行政程序立法的构想及反思

本文通过分析我国理论界有关行政程序研究的状况 ,从比较法学的视角提出了研究行政程序的方法论 ,进而对我国行政程序立法的现状进行简要的归纳总结 ,分析了制定单独的《行政程序法》的必要性 ,接下来 ,参照目前的《行政程序法》“试拟框架” ,从七个方面探讨了我国行政程序立法的架构问题。最后强调指出 :宪法是行政机关必须遵循的众多程序原则的渊源 ,关于行政程序法的研究 ,必须首先研究其宪政基础 ;行政程序立法的过程 ,应该是全民参与的过程 ,起码应该是全学界、全实务界参与的过程。     

Keeping national parliaments informed: The problem of European legislation

Since Maastricht there has been a growing realisation in the institutions of the European Union, that the unfettered flow of information is vital to the health of the whole European project. Some moves have been made towards more transparent decision‐making, but progress has been slow and is limited by a culture which values confidentiality, particularly in intergovernmental negotiations. The free flow of information is especially important to national parliaments if they are to exercise any influence in the EU. The House of Commons Select Committee on European Legislation has recently pronounced the scrutiny system to be ‘in deep crisis’ because of chaotic decision‐making and a disregard for the rights of national parliaments. Many Westminster MPs feel frustrated by the difficulty of keeping track of EU legislation. The paper suggests that the ingredients of an improved information system already exist. A wealth of current information can be derived from EU‐related electronic databases and through direct links between the European Parliament and national parliaments. It proposes that a new current awareness service for the House of Commons, distributed via the parliamentary network and as hard copy, could focus information for MPs in a much more accessible way.     

论行政程序立法的基本原则和制度选择

行政程序立法是当前我国行政法制建设的紧迫任务之一,行政程序的法典化是其必然趋势.本文认为,明确、严谨、科学的基本原则和完整具体的法律制度是行政程序立法论证和建构的两大基石.行政程序法的基本原则可以归纳为公正原则、公开原则、听证原则和效率原则.可供我国立法选择的行政程序法律制度主要有情报公开、表明身份、受理、调查、咨询、回避、听证、申辩、质证、职能分离、说明理由等制度,本文从立法学和行政法学的双重角度对此进行了比较全面的论证.     

On compensation schemes for data sharing within the European REACH legislation

There is an intense debate on the impact of labour regulation in India today. Labour regulation in India differ state-wise and apply differently across types of workers (both regular and contract workers). This paper examines the joint effects of Employment Protection Legislation (EPL) and variable enforcement intensity on the growth in a size of temporary contract workers in the organised manufacturing sector. It uses the state level amendments to Industrial Dispute Act of 1947, and the average size of total number of labour inspectors for each state, as independent variables to capture the variation in labour regulations and enforcement intensity across thirty-one Indian states for the period 2000–2007. This paper argues that, average Indian firms located in strict EPL states hire differentially more temporary contract workers as compare to regular workers in response to variable enforcement intensity. Among other findings, the empirical analysis shows that firms prefer to employ excessive number of contract workers to circumvent firing and overall compliance costs of regular workers as stipulated by the Indian labour laws. Our results are robust to alternative specifications.     

The WHO European program of health legislation and the Health for All policy

The purpose of this paper is to provide a comprehensive review of the work of the World Health Organization (WHO), begun a decade ago in Europe, in the field of health legislation. This program is the result of the interaction between two important factors: the trends in national health policy and legislation at the country level, and the implementation of the Health for All policy, which has been collectively adopted by the European Member States in various WHO fora. Health legislation has proved to be a valuable tool in supporting National Health Policies in European countries and a key element in international health activities. The paper will be presented in three main parts. The first examines the legislative implications of the Health for All policy and strategy. The second gives an overview of developments in health legislation in Europe, focusing on national achievements in three areas in which change is necessary to achieve Health for All: health care systems, the environment, and lifestyles. The third part gives an account of activities carried out by the Regional Office for Europe of WHO in the health legislation field, recalls the organization of the first WHO medium-term program in this field, and summarizes its four current subprograms on health policy, health situation, exchange of information, and training. The conclusion briefly outlines the prospects for further developments in Europe.     

