英国行政决定说明理由研究

行政决定说明理由正趋于成为英国行政法上的一般规则,它和自然正义、正当期待及公正等原则相关联。说明理由是良好行政的基本原则之一,有助于行政机关的自我拘束,有助于程序性权利的保障,有助于法院开展有效司法审查。官员在特定情形下必须为行政决定说明理由,但在特定的例外情形下可豁免于说明理由义务。欠缺理由说明可能导致行政决定无效或者被撤销。在中国,应进一步扩大说明理由的适用范围,对法律、事实和裁量问题予以充分说明。     

Enhancing Rescue in Chapter 11: Lessons from Reform Efforts in the United Kingdom

This is a dynamic time for insolvency law. Many jurisdictions have made or are considering reforms to their insolvency regimes. The United Kingdom has proposed a new standalone restructuring mechanism that incorporates many attributes of Chapter 11, including a cross-class cram down and the absolute priority rule. A distinctive feature of the UK proposal is the infusion of judicial discretion permitting courts to deviate from the absolute priority rule. This discretion is not permitted in the United States. This judicial discretion addresses a key problem with the application of the absolute priority rule in the United States—it may serve as an impediment to reorganization. This impediment is exacerbated by the recent U.S. Supreme Court decision, Czyzewski v. Jevic Holding Corp., which impacts the effective use of Chapter 11 rescue tools. This article explores the absolute priority rule, the problems associated with it, and the effect of Jevic in the United States. Drawing on the UK reform proposal, I argue that the United States should implement reforms that infuse judicial discretion into the application of the absolute priority rule. Doing so will facilitate the underlying policy goal of rescuing the company in Chapter 11 and also promote a broader policy goal of rescuing the business.     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

Relational Embeddedness and Socially Motivated Case Screening in the Practice of Law in Rural China

Based on an ethnographic study conducted in rural China, this article demonstrates that relational embeddedness—that is, concrete and durable relationships among law practitioners, clients, adversaries, and the surrounding communities—holds the key to our understandings of the legal profession's case screening. Over the past decade, legal services in rural China have been commodified significantly. Despite that, relationships with extended families, community members, and local political elites have continued to shape law practitioners’ professional decision‐making. By carefully scrutinizing multiplex relationships involved in legal services, law practitioners seek to meet the practical needs of their personal life, and more importantly, to uphold moral obligations derived from communal life. Seen in this light, the practice of law is an integral part of a moral economy in the countryside. Rather than giving rise to a more progressive form of services, the legal profession's participation in this moral economy often reinforces existing power structures in Chinese society. By introducing the concept of relational embeddedness into sociolegal research, this study unpacks the complex consequences of the recent legal reforms in China; it also enriches our theoretical understandings of related concepts, such as social capital, networking, and guanxi in the practice of law.     

Fair Trial Rights and the European Community's Fight Against Fraud

The article surveys action taken by the European Community to combat fraud affecting its financial interests, focusing on the development of investigative authority granted to OLAF, the European‘Office Pour La Lutte Anti Fraude’ and its impact on the procedural rights of the alleged defrauder. It shows that the involvement of OLAF can be crucial for a national fraud investigation and subsequent criminal prosecution and that it meets the criteria set out by the Strasbourg organs for the applicability of Article 6 ECH. The article explores whether the legal sources governing the activities of OLAF or national—or rather, Community—law guarantee sufficient protection for the alleged defrauder and thus pay respect to principles arising from the rule of law in law enforcement. It is shown that general principles of Community law, which were mostly established in antitrust law, may provide a certain protection for the suspect, but may not protect him in all regards. It is thus argued that, in the long run, it will be necessary to provide special fair‐trial rights which offer protection to alleged defrauders from those infringements arising out of the specific features of a Community investigation.     

