宪政与适合我国国情的宪法监督模式

完善宪法监督制度是宪政发展的必由之路。我国目前宪法监督实为“议会至上”理念下的前苏联模式且并未有效运作;为实现法治,必须寻求有效运作的宪法监督机制。但是,欧美“经典模式”不符合中国国情,因而不可能简单移植。适合我国国情的应当是复合模式,即宪法监督的职能由立法机关与专门机关组成的复合式宪法监督机构承担。复合模式的运作,可以分为初级阶段和高级阶段两步走。     

Informing the Population About the Activity of State Agencies

Under the conditions of developed socialism, the general problem of informing the population, and that of its knowledge about matters of state and law in particular, becomes increasingly more pertinent. "The development of socialist democracy," said L. I. Brezhnev at a meeting with voters of the Bauman Electoral District in Moscow on June 10, 1966, "demands the solution of many problems that the Party has placed on the order of business." One of these tasks is "providing fuller information to the people about everything happening within the country and on the world scene, and increasing publicity [glasnost'] about the work of the agencies of Soviet government." The Communist Party associates improvement of socialist democracy particularly with the level of society's information "about the policies of the Party and state." (1) Therefore, the Soviet government pays much attention to the solution of questions associated with informing the citizenry about the work of governmental agencies and also about their regulation by law. Thus, for example, in the RSFSR law "On the District Soviet of Working People's Deputies of the RSFSR" (June 29, 1971), we read about the responsibility of the executive committee to inform the population about questions placed on the order of business of the soviet (Article 33), to bring decisions of the district soviet to the knowledge of the citizens (Article 38), and to report on its work at meetings of the working population and at citizens' places of employment (Article 55). Article 93 reads: "The district soviet of working people's deputies is responsible for informing the population about its functioning. …" Presidiums of the supreme Soviets of union and autonomous republics monitor observation of provisions of the law, assuring that the population will be widely informed on the work of state agencies. (2) In this connection, examination of the question of the content and forms whereby the population of the USSR becomes informed about the activity of state agencies is of interest.     

Local Soviets in the Ukraine during the Years of the Great Patriotic War

From the very first day of the Great Patriotic War, local Soviets of all the Soviet republics contributed in every possible way to the use of all forces and means for the needs of defense of the Motherland and the defeat of the enemy. The Ukraine was one of the first to experience all the hardships of the fascist invasion: the death of people, the destruction of cities and villages, and the bestial cruelty perpetrated by Hitler's minions on the occupied territory. With the direct participation of the local Soviets of the republic, about 2 million people were mobilized into the ranks of the Red Army in the first months of the war alone, 657 fighting battalions were formed, sections of the People's Army numbering more than a million persons were created, and over 2 million citizens worked to build equipment for defense. The Soviets also used their efforts to organize the evacuation of the population, industrial enterprises, and various material goods from the territory near the front. By the end of 1941, more than 550 enterprises, 427 machine tractor stations, a huge volume of agricultural products, and over 4 million Soviet citizens had been evacuated from the territory of the republic.¹ This tremendous work was done under the leadership of Party organizations, the supreme organs of government, and the central administrative bodies of the republic. The entire country of Soviets gave all-round assistance to the Ukrainian SSR.     

刑法中的国家工作人员之立法与司法解释评析

刑法中的国家工作人员的界定是长期困扰刑法理论界和司法部门的一个难题。国家立法机关和最高司法机关虽对其作过多次立法解释和司法解释,但却仍然存在内涵不清、外延不明,难予认定的问题。为此,本文对历次刑事立法和司法解释中关于国家工作人员的解释之得失进行了回顾、比较与评析,旨在为准确理解和把握本概念提供有益的思路。     

