University of Macau / Faculty of Law

過去學者討論僧人與國家之關係，多強調來自國家的制度規定，忽略了僧人的主觀能動性。本文則從護僧榜文出發，嘗試以自下而上的視角去探討僧人與國家的關係。此類榜文在有清一代多地出現，看似係皇帝聖旨，強調國家對僧人的優待政策，被不少僧人隨身攜帶。更有甚者，榜文被張掛、勒石記錄或刻板刷印以擴大影響。而事實上，清帝從未頒行過護僧榜文，所謂的護僧榜文是僧人為維護自身利益製造出來的。 諸多普通民眾難以判斷榜文的真假，而地方官紳大多對這類民間文本並不關心，認為其無關緊要。也有佞佛官紳利用此類榜文來鼓吹佛教，幫助維護寺廟與僧人的利益。通過對護僧榜文的研究，可以看到僧人並非只是國家規定的被動接受者，他們借用國家的名義，製造、傳播并利用符合自身利益的"國家規定"。 / Most previous research on relations between monks and the state focused on the state regulations, and ignored the monks’ subjective initiative. In Comparison, this thesis centers on the various Official Placards of Protecting Monks in the Qing dynasty and tries to discuss the relationship between monks and the state from a bottom-up perspective. Those placards, taken by not a few monks, were similar to imperial edicts in format, emphasizing the state’s amiable position toward monks. Occasionally, people posted these placards on the wall, or carved them on the stele, or printed them out, in order to expand influence. As a matter of fact, Qing emperors had never issued such a kind of edict. Therefore, the so-called Official Placards of Protecting Monks were counterfeited by certain monks for their own sakes. On the one hand, it was difficult for many commoners to tell the authenticity of these placards. On the other, the majority of local officials and elites did not bother themselves with these placards. Nevertheless, a few local elites took advantage of these very placards to promulgate Buddhism and protect monks and their temples. In sum, the Official Placard of Protecting Monks throws light on another aspect of the relationship between the state and the monks, revealing that monks were by no means passive receiver of state regulation. On the contrary, by manipulating the credit of the state, they were able to produce, spread and capitalize on the so-called "state regulations" in their own interests. / Detailed summary in vernacular field only. / 伍金菊. / "2014年10月"--Title page. / "2014 nian 10 yue"--Title page. / Parallel title from English abstract. / Thesis (M.Phil.) Chinese University of Hong Kong, 2015. / Includes bibliographical references (leaves 133-148). / Abstracts also in English. / Wu Jinju.

Chan, Yiu Ming Gordon. / Thesis (Ph.D.)--Chinese University of Hong Kong, 2013. / Includes bibliographical references. / Electronic reproduction. Hong Kong : Chinese University of Hong Kong, [2012] System requirements: Adobe Acrobat Reader. Available via World Wide Web. / Abstract also in Chinese.

