英文摘要

On the Legal Benefit Basis of Hospice Care and Suggestions for Improvement： Addressing the Shenzhen Special Economic Zone Medical Regulations

LIU Jianli， RUAN Fangfang

（Law School， Southeast University）

Abstract： Hospice care includes "respect for the patient’s will" and "social support for the family of the terminally ill." It is vital to ensure that patients are fully informed and make their own decisions， but also to use professional knowledge to help patients and families face the moment of farewell and death. In response， the state has issued a series of policies and pilot projects to promote hospice services， and cities have taken action accordingly. In 2022， Shenzhen revised and adopted the Shenzhen Special Economic Zone Medical Regulations （hereinafter referred to as "the Regulations"）. In practice， however， controversies regarding hospice care have gradually increased. The Regulations should have responded to the legal benefit basis of hospice care， making it challenging to develop the concept and system of hospice care.

Since the pilot was initiated， hospice care is facing increasing legal challenges， which have not yet been adequately resolved even after the introduction of the Regulations， specifically including the ambiguity of the scope of the subject， leading to the division between the goal and real problems of hospice care； the formal element is too simple， which may undermine the significance of hospice care as general notarization； the content has not yet progressed into a complete paradigm， and is highly arbitrary； the level of validity is unclear， and the definition of "living will" is blurred and controversial； it is still uncompleted in the procedures for the will coming into effect and the terms of the will being modified， making it onerous to apply the regulation into different cases； privacy protection is difficult， and doctors and patients disagree on notification and custody， hindering the promotion of hospice care and infringing on people’s right to health.

According to the positive and negative connotations of the right to health and the requirements of the subject and object， the right to health is the basis of the legal benefits of hospice care. The development of hospice is inseparable from the law， and in order to face the above-mentioned legal challenges， it is necessary to improve it based on the perspective of the right to health： （1） from different actors of hospice， firstly， to clarify the subject and scope of hospice care， i.e.， under the current medical level， only those who can choose hospice due to illness or seniority， and concomitant life risk can choose hospice. Second， to strengthen the rights and responsibilities of hospice participants and to ensure the authenticity of hospice care by clarifying doctors’ and witnesses’ duty of care. （2） from the procedures of making， coming into effect， and modification of hospice care， it is necessary to unify the publicity forms of the hospice care concept， properly use multimedia， and keep up with the times so that hospice care can be more adaptable to life. The key is to clarify the legal effect of hospice care， which is a prior disposition of the right to health and can be made on behalf of the patient under special circumstances but must not violate public order and morality. In addition， the procedures for hospice care to take effect and modify should be refined， so that hospice care takes effect when it is made， or take effect once any modification is made， and all previous decisions are changed respectively thereafter. （3） To protect privacy in a targeted manner， the medical profession should fulfill its obligation to inform patients without infringing on their right to privacy and health. Doctors and patients should jointly keep hospice decisions. The development of hospice care requires a combination of measures， with the law as a safeguard， to respond more effectively to the difficulties an aging society brings and protect citizens’ pursuit of quality of life.

KEY WORDS： hospice care； the right to health； legal benefit basis

Ethical and Legal Analysis of Fertility Preservation for Non-Medical Reasons

ZHOU Yan， JIANG Qixing

（School of Politics and Public Administration， Southwest University of Political Science and Law； Law School， Southwest University of Political Science and Law）

Abstract： The range of infertility patients is expanding in the context of modern life， which is fast-paced， high-intensity， high-stress， and high-pollution. The infertility rate in China has climbed to about 12%-18%. As the infertility rate among couples of childbearing age in China continues to rise， the demand for assisted reproductive technologies， such as fertility preservation for non-medical reasons， is also increasing.

