论民事诉讼程序中的公共利益

在民事诉讼程序中,只要公共利益的主张会引起对私人利益的限制与克减,就必须存在一定的程序系统来保证这种限制与克减的正当性与合法性,因此,公共利益的正当性只有通过对程序的约束方能实现,非优先性和法定性就成为程序对公共利益的自然要求.法院作为民事诉讼程序中的公益代表,同样也具有自利性,但其自利性在程序中应当处于辅助地位,为公益性服务.     

实质诉讼法的“脱私入公”过程及其复兴意义 ——以温特沙伊德《当代法意识下的罗马私法之诉》的解读为主线

民事诉讼法是实质诉讼规范和诉讼程序规范之集合,但通说却将其同义于诉讼程序法而尘封实质诉讼法。从法律发达史上考察,实质诉讼法曾依附于实体私法体系,且与诉讼程序法长期处于分离状态,在脱离私法体系之后于民事诉讼法中找到了安身之处,并且在公法诉权说的推动下皈依了公法。在实质诉讼法脱私法体系而入诉讼法体系的发展过程中,温特沙伊德的《诉论》发挥了主要原动力作用,因而被奉为促成民事诉讼法走向独立化的“门罗宣言”。本文拟通过解读《诉论》,阐述实质诉讼法脱离私法体系而入公法的民事诉讼法之过程,恢复实质诉讼法的本来面目,以为我们克服民事诉讼法同于纯程序法之观念提供理论上的支撑。     

人民调解制度的创新与发展

进入21世纪以后,我国人民调解无论在立法上,还是在实务中,都出现了比较大的创新,人民调解组织不再局限于村委会和居委会的人民调解委员会;人民调解员不再局限于村民委员会成员、居民委员会成员及群众选举产生的公民;人民调解协议具有合同效力;人民调解与诉讼（司法）实现了有效衔接与对接。在调解全球化的趋势下,要保持我国人民调解的活力,并发挥更大的作用,有必要进一步明确人民调解在我国纠纷解决体系中的地位,更好地处理好人民调解与诉讼的关系,深刻把握人民调解的正当性基础,严格规范人民调解员的行为。     

程序失灵的揭秘与拯救——以“六连号”事件为例

当我们没有重视正当程序时,我们呼唤正当程序,把它视为是拯救行政法制时弊的灵丹妙药。但是,当我们引入正当程序时,却发现它在实践中屡屡失灵而形同虚设。人们不禁对程序开始失望。究其原因,在于某些行政机关对程序的垄断。必须打破这种程序垄断,方能实现程序的结果公正。这需要对我国现有程序进行深入的机制再造。首先,为了让信息公开落到实处,必须细化相关规定,分类分级立法设定公开细节,防止公开漏洞;扩大利害相关人的查询能力,包括帮助人数众多的利害相关人建立临时组织,以期实现信息公开的预期效果。其次,赋予程序参与相对人独立决定权,确保程序参与相对人独立完成一个或者多个程序环节,从而,摆脱程序主持人对程序的垄断。第三,当程序参与相对人人数众多时,在程序最后阶段应增加质疑和说明理由程序,一方面,可以在结果生效之前形成监督焦点,有利于发现错误,另一方面,避免了立即生效后,既有的错误被揭示所带来的政府公信力的削弱。     

Going beyond Ascribed Identities: The Importance of Procedural Justice in Airport Security Screening in Israel

Today, passengers at every major Western airport are subjected to heightened levels of security screening that not only are inconvenient, but also raise important questions about the treatment of members of specific groups that are seen as presenting special security risks. Our study examines the importance of ethnic identity in explaining perceptions of legitimacy in airport screening among a random sample of Jewish and Arab passengers in Israel. The main hypothesis of our study is that ethnicity will play a major role in predicting passengers’ attitudes toward the airport security process. In fact, our survey shows that Israeli Arab passengers are, on average, significantly more negative regarding the legitimacy of security checks than Israeli Jewish passengers are. However, using a multivariate model, we find that ethnicity (Arab versus Jew) disappears as a significant predictor of legitimacy when we included factors of procedural justice and controlled for specific characteristics of the security process. The results of our research indicate that differences in legitimacy perceptions are by and large the result of the processes used in airport screening and not a direct result of ethnic identity. In concluding, we argue that profiling strategies aimed at preventing terrorism, which often include embarrassing public procedures, may actually jeopardize passengers’ trust in airport security. Such security is dependent on the cooperation of citizens, and heightened security procedures focused on particular groups may compromise legitimacy evaluations and thus the cooperation of the public.     

