: «all the documents filed in the registry in the case, with the exception of those submitted in the context of negotiations to reach a settlement (...) shall be accessible to the public, unless the president of the house decides otherwise for the reasons given in paragraph 2 of this article, either by office or at the request of any party or any other person concerned». finally, section 76 provides that «the court shall make all its judgments in either english or french unless it decides to make a judgment in both official languages». once pronounced, the judgments are accessible to the public», the publication taking place, in principle, «in the two official languages of the court, section 77 specifying that a “judgment” may be read in a public hearing by the speaker of the house or by another judge delegated by him». the independence and impartiality of judges is also the subjects of several provisions. article 3 § 1 requires each judge, when taking office, to take the oath, or solemn declaration, that he shall perform his duties as a judge «with honor, independence, and impartiality». this article is supplemented by article 4, which reproduces article 21 § 3 of the convention in order to provide that «judges may not exercise during their term of office any political or administrative activity or any professional activity incompatible with their duty of independence and impartiality (...). each judge shall declare to the president of the court any additional activity. in case of disagreement between the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 148 published by scholink inc. latter and the person concerned, any question raised shall be decided by the court of first instance» (grotian, 2007). paragraph 2 of article 28 provides that «no judge may participate in the examination of a case in which he is personally interested or has previously intervened either as an agent, counsel or adviser to a party or a person with an interest in the matter, either as a member of a tribunal or a commission of inquiry, or to any other title», and in paragraph 3 that «if the president of the house considers that there is a reason for deportation in the person of a judge, he confronts his views with those of the party concerned; in case of disagreement, the chamber shall decide». 5. second effects of the fair trial with the application of the safeguards of article 6 to areas which were not considered, in domestic law, as falling within “civil rights and obligations” or “criminal charges”, certain areas of procedure, considered at the national level as non-contentious, have entered into force in the scope of article 6 § 1 “see, for example, proceedings before the administrative authorities independent” (rolin, 1998, p. 1). accordingly, the rules of the fair trial of article 6 of the convention apply to them, although they were not necessarily respected (publicity of the proceedings with regard to the ordinal procedures; impartiality of the court “in report in particular with the participation of the reporter in the deliberate procedure) in the procedures for sanctioning independent administrative authorities…” (pretot, 1995). it is often argued that this application of the requirements of the fair trial has as a first consequence a risk of lengthening the time limits: by depriving the “jurisdiction” of certain technical skills acquired during another phase of the case (the reporter or the government commissioner, familiar with the technical aspects of the case, were likely to bring this knowledge to the judge upon their participation in the deliberations), the court obliges it to acquire itself these which slows down the judgment, even though the reasonableness of the delay is an element of the fair trial. moreover, there is a development of a “litigation of litigation”: the procedure itself becomes the subject of a procedure, within a procedure on a substantial right, which further lengthens the first procedure... 6. conclusion the court of strasbourg behaves as an additional degree of jurisdiction, at least as a body for controlling the decisions of the internal judge, and by inviting (a request), if it deems it to do so, it inflicts on the latter repudiation. according to the court, the right to a “fair trial” is only the procession translation of the principle of rule of law contained in the preamble to the convention, and as such it is inserted “among the fundamental principles of any democracy”. thus promoted to the rank of standard of reference of a democratic society, article 6 became the provision whose violation is most often alleged. however, “the formula used by article 6-1 which is far from perfectly clear (and which is not absolutely identical in english and french)...” has generated extensive commentary and complex jurisprudential developments. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 149 published by scholink inc. references autin, j. l., & sudre, f. 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(1995, march 24). le contentieux administratif face à l’article 6 §1 de la convention européenne des droits de l’homme. les petites affiches, 36, 11-19. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 151 published by scholink inc. pretot, x. (1995, may 11). l’indépendance du juge à l’égard du pouvoir exécutif au regard des stipulations de la convention européenne des droits de l’homme. dalloz, 19, 273-276. canivet, g. (1995, july 1). l’obligation du procès équitable et les règles du contradictoire dans les procédures de sanction en matière de concurrence. revue de la concurrence et de la consommation, 86, 37-43. spielmann, d. (1996, april 1). le conseil d’état luxembourgeois après l’arrêt procola de la cour européenne des droits de l’homme. r.t.d.h., 26, 271-299. le gall, j. p. (1996, july 4). a quel moment le contradictoire? gaz. pal., doct., 691-696. lambert, p. 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(1998, oct. 8). les restrictions au bénéfice de l’aide juridictionnelle remises en causes par la convention européenne des droits de l’homme. dalloz, 35, 1-9. bonichot, j. c., & abraham, r. (1998, nov. 4). le commissaire du gouvernement dans la juridiction administrative et la convention européenne des droits de l’homme. j.c.p. éd. g., 45-46, i-176. haim, v. (1999, may 13). le commissaire du gouvernement et le respect du contradictoire. dalloz, chr., 201-204. autin, j. l., & sudre, f. (1999, august 1). la dualité fonctionnelle du conseil d’état en question devant la cour européenne des droits de l’homme. preuves, 4, 777-796. kriegk, j. f. (2000, july 12). l’impartialité, contrepartie exigeante de l’indépendance. les petites affiches, 137, 5-8. flecheux, g. (2000, oct. 25). la judiciarisation de la société. in les nouveaux enjeux de la justice, colloque de l’association droit et démocratie, sénat, 31 mars 2000, les petites affiches, 213, 58-59. sudre, f. (2001, july 11). a propos du dynamisme interprétatif de la cour européenne des droits de l’homme. j.c.p. éd. gén., 28, 1365-1368. flauss, j. f. (2001, oct. 3). la double lecture de l’arrêt kress c. france. les petites affiches, 197, 13-21. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 152 published by scholink inc. mole, n., & harby, c. (2006, august). the right to a fair trial: a guide to the implementation of article 6 of the european convention on human rights, human rights handbooks. council of europe (3). retrieved april 10, 2019, from https://www.refworld.org/docid/49f180362.html european court of human rights. (2018, dec. 31). guide on article 6 of the european convention on human rights-right to a fair trial (criminal limb). retrieved april 5, 2019, from https://www.echr.coe.int/documents/guide_art_6_criminal_eng.pdf weissbrodt, d. (2001). the right to a fair trial: articles 8, 10 and 11 of the universal declaration of human rights. the hague: kluwer law. notes note 1. the term “jurisdictional” must be heard here in the sense, which will be clarified further, as given by the european court. note 2. the summary tables of business objects, established each year since 1999 by the services of the court, show that in the last 3 years the vast majority of judgments pronounced by the court concerned art. 6: a violation of the provisions of this article was alleged in 131 of the 177 cases decided in 1999, or in 74% of the court’s decisions that year; it was invoked in 81% of cases decided in 2000 (565 decisions out of 695), and in almost 70% in 2001 (615 decisions on 888). note 3. e.c.h.r., könig v. germany, 28 june 1978, series a no. 27; e.c.h.r., ringeisen v. austria, 16 july 1971, series a no. 13. note 4. e.c.h.r., lombardo v. italy, 26 november 1992, series a no. 249-c. note 5. e.c.h.r., scuderi v. italy, 24 august 1993, series a no. 265-a. note 6. e.c.h.r., golder v. united kingdom, 21 february 1975, series a no. 18; boulois c. luxembourg, [gc], no. 37575/04, e.c.h.r. 2012. note 7. e.c.h.r., engel v. the netherlands, 8 june 1976, series a no. 22. note 8. e.c.h.r., albert and le compte v. belgium, 10 february 1983, series a no. 58. note 9. e.c.h.r., moullet v. france, no. 27521/04, 13 september, 2007. note 10. e.c.h.r., escoubet v. belgium, 28 october 1999, reports of judgments and decisions 1999-vii. note 11. e.c.h.r., suküt v. turkey, no. 59773/00, 11 september 2007. note 12. e.c.h.r., a. menarini diagnostics s.r.l. v. italy, no. 43509/08, 27 september 2011, §§ 63-67. note 13. e.c.h.r., zubac v. croatia [gc], no. 40160/12, 5 april 2018, § 76 ; le gall j.-p., «a quel moment le contradictoire?», gaz. pal., 1996 (4 juill.), doct., pp. 691-696. note 14. e.c.h.r., neumeister v. austria, 27 june 1968, series a no. 8, § 24. note 15. e.c.h.r., ringeisen v. austria, 16 july 1971, series a no. 13, § 94. note 16. same case, § 95 of the judgment. note 17. e.c.h.r., campbell et fell c. royaume-uni, 28 juin 1984, série a no. 80 § 76. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 153 published by scholink inc. note 18. e.c.h.r., sramek v. austria, 22 october 1984, series a no. 84, § 36. note 19. eissen m.-a., «la cour européenne des droits de l’homme», r.d.p., 1986, pp. 1539-1598. note 20. e.c.h.r., golder v. united kingdom, 21 february 1975, prev., § 36. note 21. e.c.h.r., deweer v. belgium, 27 february 1980, series a no. 35, § 49. note 22. e.c.h.r., airey v. ireland, 9 oct. 1979, series a no. 32, § 26. note 23. e.c.h.r., feldbrugge v. the netherlands, 29 may 1986, series a no. 99, § 44. note 24. e.c.h.r., van de hurk v. the netherlands, 19 april 1994, series a no. 288, § 61. note 25. see for example the cases colozza v. italy, 12 february 1985, series a no. 89, and f.c.b. v. italy, series a no. 208-b, 28 august 1991. note 26. e.c.h.r., barberà, messegué and jabardo v. spain, 6 december 1988, series a no. 146, § 83. note 27. e.c.h.r., schenk v. suisse, 12 juillet 1988, série a no. 140, § 46. note 28. same case, § 48. note 29. e.c.h.r., werner v. austria, 24 november 1997, ecr 1997-vii, § 45. note 30. e.c.h.r., axen v. germany, 8 december 1983, series a no. 72, § 32. note 31. e.c.h.r., sutter v. switzerland, 22 february 1984, serial a no. 74, § 34. note 32. e.c.h.r., häkansson and sturesson v. sweden, 21 february 1990, series a no. 171-a, § 66. note 33. the term “criteria” is often used in relation to the method that the court uses to assess the reasonable time. this is, however, more of an assessment by “cluster of clues” than criteria in the strict sense. note 34. e.c.h.r., eckle v. germany, 15 july 1982, series a no. 51, § 73. note 35. e.c.h.r., neumeister v. austria, 27 june 1968, prev., § 19. note 36. e.c.h.r., langborger v. sweden, 22 june 1989, series a no. 155, § 32. note 37. e.c.h.r., sramek v. austria, 22 octobre 1984, série a n° 84, § 42. note 38. see in particular, e.c.h.r., delcourtv. belgium, 17 january 1970, series ano. 11 (in which this adage is quoted about the independence of the court), e.c.h.r., de cubber v. belgium, 26 october 1984, series a no. 86. note 39. see for example, e.c.h.r., de cubber v. belgium, prev., about the president of a court of assizes having participated in the training; or e.c.h.r., procola v. luxembourg, 28 september 1995, series, a no. 326, on the duality of consultative and judicial functions within the luxembourg state council. note 40. e.c.h.r., bulut v. austria, 22 february 1996, ecr 1996-ii, § 33. note 41. e.c.h.r., hauschildt v. denmark, 24 may 1989, series a n ° 154, § 50. note 42. id. § 52. note 43. e.c.h.r., kress v. france, 7 june 2001, § 81. note 44. e.c.h.r., hauschildt v. denmark, prev. § 50. note 45. classic formula in european jurisprudence, which explains the importance attached to the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 154 published by scholink inc. theory of appearance, see in particular the case of piersackv. austria, 1st october 1982, series a no. 53, § 30. note 46. e.c.h.r., kamasinski v. austria, 19 december 1989, series a no. 168; e.c.h.r., foucher v. france, 18 march 1997, ecr 1997-ii, § 36. note 47. e.c.h.r., luedicke, belkacem and koç v. germany, 28 november 1978, series a no. 29, § 46. note 48. e.c.h.r., john murray v. united kingdom, 8 february 1996, ecr 1996-i, § 45. note 49. examples of the impact of court decisions (see the court’s internet site, http://www.echr.coe.int section “impact of judgments”): campbell and fell v. united kingdom, 28 june 1984 (series a no. 80): «in a letter dated 12 july 1984 to the presidents of the visitors committees, the prisons directorate announced the establishment of judicial assistance before the said committees and an advertisement of decisions of the latter (resolution dh (86) 7 of 27 june 1986)». airey v. ireland, 9 october 1979 (series a no. 32): «a system of judicial assistance and consultation in civil matters has been instituted; its management was entrusted to an independent body, the judicial assistance council, whose first centres were opened on 15 august 1980 (resolution dh (81) 8 of 22 may 1980)». golder v. united kingdom, 21 february 1975 (series a no. 18): «the settlement of the prisons of 1964, in force in england and wales, has been amended. according to the new rules, the authorization requested by an inmate to initiate a civil procedure or to consult a lawyer for this purpose is always granted. in the case of an action against the minister of the interior, the authorization is granted only after an internal investigation of the complaint. instructions were given to apply the new rules to the penitentiary institutions in scotland and northern ireland (resolution (76) 35 of 22 june 1976)». diennetv. france, 26 september 1995 (series a no. 325-a): «art. 13, 15 and 26 of the decree of 26 october 1948 were amended by decree no. 93-181 of 5 february 1993. from now on, hearings before a body of the order of physicians, pronouncing themselves in disciplinary matters, are public, the president being able, however, at the request of one of the parties or the complainant, to prohibit public access to the room; decisions are also public. finally, in its judgment of 14 february 1996 in the maubleu case, the council of state accepted the applicability of article 6 to the ordinal disciplinary courts (resolution dh (97) 352 of 11 july 1997)». findlay v. the united kingdom, 25 february 1997 (ecr 1997-i): «the armed forces act of 1996 entered into force on 1st april 1997. henceforth, the various functions of the convenor officer are assumed by three separate bodies. in addition, each court martial has a judge advocate whose opinion on the points of law binds the court. finally, the role of confirming officer is abolished and a right to appeal against the penalty to the court martial has been introduced (resolution dh (98) 11 of 18 february 1998)». www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 155 published by scholink inc. note 50. «everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him». note 51. it should be noted in particular that no explicit reference to the french conception of the trial is apparent in art. 6. this surely because of the weakness of the generic concepts in french criminal procedure. there would be a vice originating from the french tradition. by default of a global view of the trial, that is, bringing together both the procedural institutions and mechanisms and the rights of individuals, the french criminal procedure would have difficulty in exceeding the model stage (inquisitorial then mixed) and propose concepts that could form a standard with others. note 52. this provision has, inter alia, been integrated, explicitly and with all the criteria adopted by the court, in the litigation of state responsibility for defective functioning of the judicial service through the concept of denial of justice (l 781 coj). it appears since the law of 15 june 2000 in the preliminary article of the french code of criminal procedure (fccp), but without the formula “right to”. note 53. it is one of the rights set out by the police officer to the person in custody—art. 63-1 fccp. note 54. e.c.h.r., golder v. united kingdom, 21 february 1975, prev., § 29. note 55. e.c.h.r., john murray v. united kingdom, prev. § 42. note 56. e.c.h.r., al nashiri v. poland, no. 28761/11, 24 july 2014, §§ 565-569. note 57. art. 19 to 51. n.b.: the titles and articles are quoted here according to the numbering resulting from the entry into force of protocol no. 11. note 58. provision added to the original text of the convention by additional protocol no. 8 of 19 march 1985, entered into force on 1st january 1, 1990. note 59. e.c.h.r., de wilde, ooms and versyp v. belgium, 18 november 1970, series a, no. 12. note 60. see in particular, the cases of schmidt and dahlström v. sweden, 6 february 1976, series a, no. 21; klass et al. v. germany, 6 september 1976, series a no. 28; van oosterwijck v. belgium, 6 november 1980, series a, no. 40. note 61. these elements shall, as far as possible, be studied in accordance with the order adopted in the first part for the constituent elements of the fair trial within the meaning of art. 6 of the convention. in order to facilitate the implementation parallel to the two procedural models: that which the court imposes on states, within the framework of respect for art. 6, and that which it imposes on itself within the framework of its rules of procedure. economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 8, no. 2, 2025 www.scholink.org/ojs/index.php/elp 178 original paper the response of the codification of the eco-environmental code to the ―mainstreaming of biodiversity‖ objective in the gbf xilai li 1 1 xiangtan university, xiangtan, china received: september 12, 2025 accepted: september 19, 2025 online published: october 2, 2025 doi:10.22158/elp.v8n2p178 url: http://dx.doi.org/10.22158/elp.v8n2p178 abstract the subsequent international negotiations of the convention on biological diversity and the kunming-montreal global biodiversity framework are approaching. china’s ecological civilization construction is advancing vigorously, and the draft of the ecological environment code has been formulated for public consultation. against the backdrop of these critical historical milestones, both domestic and international processes resonate with the priority area of “biodiversity mainstreaming” outlined in the national biodiversity strategy and action plan (2023-2030). the content of this priority area mainly involves two major directions: establishing a legal and regulatory system related to biodiversity, and drafting regulations on access and benefit-sharing of biological genetic resources. to meet the localized objective of “biodiversity mainstreaming,” the ecological environment code, which is philosophically grounded in “harmonious coexistence between humans and nature,” must also respond to issues related to this priority area. this includes formulating rules on benefit-sharing of digital sequence information on genetic resources and establishing a “biodiversity credit market mechanism.” such measures will not only promote the integrated development of ecological civilization construction and biodiversity conservation in china but also help shape the international discourse on china’s concept of “ecological civilization.” keywords ecological civilization construction, kunming-montreal global biodiversity framework, digital sequence information on genetic resources, ecological environment code www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 179 published by scholink inc. 1. introduction originating from the 1992 united nations conference on environment and development in rio de janeiro, brazil, the convention on biological diversity (cbd) has, over more than 30 years of development, progressively established key objectives including ―the conservation of biological diversity,‖ ―the sustainable use of its components,‖ and ―the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.‖ at the fifteenth meeting of the conference of the parties (cop15), china put forward consensus-building concepts such as ―ecological civilization,‖ ―exploring a path of harmonious coexistence between humans and nature,‖ ―working together to build a community of all life on earth,‖ and ―a community with a shared future for humanity.‖ china also announced the establishment of the kunming biodiversity fund to address funding challenges faced by developing countries in implementing the convention and played a leading role in the successful adoption of the ―kunming-montreal global biodiversity framework‖ (gbf) and a package of associated decisions. this has resulted in a combined and diversified system of international biodiversity law characterized by ―convention-protocol-framework‖ interactions and a blend of ―hard law and soft law.‖ the kunming-montreal global biodiversity framework (gbf) also supports the revision and update of china‘s ―national biodiversity strategy and action plan‖ (hereinafter referred to as the ―strategy and action plan‖), the implementation of concrete action targets, and the normative preparation on specific issues to enable localized regulatory responses. in particular, priority area (mainstreaming biodiversity) under chapter 4 of the ―strategy and action plan‖ proposes the establishment of a policy and regulatory system for biodiversity, especially through the research and drafting of regulations on access to and benefit-sharing of biological genetic resources. currently, a draft of the ―ecological environment code‖ has been prepared for public consultation. within this draft, the sections on ecological conservation and legal responsibilities are expected to respond to the content related to the ―mainstreaming biodiversity‖ priority area outlined in the ―strategy and action plan,‖ which is aligned with the cbd-gbf structure. particular attention should be given to issues such as digital sequence information on genetic resources. 2. issues related to the “mainstreaming of biodiversity” objective: core controversies over benefit-sharing prior to the adoption of the kunming-montreal global biodiversity framework, developing countries insisted on suspending negotiations until progress was made on financial issues. these financial issues include matters related to digital sequence information (dsi) on genetic resources. this indicates that the issue of dsi cannot be overlooked in the process of achieving the ―mainstreaming of biodiversity‖ objective. furthermore, china‘s national biodiversity strategy and action plan (nbsap) lists benefit-sharing of traditional genetic resources as priority area 3 (action 19). however, this does not fully encompass the scope of the issue. therefore, the nbsap also incorporates this matter into priority area 1 (priority action 1: policy and legal framework for biodiversity). thus, it is essential www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 180 published by scholink inc. to clarify the issue of benefit-sharing related to dsi on genetic resources in the context of the ―mainstreaming of biodiversity‖ objective. 2.1 controversies over benefit-sharing mechanisms for traditional genetic resources at the cop6 meeting in the hague in april 2002, the bonn guidelines on access to genetic resources and fair and equitable sharing of the benefits arising out of their utilization were adopted, establishing the prior informed consent (pic) system. however, developing countries argued that the objectives of the convention on biological diversity (cbd) could not be effectively implemented, particularly in preventing the unjust appropriation of benefits from genetic resources. the cbd lacked appropriate mechanisms to curb illegal transnational bioprospecting activities. moreover, as a soft law instrument, the bonn guidelines are not legally binding on contracting parties. subsequently, at cop10 in 2010, the nagoya protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization to the convention on biological diversity (hereinafter referred to as the ―nagoya protocol‖) was adopted, introducing ―the aichi biodiversity targets.‖ from a phased perspective, the nagoya protocol incorporated relevant experience from the bonn guidelines, particularly regarding the scope of protected subjects. in addition to genetic resources, it also extends to traditional knowledge associated with genetic resources. as a hard law instrument, it explicitly establishes the obligation for user countries to ensure that utilization within their jurisdiction complies with the requirements of the protocol. it is elevated to the status of hard law, explicitly establishing that resource-user states are also obligated to ensure that resource use within their jurisdiction complies with the provisions of the protocol. however, the fulfillment of these obligations—specifically, how compliance is ensured—still requires the development and operation of a subsequent, fully elaborated compliance mechanism. the significance of the nagoya protocol lies in several aspects. first, it clarifies the transnational nature of genetic resources. second, it imposes more detailed obligations on both provider and user countries, aiming to strike a balance. additionally, the interests of non-governmental organizations and groups, particularly academic and research institutions, are given greater attention, and they are to be treated differently from commercial users. unfortunately, the disclosure requirement strongly advocated by provider countries was not incorporated into the final text. in summary, the fundamental point of contention regarding access to genetic resources and benefit-sharing is that genetic resources have increasingly become the material basis for developed industrialized countries to obtain patents or new plant and animal varieties, while developing countries have derived minimal benefits from this process. consequently, developing countries have begun to emphasize national sovereignty over biological genetic resources. since the inception of the cbd, after nearly two decades of intense negotiations and compromises, a fragile international framework for access to genetic resources and benefit-sharing—the access and benefit-sharing (abs) mechanism—has ultimately been established. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 181 published by scholink inc. 2.2 controversies over establishing a benefit-sharing mechanism for digital sequence information on genetic resources the information and communication technology revolution in the digital age has fundamentally transformed how people connect and interact, bringing about radical changes in production and lifestyle, and leading to profound social shifts. data itself, as a new factor of production, now directly participates in the production process, altering the traditional way value is created. digital sequence information on genetic resources is a product of this data era. it also directly engages in production processes and has changed conventional value-creation methods, thereby impacting the fragile international regime on access to genetic resources and benefit-sharing. of particular concern is the issue of ―digital-mediated bio-piracy of biological resources.‖ dsi, as an operational entity of genetic information in digital space, possesses the characteristics of accountability, specificity, and transfer-ability. the rapid growth in the volume of dsi has directly spurred the emergence of a new data-driven research paradigm for scientific discovery in the life sciences. the application of dsi has expanded the boundaries of understanding life sciences and given rise to numerous emerging bio-industries, such as drug design, vaccine development, and genetic testing. from the perspective of biodiversity conservation, access to and utilization of dsi can provide new research avenues and more technological options for the protection and sustainable use of genetic resources, as well as for bio-security management and risk prevention. specifically, dsi holds significant application value in areas such as the description and identification of biodiversity, biological classification, monitoring habitat changes, invasive species monitoring and early control, tracking illegal trade, determining product origin, planning conservation management, mitigating risks to threatened species, crop breeding and improvement, maintaining crop genetic diversity, pest control, and understanding pollination patterns. the impact of dsi on the international regime for access to genetic resources and benefit-sharing is manifested in several ways: first, there is the challenge of identifying the source of sequences and defining the original providers. genetic digital sequence information often cannot be traced back to a specific biological source, and this issue becomes more complex as sequences are modified. second, monitoring digital sequence information is far more difficult than monitoring traditional genetic resources, as the origin of sequences can be obscured over time through modifications. third, valuing dsi is problematic—the value derived from individual sequences is difficult to quantify. digital sequences can be regularly modified and reused indefinitely, raising questions about benefit-sharing for each transaction they generate. although a subsequent decision adopted at cop16 formally established a multilateral mechanism for benefit-sharing from dsi, including the creation of the ―cali fund‖ to ensure the equitable distribution of benefits arising from the utilization of dsi, challenges remain. the mechanism stipulates that users of digital sequence information on genetic resources should contribute 1% of their profits or 0.1% of their revenue, as an indicative scale, to the global fund, based on their size. this model also includes www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 182 published by scholink inc. provisions for non-monetary benefit-sharing and terms for entities operating databases, tools, and models that rely on dsi. however, developed countries advocate for open access, while developing countries emphasize national sovereignty and benefit-sharing, leading to ongoing conflicts in negotiations. moreover, the current dsi benefit-sharing mechanism lacks legal enforce-ability, relying instead on voluntary implementation by contracting parties. its effectiveness, including the scale of the fund and the distribution of benefits, will require periodic evaluation in the future. 3. prerequisites for achieving the “mainstreaming of biodiversity” objective in the kunming-montreal framework 3.1 ideological foundation: shaping international discourse on “harmonious coexistence between humans and nature” as the president of cop15, china centered the conference around the theme ―ecological civilization: building a shared future for all life on earth.‖ this philosophy, which prioritizes the common interests of all humanity, holds the moral high ground and helps counteract narrow national interests, compelling all parties to collaborate on addressing global issues. however, western countries, leveraging their inherent influence in international institutions, continue to dominate the global discourse on systemic environmental solutions and green governance. influenced by counter currents such as anti-globalization, populism, and trade protectionism, some western nations exhibit skepticism, resistance, and exclusion toward china‘s concept of ecological civilization governance. this is particularly evident in divergent understandings of ―ecocentrism‖ within ecological civilization construction. western ―ecocentrism‖ emphasizes placing the overall interests of ecosystems above human interests, representing a critical reconstruction based on ―rights-based‖ thinking. in contrast, china‘s interpretation of ecological relations leans toward a political philosophy of ―harmonious coexistence between humans and nature,‖ reflecting a relational approach focused on ―balanced symbiosis.‖ therefore, china‘s theory of socialist ecological civilization is structured around the organic unity of historical materialism‘s political economy and philosophical research paradigms. through cop15 and the kunming-montreal framework, china has attempted to reshape the international discourse on global environmental solutions and green governance. specifically, it aligns with the green theories of ecological justice advocated by other developing countries while offering ―chinese wisdom‖ as an option to bridge the ―north-south divide‖ and establish a more just and equitable global environmental governance order. under the guidance of china‘s international discourse system of ―ecological civilization‖ as ―harmonious coexistence between humans and nature,‖ the mainstreaming of biodiversity is expected to achieve further substantive progress. more importantly, this provides the ideological prerequisite for realizing china‘s goal of ―mainstreaming biodiversity.‖ www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 183 published by scholink inc. 3.2 policy framework prerequisite: constructing a legal and regulatory system for biodiversity the kunming-montreal framework builds on the provisions of the cbd and also touches upon the cartage protocol on bio-safety and the nagoya protocol. its innovations lie in its concepts, form, logic, and content, which collectively advance the mainstreaming of biodiversity conservation and sustainable use to varying degrees. among its action targets, target 13 explicitly calls on countries to establish or strengthen legal and regulatory frameworks related to biodiversity as appropriate. in response to target 13 of the kunming-montreal framework, china has revised its national biodiversity strategy and action plan (nbsap). chapter 4, priority area one (priority action 1), explicitly emphasizes the need to develop a policy and legal system for biodiversity. priority action outlines a three-pronged approach: improving coordinated mechanisms for biodiversity conservation, establishing joint promotion mechanisms for biodiversity conservation and governance in key strategic regions, and constructing a ―1+n‖ policy system for biodiversity governance. under this national policy layout, it is essential to first examine china‘s existing legal system and stay updated on legislative and scientific developments to address current challenges effectively. china has already enacted laws such as the yangtze river protection law, the yellow river protection law, the qinghai-tibet plateau ecological protection law, and the wetland protection law. these laws have improved the administrative supervision and management system for biodiversity, initially establishing a ―multi-stakeholder co-governance and collaborative protection‖ mechanism for key ecological regions. currently, a draft of the national parks law has been formulated. this law adopts a systematic approach to legislation for protected areas, designing its framework and arranging relevant institutions rationally. the legislative design authorizes national park management agencies to exercise centralized and unified resource management and environmental enforcement powers within park boundaries. this indicates that china is building a ―protected area system with national parks as the core‖ to achieve biodiversity conservation. in summary, legislation on protected areas and laws for special regions form a ―general-specific‖ relationship, providing an integrated direction and framework for improving the legal system of ―mainstreaming biodiversity.‖ however, there are still gaps. china‘s reforms on ecological and environmental damage compensation have not addressed compensation for damages caused by biodiversity loss and degradation. the valuation and accounting of biodiversity have not been integrated into administrative decision-making, and a bio safety risk prevention and control system remains to be established, with no categorized institutional arrangements in place. the main reason for this omission is the ongoing controversy over the conceptual and legal nature of ―ecological restoration.