论自然债务

自然债务是民法学者很少涉及的一个概念。文章着重考察了自然债务、法定义务与道德义务之联系与区别 ,从而大体从理论上界定了自然债务的本质 ,并以此为基点探讨了其构成及效力问题。最后 ,就这一制度在民法典中如何规定提出了自己的看法。     

L'impact du discours des droits des détenus et des normes d'équité sur le tribunal disciplinaire carcéral

Over the past two decades, the prisoners rights movement and active judicial intervention in prison law have widely expanded in Canada. This movement has had a significant impact on the emergence of new norms of correctional justice. The recentCorrections and Conditional Release Act, (November 1992), inserts notions of human dignity; due process of law; and to a certain extent, the fundamental rights of prisoners. The aim of this essay is to measure the impact of prisoners rights discourse, and the legal obligation to act fairly towards prisoners, on the practices and quality of disciplinary decisions. Based on observations made at disciplinary hearings in various penitentiaries and interview data derived from the main actors, the author assesses how the ‘judiciarization’ of social relations and the ‘legalization’ of discipline in the prison have contributed to the birth of a more humanized prison and the promotion of human dignity for those people who are incarcerated.      

Enforcing the Law and Being a State

Many anarchists believe that a stateless society could and should feature laws. It might appear that, in so believing, they are caught in a contradiction. The anarchist objects to the state because its authority does not rest on actual consent, and using force to secure compliance with law in a stateless society seems objectionable for the same reason. Some people in a stateless society will have consented to some laws or law-generating mechanisms and some to others – while some will have consented to none. Someone’s obedience to a legal requirement could be justly enforceable absent the state, nonetheless, given either her actual consent to the requirement or to a mechanism responsible for generating it or the coextensiveness of the legal requirement with a moral requirement. And it could thus be just on the anarchist’s own terms to enforce a narrow range of positive legal requirements even against outlaws who had declined to consent to them.     

论我国公民的免于匮乏权

美国前总统富兰克林.罗斯福面对经济危机提出了包括公民应该享有"免于匮乏的自由"的著名四大自由。我国的法学理论中虽然没有这一概念,但宪法中关于"国家合理安排积累和消费,兼顾国家、集体和个人的利益,在发展生产的基础上,逐步改善人民的物质生活和文化生活"的规定,实质上就是关于公民免于匮乏权的表述。本文从现代国家的职责、国家权利(义务)与公民权利(义务)关系的角度论述了保障公民免于匮乏权是国家的法律义务,不能将此任推给公民家庭及个人,并通过对我国实践的剖析,提出应当避免过度从政策层面、经济层面及公民个人努力层面对公民进行免于匮乏权保障的路径选择,而应靠国家义务性、实践路径上的法律制度性来实现。     

Then they came for the dogs!

This paper examines the British state’s desire to liquidate the Pit Bull as a breed. It examines the moral panic that brought the Pit Bull Terrier to public attention and traces the government’s knee-jerk response that resulted in the Dangerous Dogs Act (1991), the legal instrument that mandated Britain’s first attempt at canine genocide. Though public protection was the stated justification of this exercise in state violence, there was and is no evidence to support the case for canine killing through the indiscriminate blanket medium of breed specific legislation. Far from conceiving the dog an aggressor and humans its victims, this paper precedes on the assumption that the dogs are the victims and humans the inhuman aggressor. The paper concludes by examining the factors that provoked the UK’s descent into mass dog killing.     

Feminism and the siren call of law

Feminists have so often declared and celebrated the fecundity of the relationship between feminism and legal reform that critique of legal doctrine and norms, together with proposals for their reconstruction, have become the hallmarks of the modern feminist engagement with law. Yet today the long-cherished ‘truth’ about law’s potentially beneficial impact on women’s lives has started to fade and the quest for legal change has become fraught with problems. In responding to the aporetic state in which feminist legal scholarship now finds itself, this paper offers a recounting of the relationship between feminism and the politics of legal reform. However, in so doing, it seeks neither to support nor to oppose these politics. Instead, it explores the historical contingencies that made this discourse possible. Utilizing Foucault’s concept of episteme, it demarcates the nineteenth century as the historical moment in which this discourse arose, and tracing the epistemic shifts underpinning the production of knowledge, locates its positivities at the interface of the time’s episteme and the discourse of transcendental subjectivity that it engendered.

Disappearing Without a Moral Trace? Rights and Compensation During Times of Emergency*

Scholars are divided over whether a victim’s rights persist when an agent permissibly responds to an emergency. According to the prevailing view the moral force of rights is not extinguished by moral permissibility and the agent, therefore, has a duty to compensate the victim. According to another influential view permissibility does erase the moral force of rights and the agent, therefore, can only have a duty to compensate for reasons other than the fact that they committed a rights transgression. I argue that liability does not follow even if we grant that the victim’s rights persevere. A non-pecuniary remedy such as a formal apology provides an adequate way of vindicating the victim’s rights and of recognizing the agent’s causal role. Thus, the answer to the question of what remedy the permissible transgressor owes the victim does not provide us with an answer to the question of who should bear the burden.     

Leiter on the Legal Realists

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two ‘prediction’ theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists.     

论医疗机构违反告知义务的医疗侵权责任

<医疗事故处理条例>规定的医疗机构义务是"软义务".医疗机构的告知义务是一种法定的合同义务,体现了法定性和意定性的交融.医疗行为本身的特点决定了有必要将意定性的告知义务上升为强行性的法定义务.患者的知情同意权包括充分知情权和自行决定权.医疗机构违反告知义务的侵权责任构成要件中的违法行为和损害事实具有特殊性:判断医疗机构的行为是否构成违反法定告知义务必须以患者的医疗期待为基础;损害事实包括现实权益损害和期待利益损害.     