在網絡上，資訊技術及其使用改革了版權作品的使用方式。因特網根本性改變了版權市場。本文試圖論證，中國內地法律必須給予資訊技術足夠的發展空間，同時不能不合理地損害版權所有人的利益。 / 本文認爲，在中國版權立法和適用中，版權功利主義理論起著根本性作用。根據功利主義，版權法的目標是促使社會文明的最大化發展。而且中國政府必須發展數字經濟，且須保證其版權法合理地促使網絡中間商運行和投資中國數字經濟。中國版權法需爲資訊技術提供足夠的發展空間。 / 基於為資訊技術發展尋求足夠發展空間的目的，本文分析了Sony案抗辯，通知－删除避風港，誘導侵權和合理使用。中國必須合理解釋中國現有制度，從而避免給網絡中間商加以不合理的責任。關於版權侵權抗辯，中國應該引入美國的 Sony抗辯，作為衡量是否侵犯版權的一個因素。且避風港保護的範圍應該被擴展至包含所有網路中間商，以保證未來技術的未知發展擁有足夠的呼吸空間。而且，至少，中國應該採用某些善意轉換性使用的窮盡式合理使用抗辯，以促進現有技術的運行。且更合適的是，採用非窮盡式的合理使用抗辯，其範圍包括所有對社會有用的網路中間服務的必須運營活動，並通過確保資訊技術發展的方式。 / 一個好的法律框架可以對人類的進步有著積極的影響，不然它會對社會發展起著阻礙作用。我們需要的法律框架應該同時促進版權和信息傳播技術的發展。這意味著，在保證版權産業正常運行的同時，該法律框架應爲技術發展提供肥沃的成長土壤。 / Information technology and its usage on the internet have revolutionized the way in which various copyrighted works are captured, stored, copied and distributed. By expanding the breadth, diversity and sheer number of copyrighted works in existence, the internet has fundamentally changed the nature of copyright markets. / This thesis attempts to argue that the laws in Mainland China should reserve enough space for information technologies to develop, without unreasonably prejudicing the interests of copyright holders. / This thesis contends that the utilitarian justification for copyright plays an underlying role in both Chinese copyright legislation and judicial application. Under the utilitarian model in China, fostering a maximization of culture development is the aim of the copyright law. As such, in the era of information overload, the Chinese government should aim to develop the Digital Economy. In order to achieve this aim, it needs to start by ensuring that its copyright law appropriately enables Internet Intermediaries to operate and to invest in creating Chinese Digital Economy. Copyright law in China needs to create room to move. / This thesis examines Sony defense, notice-and-take-down safe harbors, inducement liability and fair use, for the purpose of seeking enough space for information technology development. The existing rules in China, e.g. inducement liability, should be interpreted as avoiding placing unreasonable burden on internet intermediaries. As to the defenses against copyright infringement, Sony defense in the US should be introduced as a factor in assessing copyright infringement in China. And the scope of safe harbor protection should be extended to include all internet intermediaries, for the purpose of providing breathing room for unanticipated technology developments. Moreover, at the very least, certain fair dealing exceptions for certain transformative use in good faith should be adopted in China to foster the existing operations of information technology. And it is more desirable to introduce a non-exhaustive fair dealing exception to cover activities necessary to run all socially useful internet intermeiary services, in the way of ensuring information technology development. / A well-designed legal system should have positive impacts on the human progress; or otherwise, it would have deterrence effects on the social development. A legal system which promotes both copyright and communication technologies creations is what we need in the future. This kind of system requires a fertile land for technologies innovation without destroying the developments of the entertainment industries / Detailed summary in vernacular field only. / Detailed summary in vernacular field only. / Detailed summary in vernacular field only. / Detailed summary in vernacular field only. / Xie, Lin. / Thesis (Ph.D.)--Chinese University of Hong Kong, 2012. / Includes bibliographical references. / Electronic reproduction. Hong Kong : Chinese University of Hong Kong, [2012] System requirements: Adobe Acrobat Reader. Available via World Wide Web. / Abstract also in Chinese. / Chapter 1 --- Introduction --- p.1 / Chapter 1.1 --- Thesis Argument --- p.1 / Chapter 1.2 --- Background --- p.2 / Chapter 1.3 --- Summary --- p.6 / Chapter 2 --- Theoretical Framework in China --- p.11 / Chapter 2.1 --- Justifications for Copyright --- p.11 / Chapter 2.2 --- Traditional Chinese Culture --- p.15 / Chapter 2.3 --- The Development of Modern Copyright Law in China --- p.21 / Chapter 2.4 --- International Relationship --- p.27 / Chapter 2.5 --- Utilitarian Justification in Digital Era in China --- p.31 / Chapter 3 --- Aggressive Measures on the Unauthorized File-sharing Problem --- p.36 / Chapter 3.1 --- Criminal Liability of Internet users --- p.36 / Chapter 3.2 --- Benefits and Costs --- p.49 / Chapter 3.3 --- Graduated Response Scheme --- p.52 / Chapter 3.4 --- The Nature of Unauthorized Online File-sharing Problem --- p.59 / Chapter 3.5 --- Alternative Solutions --- p.65 / Chapter 3.6 --- Implications for China --- p.68 / Chapter 4 --- Sony Defense under Traditional Indirect Liabilities --- p.71 / Chapter 4.1 --- Traditional Liabilities for Third Parties’ Infringement --- p.72 / Chapter 4.2 --- Sony Defense --- p.82 / Chapter 4.3 --- Assessing Sony Defense --- p.98 / Chapter 5 --- The Notice-and-Take-Down Safe Harbors of Online Service Providers --- p.102 / Chapter 5.1 --- Introduction on the Notice-and-Take-Down Safe Harbors --- p.102 / Chapter 5.2 --- Threshold Requirements of the Notice-and-Take-Down Safe Harbors --- p.108 / Chapter 5.3 --- A Proposed Safe Harbor Framework in China --- p.142 / Chapter 6 --- Inducement Liability of Service Providers --- p.145 / Chapter 6.1 --- Inducement Liability in China --- p.145 / Chapter 6.2 --- Inducement Liability in the US --- p.151 / Chapter 6.3 --- Implications for China --- p.170 / Chapter 7 --- Transformative Use of Copyrighted Works: A Proposed Fair Dealing Exception for Internet Intermediaries --- p.176 / Chapter 7.1 --- Introduction --- p.176 / Chapter 7.2 --- Transformative Use in the US --- p.178 / Chapter 7.3 --- Transformative Use under Australian and Chinese Copyright Law --- p.188 / Chapter 7.4 --- A Proposed Fair Dealing Exception --- p.198 / Chapter 7.5 --- Conclusion --- p.201 / Chapter 8 --- Liabilities of a Search Engine’s Cache --- p.202 / Chapter 8.1 --- Introduction --- p.202 / Chapter 8.2 --- Liabilities of a Search Engine’s Cache in China --- p.208 / Chapter 8.3 --- Direct Infringement --- p.215 / Chapter 8.4 --- The Safe Harbor Protection --- p.223 / Chapter 8.5 --- Implied License --- p.236 / Chapter 8.6 --- Fair Use --- p.242 / Chapter 9 --- Fair Use or Fair Dealing? --- p.246 / Chapter 9.1 --- Introduction --- p.246 / Chapter 9.2 --- Fair Dealing in China --- p.248 / Chapter 9.2 --- Introduce a Flexible Exception into Copyright in China --- p.263 / Chapter 10 --- Conclusion --- p.272