The Hurried Justification of Sanctions

In this paper I try to see how the Derridean aporias of the law of the urgency of legal decisions (the law interrupts the input of knowledge in the decision-making process) and the épokhè of the rule (justice can never be done in the present) are revealed in the context of the justification of sanctions. I argue that sanctions can only be justified in a purposive manner in the last instance. They can only be means to an end of punishment which has been opted for, and which can be justified on grounds of principles, or an authoritative calculation of incommensurable entities. I argue against theories, which advocate the internal connection of law and morality, because if such a connection could be established, the aporia of the hurried and unjustified action would obviously disappear. In particular my target is discourse theory as formulated mainly by Robert Alexy with his Sonderfallthese(Special Case Thesis). My objection is that, because of their instrumental nature, sanctions cannot be justified on moral grounds. I also consider some objections that could be raised from Klaus Günther's theory of appropriateness and Habermas' distinction between the moral, ethical and pragmatic employments of practical reason. I am argue that the former, which would become relevant at the stage of application, that is sentencing, does not resolve the justificatory problem of sanctions, and the latter confirms rather than falsifies my claim that punishment can never be said to be just.     

论普通法的“宏大风格”

普通法的宏大风格是美国著名现实主义法学家卡尔·卢埃林提出的旨在取代形式主义法学的一种新的法学理论。这一理论认为,法官承担着双重义务,既要执行法律,又要追求公平、正义;如何平衡和协调这两种义务是一门高超的司法艺术。强调法官的情境感悟,主张灵活解释法律,关注规则背后的立法理由,坚持对规则的适用不得超出规范目的,是这一理论的核心思想。     

May,Should, or Do,Administrative Judges Participate in the Management of the Public Sphere in the Rule of Law?

The article concerns the actual impact of courts controlling the activity of public administration on the direction of its activities and the content of issued decisions. In particular, it concerns sovereign individual decisions that affect the sphere of civil rights and freedoms. The aim of the article is to seek an answer to the question of whether independent judges actually participate in the process of management in the public sphere, which is characterised by elements of politics and (regardless of the answer to this question) whether such participation is allowed or (even) necessary in modern rule of law states. The main argument is that regardless of whether the courts controlling the administration have reformatory or exclusive cassation powers, they influence the decision-making process in the public sphere. At the same time, such influence not only does not violate the fundamental values of the rule of law, but is even sometimes necessary. This does not mean that courts should interfere in the management processes in the public sphere in every case.

     

Contract Negotiations and the Common Law: A Move to Good Faith in Commercial Contracting?

Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of “good faith” as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2) [2020] EWHC 1581 (TCC) in England and Wales; Bhasin v Hrynew 2014 SCC 71 and Callow v Zollinger 2020 SCC 45 in Canada. This paper will examine the extent to which these cases may open the way more generally for a duty to negotiate commercial contracts in good faith. It will examine the reception of these cases and whether they indicate (i) greater acceptance of “good faith” as part of contract law thinking and (ii) a possible extension of good faith into the pre-contractual period.

     

The art of law (and the law of art) is perpetual crisis

In this performance-based work, which essentially concerns the fable of ‘Khi + Ordo’, we obliquely—through visual-textual storytelling—focus on what we call ‘the agency of the artist-scholar’, deconstructing, inter alia, many of the rules and regulations associated with the art-academic industrial complex—i.e., the institutional dictates to produce commodifiable works, the enforced metrics associated with authorised forms of research and publication, and the often-inelegant and mostly unnecessary dance that the artist-scholar performs with ‘all of that’. The photo-essay is developed from the archive of the Out of India Collective (OOI), but in association with the Metropolitan Transmedia Authority (MTA), its successor collective. It draws upon documents associated with OOI experiments in transmedia undertaken across multiple submissions for residencies, exhibitions, and publications in both academia and the art world in the years 2017–2019, even as it focuses upon the fable of ‘Khi + Ordo’. ‘Ordo’ is a synonym (or metaphor) for totalitarian states and regimes—‘regimes’ being, in this case, those that rule art + law. ‘Law’ here infers, through its negation, the appearance of a higher law, one that is entered upon when one resists assimilation to the rules and regulations associated with police states—incipient or otherwise. We call that other law ‘works-based agency’, and the artist-scholar is beholden to it once s/he departs company with all such quotidian systems of abject hegemony. One crisis leads to another, so to speak, on multiple levels and all at once.

