房地产合作建房合同效力的认定及处理

在我国房地产开发建设不断发展的同时,因房地产开发经营合同而引起的纠纷在房地产纠纷案件中占有极大的比例,而对于这一类案件的处理,立法上则相对处于滞后状态,导致司法实践中同一类型、同一性质的案件在判决结果上的截然不同。如何克服房地产立法与实践的严重脱节,是当前迫切需要解决的问题。在实践中,房地产合作开发建房合同大体表现为五种形式。确认房地产合作开发合同的效力,应考虑不同时期成立的合同,应当适用不同的法律依据确认其效力,同时应审查签订合同的主体资格、合同的内容是否合法以及政府职能部门的管理对房地产合同效力的影响等因素。房地产开发合同纠纷的处理应依有效合同和无效合同的不同情形处理。     

论无效合同与诉讼时效的适用

由于现行立法没有对无效合同是否适用诉讼时效的问题予以明确规定,造成理论和实务中常常认识不一。应从遵循立法的价值选择,即效率与公平的关系及保护交易安全等角度出发,对无效合同是否适用诉讼时效作出肯定回答,并对由此引起的相关问题在结合实践的基础上进行理论分析。     

作为公众投资工具的投资合同之法律适用研究

本文主要研究虽然名称上不是股票或企业债券,但实质上以给予回报而募集公众资金的投资合同是否应该由证券法监管,或者说是否构成证券法下的证券。为此,在考察美国证券法(制定法)和普通法(判例法)的基础上,总结出投资合同构成证券法下的证券之要件,并据此分析了目前社会上较有影响的造林投资合同,得出该类投资合同构成证券,应该由证券法对其加以调整的结论。     

论用人单位与劳务派遣工之间的关系

劳务派遣工、劳务派遣单位与用人单位法律关系是一种劳动契约关系,劳务派遣单位与劳务派遣工之间的关系,是劳动合同关系,而用人单位与劳务派遣工之间的关系,则是一种特别权力关系。在后者的特别权力关系中,如果用人单位不按法定或约定的规定履行义务,给劳务派遣工造成实体权益的损害,须承担相应的违约责任。     

房贷险存废论

住房金融巨大风险对强化房贷保险作用的现实需要,与旷日已久的所谓"强制保险"的法律困惑,形成了房贷险存与废的博弈。保险金物上代位机制使抵押物保险具有了双重保障机理,决定了抵押权人干预抵押物保险合同的法理依据及其权利界限,银行放弃房贷险只是一种弃权行为;房贷履约保证保险本质上具有人身保险属性,其设定的目的是取代住房抵押担保,应与住房财产险分离而免于银行的强制;房贷险本身的设计缺陷和业务不规范行为必须全面矫正;须尽快加强我国的消费信贷立法。     

建设工程施工合同纠纷案件审理中存在的诸问题——兼评最高法院《关于审理建设工程施工合同纠纷案件适用法律问题的解释》的不足

建设工程合同纠纷争议内容和案件事实错综复杂,涉及法律适用的新情况和新问题较多,审判实践中因司法理念和对法律精神的理解差异,往往造成审判中的司法标准不统一,案件处理各异,影响了人民法院公正与效率这一世纪主题的实现和良好的形象.文章通过对全区法院审理此类案件的深入调研,认真总结分析了目前法院审理此类案件的情况、特点和存在问题,并在此基础上,结合审判实践并结合最高法院最近司法解释,对影响今后审判实践的法律问题和司法实务提出了自已的意见.     

论善意取得制度的构成要件

善意取得制度不仅在我国司法实践中已经大量运用,而且随着我国市场经济的发展,也要求相关法律对此有所规定。本文从善意取得的范围等四个方面探讨了善意取得制度的构成要件,并指出必须从法律上严格规定善意取得制度的构成要件。     

Actions by Political Officials Have Weakened the Federal Government Workplace: Downsizing Has Cut Lower Level Workers the Most and Replacing Federal Employees with Private Corporations Costs Much More,Creating the Need for Immediate Reform