In China， fertility preservation techniques are strictly limited for non-medical reasons， such as the need to meet specific fertility preservation indications and the explicit prohibition of egg freezing for single women. This is because there are technical safety， ethical and legal risks associated with fertility preservation for nonmedical reasons. The technical safety risks are mainly due to the immaturity of the technology， which puts the egg freezer and the offspring born from frozen eggs at risk； the ethical risks are contrary to the ethical principle of "do no harm，" "protection of future generations"， and "social welfare"， and impact on traditional family ethics， induce surrogacy， etc. The legal risks are mainly related to the disputes on protecting children’s rights and interests， women’s reproductive rights， and marital autonomy.

Although the support for fertility preservation for non-medical reasons varies from country to country， the technical development of fertility preservation for non-medical reasons and its legislative regulation are international trends that need to be addressed and responded to in China， even with a more forward-looking perspective.

After analyzing the advantages and disadvantages of fertility preservation for non-medical reasons， this paper proposes recommendations for the future development of fertility preservation technology for non-medical reasons in China： at the ethical level， society should be rational and formalize the application of fertility preservation technology for non-medical reasons， establish ethical principles for the research and application of fertility preservation for non-medical reasons in China， and strengthen the ethical risk review of fertility preservation technology for non-medical reasons in China； At the law level， it is necessary to clarify the legislative system promptly， to strengthen the supervision of technology application in medical institutions， to limit the scope of use by owners as well as to clarify the legal duties of relevant subjects.

KEY WORDS： non-medical reasons； fertility preservation； ethical risks； legal risks

Limitation and Protection of Civil Rights under Rule of Law in Emergencies： Taking as an Example the Responses to Public Health Emergencies

LIU Liang

（East China University of Political Science and Law）

Abstract： Under a public health emergency， citizens’ rights should be subject to necessary restrictions in order to safeguard public health interests， thus making the limitation and protection of civil rights an important topic in coping with emergencies within the framework of the rule of law. When a public health emergency occurs， the primary task is to cut off the chain of transmission and prevent the expansion of harm， which concerns the limitation of citizens’ rights to personal freedom， privacy， property and business autonomy. Apart from preventing the spread of harm， it is necessary to safeguard the health interests of citizens and provide necessary remedies. To achieve this purpose， certain limitation would also have to be imposed on the rights and freedom of citizens， mainly including the rights to health and property. The limitation of rights under rule of law in emergencies requires adherence to basic principles of rule of law， namely， the principle of legal reservation， the principle of proportionality and the principle of due process. The principle of legal reservation requires that only the NPC and its Standing CommittChIilAupuMwE98RabqxeKSzwgnBOOigUot1FzuXyVnA=ee can， in the form of laws or decisions， restrict the personal freedom of citizens. The principle of proportionality requires the following steps： firstly， to determine whether the purpose of limiting citizens’ rights is justified； secondly， to decide whether limiting citizens’ rights helps to achieve the purpose， and then to decide whether the measures taken to limit rights incur minimal harm and least infringements among all the possible measures； finally， to determine whether the public health interests achieved through limiting citizens’ rights are proportional to the harm caused by the limitation. The principle of due process should include openness， clarity of facts， appropriateness of subjects， neutrality in handling and participation in the process. Limitation on citizens’ rights should not exceed the boundaries， otherwise it will go against the spirit of the rule of law. The limitation that is imposed on citizens should be lifted in a timely manner according to changes in the situation. Improving the system of rule of law in emergencies requires the all-round coordination of legislation， law enforcement， judicature and abidance by law. At the legislative level， it should be suggested to restart legislation on extraordinary states， differentiate between urgencies and emergencies， and build a complete emergency legal system； at the law enforcement level， we should carefully examine the practical connotation of administrative principles in emergencies， establish principles and rules of law enforcement under extraordinary states， and meanwhile， set up corresponding supervision rules for law enforcement in extraordinary states； at the judicial level， we should clearly define the functional orientation of judicial organs under the rule of law in emergencies， so as not to affect the response to emergencies while giving play to the function of judicial organs in dispute resolution； at the law-abiding level， we should strengthen the popularization of emergency laws and regulations to help citizens better understand the rule of law in emergencies.

