新时代推进全球治理法治化的中国方案

国际法治是全球治理在国际法规、制度层面的重要方法和路径,推动国际法治建设对完善国际秩序和全球治理体系的意义重大。党的十八大以来,以习近平同志为核心的党中央先后提出了一系列国际法治建设的新理念,致力于为不断解决全球性问题、完善全球治理体系贡献中国智慧和中国方案。在理论层面,中国主张强调以《联合国宪章》、和平共处五项原则等公认的国际法规为准则,倡导创设民主、科学、公正的国际良法,统筹推动国内法治与国际法治、国际硬法与国际软法的共同发展,为实现全球良法善治提供方向指引。在实践层面,中国不断提升推进国际法治建设的能力和水平,不仅在国际立法方面,而且在解决国际争端、国际人权保护和共建“一带一路”等领域都积极贡献自己的力量,推动了国际法治体系的完善和法治合作机制的创新,成为国际法治建设和全球治理变革的积极参与者和推动者。习近平关于国际法治立场观点的提出,构成国际法治建设中国方案的主要内容,其对于中国提升解决国际问题和维护国家利益的能力、促进国际秩序和全球治理体系的民主化发展、推动构建人类命运共同体,具有深远影响。     

刑法现代化理论的续造

根据党的十九届四中全会决议,在国家治理体系和治理能力现代化的背景下,刑法现代化需要继续发展。反观我国刑法学领域,现代化刑法的追求还占据着当代刑法学人的思维,遮蔽了中国刑法现代化之未来图景的真实面貌,妨碍了中国刑法现代化的进一步发展。为此,我们有必要从现代性的一般特征出发,尝试着以现代之后的视角看待刑法现代化发展及其遭遇的“陷阱”。在对现代性中的基础主义、表象主义,以及普遍主义的批判基础上,实现现代刑法经由自由刑法向风险刑法、单一法典化向立法多样化和实践理性向交往理性三个维度的转化,并为中国刑法的现代化事业提供更为充足的理论动力。     

Linking parental incarceration and family dynamics associated with intergenerational transmission: A life‐course perspective*

Children experiencing parental incarceration face numerous additional disadvantages, but researchers have often relied on these other co‐occurring factors primarily as controls. In this article, we focus on the intimate links between crime and incarceration, as well as on the broader family context within which parental incarceration often unfolds. Thus, parents’ drug use and criminal behavior that precedes and may follow incarceration periods may be ongoing stressors that directly affect child well‐being. We also use our analyses to foreground mechanisms associated with social learning theories, including observations and communications that increase the child's risk for criminal involvement and other problem outcomes. These related family experiences often channel the child's own developing network ties (peers, romantic partners) that then serve as proximal influences. We explore these processes by drawing on qualitative and quantitative data from a study of the lives of a sample of respondents followed from adolescence to young adulthood, as well as on records searches of parents’ incarceration histories. Through our analyses, we find evidence that 1) some effects attributed to parental incarceration likely connect to unmeasured features of the broader family context, and b) together parental incarceration and the broader climate often constitute a tightly coupled package of family‐related risks linked to intergenerational continuities in criminal behavior and other forms of social disadvantage.     

Sociocultural Determinants of Policewomen–Taxi Drivers’ Interactions on the Major Highways in Ibadan Metropolis,Nigeria

This study investigated the sociocultural determinants of policewomen–taxi drivers’ interactions on the major highways in Ibadan metropolis. Purposive sampling technique was utilized for the selection of 11 policewomen and 35 taxi drivers. Data were generated through key informant interview and focus group discussion methods. Findings revealed that gender had no impact on the ability of policewomen to enforce traffic law. Policewomen were adjudged to be strict on traffic law enforcement. However, the size of the accolade generated by this feat has been slightly attenuated by the action of officers who habitually demand for bribe from apprehended taxi drivers.     

Peace in the Family is the Basis of Peace in the Country: How Women Contribute to Local Peace in Southern Kyrgyzstan

ABSTRACT

There has been a significant amount of research on peacebuilding in Central Asia in general and in Kyrgyzstan in particular. This has helped us both understand socio-political processes in the republic itself, and the shortcomings of the liberal peacebuilding framework in general. However, this work has, with rare exceptions, focused largely on male peacebuilding at either the state or international scale. Correcting that trend, this article illuminates the role of women peacebuilders in the post-conflict city of Osh. Based on ethnographic research conducted in 2016, it argues that women have a hitherto overlooked but nonetheless important ‘invisible’ role in peacebuilding.     