The Law on Citizenship of the USSR

The new Law on USSR Citizenship, adopted by the USSR Supreme Soviet, December 1, 1978, is a notable contribution to carrying out the program of legislative activity deriving from the USSR Constitution of 1977. The issuance of such a law is envisaged directly in the Constitution, which reads: "The grounds and procedure for acquiring or forfeiting Soviet citizenship are defined by the Law on Citizenship of the USSR" (Article 33). The new law replaces the 1938 Law on USSR Citizenship. That law, consisting of only eight articles, no longer covers many questions of citizenship arising in practice at the present time. Various normative documents were adopted in addition thereto, including instructions by ministries and agencies regulating certain important relationships that should have been settled in law. In writing the new USSR Citizenship Law, the goal was to embrace all questions of citizenship requiring legislative regulation. The law reproduces the corresponding provisions of the USSR Constitution and gives consideration to provisions of the previously prevailing legislation on citizenship and to present practices in this regard. There are new provisions as well. The drafting of the bill was conducted on a broad democratic basis; participating were deputies to the USSR Supreme Soviet, the relevant ministries and agencies, the presidiums of supreme soviets of union republics, and representatives of the science of jurisprudence.     

西部大开发的宪政基础与共和精神

在西部大开发中要革新观念 ,把大开发建立在实行宪政和发扬共和精神的基础上。发扬和落实共和精神 ,在政治上就是要实现“各族共和”、“全民共和”的理念和民族地方自治 ;在经济上则要求资源共享 ,全民共富。只有实现社会主义宪政 ,弘扬共和精神 ,才是从根本上保障西部大开发的可行而且必行之道。     

从混合均衡到分权制衡——西塞罗与联邦党人共和思想之比较

西塞罗古典共和思想以混合均衡政体为核心,而联邦党人则推陈出新,建构了以“自由选择、分权制衡”为核心的现代共和思想,但这两种共和思想并非毫不相干,而是有着内在的关联。一方面,两者有着共同的理论渊源和基本原则,从混合均衡到分权制衡展现了共和思想发展的内在理路;另一方面,在政体划分基础、目标诉求、权威依凭、政体实质等方面,联邦党人现代共和思想是对西塞罗古典共和思想的发展与超越。     

The Standing Committees and the Ministries

The 23rd Congress of the CPSU posed the task of enhancing the role of the supreme Soviets and defined the principal directions to be followed in solving this task. The most important of them are the further improvement in the activity of the standing committees [postoiannye komissii], which contribute to the development of socialist democracy, the improvement in the work of the supreme Soviets and the agencies of state administration, and the activization of deputies. At the first session of the seventh Supreme Soviet [sed'mogo sozyva] of the USSR, the report by N. V. Podgorny, Chairman of the Presidium of the USSR Supreme Soviet, "On Organizing the Standing Committees of the Soviet of the Union and the Soviet of Nationalities," emphasized the major role of the standing committees in social and economic development and expressed confidence that their functioning would promote the fulfillment of the tasks facing the country. (1) The seventh supreme Soviets of the USSR and of the union republics carried out a number of practical measures to implement the instructions of the party to increase the role of the standing committees.     

Of Tribunes and Tyrants: Machiavelli's Legal and Extra‐Legal Modes for Controlling Elites

This essay examines the two means by which Machiavelli thought republics could address the political problem of predatory socio‐economic elites: Healthy republics, he proposes explicitly, should consistently check the “insolence of the nobles” by establishing constitutional offices like the Roman tribunes of the plebeians; corrupt republics, he suggests more subtly, should completely eliminate overweening oligarchs via the violent actions of a tyrannical individual. Roman‐styled tribunes, wielding veto, legislative and accusatory authority, contain the oppressive behavior of socio‐economic elites during normal republican circumstances. By contrast, having overthrown a republic grown corrupt through oligarchic encroachment on the commonweal, Machiavelli suggests that Greek‐styled tyrants lay the foundation for a more robust—that is, more egalitarian and martial—republic down the road by eliminating elites entirely and by instituting economic redistribution and military reforms.     