公共利益实现困境中的程序纠偏——以土地征收拆迁为例

公共利益在实现过程中面临诸多困境。尤其是在我国城市化进程中，公共利益的异化、虚化和泛化现象严重，个人利益和政府利益也经常假借、冒用公共利益。程序规范是突破公共利益困境的重要途径，也是公共利益实现的应有之义。我国目前的制度安排和法律实践中忽视了程序规则。公共利益的程序规则包括公开透明的公共利益调查程序、民主科学的公共利益决定程序、公正公平的公共利益审查程序。程序规则并非绝对完美无瑕，不能将公共利益的程序正义绝对化。     

Legitimacy invariance and campus crime: the impact of campus police legitimacy in different reporting contexts

ABSTRACT

This paper examines whether campus police legitimacy relevance varies across different crime contexts. 519 respondents from 31 undergraduate sections at a public university rated campus police legitimacy as well as their willingness to report a campus crime to the public safety department. Students were assigned to different crime vignettes, involving experimental manipulation of crime type: petty theft, indecent exposure, aggravated assault, and gun possession on a college campus. Results indicate general support for the procedural justice model, specifically the invariance of the influence of legitimacy on reporting. This paper argues for increased specificity in measurement of cooperation beyond general willingness to assist, or a single crime context.     

Funding the Cause: How Public Interest Law Organizations Fund Their Activities and Why It Matters for Social Change

Most of the work of public interest law organizations does not make money. How do these organizations survive, given the economic realities of law practice? Drawing on survey data from a national random sample of public interest law firms, we investigate how funding models vary across public interest organizations and how funding sources affect these organizations’ activities. We find funding structures have, over time, shifted away from foundation support toward government grants. Compared to other organizations, however, conservative organizations draw significantly less of their budget from federal and state grants, and significantly more of their budget from private contributions. Conservative organizations are significantly less likely than other organizations to rely on funding that prohibits engaging in class actions, receiving attorney's fees, or lobbying. Respondents reported that funding restrictions hamper their ability to negotiate favorable settlements, bring about systemic change, and represent vulnerable client communities. We close with a comparative institutional analysis of different funding models.     

Is the Effect of Procedural Justice on Police Legitimacy Invariant? Testing the Generality of Procedural Justice and Competing Antecedents of Legitimacy

Objectives

This study tests the generality of Tyler’s process-based model of policing by examining whether the effect of procedural justice and competing variables (i.e., distributive justice and police effectiveness) on police legitimacy evaluations operate in the same manner across individual and situational differences.

Methods

Data from a random sample of mail survey respondents are used to test the “invariance thesis” (N = 1681). Multiplicative interaction effects between the key antecedents of legitimacy (measured separately for obligation to obey and trust in the police) and various demographic categories, prior experiences, and perceived neighborhood conditions are estimated in a series of multivariate regression equations.

Results

The effect of procedural justice on police legitimacy is largely invariant. However, regression and marginal results show that procedural justice has a larger effect on trust in law enforcement among people with prior victimization experience compared to their counterparts. Additionally, the distributive justice effect on trust in the police is more pronounced for people who have greater fear of crime and perceive higher levels of disorder in their neighborhood.

Conclusion

The results suggest that Tyler’s process-based model is a “general” theory of individual police legitimacy evaluations. The police can enhance their legitimacy by ensuring procedural fairness during citizen interactions. The role of procedural justice also appears to be particularly important when the police interact with crime victims.