‖ additionally, the civil code, confined to private law theory, exhibits limitations in addressing ―biodiversity loss‖ within ecological and environmental damage compensation, as seen in articles 1234 and 1235 and their interpretations. only ―permanent loss of ecological environmental functions‖ is eligible for relief, which does not fully encompass the concept of ―biodiversity loss.‖ finally, assessing such losses in practice faces numerous difficulties. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 184 published by scholink inc. 3.3 legal tools for achieving the “mainstreaming of biodiversity” objective in the kunming-montreal framework 3.3.1 optimization of the draft regulations on access to and benefit-sharing of biological genetic resources in accordance with target 13 of the kunming-montreal framework, priority action 2 under priority area 1 in chapter 4 of the nbsap explicitly calls for in-depth research and drafting of regulations on access to and benefit-sharing of biological genetic resources. as early as 2017, china released a draft of the regulations on access to and benefit-sharing of biological genetic resources for public comment. however, it was not promulgated due to various reasons. currently, china‘s system for access to and benefit-sharing of biological genetic resources is not fully established and faces challenges posed by dsi-related issues. there is significant room for optimizing the draft regulations. first, the legislative purpose and basic principles need expansion. the draft was formulated to implement the nagoya protocol. based on current international developments and the realities of dsi, it should incorporate relevant requirements of the kunming-montreal framework, particularly methodologies, rights fields, and values such as the ―whole-of-government and whole-of-society approach,‖ ―cooperation and synergy,‖ ―human rights-based approach,‖ and ―one health approach.‖ second, the content of investigation and protection planning requires optimization. the draft stipulates the establishment and updating of a national database for biological genetic resources. currently, china‘s national center for bio-information has certain infrastructure capabilities aligned with international standards. however, challenges remain, such as fragmented data storage, insufficient data sharing and utilization, and the lack of a scientific evaluation system for data value. third, regarding benefit-sharing of biological genetic resources, the draft should include a multilateral mechanism for benefit-sharing from the use of dsi, as well as alternative measures for revenue generation at different stages of the value chain and the feasibility of implementing these measures. specifically, it is necessary to classify and categorize dsi data and, based on these classifications, simulate revenue generation measures at different value chain stages to establish a benefit-sharing mechanism for dsi under various scenarios. 3.3.2 strengthening the response of the ―ecological environment code‖ to the ―mainstreaming of biodiversity‖ objective as a ―sector-specific‖ code, the ecological environment code must consider the appropriate extent and the central logical of ―mainstreaming biodiversity‖—that is, how and to what degree ―mainstreaming biodiversity‖ should be integrated into the code. the code constructs a broad concept of ―ecological environment‖ under the concept of ―comprehensive environmental protection,‖ encompassing the three narrower concepts of ―environment,‖ ―ecology,‖ and ―resources,‖ the concept of ―mainstreaming biodiversity‖ is broad. from the perspective of the code‘s responsive purpose and based on rational reasoning, it is more reliable to integrate the connotations of ―mainstreaming biodiversity‖ through the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 185 published by scholink inc. two narrower concepts of ―ecology‖ and ―resources.‖ this is because the concept of ―environment‖ in the code‘s context is linked to ―pollution prevention and control‖ and is the core concept of the pollution control section. the two concepts of ―ecology‖ and ―resources‖ are increasingly converging. under the premise of downplaying ―resources,‖ limiting ―ecology,‖ strengthening ecological protection, and organizing by elements and spaces (regions), the ecological protection section is structured with general provisions (element protection) followed by special provisions (regional protection), balancing utilization control, protection and improvement, and restoration and governance. it makes unified arrangements from the perspective of holistic ecosystem protection, constructing the ecological protection section. the ecological protection section uses ―natural ecology‖ as its foundational concept, ―ecological priority‖ as its value orientation, and ―coordinated governance‖ as its governance principal, building a normative and institutional system suited to holistic ecological protection. this aligns with the nbsap (2023-2030), which establishes 4 principles, 3 strategic positioning, 2 objectives, 4 priority areas, and 27 priority actions (―432427‖) to promote ―mainstreaming biodiversity.‖ both are remarkable achievements in china‘s ecological civilization construction. therefore, the ecological protection section is the main pathway for integrating ―mainstreaming biodiversity‖ into the code and the primary domain for expressing its core content. as for the legal liability section, it provides safeguards for legal accountability after the main content of ―mainstreaming biodiversity‖ is expressed in the code. particularly, it is essential to address the specialized nature of ecological environment responsibilities to counter the current ―fragmented‖ state of ecological environment legal liability and offer solutions for addressing liability issues related to ―biodiversity loss.‖ 4. codification response: specific approaches to implementing the “mainstreaming biodiversity” objective 4.1 ecological conservation section: establishing a dsi benefit-sharing mechanism currently, the draft ―ecological environment code‖ has been formulated. the ecological protection section of the code addresses biodiversity conservation through two types of norms: ―ecological element protection‖ and ―ecological region protection.‖ it incorporates achievements from the reform of the ecological civilization system and adopts a ―moderate codification‖ approach through coordinated legislation and watershed legislation. based on articles 39 and 40 of the general principles section, it governs the specific provisions related to biodiversity in the ecological protection section. although the general principles of the ecological protection section stipulate the state‘s responsibility for protecting and monitoring important ecosystems, biological species, and genetic resources, as well as a national benefit-sharing scheme for biological genetic resources, and further implement the ―mainstreaming biodiversity‖ strategic deployment of the nbsap (2023-2030) through ecosystem protection, key geographical units, national parks as the main focus, and nature reserves as www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 186 published by scholink inc. carriers, thereby providing ―chinese wisdom‖ and constructing china‘s discourse system for post-kunming-montreal framework international negotiations under the convention, the ecological protection section still has deficiencies in protecting dsi. first, as china is building a protected area system with national parks as the core, dsi, as an indispensable part of systematic biodiversity conservation, also needs to be incorporated into this management system. article 687 of the code still regulates dsi from the perspective of the abs system, which cannot address the issue of ―digital bio piracy.‖ specifically, dsi technology may give rise to unknown types or variations of genetic information. therefore, protecting such genetic information has cutting-edge value. in particular, the economic, ecological, and social value of dsi bio synthetic products and recombined dsi information units is immense. excluding dsi bio synthetic products and information units from the species and genetic diversity protection system may put china at a disadvantage in international competition and negotiations. to avoid these issues, it is possible to consider adding fallback provisions to articles 682 and 683 of the code, such as the dsi database information coordination and monitoring mechanism proposed in the aforementioned draft ―regulations on access to and benefit-sharing of biological genetic resources.‖ incorporating this mechanism could provide a higher-level legal basis for the ―inter-ministerial coordination mechanism for biological genetic resources‖ in the draft regulations. simultaneously, it would enhance the coordination and transparency of benefit-sharing related to dsi. it is important to note that the dsi database information coordination and monitoring mechanism, as stipulated in these articles, need only clarify its responsibilities for dsi coordination and monitoring, while more detailed behavioral norms should not be included in the code for now. under the digital sequence information database information coordination and monitoring mechanism, it is also necessary to clarify the content of biodiversity baseline investigations. this is because biodiversity baseline investigations serve as an important means for tracing the origin of dsi, defining information units, and evaluating the value of bio-synthesized compounds. at the same time, biodiversity baseline investigations provide essential data and materials for the construction of dsi databases and information systems. furthermore, these investigations supply critical information for the development of subsequent biodiversity conservation policies, thus promoting the sustainable utilization of resources. therefore, incorporating dsi-related content into biodiversity baseline investigations aligns with the strategic requirements of ―mainstreaming biodiversity.‖ building dsi databases and information systems on the basis of these biodiversity baseline investigations is technically feasible and can be effectively supported. it is particularly important to note that confidential dsi of domestic origin must be subject to a classified management system. this involves maintaining both public and localized versions to safeguard china‘s sovereignty over genetic resources and its associated interests. for instance, dsi data from giant pandas and endemic plants must be stored locally. furthermore, attempts to infiltrate localized databases and information systems containing confidential dsi must be penalized www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 187 published by scholink inc. and incorporated into a ―blacklist‖ mechanism. on this basis, it is also necessary to establish a ―comprehensive‖ dsi classification and grading catalogue at the genetic level (encompassing dna, rna, information units, cells, and tissues). this catalogue is distinct from the species management list and system based on dsi risk grading and classification. moreover, the fundamental requirements for the safety management of biotechnology research and development primarily interface with the main responsibilities of the dsi database information coordination and monitoring mechanism. considering the construction of basic safety management requirements for biotechnology based on the main duties of this mechanism involves several aspects: adherence to a classified management system, implementation of primary responsibility and organizational structure requirements, compliance approval and contingency planning, risk management and emergency response, as well as record keeping and credit-based penalties. subsequently, it is essential to link these requirements with the provisions of the ―administrative measures for the safety of biotechnology research and development‖ issued by the ministry of science and technology of china, making referential provisions. this means that under the premise of following the basic safety management requirements for biotechnology, and based on the ―comprehensive‖ dsi classification and grading catalogue, a classified management system should be established. this includes clarifying risk categories and matching them with appropriate laboratory bio safety levels. the classification of risk levels and their matching with laboratory levels can refer to the relevant content of the aforementioned ―administrative measures.‖ it is important to note that the safety traceability management and tracking assessment of dsi-related biotechnology must be dynamic, allowing for timely adjustments to risk levels and corresponding response measures. in summary, the establishment of utilization rules for digital sequence information (dsi) that differ from the traditional access and benefit-sharing (abs) framework must be grounded in a comprehensive process. this begins with biodiversity baseline surveys of dsi, followed by the coordination and monitoring mechanisms of dsi databases, leading to the development of integrated information systems and periodically updated classified inventories. additionally, it requires the implementation of traceability management and tracking assessments for bio safety. only then can such a framework be effectively formed, one that better aligns with the interests of developing countries like china in safeguarding sovereignty over their biological genetic resources. furthermore, the provision in article 687 of the code, which encourages the ―transmission, promotion, and innovation of related practices to conserve biodiversity,‖ is intrinsically linked to access and benefit-sharing of biodiversity. within this framework, explicit support should be provided for the utilization of digital sequence information (dsi)—on the condition that intellectual property rights are respected—with priority given to initiatives addressing ecological poverty alleviation, environmental crisis response, and the advancement of social equity. specific applications may include promoting organic agriculture, incorporating dsi into ecological compensation mechanisms, supporting the breeding of endangered wildlife, and increasing income opportunities for low-income populations. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 188 published by scholink inc. should conditions permit, efforts may further advance the establishment of a unified national socialized compensation mechanism for dsi. building on this foundation, it is essential to strengthen preferential protection and participation mechanisms for indigenous peoples in matters involving dsi. clarifying the legal status of dsi as biological genetic resources will effectively safeguard the rights and interests of indigenous peoples arising from traditional knowledge associated with dsi. this approach aligns not only with the principles of the convention on biological diversity and the kunming-montreal global biodiversity framework, but also reflects the traditional ethos of ―living in harmony with nature, sustaining livelihoods through ecological reciprocity.‖ moreover, such a mechanism will substantively protect the interests of china‘s indigenous peoples in subsequent international negotiations, consistent with the nation‘s identity as a developing country, while upholding sovereignty over its biological genetic resources. finally, to address dsi-related issues in a systematic manner, consideration should be given to adding a dedicated chapter on the protection of genetic resources in the ecological conservation section. this would primarily involve general provisions on the protection of genetic resources and the establishment of a fund for the protection and benefit-sharing of genetic resources. the general provisions on genetic resource protection should incorporate the legal definition and concept of dsi. the legal definition and concept of dsi is as follows: ―information derived from valuable biological materials containing genetic functions, expressed in digital form, representing specific arrangement code that encompass genetic and other multidimensional information attributes.‖ regarding the fund for the protection and benefit-sharing of genetic resources, it is essential to balance the dual needs of data security management and open sharing of biological resources. this will help promote the development of an industrial system for the submission, management, research, application, and benefit-sharing of biological resource data, thereby fostering mutual benefits of dsi data across the country. additionally, attention should be paid to ensuring alignment with the optimized content of the sixth point on benefit-sharing in the above-mentioned regulations on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization (draft). for instance, the draft stipulates that users must contribute 0.5% to 10% of their profits to a national fund for resource conservation and the development of regions of origin. a specific proposal could involve leveraging the kunming biodiversity fund to share benefits generated from dsi-based technologies at different stages according to varying proportions. alternatively, direct linkage could be established with articles 49 and 50 of the national parks law (draft). 4.2 legal liability section: establishing a biodiversity credit market mechanism the current concept for the legal liability section is to form a systematic ecological environment legal liability framework structured as ―basic provisions + environmental administrative liability + environmental civil liability + ecological environment damage liability + ecological environment dispute resolution,‖ following an ―independent main body with supplementary dispersed provisions‖ approach. within this, the legal liability section assumes an ―ecologically rational economic actor‖ and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 189 published by scholink inc. adjusts legal norms governing the relationships between ―humans–nature–humans,‖ divided into ―liability to humans‖ and ―liability to the environment.‖ under this division, an ―environmental liability‖ system based on the ―theory of ecological restoration‖ is being attempted. ―liability to humans‖ is reflected in relevant criminal, civil, and administrative legislation, as well as in specialized environmental legislation. from the perspective of the aforementioned theory, ―biodiversity loss liability‖ should fall under the ―special liability‖ category of ―environmental law liability.‖ if categorized as ―special liability,‖ it would overlap with the concept of ―permanent loss of ecological environment functions‖ under article 1235 of the civil code, creating conceptual intersection and rule conflicts. this would hinder the ―communication and coordination‖ between ecological environment legal liability and traditional departmental law liabilities. moreover, given the current progress of reforms on ecological environment damage compensation mechanisms, ―biodiversity loss liability‖ is unlikely to be recognized. after all, it faces numerous challenges, including an undefined legal concept, rejection by theories and liability mechanisms of traditional departmental laws (e.g., cases involving illegal electrocution of wild earthworms), and the exclusion of biodiversity value assessment and accounting from administrative decision-making. from the legal philosophy perspective of ―harmonious coexistence between humans and nature,‖ ―biodiversity loss‖ can be affirmed as damage to ―ecology‖ or ―resources.‖ however, the current theory of traditional departmental laws based on ―anthropocentrism‖ is an established fact. furthermore, the draft ―ecological environment code‖ adopts an indirect expression of ecological environment liability, without directly clarifying its composite and specialized nature. the specialized nature of ―biodiversity loss liability‖ lacks sufficient support in the code. however, if ―biodiversity loss‖ is completely ignored, the realization of the ―2030 agenda for sustainable development‖ under the kunming-montreal framework and the vision of ―living in harmony with nature by 2050‖ would be jeopardized. even the implementation effectiveness of the ―mainstreaming biodiversity‖ objective in the nbsap (2023-2030) would be compromised. according to marxist dialectical materialism, ―biodiversity loss liability,‖ under the universal expression of contradictions and based on the above analysis, does not qualify for integration into china‘s legal theory and system. however, if ―biodiversity loss liability‖ is specialized, it may yield surprising ―roundabout solutions.‖ admittedly, the term ―biodiversity,‖ as a scientific concept, is not fully standardized. but at least a basic understanding can be established: biodiversity emphasizes a state. only diverse genes, species, and ecosystems constitute a stable, balanced, and secure state. if maintaining this state is taken as the legislative purpose, the issue of defining the legal concept of ―biodiversity‖ can be temporarily set aside. the specialized solution for ―biodiversity loss liability‖ is to transform it into ―biodiversity credit liability.‖ then, based on the theoretical presuppositions of environmental liability in the legal liability section, it could be confirmed and implemented as a ―special form of environmental credit liability.‖ www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 190 published by scholink inc. for example, establishing a mechanism similar to the ―carbon mechanism‖ for ―biodiversity loss‖ would internalize externalize and transform it into a special environmental administrative liability mechanism, ultimately accepted by traditional departmental law theories and systems. here, the concept of ―biodiversity credit liability‖ should be broadly understood, divided into two types: ―biodiversity credits liability‖ and ―biodiversity offsets liability.‖ ―biodiversity credits liability‖ leans toward positive incentives, serving as a measurement unit in biodiversity offset projects. ―biodiversity offsets liability‖ leans toward ―command-and-control‖ type negative impact management liability. therefore, this specialized solution for ―biodiversity loss liability‖ requires institutional design based on these two different understandings. similarly, the necessity and feasibility of this specialized solution are worth discussing. from the perspective of necessity, transforming ―biodiversity loss liability‖ into ―biodiversity credit liability‖ is driven by legislative purpose needs, which is one aspect of its necessity. in fact, there are several considerations for the necessity of establishing ―biodiversity credit liability‖ in the code: first, based on economic theory as the underlying logic, constructing a ―biodiversity credit market mechanism‖ as a financing tool can be included in green finance, providing positive incentives. it can generate substantial funds for the ―biodiversity fund‖ and enterprise development. simultaneously, it offers an important metric for corporate esg development, standardizes corporate behavior, and enhances market competitiveness. second, establishing a ―biodiversity credit blacklist mechanism,‖ biodiversity offsets liability, can integrate with administrative ―credit-based penalties‖ liability mechanisms, meeting the requirements of the ―no net loss‖ principle related to the mitigation hierarchy (―avoid-reduce-compensate,‖ arc). it can also rely on public interest litigation mechanisms for judicial safeguards. third, differing from the relief model for ―permanent loss of ecological environment functions‖ under article 1235 of the civil code, it avoids the drawbacks of private law tools while fulfilling the ecological environment damage liability rules of the legal liability section. from the perspective of feasibility: first, the global biodiversity credit market is emerging, and international experiences in constructing such markets are available for china‘s reference. examples include the biodiversity banking models in the united states, australia, and colombia. among these, there are practical projects for reference, such as australia‘s south pole biodiversity and carbon credit project, colombia‘s climate trade and terasos habitat banking project, and the wallacea trust global biodiversity credit project. second, some scholars have proposed: ―it is recommended that china use national parks as biodiversity credit providers, engage in ‗horizontal‘ value exchange with enterprises, innovate by using indicator trading models to offset the ecological impacts of development projects to net zero, support credit pledge loans and enhance corporate esg ratings through green finance incentives, supplemented by mandatory information disclosure and market access permits as hard constraints, to jointly accelerate the formation of a biodiversity credit investment and financing mechanism that benefits national parks and surrounding communities.‖ this ―national park model‖ has a certain legal foundation. firstly, the ecological protection section of the code already presupposes www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 191 published by scholink inc. management systems for natural ecological protection, ecological element protection, protected areas, and biodiversity conservation, along with supporting measures such as natural ecological protection planning, natural ecological protection information, ecological element utilization control and protection improvement, species and genetic diversity protection, protected area conservation and management, and ecological protection compensation. then, according to articles 49 and 50 of china‘s draft ―national parks law,‖ corresponding action basis and legal support can be provided for this model. third, as observed from china‘s relevant regulations such as the ―ecological and environmental damage compensation management regulations,‖ ―cultivated land requisition-compensation balance assessment measures,‖ ―wetland protection and restoration system scheme,‖ and the ―interim measures for the collection and use of forest vegetation restoration fees,‖ it is evident that the country demonstrates an initial inclination to require enterprises and individuals to ―offset negative impacts to achieve net-zero.‖ the government‘s demand to ―offset negative impacts to achieve net-zero‖ essentially represents an approach to holding enterprises accountable for biodiversity credit obligations. fourth, although providing sound legal safeguards for ―diversity accounting methods and measurement indicators‖ is currently challenging, china still has a foundation in rule of law soil for nurturing such mechanisms. the concept of ―biodiversity credits liability‖ leans more toward an economic legal tool within the code. the concept of ―biodiversity offsets liability‖ leans more toward a fallback mechanism for legal liability consequences. the two can form a logical chain of ―risk prevention-process control-liability for damage‖ within the code. the ―biodiversity credits liability‖ mechanism can serve as a financial tool for ―preventing irreversible biodiversity damage risks.‖ here, international mechanisms such as ―payment for ecosystem services‖ (pes) can be referenced to design a ―credit prepayment for preventing irreversible biodiversity damage risks,‖ requiring enterprises to pay this security deposit during the environmental impact assessment phase based on biodiversity impact assessments. fifth, although methodologies and metrics for biodiversity accounting are still under development, they do not present fundamentally insurmountable challenges. internationally, assessing the ―net change‖ in biodiversity requires primary consideration of the following elements: (1) spatiality: it must be linked to specific geographical areas. (2) temporality: as biodiversity changes over time, the validity period of credit allowances needs to be considered. (3) additionally: this refers to the ―additional‖ increase in biodiversity resulting from the implementation of a specific project. (4) baseline: this refers to a reference point used to compare the current state with future changes. (5) leakage: this occurs when improvements or maintenance of biodiversity within a project area lead to biodiversity loss in adjacent areas. based on these indicators, it is feasible to develop a methodology for biodiversity accounting. the construction of such a biodiversity accounting methodology could be designed around approaches such as negative list management, dynamically adjusted thresholds, and credit unit accounting. for negative list management, statutory law could authorize the state council to issue an ―applicable list www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 192 published by scholink inc. of biodiversity credit obligations‖ to clarify the types and contents of biodiversity credit responsibilities. subsequently, the ministry of ecology and environment could further refine the ―technical guidelines for environmental impact assessment—ecological impact‖ (hj19-2022). specifically, building on the hj710 technical guidelines for biodiversity monitoring, dynamically adjusted thresholds and coefficients for the ―habitat fragmentation index‖ and ―endangered species decline rate‖ could be introduced following research. exceeding these thresholds and coefficients would trigger biodiversity credit obligations. finally, the ministry of ecology and environment could lead the development of a ―biodiversity credit equivalent accounting guide.‖ one approach could be to introduce a coefficient based on the ―endangered species coefficient × habitat restoration cost‖ to quantify responsibilities. alternatively, a ―biodiversity proxy indicator assessment method‖ could be piloted initially, with the main assessment approach formalized in the ―biodiversity credit equivalent accounting guide‖ once matured. in summary, the ―biodiversity credit market mechanism‖ is primarily based on the ―national park model,‖ supplemented by the ―biodiversity banking model.‖ it draws on the accounting methods and metrics of carbon trading markets, with biodiversity impact assessment deposits and dynamic corporate credit ratings serving as safeguards. if implemented, this framework would provide a systematic approach to jointly addressing climate change and the biodiversity crisis. it would not only advance the ―ecological civilization‖ goals of ―chinese-style modernization‖ but also help secure a leading position in post gbf‖ international negotiations. references feng, h., & zhang, y. (2023). problems in the practice of our country‘s administrative law enforcement ―blacklist‖ system and the approach to rule of law. nanjing journal of social sciences, (02), 76-84, 95. gong, g. (2022). the concept of the cornerstone of the environmental code starts from the change of the concepts of resource, environment and ecology. peking university law journal, 34(06), 1523-1542. li, b., & x d. (2019). application of digital sequence information of genetic resources in biodiversity conservation and its impact on benefit-sharing system. biodiversity science, 27(12), 1379-1385. https://doi.org/10.17520/biods.2019242 li, j., zhang, h., & wang, n. (2023). the path and institutional arrangement of biodiversity product value realization: lessons and enlightenment from the experience of foreign biodiversity banks. acta ecologica sinica, 43(01), 198-207. li, x. (2019). international dissemination of xi jinping thought on ecological civilization and its path optimization. issues of contemporary world socialism, (04), 3-14. li, y. (2023). kunming-montreal global biodiversity framework: essentials, focuses and local normative responses. pacific journal, 31(08), 88-100. https://doi.org/10.17520/biods.2019242 www.scholink.org/ojs/index.php/elp economics, law and policy vol. 8, no. 2, 2025 193 published by scholink inc. liu, j. (2019). credit liability: the emerging fourth major category of legal responsibility. legal forum, 34(06), 5-17. lv, z. (2023). theoretical framework for environmental code compilation. china legal science, (02), 25-47. lv, z., & liu, j. (2024). legislative framework for the protected area system. world social sciences, (01), 63-80, 243-244. ni, g. (2012). review and prospect of the convention on biological diversity. journal of shanghai university (social sciences edition), 29(06), 1-12. ni, g. (2012). review and prospect of the convention on biological diversity. journal of shanghai university (social sciences edition), 29(06), 1-12. pan, c. (2007). reconciling tensions between genetic resource conservation and intellectual property rights. intellectual property, (03), 42-46. https://doi.org/10.1093/acprof:oso/9780198765011.003.0001 peng, y., jin, t., & zhang, x. (2024). biodiversity credits: concept, principles, trading, and challenges. biodiversity science, 32(02), 154-164. victor meyer-schoenberg, kenneth cooker. (2013). the era of big data: the great change of life, work and thinking (sheng, y., &zhou, t., trans., pp. 123-126). hangzhou: zhejiang people‘s publishing house. wan, x., & zou, y. (2020). wang qianlu. the 15th conference of the parties to the convention on biological diversity and the international dissemination of the concept of ecological civilization. environmental protection, 48(22), 55-58. wang, q. (2023). implementation dilemmas and reform paths of the convention on biological diversity. local legislation journal, 8(01), 78-91. wang, t. (2021). social transformations and research in the digital era. social sciences in china, (12), 73-88, 200-201. xun, q. (2017). a critical overview of the theory of transcending development in latin america. marxism & reality, (06), 115-123. zhang, l., song, z., & xu, n. (2025). operation mechanism and practical experience of costa rica‘s forest ecosystem service payment system. national park, 38(01), 118-125. zhao, y., liu, y., & wan, x. (2024). a new path for the marketization of national park ecological products: a case study of biodiversity offset and credit mechanism. national park, 2(05), 296-307. https://doi.org/10.1093/acprof:oso/9780198765011.003.0001 microsoft word elp-v1n1-p17 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 1, no. 1, 2018 www.scholink.org/ojs/index.php/elp 17 original paper the effectiveness of governance mechanisms in scenarios of water scarcity: the cases of the hydropolitical complexes of southern africa and jordan river basin fábio albergaria de queiroz1* & james a. p. tiburcio2 1 department of international relations, catholic university of brasília, brasilia, brazil 2 department of public policy and governance, azim premji university, bangalore, india * fábio albergaria de queiroz, e-mail: fabioaq@hotmail.com received: march 20, 2018 accepted: march 26, 2018 online published: april 4, 2018 doi:10.22158/elp.v1n1p17 url: http://dx.doi.org/10.22158/elp.v1n1p17 abstract in many regions of the world, the multiple uses of transboundary fresh water have been a critically important component for regional stability. this situation explains why, in many cases, water management has commonly become linked to national security concerns. but, in what intensity? in search for answers, we analyze the cases of southern africa and the jordan river basin due to their prevailing condition of hydrological stress. to verify the role played by governance mechanisms in accommodating the interests of riparian states, the hydropolitical complexes model was applied in a comparative perspective. our findings suggest a trend towards cooperation in southern africa due to the successful institutionalization of management mechanisms capable of minimizing potential conflicts. in the jordan basin, however, the struggle for control of water resources has been a paramount feature in the maintenance of a tense and resilient non-cooperative framework among riparian countries. keywords jordan river basin, southern africa, hydrological interdependence, hydropolitical complexes, water governance 1. introduction the planet has approximately 1.4 billion cubic kilometers of water. however, about 97.5 percent of this amount is salty water. of the 2.5 percent of the fresh water technically available, around a third of this total is unequally distributed through lakes, rivers, humid zones and aquifers that, in many cases, ignore national borders, condition that, by establishing an undeniable relation of interdependency, makes www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 18 published by scholink inc. water resources an important issue in the relations of those that share them (clarke & king, 2005, p. 20; unitar, 2015, p. 5). more specifically, data from the united nations educational, scientific and cultural organization (unesco), the entity responsible for the world water assessment program (wwap), accounts for the existence of 263 transboundary water basins, of which, thirteen are shared by five or more countries. this noteworthy condition is also observed in relation to aquifers that for nearly a quarter of the world population represent the only source of drinking water (clarke & king, 2005, p. 26; unitar, 2015) (note 1). besides the complexity of such scenario, there are estimates that by 2050 almost half the planet’s population will live in chronic water scarcity areas (less than 500 cubic meters per year per person) or in regions where the water system will be extremely imperiled by factors such as climate change and disorderly population growth (unitar, 2015, p. 5) (note 2). this prospective framework has implications in most of the fundamental issues in the contemporary international agenda such as natural resources sovereignty, regional security, water access and utilization, environmental protection and sustainable development. chapter 18 of agenda 21 (“protection of the quality and supply of freshwater resources: application of integrated approaches to the development, management and use of water resources”) warns humanity against a world of generalized scarcity where constant and gradual pollution of the world’s water resources in most regions of the world is coupled with the progressive implementation of incompatible activities. concomitantly, it calls for greater cooperation among states in what concerns transboundary water resources (note 3). in the same fashion, signatory states of the united nations millennium declaration commit themselves in paragraph 23 “to stop the unsustainable exploitation of water resources by developing water management strategies at the regional, national and local levels, which promote both equitable access and adequate supplies” (note 4). a review of these preliminary issues surrounding the scenarios in the scope of the so-called hydropolitics—term henceforth used to designate the multi-sector dynamics, cooperative and/or conflictive, originating from the relations of interdependence that are established among actors that, to a certain extent, impact and/or are impacted by the usage of international water resources (queiroz, 2012, p. 39)—reveal important aspects that demand further considerations. as water quality degrades or the quantity available has to meet rising demands over time, a fierce competition among water uses and users may exponentially intensify. this situation is worrisome, particularly in those regions that concentrate the most acute points of water stress (per capita availability of water between 1.000 and 1.600 cubic meters/year) or absolute water scarcity (less than 500 cubic meters/year), as are the cases of the middle east, sub-saharan africa and southeast asia. in this regard, there is a consensus among experts that international watercourse agreements need to be more incisive in setting out measures to incorporate effective conflict resolution mechanisms in case www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 19 published by scholink inc. disputes erupt (note 5). an analysis that takes into consideration the relation water/population shows that distributive inequalities are further accentuated, obviously, in densely populated regions. such is the case of asia in general, where 36 percent of the world’s available water resources are to be found whereas it concentrates 60 percent of the planet’s human population (unesco, 2003, p. 9). this context of unequal sharing of water resources defined as water interdependence (elhance, 1999, p. 13), gives rise to highly complex, potentially conflictive interstate relations. complementarily, vulnerability is a central element in the relations of states commanding the use and management of shared water resources. le prestre (2000, p. 442), argues that fresh water has the potential to exacerbate tensions contingent on the following circumstances: 1) degree of vulnerability and dependence of each country in relation to its water needs; 2) number of actors that claim access to the shared water source; 3) power resources available to riparian actors; 4) existence of substitute products (in what concerns water, none is presently available); and even, 5) political, cultural and identity symbolism socially attached to sovereign control of water resources. given these considerations, and per the holistic and multi-sectorial nature of hydropolitics, in order to verify the effectiveness of water scarcity resources management instruments, this investigative proposal makes use of an ampler and more inclusive governance perspective (i.e., as a process of accommodation of consensus and, also, of conflicts and divergences) considering it, therefore, as being, “a multi-layered, multi-scale and multi-sector ensemble characterized by a combination of hierarchical structures, participatory dynamics, associative action and market mechanisms based on a culture of dialogue, negotiation, active citizenship, subsidiarity and institutional strengthening” (castro, 2007, p. 3) (note 6). thus, considering the undeniable importance of governance for managing a common and scarce resource—water—these are the issues that this article seeks to answer: to what extent the various uses of water resources interrelate with the multiple dynamics of those actors who share them? and, in favoring conflicting aspects and/or cooperative arrangements between riparian stakeholders, how do the ramifications resulting from these interactions affect the construction process of governance mechanisms? 