KEY WORDS： public health emergency； rule of law in emergencies； public health interests； limitation of rights

On the Regulation and Supervision of Germline Gene Editing： Based on the "Gene-edited baby" Case

LV Qunrong； CHEN Ziming

（School of Health Administration， Southern Medical University； Center for Global Health Research， Southern Medical University）

Abstract： Gene Editing， also known as Genome Editing， is a genetic engineering technique that modifies specific DNA segments by adding， subtracting， or replacing bases in the target genes of an organism’s genome. Human gene editing can be divided into Somatic Genome Editing （SGE） and Germline Genome Editing （GGE） according to the difference in the editing target. While Somatic Genome Editing has been clinically tested， Germline Genome Editing has only been released for basic research and is not yet allowed to enter clinical trials.

In the 2018 "gene edited baby" incident， He Jiankui and his team clinically conducted germline gene editing， which not only violates the ethical review norms that germ cell gene editing shall not enter clinical trials， but also seriously violates China’s prohibition that gene editing and modification of embryos in vitro culture period shall not exceed 14 days （counted from the date of fertilization）. The "gene editing baby" case seems to have come to an end due to the court’s decision. However， there are still many technical and ethical controversies in the use of germline gene editing. There are also deficiencies in the legal regulation： the technical risk of off-targeting makes the necessity of the technology doubtful， the neutrality of the technology is prone to deviation， and the boundary between the application of the technology for therapeutic purposes and enhancement purposes needs to be clarified. The ethical controversy concerns gene editing as a threat to human dignity and the possibility of altering or even contaminating the human gene pool. At the same time， China’s regulation of germline gene editing is inadequate： on the one hand， it faces the triple jurisprudential dilemma of conflicting values between individual rights and social interests， the lack of a clear law for freedom of research， and the urgent need to protect the rights of the subjects and the babies born； on the other hand， there are three major shortcomings： legal provisions out of an integrated system， difficulty in implementation， and weak supervision.

The "gene edited baby" is undoubtedly a violation of the law. In addition to the regulation of criminal law， it is more important to study further about this incident. We must be cautious about the clinical application of new medical technologies， not only to weigh the pros and cons of the technology itself but also to have a sound legal system to protect the interests of the relevant subjects， to provide clear remedies for the aggrieved subjects， and to comply with ethics and morality while looking at the development and application of technology dialectically. Instead， they should express their views in a realistic manner and， as far as possible， share opinions that are conducive to preventing the misuse of technology.

In view of this， this paper proposes the following suggestions for the systematic regulation of germline gene editing with reference to the practical experiences of germline gene editing and the consensus of the scientific community on its regulation： first， to classify germline gene editing for therapeutic purposes； second， to strengthen the supervisory system of germline gene editing， from the perspective of improving the review on the whole process and clarifying the duty； third， to take into account the protection of the right to informed consent of gene edited subjects and the remedy of the rights related to gene edited babies.

KEY WORDS： germline genome editing； "gene edited baby"； therapeutic； regulation and supervision

Theoretical Analysis and Realization Path of the Right to Basic Pension Insurance of the Prisoners

ZHANG Xinmin； ZHU Guanhao

（Law School， Southwest University； Center for Social Policy and Legal Studies， Southwest University）

Abstract： Basic pension insurance is the foundation of social insurance and social security. It is the basic guarantee for citizens’ senior life. The right to basic pension insurance is a moral yardstick for the civilization of a state and social justice in modern society. It is also a basic right for natural persons to continuously obtain the quality of life survival and development in old age. As the fundamental content of the second generation of human rights， the right to basic pension insurance comprises the common value of human dignity and social security in old age.

In the early 1990s， China initiated reforms on the basic pension insurance system. However， in the design of the pension insurance system， a particularly vulnerable group has been neglected – the prisoners. As a special group in society， whether and how to realize the right to basic pension insurance for the prisoners is still controversial. The justice of the right to basic pension insurance for prisoners lies in a moral and ethical basis for prisoners to acquire human dignity， a guarantee of human rights to achieve the quality of life survival and development， and an essential form of right to promote the chance for prisoners to return to society. Confirming the right to basic pension insurance for prisoners is of great practical significance in eliminating their worries about the pension welfare， restoring their confidence in life， reducing their negative responses and hostility toward society， consolidating and facilitating the effect of rehabilitation， and reducing the cost of social governance.