     

法治思维视阈下科技伦理教育观完善探析——基于当下科技发展中学术道德失范行为现象的思考

学术瑕疵类、学术垄断类失范行为之所以普遍存在,与科技伦理教育观密切相关。当前,我国的科技伦理教育主要存在法治意识淡薄,忽视培养具有法治思维的科技伦理专业人才,以及缺乏法治化制度保障等问题。然而,法治思维作为社会治理的核心思维,具有将其引入科技伦理教育的必要性和可行性。为实现规制学术道德失范行为以净化科技伦理生态的道德理想,需要在科技伦理教育的过程中中融入法治思维并凸显法治作用,从而构筑起坚不可摧的法治屏障。所以,法治思维视域下科技伦理教育观的完善应从德法并重,严重的学术道德失范行为应以法律规制为主,且科技伦理教育中亟待重视法治思维的培育等方面着力;法治思维视域下,高等院校与科研机构对于科研人员科技伦理教育观的培育应从增设科技法和知识产权法课程,强化警示教育,且在对于学术道德失范行为的学术研究和立法规制等方面努力。     

略论中国传统诉讼审判的判决依据

中国传统诉讼法律文化极具特色,与此相适应,中国传统诉讼审判的判决依据表现出特殊的风格.其判决依据主要有依律判决、判例与类推判决及依情理和礼判决等.对此作一分析研究,将有助于加深我们对传统诉讼法律文化的理解,并吸收借鉴其中的有益部分为当今法治建设所用.     

The Force of International Law: Lawyers' Diplomacy on the International Scene in the 1920s

Where does international law (IL) draw its authority from a still weakly institutionalized international scene deprived of the warrants of a state? To address this classical debate, the article draws from a case study on the social and professional structure of the “international legal community” as it emerged during the 1920s as part of the rise of multilateralism and international organizations. It focuses on the “situation of the international lawyers” of the time, starting with the multiple and often antagonistic roles they play (as legal advisers, scholars, judges, diplomats, politicians, etc.) and the variety of interests and causes they defend (states, international organizations, professional interests, etc.) in international politics. It argues this heteronomy of international lawyers helps understand the autonomization of international law. Far from being opposed to one another it has often been assumed—realism and idealism, national loyalty and international loyalty, political logic and learned logic—actually gain when analyzed as various modes of affirming a single cause—that of an international rule of law. This attention given to the “situation of international lawyers” and to the way they manage their various allegiances also accounts for the particular vision of the “International” and of “Law and Politics” relationships that are encapsulated in this emerging international corpus juris.     

论作为高层次伦理规范的正义

正义是古往今来人们所憧憬所讴歌的景状 ,从柏拉图到罗尔斯 ,西方学人叙说了数不清的关于正义的见解 ,既贡献了种种经典性论说 ,也使正义成为一张普洛透斯似的脸。正义实际上不是虚玄的事物 ,它也像法和道德一样 ,是为社会生活提供标准和指明方向的规范 ,不过不是普通的规范 ,而是高层次伦理规范。正义对主体的精神和行为都予以调整。正义不取文本形式 ,不是明文记载的制度 ,而是以观念化的形态存在于人的头脑、心灵、社会舆论和历史文化的积淀之中。正义是人们无法捧读的 ,但它却像时间一样 ,时刻就在我们身边。正义是伦理规范体系中规格和境界最高的规范 ,它以一系列美德或善为其基本内容。正义要求个人具备公平、公正、公道、正直、合理的美德 ,要求国家和社会体现自由、平等、安全这一类善 ,而法如果与正义结合便成为良法。正义的强制力比法更深刻 ,它以理性为强制力量 ,不以国家强力和法定程序保障其实现。正义的触角或统辖范围远远大于法的范围 ,它是关涉领域最广、时空跨度最大、尤具普适性的社会规范。在迄今衍生的形形色色正义理论中 ,亚里士多德和罗尔斯的学说 ,影响尤为深远。正义具有绝对和相对两重性 ,是绝对和相对的统合 ;具有主观和客观两重性 ,是主观和客观的统合。正义是以具体的形式     

Sources,Recognition and the Unity of the Legal System

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution (and all the norms derived from it) are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch.

