论罗马法中的刑事责任制度

罗马法中的刑事责任制度具有民事责任与刑事责任混同,以承担民事责任的方式解决刑事责任,平等责任与不平等责任并存和刑事归责采过错责任原则三个特点。罗马法中刑事责任制度特征的形成与其发达的奴隶制商品经济、贵族与平民相对平等的政治地位以及繁荣的法学研究有关。罗马法中的刑事责任制度对后世影响深远,应当重视对罗马法中刑事责任制度的研究。     

《监察法》法律责任条款的逻辑展开:基于文本的分析

法律责任作为《监察法》的兜底条款,体现了“有权必有责,用权受监督”的反腐败价值追求。《监察法》法律责任条款设置的科学性对《监察法》功能的有效发挥具有内在的结构性作用,决定了《监察法》的实施效能。从法教义学的视角,通过解读《监察法》法律责任条文的字义、词义及内容含义,归纳监察法律规范的结构体系,从价值维度、结构维度、功能维度和句式维度四个方面阐释《监察法》法律责任条款蕴含的法治理念、框架体系、设定尺度和语义要素。     

Breaking the Constitutional Silence: the Public Services Industry and Government

Analysis of constitutional arrangements has been too narrow in the past, confined to examination of explicitly governmental arrangements. But corporate enterprises perform such important public functions, especially in the age of outsourcing, that they need to be incorporated into the constitution. The article develops this argument and proposes a framework for such incorporation.     

Enron/Andersen: Crisis in U.S. Accounting and Lessons for Government

Accounting and auditing play a key role in the belief of ordinary taxpayers and investors in their institutions. This is equally true of the private and governmental sectors. The Enron/Andersen scandal, regrettably, is not an isolated case, but rather merely indicative of underlying, structural flaws in our financial systems. Moreover, there is evidence that some of these flaws may be present in governmental accounting and auditing. The Sarbanes‐Oxley Act of 2002 is an attempt to address these problems in the private sector, but does not address concerns in the public sector. Public sector accounting issues that need to be addressed and monitored include substandard audit work and related liability issues, the appropriate funding of GASB so as to ensure its independence, auditor fees, and auditor independence questions including protection of elected and appointed state auditors.     

刍议问责制中行政首长连带责任之有限性

近几年国内出现的“问责风暴”,以及如何保护“好官”的议论均与连带责任的有限性高度关联。而对行政首长连带责任有限性的探讨,有助于确定连带责任的范围,促进连带责任在现实政治生活中的实现。     

The selection of party presidents in Belgium

Abstract. Judged by their statutory arrangement the selection procedures of the seven main governmental Belgian parties in the 1944–1992 period suggest that party presidents are recruited in a fully democratic way, anticipating a contest between several candidates which is ultimately decided by a secret vote of the members' representatives at the national congress or council or, as in the PSC and recently the PRL, by a membership vote. In practice, competition only occurs in the PSC and the VU. In the other parties, the party elites usually propose a consensus candidate to the party's congress, who is then legitimated by a near-unanimous vote or by acclamation. The elite legitimates this method by referring to the devastating effects of an open competition for the party's unity, as well as the belief that the elite can better assess the party needs and the prospective candidates' skills than the more uninvolved and inexperienced congress delegate or party member.     

Goldfarb and Mathews: legal challenges to the dependency test for spouse's benefits

Changes in the eligibility criteria for a survivor's benefit under the Social Security program resulted from a 1977 Supreme Court decision in the case of Califano v. Goldfarb. The Court ruled that legislation that required only men to prove past financial dependence on a deceased spouse in order to establish eligibility to a survivor's benefit violated equal protection guarantees in the Constitution. In a 5-4 decision, the majority of the Supreme Court Justices determined the constitutionality of the gender-based distinction by applying the heightened scrutiny test. For a statutory gender-based classification to be found constitutional under the test, the government must show that (1) use of a gender-based classification serves an important governmental purpose and (2) a direct and substantial relationship exists between the gender-based classification and the purported objective. The majority of the Court found the sex-based distinction was based on sexist assumptions about women, was not formulated to serve an important governmental objective, and, thus, was unconstitutional. Amid projections that elimination of the dependency test for men would increase annual Social Security benefit expenditures by as much as +500 million, Congress enacted a government pension offset provision to help minimize the cost increase. It required that any spouse or survivor who received or was eligible to receive a pension for his or her own work in noncovered public employment would have his or her Social Security surviving spouse's or dependent's benefit reduced dollar-for-dollar by the amount of the work-related pension. An exception clause was included in that legislation.(ABSTRACT TRUNCATED AT 250 WORDS)     

Metagovernance and Control of Multi-level Governance Frameworks: The Case of the EU Structural Funds Financial Execution

Using as an empirical base the 2006–08 reform of the European Union Structural Funds financial execution, this paper explores control mechanisms of multi-level governance frameworks. The empirical evidence provides a representative case of initial metagovernance deficit and the subsequent, relatively successful, institutional response reinforcing metagovernance. The purpose is to clarify the conceptual dimensions of metagovernance, setting it in a categorical scheme that identifies forms of exercise of political power: government, governance and multi-level governance. Specifically, the paper argues for a conceptualization of metagovernance that highlights a sense of sovereignty by which governmental entities vested with legal legitimacy advance public interests.     