Until now， the problems of China’s basic pension insurance system for the prisoners include the following three aspects： first， those prisoners who have not reached the legal retirement age cannot continue their basic pension insurance； second， those prisoners who have reached the legal retirement age have their basic pensions suspended； third， those ex-prisoners who have reached the legal retirement age have been deprived of their basic pension insurance benefits， or benefits have been reduced. The reasons are： at the value level， there is a lack of general social recognition of the basic pension insurance benefits for the prisoners； at the normative level， there is a lack of basic law and special legal provisions on the basic pension insurance system for the prisoners； at the practical level， a complete mechanism of transferring and connecting the basic pension insurance relations for the prisoners has not yet been formed.

In order to further enhance the legal system construction of basic pension insurance for the prisoners， the right to basic pension insurance for the prisoners should be clearly stipulated at the legal level， and the Social Insurance Law should be amended accordingly or "basic pension insurance regulations" should be formulated at an appropriate time， in order to add provisions on basic pension insurance for special groups， such as the prisoners； continuously perfect the policies from the top-level design and measures related to the basic pension insurance benefits for the prisoners， establish and improve a specialized basic pension insurance management system for the prisoners， leading by the human resources and social security departments， with the coordination of judicial， public security and civil affairs departments； categorize the prisoners regarding to the types of sentence or situations： fixed-term imprisonment， death while incarcerated， death penalty， life imprisonment， the acquittal by amended judgment， to reshape the mechanism of the continuation and restoration of basic pension insurance relations for the prisoners， and try to improve the current problem and reality of the system， in which the basic pension insurance rights of the prisoners are treated with different standards， so that every citizen， including the prisoners， can have a sense of security in their old age.

KEY WORDS： the prisoners； basic pension insurance； justice； re-socialized， human dignity

Constructing Age-appropriate Protection Rules for Children’s Data

JIANG Shengli； DAI Yuan

（School of International Law and Center for the Study of International Human Rights and Humanitarian Law， East China University of Political Science and Law； School of International Law， East China University of Political Science and Law）

Abstract： Nowadays， children’s use of the Internet has exhibited the following characteristics and trends globally： an increasing number of users， a significantly lower age of first contact with the Internet， and prolonged time spent online. As children engage and even immerse themselves in the Internet， a giant amount of children’s personal data are circulated in cyberspace and are at great risk of being abused. The risks of infringing on personal rights， personal safety and economy in the process of personal data circulation and utilization are even more special and specific to children’s data security.

To address the risks to children’s data， most countries around the world have adopted a domestic legislative model that establishes a certain age threshold and provides special protection for all children’s data below that threshold. While it does provide more expeditious and a higher level of protection for children’s data than general personal data protection， this "one-size-fits-all" model， which ignores the reality of differences in the maturity of individual children at different ages， does not provide comprehensive and appropriate protection for children’s data. In contrast， the main advantage of age-appropriate protection for children’s data as a better way to deal with data risks for children is that it fully takes into account the differences in the maturity of children at different ages， and based on this， it goes further than the existing legal rules， i.e.， it further subdivides the specific ages of children and adjusts and refines the relevant data protection rules accordingly， so that they can better satisfy the characteristics and needs of children’s data protection at different ages. In other words， the age-appropriate protection of children’s data can make greater use of the existing legal rules and meanwhile compensate for their shortcomings. Moreover， it complies with the development requirements of the "contextual integrity" principle， and effectively strikes a balance between "empowerment and protection" in the protection of children’s rights.