2. method 2.1 levels of analysis although levels of analysis, in their most general sense, serve more as ontological references for where events happen, rather than sources of explanation in themselves (buzan et al., 1998, pp. 5-6), it is important to highlight their widely recognized epistemological relevance as they provide analytical consistency to the investigation, especially when the investigative method used is the comparative one. in this regard, to maximize the efficient operationalization of the method, and concomitantly, the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 20 published by scholink inc. validation of the expected results, it is necessary to follow some implicit steps in this process of identifying the elements common to the different cases and/or those that are singular: 1) the selection of the phenomena to be observed, and 2) the definition of the elements to be compared. we consider territorial contiguity as our control variable (note 7), and the regional subsystem as our level of analysis. for that, the conceptual model of hydropolitical complexes is our reference unit as they are ontologically comparable, that is, geographically contiguous areas where hydrological interdependence among the actors taking part in them is a sufficiently strong factor to be considered. thus, to maintain the same comparative coherence, some of the main watersheds within the selected hydropolitical complexes will be analyzed as subunits. in turn, the necessary connection between the methodology and the theoretical framework strengthens the choice of the comparative method for this study, as comparisons allow us to discover regularities, displacements and transformations, similarities and differences in the search for generalizable explanations from the analysis of the cases previously selected, an effort in which we are going to focus on in the next pages. to accomplish this task, we use a combination of comparative techniques labeled by skocpol and somers (1980) as investigative cycle, which basically consists of using multiple strategies of approach, in this case: 1) the systematic study of co-variations identified in the case studies; 2) the parallel demonstration in which the researcher applies a concept, set of concepts and/or a concrete model-in our case the descriptive model of hydropolitical complexes—in the universe of analysis, thus evidencing its explanatory validity; and last but not least, 3) the contrast of contexts through which we seek to highlight the existing reciprocal differences between the selected cases. 2.2 hydro political security complex (hsc) still on the epistemological scope of our units of analysis, we resort to schulz (1995) who formulated the concept of hydropolitical security complex (hsc), an analytical tool that is used in this article in trying to assess possible answers to the questions previously posited. the concept was developed to help in the analysis of possible connections between hydropolitics dynamics originating in the specific context of the tigre and euphrates rivers basin and the security agenda of iraq, turkey and syria (schulz, 1995). the idea of a descriptive concept applicable to cases in which water-related issues are a relevant variable for the understanding of regional political dynamics was conceived from observations of externalities generated by the construction of dams, control of water flows and the generation of hydroelectric power. by doing so, schulz (1995, p. 97) conceived the concept to describe regions where, “a set of states that are geographically part owners and technically users of shared rivers start to consider, consequently, this water body to be a major national security issue”. despite its importance, the hydropolitical security complex analytical tool had relevant limitations, among them, mostly taking into consideration only conflict events. that restricted its explanatory capabilities when applied, for example, to contexts in which cooperative arrangements prevailed. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 21 published by scholink inc. moreover, the model was developed based on the sharing of superficial waters. taking into consideration these limitations, allan (2001) and turton (2003), developed schulz’s (1995) model further, incorporating other dimensions, to equip it with a higher explanatory capability. the authors introduced as independent variable the patterns of amity/enmity among riparian states. also, they assigned more weight to the sharing of groundwater systems, thus achieving a more realistic model in regions such as western africa, southern africa and the middle east. thus, the empirically based analysis of allan (2001, 2002) and successively, turton (2003, 2008), supported the existence of what they labeled hydropolitical complexes in regions that the dependence on shared surface and groundwater systems is strategically pivotal to the extent that it has a politically relevant role. in other words, it drives inter-state relations in an observable fashion towards potential cooperation (amity) or towards damaging competition (enmity) (turton, 2008, p. 188). subsequently, allan (2001) and turton (2003) theorized that—as part of broader, more complex circumstantial and structural contexts—whenever the relational dynamics between riparian states (the most common, but not exclusive actor of hydropolitics) gravitates towards cooperation and stronger friendship ties, a stable hydropolitical complex (hc) is the most likely resulting outcome involving the concerned actors. on the other hand, whenever the opposite occurs, a hydropolitical security complex (hsc) is formed. in this theoretical setting, an hsc is a tool that aids in mapping situations of heightened tension due to disputes relating to shared water resources. once defined the methodology and the level of analysis and determined the conceptual model of hydropolitical complexes as our theoretical framework, from its application we will search for evidence demonstrating the degree of vulnerability of those that share water resources in scenarios of high water-based dependence and, thereafter, the role played by these agents in a continuum of hydrological interdependence driven by cooperation and/or conflict. for such, we chose two sub regions markedly characterized by prevailing situation of water stress: the hydropolitical complexes of southern africa and jordan river basin. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 22 published by scholink inc. figure 1. universe of analysis—southern africa (left) and the jordan river basin (right) hydro political complexes source: http://www.orangesenqurak.com/river/geography/basins+of+southern+africa.aspx http://www.internationalwaterlaw.org/blog/category/water-conflicts/ to accomplish the proposed objectives, we present a sample of the main structural and conjunctural defining dynamics within such sub-systemic spaces to, then, analyze the effectiveness of governance mechanisms vis-à-vis the externalities stemming from the hydrological interdependence existing amongst some of the main actors of both hydropolitical complexes. 3. result 3.1 southern africa southern africa comprises angola, botswana, lesotho, madagascar, malawi, mauritius, mozambique, namibia, seychelles, south africa, swaziland, zambia, and zimbabwe. particularly relevant to the subject matter is the influence played by colonialism, followed by the cold war and the apartheid regime which dominated in an overlapping fashion at least the last three centuries of the regions’ shared history. in the beginning of the 21st century, some endemic political dynamics based on a common past took over the sub-regional security agenda, visibly gaining greater autonomy in relation to the global agenda (turton, 2015). among the issues that have stood out since then is transboundary water sharing on which much of the social-political stability and economic development of the region hinges on (kaniaru, 2010). due in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 23 published by scholink inc. part to its artificial and arbitrary borders and changing climatic regime, transboundary water management is one of the crucial pillars for sustainable economic development and political stability in southern africa. a remarkable feature of southern africa’s hydropolitics over this period was the fact that of the seventeen most threatened watersheds in the world, six of them were to be found in this region’s domains, namely, the incomati, kunene, limpopo, okavango, orange and zambezi river basins (wolf et al., 2003, p. 29, p. 52), a situation that no longer persists as we shall see (note 8). exclusive of the mauritius and madagascar, both island countries, all southern africa countries are part of the same set of interlinked hydropolitical complexes and are subject to differing degrees of water stress (turton, 2002, 2003, 2005, 2006). intrinsically coupled to that is the projection that africa in general “is the only region in the world where the population is projected to keep increasing throughout the 21st century […], and the current and growing 1.2 billion people, is “more than five times the population in 1950. by 2050, africa’s population will double, to 2.4 billion, eventually reaching 4.2 billion by the end of the century-just about the entire world population in 1977” (unicef, 2014: online). current water stress and population growth are a potentially volatile combination capable of elevating the management of water resources to a national security status, particularly in those situations in which riparian countries compete over access to water. this association is what ohlsson (1995, p. 4) called the ultimate limit and an imminent threat to development. the availability and the access to water and potable water form the basis to sustainable economic development, being one of the primary components of the physical base of the state, “particularly under conditions of aridity” (turton, 2003, p. 31). thus, hydropolitics assumes distinct contours in this type of scenario in which water scarcity emerges as a limiting factor to economic growth and social development, mainly in the most advanced economies in the region. that ensures that water remains and increasingly becomes more prominent in the southern africa’s political agenda. and, although the possibility of conflict over water resources is potentially growing, scarcity has also the potential of evoking and promoting cooperation opportunities and alternative means of settling disputes (gleditsch et al., 2005; bernauer & boehmelt, 2013). in southern africa’s case, mainly over the post-decolonization period, interactions of riparian countries concerning water related issues have been fundamentally peaceful, leading to the institutionalization of the theme rather than to its securitization (note 9). cementing the normalcy of water relations in the region, regulatory norms and management procedures have been successfully incorporated to the political processes supporting this cooperative setting (turton, 2003, p. 31; 2006, p. 8; 2009, p. 6; 2015). 3.1.1 hydro political symbiosis the 1986 south africa-lesotho treaty, “lesotho highlands water project” (lhwp), exemplifies the nature and achievements of water cooperation in southern africa. essentially, the lhwp is a cooperative international water supply project with a hydropower component, that over a period of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 24 published by scholink inc. more than thirty years has facilitated water supply to south africa in exchange for electric power supply to lesotho; the last construction projects are expected to be delivered by 2020. the final stage of the project will allow for up to seventy cubic meters of water per second (70 m3/s) to be transferred from the senqu river in lesotho to the vaal river in south africa. it has included the damming of sizable areas, a hydropower plant, transfer tunnels and canals and, considerable social and environmental impacts (note 10). south africa is lesotho’s main partner in practically every area mostly since it is entirely landlocked by south africa. two thirds of lesotho’s workforce find employment in the neighboring country, especially in the mining sector and is responsible for at least a third of the country’s gross national product. apart from the supply of electricity, south africa pays around us$60 million in royalties for the use of lesotho’s water resources and transfers back electric power generated in the scheme (iied, 2015, p. 2). there is, therefore, a working hydropolitical complex in this two-riparian-country basin. this is a condition we typified as a case of “hydropolitical symbiosis”. drawing openly and directly from the biological sciences, we define it as a mutually advantageous relationship between two or more states, which actively and voluntarily act in conjunction, for mutual gain (queiroz, 2012, p. 140). in the example, the hydropolitically symbiotic relationship between these two riparian states has been satisfactorily fruitful to both to date (iied, 2015) (note 11). this emblematic case is a demonstration that a situation of extreme power disparity is not an insurmountable impediment to viable agreements over shared water resources with mutually beneficial economic incentives (wolf & newton, 2008, p. 1). and, although the southern african development community (sadc), comprising 15 countries, is also a case of extreme power disparity in a regional level, that does not constitute a hindrance to cooperation. south africa has a country share in sadc regional gdp of 55.5%, while the second largest share, angola, stands at 13.6%. nonetheless, even considering that this is a localized case between only two countries in the region, it does indicate a progressive and consistent movement away from the potential conflict towards the potential of cooperation (kaniaru, 2015). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 25 published by scholink inc. figure 2. lesotho and south africa: a case of hydro political symbiosis source: https://www.dwa.gov.za/orange/images/rm207t6.gif in second place, water tends to be of such importance to riparian states that rather than fight over it, it leads to long term agreements that withstand even antagonistic and belligerent actions in other areas (turton, 2015). this trend, identified by anthony turton more than a decade ago, and currently consolidated by cooperative arrangements resulting from it, is because water resources were, and still are, perceived as, “[…] so important for each riparian state. too important to fight over, to the extent that water agreements are significant enough to be considered as drivers of international relations in their own right, leading to the conclusion that a hydropolitical complex exists in southern africa” (turton, 2005, p. 37). so, in this specific case, the dominating behavior is clearly molded by cooperation. conflicts, that eventually arise, are dealt with through peaceful means. pursuant to this consolidated pattern of action, the recognition of such practices results in a plus-sum agenda based on communicative trust, in which the benefits of cooperation are evident, and, in their turn, influence directly the way riparian states perceive each other (queiroz, 2012; warner et al., 2013; kaniaru, 2015). in this aspect, it is worth highlighting that the first protocol signed by sadc signatories was the protocol on shared watercourses systems of august 1995. it testifies to the strategic importance of water resources to sub regional development and its priority status in commanding political will for the institutionalization of a cooperative regime-mostly as hydrographic basins commissions-as a feasible option in conflict management in the region. moreover, some provisions contained in the 1992 sadc treaty and its protocols require its parties to solve any disputes amicably, negotiations being the first resort. in case of failure, the issue may be brought before the sadc tribunal, created to ensure “adherence to and the proper interpretation of the provisions of the treaty and the subsidiary instruments, and to adjudicate upon such disputes as may be www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 26 published by scholink inc. referred to it” (unitar, 2015, p. 42) (note 12). aligned to these efforts, the okavango river basin commission (okacom) was created in september 1994, bringing together namibia, angola and botswana under the motto, “three countries, one river”. it was established to promote the coordinated and sustainable development of shared water resources and the surrounding environment, concomitantly fairly accommodating the legitimate demands of each riparian state. angola, an upstream riparian and in a privileged position in terms of the water resources of the okavango, presented a long-term post-conflict reconstruction agenda for the south of the country. namibia, on the other hand, upstream in relation to botswana, downstream in relation to angola, faces multiple limitations to develop the rural northeast, mostly due to a general scarcity of resources that plagues the region. lastly, botswana, of the three countries, is the one that presents the best socio-economic indicators. nonetheless, the country is the most vulnerable to changes in the okavango water regime. its downstream location and low availability of natural resources in general, compound the situation. each country appoints two commissioners to be representatives at the permanent okavango river basin water commission (okacom), headquartered in maun, the fifth largest town in botswana, its tourism capital, at the okavango delta. the okavango basin steering committee (obsc), with three to five permanent and non-permanent members from each of the three countries supports the okacom as a specialized discussion forum, directed to technical issues in the general agenda and is instrumental in the implementation of the okacom decisions domestically. the committee works through three technical task forces: the institutional task force, the biodiversity task force and the hydrology task force (okacom, 2015). among their challenges, the lhwp and the okacom have the mission of implementing large regional water transfer schemes in contexts of severe economic limitations, worsened by endemic water scarcity. for that, they depend largely on effective cooperation, particularly in the top tiers of government, among decision-makers, to keep the agreements relevant and to make expensive and large infrastructural projects such as the inversion of the normal seasonal flow pattern leave drawers and become reality. large projects, such as a proposed abstraction of water from the zambezi river to the okavango and cunene rivers, a canal linking the limpopo and zambezi basins, or a deviation of 1% of the okavango flow to the namibian capital city, windhoek, have been considered. nonetheless, potential negative environmental impacts associated with such projects have allowed for their postponement. southern africa’s hydropolitical complex developed around some of the most dynamic economies in the region: south africa, botswana, namibia and zimbabwe. concomitantly, these are also the countries that face the biggest water stress challenges in the region as they are all close to reaching the limit of exploration of available resources in their territories, water being therefore a limiting factor for social and economic development (speed et al., 2013). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 27 published by scholink inc. these four countries fall into the category of “pivotal states”: riparian states with a high level of economic development that also have a high degree of reliance on shared river basins for strategic sources of water supply, with the real prospect of water scarcity posing limitations to future economic growth and development. the southern africa’s pivotal states-botswana, namibia, south africa and zimbabwe-are, by and large, interlinked by two of the main water basins of the region, the so-called pivotal basis: water systems that are strategically important to any one (or all) of the pivotal states by virtue of the range and magnitude of economic activity that they support. in southern africa, two basins fall into this category: orange and limpopo (turton, 2005, p. 16). besides the orange and limpopo, they also share seven other smaller water systems-pungué, buzi, save, incomati, umbeluzi, maputo and thukela—with the other co-riparian states, forming a multifaceted, complex network of water interdependence, known as the southern african hydropolitical complex (sahc) as illustrated below. figure 3. southern african hydropolitical complex (sahc) source: adapted from turton (2005, p. 4). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 28 published by scholink inc. table 1. major river basins in sahc river basin area (km²) riparian states existing river basin organizations buzi 31 000 zimbabwe, mozambique ____________ congo 3 730 470 angola, burundi, rwanda, central african republic, tanzania, cameroon, dr congo, zambia commission internationale du bassin congo-oubangui-sangha (cicos) cuvelai 100 000 angola, namibia ____________ incomati 49 965 south africa, swaziland, mozambique ____________ kunene 106 500 angola, namibia permanent joint technical committee (pjtc) limpopo 408 000 botswana, south africa, zimbabwe, mozambique limpopo watercourse commission (limcom) maputo-usutu-pongola 32 000 south africa, swaziland, mozambique ____________ okavango 530 000 angola, namibia, zimbabwe, botswana permanent okavango river basin water commission (okacom) orange-senqu 721 000 lesotho, south africa, botswana, namibia the orange-senqu river commission (orasecom) pungwe 32 500 zimbabwe, mozambique ____________ ruvuma 155 500 tanzania, malawi, mozambique ____________ save/sabi 106 420 zimbabwe, mozambique ____________ umbeluzi 5 500 swaziland, mozambique ____________ zambezi 1 390 000 angola, namibia, botswana, zimbabwe, zambia, malawi, tanzania, mozambique the zambezi watercourse commission (zamcom) source: sadc (2010) & http://www.sadc.int/themes/natural-resources/water/. access in 06/01/2017. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 29 published by scholink inc. in sum, as can be seen from the map and table above, the twelve sadc mainland member states share several river basins, a condition of deep interdependence that ratify how cooperation and joint coordination efforts may act as a vital instrument for promoting stability in the southern african through the harmonization of policies and strategies to cope with the challenges of water resources management, particularly those of a transboundary nature. 3.2 jordan basin hydropolitical security complex (jhsc) the middle east north africa region (mena) is dominated by a hydropolitical structure that encapsulates the magnitude that disputes involving transboundary water basins can assume in a scenario of scarcity and profound water resources interdependence. the jordan basin hydropolitical security complex (jhsc), which is the main water supplier for israel, jordan and the palestinian territories is source and setting of some of the most enduring conflicts in contemporary times. as shown above, to a lesser extent syria and lebanon are also part of the same system, even though the euphrates, the orontes and tiger rivers supply practically all their water needs (le prestre, 2000, p. 446). water is one of the most contentious issues in the mena region, and consequently a fundamental component of the ideal and physical structure of that region’s nation-states (buzan, 1991, p. 65, p. 91; messerschmid & selby, 2015, p. 258). following the arab-israeli war of 1948 (1948-1949), latent tensions were further accentuated when israel initiated in 1952 a project to use the waters of the jordan to irrigate the negev desert. soon after, in 1953, the israelis started the construction of an intake for a diversion for their national water carrier at the daughters of jacob jordan bridge, north of the sea of galilee, in the demilitarized zone bordering syria (priscoli & wolf, 2010). the construction was soon threatened by a veto by russia at the united nations security council and de fato stopped when the united states threatened israel with sanctions, though israel eventually completed the national water carrier in 1964 (zeitoun, 2008). when gamal abdel nasser first came to power in egypt (1954-1956) with an ambitious nationalist project, backed by a discourse of linguistic and religious unity of the arab world—pan-arabism-and in the context of the cold war, under moscow’s military support, the regional hydropolitics became further entangled in the general international relations of the middle east. one of nasser’s most daring measures in this period was to block the straits of tiran, where the red sea and the gulf of aqaba meet, where the exit of the strategic israeli harbor of eilat is found. the stalemate was one of the ingredients for the second arab-israeli war: the suez war that broke out on october 29, 1956. from then onwards, the middle east would attain the condition as one of the main theaters of the dispute for influence between the two cold war superpowers, the united states and the soviet union. while the united states endorsed and supported israel’s political and military actions, the soviet union financed and gave military support to egyptians and syrians (bickerton & klausner, 2014; kinsella, 1994). in that period, the riparian states of the jordan basin could not reach any agreement that would make a feasible, effective and efficient project for shared management of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 30 published by scholink inc. water resources. dwight eisenhower, the then president of the united states, with the united nations’ support, appointed eric johnston as a special representative of the president of the united states to negotiate the water conflict between israel, jordan, and syria in 1953. eisenhower was trying to resolve the regional water issues and tensions by incentivizing cooperation among foes (shapland, 1997; queiroz, 2012). figure 4. the johnston plan source: elmusa (1998, p. 301). 3.2.1 jordan valley unified water plan, a.k.a. johnston plan the jordan valley unified water plan, commonly known as the “johnston plan”, formulated in the two ensuing years, received formal approval from the technical committees of the arab league and israel but remained officially unratified (priscoli & wolf, 2009). the would be arab signatories feared www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 31 published by scholink inc. that “their agreement would imply indirect recognition […] of israel” (shuval, 2000, p. 44). and, in fact, it did mean that, as a proposal of cooperation of that magnitude would demand, consequently, the arab league to recognize israel as a legitimate state and, also as a user, de facto and de jure of scarce regional water resources. such uncompromising stance further cornered israel into an aggressive defensive position, heightening an insecurity perception that became incorporated in the political discourse and strategies of the jewish state (turton, 2003; abukhater, 2013). the years between 1964-1967 strengthened the hypothesis of the existence of a correlation between arab-israeli conflict and regional hydropolitics. it was in that period that israel’s neighbors decided to attempt to divert two of the three sources of the headwaters of the jordan river—the headwater diversion plan—to make national water carrier, initiated in 1955, unviable (wolf, 1995). the israeli response came through the launching of an intensive airstrike in syrian territory against the diversion works in april of 1967 which resulted in the immediate interruption of the arab efforts but also in a series of reprisal military actions led by egypt. the mounting tension around water related issues and resulting hostility, played a considerable role in politically justifying the june 1967 six-day war. the preemptive attacks by israel that initiated the war were, in part, a response to the jordanian and syrian led attempt to divert the jordan headwaters (clarke & king, 2005). lindholm (1995) argues that if water was not the main cause for the outbreak of the conflict, it certainly was one of its driving forces, contributing to exacerbating the escalation of aggression between arabs and israelis in the period 1965-1967. the outcome of the hostilities was a crushing israeli victory and thus, a new political geography arrangement as the victors expanded their de facto borders, simultaneously taking control of close to fifty percent of the region’s water resources. such view seemed to be supported by declarations such as of ariel sharon, then head of the northern command staff of the israel defense force (idf) by stating that: we could have sat there much longer just watching the [arab] canal make headway. exactly when the government would have moved against the syrians, or in what context they could have done so, i do not know. but with their assault in november, syria started off a round of fighting that gave us the opportunity to put an end to their project. people generally regard 5 june 1967 as the day the six-day war began. this is the official date. but in reality, the six-day war started two and a half years earlier, on the day israel decided to act against the diversion (initiated by upstream arab stages) of the jordan (bulloch & darwish, 1993, p. 50). in the following years, inspired by the words of david ben-gurion, one of israel’s founding fathers and prime minister (1948-1953 and 1955-1963), who stated that “it’s necessary that the water sources, upon which the future of the land depends, should not be outside the borders of the future jewish homeland [...] the land needs this water” (lindholm, 1995, p. 61), israel continued to place hydropolitics close to the center of its geopolitical concerns, by persistently pursuing a policy of internalizing its sources of water, on which the development of the country depended on. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 32 published by scholink inc. in this manner, the occupation of the golan heights plateau and, particularly, of the cisjordan or west bank, from where forty percent of the potable water consumed in israel derives, guaranteed not only access to the spring heads of the jordan river, but also control of twenty percent of the north banks of the yarmouk river, its largest tributary (awartani, 1981). also, the water sources in the east bank of lake tiberias (kinneret), banias and the shared west bank aquifer (in the occupied territories) are in many ways fundamental to israel’s agriculture viability and even that of the state itself (le prestre, 2000; queiroz, 2012). on one side, water as a general security issue in israeli-syrian relations has been prominent since before the 1967 war when there were problems in israel’s point of view as syria deviated the waters from the spring heads in golan. israel wanted to make sure that syria would not be able to do that again (chesnot, 1994, 1992). it is worth highlighting that the occupation of the golan heights allows israel 770 million cubic meters of water a year, corresponding to a third of israel’s annual water consumption. therefore, any rearrangements in legal or illegal occupation would entail significant consequences in the geopolitics of israel and its riparian neighbors. the regional war epicentered in syria has profoundly disrupted the tenuous pre-war balance and israel probably has never been further away from leaving its strategic water securing positions (note 13). a remote possibility pre-syria regional war (march, 2011) was an israeli withdrawal which would allow syria to recover its privileged position as the riparian agent in control of the upper stream jordan river. such withdrawal would have resulted in profound rearrangements of middle east geopolitics, especially in hydropolitical terms, changing the regional power positions. on the other side, palestinian access to water resources in the west bank, a hydro-strategically relevant territory, is extremely unfavorable (wolf, 1996; hass, 2014; zeitoun & warner, 2006; united nations, 2015; b’tselem, 2016). israel sells water at full price to the palestinians and controls the amount of water to be sourced in the territory apart from maintenance of existing water infrastructure and development of new facilities. concurrently, as the number of israeli settlers grows in the occupied territories, the demand for water resources and the inequality in its distribution have grown at a higher ratio (tignino, 2014; united nations, 2015; b’tselem, 2016). the average daily palestinian consumption in the west bank is 71 liters per capita while the average israeli consumption is 350 litters, much higher than the world health organization recommended daily quantity of 100 litters per capita (carvalho, 2013). by 2012, the west bank was already purchasing 60% of all municipal water supply, of which 34% was directly from the national water company of israel, mekorot (palestinian water authority, 2013). water has become a major barrier to economic growth and further development in the west bank, as since 1967, israel has been limiting palestinian usage and exploration, taking control of all water resources. military orders established israeli control of all west bank aquifers, quotas on pumping, limitations on the depth of wells, limited maintenance and prohibition of new wells without www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 33 published by scholink inc. authorization of the israeli military command (le prestre, 2000; lindholm, 1995; palestinian water authority, 2013; escwa, 2013; b’tselem, 2016). and since october 2002, the ministry of infrastructure of israel has banned palestinians from drilling for water and frozen the issuance of future permits (note 14). the hydrogeological vulnerability of groundwater to pollution in the west bank is high as israel is already using almost 80 percent of the annual safe yield of the groundwater basins shared with the west bank and the unmet demand encourages over-exploitation (nazer, 2010; mehyar et al., 2014). the severity of the situation has strengthened the prevalent view among israeli authorities that a fully recognized and functional palestinian state in the west bank would seriously compromise the hydro security of the country. in the past, one of the arguments to justify such fears was that excessive usage was leading to irreversible salinization of the entire system, which would be “casus belli for israel, because, in contrast to the situation elsewhere, no substitutes can be offered to israel in this matter” (shapira, 1978; cited in ohlsson, 1995, p. 66). presently, the counterargument is that alternative solutions, such as desalinization plants of brackish water and treated wastewater re-use are becoming more and more feasible and offer potential long-term solutions (palestinian water authority, 2013). tignino (2014, p. 395) and messerschmid and selby (2015) argue that the israeli stance seems to give robust evidence to the existence of a systematic policy of investment of one side and neglect on the other, being used as an efficient instrument towards guaranteeing political and economic hegemony of israel in the west bank, a dominative form of hydro hegemony that seems to be common to the region. 3.2.2 turn for the worse the middle-eastern geopolitical scenario, including its hydropolitical dimension, has taken a turn for the worse after at least a positive perspective following the paradigmatic oslo agreements of 1993. bill clinton, yitzhak rabin (1922-1995), and yasir arafat (1929-2004) signed the agreement at the signing ceremony at the lawns of the white house in washington, dc, on september 13, 1993. the agreement established the autonomy of the palestinian in jericho, in the west bank, in the gaza strip and in territories west of the jordan river occupied during the six day war under the palestinian authority that was presided by yasir arafat. the first oslo accords ratified the perception that a project that could bring substantial peace between israelis and palestinians would necessarily include that of water sharing (wolf, 1995). in dealing with the issue, the subsequent agreements of 1995 provisioned for the creation of a water development program, formed by a regulatory agency overseeing the hydrographic basin and a joint committee for cooperation—the joint water committee-which would both formulate proposals that would make possible equitable sharing and access to water resources (rouyer, 1999). nonetheless, the lack of concrete commitments, the ambiguous nature of the existing legal mechanisms in relation to distribution and exploration of water resources and israel’s limited political will in recognizing a plan for an equitable partition constituted unsurpassable impediments to reasonable www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 34 published by scholink inc. advances in the negotiations (le preste, 2000; handcock, 2004; clarke & king, 2005; carvalho, 2013; tignino, 2014; messerschmid & selby, 2015). the scenario described points to the hypothesis that in a context of water scarcity and interdependency, states that control water resources, regardless of the means used to obtain and guarantee such control, generally are not predisposed to negotiate. also, they do not find obvious incentives to cooperate with those states that are incapable of negotiating in a condition of parity. therefore, states in a hydropolitical complex are observably in a situation of vulnerability and dependency in relation to the decisions of the most dominant riparian and its political will to cooperate or not—both cases made exemplified in the cases of south africa toward lesotho and israel toward palestine, respectively. 3.2.3 riparian states options riparian states have three main options in such power imbalance scenarios: (1) sign cooperation agreements, which is difficult, nonetheless not impossible; (2) restructure their economies to leave them less dependent on shared water resources, a task that imposes many difficulties; and (3) militarize water disputes, an option for those that have resources and necessary incentives available. faced with limited and costly options, water seems to be set to continually be an impediment in peace talk and subsequent negotiations regarding a palestinian state, as narrated in the next section (le prestre, 2000). following oslo i, an interim agreement on the west bank and the gaza strip, also known as oslo ii or taba agreement, was signed in september 1995. planned to remain in force for only five years, but still in effect today, oslo ii created areas a, b, c in the west bank. area “a” encompasses eight palestinian cities and their surrounding areas (nablus, jenin, tulkarem, qalqilya, ramallah, bethlehem, jericho and 80 percent of hebron) under full civil and security control of the palestinian authority, without any israeli settlements and off-limits to israeli citizens. it corresponds to 3 percent of the west bank, apart from east jerusalem (note 15). area “b” that is composed of almost 440 palestinian villages and surrounding land also has no israeli settlements, but the palestinian authority has only civil control, while security is shared with the israelis. area “c”, where 60 percent of the palestinian population live, occupying close to 70 percent of the west bank, including the jordan valley (the emek hayarden regional council), is an area under complete israeli civil and security control. israeli control is obviously linked to security concerns over the water resources available in the area even tough article 40, appendix b of the oslo ii agreements expressively recognizes palestinian rights over the same (clarke & king, 2005; magnoli, 1996; caubet, 2006; united nations, 2015) (note 16). because of this framework, united nations pointed out in a recent report that: before the occupation, agriculture was the main source of labor and resources for palestinians. palestinian agriculture has, however, been adversely affected by measures taken by israel as the occupying power, in particular land seizures and restrictions on access to land and water resources (a/68/513, para. 40). from 1965 to 1994, cultivated areas shrank by 30 per cent from 1965 to 1994, and palestinian agricultural production was reduced, from 50 percent in 1968 to 4.9 percent of gdp in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 35 published by scholink inc. 2013 (united nations, 2015, p. 10). therefore, while palestinians—based on humanitarian and sovereignty grounds—assert their right to a larger share of the water resources available in the west bank, israel opposes any principle of equitable utilization. in line with this stand point, the israeli information center for human rights in the occupied territories (b’tselem) highlighted the fact that, in 2016, israel, through mekorot, scaled down the amount of water it supplies to several palestinian communities in the northern west bank, predetermining water quotas regardless of the palestinian demand (b’tselem, 2016) (note 17). on the other hand, gvirtzman (2012) counters this stance, arguing that palestinian complaints over water shortages in their towns and villages due to the israeli occupation are baseless. by analyzing information on water supply systems provided by the israeli water authority (for the first time after the signing of the israeli-palestinian interim agreement) the author asserts that, contrary to most palestinian arguments, israel has fulfilled all of its obligations according to the signed water agreements with the palestinian authority (pa). so, by refusing the palestinian claim to a rightful access to the most important waters systems such as the gaza strip coastal aquifer and the jordan river, israelis do not accept any further revisions of the present allocation status based on historical and acquired rights. this situation that has been reinforced and worsened by the political quagmire caused by events such as the successive wars in gaza (2009, 2012, 2014) that resulted in significant damage to water and sanitation infrastructure, which in turn led to water contamination in both the distribution system as well as the aquifer, now heavily polluted due to infiltration of wastewater and seawater. in this regard, we shall highlight that in 2015, only 4% of the coastal aquifer’s waters were still suitable for drinking. in addition, it should be noted that at least a half dozen major cease-fire violations, especially between 1951 and 1967, triggered by disputes over water resources, cemented the deadly political and territorial rivalries among israelis, jordanians, syrians and lebanese (tignino, 2010, p. 669; united nations, 2015), what points to a scenario in which the issue of sovereign rights over water resources in the region seems to remain a divisive and complex one until there is political will and popular support for a workable hydropolitical symbiosis. 4. discussion water is often presented as the central theme in the most dramatic future scenarios due to its scarcity and indispensability for the maintenance of life and exercise of vital daily activities. it is frequently treated as a source of power and consequently, as a matter of national security. however, although the admonitions presented in relation to the theme are pertinent, it is also equally pertinent to avoid extreme reductionism in water resource issues (le prestre, 2000). in situations in which the uses of water are object of dispute, it might always seem to be possible to construct a causation path, direct or indirect, proximal or remote, between the scenario of instability to be explained and understood and a hydropolitical variable and in so doing, foresee because of this www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 36 published by scholink inc. association, the harbinger of future instabilities. what is suggested is caution when dealing with the binomial “water-security”. there is a need for analytical tools that would allow us to gauge the real dimension of water resources among a multiplicity of other variables that also present potential to aggravate a given situation of instability. in this way, it seems more useful and viable to study hydropolitics as another element that generates supplementary tensions (queiroz, 2012). after all, it is extremely difficult to sustain a hypothesis advocating water as a conflict-triggering variable as generally, once there are multiple causes motivating and originating a conflict, and in the present state of political and international studies, it is illusory to isolate a single factor as the main cause of a conflict situation. our research, guided by the comparative method and through the conceptual lenses of the hydropolitical complex theory, allows us to infer that, in general, the propensity to cooperate prevails in situations in which the identities among actors are mostly perceived as positive, as it is in the southern africa case. on the other hand, a balance of power situation stands out, at times with the use of extraordinary means, such as aggressive use of force, in cases in which these identities are perceived as negative and/or existing mechanisms of governance are insufficient to lower prevalent perceptions occasioned by lack of trust and mutual fear of aggression, such observed in the jordan basin context. regarding the two cases, the contrast of contexts technique has led us to hypothesize that in the southern africa hydropolitical complex, disputes over water resources have been mitigated through institutional arrangements strong enough to minimize potential conflict by directly providing the institutionalization of conflict management mechanisms of water resources through intergovernmental initiatives such as joint committees. thus, even in a prevailing context of first order scarcity, conflicts arising from the sharing of water resources have been satisfactorily maintained at the level of the usual processes of bargaining and dispute of the political sphere, i.e., as a technical issue. from this perspective, we have the synthesis of the rationale that defines the southern africa hydrological complex (sahc). supported by the symbiotic nexuses established between the elements that integrate the structure described, the outcome is a notable degree of hydrological interdependency that inevitably connects them in a highly politicized multi-sectorial scenario, that is in itself, the outcome of a context of prevalent cooperation in the region. in its turn, through an overview of hydropolitics at the jordan river basin, inferences demonstrated that the intensification of tensions around water resources is not primarily caused by the region’s deficit between water demand and supply. as seen, it involves other historical, complex and multidimensional issues which have weightier impact in the general geopolitical context of the region. in that case, conflicts are fundamentally arising from physical and territorial integrity disputes, and from identity related underlying problems. they indicate that physical and conceptual state structures represent the main domains in which perceptions in terms of threat are formed and water is one more aggravating factor. the hydropolitical situation in the jordan basin, therefore, seems to be an additional risk and threat www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 37 published by scholink inc. element, supplementing and further complicating the regional security agenda and concurrently reinforcing the process of construction of antagonistic identitarian perceptions amongst regional actors. in this sense, we found that disputes over the control of water resources seem to have continually been one of the driving factors in the maintenance of a violence prone scenario, strong enough to trigger crises or for making it more difficult to reach a compromise on other disputed resources and issues in which enmity relations are emphasized in a noticeable context of second order scarcity (i.e., lack of willingness or capacity to deal with changes imposed by a scenario of water scarcity). hence, the satisfactory accommodation of seemingly competing interests of riparian states is one of the greatest challenges facing existing governance mechanisms. it gives evidence of the potential that hydrological interdependence among those actors sharing fresh water has to affect regional political stability, especially in scarcity-dominated water scenarios. therefore, these efforts in ordering demands and preferences that are seemingly incompatible requires greater effectiveness of the intended actions and also the coordinated adoption of polycentric and decentralized approaches (i.e., at various levels, with the active participation of local, national and regional actors), aimed at providing shared management tools with greater inclusiveness capacity, flexibility and adaptability to uncertainties and complexities, that quite often come up in such cases of water scarcity. acknowledgements we are immensely grateful to professors aaron t. wolf (oregon state university); michael t. klare (hampshire college) and andrea k. gerlak (university of arizona) for their comments and suggestions on earlier versions of the manuscript that 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(2006). hydro-hegemony—a framework for analysis of trans-boundary water conflicts. water policy, 8, 435-460. https://doi.org/10.2166/wp.2006.054 notes note 1. the atlas of transboundary aquifers, an inventory published by unesco in 2008, points to the existence of 273 aquifers shared by at least two countries, 68 in the americas, 38 in africa, 65 in eastern europe, 90 in western europe and 12 in asia (whymap, 2015). note 2. a study published in march 2015 by unesco—(the un world water development report 2015, water for a sustainable world (wwdr, 2015)—warns that about 748 million people lack access to clean water sources and 20% of the world aquifers are already being excessively exploited, which can lead to serious consequences such as soil erosion and saltwater intrusion in these reservoirs. the report also predicts that world water reserves may shrink 40% by 2030 and that by 2050, agriculture and food industry will need to increase by 400% its demand for water. adding to this pessimistic outlook, are estimates that with an average increase in global temperature of around 2 degrees celsius www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 43 published by scholink inc. (this in a more optimistic scenario assessed by the un panel on climate change), water scarcity would certainly triple in highly vulnerable areas such as north africa, middle east and central asia. densely populated regions in developed countries that presently are already living with chronic shortages, such as southeast australia and the southwest of the united states, would also be severely impacted. note 3. united nations. agenda 21. resolution adopted by the general assembly [on the report of the second committee (a/47/719). 22 december 1992. note 4. united nations. resolution adopted by the general assembly [without reference to a main committee (a/55/l.2)] 55/2. united nations millennium declaration. 8 september 2000. note 5. the history of water treaties dates as far back as 2500 bc, when the two sumerian city-states of lagash and umma crafted an agreement ending a water dispute along the tigris river. according to the food and agricultural organization (fao) more than 3,600 treaties related to water resources have been drawn up since 805 ad, mostly to deal with navigation and boundary demarcation. nonetheless, the focus of negotiation and treaty-making in the last century has shifted away from the aforementioned issues towards the use, development, protection and conservation of water resources (source: http://www.un.org/waterforlifedecade/transboundary_waters.shtml). note 6. labeled by the literature on water governance as collaborative or participatory water management (plummer et al., 2012; van buuren, 2013), the polycentric nature of this approach based on more stakeholder participation, more collaboration, and more interaction encourages experimental efforts at various levels, which may lead to the development of methods for assessing in a more accurate way the costs and benefits of specific strategies adopted in certain situations, and thereafter the possibility of comparing them with results obtained in other cases. note 7. a variable that is held constant to assess or clarify the relationship between two other variables, in that case, effectiveness of governance mechanisms (dependent variable) and water scarcity (independent variable). note 8. commonly cited in lists of the most endangered basins, southern africa’s watersheds are no longer at risk and one of the reasons is precisely because institutions have been crafted to deal with water related issues over time and have been successful as a useful conflict mitigating factor. the sahc is a very good example that in many situations, rather than causing open conflict, the need for water sharing can generate unexpected cooperation. note 9. securitization may be understood as an extreme situation in which the securitizing actors (those in a position of power that have the authority to declare something as being threatened) facing a threatening situation tries to put the object to be protected (referent object) in a locus of decision immune to the ordinary rules of the political scenario. thus, they may use the means they feel are necessary to solve the problem, including the force (buzan et al., 1998, p. 23). note 10. source: http://www.lhda.org.ls/phase1/ note 11. the hydropolitical symbiosis concept is not fully developed in this article and further considerations are needed to strengthen and improve it. an important reflection concerns the role of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 44 published by scholink inc. power imbalances since hydropolitical symbioses are supposed to be based on consensual rather than imposed concessions. a good starting point for the discussion is the 2006 mark zeitoun and jeroen warner paper on “hydro-hegemony”. note 12. art. 16 of the declaration and treaty of the sadc. and although the court had been originally assigned to mediate disputes between “states and between natural or legal persons and states”, and between “states and the community” (article 17-18 of the protocol on court and rules of procedure), a resolution adopted during the sadc summit, held in 2012, restricted its activities exclusively to interstate disputes. note 13. for additional information see: lee cahaner, arnon sofer and yuval kna’an, future of the jordan valley 0151—keeping it under israeli sovereignty—pro and con (reuven chaikin chair in geostrategy, university of haifa, february 2006), 25-26 [hebrew]; anita shapira, yigal alon: native son (sifriyah hadasha, hakibbutz hameuchad/siman kriya, 2004), 486, 488-491 [hebrew]; yerucham cohen, the allon plan (hakibbutz hameuchad, 1972), 171-180 [hebrew]; b’tselem, land grab: israel’s settlement policy in the west bank (may 2001), 12-13; edith zertal and akiva eldar, lords of the land—the war for israel’s settlements in the occupied territories, 1967-2007 (nation books, 2007), 279. note 14. it is worth mentioning that israel has capped agricultural uses and well drilling in the west bank for both israelis and palestinians. nevertheless, there is a noticeable difference in the treatment given to both. military order n. 158, issued shortly after the six-day war, determined, among other provisions, that palestinian wells could not exceed a depth of 140 meters, while israelis were allowed to drill wells over 800 meters. le prestre (2000, p. 466) states that since 1967 no palestinian has been authorized to drill a new well for agricultural purposes or to repair a well in the vicinity of an israeli one. note 15. the palestinian water allocation according to the oslo agreement of 1995 was 118 million cubic meters (mcm). in 2016, the available water was 113 mcm compared to a demand of 148 mcm, indicating that the water demand far exceeds the available water supply for all uses, therefore palestine purchases 70 mcm from the israeli water company mekorot and the estimate is that this figure will increase to 106 mcm by the year 2022. in sum, palestinians extract less water nowadays than they did before oslo, a trend that seems to be the palestinian pattern of water access to the near future. note 16. concerning the hydropolitical effect of such arrangement, it is worth mentioning, for instance, that the construction of much needed water distribution systems for palestinians are not permitted in the mountain aquifer, one of the main groundwater reserves located at the west bank, due to restrictions imposed in area c by israeli authorities. note 17. though the palestinian population of the west bank has nearly doubled since oslo 2 was signed, palestinians are only able to use 14% of the shared water resources due, in part, to an overestimation of the amount of water available in the areas designated for them, limited output from old drills and lack of investment. israel, on the other hand, uses 86% of the water resources, 6% more www.scholink.org/ojs/index.php/elp economics, law and policy vol. 1, no. 1, 2018 45 published by scholink inc. than what it was allocated in the agreements. consequently, the palestinian authority is forced to purchase from mekorot an amount two and half times greater than that set out in the cited accords (source: http://www.btselem.org/water/201609_israel_cut_back_supply). access on 06/4/2017. microsoft word elp-v2n2-p156 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 2, 2019 www.scholink.org/ojs/index.php/elp 156 original paper the just war and the mystry of self defense walid fahmy1* 1 department of public international law, faculty of legal studies, pharos university in alexandria, alexandria, egypt * walid fahmy, department of public international law, faculty of legal studies, pharos university in alexandria, alexandria, egypt received: june 23, 2019 accepted: july 5, 2019 online published: august 1, 2019 doi:10.22158/elp.v2n2p156 url: http://dx.doi.org/10.22158/elp.v2n2p156 abstract the theory of the just war initiated by st. augustine must absolutely seek peace. to avoid this being the case, two phases are defined: jus ad bellum; the jus in bello. thus, self-defense as a just cause is a concept often addressed in international law and its explicit recognition in article 51 of the united nations charter has made it even more present. but, from the adoption of the charter to today, there are many examples of actions or arguments of states based on self-defense that are more or less in phase with each other. the most recent references to the concept of self-defense have developed in a particularly volatile international context since the attacks of september 11, 2001, and the consequences that ensued. the relationship between the just war and self-defense raises some questions: can the anti-terrorism war, the preventive war and the war against non-state actors be considered part of the principle of self-defense? what are the criteria for jus ad bellum and jus in bello considered during the selfdefense? keywords just war, jus ad bellum, jus in bello, self-defense, terrorism, preventive war, the war against non-state actors 1. introduction the possibility of just war offers three necessarily related series of questions. there are issues encompassing the states of the reasonable turn to war, which surmise that war is a honest to goodness method of direct. these are inquiries of jus ad bellum, and conjure the deontological standards of just cause, the legitimate authority and right intention. every one of these criteria might be met, yet it might at present be hasty or foolhardy to take up arms. thus, the outcomes can’t be totally disregarded—offering ascend to inquiries of last resort and proportionality. furthermore, there are issues identifying with the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 157 published by scholink inc. direct of war, inquiries of jus in bello, all the more regularly alluded to as the laws of war or the laws of armed conflict (boucher, 2011, pp. 92-93). the self-defense is the pillars of armed conflict. that is why the decision of military intervention should be made in accordance with the rules of international law. article 51 of the charter of nations expresses the common law of self-defense. it is opposable to all states as a constituent element of the mandatory rule of the prohibition of the use of force, both on a contractual basis and, subject to its purely procedural aspects, as customary. its purpose is to regulate the relations between states, the relations between individuals putting at stake self-defense to another title, to determine according to the material right applicable. the jus contra bellum, under which article 51 of the charter must be placed, presupposes that one is in the hypothesis of the attack of one state against another state (tsagourias & politis) (note 1). if, on the other hand, it is a question of protecting not a state but its life or its security on an individual basis, the self-defense is understood in a different sense, with conditions of application which do not necessarily correspond to those applicable between states. thus, it was noted that the united nations forces could respond in self-defense under conditions defined in specific provisions (corten, 2014, pp. 653-654). the use of armed force involves also the protection from terrorism against aggression by non-state actors. this aggression is characterized by a serious breach of the obligation to respect the fundamental rights of individuals, by the creation of measurable damage, and by a connection between the breaches of the obligation and the damage. the army intervenes only in case of self-defense and if there is damage. there is not fundamentally a difference between a states’ aggression, potential aggression and an aggression organized by non-state actors or terrorist group. this is a simple and unambiguous answer to the question of what is the difference between the us intervention in “afghanistan 2001”, “iraq in 2003” and that of 1991 called the “desert storm” (yoo, 2003, p. 564) (note 2) following the invasion of the kuwait and “syria 2014” (note 3). according to the theory of just war, one can go from jus ad bellum to the practical rules of the use of weapons jus in bello. the use of an army in its strike is never so selective. however, self-defense is a response to aggression against property and/or people. the first constraint imposed by self-defense is the proportionality of the response and the necessity. the second constraint imposed by self-defense is that the response does not strike third parties (principle of discrimination). 2. the majors’ aspects of just war and its applications 2.1 the war should begun justly by legitimate sovereign authority acting on a just cause (jus ad bellum) jus ad bellum can be summed up in an extremely basic articulation put forward by thomas aquinas. on the chance that a war is started fairly it is done as such by sovereign authority following up on a just cause with right aim. aquinas, a disciple of augustine’s composition, destitute down the fundamental components of augustine’s work and arranged it into the trinity of jus ad bellum. every component of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 158 published by scholink inc. aquinas’ announcement is of basic significance to the comprehension of jus ad bellum in all. the request of necessities that aquinas states is critical, the first being sovereign authority. a sovereign authority is a properly constituted power concerning the pursuing of war. a war can’t be viewed as just except if it has been announced by a pioneer or leader formally put into control by the population it administers universally perceived as having the inborn authority to do as such (holmes, 2011, p. 14). furthermore, jus ad bellum is customarily seen as the assortment of law which gives grounds supporting the change from peace to war (stahn, 2007, p. 926), in other words, to reinforce peace by restrict war (hakimi, 2017, p. 43). the just cause is one of the requisites of jus ad bellum that is, one of the requirements for the turn to armed force. contemporary just war scholars frequently accept, thusly, that the necessity of worthwhile just cause applies just to the underlying resort to war, and that after war has started the only thing that is important is the means by which the war is led. in any case, this can’t be correct. it is conceivable that a war can start without a noble motivation and just cause yet turn out to be exactly when a worthwhile just cause emerges throughout the battling and assumes control as the objective of the war (macmhan, 2005, p. 2). without a doubt, the just cause is, constantly required for taking part in war. just cause determines the limits for which it is reasonable to take part in war, or that it is allowable to seek after by methods for war. one vital ramifications of the possibility that any commitment in war requires a just cause is that when it has been accomplished, continuation of the war lacks reasons and is along these lines impermissible. the just cause in this manner decides the conditions of the end of war (macmhan, 2005, p. 2). but defender a worthy cause is not enough to legitimize military intervention. governments at war must also demonstrate that their true intentions are just and honest. this is the second criterion of just war (benjamin, 2007, p. 11). moreover, just wars are just waged by sovereign authority for the expressed causes and not for concealed reasons. all through history numerous sovereign authorities have gone to war guaranteeing that their expectation was to bring equity, when in certainty their shrouded motivation was to secure power for themselves. this is the genuine importance of right intent (holmes, 2011, pp. 15-16). it is, however, quite difficult to know the real intentions behind a declaration of war. it is for this reason that it is almost always preferable for a military operation to be conducted by a coalition, such as nato in kosovo, rather than by a state alone. in this respect, one must avoid confusing the legitimacy of a war with the legality of war (corten, delcourt, 2000, p. 20) (guicherd, 1999, pp. 19-20) (note 4). the third condition of a just war is that the use of armed force is decided by a legitimate authority. this statement gave the impression that the only legitimate authority authorized to authorize a military intervention is the united nations. this interpretation is however questionable. if the authorization of the security council is preferable, it is not always obligatory at the outbreak of a just war. when the security council is paralyzed because of rivalry among the permanent members, it may be acceptable not to seek the consent of the un to respond to an emergency situation (benjamin, 2007, p. 12). in 1950, a resolution authorizing a military operation against north korea was www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 159 published by scholink inc. defeated because of a ussr boycott of the security council, protesting against the non-recognition of chinese communist membership in the united nations. the united states was calling then the united nations general assembly, which invokes an exceptional provision to support the intervention (neuhold, 2000, p. 78) (note 5). the legitimacy of a war then depends on a fourth criterion: the last resort. war must be waged only if all reasonable peaceful means have been exhausted. there will always be people for whom the use of violence is decided too hastily. in 2003, france was also probably right to demand more time to allow the un inspectors team to do its work in iraq. but on the contrary, it is not desirable that the principle of last resort should always be observed in a scrupulous way. the best example of this is probably the appeasement policy of the western powers at the german border on the eve of the second world war. with hindsight, it is possible to say that france should not have remained passive at the time of the rearmament of germany and the occupation of the rhineland by the armies of hitler in 1936. on the other hand, the reasons for not intervening are sometimes very serious. according to the fifth principle of just war, that of reasonable chances of success, an armed intervention must be undertaken only if it has good chances of eliminating the threat or at least reducing its scope. some wars are better not to be carried out and they would be too risky. a war against russia in favor of the chechens would probably help to accelerate the acts of violence against the chechen population, not to mention the danger of triggering a nuclear war with russia, which do not take place or are interrupted because it is too difficult to consider an outcome to the conflict, as in algeria or somalia in the 1990s. the last criterion of jus ad bellum is the proportionality of the response. the response to a threat must be proportional to the severity of the offense (benjamin, 2007, pp. 12-13). 