理事会能够提升社会组织绩效? ——基于全国691家社会服务类组织的实证研究

【问题】社会组织内部治理是其有序、有效参与社会治理的基本前提。针对社会组织内部治理的实证研究并不多,且存在中观与宏观割裂的问题。社会组织内部治理机制究竟如何,内部治理主体多大程度上影响组织目标达成,又如何受到宏观制度环境的影响?【方法】论文使用稳健回归分析数据。数据来自于2019年实施的全国性社会服务类组织调查,该数据采用简单随机抽样方法,涵盖56个规模不等的城市。【发现】(1)理事会治理能力与治理表现既能影响社会组织的财务指标,也显著影响其公共输出。(2)制度环境能够显著调节理事会与组织绩效间的关系。在支持性制度环境中,理事会治理能力、治理表现对组织财务指标和公共输出影响效应被强化。在消极制度环境下,组织自身的成长韧性可能是一种重要的替代机制。【贡献】即使成长于“强制性制度变迁”背景下的社会组织,内部治理结构仍然具备组织共性,核心治理主体能够显著影响组织绩效,尽管这种自主性受到宏观制度环境的塑造。这质疑了关于中国社会组织内部治理结构缺乏规范性、理事会形同虚设的研究结论,也为“依附式”自主这一概念提供了经验支持,增进国家与社会组织关系的整体性理解。     

论刑事和解与民间规范

刑事和解,是我国正在倡导和试验的一种刑事纠纷解决方式。刑事和解的核心问题是处理加害人和受害人之间的权利义务关系。究竟根据什么规范处理、分配刑事和解中当事人的权利义务问题,是刑事和解的重要前提。民间规范如果一旦获得刑事和解主持人、当事人在行为上的遵从、接受和心理上的确信、认同,则可以被援引为刑事和解中当事人权利义务分配的根据。不同类型的民间规范,具有不同模式的权利义务配置方式,但这都不影响在刑事和解中对当事人的权利义务分配。国家有关刑事和解正式制度的建立,应关注民间规范的参与,关注对民间规范的吸纳。     

从“康菲事件”看检察机关开展环境公益诉讼

随着社会的发展,司法的完善,检察机关民事行政检察部门被赋予一种特殊的公诉权———民事公益诉权,环境公益权诉讼就是其中的一种。检察机关充分发挥民事行政检察的职能作用,积极开展环境公益诉讼,对于维护公民合法权益意义重大。     

Correlativity

In a celebrated article, published nearly a century ago, Wesley Newcomb Hohfeld endeavored to elucidate the various types of jural relations. Hohfeld’s scheme has been justly regarded as a seminal contribution to analytical jurisprudence, and has stimulated lively debate since. This Essay aims to refute one of Hohfeld’s fundamental and most influential theses: the axiom of right–duty correlativity. To do so, it employs the simplest refutation strategy in first-order logic, namely providing a valid counterexample. Part I discusses earlier attempts to do likewise, and explains why they failed. For the most part, previous illustrations of ostensibly standalone rights or standalone duties neglected relevant parties who could owe the correlative duties or hold the correlative rights, respectively. Part II puts forward a simple argument: There are abstract duties in private law that ban certain types of conduct without reference to specific victims. Those duties are not necessarily correlative with rights, although their breach may generate secondary duties with corresponding rights. In particular, tort law allows plaintiffs to recover for harm caused by breach of duty that occurred before they acquired legal personality. This is tantamount to recognizing duties that are not correlative with rights, and therefore invalidates the correlativity axiom.     

The Constitutional Limits of Judicial Activism: Judicial Conduct of International Relations and Child Abduction

Judges are increasingly visible in their participation in activities off the bench. This may create difficulties in drawing the line between their duties in court and their other activities. However, if judges are not acutely aware of the importance of this line their extra-curial activities may interfere with their judicial duties. This article considers the failure to observe the importance of this differentiation in the context of international child abduction. It is argued that some judges, on and off the bench, have wrongly taken over the role of the executive in international relations and that such activity jeopardises the independence of the judiciary. This raises broader issues, in particular it suggests that some judges are being seduced into exceeding their proper judicial role, by working with government in policy-making and by their increasing contacts with judges from other countries.     

