推进宪政建设实施依法治国——首都法学界学习宪法座谈会综述

为深入学习第十届全国人大二次会议通过的《中华人民共和国宪法修正案》,广泛深入地开展宪法学习宣传活动,日前,司法部、中国法学会联合举办了首都法学界学习宪法座谈会,邀请首都法学界部分专家学者畅谈学习宪法的体会。 中国社会科学院法学所研究员、中国法学会学术委员会主任、民经法学研究会会长王家福,中国政法大学教授、中国法学会婚姻法学研究会会长巫昌祯,中国政法大学校长、教授、中国法学会法理学研究会副会长徐显明,北京大学副校长、教授、中国法学会经济法学研究会会长吴志攀,中国社会科学院人权研究中心主任、中国法学会信息法学研究会会长刘海年,中国社会科学院法学所研究员、中国法     

Meeting the enemy: American exceptionalism and international law

Howard Zinn has been classified in a number of ways for his many social contributions. However, despite the breadth of his work, he has never been considered a criminologist. It is likely that this is the result of the inaccurate perceptions many Americans have about crime being a predominantly street‐level social problem. Zinn maintains that the social harms caused by those in positions of political and economic power are in fact crimes against humanity that are far more destructive and violent than the actions our legal system has historically deemed criminal. He also points to the ways our criminal justice system is unjust and ineffective, and has demonstrated how social inequality ensures that the disadvantaged will be further subordinated by the criminal justice system. Zinn’s critical contributions about the most significant sources of social harm, the unjust nature of the American justice system, and the influence of social inequality offer an unorthodox criminological perspective that deserves special consideration. His unconventional criminology calls for increasing social justice by means of political dissent, social resistance, and civil disobedience.     

The freedom of navigation in international law and the utility of international society discourse

In the international law of the sea, the emergence of new actors and systems influencing relations between states has lead to evolving rules and calls for the redefinition of the traditional issues such the allocation of jurisdiction and rights to states in its maritime zones. In the maritime domain, this is seen thrice in the evolution of the various maritime zones in the United Nations Conferences for the Law of the Sea （UNCLOS I, II and III）. In the maritime domain, there are certain actions that are not dependent on any state＇s consent. One of such is the rule of freedom of navigation. This paper, argues for the possibilities of concomitance between international law and studies in international society based on the growing recognition of the importance of examining the sociological and historical element in rule development. This paper focuses on a rule in the international law of the sea with the aim of determining the extent to which norms have caused changes in rule development, if any. This method, known as the English School method of international relations, acknowledges the benefits of international law positivism in highlighting generality with the benefits of a normative discourse in highlighting alternatives and the utility of compliance. So, although the maritime domain is rooted in a state system, one where the parts interact as a whole, a branching-out analysis towards the normative discourse in the development of this rule will facilitate more understanding, as the case-specificity of most issues in the maritime domain cannot be overemphasised.     

Life imprisonment: recent issues in national and international law

This article notes that, because understandings of what life imprisonment means are often ambiguous, the life sentence is sometimes perceived to be relatively uncontroversial. Life imprisonment without the prospect of parole for children under the age of 18 years is the most extreme form of this sentence that can be imposed. However, in the United States of America even such sentences have only recently become the subject of public debate. In contrast, in a small but growing number of jurisdictions all life sentences are regarded as constitutionally suspect and contrary to human rights, whilst in the majority of jurisdictions the imposition of life imprisonment is strictly limited. The article traces recent developments in the imposition and implementation of life imprisonment that have evoked some controversy. It pays particular attention to attempts that have been made in practice to ensure that life imprisonment produces punishment that is proportionate to the crime. It points out, however, that a renewed focus on combating dangerous offenders through indeterminate preventive sentences has blunted even this modest safeguard. It warns that this tendency increases the risk of life imprisonment being an unfairly harsh penalty.     

Party autonomy in the choice of law under Indian and Australian private international law: some reciprocal lessons

The outbreak of the COVID-19 pandemic will affect the performance of several contracts and is likely to increase the number of disputes before the courts. In agreements with a foreign element, the adjudication of the rights and liabilities will depend on the applicable law. Most legal systems have embraced the doctrine of party autonomy and, accordingly, permit the parties to expressly select the law to govern the disputes that arise from international contracts. India and Australia are no exception to this trend. In general, the courts in both the commonwealth countries have reported having been influenced by judicial practices of one another to develop their own law. Despite their common law roots, the interpretations attached to the doctrine of party autonomy in the choice of law have varied in some respects in these countries. The paper analyses the judicial trends on the subject and demonstrates the role that party autonomy will play in resolving international disputes where the performance has been affected by the eventualities such as the COVID-19 pandemic in India and Australia. The paper delves into the manner in which the courts in India and Australia may offer reciprocal lessons to each another to revolutionise to interpret the doctrine of party autonomy in the choice of law.     

论经济法视野下的市场中介组织

市场中介组织作为经济法学的特殊群体,具有服务、沟通、协调、公证、监督等职能,但目前我国的这一组织还存在着一些问题,本文力图从经济法学的视野对其加以研究,以期引起共鸣,完善我国的经济法基本理论。文章拟解决的主要问题有:⑴市场中介组织发展存在的问题的主要症结解析;⑵针对市场中介组织存在的问题,从经济法角度提出调整的对策。     

Oversight of HMRC soft law: lessons from the Ombudsman

An investigation of the role which the Ombudsman plays in tax law, on which comparatively little has been written, reveals that the body makes an important and distinct contribution. There is now almost universal acceptance that tax law is overly complex and indeterminate. If the primary law offers few answers to the taxpayer, then HMRC’s role as administrator of the system becomes apparent. Soft law elaborating upon how HMRC will apply the primary law to a given class of taxpayers is rendered indispensable. In practice however, HMRC soft law has often been found to be deficient. Analysis of the current oversight arrangements for HMRC soft law immediately reveals the genesis of these issues. Select committees exercise Parliamentary control, whilst an independent body performs external audits. These entities however only incommensurately examine the soft law. Into this void steps the Parliamentary and Health Service Ombudsman, a body which has ‘carved for itself a distinctive niche’ in the public law framework. The paper accordingly seeks to elaborate upon the important role that the Ombudsman plays in scrutinising HMRC soft law and the lessons which can be derived from this analysis.