死刑的程序之维

死刑正当程序的必要性在于防止错杀与滥杀。死刑的正当程序既要满足普通司法规则,又是一种特殊、烦琐与代价高昂的程序。中国现行的死刑司法,未能充分满足普通司法规则,缺乏正当程序所应有的特殊性,且过于简化而代价低廉,因而不符合正当程序的要求。为了有效地防止错杀与滥杀,最大限度地减少死刑的适用,中国的死刑司法应该从正当程序的要求出发,尽快实现程序的正当化。     

FITTING THE FORUM TO THE FAMILY FUSS

This article analyzes advantages and disadvantages of mediation, collaborative law, and cooperative law based on the parties' capabilities, attitudes about professional services, and assessments of and preferences about the risks of various procedures. Each of these procedures has virtues and there is great value in providing clients and practitioners with a choice of procedures. Under collaborative and cooperative law, lawyers and clients agree to focus exclusively on negotiation from the outset the case, typically using a problem-solving process. Collaborative law involves a written "disqualification agreement" between all the parties and their lawyers under which lawyers are disqualified from representing parties in litigation if either party chooses to litigate. Cooperative law is similar but does not use the disqualification agreement. Because most communities do not have lawyers offering cooperative law, collaborative law groups should encourage at least some of their members to offer clients the option of cooperative law.     

STRICTLY LIABLE: GOVERNMENTAL USE OF THE PARENT–CHILD RELATIONSHIP AS A BASIS FOR HOLDING VICTIMS LIABLE FOR THEIR CHILD'S WITNESS TO DOMESTIC VIOLENCE

Studies estimate that between three and ten million children in the United States witness domestic violence annually. Although studies have demonstrated a co‐occurrence of domestic violence and child abuse, there is no concrete evidence to support the assumption that a child's exposure to domestic violence increases the risk to the child of abuse or neglect. Recently the New York State Court of Appeals determined that a child's witness to abuse does not suffice, in and of itself, to show that removal of the child is necessary or that removal is in the “best interests” of the child. Programs which have developed alternatives to presumptive removal understand the importance of viewing the interests of the battered parent and children as being in accord with each other rather than in opposition. Private and government sponsored programs have demonstrated some success in protecting the parent‐child relationship, ensuring the safety of both parent and child, and increasing accountability of batterers while reducing the necessity for removals. Alternative programs are less costly to the state than foster care, and emotionally less costly to the families.     

破产实体要件的审理程序研究

我国现行《破产法》并未明确将破产原因等破产实体要件作为当事人争议和法院审理的对象为其设定正式的审理程序。司法实践中,不少法院是把实体要件和形式要件都放在破产受理这一程序中进行审查的,这样做虽可在一定程度上消除人们对程序启动及案件受理效力等方面有关程序正当性的怀疑,但毕竟受理程序并非正式的审理程序,其程序空间较为狭小,难以承受审理破产实体要件的沉重任务。从增加整个破产程序运行的正当性和保障当事人的程序权利出发,新《破产法》有必要为破产实体要件设立较为正式的审理程序。     

破产程序中劳动债权的法律保障

破产企业职工劳动债权的保护问题，是破产法理论和司法实践中的重要问题之一，我国与企业市场退出相配套的社会保障机制尚未建立，破产企业职工生活尚缺乏足够的社会保障，为此研究职工劳动权益的保护问题有着重要的意义。本文以中国现代法制人道关怀、救助社会弱者为出发点，对政策性破产中劳动债权的破产优先权、一般企业破产中劳动债权的优先受偿权及劳动债权的参与权等问题作了初步探讨。     

The fair process effect and procedural criteria in the resolution of disputes between intimate same-sex friends

This series of studies extended procedural justice research to the informal domain of dispute resolution in intimate same-sex friendship. The first study identified the types of disputes that occur between friends and the concerns that friends have when choosing dispute resolution procedures. Seven dispute types and 11 procedural criteria were found relevant to dispute resolution in friendship. Study 2 assessed the importance of procedural criteria for resolving several dispute scenarios. As expected, ratings of criterion importance were affected by subject and disputant sex. Females rated four criteria as more important than did males, and one criterion was rated as more important in disputes involving a male and a female than in disputes involving two females. The importance of procedural criteria was also influenced by the type of dispute, but this effect was qualified by an interaction with the dispute version. It was suggested that the importance of procedural criteria is generally defined by the context of friendship and specifically defined by the dispute topic. In Study 3, the relations among subject sex, traditional fairness variables, and criterion-based measures of process control were examined. Consistent with studies in other domains, process control predicted procedural justice, and decision control predicted distributive justive. Moreover, the hypothesized fair process effect emerged as a function of speed, a criterion-based measure of process control.     

The Role of UNEP and UNDP in Multilateral Environmental Agreements

This study examines the role of the UN’s programmes for environment and development (UNEP and UNDP) in the genesis and implementation of multilateral environmental agreements (MEAs). This is set in the wider context of the changing dominant focus of the international agenda, from ‘environment’ at the Stockholm Conference in 1972, to ‘environment and development’ at Rio in 1992, and ‚sustainable development’ in Johannesburg in 2002. UNDP is a development organisation strongly rooted in its country office network. Its role is becoming increasingly normative however, particularly since 2002 when UNDP opted to root most of its activities on the Millennium Development Goals. UNEP, as an environmental organisation has been successful at catalysing MEAs at the global and regional level; but without a significant increase in its budget over 30 years, its capacity has been spread very thinly. Many of the institutional arrangements for MEAs have effectively become independent of UNEP resulting in a very loosely and sometimes poorly coordinated network. Two case studies are used to illustrate the current institutional arrangements: UNEP’s Regional Seas Conventions and Protocols, and the Convention for Biological Diversity. These illustrate the fragmentation of current institutions, the need for strengthened technical and scientific support, the importance of addressing problems at their root causes and the need to increase the devolution of global governance to the regional level. Satisfying the identified needs requires actions within the remit of both UNEP and UNDP. It is argued that current institutional arrangements have not kept pace with the requirements of evolving policy. As part of a reform process, one option may be to merge the two programmes into a single structure that conserves and strengthens vital technical functions but enables a balanced and integrated approach to sustainable development.     

“正当程序”作为行政程序司法审查标准的立法建议

《行政诉讼法》第54条规定,具体行政行为违反法定程序将导致撤销或部分撤销,并可以判决被告重新作出具体行政行为。《行政诉讼法》对行政程序的要求改变了"重实体、轻程序"的执法模式。把"法定程序"作为司法审查标准有很大局限性,本文建议将司法审查标准提升为"正当程序"标准。     

The Role of Policy Brokers: The Case of Biotechnology in Kenya

Debates about biotechnology continue to be polarized despite its potential to improve the living standards of the poor in Sub‐Saharan Africa. In the backdrop of this polarized scenario, this paper asked, is there a place for brokers in bringing about a productive debate that is pro‐development? The paper argued that if potential intermediaries are analyzed from the perspective of understanding their role and stakeholding in the regulatory change process, this may help breakout the current polarized anti‐ and pro‐biotechnology debates and thereby focus on how to enable productive biotechnology development. Informed by insights from innovation brokering, the functions of brokers in biotechnology regulation are analyzed through the lens of organizations involved in agricultural biotechnology debates in Kenya. The analysis found that policy brokering function attracts varying opportunities and challenges appropriate for informing relevant policy. The paper drew lessons from Kenya's experience to inform a productive policy brokering model for biotechnology regulation.