Fiduciary Duty under the Microscope: Stewardship and the Spectrum of Pension Fund Engagement

UK pension fund trustees’ interpretations of their fiduciary duties may shape pension fund approaches to corporate stewardship and engagement envisioned by the UK Stewardship Code. Data from interviews with pension fund trustees, executives, investment intermediaries and pensions experts reveals interpretive pluralism of the concept of fiduciary duty in the area of pension funds. This article develops a model identifying the spectrum of pension fund engagement, linking interpretations of fiduciary duty to intensity and methods of engagement in practice. The findings help disambiguate the concept of ‘Fiduciary Duty’, highlighting the practical challenges of Stewardship Code application. These insights are relevant to the ongoing revisions of the Stewardship Code and policy clarifications of the nature of fiduciary duty by the UK Financial Conduct Authority. The paper encourages trustees, regulators and others to consider what role pension fund trustees should have in stewardship, which may not be directly relevant to their fiduciary duties as trustees.     

国际刑事法院检察官的地位与功能研究

被赋予国际刑事案件调查、起诉权的检察官 ,在国际刑事法院运作程序中是最活跃最积极的因素 ,对于国际刑事犯罪的惩治起着关键性作用。其组织和功能上的特点是 :审检合署的机构设置 ;“检警一体”的功能结构 ;在检察事务和内部管理上实行“检察长负责制” ;受刑事预审法庭的司法审查等。但在检察官行使职权时 ,存在与相关国家主权协调 ,克服直接调查取证可能遇到的障碍 ,以及合理对待国际政治因素对刑事检控的影响等问题     

Suing "the welfare": the diminishing immunity for child protection authorities

Until recently, child protection authorities enjoyed significant levels of immunity in respect of civil actions arising from their action or inaction. However, the tide has turned in Australia, New Zealand and the United Kingdom. The decision of Redlich J of the Victorian Supreme Court in the complex case of SB v New South Wales (2004) 13 VR 527; [2004] VSC 513 consolidates the trend in Australia with a further repudiation of the assertion that child welfare authorities should be specially advantaged. It appears that henceforth actions will regularly be able to be brought against the state by persons who have been harmed by the negligent discharge of child protection duties. In the future, plaintiffs' biggest impediment will lie in the evidentiary challenge of establishing the extent of the harm flowing from the breach of the state's duty as against the harm wrought by previous and supervening events.     

Some Theoretical Problems of the Constitutional Structure of the Soviet State

The Soviet Constitution is the fundamental law stipulating the socio-economic and political system, defining the principles of organization and functioning of the state agencies, the legal position of social organizations and the legal status of citizens (their fundamental rights and duties), and proclaiming the basic tasks of the people and the trends in the development of society and the state. In other words, it reflects a half century of experience in building the society and state, the historical triumphs of the people in various areas of economic, political and cultural life, and it indicates the direction of further development.     

Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey.

A survey was conducted of a sample of AAPL members to determine their opinions on the inclusion of controversial ethical guidelines for forensic psychiatry. Members appear to appreciate the need to consider traditional Hippocratic values as at least one consideration in their functioning as forensic psychiatrists. They appear to balance their duties to an evaluee with duties to society and the legal system and to appreciate the responsibilities of multiple agency. Support was shown for interpreting ambiguities in AAPL's current guidelines in the directions indicated by most of this survey's proposed guidelines.     