Abstract

The authors of this paper are four practitioners each of whom has many years of experience working in the Federal government and also has pursued doctoral studies in public or business administration. Three ideas developed in this paper are that: (1) the Federal civil service has been changed from being a model workplace to a much less desirable one; (2) although downsizing has been touted as an efficiency and economy measure, lower level employees experienced the most cuts and (3) the current practice of replacing Federal employees with private corporations costs much more. Over the past two decades private sector workplaces in the United States, and now the Federal government workplace, have experienced so much change that previous theories, concepts, models, and expectations no longer hold. Just as private industry workplaces have been changed by downsizing, reorganizations, mergers, elimination of middle management, and outsourcing, so, too, has the Federal government workplace been fundamentally altered. Reducing the number of government workers, replacing Federal employees with private firms, increasing the number of officials with political agendas, and using harsh personnel management practices have transfigured the Federal workplace. Examples of factors that have contributed to a changed workplace include: the Civil Service Reform Act which replaced the Civil Service Commission with the Office of Personnel Management; importing private sector approaches into the government, e.g., the Grace Commission; replacing the Civil Service Retirement System with the Federal Employees Retirement System; pressure to downsize and privatize; and many elements of the National Performance Review and Government Performance and Results Act. Now that the metamorphosis away from the traditional Civil Service borne of the Pendleton Act is nearly complete (although the new paradigm is not entirely clear), questions about the effects of a changed government workplace are being raised. Some people believe the metamorphosis is from a caterpillar to a butterfly, while others think the opposite. Whether the changed Federal government is a thing of beauty or a distasteful organism will be determined over time by observations and assessments of the effects of the change. These effects will be both internal to the government workplace, itself, and external to it, involving the products, services, outputs, and outcomes it produces. This paper begins by describing some of the politically mandated changes that have altered the very foundation of the Federal government workplace over the past 20 years and made it a much less desirable place to work. Next, some of the effects of two politically mandated changes are examined: (1) downsizing or reducing the number of Americans who can work for their government and (2) contracting out or replacing government workers with private corporations. Political officials have told the media and the American public that these changes were needed to improve the government's efficiency, effectiveness, and economy. It has been suggested that these initiatives will reduce costs. However, an examination of downsizing and contracting out shows the opposite effect. While overall the Federal government has fewer employees now than in 1961, the statistics indicate that lower level employees have been cut the most:

• The number of secretaries decreased by 39% between 1992 and 1998.

• The blue collar workforce is down 40% since 1982, e.g., Supply Clerical and Technician (?35%), Accounting Technician (?24%), and Electronics Mechanic (?41%).

• Between 1993 and 1998 the number of GS‐1 to GS‐10 employees fell from 767,000 to 594,000.

• In 1983 the number of GS‐1 to GS‐10 workers exceeded GS‐11 to GS‐15 by nearly 300,000, while in 1997 GS‐11 to GS‐15 outnumbered the lower level workers by 44,000.

Although authoritative cost comparison studies are difficult to conduct because top officials have made little provision to collect information on the cost of contracting with private firms or the number of contract employees, available information indicates that it is much more expensive than using government employees. The contracting out we are talking about is not the usual kind—building ships or planes, or acquiring computer systems or special expertise not available in the government. Rather, it is contracting with private firms to do jobs that are currently being performed by Federal employees. Not satisfied with the level at which firms are being substituted for Federal employees, actions by political officials have created an environment which now favors private corporations and where they can be given work at top management's discretion, often regardless of cost. In fact, today most contracting out is done without the use of Circular A‐76 Cost Comparison Studies. There is empirical and logical evidence that shows that replacing government employees with private corporations is more expensive. For example, a study by the Department of the Army documents what people close to contracting have always known—that it is far more expensive to contract with a private firm for work than to have Federal employees do it. Logically, the government incurs additional items of cost when replacing Federal employees with private corporations. First, there is the profit that goes to the firm. Second, there is the firm's overhead which pays for corporate offices, staffs, and CEOs. Third, there are the costs of the contracting and award process and of contract administration and management. Although the worker on a government contract may be paid a little less than a government worker, the cost of the worker is only a third to a half of what the government pays the firm. Thus, replacing government workers with private firms usually costs far more and it is not unusual for it to cost two to three times as much. This paper partly is based on the authors' long experience in the Federal government. It is not based on the organizations in which they are currently employed.     

继续性合同及其类型论

理解继续性合同的概念,应着重把握时间因素在其中的作用,关键之处并不在于给付在时间上的持续性,而在于给付本质上的无限延续性,从而,时间的长短决定总给付范围的多寡,这是继续性合同的基本特色。继续性合同可分为固有的继续性合同、继续性供给合同与继续性交易关系三类。需要辨明,总给付范围自始可被预估的连续供应合同也属于继续性供给合同;电、水、气供应合同及电话合同在给付构成上虽略有不同,仍不失为继续性供给合同;现代企业间的继续性交易关系也是一类继续性合同。     

业主拖欠物业服务费的法律问题研究

目前,物业服务行业的发展存在一种问题,业主由于各种原因对物业服务企业存在不满,进而拖欠物业服务费,而业主认为这是一种维护自己权利的行为。于是就出现了实践中物业服务企业继续降低服务质量、业主继续拖欠物业服务费的恶性循环。因此,了解业主拖欠物业服务费相关法律原理,对于促进物业服务行业的良性发展能起到促进作用。