An exploration of public risk perception and governmental engagement of nuclear energy in India

Public acceptance constitutes an important factor in successfully establishing and operating nuclear power plants. This paper explores public attitudes to the Kudankulam Nuclear Power Project commissioned in 2013 and situated in Southern India, through assessing the role of socio‐demographic factors, externalities, and social trust in determining the level of public acceptance. An exploratory survey (n = 100) was carried out in two administrative units in the vicinity of the plant. The study reveals that acceptance of the plant is positively correlated with positive externalities and trust in governmental entities, whereas negative externalities and trust in antinuclear nongovernmental organizations and media are associated with negative public perception. The results show that governmental policies on nuclear power must support the effects of positive externalities and reduce the effects of negative externalities.     

Private association and public brand: the dualistic conception of political parties in the common law world

This paper examines the legal conception of political parties. It does so by unearthing the history and ontology of the common law relating to political parties in international perspective. The flexibility of the unincorporated association, in which parties are understood through the private law of contract as networks of internal rules or agreements, rather than as legal entities, has proven to be a mask. In the common law’s imagination, the ideal party is a ground-up organization animated by its membership. But the law mandates no such thing, and in its statutory and constitutional conception intra-party democracy may be sublimated as parties need be no more than an electoral persona or brand.     

The Single Audit Act of 1984: A Survey of Practitioners

The Single Audit Act of 1984 (SAA) attempted to strengthen Congress's control over disbursement and monitoring of federal funds intended for governmental and nonprofit entities. The SAA's primary agent of federal control is the auditor. This article examines the historical development of the SAA and discusses the results of a survey of auditors and accountants who are members of the Intergovernmental Auditing Forum. The survey addresses auditors' conception of the SAA and the auditor's role in achieving better control of federal disbursements.     

Exposure Draft, February 1981

Editor's Note: In February 1981 the Governmental Accounting Standards Board Organization Committee (GASBOC) recommended the establishment of a governmental accounting standards board. Its exposure draft will be the subject of intense examination in the coming months. Shortly after the draft was issued, the Financial Accounting Foundation, which is involved in accounting standards for private organizations, called for a single group to set standards for both public and private entities. Much more is involved than the jurisdictional issue of whether a single or a dual structure should be established for accounting standards. Once in operation, these standards will shape governmental accounting and reporting practices, much in the way that standards now dictate the accounting procedures of private firms. Many state and local governments will have to revamp their accounting structures in order to satisfy the new standards. At issue also is the question of whether standards should primarily satisfy the needs and interests of external users or those of the governmental unit. Should governments be accountable principally through the political process or through externally enforced rules? This question goes to the heart of American democracy. The way it is answered will not only influence financial management, but also the conduct and quality of government. In order to encourage informed debate, excerpts from berth the GASBOC exposure draft and the FAF statement are published here. In addition, a selected bibliography by James Chan should help readers work their way through the maze of accounting standards.     

Working Capital Fund Pricing Policies: Lessons from Defense Finance and Accounting Service Expenditure and Workload Data

This article analyzes how service-providing government agencies should set the prices they charge to other governmental customers. Current Defense Working Capital Fund (DWCF) rules generally prescribe use of expected average cost transfer pricing. However, analysis of the Defense Finance and Accounting Service (DFAS), as an example, suggests DFAS has considerable fixed costs. These fixed costs are problematic under present DWCF pricing rules. If customer demand levels fall short of expectations, DFAS revenues fall commensurably, but costs almost certainly do not. It would be more consistent with DFAS's cost structure if DFAS could utilize nonlinear pricing. Such a pricing approach would give DFAS customers more appropriate incentives with respect to how much workload to give DFAS (versus trying to do it themselves or turning it over to contractors). We hypothesize that insights from DFAS may be applicable to other governmental working capital fund entities as well.     

NATIONAL SETTINGS AND PUBLIC ENTERPRISE: AUSTRALIA AND ISRAEL

Abstract: There are sharp differences between the public enterprises of Australia and Israel. Australia relies on the structure of statutory authorities for enterprises of the Commonwealth and the States; managers express a narrow view of what is permitted to them; and tend to spend their careers within single firms. "Public" enterprise in Israel reflects a complex amalgam of three public sectors, with Arms owned wholly or in part by the State, the labour federation, and institutions of the international Jewish community. Israel emphasizes the more flexible structure of public sector holdings in limited liability companies. Entrepreneurialism is more apparent in the public enterprises of Israel than Australia, but problems of service delivery are also more apparent in Israel. This article relates national differences in enterprise traits of control by government, styles of management, career patterns and service delivery to the national settings of government structure, economics, and political culture.     