刑事缺席审判程序的理论检视

最高立法机关将缺席审判程序引入《刑事诉讼法》,既应遵守国际共识,又须彰显中国特色。改革者宜遵循"凸显权利属性、淡化义务属性"的思路,尊重被追诉人明示或者暗示放弃出庭受审权利的意愿,进而采取二元化的方案。其一,针对简单轻微犯罪案件,以认罪认罚从宽制度改革为契机,允许被追诉人以签署具结书的形式放弃审判在场权,实现书面审理与缺席审判的"合二为一"。其二,针对重大贪污贿赂犯罪案件,慎重地权衡国家公共利益与被追诉人利益的关系,采取"四步走"的规划,最大限度地实现制度反腐的法治化。同时,完善缺席审判程序立法规则还要明确"五个区别",涉及弃权自愿性审查、被追诉人诉讼权利、审理活动、司法救济途径、被害人权益等方面。     

立法“根据宪法”无可非议——评“全国人大立法不宜根据宪法说”

梁慧星先生的《不宜》一文认定全国人大根据宪法立法抵触和违背人大制度的论点没有根据。《不宜》立论的逻辑前提不能成立,对西方国家依据宪法立法的原因的理解有误,对中国制宪过程的阐释有违史实、不合宪理。人大制度不是依任何法律产生的论断违背历史真实。全国人大行使的立法权源于宪法,最高国家权力机关有权修宪但不可违宪。《不宜》理论上陷入了严重自相矛盾的状态。主张“最高国家权力机关的权力不受宪法限制”反映的是国家主义、绝对权力的落伍观念。如果此说付诸实践,不仅将毁灭宪法、毁坏法制的基础,也将剥夺市民社会存在的空间,造成否定私法自治和严重侵犯公民私权利的法律后果。目前情况下在基本的法律中规定“根据宪法”的内容是必要而正确的举措。     

Kant’s Project of Perpetual Pacification

Richard Tuck locates a conundrum in the Hobbesian world view. Whereas the nation-state is desired to effect the pacification of the domestic sphere, a world state and the promise of global pacification is feared. Kant’s strong program for perpetual peace is presented as a moral imperative to establish through legal means a world republic based on reason and individual autonomy. Kant emphasizes the empirical impossibility of a world republic and hence advocates the weaker program of a world federation of states. This essay argues not the empirical but the logical impossibility of Kant’s strong program and by extension any program of perpetual peace that claims to be essentially different from ‘mere’ peace as truce. In so doing this essay distinguishes between political theory based on the assumption of the ontological priority of peace and political theory based on the assumption of the ontological priority of violence and argues for the necessity of thinking the latter.

STATE SUPREME COURT APPLICATIONS OF TROXEL v. GRANVILLE AND THE COURTS' RELUCTANCE TO DECLARE GRANDPARENT VISITATION STATUTES UNCONSTITUTIONAL

In this article, the author reviews state supreme court applications of Troxel v. Granville , analyzing the impact of the decision on the courts' ongoing efforts to adjudicate visitation disputes between parents and grandparents. Set against a background of legislative recognition of grandparents' rights and judicial uncertainty regarding the appropriate role of nonparents in children's lives, Troxel reaffirmed the constitutional right of parents to direct their children's upbringing. The author argues that state supreme courts evaluating gradparent visitation statutes and seeking to enforce Troxel 's presumption in favor of parents should be more willing to strike down overly broad statutes. Such an approach would be a positive step toward addressing the excessive judicial discretion that the Troxel Court found so problematic, and would signal to state legislatures the need for statutes that both provide for the needs of children and protect parental rights.     

资政院弹劾军机案的宪法学解读

资政院弹劾军机案是清末筹备立宪过程中的重大事件,本文试图以宪法学的视角对其进行新的解读。弹劾军机案是与立宪派请愿速开国会运动紧密相连的,由于国会不能速开,资政院自我定位为准国会,与军机大臣展开立法权之争与代议机关地位之争。在清廷模仿德日建立二元君主立宪制的前提下,弹劾军机案本身（包括弹劾主体与对象）在法律上是站不住脚的。但立宪派议员以宪法革命的姿态、用启蒙思想家的民权与代议思想作武器、以虚君共和的英国为典范,与军机处及其背后的皇权展开了多轮角力。弹劾军机案的遗产也并非全然是正面的,议员们对于现行制度缺乏基本的尊重,超越自身的法律地位与权限,把资政院想象成“无所不能”的英国国会,是为民初国会“毁法造法”之先河。     

论"以人为本"的宪法涵义

现行宪法的第四次修改体现了"以人为本"的修宪观,以人为本不仅禁止国家权力侵犯人的尊严,而且要求国家积极保障个人有尊严地生存、发展的条件.从历史上考察,以人为本的思想在当代有着崭新的内涵,与传统的人本思想有着本质的区别,亦涵盖了西方宪政史中"人的尊严"的理念,其核心意义在于明确国家和人民之间的关系,确立国家最高价值在于人权保障的观念.     