     

Frustration: The mold of judicial philosophy

Abstract

The Framers understood the Constitution to be the fundamental expression of the rule of law over against the arbitrary, intemperate, and unjust “rule of men” that all too frequently existed in the political world, unfortunately both democratic as well as monarchical. Accordingly, the rule of law requires a well functioning political and legal system that includes legislative checks and balances, the separation of power between the President and Congress, an independent judiciary, federalism, etc. What happens when this “Madisonian” constitutional system, designed to express “the deliberate sense of the community,” runs into a Judicial branch that, in effect, claims we live under a Constitution, but the Constitution is what we say it is. Must the Judiciary itself be subject to the rule of law, and the decisions of a constitutional majority, or does their “independence” extend to being independent of the constraints of the rule of law and, thus, decent majority rule? How did the original John Marshall Court answer these questions, and what light do the leading cases and controversies shed on the relationship between the Marshall Court and the Madisonian System? Are we facing a situation of Marshall v. Madison?     

Is a Local Government’s Decision ‘In Writing?’:The U.S. Supreme Court to Rule

Abstract

An application to place a 108‐foot‐tall cell tower in a residential neighborhood. An outpouring of opposition. A public hearing. A denial—by unanimous vote on an oral motion. And a letter to the applicant stating that the application had been denied and referring to the hearing’s minutes, which reflect reasons why the board may have denied the application. These are the key facts of T‐Mobile South, LLC v. City of Roswell, No. 13‐ 975, a case that the U.S. Supreme Court will consider this fall. The case’s central legal question is also straightforward. The Telecommunications Act of 1996 states that “ [a]ny decision . . . to deny a request . . . shall be in writing. ” The Court will decide whether it is sufficient for a city to state in writing that it has denied the application and to refer to the record, or whether the written denial must also describe the reasons for the city’s decision. The case could have significant impacts on how local zoning boards function and on the form their decisions must take to survive legal challenge. It also could lead to effects on local governments well beyond the narrow issue presented here.     

商事通则构造论

通则是基本法的功能性称谓,重在以一般性规则统领整个部门法,并不存在特定的结构模式.它仍然属于部门法律的编纂形式,而不是单行法规.民法通则为商事通则的制定提供了宝贵的经验,但商法的特点决定了商事通则不能照搬民法通则的结构.现代商法的价值诉求决定了商事通则必须以商行为一般规则为主要内容,而只有将商行为界定为营业行为,围绕营业规则安排商事通则的结构,方能解决商法适用上的难题,克服大陆法系商法典存在的缺陷,并在民商合一的框架下,实现商法内部的协调和统一.     

A Moral Equivalent of Consent of the Governed

Though genuine (voluntary, deliberate) consent of the governed does not occur in modern states, political legitimacy still requires something that does what consent does. Dereification of the state (recognizing that citizens continually create their state), combined with a defensible notion of moral responsibility, entails citizens' moral responsibility for their state. This implies that we may treat citizens morally as if they consented to their state, yielding a moral equivalent of consent of the governed, and a conception of political legitimacy applicable to modern states thought legitimate. It implies that legitimate states have a moral right to rule, and their citizens have a prima facie moral obligation to obey the law.     

The War of the Booksellers: Natural Law,Equity, and Literary Property in Eighteenth-Century Scotland

This article analyses the case of Hinton v Donaldson (1773) in which the judges of the Scottish Court of Session refused to follow their English brethren in recognizing an author's right of property outside the Statute of Anne (1710). The decision must be understood against the background of distinct notions of common law and equity in Scots law, drawn from the Natural law tradition of the European jus commune. At the same time the decision reveals developing strands of Enlightenment thought and concepts of the judicial role in relation to legislation.