2.2 the justice of waging war (jus in bello) the second fundamental doctrine of just war theory is jus in bello. it means the equity of taking up arms or how the viciousness of war is restricted and sensibly connected keeping in mind the end goal to meet political and military points. jus in bello really discovers its underlying foundations in the medieval chivalric code. knights and honorability of the time distinguished a need to confine their battle just to each other and to endeavor to restrict the contribution of outside personnel or non combatants. this was viewed as a piece of the knight’s jus in duellum, or equity in private battle. jus in bello focus particularly on the methods for war. these methods incorporate, however are not constrained to, the weapons that are utilized, the impacts these weapons cause, and the strategies and systems through which battle is pursued (holmes, 2011, pp. 17-18). in addition to the reasons for resorting to war, the moral judgment of war must also take into consideration the manner in which it is conducted. on the one hand, countries at war must guarantee the immunity of non-combatants. under the geneva conventions of 1949, violence must spare civilians, that is, those who do not take part in hostilities and those who do not carry weapons. in history, this principle has often been flouted. during the second world war, the german army massacred almost all the inhabitants of the small village of oradour in retaliation for the activities of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 160 published by scholink inc. the french resistance (benjamin, 2007, p. 14). the united nations charter does not prohibit civil war and it is recognized that every state has the right to use force to preserve its integrity and to crush a rebellion. on the other hand, the united nations charter and a long series of general assembly resolutions recognize the right of peoples to self-determination. the exercise of this right may include the use of armed force to carry it out. there is, therefore, a set of rules governing the use of force in non-international armed conflicts, although these rules are still rudimentary and state practice lacks coherence. there is no doubt that the notion of jus in bello applies to non-international armed conflicts. the content of these rules is more rudimentary than the rules applicable to international armed conflicts, but the existence of a set of conventional and customary rules applicable to non-international armed conflicts is no longer in doubt. there is as well a set of conventional and customary rules governing the relations of parties to the conflict in the event of non-international armed conflict. in its judgment of 2 october 1995 in the tadic case, the appeals chamber of the international tribunal for the former yugoslavia expressly recognized that the concept of serious violations of the laws and customs of war applied to conflicts as well as international conflicts (note 6). similarly, the statute of the international criminal court, adopted on 17 july 1998, allows the court to sanction war crimes committed in non-international armed conflicts as well as war crimes committed during international armed conflicts (bugnion, 2003, pp. 170-171) (note 7). as well, the law of occupation, the main branch of the jus in bello which bargains unequivocally with post-struggle relations, is ill-suited to fill in as a system of administration. both the hague and the geneva law are imagined as lawful structures to address brief power-vacuums after clash. their emphasis lies on the support of open security and arrange and the insurance of the interests of residential performing artists. these requisites drive possessing forces to practice limitation in the forming of the law and organizations of involved domains (stahn, 2007, p. 928). in addition, the groups in conflict must undertake to respect the principle of the proportionality of means. belligerent must not use means under warfare techniques that are excessive or that are not necessary for victory. the most tragic example of this is the atomic bombing of hiroshima and nagasaki. in some cases, pushing the war beyond the limit where it could reach its proper conclusion is tantamount to committing the crime of aggression again (benjamin, 2007, pp. 15-17). these few examples of the practical application of the categories of just war make it possible to show that it is not always impossible to justify war. the classic scheme of the just war is a first useful analytical tool for debating the legitimacy of the use of violence in inter-state conflicts. 2.3 applicability of the just war theories: some cases studies 2.3.1 the gulf war: 1990-1991 the attack of iraq is an in all likelihood case as it was the biggest us power to be submitted anyplace since. the desire is that the president would refer to national interest, national security, and the majority of the just war standards so as to legitimize putting the lives of such a large number of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 161 published by scholink inc. american administration people in danger. a great part of the writing on just war theory refers to the gulf war of 1991 as the quintessential case of admirable motivation in current occasions, in this manner reinforcing the determination of this case (fisher, 2014, p. 25). the international community, as competent authority, talked on the issue of the intrusion of kuwait with phenomenal solidarity. indeed, even the couple of supporters of iraq, for example, yemen and cuba, dismissed the implied extension of the domain as illicit and bolstered wholeheartedly the interest for the reclamation of the regional power and political autonomy of kuwait. indeed, international law gave the point of convergence of understanding which enabled the united nations to act conclusively. in spite of the fact that the actions did for the sake of the un may be liable to basic discourse, the underlying objectives of the organization in this emergency were uncontested and all around concurred. these objectives were characterized definitively by the security council (weller, 2015, p. 23). by taking action against kuwait, we can say without any doubt that iraq interfered with the recognized independence of kuwait and violated its sovereignty, hence breached the rules of international law (de lucka, 1991, p. 271). the just cause in the gulf war case was the forceful conduct of iraq in attacking kuwait. front and center in the discourse, president bush expresses that “the tyrant of iraq attacked a little and powerless neighbor, kuwait—an individual from the arab league and an individual from the united nations”. later in the talk, as appeared in different cases, the president makes reference to the insidiousness executed by saddam’s powers who “assaulted, looted, and ravaged” and specifies that “among those debilitated and murdered”. later in the discourse, the president attests that “no country will be allowed to ruthlessly strike its neighbor”. just motivation, again not unequivocally expressed in those terms, discovers abundant help in president bush’s 16 january, 1991 location to the country (fisher, 2014, pp. 27-28). right intention contentions are various. for instance, the real administration of kuwait will be reestablished to its legitimate spot, and kuwait will be free. another goal is that once harmony is reestablished, iraq will likewise return the overlap, in this manner upgrading the security and soundness of the gulf (fisher, 2014, pp. 28-29). as a last resort argument, president bush referenced the discretionary endeavors of the united states, united nations, arab leaders, the us secretary of state, and the general secretary of the united nations, which were all unfit to influence saddam hussein to pull back his powers from kuwait. every single sensible exertion to achieve tranquil goals had been attempted, and that the alliance nations “must choose the option to drive saddam from kuwait by using force”. in applying just war theory to the gulf war case, every one of the five of jus ad bellum standards are upheld by president bush’s location. the right intention and last resort contentions are the most strong, the competent authority contention is clear and unequivocal, and the worthwhile motivation for this situation is one frequently referred to in the just war writing as excellent. the proportion contention exists, however, it inclines toward insurance of us and unified powers and makes no notice of how us military power will be separate (fisher, 2014, p. 30). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 162 published by scholink inc. 2.3.2 the bosnian war: 1995 the bosnian war was one portrayed by ruthlessness and endeavors at ethnic purging that had not been felt in europe since world war ii. the loathsomeness of the circumstance in the republic of bosnia and herzegovina stunned the still, small voice of humanity. be that as it may, the size of enduring in the republic and in different pieces of the previous yugoslavia remained in sharp differentiation to the clear insufficiency of the international reaction to this case as it unfurled gradually and with edgy consistency before the eyes of the international community for a time of more than three years (weller, 1996, p. 70). it is a no doubt case as a result of the predominant patterns in us thought in 1995 and the hesitance of the united states, before that date, to submit any sizeable power to what many saw as an european issue (fisher, 2014, p. 31). the competent authority for bosnia, was that “the presidents of bosnia, croatia, and serbia all requested to take an interest. the bosnia mission was to be a nato driven mission, and the united states was the pioneer of nato. in the event that the nato plan meets with the endorsement of the us and was sent quickly to congress. at the season of the discourse notwithstanding, the authority referred to was the dayton peace agreement, expedited by the united states, and the solicitation by the pioneers of the three warring states that the united states take part. there is no notice of the un security board in the discourse; however the notice of 25 different countries promising help infers universal approval (fisher, 2014, p. 34). the wrong to be corrected in bosnia was, the murdering of civilians in the vicinity of the bosnian town (ryngaert & schrijver, 2015, pp. 220-221). the actualizing the understanding in bosnia can end the awful enduring of the general population, the fighting, the mass executions, the ethnic purifying, the battles of assault and dread. set back shirking had delayed this key need by 10 years at the expense of thousands of european lives, and the united states had been one of the appeasers”. the united states couldn’t constrain tranquility on bosnia’s warring ethnic gatherings yet by the by, in 1995 ifor was planned to do precisely that. the major contrast was that the war in bosnia had finished up with a us expedited harmony understanding, and now the united states would play a functioning job in actualizing that peace (fisher, 2014, pp. 34-35). the right intentions for this situation were to help harmony and guarantee stability in central europe. majority rule government in central europe would without a doubt be a counter to any future soviet reappearance of intensity, yet russia had filled positive role as an accomplices in verifying the peace (fisher, 2014, p. 35). nato is the main power equipped for doing the mission, and as the pioneer of nato, the united states must be a piece of the undertaking. along these lines, as a state with an influential position, the united states must choose the option to be a part of the mission. because of the idea of the mission, the nuance of the contention, and the way that the united states let the war continue for a long time and the belligerents consent to a peace before us ground contribution, last resort does not element into this case (fisher, 2014, p. 35). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 163 published by scholink inc. the idea of the dedication of us ground forces to bosnia, to execute the dayton peace agreement, may represent irrelevant contentions of last resort and proportionality (fisher, 2014, p. 35). 2.3.3 the iraq war: 2003 the iraq war of 2003 is a no doubt case for this article in light of the fact that the american president submitted us forces to activity in iraq while there were at that point us forces submitted in afghanistan. initially, the security council embraced resolution 1441, which observed iraq to be in material violation of past security council resolutions and compromised genuine ramifications for further obstinacy. at the point when iraq declined to completely consent to these goals, the united states drove a specially appointed alliance called “coalition of the willing” that attacked iraq on march 19, 2003, immediately crushed iraq’s military, and finished saddam hussein’s regime. the united states has preferred the self-defense argument because it lets the us less grateful to the un and because it corresponds to the international law rules that prohibits the out of law (simpson, 2005, p. 171). regardless of this action, other countries numerous international researchers and scholars have contended that international law did not legitimize the war in iraq (yoo, 2003, p. 563). contentions of competent authority are both various and fairly conflicting in president bush’s 17 march location. to begin with, the us president expresses that “the united states of america has the sovereign authority to utilize force in guaranteeing its very own national security”. then the president proceeds to state that “the united states congress casted a ballot overwhelmingly a year ago to help the utilization of power against iraq”. concerning the international community, president bush expresses that the resolutions 678 and 687 of the un from the early are still in actuality, and that “the united states and our partners are approved to utilize power in freeing iraq of weapons of mass destruction”. the president tells the country and the world “this isn’t an issue of power, it is an issue of will”. president bush at that point refers to un goals 1441 which discovered iraq “in material break of its commitments” and promised “genuine results if iraq did not completely and promptly disarm” (fisher, 2014, p. 40). the just cause in the iraq case is hazardous on the grounds that it to a great extent figures on seizure. in the customary sense, president bush basically refers to self preservation as the worthy motivation. the president says that the iraq routine “has a history of neglectful hostility” and tells the country that insight accumulated by this and different governments leaves almost certainly that the iraq routine keeps on having and cover the absolute most deadly weapons ever devised. unlike conventional noble motivation contentions of self protection in any case, this case is a preemptive self preservation contention, as observed when president bush states before the day of awfulness can come, before it is past the point where it is possible to act, this risk will be expelled. military activity dependent on preemptive self preservation as an admirable motivation contention, as indicated by the simply war convention, would require an immanency of threat to be available. president bush counters this in saying that reacting to such foes simply after they have struck first isn’t self protection, it is suicide. as well, the conceivable the risk of saddam hussein utilizing weapons of mass decimation against the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 164 published by scholink inc. united states has prompted a great part of the discussion about the iraq war (fisher, 2014, p. 41). the right intentions bolster the topics of liberating the iraqi individuals from an oppressive routine, evacuating a risk to harmony to the locale and the world, and ensuring american natives. the iraqis are meriting and equipped for human freedom, and that the united states will help construct another iraq that is prosperous and free. the danger to regional and world peace is that, the intensity of iraq to incur hurt on every free country would be duplicated many occasions over (fisher, 2014, pp. 41-42). while never utilizing the particular contention that the united states has been compelled to act or must choose between limited options, president bush went to some length in examining every one of the methods other than war that the united states and the global network endeavored to use before turning to furnished activity. the president referred to diplomacy and the resolutions in the united nations security council (fisher, 2014, p. 42). in applying just war theory to the 2003 iraq war case, every one of the five of the jus ad bellum standards are upheld by the us. the able specialist and worthwhile motivation contentions are not as perfect as in different cases, however both element a portion of the regular legitimizations permitted. the preemptive idea of the military action for this situation has caused a ton of discussion, and the disappointment of us powers to find any weapons of mass destruction in the wake of attacking additionally impelled analysis of the activity. the competent authority contention is likewise one of a kind for this situation as president bush recognizes the craving for an un security council resolution however demonstrates dissatisfaction at the failure to get one (fisher, 2014, p. 43). 2.3.4 syria case: 2013 the just war standards, utilized frequently to legitimize action bad habit inaction, could give a medium to demonstrate that the utilization of us military force isn’t defended in the syria case (fisher, 2014, p. 45). in 1997, the united states senate overwhelmingly endorsed a worldwide understanding denying the utilization of substance weapons, presently joined by 189 governments (fisher, 2014, p. 47). at the point when the circumstance in syria started spiraling crazy in the progress from boundless dissents against al-assad regime to full scale civil war, concerns were raised about syria’s store of chemical weapons and of the potential outcomes both of the weapons being utilized by the al-assad regime or of those weapons falling under the control of terrorist groups (mccormack, 2016, p. 516). in addition, the conflict extended all through 2013. the commission of inquiry fourth report, dated february 5, 2013, revealed hezbollah involvement, and the utilization of chemical weapons in four extra assaults in 2013. early 2013 likewise denoted the inception of action by isis inside syria (ford, 2017, p. 8). the sovereign authority in the syria case is the international community and the united states as to substance weapons. the ordinarily looked for authority of an united nations security council goals is muddled in the syria case because of solid ties among russia and the assad regime (fisher, 2014, p. 47). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 165 published by scholink inc. the just cause in the syria case, was the utilization of chemical weapons. this case is additionally the first in this article where the us explicitly makes reference to just cause, yet transformed. when tending to the congressional right, the president requests that they “accommodate your promise to america’s military may with an inability to act when a reason is so evidently just. the us is unmistakably showing that there is a just cause and utilization the real words, however incomprehensibly utilizes them in clarifying why no action will be made for the occasion” (fisher, 2014, p. 48). the right intention in the syria case is spelled out in president obama’s clarification of the reason for a military action against the assad regime. the motivation behind this strike is deflect assad from utilizing chemical weapons, to debase his regime’s capacity to utilize them, and to clarify to the world that us won’t endure their utilization. another right intention contention could likewise bolster national interest and is identified with united states allies in the syria district. it cannot be overlooked that the potential multiplication of synthetic weapons could undermine partners and in sketching out a possibility of inaction (fisher, 2014, pp. 48-49). since the united states did not make hostile military action in syria in 2013, it isn’t sudden that there is no notice of the united states being compelled to act or having no way out. the last resort factors in the us contention for not making a move, in spite of the qualities of the recently examined contentions for supported action. obama’s administration has attempted strategy and authorizations, cautioning and dealings however substance weapons were as yet utilized by the assad regime (fisher, 2014, p. 49). in applying just war tradition to the syria case, the jus ad bellum standards are upheld by the us argument. the contentions utilized for every one of the standards are in accordance with the just war custom, and are really more grounded, increasingly vigorous, and utilize real just war theory dictionary (fisher, 2014, p. 50). 3. analytical overview of the article 51 of the un charter 3.1 the qualification of inherent rights/droit naturel the self-defense is an inherent right and not reliant or subjunctive on a mandate or mission. while article 51 of the un charter explicitly consecrates the “natural” or “inherent” right in the english text of self-defense, it does not specify, or at least hardly, the rules. these, on the whole relatively well established, fundamentally determine the conditions under which a state can unilaterally resort to armed force, the material or temporal limits of its use and the procedural obligations that accompany its exercise. each of these issues deserves special attention (verhoeven, 2002, p. 51). some scholars consider that this characterization of the right of self-defense, which merely restates the term used in the us note in relation to the paris pact negotiations, has “no legal importance”, it cannot be regarded as a recognition of natural law or as a reference to natural law and conclude that “this expression was chosen to emphasize the fundamental character of a right that belongs to each state” (roscini, 2015, p. 643). in other words, self-defense is a natural right in the sense of a self-evident right. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 166 published by scholink inc. this doctrinal approach to the inherent character of self-defense is also reflected in the state approach in terms of the justification given for the use of self-defense. for example, in order to protect nationals at risk abroad, some states consider that the self-defense invoked for this type of protection is natural in the sense of customary or legal which belongs to each state beyond the law of the charter (sierpinski, 2006, pp. 90-91). the use of the terms “droit naturel” or “inherent right” is without effect on the nature of the right of self-defense. in this regard, there is no doubt that before the adoption of the united nations charter there was a customary law which limited the lawful use of force and also provided for the right to use the force as a means of self-defense. this is, moreover, suggested by the adjective natural in article 51 of the charter of the united nations. it follows that this right “must be considered as a right that exists independently of the charter for and by all states. therefore, member states can also defend non-member states, so that they can assist members if they are the object of armed aggression” (detais, 2007, pp. 78-79). in its preamble “resolution 1368” (note 8) recognizes the inherent right of individual or collective self-defense in accordance with the charter, natural right reaffirmed in “resolution 1373” (note 9). these words seem to have caused some confusion. some have found resolution 1368 ambiguous and contradictory. however, there is no contradiction in reaffirming the indisputable existence of a right of self-defense which justifies a unilateral recourse to armed force if its conditions are fulfilled, while noting that a situation presents the characteristics of a threat to international peace and security that allows the security council to take the coercive measures provided for in the charter (verhoeven, 2002, p. 53). then article 51 refers to the natural right of all states to self-defense and this means that the persons who drafted this charter: their intention was not to restrict or neglect this inherent right associated with each country. international precedents have confirmed this trend through several practices that have continued for a long time and have become stable in customary international law. this means also that customary international law governing self-defense through its scope and scope of work has not changed or been affected (al-haj, 2015, p. 20). it is therefore appropriate to return briefly, as a preliminary matter, to the customary character of self-defense. 3.2 the customary character the inherent right of self-defense (droit naturel) is characterized by its customary character (linnan, 1991, p. 102) (note 10); its benefit cannot therefore be reserved only for states which are parties to the convention which technically constitutes the charter of the united nations, whatever may be in other respects the singularity. in the case of military and paramilitary activities in nicaragua, the icj did not fail to emphasize this, which ensured the conformity to the only customary law of the american behaviors denounced by nicaragua after being prohibited, as a result the strange reservation of the united states in 1946 to accept its acceptance of the optional clause of compulsory jurisdiction, to verify its compatibility with the united nations charter. in so doing, the court finds that article 51 has no www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 167 published by scholink inc. meaning unless there is a right of natural or “inherent self-defense, which is hard to see how it would not be of a customary nature” (verhoeven, 2002, p. 53). the court recognized the existence in international customary law. there is any requirement corresponding to that found in the treaty law of the united nations charter, by which the state claiming to use the right of individual or collective self-defense must report to an international body, empowered to determine the conformity with international law of the measures which the state is seeking to justify on that basis. thus article 51 of the united nations charter requires that measures taken by states in exercise of this right of self-defense must be “immediately reported” to the security council (note 11). it is noted that countries in general should respond to the requirement provided for in article 51 that “the actions taken by members in the exercise of the right of self-defense should be reported immediately to the security council” (gray, 2018, p. 219). the absence of a report might be the motivation to question that the state truly follows up in the right of self-defense (petreski, 2015, p. 7). the right to self-defense is obviously cherished in the united nations charter’, so it would most likely go too far to translate this section as saying that the right of self-defense exists just in customary international law and that article 51 does close to allude to this customary right special case to the prohibition on the use of force. however, some asks whether the court thinks about the right to self-defense, as revered in article 51, to constitute an incomplete treaty standard which, keeping in mind the end goal to be legitimately connected requires alluding to specific parts of the customary right to self-defense. while the above reference makes this impression, a second structure of the court’s position would be that the last parts of the right of self-defense, while having been of an absolutely standard nature in the first site, have been consolidated into the settlement govern in article 51 on the right to self-defense. seen thusly, a total arrangement direction on the privilege to self-defense exists nearby its customary corollary (kreß, 2015, pp. 567-568). at a time when the use of force was not prohibited, self-defense was not necessary to protect oneself from aggression, which was “just” in other respects in employment. it was sufficient not to be in one of the hypotheses where it would have been exceptionally prohibited. it is only with the prohibition of the principle of the use of armed force that legitimate self-defense becomes legally meaningful: it normally becomes the only eventuality where its unilateral use can be allowed. the changeover is unquestionably affected by the united nations charter, which sets up a system of collective security. one does not go without the other. it would therefore be important to discuss the individual or collective character of self-defense (verhoeven, 2002, p. 52). 3.3 individual and collective feature the individual self-defense of a state would be the transposition at the international level of the self-defense of an individual. an attacked state must be able to react immediately in the absence of the intervention of the international structure empowered to implement collective security, as domestic law accepts for an individual. but here the transposition stops, because in domestic law, an individual can see www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 168 published by scholink inc. the implementation of his self-defense controlled by a court, without his consent, which is not the case in international law. in this sense, since, for various reasons, a certain number of states wanted self-defense to be expressly provided for in the charter, it seemed hard to imagine only recognizing collective self-defense. but this collective character of self-defense allowed for a broad approach, especially during the cold war (sierpinski, 2006, p. 91). it is also worth mentioning, the right of individual self-defense has a subsidiary, since it cannot be invoked as long as the security council has not taken the necessary measures to maintain peace and international security (ben flah, 2008, p. 20). under a nation’s inherent right of collective self-defense, a state’s conduct permitted the others states to undertake “necessary actions” to support third state (modabber, 1988, p. 450) (note 12). for different authors, the collective character is the most important, because it would be at the origin of the recognition of the self defense as it was seen previously with the regional approach of the collective security. however, it is necessary to ask whether the representatives of the states participating in the drafting of the charter did not have in mind, in addition to the search for regional participation in collective security, a more traditional view of self-defense (sierpinski, 2006, p. 91). as we have mentioned above, article 51 sets forth the inherent right of individual or collective self-defense in the event of a real armed attack by a rogue entity against one of the members of the charter. therefore, the use of force by one state against another in the name of the realization of the right to individual or collective self-defense is one of the most important foreign policy decisions that any state can take (abbasi, 2018, p. 182). in any case, there are still inquiries concerning when an armed conflict starts for self-defense purposes. the security council and governments have cleared up a few issues since september 11, 2001. an attack must be in progress or should as of now have needed to trigger the right of unilateral self-defense. any previous answer must be endorsed by the security council. there is no self-designated appropriate to attack another state for expect that the state designs or creates weapons that can be utilized in a hypothetical battle (smith, 2006, p. 16). moreover, self-defense, whether individual or collective, must comply with the conditions of proportionality and necessity. in the case of military activities, the icj stated that the specific rule that self-defense would only justify measures proportionate to armed aggression is well established in customary international law. it should be noted that the examination of proportionality can only be decisive in assessing the lawfulness of an action for self-defense if the other conditions mentioned above are fulfilled. the principle of proportionality cannot, under any circumstances, transform an illicit reaction in itself into a lawful response (note 13). it remains to know whether there is a case of self-defense under article 51 of the charter which may be a basis for the use of force, or in a case of collective threat to peace, or in a situation other and in principle excluded by the system of the charter. in international law, self-defense is allowed only in case of aggression year. moreover, for there to be aggression, several conditions must be fulfilled. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 169 published by scholink inc. 3.4 a conditional self defense ratione materiae and ratione temporis article 51 may be applied when a member of the united nations has been subject to “armed attack”. this last wording corresponds to “aggression armée” in french. now and then, the two authentic texts seem to have allowed various assessments of article 51. as an example, in 1956 the netherlands looked over the definition of armed attack given by the article 51. many states refused to recognize the concept of the armed attack the same as aggression and they instead acknowledged a wide interpretation of aggression. whereas others states such as soviet union deemed the armed attack the most grave then the aggression and others such as colombia and mexico recognized the reasonable grounds of the right to self-defense under article 51 only if a state is object of armed aggression. in nicaragua case, the international court of justice embraced a limited point of view of the notion without providing a particular definition. the court proclaimed that the term “armed attack” has a narrower meaning than the words “threat or use of force” and “aggression”. the obvious meaning is that while all use of force is prohibited against the territorial integrity or political independence of another state, not all use of this force will constitute an armed attack or aggression (kretzmer, 2013, p. 242). whatever, in view of these different, even contradictory, approaches to the conclusion on the problem of divergences due to the different language versions concerning article 51, it should not be given more importance (sierpinski, 2006, p. 93). in any case, only armed attack or aggression justifies the use of force in self-defense (ratione materiae). armed attack is often an easily identifiable catalyst, at least in theory, “eliminate uncertainty as to its application in specific circumstances” (waxman, 2013, pp. 159-160). it was nearly thirty years after the entry into force of the charter that aggression was defined by general assembly resolution 3314. this definition is incomplete because the general assembly does not establish an exhaustive list of the acts of aggression, including the invasion, the territorial attack, the bombardment, the blockade of ports or coasts and the attack by the armed forces of one state against the armed forces of another state (maoggota, 2002, pp. 302-304; weisbord, 2008, p. 18, p. 179). the right of self-defense, whether exercised individually or collectively, allows a state that is not directly affected to intervene on behalf of a defense agreement binding it to the state attacked. as such, the icj recognized this by stating that “the charter does not directly regulate substance in all its aspects and does not include the specific, yet well-established rule in customary international law, that self-defense would only justify measures which are proportional to the armed aggression suffered, and necessary to put an end to it. the court reaffirmed that the features of necessity and proportionality constituted two essentials conditions (sine qua non) in the exercise of self-defense” (taft, 2004, p. 303, p. 305; ruiz & salamanca, 2005, pp. 518-521) (note 14), while implicitly excluding, as it does not allude to it, the concept of preventive self defense. these conditions reinforce the exceptional character of self-defense which can only be invoked as long as the security council has not taken the necessary measures to maintain the peace, by virtue article 51 of the charter. being only provisional, self-defense is, therefore, also limited ratione temporis. the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 170 published by scholink inc. drafters of the united nations charter have conceived of self-defense as a kind of limited time parenthesis, allowing states to respond immediately to armed aggression until the security council has had time to take action measures necessary for the maintenance of peace, whether coercive or not. in addition, and still in accordance with article 51 of the charter, the measures taken by members in the exercise of this right of self-defense must be immediately brought to the attention of that body so that it may exercise control over these measures. nevertheless, practice shows that the exercise veto has had the effect of block his action, rendering him incapable of qualifying a situation or taking the necessary steps to restore peace (halberstam, 1996, p. 234). these measures are yet strongly framed. 