Adopting historical, legal and comparative methods and incorporating knowledge and findings from multiple disciplines, this thesis not only explores political implications of those constitutional provisions and amendment regarding the Chinese presidency, constitutional significance of the CPC's political practices of decision-making such as Mao Zedong's "power of last say", his idea of "two fronts", his controversial abolition of the chairmanship, Deng Xiaoping's idea of "the core of leadership", and "diplomacy of the head of state" by Chinese presidents, thus negating the mainstream constitutional and political idea that the Chinese president is (or should be) the head of state of China, but also sheds new lights from the institutional perspective on the on-going academic discussions about the situation of rule of law in China. Since China is a great Eastern and developing country "building socialism with Chinese characteristics", this thesis also contributes to research in areas such as cold war history, the socialist government system and legal development in developing countries. / By pioneering an all-around examination on legal and political development of the Chinese presidency since its origin through different historical stages from both normative and positive aspects within the framework of the party-state, it is concluded that the Chinese presidency has evolved from a traditional Chinese title into a governmental position, and then a state institution that has a constitutional appearance of a Western semi-presidency. However, it has functioned politically in a Stalinist party-state with Chinese characteristics, whose candidate has by far been produced according to the CPC's step-by-step succession rules designated by the paramount leaders and real political decision-making power has mainly not only been limited by these succession rules, but also decided by his role and status within the CPC's supreme collective decision-making body. Underlined such decades of constitutional evolution and political dynamics have been the changing foreign influences and local demands on China. As China becomes more globalized and its traditions of "rule of man" gradually die out, law and politics surrounding this office has been more compatible, thus giving rise to a nascent rule of law. / It is widely-accepted that the constitutional office of Chinese president has undergone dramatic changes since its establishment in 1954, to its abolition in 1975, and its revival in 1982. This has been commonly attributed either to the importation of the Russian model, or the personal influences of the CPC's leaders Mao Zedong and Deng Xiaoping, or political considerations, such as the need for a head of state. This thesis questions these general, yet sometimes contradictory, account and quests for more coherent explanations for those twists and turns in the evolution of the office of president. / Zhang, Runhua. / Adviser: Michael Pendleton. / Source: Dissertation Abstracts International, Volume: 72-04, Section: A, page: . / Thesis (Ph.D.)--Chinese University of Hong Kong, 2010. / Includes bibliographical references (leaves 285-314). / Electronic reproduction. Hong Kong : Chinese University of Hong Kong, [2012] System requirements: Adobe Acrobat Reader. Available via World Wide Web. / Electronic reproduction. Ann Arbor, MI : ProQuest Information and Learning Company, [200-] System requirements: Adobe Acrobat Reader. Available via World Wide Web. / Electronic reproduction. Ann Arbor, MI : ProQuest Information and Learning Company, [200-] System requirements: Adobe Acrobat Reader. Available via World Wide Web. / Abstract also in Chinese.

University of Macau / Faculty of Law

University of Macau / Faculty of Law

University of Macau / Faculty of Law

University of Macau / Faculty of Law

University of Macau / Faculty of Law