     

公益行政诉讼模式的理论分析与制度化建议

公益行政诉讼模式可分为公诉模式与私诉模式.公诉模式包括检察机关作为起诉人的典型公诉模式和特定公益性社会组织作为起诉人的未来公诉模式.检察机关的典型公诉模式为现阶段实际可行形态.在检察行政公益诉讼中,检察机关处于“行政公诉人”地位,依法行使有关监督和诉讼职权.私诉模式包括公民提起的典型私诉模式和经依法登记的社会组织提起的...     

行政诉讼目的论

目的论是人性论。它是行政诉讼法学研究的前提性理论,对它的研究不仅具有理论价值,且更具实践意义。由于行政诉讼具有多维性,它既是权利与权力的共同规则,又是从“实然”中寻找“应然”的科学,既是权利对权力说“不”的游戏,又是为权利而奋斗的机制。因此,行政诉讼之目的也就具有多元性——可分解为程序正义、利益平衡、促进合作以及道德成本最低化等若干层面。     

The Rise of Committees

Committees are of increasing importance in the process of EC policy-making, particularly in regulatory fields which touch upon politically sensitive issues. This article discusses the problems which have arisen due to the unforeseen emergence of committees within the institutional framework of the Community. It examines the main institutional conflicts in relation to committees and argues that parliamentary disdain for Comitology notwithstanding, the use of committees in the area of social regulation may be explained through a 'Member State-oriented' understanding of the institutional balance of powers. Committees may thus not only contribute to more effective decision-making, but may also secure a degree of subsidiarity. The increasing reliance on committees, however, might nonetheless be argued to detract from the general legitimacy of Community decision-making, especially since committees remain creatures of pragmatism. This article accordingly argues that the lack of transparency within committees, and the absence of general procedural rules upon the activities and composition of committees, should now be compensated for through the evolution of formal and generalisable procedural rules.     

The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing

This study explores two issues about police legitimacy. The first issue is the relative importance of police legitimacy in shaping public support of the police and policing activities, compared to the importance of instrumental judgments about (1) the risk that people will be caught and sanctioned for wrongdoing, (2) the performance of the police in fighting crime, and/or (3) the fairness of the distribution of police services. Three aspects of public support for the police are examined: public compliance with the law, public cooperation with the police, and public willingness to support policies that empower the police. The second issue is which judgments about police activity determine people's views about the legitimacy of the police. This study compares the influence of people's judgments about the procedural justice of the manner in which the police exercise their authority to the influence of three instrumental judgments: risk, performance, and distributive fairness. Findings of two surveys of New Yorkers show that, first, legitimacy has a strong influence on the public's reactions to the police, and second, the key antecedent of legitimacy is the fairness of the procedures used by the police. This model applies to both white and minority group residents.     

Public Perceptions of the Legitimacy of the Law and Legal Authorities: Evidence from the Caribbean

Research on procedural justice and legitimacy has expanded greatly across the social sciences in recent years. The process‐based model of regulation, which links people's assessments of procedural justice and legitimacy to their compliance with the law and legal authorities, has become particularly influential in criminology and sociolegal studies. A review of the previous research on perceived legitimacy highlights two important features. First, legitimacy has been conceptualized and measured in many different ways. Second, most of the research on legitimacy has focused on only a handful of developed nations. Using survey data from Trinidad and Tobago, this article examines the conceptualization and measurement of the perceived legitimacy of the law and legal authorities. The findings indicate that some of the prominent conceptual and measurement models used in previous research are not empirically valid in the Trinidadian context. The implications of the results for conceptualization, theory, and future research are discussed.     

Prison Legitimacy and Procedural Fairness: A Multilevel Examination of Prisoners in England and Wales

The procedural justice model has been widely used as an explanation for understanding legitimacy and compliance with the law, particularly within the context of policing. Central to this model is the importance of procedural fairness—in which the treatment of citizens and offenders by criminal justice agents can play a key role in building legitimacy and influencing compliance with legal rules and values. This paper examines the relationship between procedural fairness and legitimacy within the context of corrections. Drawing on data from a longitudinal survey of more than 3,000 prisoners across England and Wales, we identify an important link between procedural fairness and prisoner perceptions of legitimacy. We further examine variations in legitimacy in terms of individual prisoner characteristics, conditions within prison, as well as differences between prisons.     