3.5 the inclusion of self-defense into collective security the concept of collective security had appeared as early as the end of the nineteenth century, in reaction to the european concert of the great powers established since 1815. the small powers were less and less satisfied with a system that gave them little voice, not more than the foreign nationalities in multiethnic countries, such as austria or russia, which were pillars of the european concert, which they used to stifle in the name of balance between the powers. collective security was also a reaction against the permanent alliances of peacetime, which led to the weaving of wartime in 1914, by a seemingly inexorable mechanism that had greatly influenced contemporaries. in particular, the franco-russian alliance of 1891-1893 (secret alliance, automatic) had left a very bad memory, also among the leaders, even if they could not say it too publicly because of the controversies of the twenties and thirties on the french and russian responsibilities in the war (georges-henri sourou, 2011, p. 179). professor serge sur defined collective security as “a global vision of international security, which aims to undermine security for all on the basis of the equality of everyone in terms of security” (sur, 2000, pp. 413-416). thomas cusack and richard stool see that “a minimum adherence to the collective security ideal requires states both to renounce the unilateral use of force for their own ends, and to come to the aid of other states that are the targets of aggression. thus, force is sanctioned as a means to preserve the system and to punish those that would harm it, but force is not to be used for self-interested gain” (cusack, 1994, p. 36). with the adoption of the charter of the united nations, article 51 raises the problem of the insertion of self-defense into collective security by limiting the application of self-defense in time, since its use can only be done “until the security council has taken the necessary steps to maintain international peace and security”. this wording puts into perspective the ambiguity of the notion of self-defense as adopted by the drafters of the charter. article 51 poses a problem both in this part of its wording and in its place in chapter vii, which deals with the competence of the security council in the case of threat to peace, breach of peace and aggression (sierpinski, 2006, p. 91). the will of the drafters of the charter was therefore to create a powerful body, with the means to carry out effective actions in case of need. that is why the security council has been given considerable powers, particularly those under chapter vii of the charter. article 39, which opens chapter vii, empowers the security council to ascertain the existence of a threat to the peace, a www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 171 published by scholink inc. break-up of the peace or aggression. it then provides that the security council, having noted one of the three situations mentioned, make recommendations or decide on measures to maintain or restore international peace and security. now this section organizing collective security ends with article 51 on self-defense. as it is in conjunction with the regional approach to collective security and the fears of certain states, related to the right of veto (samuel barkin, 2006, p. 69) (note 15). rethinking about article 51, we find that the drafters of the text structuring the new international organization wanted to meet all the states participating in its development: the great victorious powers, the states in favor of a regional approach to security, states fearing great powers, but still wanting an organization, states skeptical about the possibility of achieving collective security, etc. everyone must find what they are looking for in this formulation that allows both an immediate response from a state that is the object of armed aggression or armed attack, which may be almost immediate, of the organ responsible for peacekeeping. the believability of collective security is likewise subject to there being legal standards and principles overseeing the connection between the u.n. what’s more, different entities in the field of collective security-regional, sub-regional organizations. in thinking about the connection between the u.n. also, these actors it is germane to ask whether we have a collective security framework in which widespread international and regional act in congruity to add to more prominent collective security, or do we have rivalry between them? the kosovo question raised the issue of the use of force by regional organizations. the charter of the united nations appears to be very clear on these issues. while collective defense is safeguarded for such agencies, any implementation activity past the simply cautious, to manage a threat to the peace, requires the approval of the security council. it could be contended that article 51 of the u.n. charter was embedded to guarantee that regional organizations had the privilege to protect themselves in crisis circumstances when faced with an armed attack. the defy for the u.n. what’s more, regional organizations is to create an adequate legal system that takes into account regional activities and activities however in the meantime directs them. cooperation between the international and regional levels has occurred. this was found in bosnia after dayton in 1995 and in kosovo after serbian withdrawal in 1999, where the nato military works under u.n. approval (white, 2002, p. 246, p. 248) (note 15). proportionality and necessity as characteristics of self-defense must also be recalled since, as noted above, the icj considers these two features important. the motivation of self-defense was restricted to repulsing an attack in progress. the principle of necessity implies that lone that use of force which is essential keeping in mind the end goal to repulse an assault constitutes lawful self-defense. on the off chance that an equipped an armed attack is ended, there is no further need to repulse it. consequently, self-defense is restricted to an “on-the-spot reaction”, the necessary, immediate reaction to an armed attack. therefore, the condition of necessity is associated with the standard of immediacy. it implies that the employment of counter-force must be transiently interlocked with the armed attack activating it. on account of the invasion of another state’s territory, on a basic level an attack still exists as long as www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 172 published by scholink inc. the occupation proceeds. in any case, in the instances of single armed attacks, the attack is ended when the incident is finished. in such a case the resulting use of counter-force constitutes a backlash and not self-defense. in the case of oil platforms, both the attack on the sea isle city and that on the samuel b. roberts had ended when the counter-force was worked out. therefore, the counter-force did not constitute a demonstration of self-defense inside the importance of article 51 (ruiz & salamanca, 2005, p. 518). the question of proportionality implies considering the appropriateness between an armed attack/aggression and the subsequent reaction. the doctrine has shown two conceivable understandings of proportionality: it could be either estimated against the size and extent of the hostility, or the genuine needs of self-preservation. following roberto ago’s perspective, iran kept up the second interpretation, and in this manner proportionality ought to be comprehended as far as the measures taken to stop and repulse the attack. therefore, the decision of the wrong target and the disproportionality of the measures taken would propose that they were of outfitted retaliations as opposed to self-defense (ruiz & salamanca, 2005, p. 520). by taking a more global view of article 51, we see that its logic still mystery. this text does not present an approach that could be described as strictly chronological, which would seem however appropriate to this concept. article 51 begins by binding droit natural/inherent right of self-defense and armed attack/aggression, then immediately limits its exercise in time, while correlatively imposing the information of the security council and recognizing its competence to act. 4. are there requirements of just war in case of self defense? jus in bello, provides rules dealing with various aspects of the conduct during armed conflict, in particular on how to protect persons who do not or no longer take part in hostilities what means and methods of warfare may or may not be used and the rights and obligations of neutral states. ihl distinguishes between international armed conflict and non international armed conflict whatever armed conflict between the state armed forces and an armed group or between different armed groups, and the applicable rules of ihl differ between the two. in any case, compared to jus ad bellum, jus in bello consists of a vast amount of treaty provisions and customary rules (okimoto, 2012, pp. 47-48). in spite of the fact that the two lawful systems manage the use of force by states and different performing actors, they both work in an altogether different manner, which has been the source of the strain between jus ad bellum and jus in bello. jus ad bellum normally makes a sharp qualification between a legal gathering and an unlawful gathering. an infringement of the forbiddance on the prohibition on the use of force can result in different approvals against the unlawful party. then again, the assaulted state is permitted to take counter-measures in self-defense against the unlawful party, gave that the earlier the use of force added up to a aggression. besides, states can use force against the illegitimate party in the event that they are so approved by the security council under chapter vii of the charter of the united nations (okimoto, 2012, pp. 48-49). www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 173 published by scholink inc. partition between jus ad bellum and jus in bello. this guideline is the most crucial one administering the connection between the two legitimate systems. what this rule implies practically speaking is, initially, that the legitimate status of the clashing gatherings under jus ad bellum does not influence the utilization of ihl to the clashing parties and, furthermore, that the use of ihl does not legitimize any unlawful use of force under jus ad bellum. the point of this sharp qualification between jus ad bellum and jus in bello is accurately to secure the simply philanthropic purpose of ihl, which is to ensure all people influenced by armed attack or aggression with no refinement, including the qualification between people having a place with the legitimate party and the unlawful party as far as jus ad bellum (okimoto, 2012, p. 50). a concise overview of significant international armed conflicts after the adoption of the un charter additionally exhibits that the legitimate status under jus ad bellum does not influence the enforcement of jus in bello. in the international armed conflicts, the appropriateness of ihl was reliably perceived by both or any parties, despite the fact that jus ad bellum recognized a legitimate party and an illegitimate party or despite the fact that the lawful statuses of the conflicting parties as far as jus ad bellum were not obvious (okimoto, 2012, pp. 51-53) (note 17). simultaneous use of jus ad bellum and jus in bello depends on the introduce that the division of the two principles best jam the correct utilization of jus in bello which is gone for protecting all people not or never again partaking in threats. in any case, these two standards are presently supplemented by the trend of the simultaneous use of jus ad bellum and jus in bello (okimoto, 2012, p. 56). the practice of self-defense to the case of necessity and proportionality is a customary international law. the use of force that is proportionate under the law of self-defense, must, keeping in mind the end goal to be legitimate, additionally meet the requisites of the law relevant armed conflict which contain specifically the standards and principles of international humanitarian law. as well, the use of nuclear weapons should meet the requisites of both the right of self-defense and international humanitarian law. besides, the use of force by methods for nuclear weapons that neglects to meet every one of the requisites of article 51 is illegal. it ought to likewise be perfect with the conditions of the rules of international law applicable in conflict, especially those of the standards and rules of international humanitarian law (note 18). jus ad bellum especially the law of self-defense and jus in bello can apply at the same time and that the two are combined necessities that must be met all together for an use of force to be legal under international law. as a matter of fact, the forbiddance in war is a zone jus ad bellum manages only. be that as it may, once a state resorts to war, the lead of dangers from there on isn’t only directed by jus in bello yet in addition by jus ad bellum, to be specific the standards of necessity and proportionality with regards to self-defense. in this sense, jus in bello and jus ad bellum are one group of principles managing the lead of threats in self-defense (okimoto, 2012, p. 56). in addition, the defensive force can be utilized just keeping in mind the end goal to counter armed conflicts beginning from a specific limit of force. beneath that limit, the utilization of minor sorts of force misses the mark regarding the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 174 published by scholink inc. thought of armed attack and can’t be met with a coercive reaction. this is likely on the grounds that the self-defense does not safeguard the interest of individual states in reacting to any hostile use of force, yet sees coercive measures as fitting just in light of demonstrations of animosity which impartially imperil their security, and just to the degree important to repulse them. this implies the arrangement of jus ad bellum predetermines the interests for which force can legally be utilized, and additionally their standard of safeguard and that proportionality serves just to decide the methods suitable to achieve that purpose (cannizzaro, 2006, pp. 278-279). at the point when an armed attack starts, the domain of force is inherently open-finished on the two sides and open to heightening. in such a circumstance each side may do what is important to debilitate the military limit of its adversary, compelled just by the standards of jus in bello. as indicated by a few perspectives, at this stage proportionality is judged exclusively by those standards and has no importance in jus ad bellum. these perspectives would appear to be founded on the presumption that evaluation of proportionality in jus ad bellum is for the last time choice, settled on ahead of time when the choice to use force for the sake of the armed conflict is made (kretzmer, 2013, p. 267). nevertheless, the rule of proportionality in self-defense entails certain points of segregation on the selection of targets, impacts on civilians and geological and transient degree of self defense measures. in the meantime, ihl gives various duties and tenets in regards to objects that can or can’t be assaulted, how military aims can be assaulted and which weapons can or can't be utilized, or as michael meier and james hill call it “targeting duties” (meier, 2018, pp. 787-796). all together for specific measures in self-defense to be legal, both the principles in the law of “self-defense” and “ihl” (camins, 2016, p. 139) (note 19) must be conformed to. at the end of the day, if specific measures in self-defense damage either jus ad bellum or jus in bello, those measures wind up unlawful and subsequently, must be stopped promptly (okimoto, 2012, p. 58). a specific use of force may include infringement of ihl however might be viewed as legal under jus ad bellum. for instance, if an objective that was attacked amid a specific military task over the span of self-defense was not a military target inside the significance of ihl, as gave in article 52 of 1977 additional protocol i, this specific use of force damages ihl however might be viewed as proportionate self-defense and thus, legal under the right of self-defense. moreover, presuming an act qualifies as an armed attack, article 52(2) expects it to be restricted entirely to “military objectives” (neuman, 2018, p. 820). for this situation, a state can’t swing to the law of self-defense keeping in mind the end goal to proceed with measures in self-defense that had officially disregarded ihl. once the measures disregard jus in bello, they should be ended instantly regardless of whether they are legitimate under jus ad bellum. in the event that jus ad bellum and jus in bello are both damaged, it only adds further to the individual criminal responsibility and state obligation, and does not change the way that the use of force ought to be ceased (okimoto, 2012, p. 58). at the point when jus ad bellum and jus in bello are exercised simultaneously, the detachment standard keeps the two from being befuddled and protects the best possible utilization of the separate www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 175 published by scholink inc. legitimate system, especially that of jus in bello. the simultaneous application henceforth does not signify blending of jus ad bellum and jus in bello rules, yet rather implies use of the two next to each other. for instance, measures in self-defense can be managed by jus ad bellum and jus in bello in the meantime, yet the lawfulness of those measures is surveyed independently from the point of view of jus ad bellum and jus in bello. the simultaneous application likewise implies that once jus ad bellum and jus in bello apply all the while, the requisites of jus ad bellum and jus in bello end up aggregate and along these lines both must be conformed to all together for the measures in self-defense to be legitimate under international law (okimoto, 2012, p. 59). 5. can anticipatory self defense or preventive war be justified in the doctrine of just war? preventive war is a resort to force that countries are not supposed to employ because it is prohibited by international law, and more specifically by the united nations charter. this prohibition is based on the ambiguity of this strategy which remains, above all, an attack. however, since the establishment of the united nations, some countries have resorted to it in order to prevent a danger, acting in self-defense. this is considered an inalienable right for all countries. the questions that then arise and which we will focus on in this chapter are the following: would it be possible to frame a preventive war, since it would appear that, despite everything, some countries adopt this strategy as an act of legitimate defense? the facts of the post-september 11 period drove the bush administration in 2002 to explain, in extremely solid and open terms, the doctrine and ideology of “anticipatory self-defense” or “preemptive self-defense”. through different things, the doctrine emphasized an advanced directly under international law for the united states to utilize military force preventively against the risk postured by terrorists who retain a weapon of mass destruction (wmd) (murphy, 2005, pp. 700-701) (note 20). acquiescence with international law on the use of armed force presents remarkable issues, for such law embroils center national security interests of states. none the less, all things considered, policy-makers must focus on whether a specific demonstration of “anticipatory self-defense” would almost certainly be viewed as breaching international law, in light of the fact that there might be critical political, monetary and military repercussions (murphy, 2005, p. 702). indeed, the preventive war is presented with the primary intention of self defense; however, as it is a question of attacking first, of a feeling of threat, it is not clear whether to consider it as an act of self-defense, or as an offensive gesture. it was first generally accepted in this theory since considered from a defensive, self-defense point of view. the dominant idea in the legal literature of the day is that states always have the right to fight. then it was officially banned by the united nations charter, through chapter vii (walzer, 2006, p. 145). it is legitimately and deliberately untenable to require a state to endure a armed attack before it might react, and trust that international law enables a state to turn to force in anticipatory self-defense. defenders of this point of view contend that article 51 particularly protects the “inherent” right of www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 176 published by scholink inc. self-defense, which they decipher to mean the right existed before states drafted the charter. that right grasped the rule caught most obviously in the popular caroline incident of 1837 (arend, 2003, pp. 90-91) (note 21). worth mentioning, a numerous states have conjured anticipatory self-defense to legitimize their own employments of force or that of different states. various researchers recognize israel's utilization of force against egypt in 1967 as a classic case of anticipatory self-defense where israel attacked egyptian air force corps after egypt massed its powers on the israeli frontier and shut the straits of tiran. in the meantime, a few states request a noteworthy level of conviction about the danger of the approaching attack and a brief span skyline in which the threat will emerge. for those who consider pre-emptive self-defense legitimate, drawing a reasonable divide between pre-emptive self-defense and unlawful preventive self-defense is a test, ensnaring inquiries concerning what sorts of knowledge ought to be required and what level of certainty a state must have about the precision of that insight. various states support the legitimateness of pre-emptive self-defense. surely, a portion of their announcements may be perused to defend preventive self-defense. most broadly, in 2002 the us created a national security strategy that plainly contended for the respectability of pre-emptive self-defense (deeks, 2015, pp. 666-667). some scholars claim that “the right of defense” incorporates a right of “anticipatory self-defense”, a right that can be practiced just when three criteria are fulfilled. to begin with, there is a standard of intent. it means that “there must be a reasonable significance with respect to the charged attacker to armed conflict”. second, there is a standard of imminence which imply “there must be satisfactory confirmation that elaboration for the armed attack have progressed to the point where it is imminent”. third, there is a foundation of proportionality: “the benefits of a preemptive attack must be proportionate to the dangers of encouraging a war that may be kept away from”. presumably, his approach standard serves to separate pre-emptive attacks from preventive wars. for the additionally guaranteed incidentally that “defense does not go so far as to legitimize preventive war” (lango, 2005, pp. 256-257). to sum up, there is a worthy just cause for un preventive military act when there is a threat to the peace that fulfills both the threat and extent conditions. obviously, when there is a risk threatens the peace that fulfills the danger condition yet not the greatness condition, there still could be sufficient legitimization for un non-military measures. as well, the unimportant ownership of wmd, or even the endeavor to retain wmd, constitutes a threat to the peace. the threat per se is, an obvious threat of harm. however, there is a just cause for un preventive military activities simply if the greatness of such a threat is adequately vast to make the danger an outrageous threat. regardless of whether a preventive war approved by the security council would fulfill the just cause principle, it would not be a just war in the event that it didn’t likewise fulfill the last resort standard. measures other than military force must be attempted first. it is particularly a direct result of the last resort rule that there is extensive doubt about whether a preventive war could be a just war. for, since the peace is just undermined—and the threatened isn’t approaching—doubtlessly there is adequate time to attempt non-military measures www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 177 published by scholink inc. initially—until the point when the threat winds up and coming or the peace is ruptured (lango, 2005, p. 260). also, preventive war would not be a just war on the off chance that it didn’t likewise fulfill the proportionality principle. it may be imagined that the just cause and last resort principles, are excessively lenient, that permitting to preventive war readily. a general purpose of just war theories is to restrict war, and the specific aim is that un preventive military activities ought to be constrained (lango, 2005, p. 263). remain saying, use of force in preventive self-defense unilaterally is much more disputable than the security council-approved preventive employments of power. however, it has its defenders. in the first place, the united states position is frequently portrayed as favoring preventive self-defense; the us has enunciated its right to use force despite apparent dangers and threats postured by wmd, regardless of whether vulnerability stays with regards to the time and place of the enemy assault (iraq case). the us see is driven by a worry that confining state activity until the risk of assault poses a potential threat may mean previous the chance to react to the attack by any stretch of the imagination—an unsatisfactory result when that risk includes fear based terrorists, wmd, or both. besides, a few researchers acknowledge preventive employments of force since they see the un charter as dead. others who defend anticipatory or pre-emptive self-defense yet dismiss preventive self-defense trust that “the danger to the worldwide order and the standard of non-intervention on which it keeps on being based is purely extraordinary for the legitimateness of unilateral preventive act to be agreeable” (deeks, 2015, p. 669). it should ultimately understand the terrorism commit by non-state actors. as a new form of threat to which many countries have declared war, and more precisely the united states. we also want to look at the elaboration of the criteria discussed above, in comparison with this type of very specific threat: can we fight a fight against this new form of threat in the same way that we lead a preventive war or anticipatory self defense? indeed, we would like also to answer the question whether the importance of self-defense in the context of aggression by non-state actors is related to the failure of the security council to respond to such threats? 6. self defense against non state actors: whether the state is willing or unable the jus ad bellum and jus in bello has to be taken into account in history, whether before or after the reduction of the right of recourse to armed force, self-defense or anything similar to it did not concern in principle the actions of individuals, those through which one could not detect state responsibility. thus, the consideration that acts of non-state entities, such as terrorist groups, would be the basis of self-defense action was strongly opposed. the reaction of the united states and its allies in afghanistan after the attacks of september 11, 2001 has often been seen as lacking a valid argument under self-defense, unless it is seen through the attacks an act of afghanistan. from a general perspective on non-state entities, it has been argued that there can be no aggression without the involvement of a state (daboné, 2012, pp. 402-403). but, sometimes the www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 178 published by scholink inc. presence of non-states entities is not at the will of the state, which legitimizes the military intervention of another state in the event of consent of the state in which such entities are located (christakis, 2016, p. 756) (note 22). the advisory opinion of the icj in legal consequences of the construction of a wall in the occupied palestinian territory, emphasized obviously that “article 51” applies “in the case of an armed attack by one state against another state” (note 23). likewise, the armed activities judgment mentions that uganda could not legitimily use defensive force against the democratic republic of congo (drc) because the foremost attacks were not imputeable to the drc (hakimi, 2015, pp. 5-6; de souza, 2015, pp. 227-228). however, aggression by a state through a non-state actor is an indirect armed aggression. in this type of situation, it is not only the aggression itself that constitutes armed aggression from the point of view of article 51 of the charter, but it is the participation of the state, the support given to the non-state actor, which allows the application of self-defense. the application of article 51 of the united nations charter to the aforementioned situations is controversial. ratione materiae, it is generally accepted that a non-state actor may use force in a sufficiently serious manner to be characterized as armed aggression within the meaning of article 51. ratione personae, the application of self-defense in response to assaults by non-state actors is controversial. the use of force against a non-state actor can take two different forms: it can only target the non-state actor, as well as its bases of operations; the use of force can also (or only) target the state from which the non-state actor is acting. as of late, states depend on the “unable or unwilling” test to legitimize the use of force defensively on the domain of a state against non-state attack (tsagourias, 2016, p. 808) (note 24). as a recent example, in 2015 fifteen states contributed in the us-drove alliance besieging the syrian domain. among those states, it appears that just four have expressly summoned the “unwilling and unable” test in the letters sent to—or in the discussions that occurred inside the un (corten, 2016, p. 780). however, different entrants of the alliance did not allude to any “unwilling or unable” test. for this sole reason, the presence of a typical opinio juris for this standard shows up rather dubious. more particularly, four comments can be made in help of this statement (corten, 2016, p. 780). the required relationship was one of direct proxy which implies the non-state actor must be controlled by the state against which defensive act was pondered. this approach necessitates else that the state be either unwilling or unfit to restrain the armed attack or aggression led by the non-state actor in its domain. presently, some contend for an expansion of that standard, recommending that a state can be presented to self-defense act on the off chance that it is unwilling, or just unfit, to act in counteractive action of a real or imminent armed attack executed by non-state performing actors from its domain. the unwilling or unable characterization ought to be viewed as a part inside the previous necessity rule. the standard of necessity can be perused as demonstrating that power in force in self-defense must be a last resort. the unwilling or unable test is certifiably not another or elective course to widen the required conditions for applying of self defense; on the off chance that anything, it is an extra constraint inside the test of necessity that must be seen while guaranteeing the right of selfright of self-defense www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 179 published by scholink inc. against non state actors in the domain of another state (brunnée & toope, 2017, pp. 264-265). finally, any justification for allowing defensive force against non-state actors may be additionally constrained by different conditions that join to article 51. two conceivable outcomes show up. one is to allow defensive force just if the underlying attack is particularly grave. the second is to allow such force simply after the state is given an important chance to coordinate with the operation. the second conceivable confinement lies in the necessity conditions. this necessity joins to article 51 as an issue of customary international law and by and large requests that defensive force be the choice of last resort; the casualty state must fume the plausible choices for tending to an issue before depending on defensive force (hakimi, 2016, p. 16, p. 18). beside all the important jus ad bellum issues, the ascent of the islamic state or the islamic state of iraq and the levant, isil and the military tasks directed against it by remote states in both iraq and syria additionally bring a few fascinating inquiries up in connection to the utilization of jus in bello. the icrc’s view is that ihl is appropriate to the region of belligerent states associated with an extraterritorial niac. in spite of the fact that the icrc recognizes that state practice is uncertain, it conjures the standard of the equality of belligerents as a proof for the application of ihl to the territory of the considerable number of states associated with the niac, in light of the fact that “helping states engaged with an extraterritorial niac ought not have the capacity to shield themselves from the employment of the rule of equality of belligerents under ihl once they host turn into a party to this sort of armed conflict outside their borders” (koutroulis, 2016, p. 828, p. 849) (note 26). there are as well persuading contentions that sure of these essential principles ought to be connected to particular classes of non-state actors, for example, armed resistance group and terrorist groups. for instance, article 3 common to the geneva conventions is applied to armed groups in their ability as parties to a non-international armed conflict (pejic, 2011, pp. 14-16; fischer, 2006, pp. 517-518; aolain, 2007, pp. 1072-1075; detter, 2007, pp. 1072-1075). other essential standards of international humanitarian law is applied expressly to composed armed groups (junod, 1987, pp. 1320-1474), including the “1977 additional protocol ii to the geneva conventions”, the “hague conventions” (howe, 2012, pp. 408-412), “the convention for protection of cultural property in the event of armed conflict” (keane, 2004, pp. 12-17), and customary international law. also, there is a large group of instruments outside the law of armed conflict that force commitments on non-state performing artists, including the terrorism suppression conventions and the genocide convention (lanovoy, 2017, p. 564). as mentioned above, looking for limits on hostility and protection of civilian, a just war holds fast to two all inclusive statements. to start with, utilizing force requires fulfilling in any event a few, and ideally all jus ad bellum components before the armed attack starts. filling in as a pre-conflict structure, jus ad bellum associates the regimes’ longing to utilize viciousness with the need to accomplish peace and maintain security. jus ad bellum isolates the contradictions and the complaints happening from contrasts of supposition or prideful recklessness from issues that are not kidding in www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 180 published by scholink inc. nature and may require utilization of power to determine. second, once in strife, rules oversee military direct and activities in battle. jus in bello fills in as compliment to jus ad bellum, and both work to accomplish a pacific endstate through evading pointless conflict, minimization of brutality, and acting suitably amid war (smith, 2015, pp. 1-2). 