Filtering speed in a Continental European reorganization procedure

Recent studies of US Chapter 11 show it to be a relatively efficient procedure. We examine reorganization cases in a Continental European, creditor-oriented bankruptcy system, viz. Belgium, and report very different findings. Using hazard and cure regression models to determine what drives the length of time spent in reorganizations, we find evidence suggesting that courts have little impact on the screening and filtering process. In fact, many drivers of procedure length prove to have the opposite sign of what one would expect if the procedure would efficiently realise its goals. Instead, the procedure appears to be mainly creditor or owner-driven.     

The importance of national laws in the implementation of European legislation of biomedical research

The industrialization and internationalization of biomedical research is not without consequences on the regulation of research or, at least, on the interpretation of that regulation. As more research is done at the international level, the pharmaceutical industry and the research community are calling for a harmonized regulation to limit the administrative burden of controlling clinical trials and to fasten the R&D process. The purpose of this paper is to analyse briefly the role of the national laws in that process. Part I will outline the structure and the nature of the international regulation of research in a European perspective. Using the examples of research ethics committees (RECs), informed consent and the question of liability and liability insurance, Part II will analyze the importance of the national laws in the implementation of this international regulation.     

质疑立法解释--兼为法律解释正名

本文从中西比较的角度分析了中国的立法解释现象 ,进而探讨了 :“法律解释”一词在东渐过程中含义已被篡改 ;立法解释 ,虽名为法律解释之一种 ,但究其实质 ,实是一种不规范的立法现象 ;这种认识上的混乱 ,对中国的法治建设极为不利。     

Technology transfer legislation: An overview

This article provides an overview of the Federal legislation on technology transfer beginning with the Bayh-Dole and Stevenson-Wydler acts of 1980 and ending with the 1987 Executive Order, “Facilitating Access to Science and Technology.” The legislation and Executive Order provide the context for Federal laboratory technology transfer activities. The article covers the historic development of transfer legislation, the authorities given to laboratories, incentives for technology transfer provided by legislation, and the mandated duties and responsibilities of ORTAs, organizations, and agencies.     

Vocational education and training legislation in Central and Eastern European countries, the New Independent States and Mongolia (the partner countries). Experience of the European Training Foundation

The aim of this article is to give readers a brief insight into the legislative reforms underway in education and training (VET) in the countries of Central and Eastern Europe, the New Independent States and Mongolia (the partner countries). It is also hoped that through this, readers will have a flavour of the process of reform in general. Legislative reform is an ongoing process. Since 1989, all countries of Central and Eastern Europe, the New Independent states and Mongolia have addressed the issue of VET reform to meet the needs of their new environment. Some have amended existing education laws, some have adopted specific new VET laws. Others still have undertaken a complete reform of their education and vocational education and training system. The important underlying message is the importance of VET and its reform to the overall democratic and economic processes of countries in transition. This revised version was published online in July 2006 with corrections to the Cover Date.     

After the sunset: the residual effect of temporary legislation

The difference between permanent legislation and temporary legislation is the default rule of termination: permanent legislation governs perpetually, while temporary legislation governs for a limited time. Recent literature on legislative timing rules considers the effect of temporary legislation to stop at the moment of expiration. When the law expires, so does its regulatory effect. This article extends that literature by examining the effect of temporary legislation beyond its expiration. We show that in addition to affecting compliance behavior which depends on statutory enforcement, temporary legislation also affects compliance behavior which does not depend on statutory enforcement, and more generally, organizational behavior after a sunset. When temporary legislation expires therefore, it can continue to administer regulatory and other effects. We specify the conditions for this process and give the optimal legislative response.     

论WTO法国内转化过程中凸显的行政立法新类型——涉外经济行政立法

WTO法是适应经济全球化的发展而产生的,规范成员方政府行为的多边贸易法律体系。在大多数成员方转化适用WTO法的条件下,行政立法必然分化出新类型的行政立法——涉外经济行政立法,即有权行政机关为了调整涉及其他国际法主体所肯定的,具有其法律意义因素的经济关系而进行的行政立法。此种新类型的行政立法是经济全球化的必然产物,具有显著的特征和重要的功能。     

Futile treatment: the need for legislation and uniform policies

As a matter of social policy, providers should place a top priority on educating colleagues and the public, including lawyers and the courts, so that there is genuine understanding that certain medical conditions, like anencephaly and brain death, cannot be ameliorated, changed, or improved through medical treatment even though the patient may continue to breathe with mechanical assistance for years. If health care professionals do not articulate and adhere to clear, universal standards of practice in this area, the courts will continue to define the duty of the medical profession, and, as Baby K illustrates, that is not acceptable.