In Force Without Significance: Kantian Nihilism and Agamben’s Critique of Law

In Homo Sacer, Giorgio Agamben makes the claim that Kant’s moral philosophy is prophetic of legal nihilism and modern totalitarianism. In doing so, he draws an implicit parallel between Kantian ethics of respect and autonomy, and the authoritarian constitutional theory of Carl Schmitt. This paper elucidates and evaluates this claim through an analysis of Agamben’s assertion that the legal condition of modernity is a nihilistic law that is ‘in force without significance’. I argue that the theoretical continuity between totalitarianism and the Moral Law is the problem of the undecidable, which arises when the empty ground of normative judgment comes to light.     

法律行为:我国刑法中作为义务类型的合理性质疑

不作为犯罪的义务来源一直是我国刑法理论中最具争议的问题之一。结合相关案例,分别从驳论和立论两方面对法律行为被确立为作为义务类型的合理性进行质疑。认为肯定论的观点问题在于:存在着逻辑上难以论证的难题;刑法理论不应当以其他法律为圭臬;与刑法谦抑主义的要求背道而驰;容易引发不良的司法反映。因此,认为法律行为不应当作为独立的作为义务的来源形式。其意义有四:符合思维的逻辑;为实质义务论提供了客观的推动力;有利于实现刑法保护机能和保障机能的协调;有利于犯罪和刑罚实现规范化和法定化。     

论我国多数人之债的完善——以不可分之债与连带之债的区别为中心

不可分之债是从债的标的（给付）的角度对债的一种观察，连带之债却是从债的主体关系的角度对债的另一种观察，它们在划分标准、形成原因、功能目的、损害赔偿之债的性质、可继承性、整体履行的原因及方式方面存在明显不同。我国《民法通则》不当地将不可分之债并入到连带之债，只规定了按份之债和连带之债，与传统大陆法系大多数国家民法典的立法模式相悖，因而我国未来民法典应再增加可分之债和不可分之债这一分类，以填补法律的漏洞，从而明确地区别不可分之债和连带之债。     

A generalization of the obligation to prevent: From genocide convention to racial discrimination convention

The decision of the International Court of Justice in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) highlights states’ obligations under the Convention, especially the obligation to prevent. When it comes to the case concerning the International Convention on Elimination of All Forms of Racial Discrimination (“Racial Discrimination Convention”), the decision of the Court indicating provisional measures seemingly purported to generalize its jurisprudence in the Genocide Case. By elaborating this kind of new jurisprudence, the Court echoed to the responsibility to protect, as well as to Article 48 and Article 54 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles of State Responsibility”). It appears that each State Party should have an obligation to intervene in the coming genocide incidence, perhaps as well as in the coming racial discrimination cases. Nevertheless it is unclear in what manner a state could implement it effectively.     

关于公众参与环境影响评价的若干思考

本文结合我国现行的有关公众参与环境影响评价(EIA)的法律法规,参照国外有关公众参与的法律文件和国际条约,运用法律关系、法律行为、权利、义务等基本法理,论述了公众参与环境影响评价的特殊内涵,对参与环境影响评价的公众的权利义务进行了初步探讨,在此基础上,提出了关于如何进一步完善公众参与制度的建议。     

论我国立法和司法对法定外在标准的过度依赖——以我国医疗损害责任鉴定与诉讼实践为例

我国法中存在着在侵权法问题的判定上过度依赖"法律法规"、"行业标准"和"诊疗规范"的倾向。这些"外在"标准替代了法官对法律"内在"规则的审视和适用。行业标准替代了法律标准。比如,在医疗过失判定标准上,法官过度依赖"诊疗规范",忽视了基本法律标准——注意义务违反说和"合理医生"标准——的探寻和适用。我国法应纠正此种现象,注意对法律规则,比如医疗过失和因果关系判定规则的细心构建,以给法官具体指导。"法律法规"、"行业标准"和"诊疗规范"在侵权法中是判定过失的重要标准,但不是终局性和根本性标准。     

State Legitimacy and Self-defence

In this paper I outline a theory of legitimacy that grounds the state??s right to rule on a natural duty not to harm others. I argue that by refusing to enter the state, anarchists expose those living next to them to the dangers of the state of nature, thereby posing an unjust threat. Since we have a duty not to pose unjust threats to others, anarchists have a duty to leave the state of nature and enter the state. This duty correlates to a claim-right possessed by those living next to them, who also have a right to act in self-defence to enforce this obligation. This argument, if successful, would be particularly attractive, as it provides an account of state legitimacy without importing any normative premises that libertarians would reject.     

Excusing Necessity and Terror: What Criminal Law Can Teach Constitutional Law

This essay proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state’s general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty theory, and the conformity to moral expectation theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The author argues that this theory would excuse the altruistic no less than the self-preferring murderer.     

Levinasian Ethics and Legal Obligation*

Abstract. This paper discusses the implications of the ethical theory of Emmanuel Levinas for theoretical debates about legal obligation. I begin by examining the structure of moral reasoning in light of Levinas's account of ethics, looking particularly at the role of the “third party” (le tiers) in modifying Levinas's primary ethical structure of the “face to face” relation. I then argue that the primordial role of ethical experience in social discourse, as emphasised by Levinas, undermines theories, such as that of H. L. A. Hart, that propose a systematic distinction between legal and moral species of obligation.     

我国《劳动合同法》中的告知义务研究

《劳动合同法》设置告知义务的目的是保障当事人之间信息顺畅流通,促使信息实现均衡,在此基础上,通过对该法中与告知义务有关法条的深度解释,使告知义务在法律实践中发挥出更积极的作用。