Cohabitation,female sacrifice,and judge-made law

This paper shares results of a study of judgments applying the common law as adapted to the cohabitation context. Specifically, the Supreme Court of Canada has held that couples who formed a ‘joint family venture’ may need to share the wealth gained during cohabitation. The study compares the couples leading to positive and negative findings of a joint family venture. Positive findings correlate with traditional markers of family and economic integration, such as joint bank accounts and the presence of children. Despite the discourse of family diversity, gendered patterns run across all the couples, with women assuming primary care of children, shouldering domestic labour, and making career sacrifices for the family. In a sign of the limits of judge-made reforms, the doctrine may be harder for some claimants to access than for others, in ways not necessarily tracking commitment and economic integration.     

Globalization and regulatory change: The interplay of laws and technologies in E-commerce in Southeast Asia

Electronic commerce has brought about business and technological changes globally, and these global changes have given rise to major legal reforms across nations. In the fast-changing global digital economy, states need strategies to maintain competitiveness of their markets while simultaneously ensuring the secure and effective use of technologies involved in conducting electronic transactions. This paper examines how the use and recognition of electronic signatures are regulated in Southeast Asia – the region that has shown the most significant growth in global e-commerce in past few years. Based on a comparative analysis of the laws of four representative ASEAN member states – namely Singapore, Thailand, Malaysia, and Vietnam, this paper argues that there is a regional trend towards adopting more liberal and technology-neutral standards for electronic signatures. Electronic signature regulation in Southeast Asia is now built upon limited technological neutrality (or the so-called “two-tiered” approach) as a shared regulatory understanding, but this approach is operationalized differently in each state due to distinctive national contexts. Within the common legal framework, each state has developed its own system of control and management with respect to higher-level signatures (using advanced technologies). The principle of technological neutrality, a concept originally developed for the regulation of technologies in response to the liberalization of telecommunications market, has been the central theme of discussions on the e-transactions policy-making scene. As the author shows, in the process through which states localize the global standards of technological neutrality, ASEAN as a vehicle of regulatory change has played an essential role in translating this principle to the national context.     

我国民法典视野下的数字内容瑕疵担保责任——基于欧盟背景下德国法的比较法考察

数字内容交易目前在全球数字化背景下蓬勃发展,其中,有关数字内容的瑕疵担保责任问题备受关注;立法上欧盟在新出台的《有关提供数字内容和服务的合同交易指令》中有三个条款对此作了专门规定,同时,德国也将此规定完全予以转化适用。基于现有欧盟背景下德国法有关数字内容瑕疵担保责任的比较分析,可知其不但能准确认定数字内容交易中的瑕疵形态与有效提供救济,而且有助于消费者保护。根据我国现有一般物之瑕疵担保规定并结合我国民法典编纂以及域外法经验,在解释论上,通过相关类案的比较分析,我国就此有借鉴适用的必要性;在立法论上,今后在我国《民法典》的解释与适用过程中,可先在《民法典(合同编)》司法解释中原则性地规定有关数字内容瑕疵担保责任,再另行制定具有针对性的单行法,从而有助于数字时代的我国消费者保护与数字经济发展。     

U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?

ABSTRACT

Family court and abuse professionals have long been polarized over the use of parental alienation claims to discredit a mother alleging that the father has been abusive or is unsafe for the children. This paper reports the findings from an empirical study of ten years of U.S. cases involving abuse and alienation claims. The findings confirm that mothers’ claims of abuse, especially child physical or sexual abuse, increase their risk of losing custody, and that fathers’ cross-claims of alienation virtually double that risk. Alienation’s impact is gender-specific; fathers alleging mothers are abusive are not similarly undermined when mothers cross-claim alienation. In non-abuse cases, however, the data suggest that alienation has a more gender-neutral impact. These nuanced findings may help abuse and alienation professionals find some common ground.     

认罪认罚从宽制度的体系性反思与建构

虽然认罪认罚从宽制度是在我国《刑事诉讼法》中得以正式确立的,但《刑事诉讼法》中涉及此制度的具体规定又都是操作层面的。据此,认罪认罚从宽制度的合理性并不能得以阐释。而依据我国《刑法》,对认罪认罚从宽制度的合理性则可以从形式逻辑、实质逻辑以及价值理念三个维度予以充分证成。由此可知,认罪认罚从宽制度本质上系《刑法》中的一种刑罚裁量制度,认罪认罚本质上是法定的从宽量刑情节。在定罪层面,犯罪嫌疑人、被告人只需自愿承认不法事实系其所为,即构成"认罪",而无需准确评价自身行为的法律性质并准确识别具体罪名;在量刑层面,"认罚"考察的重点是犯罪嫌疑人、被告人的悔罪态度和悔罪表现。应当通过刑法立法的方式将认罪认罚从宽制度与自首制度、坦白制度部分重叠地整合在一起,以避免"概念混同""重复评价"的错误倾向。