The Eurozone crisis and the European corporate elite: bringing corporate actors into focus

This paper uses a framework referred to as the ‘corporate reconstruction of European capitalism theory of integration’ to analyse the European Union’s response to the Eurozone crisis. Most political economy analyses of the Eurozone crisis have focused on political leaders, clashes between creditor and debtor member states and public opinions in analysing the handling of the crisis. This paper focuses instead on the input of corporate actors. It is argued that both the setting up of the European Monetary Union (EMU) and the handling of its crisis were congenial to corporate preferences. Europe’s nascent corporate elite was concerned with eliminating currency risk when the EMU was set up and therefore did not push for fiscal federalism. When the flawed architecture of the Eurozone transformed that currency risk into sovereign credit risk, corporate preferences adapted and now favoured fiscal liability pooling and ultimately the setting up of a fiscal union.     

Institutional Legitimacy Building in a Context of Transition: The South African Land Claims Court

The success of societal transformation often depends on the legitimacy of the government institutions developed to mediate the transition. This article examines one case of institutional development and legitimacy building, the South African Land Claims Court. Formed in 1996 to help South Africa resolve land-claim concerns that surfaced as the nation transitioned to a postapartheid society, the court demonstrates the challenges of developing an institution in the context of large-scale societal transformation, reconciliation, and governmental legitimacy building. By tracing the evolution of the court and analyzing its first five years of activities, the article presents the challenges and opportunities of legitimacy building for entities working in transitional political and administrative settings.     

Public Sector Corporate Governance Disclosures: An Examination of Annual Reporting Practices in Queensland

In the public sector, corporate governance is an expression that is yet to be explicitly defined. This paper examines the existing public sector literature in order to derive a set of broad principles of corporate governance in the public sector. These principles are then applied through a content analysis of corporate governance disclosures in a group of government‐owned corporations, state government departments, local governments and statutory bodies. The results indicate the set of principles derived is generally applicable to various forms of public entities. However, due to a lack of an established public sector corporate governance framework, the disclosure of corporate governance is piecemeal. Government‐owned corporations achieved better disclosure practices in most principles than other public sector bodies. The paper aims to stimulate debate on public sector corporate governance and provides a basis for a more extensive survey on corporate governance disclosures.     

食品犯罪认定中因果关系的证明强度应相对淡化

食品安全是维系民生和社会安定的重大问题。在严重危及民众生命健康安全的食品犯罪案件层出不穷的情况下，以“严刑峻法杀无赦”的重刑主义规制食品犯罪无异于舍本逐末；反之，在食品犯罪认定中，降低因果关系的证明强度，提高刑罚的不可避免性，才是规制食品犯罪之正途。对此，在食品犯罪认定中可引入过错推定责任、疫学因果关系说，将食品犯罪认定中因果关系的证明强度相对淡化，从而遏制食品犯罪的高发势头，保障民众食品安全。     

Probing the Strategic Intricacies of Public–Private Partnership: The Patent as a Comparative Reference

This article pursues a detailed understanding of strategic considerations in large-scale partnership negotiations that have implications for public service over the long term. Specifically, this study focuses upon the strategic context of negotiation between governmental entities and private firms as fundamental to partnership viability. Metaphorical comparison between U.S. patent policy (especially as it pertains to cutting-edge biotechnical and digital information issues) and public–private partnership is used to coax out new insight about the latter. The first section sketches an outline of U.S. patent policy as a means of generating analogous questions that can structure discussion of strategy in public–private partnerships. The second section explores the intricacies of public partnership by responding to four questions derived from the patent metaphor. In probing the implications of strategic partnership issues for public managers, the final section defines new capacity-building roles that are consistent with governance as an emerging form of public administration.     

Jurisdictional Integrity, Polycentrism, and the Design of Democratic Governance

Political and managerial processes are creating polycentric networks that transcend the traditional ideas of jurisdictional integrity in state-centric systems. Jurisdictional integrity refers to the political and legal competence of a unit of government to operate within a spatial and functional realm. An intrinsic element of jurisdictional integrity in a democratic system is that citizens are enabled to give consent to and pass judgment on the exercise of authority by that governmental entity. The concept of jurisdictional integrity is shown to apply differentially in relation to the traditional institutions of government in comparison with the emergent complex of quasi-governmental agencies, special purpose bodies and multi-organizational collaborations. Distinctions are drawn between club, agency and polity entities within this emergent organizational field. Problems to be faced in the design of institutions for network governance under conditions of polycentrism are identified and solutions reviewed. The potential of consociationalism to enable collective decision making across a polycentric system is highlighted. Informal norms are shown to be essential in enabling such a system for network governance to operate effectively.