In their own eyes: an empirical examination of police self-legitimacy

In their paper Beyond Procedural Justice, Bottoms and Tankebe specified two interrelated dimensions of legitimacy: audience legitimacy and self-legitimacy. Criminologists have given considerable attention to audience legitimacy, but police officers’ belief in their own legitimacy remains understudied. This paper extends Bottoms and Tankebe’s theory and reports findings on some of its key propositions, using survey data from a UK police force. Three key findings emerge. First, contrary to previous studies, feelings of recognition by supervisors and clientele did not predict self-legitimacy; self-legitimacy was found to depend on feelings of peer recognition and acceptance. Second, self-legitimacy predicted officers’ commitment to external procedural justice but not their moral orientations towards crime victims. Finally, perceived police effectiveness but not supervisor recognition – that is, internal procedural justice – was the key predictor both of external procedural justice and of normative orientations towards crime victims. The implications of these findings are discussed.     

行政公益诉讼制度优化的三个转向

我国行政公益诉讼司法实践经历了地方探索、改革试点、全面法治三个阶段,法律体系初步建立,但在受案范围、起诉主体、诉前程序、举证责任等方面仍存在诸多缺漏.优化我国行政公益诉讼制度,应实现三个转向:立法模式实现从包容论向独立论的转变,诉讼类型实现从救济型诉讼向预防型诉讼的转变,规则构建实现从粗陋向细化的转变.通过制定《公益诉...     

Faith in the Court: Religious Out‐Groups and the Perceived Legitimacy of Judicial Decisions

The question of whether judges’ personal characteristics and values bias their decision making has long been debated, yet far less attention has been given to how personal characteristics affect public perceptions of bias in their decision making. Even genuinely objective judges may be perceived as procedurally biased by the public. We hypothesize that membership in a religious out‐group will elicit stronger public perceptions of biased decision making. Using a survey experiment that varies a judge's religious orientation and ruling in a hypothetical Establishment Clause case, we find strong evidence that judges’ religious characteristics affect the perceived legitimacy of their decisions. Identifying a judge as an atheist (a religious out‐group) decreases trust in the court, while identifying the judge as a committed Christian has no bearing on legitimacy. These results are even stronger among respondents who report attending church more often. Thus, we argue that perceptions of bias are conditioned on judges’ in‐group/out‐group status.     

Perceived police legitimacy: investigating its association with college-based informal social controls

Research has found that when private citizens view law enforcement as legitimate authority figures, they are more likely to obey laws and voluntarily comply with police demands. Although procedural justice has shown to be an important predictor of perceived police legitimacy, a recent line of studies has found other significant correlates of this outcome, including media exposure, ethnic identity and strain. To date, however, few studies have explored the role collegiate-based informal social controls play in predicting law enforcement legitimacy evaluations. Using questionnaire data from a convenience sample of college students, linear regression equations were estimated to explore whether Hirschi's four social bond measures predict the obligation to obey and trust in police constructs of police legitimacy. Across both models and even after controlling for procedural justice, respondent beliefs were positively correlated with these measures. Theoretical and policy implications are discussed.     

论审判行为的程序性和科学化

法律程序除应当具有＂正当性＂之外,还必须具有＂程序性＂。＂正当性＂是法律程序的实体价值所在;＂程序性＂是法律程序的程序价值的存在基础。法律程序在正当性意义上必须满足最低正义的标准;而法律程序在＂程序性＂意义上则必须满足适度的要求。那种将程序等同于＂步骤、次序、过程、方式＂,或者等同于＂相互关系＂的观点是缺乏对程序深入考察和混淆了程序和程序活动的结果。审判行为在我国三大诉讼中存在程序性的不同表现,通过对三大诉讼法法律规则总量中义务性词汇和权利性词汇的统计分析,认为比较而言,法院在我国行政诉讼和刑事诉讼中存在着程序性不足等弊端,建议修订和完善。