7. final remarks self-defense appears to be an ambiguous notion. but does this ambiguity come only from the current crisis in the international community or does it not follow intrinsically from the concept of self-defense when it applies in this context? thus, in parallel with the taking into account of the evolution of the international society, the study of the self-defense will necessarily tend to continue. preventive war is prohibited by all the bodies representing international law. attacking a state-on the mere assertion that it would be capable of an attackis not a sufficient or necessary reason. defense becomes necessary only when the threat is imminent. the example of the iraq war of 2003 allowed us to apply different criteria which, as we have pointed out, were mainly based on what was developed in the theories of just war. whether imminence, last resort, just cause, proportionality or competent authority, it is interesting to note that the issues relating to the study of war remain substantially the same since the criteria are still adapted to our method. the just cause, in a case of self-defense, means that the state is limited to the defense of its country and should not engage in actions other than those necessary and minimal to the defense. designed for conventional international conflicts involving states, article 51 of the united nations charter can only respond to its new challenges through an evolving interpretation. since the attacks of 11 september 2001, the response of the international community to the few states claiming self-defense against a non-state actor has changed. the international community seems more and more inclined to admit this possibility. although this represents the first signs of an evolution, the limited state practice and the fragile acceptance of the international community do not seem to be sufficient to assert that these have emerged from new norms of international law. references abbasi, s. 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(2003). international law and the war in iraq. american. journal of international law, 97. https://doi.org/10.2307/3109841 notes note 1. the assumption of armed action by irregular forces will be considered here in interstate relations, especially in the context of what has been called indirect aggression. the concept of indirect aggression, which has turned into a vital part of present day definitions and of international jurisprudence, but one that has offered ascend to numerous debates. note 2. the resolution 678 approves member states “to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area”. iraq declined to pull back from kuwait before the january fifteenth due date, and operation desert storm started the following day. the use of force by the united states and its allies was justified as an exercise of self-defense. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 185 published by scholink inc. note 3. in august, the united states started airstrikes against the islamic state in iraq, at the iraqi government’s demand. however even as the united states acted in iraq, the islamic state was seizing a more area in syria. in september, a u.s.-drove alliance started striking the islamic state in syria. in the meantime, the united states started hitting the khorasan group in syria. note 4. the position of kosovo poses the question of whether the military intervention of nato member states, formally implemented in the name of protecting human rights and humanitarian law, is not a precedent the traditional prohibition of the use of force between states. the kosovo war has indeed reopened the debate on the advent in international law of a “right of humanitarian interference” which would authorize armed actions in exceptional situations justifying a setting aside of the two traditional exceptions of self-defense or the authorization of the united nations security council. in this sense, the precedent of kosovo is the best indication. this indication stems from two elements. the first relates to the position taken by states on the legality of armed action by nato member states. the second refers to more general pronouncements which, beyond the particular case of kosovo, express the relevance of the traditional principles of non-intervention and non-use of force. note 5. after north korea’s invasion of south korea on june 25, 1950, the united nations security council described the action as a “breach of peace” called for the “immediate cessation of hostilities” and called for the authorities of north korea to immediately withdraw their armed forces. the soviet delegate had been absent since 13 january to protest the retention of representatives of the republic of china on the security council. as this first resolution was not implemented, the council voted a second on 27 june, which called for urgent military action to restore international peace and security and recommended that un members to the republic of korea all the help needed to repel the attackers and restore international peace and security in this region. the soviet delegate was absent, although he might very well have come back. by remaining absent on the 25th, the ussr, in the event that it had its veto, avoided appearing as the accomplice of the aggression. note 6. the tribunal confirms that “customary international law imposes criminal liability for serious violations of common article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife”. prosecutor v tadic, decision on the defense motion for interlocutory appeal on jurisdiction, case no 134 it-94-1, 1995. note 7. in virtue of article 7 (c) in the case of an armed conflict not of an international character, serious violations of article 3 common to the four geneva conventions of 12 august 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) taking of hostages; www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 186 published by scholink inc. (iv) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. note 8. unsc, resolution on threats to international peace and security caused by terrorist acts on 12 september 2001 un doc s/res/1368. note 9. unsc resolution on threats to international peace and security caused by terrorist acts on 28 september 2001, un doc s/res/1373. note 10. nicaragua’s view of the un charter was not credible because of its solution to the issue of the exclusion of a multilateral treaty, which seemed to regard article 15 as an independent source of textual interpretation with regard to limitations on self-defense. case concerning military and paramilitary activities in and against nicaragua (nicaragua v united states of america), merits, judgment of 27/6/1986, icj report 1986, p. 103. note 11. case concerning military and paramilitary activities in and against nicaragua (nicaragua v united states of america), op.cit, p. 200. note 12. in the case of military and paramilitary activities in nicaragua, the united states argued that under a nation’s inherent right of collective self-defense, nicaragua’s conduct permitted the united states to undertake “necessary actions” to support el salvador. note 13. case concerning military and paramilitary activities in and against nicaragua (nicaragua v united states of america), op.cit, p. 237. note 14. oil platforms (islamic republic of iran v. united states of america), judgments of 6/11/2003, icj report 2003, p. 76. note 15. the veto undermined the role of the security council in international life during the cold war undermined the conflicting interests of the superpowers, at least to some extent, in most international conflicts. the voting structure is designed to give states that necessarily play the largest role in maintaining international security because of their military power. perhaps the most important role to be played is to determine the use of force. to avoid the dynamics of the league of nations between the two world wars, when the league seeks military action to combat threats to peace, but no country with significant military forces is really ready to provide the necessary forces. note 16. nato was at the core of the tasks against the fry in 1999. it appears to be odd that nato was in activity in an collective security mold outsider to its birthplaces against the fry in 1999. note 17. for example: korean war: 1950-1953, india-pakistan conflict: 1971, china-vietnam conflict: 1979, iran-iraq war: 1980-1988, gulf war: 1991, eritrea-ethiopia conflict: 1998-2000, kosovo conflict: 1999, us-afghanistan: 2001, gulf war: 2003, lebanon conflict: 2006, georgia conflict: 2008, gaza conflict: 2009 , libya conflict: 2011. ibid, pp. 51-53. note 18. nuclear weapons case (request for advisory opinion), advisory opinion of 8/7/1996, 1996, p. 245, p. 256, p. 266. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 187 published by scholink inc. note 19. ihl allows-inside limits-militarily necessary conduct, and there ar varied things within which wide suffering could also be caused by the legitimate conduct of a belligerent party. note 20. according to the bush administration, “for centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat-most often a visible mobilization of armies, navies, and air forces preparing to attack. we must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. rogue states and terrorists do not seek to attack us using conventional means. they know such attacks would fail. instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction-weapons that can be easily concealed, delivered covertly, and used without warning”. note 21. in 1837, settlers in upper canada rebelled against the british occupation government. the united states took a neutral stance on the insurgency, but american sympathizers helped the rebels supply the men and supplies that were transported aboard a ship called caroline. in response, a british force penetrated overnight from canada into united states territory, seized caroline, set fire to it and dropped it over the niagara falls, killing at least one american. britain claimed that the attack was self-defense, and in his speech to the british ambassador, us secretary of state daniel webster said that the self-defense attorney must appear: the need for self-defense was immediate and compelling. the british forces, assuming that the moment would have allowed them to enter areas of the united states at all, did nothing unreasonable or excessive; the act justified by the need for self-defense should have been limited with such necessity. the terms “self-defense”, “pre-emptive self-defense” and “anticipatory self-defense” usually refer to the right of the state to attack first in self-defense when facing an impending attack. to justify this action, caroline’s test requires two important requirements: the need to use force is imminent, and therefore the search for peaceful alternatives is no longer an option (necessity). the proportionality between the response and the corresponding threat should be proportionate. in the original webster formulation, the necessity criterion is described as “urgent and compelling so as not to leave an opportunity for the choice of means or time for consultation and deliberation”. note 22. the developing danger from isil’s essence in libya raised the issue of the lawful reason for past and potential future military interventions in this state. in february 2015, egypt utilized the theory of consensual military intervention to legitimate its strikes against isil in libya. on 16 february 2015, six egyptian f16 warrior planes, in coordination with the libyan air force, 66 propelled airstrikes against isil in libya, after the decapitation by isil of 21 coptic christians from egypt. such states as u.s respected egypt’s right to self-defense after libya airstrikes. note 23. legal consequences of the construction of a wall in the occupied palestinian territory (request for advisory opinion), advisory opinion of 9/7/2004, p. 139. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 2, 2019 188 published by scholink inc. note 24. for example, the us, australia, canada and turkey among others depended on this test to legitimize their military activity against isil in syria. note 25. the us, australia, canada and turkey among others depended on this test to legitimize their military activity against isil in syria. note 26. vaios koutroulis noted “that the principle of equality of belligerents does not benefit much the rebel groups (in this case, the isil fighters) operating in the territory of an enemy state”. even when the attack by the rebels is directed against a military objective, lawful as this attack may be under ihl, it will still constitute a crime under national law, since ihl rules applicable in niacs do not give to non-state actors a right to participate in hostilities. in other words, the state does not really suffer any severe consequences from “exposing” itself to ihl and the equality of belligerents’ principle rather than “shielding” itself from it. this is not to say that the application of ihl may not have any consequence whatsoever. microsoft word elp-v2n1-p1 economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 2, no. 1, 2019 www.scholink.org/ojs/index.php/elp 1 original paper the effect of religion on the political identity of kurdish youth (with a focus on university students) sabah mofidi1* & somayeh rahmani2 1 independent researcher and lecturer, sanandaj, iran 2 allameh tabatabai university, tehran, iran * sabah mofidi, independent researcher and lecturer, sanandaj, iran received: april 1, 2018 accepted: november 19, 2018 online published: december 5, 2018 doi:10.22158/elp.v2n1p1 url: http://dx.doi.org/10.22158/elp.v2n1p1 abstract this article studies the relationship between religion and political identity in eastern kurdistan located in iran. for this purpose, it reviews at first the theoretical debates on social and political identities, the bases of kurdish individual’s political identity and the situation of religion in kurdish society as one of them. then, the quantitative and analytical methods are used to measure the effect of religion. the results show that religion and religious identity are still important determinants of political identity in kurdistan that is affected by the situation of society. because of both the influence of religion in this traditional society and the existence of a totalitarian religious government, the other social factors and identities cannot practically affect the political identity, though they are also important and powerful in the society, especially the kurdish identity. hence, the political identity of kurdish youth is further affected by the government’s politics and policies that reinforce both iranian and religious identities and prevent the manifestation of the other identities in political arena. keywords religion, political identity, kurdish youth, eastern kurdistan, iran 1. introduction the constant search for identity is not only related to the western culture. according to manuel castles, because of the more strong sentiment of social identity and the affinity of individual to family, there are various identities, and identity and meaning in life are searched in oriental countries too (castells, 2005, p. 50). these various identities and factors affect the political stances and behaviors. in this regard, iran is a multinational and multi-religious society with different and multilayer identities that they play an important role in the socio-political life of individuals. based on the situation of society and individuals, www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 2 published by scholink inc. one of these identities is normally more effective. subsequently, eastern kurdistan as a region located in iran has also a special and different situation, since the iranian identity has been imposed on it, on the one hand, and it has different ethnic and religious identities as primitive and traditional identities and many other new identities that have gradually emerged, on the other hand. these identities including religious one have effect on the political identity of youth in kurdistan. in this relation, this article examines the opinions of a number of young people to clarify the effect of religion on political identity and its measure. concerning the above-mentioned issue, the main question is that, what is the relationship between religion and political identity in eastern kurdistan? it is supposed that religion like the other social factors affects the political identity and behavior, and its effect is considerable, since there is a totalitarian religious government and subsequently the lack of political liberty that as important factors do not allow the other factors and identities to affect in an open political space. indeed, it is more difficult to clarify the real effects of social factors in such situation. the role and effect of various identities and factors on political identity can emerge further in an open political space. therefore, according to the kind of government, the hypothesis is that there is a significant relationship between religion and political identity. studying the real political identity of individuals in closed societies is very difficult. so, about the literature review, it should be noted that there is no a direct research on this subject especially in kurdistan and iran. nevertheless, there are some relevant researches like the works of ibrahim hajiyani (2009), “the sociology of iranian identity”; ahmad rezaiy et al. (2007), “the tendency to ethnic and national identity among iranian turkmens”; somayeh rahmani (2007), “studying the attitude of kurdish elites to collective (national/ethnic) identity, a discourse analysis of national ethnic identity”; and so on. however, in this article as a report of our research, to examining the effect of religion on political identity, we regard some parts including the theoretical parts on social and political identities, the bases of kurdish individual’s political identity, the situation of religion in kurdistan, methodology, findings and analysis of the data, discussion and conclusion. to discuss and explain the results, we further use the jenkins’ social theory, since it is more applicable and relevant to this research than other theories. therefore, it is necessary to have a glance on it at first. 1.1 richard jenkins’ social identity theory the jenkins’ theory and pattern to study the social identity is a combined theory, which has been adopted from the theoretical works of other sociologists like berger, cohen, bourdieu, giddens, barth and some others. jenkins (2004) defines social identity based on two concepts: similarities and differences, namely “the ways in which individuals and collectivities are distinguished in their social relations with other individuals and collectivities. it is the systematic establishment and signification, between individuals, between collectives, and between individuals and collectives, of relationships of similarity and difference” (p. 5). in his opinion, identity is the necessary condition for a social life and www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 3 published by scholink inc. without the social shield of others also is not meaningful. for him the most distinct difference between individual identity and collective identity is the emphasis on differences in the former type and on similarities in the second one. nevertheless, the identity and selfhood of individuals also are generally constructed in society. besides, the embodiment of social identity is another part of jenkins’ theory. for him, social identity is embodied within the framework of social action. indeed, it is the merger of individual and collective aspects of social identity. social identification is not imagined without embodiment (jenkins, 2002, pp. 33-36, pp. 120-121). based on his opinion, time and place or situation have important role in determining identity. in association with situation, the role of power and its effect on the processes of social acceptance and resistance is one of the important points in the theories of most of the contemporary theorists. jenkins mentions the role of power in the internal-external dialectic of identification, the part of its external definition and categorizing people. he distinguishes between the processes of determining collective identity and social categorization. this distinction shows the importance of power centrality and politics in the processes of social stability and change. in the political contexts, sometimes the collective identities are emphasized, advocated, imposed or resisted. besides, jenkins distinguishes between the nominal and real identities. power and politics affect both the identities and play an important role in changing them by using the processes of social categorization (jenkins, 2002, p. 40, p. 42). in relation to the effect of politics and power on identity, also, the institutionalization of identity and the concept of institution as one of the important concepts of jenkins’ theory should be mentioned. the institutions or the institutionalized models of practice have a power known as “way of performing works”. he mentions “organization” as one of the respected institutions in sociology that is important regarding the processes of social categorization, making categories, their distribution, and the institutionalized ways of recruitment practices (jenkins, 2002, pp. 42-43, p. 215). institutionalization, in his opinion, is not a mono-model. it depends on the power source and the integration degree of the other aspects of individual’s identity. in this respect, the political institutions have important role. jenkins mentions that the collective and individual identities—social identity—are two parts of internal-external dialectic process of identification and are regularly produced, reproduced and they are in relationships. besides, individuals institutionalize the social identities but this process is considered within the power relations. in politics, identity is both means and aim. in his theory, the important role of power is emphasized in making the process related to identity and institutionalizing the identities, especially in the formal and informal organizations, and in the processes of social categorization and categorizing related to identity. for him, political power and government are the important types of effective and applied power. he emphasizes the relationship of each field with the “field of power” especially politics and political arena. however, government and its implemented policies are considered as most important external factors that affect identity. in this regard, political identity is more affected by them. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 4 published by scholink inc. 1.2 political identity based on what was mentioned especially about the similarities and differences, identity is often considered as the expression of a person’s belief system and social affinity. various factors including race, ethnicity, gender and others, can make an identity (cristiano, 2017). in this relation, political identity is related to politics and it is “a social identity with political relevance” (campbell et al., 1960, p. 4). political identities may be best realized as forms of common social identities occurred in a political context. for example, according to monroe, hankin, and van vechten (2000), they are “the social categories, attributes, or components of the self-concept that are shared with others and therefore define individuals as being similar to others”, resulting from the “interplay between cognitive processes and social or cultural influences” (quoted by nisbet & myers, 2010). in one sense, political identities may be best viewed as forms of individual schemas that organize information about our political location, status, and social relationships and make some aspects of our collective life world like nation-state, culture, race, language, religion, gender, nationality, class, and so on more politically applicable than others (nisbet & myers, 2010). however, the classical definitions of political identity emphasize a group affiliation and describe the ways in which because of being a member of a special group, a person might represent specific political opinions, attitudes and activities (cristiano, 2017). in the other words, according to campbell et al. (1960), it normally “entails an identity as part of a group with norms concerning shared political beliefs, and the ‘correct’ group position on a political candidate, political party, policy issue, or course of political action” (p. 4). although this group-based definition of political identity is main and more effective, but the situation of politics and contemporary socio-political changes show that individual can earn a political identity based on either a common social identity or self-interest without a group affiliation. thus, this new point of view can be added to the relevant definitions. it should be also noted that the concept of political identity is broader than “politicization” which is restricted to groups engaged in a collective power struggle. some identities are naturally political such as those based on a political party, ideology or issue, while some others rise from the social identities that have earned political content. thus, a political identity is a social identity based on a common political view or it has clearly become political through the norms of a political group governing the view and action of its members. from this viewpoint, the concept of political identity paves a way to develop a group-based political solidarity and cohesion (huddy, 2013, pp. 4-5). so, the political identity refers to a partisan politics namely a specific political party affiliation or partisan identity, which can be shaped by race, different economic class, colonialism and so on (ramon, 2017). in political science, identity is seen as a part of political perspective that is outlined in answer to the question, “who am i?” the other main parts are “demands” and “expects”, the former in answer to the question, “what do people like me want?” and the latter for the answer to the question, “which are our chances to get what we want, provided we are what are?” in this relation, territory, culture, religion, ideas, language, history and so on, may all serve as factors with which notions of political identity can www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 5 published by scholink inc. be established (bryder, 2005). besides, nowadays individuals have several identities, what is known as the multi-identity. nevertheless, based on any society and the situation of individuals one or more of the identities may be important and top priorities for them to make the foundations of their political identities, and they see the prospect of politics from that viewpoint. in this regard, since the late 1960s, issues related to political identity have become a major characteristic of social life in all over the world. by transforming the issues of race, class, gender and so on into daily political life, the political perspective was deeply changed and it made dramatic changes in the world of knowledge and thoughts (horton, 1996). we have already mentioned some various socio-political factors that affect shaping and orientation of political identity. here, it is necessary to mention some other factors also especially the level of political awareness of society and adults, government and its education system and media and its behavior with citizens, non-government media and so on. in association with these factors, according to erikson (1968), the development of political commitment is a key aspect of identity formation in adolescence. youth reflect on the traditions, values and ideologies of their communities and the possible roles they will tackle in adulthood (quoted by yates & youniss, 1998). there is an interconnection between the level of political development and identity formation, and participation in social activities and services has impact on the formation of youth’s political identity and finding their political role in society. besides, three aspects of the experience including a heightened sense of self-understanding, social integration, and political awareness in adulthood help the formation of political identity. therefore, the political and social-historical context, for instance in socio-political relationships and actions, plays a basic role in the process of shaping political identity and socialization (yates & youniss, 1998). governments also try to define the political identity of individuals in favor of themselves. apart from education and media, they use force too. in this regard, it should be noted that seeing people as dangerous, torture and hurt are considered as both maker and destroyer of political identity. the product of torture is normally the ruined self, dignity or political identity of victim. it is performed to change the political identity and to create a new identity. but its opposite is also true. torture may reinforce the same identity or produce a different sense that can be led to a different political identity. for some states, torture has been a means to destroy the political identity of victim to create and impose their favorite intended political identity, but its outcome has not always been in their favor (see parry, 2010, pp. 207-214). for example, torture and trouble have been tools in the hand of the ruling countries of kurdistan to assimilate the kurdish people in kurdistan, but these have often had an opposite result. in the next parts, the political identity of kurdish people is examined. 1.3 bases of kurdish individual’s political identity as it was already mentioned, in both the group-based politics and personalized politics the factors such as nation and ethnic, religion, personal interest, race and so on can play a role in determining the political identity. either an individual is associated to a group or not, the individual’s political behavior www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 6 published by scholink inc. and stance can be related to one of the above factors, though in collective political action, organization and the group-based identity is more effective. based on our knowledge of the kurdish society, kurdish individual’s political identity in eastern kurdistan is further affected by these factors: national or ethnic identity (kurdish), iranian identity and its relevant government and organizations, islam and islamic ideology, social class and left ideology, gender, the kurdish political organizations opposed to the iranian government and their media. however, we only consider the role and effect of religion on the political identity of kurdish youth. 1.4 religion in kurdistan kurdistan is still a traditional society and religion is a part of kurdish culture as a whole. moreover, there are various religions and sects in kurdistan that each one has created a foundation for a distinct social identity. for the existence of political islam and the political power of shiite sect in iran, the other religious groups have felt threatened. since the formation of a shiite islamic state after the islamic revolution 1979, the religious discrimination has increased against the other religions and sects including sunni, yarsan and baha’i that sunnis form a big part of kurdish people and yarasans have a considerable population among them. this situation has affected their political behavior, action and perspective. for instance, the sunni islamic political ideology has also developed against the dominant ideology and it has affected the political identity of a part of people, but because of its illegal and restricted activities, it has not practically been effective. thus, the regime’s islamic political ideology as dominant ideology has generally had high effect on the political behavior of people, whilst there is no freedom for the other ideologies. it has generally reinforced the religious sense of people especially their conservative religious view. so, religion as a whole is one of the factors that has affected political identity and become a basis for the political identity of a part of kurdish people. this effect is better clarified by the following findings of this research. 2. methodology in this research, the quantitative and analytical methods have been used to measure the effect of religion, to collect, and to analyze the data. so, we determined the variables of the research and then the data were linked to our common subjects. for this purpose, and to examine the question and hypothesis of the research, a questionnaire related to the issues and common concepts was designed. the first part of the questionnaire was devoted to the personal characteristics of respondents including their sex, marital status, age, religion, degree and level of education, and field of study. the next parts were allocated to the definition of concepts including religious and political identities. the religious identity was asked and measured by three questions on being religious or not, the level of adherence to religion and their view on the necessity of religion in society. the questions related to political identity as dependent variable were asked in two parts: political perspective including their view about civil liberties and interest in organized activity; and political behaviors and actions. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 7 published by scholink inc. as it is clear, however, the statistical population of the research is kurdish youth and the sample is a part of the youth in a kurdish city, sine (sananadaj). since they had to understand the concepts, we preferred to select them among the kurdish students through the sampling random method that the students were from different universities and subjects. at the next stages, at first a number of university students as statistical sample filled the questionnaire. then, the completed questionnaires were analyzed by spss to find the correlation between variables and to explain the effect of the independent variable. the analysis and interpretation of the data gathered from the studied population were done by using descriptive and analytical (inferential) statistics. the collected data from the questionnaires for each variable were described in terms of statistical-numerical indexes, and an adequate knowledge of the dispersion and demographic features and description of respondents in various parts of the research was gained. afterwards, the relationships between variables were examined and the hypothesis of the research was tested by appropriate statistical patterns. in the above stages, the appropriate statistical analysis methods and the confidence of accuracy and precision of the inferences were required that with a high sensitivity in the research process they were considered and reviewed. eventually, to reach a conclusion the findings were analyzed and discussed. 3. findings and analysis of the data as mentioned above, the research population is the student youth in sine city. our sample population includes 232 persons that their demographic features, their answers to some questions on religious and political identities and the analysis of hypothesis are as following: 3.1 description of respondents’ demographic features sex: among the sample population 97 respondents (42.2%) are female and 133 respondents (57.8%) are male. moreover, two persons have not answered the question. so, most of the respondents are male. age: 9.6% of the sample population is in the age range of 15-20 years old, 62.2% in the range of 21-30 and 28.3% in the range of 31-40. in addition, two persons have not answered the question. so, most of the respondents are in the age range of 21-30 years old. marital status: among the sample population 150 persons (64.7%) are unmarried and 80 persons (34.5%) are married. moreover, two persons have not answered the question. thus, most of them are unmarried. level of education: the responds show that 15.09% of the sample population is associate students, 78.01% of it is bachelor students, and 6.9% of it is master and phd students. field of study: the study field of 172 respondents (74.1%) is humanities and of 60 respondents (25.9%) is non-humanities. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 8 published by scholink inc. religion: the findings show that 205 respondents (88.4%) are sunni muslim, 21 respondents (9.1%) are shiite muslim, 2 respondents (0.9%) are yarsan and 2 respondents (0.9%) have not declared their religion. 