The Reciprocity Theory of Rights

This article provides an explanatory account of a central class of moral rights; their normative grounding, the conditions for their possession and forfeiture, and their moral stringency. It argues that interpersonal rights against harm and rights to assistance are best understood as arising from reciprocity relations between moral agents. The account has significant advantages compared with rivals such as the interest theory of rights. By explaining the differential enforceability of rights against harm and rights to assistance, the reciprocity theory helps to refute an argument made by Cecile Fabre that the poor may have a justification for engaging in war against the affluent to compel them to fulfil their duties of assistance to the poor.     

Who are Refugees?

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as ‘refugees’, and to extend to them the sorts of protections established under the United Nations Refugee Convention. Such an approach would expand the traditional refugee definition significantly. Unlike most academic commentators discussing this issue, I reject calls for an expanded refugee definition, and instead defend the core elements of the definition set out in the 1967 Protocol to the United Nations Refugee Convention. Using the tools of moral and political philosophy, I explain in this article how the group picked out by this definition has particular characteristics that make refugee protection distinctly appropriate for it. While many people in need of assistance can be helped ‘in place’, in their home countries, or by providing a form of temporary protected status to them, this is not so, I show, of convention refugees. The group picked out by the UN refugee definition is a normatively distinct group to whom we owe particular duties, duties we can only meet by granting them refuge in a safe country. Additionally, there are further practical reasons why a broader refugee definition may lead to problems. Finally, I argue that rejecting the call for a broader definition of refugees will better help us meet our duties to those in need than would an expanded definition.     

金融机构破产债权人会议程序之研究

债权人会议作为全体债权人的自治组织,既是企业破产的一种利益平衡器,也是统一债权人意志与行动,保证破产有序进行的自治性团体。金融机构破产是企业破产的一个分支。金融机构本身的特殊性决定了其破产时债权人权利与普通商事企业破产时债权人权利的差异性,同时,债权人的权利内容和权利行使还会受到一定的限制,因此,金融机构破产债权人会议与传统的债权人会议在功能、履职程序、价值目标方面存在冲突。但是,不能因为这种冲突而否定债权人会议的作用及其存在的价值,立法者所应该做的是对其功能、职权和履职程序进行适应性修正。     

The inefficacy of private enforcement of directors’ duties

Company directors play an important role in society. Their activities have significant effects on the interests of their companies, shareholders and other stakeholders. Consequently, the law regards them as fiduciaries and imposes duties which set out behavioural expectations. The private enforcement regime is the primary mechanism adopted by many common law jurisdictions for securing compliance with directors’ duties. The crucial question is whether this regime is effective in securing enforcement of directors’ duties. This article addresses this question by examining the fundamental weaknesses of the private enforcement regime. In exploring these weaknesses, it focuses on the UK and Nigerian experience. It crucially argues that the private enforcement regime, due to its weaknesses, is unable to provide deterrence and compensatory benefits. It is therefore ineffective as an enforcement mechanism for breach of directors’ duties. This article therefore concludes that there is need for a complementary enforcement regime.     

论禁止二重监督

作为完法确定的法律监督机关,人民检察院有权为了保护公共利益而对包括强制执行程序在内的诉讼活动进行监督。“禁止二重监督”理论是明确检察机关参与民事诉讼的应有方式和地位的理论依据。根据“禁止二重监督”理论,检察机关参加民事诉讼的法律地位是唯一的,要么是当事人（原告或被告）,要么是法律监督者;检察机关处于不同的法律地位时,享有不同的权利义务。在诉讼阶段,检察机关可以作为当事人提起公益诉讼或再审之诉,也可以以监督者身份参与诉讼;在执行阶段,检察机关可以作为申请执行人也可以对执行机构的裁决提出抗诉。     

The Implied Duty of Mutual Trust and Confidence: An Emerging Overarching Principle?