Heralded as the world’s first code to provide age-appropriate data protection for children， UK’s Age Appropriate Design Code， issued in 2020， has provided some useful lessons for improving and perfecting children’s data protection. While retaining the basic principles and institutional framework of the general data protection rules， the Code has clarified the delineation of different age ranges of children and validated it. Then it has established 15 design standards that ISPs need to follow so as to provide services to children， and clarified the standards to be followed for new technologies adopted as a result of children’s use of online services. Age-appropriate protection should be the direction for developing the rules for children’s data protection to ensure the security of children’s data. Based on the proper meaning of age-appropriate protection and in order to fully realize its designated effect， we should， in the process of constructing age-appropriate protection rules for children’s data， emphasize that the rules need to effectively fit the distinctive characteristics and special needs of children’s data protection， fill the gaps in the legal regulation concerning children’s passive creation of digital identities， and incorporate multi-stakeholder participation in the governance of children’s data.

KEY WORDS： children’s data protection； age-appropriate protection rules； the principle of contextual integrity； empowerment and protection

China’s Practices in the Empowerment-Oriented International Development Assistance

LIAO Yuhan

（Human Rights Institute， Southwest University of Political Science and Law）

Abstract： Since the end of the Second World War， international development assistance has been an important policy tool for promoting global development. However， traditional "transformation-oriented" international development assistance has not been as effective in eradicating poverty and promoting well-being. Nearly 700 million people worldwide still live in extreme poverty on less than $1.90 a day. The reality proves that international development assistance is a significant failure and the traditional aid system is insufficient to address the world’s growing development difficulties. In recent years， the international development assistance model has gradually shifted to "empowerment-oriented，" focusing on creating conditions and removing barriers， creating the ground for development， and stimulating development momentum by sharing resources， technology， and experience.

The "empowerment-oriented" international development promotion model is based on a reflection of traditional development assistance， taking the relationship between countries as a starting point and the path of solidarity and cooperation of the international community as a way to change the international economic， and political order that causes deprivation and scarcity of rights， and establishing a just global development system. The "empowerment-oriented" international development promotion model advocates a holistic development process， the essence of which is to achieve the common good of sustainable human development and respect for universal humanity. On the one hand， it is necessary to create conditions that stimulate internal development dynamics in countries that are lagging behind. On the other hand， it is necessary to work together to remove the obstacles to development at the international level and create an environment in which development is possible.

As a member of the Global South， China has created a strong impetus for the mainstreaming of the "empowerment-oriented" international development assistance model by creating internal conditions and removing external barriers for partner countries through international cooperation frameworks. Since the 18th National Congress of CPC， China has launched the Belt and Road Initiative， the Global Development Initiative， the Global Fund for Development and South-South Cooperation， and other international development frameworks， which on the one hand， have created a platform for countries around the world to share funds， technologies， and experiences to achieve development， and on the other hand， have created an essential impetus for the global development system to move toward equity and justice. In addition， the international development assistance system has undergone a global change， with countries in the South， including Brazil， South Africa， and India， beginning to play a more active role in the global development system and traditional donors gradually changing their approach to aid， demonstrating that the"empowerment-orientated" assistance has gradually gone mainstream. Therefore， the"empowerment-orientated" international development assistance model can effectively resolve the "secondary" and "inverted" dilemmas faced by traditional international aid approaches. It advocates the sharing of resources， technologies， and experiences to create the environment for development， change the situation of poverty and inability to enjoy rights rooted in the global economic and political structure， and promote the autonomy of developing countries and their people to choose their development paths.

KEY WORDS： international development assistance； empowerment； development； Belt and Road Initiative

On lex causae in Cases of Human Rights Violations by Transnational Corporations： A Study based on the Legally Binding Instrument to Regulate， in International Human Rights Law， the Activities of Transnational Corporations and Other Business Enterprises