3.2 the answers of questions separately the answers to some important questions on religious and political identities are here described. in terms of being religious or not, the majority of the sample population, namely 181 respondents (78%) announce themselves as religious, 48 respondents (20.7%) as non-religious, and three people (1.3%) have not answered. about the adherence to religious rites, the answers show that 83 persons (35.8%) adhere to the rites very much and much, 85 persons (36.6%) adhere to them moderately, 15 persons (6.5%) adhere to them little and very little, and 49 persons (21.1%) have not answered. on the necessity of religion to society, the answers show that 143 respondents (61.7%) think it is very much and much necessary, 57 respondents (24.6%) think it is moderately necessary, 29 respondents (12.4%) think it is little and very little necessary, and 3 people (1.3%) have not answered. therefore, the majority of respondents think religion is necessary to society. in relation to the political identity, 114 respondents (49.1%) agree with the sentence, “i have often relationships with people who politically think like me”, 76 respondents (32.8) are without opinion, 34 respondents (14.7%) disagree with it, and 8 people have not answered the question. about introducing themselves, the answers show that 40 persons (17.2%) like to introduce themselves as iranian, 109 persons (47%) as kurdish, 19 persons (8.2) as religious, 4 persons (1.7%) as rich man, 45 persons (19.4%) as other things, and 15 persons (6.5%) have not answered. so, most of them like to introduce themselves as kurdish people. besides, on their study and reading for pleasure, 33 people (14.2%) mention the religious studies, 8 people (3.4%) mention the left studies, 37 people (15.9%) mention the kurdish nationalist studies, 26 people (11.2%) mention the women studies, 110 people (47.4%) mention the other subjects or they have no study, and 18 persons (7.8%) have not answered. in terms of their political thought, 20 respondents (8.6%) show tendency to the iranian fundamentalist religious faction, 77 respondents (33.2%) to the iranian reformist religious faction, 41 respondents (17.7%) to the kurdish nationalists, 11 respondents (4.7%) to the socialists, 34 respondents (14.7%) to the sunni islamists, 49 people (21.1%) have not answered. about their criteria to select candidates in elections, 14 persons (6%) mention being religious, 44 persons (19%) mention being kurdish, 3 persons (1.3) mention being female, 130 persons (56.1) mention the high level of education, background and good management, 11 persons (4.7%) mention the political faction and party of candidates, 30 persons (12.9%) have not answered. on their tendency practically to the political trends, 10 people (4.3%) show the tendency to the iranian fundamentalist faction, 43 people (18.5%) to the iranian reformist faction, 37 people (15.9%) to the kurdish nationalists, 9 people (3.9%) to the socialists, 20 people (8.6%) to the sunni islamists, and 113 people (48.7%) have not answered. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 9 published by scholink inc. 3.3 analysis of hypothesis in this part, the hypothesis of research and the relationship between the independent and dependent variables are examined to clarify the effects of religion and religious identity on the political identity. according to the normal distribution test of data, the obtained significance level for religion is less than 0.05. so, with 0.95 confidence, it can be said that the distribution of data related to the variable is non-normal. besides, it is more than 0.05 for political identity. so, with 0.95 confidence, it can be said that the distribution of data related to the variable is normal. about the hypothesis, the analysis shows that there is a meaningful correlation between the religious and political identities. table 1. the relationship between the religious and political identities variable political identity religious identity number correlation coefficient significance level coefficient of determination 232 0.768** 0.001 58.982% note.  significance at the level 0.001. based on the spearman test results, the obtained significance level is less than 0/05, so the hypothesis of zero is rejected and the opposite hypothesis is accepted. in the other words, with a confidence of 0.95 we can say that there is a significant correlation between the religious and political identities. the results show that the significant correlation between the two variables is a positive and direct (r=0.768). besides, the coefficient of determination shows that 58/982% of political identity is explained by religion and religious identity and the residual is for the other factors. hence, they support the hypothesis of the research. 4. discussion and conclusion this research totally shows that the kurdish individual’s identity is a multidimensional identity. kurdish, religious, iranian, gender, class and other identities, each one forms an aspect of this identity. these aspects affect the individual and collective political identity of kurdish people that one or more of them can be more important based on the socio-political situation of society. in this regard, based on the jenkins’ theory, it can be said that the political identity like other social identities is also manifested in the socio-political practice and processes. so, when there is no any open space for the activities related to many aspects mentioned above because of the existence of a non-democratic government in iran and subsequently a specific political situation in eastern kurdistan, the effects of these aspects on political identity are lesser, though they have more influence among the people and are socially important. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 10 published by scholink inc. indeed, the important role of political power in changing social identity, as jenkins and others mention, is clearly seen in iran. the iranian government has not allowed the real identity groups such as the kurdish nationalists and some others like the sunni trends to have activity and to emerge in the political arena and to work institutionally and legally. whilst the government has institutionally extended its favorite identities and has reinforced the relevant institutions to work through them, it has prohibited the political institutionalization of the other social identities so that there is no freedom for their relevant media and political parties. the government has attempted to reinforce and highlight the iranian and religious identities, namely in fact shiite fars, and has emphasized and imposed them, while it has resisted against the other ethnic and religious identities. thus, it has tried to change or, at least, weaken the other social identities. this manner has also had high effect on the political identity of individuals and society. when there is no any space for the activity of organizations associated with an identity, the identity is weak practically in the political arena. however, because of both the influence of religion in society and the existence of a totalitarian religious government, religion has generally affected the political identity of the country’s people in different ways especially by the government itself, and it is more effective in the political arena. on the other hand, the kurdish society also is still a traditional one that the high influence of religion has an important contribution in determining the political identity. according to the mentioned findings, most of the respondents have announced themselves as religious, have moderately adhered to the religious rites and have seen religion as a necessity for society. it has been reflected in politics and the government has used it for several decades. in kurdistan, there is no an equal opportunity for the various aspects of individual’s identity especially the kurdish identity to emerge in politics and the political practice and processes. on the contrary, the government has paved a way to extend the iranian and religious identities. even the sunni identity has sometimes more opportunity to emerge in the socio-political space, since the government often uses it; especially it uses the sunni conservative trends against kurdish nationalism. hence, in the current situation, religion is an important determinant of political identity in eastern kurdistan. nevertheless, since the kurdish identity is likely the strongest social identity, as the data also show, if the situation changes into a democratic space, it will probably become a more determinant factor of political identity than religious and iranian identities. references bryder, t. (2005). european political identity: an attempt at conceptual clarification. psicología política, 31, 37-50. campbell, a., philip, e. c., warren, e. m., & donald, e. s. (1960). the american voter. new york: john wiley & sons. castells, m. (2005). the rise of the network society, the information age: economy, society and culture (a. ahmad, & k. afshin, trans.). tehran: tarhe no publications. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 2, no. 1, 2019 11 published by scholink inc. hajyani, i. (2009). the sociology of iranian identity. tehran: strategic research centre, the group of social and cultural researches. horton, c. (1996). topics in political change: the social construction of political identity. huddy, l. (2013). from group identity to political cohesion and commitment. in oxford handbook of political psychology. new york: oxford university press. https://doi.org/10.1093/oxfordhb/9780199760107.013.0023 jenkins, r. (2002). social identity (y. a. tourej, trans.). tehran: shirazeh research and publications. jenkins, r. (2004). social identity (2nd ed.). usa, new york: routledge. https://doi.org/10.4324/9780203463352 nisbet, e. c., & teresa, a. m. (2010). challenging the state: transnational tv and political identity in the middle east. political communication, 27, 347-366. https://doi.org/10.1080/10584609.2010.516801 parry, j. t. (2010). understanding torture; law, violence, and political identity. university of michigan press. https://doi.org/10.3998/mpub.155927 rahmani, s. (2007). studying the attitude of kurdish elites to collective (national/ethnic) identity—a discourse analysis of national ethnic identity (unpublished ma thesis). social faculty of allameh tabatabai university, tehran. ramon, j. c. (2017). political identity. retrieved october 1, 2017, from http://classroom.synonym.com/concept-political-identity-8043.html rezaiy, a. et al. (2007). the tendency to ethnic and national identity in iranian turkmens. melli motalleat (national studies) quarterly, 8(4), 119-139. yates, m., & james, y. (1998). community service and political identity development in adolescence. journal of social issues, 54(3), 495-512. https://doi.org/10.1111/j.1540-4560.1998.tb01232.x economics, law and policy issn 2576-2060 (print) issn 2576-2052 (online) vol. 7, no. 1, 2024 www.scholink.org/ojs/index.php/elp 214 original paper study on the coordination between investigation and prosecution of securities cases from an investigative perspective chenyang zhang 1 1 school of politics and law, tibet university, lhasa city, tibet autonomous region, china received: june 3, 2024 accepted: june 25, 2024 online published: june 28, 2024 doi:10.22158/elp.v7n1p214 url: http://dx.doi.org/10.22158/elp.v7n1p214 abstract this paper focuses on “study on the coordination between investigation and prosecution of securities cases from an investigative perspective”, exploring critical issues in the coordination of investigation and prosecution in securities markets. through literature review and case analysis, it examines the current research status, challenges, and the pivotal roles of legal, technological, and social factors in optimizing the process. research methods include case analysis and comparative studies, delving into strategies and outcomes across different contexts. finally, it summarizes the main findings and outlines future research directions in technological innovation and institutional optimization. keywords securities cases, investigation, prosecution coordination, legal and institutional factors 1. introduction in modern society, the smooth operation and stable development of securities markets are crucial for healthy economic growth. however, these markets face numerous challenges, including complex legal and administrative procedures. among these challenges, the coordination between investigation and prosecution of securities cases stands out prominently. it not only affects judicial fairness and efficiency but also directly impacts trust among market participants and the stability of market order. this paper aims to explore how to optimize the process of investigation and prosecution of securities cases through in-depth analysis and discussion, enhancing judicial efficiency and safeguarding market fairness. firstly, it reviews and summarizes the latest research results and theoretical advances in the investigation and prosecution of securities cases globally. secondly, it examines existing issues and challenges in current research, such as legal complexities and the application of evidence collection technologies. lastly, it proposes optimization strategies grounded in legal, technological, and social factors, offering new insights and methods for the investigation and prosecution of securities cases. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 215 through these efforts, this paper seeks to provide theoretical support and empirical analysis to enhance securities market regulation, promoting healthy development of securities markets and stable socio-economic growth. 2. research status and analysis 2.1 domestic and international research status the coordination between investigation and prosecution of securities cases has long been a focal point in academic and judicial practices globally. scholars both domestically and internationally have conducted extensive research, addressing various aspects from legal frameworks and technological tools to societal impacts. domestic research primarily focuses on the development and optimization of legal frameworks, such as refining definitions of securities violations and procedural enhancements. for instance, china’s securities market has progressively standardized and professionalized the legal definitions and investigative procedures concerning insider trading and market manipulation. additionally, domestic studies emphasize the practical effects of technological applications in case investigations, such as the use of data analytics and artificial intelligence to enhance efficiency and accuracy in evidence collection and analysis (schneider, 2006, pp. 285-312). in contrast, international research places greater emphasis on cross-border collaboration and information sharing in diverse cultural contexts. it explores optimization strategies for investigation and prosecution coordination under different legal systems. for example, the experiences of the united states and european countries in financial market regulation and anti-corruption serve as valuable benchmarks, particularly in practices related to legal norms, judicial transparency, and technological innovation. in summary, significant progress has been made in the research of investigation and prosecution coordination in securities cases both domestically and internationally. however, challenges persist in areas such as legal implementation, technological applications, and international cooperation. future research efforts should deepen interdisciplinary collaboration, combining empirical analysis with theoretical exploration to contribute more theoretical and practical insights toward enhancing the rule of law and judicial efficiency in securities market regulation. 2.2 analysis of existing issues current securities market regulation faces multifaceted challenges and issues concerning the coordination between investigation and prosecution of securities cases, impacting judicial fairness and market order maintenance. firstly, one of the primary challenges lies in legal and institutional aspects. different countries or regions have varying definitions and penalty standards for securities market violations, leading to legal complexities and judicial uncertainties in cross-border case cooperation. for instance, achieving uniformity in legal and institutional approaches across international capital markets involving multi-national transactions requires further exploration and coordination. secondly, inadequate technological support and information management pose significant challenges. despite advancements in technologies such as data analytics and artificial intelligence in securities case www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 216 investigations, issues persist in integrating technological platforms, sharing data securely, and ensuring privacy protection (mahoney, 2009, pp. 325-347). these factors constrain the efficiency and accuracy of investigations and outcomes. thirdly, societal factors such as public opinion and trust among market participants also influence investigation and prosecution coordination. increasing public expectations for judicial fairness and transparency, coupled with the trust of market participants in regulatory oversight, directly impact efforts in maintaining and building market stability and investor protection through the handling of securities cases. in conclusion, addressing the legal, technological, and societal challenges in investigation and prosecution coordination of securities cases requires collaborative efforts among government entities, academia, and market participants. by optimizing legal regulations, innovating technological solutions, and guiding public opinion, a more efficient and fair securities market regulatory system can be established. 2.3 theoretical foundation of the study this study explores the process of coordinating the investigation and prosecution of securities cases based on multiple theoretical foundations. firstly, legal and institutional theories play a crucial role in defining and handling securities violations. using comparative legal system and legal implementation effectiveness assessment theories, this study analyzes the strengths and weaknesses of investigation and prosecution coordination under different legal frameworks, aiming to explore how legal norms can enhance judicial efficiency and fairness. secondly, the study focuses on the core of technological support and information management theories, drawing on the theoretical foundations of data analytics, artificial intelligence, and big data technologies. it explores how advanced technologies can optimize evidence collection, case analysis, and action execution to improve the efficiency and accuracy of investigations (coburn, 2006, pp. 348-368). lastly, social impact and public participation theories are considered as another important perspective. based on social psychology and public policy theories, the study analyzes the influence of public opinion on the investigation and prosecution of securities cases, discussing how rebuilding public trust and market participant trust can promote market stability and sustainable development. in summary, through the integrated application of these theoretical foundations, this study aims to deeply analyze the complexities of investigation and prosecution coordination in securities market regulation, providing theoretical support and empirical analysis to construct an efficient, fair, and transparent securities market regulatory system. 3. theoretical framework 3.1 legal and institutional factors the legal and institutional factors framework of this study aims to analyze and evaluate the impact of different legal systems on the coordination of investigation and prosecution of securities cases. firstly, by comparing legal frameworks across different countries or regions, it delves into their differences and consistencies in defining and handling securities violations. for example, the united states, as one of the world’s largest securities markets, emphasizes strict evidence collection and transparent legal www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 217 procedures to ensure judicial fairness and legality. in contrast, european countries under the eu legal system adopt unified regulatory standards and legal norms, emphasizing the importance of cross-border cooperation and information sharing. secondly, the study focuses on challenges in legal implementation processes, such as the flexibility of legal application, legal requirements for evidence collection, and legal complexities in administrative cooperation. in different legal environments, judicial institutions may face various pressures from political, economic, or cultural perspectives, influencing the effectiveness of legal enforcement and judicial fairness. lastly, it evaluates the role of legal and institutional factors in promoting judicial efficiency and safeguarding judicial fairness. by analyzing the operational realities of different legal systems in investigation and prosecution coordination, it explores their effectiveness in enhancing regulatory efficiency, safeguarding investor rights, and maintaining market order. moreover, the study aims to discuss how legal reforms and institutional optimizations can further enhance the rule of law and enforcement effectiveness in securities market regulation, providing theoretical support and policy recommendations for constructing a just, transparent, and stable securities market regulatory system. through this theoretical framework of legal and institutional factors, the study strives to provide in-depth theoretical analysis and empirical research to optimize the process of investigating and prosecuting securities cases, promoting the advancement and improvement of securities market regulatory systems to meet the complex challenges of international financial markets (strader, john & mihailis, 2021). 3.2 technological support and information management the technological support and information management framework of this study focus on the application of modern technologies to optimize the investigation and prosecution of securities cases. firstly, it explores the practical applications of data analytics, artificial intelligence, and big data technologies in securities market regulation. these technologies not only enhance the efficiency of evidence collection but also enable rapid identification of potential market manipulation and fraud patterns through data mining and pattern recognition technologies, thereby strengthening the monitoring and handling capabilities of illegal activities. secondly, the framework addresses the integration and optimization of technological platforms, discussing how information management systems can enhance case information sharing and data security. modern information technology platforms facilitate inter-departmental and inter-agency information sharing and ensure the security and privacy protection of sensitive case information through data encryption and access control technologies (bennett et al., 2006, pp. 55-88). lastly, it evaluates the potential of modern technologies in improving investigation efficiency, reducing costs, and enhancing regulatory transparency. by introducing intelligent monitoring systems and early warning mechanisms, it can monitor market transactions and abnormal behaviors in real-time, enabling timely responses to market risks and effectively maintaining market order and investor interests. through the theoretical framework of technological support and information management, this study aims to explore and promote the digitalization and intelligence of securities market regulatory systems. by enhancing technological www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 218 application levels and management efficiency, it provides theoretical guidance and policy suggestions for constructing an efficient, transparent, and trustworthy securities market, promoting the modernization transformation of securities market regulation. 3.3 social factors and judicial fairness the social factors and judicial fairness framework of this study aims to explore the significant influence of social backgrounds and public opinion on the investigation and prosecution of securities cases. firstly, it analyzes the degree of social support for judicial fairness and its impact on case handling. social backgrounds include public opinion environments, political atmospheres, and public expectations for the effectiveness of law enforcement. in different social backgrounds, the judicial system may face various pressures from political, economic, or cultural levels, which may affect the depth of case investigation and the fairness of prosecution. secondly, the study explores the role and influence of public opinion in the investigation and prosecution of securities cases. public attention and media-driven public opinion often have a significant impact on judicial transparency and fairness. for example, public reactions to media reports may shape the public image of cases, influencing the credibility and legality of legal procedures. therefore, understanding and guiding public opinion, strengthening public participation and supervision, are crucial for maintaining judicial fairness and rule of law society. lastly, the study evaluates the role of social factors in building a rule of law society and maintaining market order (moohr, 2004, pp. 165-220). by analyzing the interaction between legal systems, government policies, and public participation, it discusses how to enhance regulatory efficiency and credibility through legal frameworks and social support. considering the influence of social factors on judicial fairness, the study aims to provide in-depth theoretical support and empirical research for constructing a just, transparent, and stable securities market regulatory system, promoting sustainable development and rule of law in international securities markets. 4. research methods 4.1 case study method in this study, the case study method will be employed to explore in depth the practical situations and issues related to the investigation and prosecution linkage of securities cases. case study is a research method that systematically collects, analyzes, and interprets individual instances, suitable for detailed exploration of complex phenomena and deriving general conclusions. specifically, a representative and influential securities case will be selected as the subject of study, such as: case name: enron corporate financial scandal case background: enron corporation was once one of the largest energy companies in the united states, bankrupted in 2001 due to extensive accounting fraud and false financial reporting. this case involved numerous legal litigations and regulatory investigations, becoming internationally recognized as a major financial scandal case. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 219 research method: through the case study method, the study will delve into the legal processes, application of technical support, and societal influence on the investigation and prosecution linkage in the enron corporate financial scandal. it will discuss legal aspects such as the application of laws and regulations, evidence collection, and judicial fairness. from a technical perspective, it will analyze the role and challenges of information technology in case investigations. additionally, it will evaluate public scrutiny and responses regarding transparency and fairness in the case handling process. through case analysis, this study aims to deeply understand and analyze complex issues in securities market regulation, providing theoretical and empirical support for enhancing regulatory efficiency. 4.2 comparative study method this study will employ a comparative research method to analyze the legal systems and implementation effectiveness in securities case investigation and prosecution linkage across different countries or regions. comparative research method is suitable for contrasting and analyzing multiple legal, technological, and social factors to reveal similarities, differences, and influencing factors. specifically, the study will conduct in-depth comparisons among the following countries or regions: united states: as one of the largest global securities markets, the united states has rich experience and a mature legal framework in securities case investigations and litigation. europe: including representative countries such as the united kingdom, germany, or france, focusing on their securities market regulatory practices and legal systems under the eu legal framework. asia: for example, china, japan, or singapore, analyzing characteristics and challenges in legal application, technical support, and societal responses during securities case investigations and prosecution linkage. the comparative study will analyze from the following perspectives: comparison of legal frameworks: discussing differences and similarities among countries in securities market regulatory legal systems, evidence collection standards, and legal procedures, including transparency and efficiency in court trials. comparison of technical support: analyzing differences in information technology, data analysis, and artificial intelligence applications, evaluating their impact on efficiency in securities case investigations and evidence management. comparison of socio-cultural factors: evaluating public expectations and responses to legal enforcement and judicial fairness under different societal and cultural backgrounds, discussing their actual impacts on case investigations and prosecution linkage. through the comparative research method, this study aims to deeply analyze the diversity and commonalities in global securities market regulation, providing theoretical support and policy recommendations for handling transnational securities cases. this contributes not only to enhancing international cooperation and development in securities market regulation but also offers profound case analyses and accumulated experiences for academic research in related fields. www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 220 5. case study and discussion 5.1 case study: xyz company financial fraud case case background: xyz company, a global technology enterprise known for its innovative products and services, has recently come under scrutiny due to severe financial fraud in its financial reporting. this has sparked widespread attention from investors and regulatory agencies. the company is accused of overstating revenue and profits in its financial statements, which significantly diverge from actual operational conditions. analysis of legal regulations and regulatory mechanisms: in this case, securities regulatory agencies such as the u.s. securities and exchange commission (sec), financial regulatory bodies in european countries, and other relevant institutions will play critical roles. the sec may intervene to conduct a comprehensive examination of the company under the securities act and related regulations. legal terms such as false statements, fraudulent behavior, and market manipulation will play crucial roles in the case proceedings. application of technical support: in securities case investigations, technical support is indispensable. data analysis tools like artificial intelligence and machine learning algorithms can help detect abnormal patterns and data inconsistencies, aiding in uncovering potential issues in the company’s financial reports. additionally, the collection and analysis of electronic evidence are critical steps, ensuring the integrity and reliability of evidence through digital forensic methods. public opinion and public expectations: public scrutiny over the transparency of company finances and legal fairness will impact the entire case handling process. media coverage and social media pressure may urge regulatory agencies to intensify investigations and demand greater transparency from the company to regain public trust. furthermore, investor and consumer confidence will be influenced by the handling and outcomes of the case, profoundly affecting the company’s future operations and market image. through an in-depth analysis of the xyz company financial fraud case, we can observe the rigorous enforcement of legal regulations, effective application of advanced technology, and the importance of public involvement in handling similar securities market regulatory cases. these case studies not only provide empirical data for theoretical research but also offer robust guidance and insights for relevant policy formulation and legal implementation. 5.2 case discussion the xyz company financial fraud case illustrates the critical importance of transparency and authenticity in corporate financial reporting for investor and public trust in a global economic environment (jordanoska, 2017, pp. 336-355). this case vividly demonstrates how financial fraud, through the exaggeration of revenue and profits, misleads market participants, leading to erroneous investment decisions and market volatility. the following discussion will comprehensively analyze the significance and lessons from this case from legal, technological, and public opinion perspectives. legal perspective: in the xyz company financial fraud case, securities regulatory agencies (such as www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 221 the sec) play crucial roles in combating financial fraud through strict legal frameworks and regulations. legal terms such as false statements, fraudulent behavior, and market manipulation are employed to hold the company and its management accountable. however, the complexities of legal differences among countries and the challenges of cross-border cooperation often necessitate international collaboration and information sharing for effective handling of such cases. technological support: the role of technology in securities case investigations is increasingly prominent. the use of data analysis tools and electronic evidence significantly enhances the efficiency and quality of evidence collection, aiding in the swift detection and revelation of potential issues in company financial reports. however, technological advancements also bring new challenges such as data privacy and information security, requiring collaborative efforts between regulatory agencies and companies to find a balance. social media influence: the influence of public opinion on company financial transparency and legal fairness intensifies through media and social platforms, heightening scrutiny over the case. social media pressures prompt regulatory agencies to actively intervene in investigations and compel companies to disclose more information to restore public trust. investor and consumer reactions also impact the company’s market image and long-term development. in conclusion, the xyz company financial fraud case serves not only as a specific legal case but also as a significant lesson in global securities market regulation and corporate governance. through an in-depth analysis of the roles of law, technology, and societal factors in case handling, this paper provides valuable empirical insights and policy recommendations for handling future similar cases, promoting transparency and stable development in global financial markets (schofield-georgeson, 2020, pp. 1405-1434. 6. conclusion through the case analysis of xyz company’s financial fraud case, this paper deeply discusses the complexity and challenge of the connection between investigation and execution of securities cases under the background of globalization. by analyzing the three dimensions of law, technology and public opinion, we draw the following conclusions: first, laws and regulations play a key role in dealing with financial fraud cases. securities regulators in different countries and regions have upheld market order and investors’ rights and interests by holding companies and their management accountable through strict legal frameworks, such as legal provisions on misrepresentation, fraud and securities market manipulation. secondly, the application of technical support in case investigation continues to strengthen. the use of data analysis tools and electronic evidence has significantly improved the efficiency and quality of evidence collection, helping to quickly identify and reveal potential problems in a company’s financial reporting. however, technological advances have also brought new challenges such as data privacy and information security that require regulators and companies to work together to find a balance. finally, the influence of public opinion cannot be ignored in case handling. heightened public concern about corporate financial transparency and legal fairness has pushed regulators to become more active in investigations and companies to take more www.scholink.org/ojs/index.php/elp economics, law and policy vol. 7, no. 1, 2024 published by scholink inc. 222 steps to restore public trust, which has had a profound impact on the company’s reputation and market image. to sum up, the case of financial fraud of xyz company provides us with an important case study that profoundly reflects the challenges and future direction of global securities market regulation. through in-depth analysis of the role of legal, technical and social factors in the handling of cases, this paper provides valuable experience and policy recommendations for the handling of similar cases in the future, and promotes the transparency and stable development of the global financial market. references bennett, r. s. et al. 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