There is an argument in academic circles that the implied dutyof mutual trust and confidence will evolve to form an all-embracingsuper-principle under which each of the more ‘traditional’implied duties will rest, including the employer’s impliedduty to exercise reasonable care for the welfare and well beingof the employee. The theme of this article is that, on balance,there is no evidence for the emergence of the implied duty ofmutual trust and confidence as a super-principle. If anything,the recent trends in the case law emphasise the distinctivenessof the employer’s duties to exercise reasonable care andtrust and confidence. The article’s aim was to demonstratethat both duties are separate, free-standing duties, sittingon an equal plane in terms of importance. To rationalise one,or all of the implied duties (i.e. the duty to exercise reasonablecare and/or all of the other ‘traditional duties’),as one of the means by which the super-principle of trust andconfidence is, or may be expressed, is to a large extent, aspirational.     

Legal duties of psychiatric patients

Psychiatric practice involves an implied contract in which each party fulfills a specialized role and incurs corresponding duties and obligations to be discharged as best able. Patients incur duties at three levels. First are specific duties that arise from patients' specialized role in their own health care: (1) to provide accurate and complete information, and (2) to cooperate with treatment within the bounds of informed consent. Second are general duties that apply to all citizens, but are especially relevant within the mental health context: (1) to respect the physical integrity of self, others, and property, and (2) to obey the law. The controversial "duty to protect" is at a third level, a transcendent duty that is specific to the context at hand, but in principle can apply to more than one party. Advantages of enforcing patients' duties include better care by treating professionals, optimum level of functioning of patients, and improved systems-wide morale and safety. Breach of patients' duty has many potential consequences in the forensic sphere: termination of care, malpractice defense, criminal prosecution, and tort liability. Complicating factors include the degree and effect of patients' psychiatric impairment, patients' legal status, and the role played by psychotherapeutic transference.     

Women in campaigns 1550–1850 household and homosociality in the Swedish army

The article presents the main results from my study of social conditions in the Swedish Army between 1550 and 1850. The focus is on women's involvement and importance in the military. The most strikingly result is that women for a long time played a more crucial role in the Army than many people are unaware of. As a consequence, the unisexual, masculine, compulsory, military service which existed during most of the 20th century can be treated as an historical parenthesis. Nowadays women are permitted to serve in the military as soldiers, in older times women fulfilled their military duties as soldiers' wives. In a long-time perspective, the military role of women has shifted from wife to professional: the article explores this process. Soldiers on campaigns in the 17th century built households and had families, regardless of wartime or peacetime, and their households were also a natural part of the military, simultaneous with a strong male bonding principle, homosociality. Although conflicts existed between the two principles of organization, household and homosociality, they operated together at any rate until the beginning of the 19th century. The article illustrates how this cooperation worked, but also how the rise and fall of the household system in the military may be explained. Military thought, growth of state authority, a professionalization process and changed cultural norms were crucial. However, I want to emphasize the social practice of gender relations as a promoter of change: how norms and measures connected with marriage affected the military.     

论行政主体的约定义务

行政主体约定义务是契约理念引入行政法的产物,并非法定义务的契约化,与行政契约义务并非等同。行政主体约定义务是行政法上的意定义务,其设定应遵守合理的限度,不得借此"扩大法定活动空间",或规避法定义务,或"出卖公权"等。作为行政主体义务体系的重要组成部分,具有弥补法定义务之不足,深化行政主体职责等重要的功能价值。     

The Role of International Legal Norms in Ensuring the "Right to a Legal Defense"

On 22 November 1991, the Supreme Soviet of the RSFSR adopted the "Declaration of the Rights and Freedoms of the Individual and Citizen."¹ Article 1 of the declaration states that universally recognized international norms on human rights have priority over the laws of the RSFSR where they directly give rise to rights and duties of citizens. But, in the words of A.M. Vasil'ev, this is "really only a defended, not a proclaimed right."² The systems of international and Soviet law set down the procedure and the order of realization of rights and freedoms and the ways and means for their legal defense. An important guarantee for the realization of rights and freedoms is ensuring the individual's right to a legal defense.