LIU Yang

（College of Law and Politics， Zhejiang University of Technology）

Abstract： Article 11 of Legally Binding Instrument to Regulate， in International Human Rights Law， the Activities of Transnational Corporations and Other Business Enterprises （Third Revised Draft） 2021 by the UNHRC， is dedicated to providing specific provisions on conflict norms in cases of human rights violations by transnational corporations， which gives important guidance for the reasonable determination of the lex causae in cases of human rights violations by transnational corporations. The particular contents of its provisions have been finalized through several revisions in Article 7 of the "Zero Draft" in 2018， Article 9 of the "First Revised Draft" in 2019， and Article 11 of the "Second Revised Draft" in 2020. Article 11 of the Third Revised Draft stipulates human rights violations by transnational corporations as particular violations involving foreign countries， while the ancient substantive/procedural dichotomy is inherited in the determination of the lex causae. The procedural issues of human rights violations by transnational corporations are governed by the law of the forum state， while the substantive issues are governed by the law of the place of violation or the place of residence of the violator， unilaterally chosen by the victim based on the principle of protecting the weak. On the one hand， on the issue of determining the law applicable to procedural issues in cases of human rights violations by transnational corporations， the custom of applying the forum state law to procedural issues has a long history， dating back to the era of "the principle of distinction." However， the identification of procedural issues in private international law is not entirely symmetrical with the interpretation of procedural issues in procedural law， so identifying procedural issues in cases of human rights violations by multinational corporations will be difficult. In addition， the conflict norms of procedural issues in Article 11（1） may also lead to the abuse of the forum state’s law. On the other hand， on the determination of the law applicable to the substantive issues in cases of human rights violations by multinational corporations， since the unilateral selection of the law applicable by the victim is not a criterion and an element of the selection of the court in international civil litigation， and the scope of the law applicable to the victim’s unilateral selection is the law of the State where the violation is committed， or the law of the State where the violator is domiciled， the unilateral selection of the law applicable to the victim granted by Article 11（2） will not lead to the selection of the court. The right to choose the applicable law does not affect the tortfeasor’s foreseeability of the lex causae. Nevertheless， the conflict norms on the substance of Article 11（2） have multiple limitations such as lagging and inconsistency， and ignore the complexity of human rights infringement cases by multinational corporations. China attaches great importance to protecting human rights in transnational business activities. However， the Law of the People’s Republic of China on the Legal Application to Foreign-related Civil Relations does not have particular provisions on the conflict norms of human rights infringement cases by multinational corporations for the time being. In the future， China may adopt a division system for the conflict norms of human rights infringement cases by multinational corporations according to the types of human rights and the modes of behavior. Based on the division system of the types of human rights， China may apply different conflict norms to the infringement of environmental rights， labor rights， personality rights， property rights， and other fundamental human rights by multinational corporations respectively； based on the division system of the modes of behavior， China may separately formulate different conflict norms for the infringement of human rights by multinational corporations in the online and offline environment.

KEY WORDS： human rights responsibilities of transnational corporations； selection of law in foreign countries； substantive/procedural dichotomy； the law of the country of domicile of the tortfeasor

The Translocality of Climate Justice and its Contribution to the International Climate Change Regime

Douglas de Castro， Alana Costa

（School of Law， Lanzhou University； Master Candidate， School of Law， Ambra University）

Abstract： In the risk society， where scientific uncertainties and unknown risks prevail， the regulatory effectiveness of the international climate change regime is put to the test. In view of this， the international community has met several times aiming to combat the existential emergency that climate change brings， however， there is a great abyss regarding the efficiency of the regime that separates the international from the national dimension， which produces lethargy ixWhsHC2dRBy2lhw+wPj6JZBAMH9SmLZ2DkNG5avbJw4=n the face of threat. However， it is precisely in this space between the international and the national that the translocal assumptions of climate justice emerge， thus contributing to the flow of ideas， shared values and principles and alternative views of the world， therefore， extrapolating the limits of national/sovereignty and entering the traditional spaces of production of international law. The climate change regime is still in the process of consolidation and its implementation has been experiencing some difficulties in terms of monitoring and achieving the goals established by the States. Climate change and its socioeconomic and environmental effects require great attention from public managers. The urgency of the phenomenon shows the need for adequate institutional mechanisms to face it. Climate justice connects human rights and development， pr