The legal constitution: United Kingdom parliament and European court of justice

Membership of the EC has transformed the legal status of the UK parliament. Prior to British accession, Acts of Parliament were the supreme law of the land, unchallengeable in any court. This paper argues that EC membership raised the courts ‐ national as well as European ‐ above parliament and that at the time of accession parliamentarians were almost wholly unaware of this fundamental change. The author links MPs’ ignorance to the highly political, rather than legal, nature of the British constitution and traces the evolution of their constitutional understandings. Identifying a new dynamic interplay between British judiciary and parliament, the study argues that the creeping hegemony of law within constitutional politics merits continuing analysis by legislative scholars.     

Examining GPS monitoring alerts triggered by sex offenders: The divergence of legislative goals and practical application in community corrections

Purpose

Legislative mandates that require GPS monitoring of offenders add to the existing logistical complexities of community supervision. Challenges in implementing GPS policies and practices are heightened by the lack of sound empirical research. Studies examining the relationships between GPS monitoring of sex offenders in the community and the legislative goals of public safety, deterrence, and cost effectiveness are virtually nonexistent. To begin to address this gap in the literature, this study examines the impact of a statutorily-based GPS monitoring program for adult sex offenders convicted of dangerous crimes against children and placed under community supervision.

Method

Official offender generated alert data for DCAC Sex Offenders in Maricopa County, AZ are examined from the time of legislative mandate for a subsequent two year period.

Results

Analyses highlight the significant number of equipment related alerts triggered by a loss of satellite signal for offenders under GPS monitoring as a key concern as well as a significant increase in officer workload as a result.

Conclusions

A divergence between legislative goals and practical application of mandated GPS monitoring programs exists. GPS technology is far more limited than anticipated and should be viewed as a tool rather than depended upon as a control mechanism.     

The Assumption of Jurisdiction: Parliament,the King's Council and the College of Justice in Sixteenth-Century Scotland

This article considers how the Scottish Court of Session developed out of the restricted jurisdiction of the medieval King's Council, and achieved recognition as a supreme civil court during the sixteenth century, thereby assimilating the main judicial role of the medieval Scottish Parliament. It argues that the change resulted not from any particular legislative or judicial decision but from a gradual assumption of jurisdiction concealed within an expansion of the scope of traditional remedies. It is argued that the most decisive step occurred when the pleading of actions on heritable title to land began to be seen as within the ambit of those remedies. It is argued that this assumption of jurisdiction had occurred by the time of the foundation of the College of Justice in 1532, precluding any development along English lines of equitable remedies outside the procedures of the common law in Scotland.     

A comparison of the Russian and Canadian experiences with defining “organized crime”

The dangers stemming from organized crime have been widely acknowledged in the academic literature, government reports, as well as in popular discourse. This article focuses on the legislative efforts to define “organized crime” undertaken in Russia and Canada. Neither country has yet devised a satisfactory legislative definition of the varied phenomenon that is organized crime. Definitions in both jurisdictions are problematic due to their sweeping scope and insufficient delineation of a zone of risk for the accused as well as law enforcement officials. However, striking a proper balance between security concerns and human and civil rights in both countries will be problematic due to constant political pressure to “get tough on crime” as well as due to the amorphous nature of the phenomenon of organized crime.

试论对全国人民代表大会立法权的监督

立法监督一直都是我国人民代表大会制度改革的重要课题之一。但由于全国人民代表大会的立法权在传统的理论中是处于最高权力形态,拥有无上性,从而使立法监督缺失。通过对人民代表大会的双重身份的分析,旨在找出当前情况下立法监督的逻辑基础,使立法监督现实可行,并提出相应的改革建议。