我国房产业的重大改革和房产税制的完善

本文主要内容分三部分。一是发展我国房地产业是我们党和国家多年来既定的重要方针。从党的十三大提出积极推进住房商品化,到党的十七大提出＂住有所居＂的民生社会指标,在这23年间,党和政府对解决居民住房和发展房地产业制定了一些重大的方针政策。笔者阐述了我国房地产业改革和发展的基本要求和思路,并指出在社会主义初级阶段房地产业的双重性和工作上的两手抓。二是如何全面运用税收制度促进房地产业健康发展。笔者着力分析了房地产业开发过程中各个环节的税收制度和其功能作用。三是提出了对改革完善我国房地产税制度的设想和法律建议。     

The Defeat of Shabina Begum in the House of Lords

The Court of Appeal last year delivered a well-publicised judgment declaring that now 17-year-old Shabina Begum had been unlawfully excluded from Denbigh High School when she insisted on wearing the Islamic ‘jilbab’ ([2005] EWCA Civ. 199; [2005] 1 W.L.R. 3372; [2005] 2 All E.R. 396 (Judgment of 2 March 2005); The Times, 4 March 2005, at p. 85. See also J. Gau, “Muslim Dress – School Exclusion – Human Rights”, Ecclesiastical Law Journal 8/37 (2005), pp. 239–240.). The dispute received huge national and international press coverage, but on Wednesday 22nd March 2006, in a remarkable u-turn, the House of Lords overturned the Court of Appeal’s decision on all counts (R (On the Application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 (Judgment of 22 March 2006); The Guardian, 23 March 2006, at p. 6; and The Independent, 23 March 2006, at p. 4. Members of the Appellate Committee were Lord Bingham of Cornhill; Lord Nicholls of Birkenhead; Lord Hoffmann; Lord Scott of Foscote and Baroness Hale of Richmond.). The reversal meant Shabina’s Article 9 right to manifest a belief had not been violated by the school. This analysis will briefly examine the reasoning behind their Lordship’s judgment and will provide a short commentary on the likely effect the decision will have on religious groups wishing to wear religious symbols in UK schools. LLB (Hons), LLM, Cert. Ed. Mohammad Idriss is Senior Lecturer in Public Law at Coventry University, United Kingdom and is a PhD Candidate at the University of Birmingham; M.Idriss@Coventry.ac.uk     

The Crime of Aggression before the House of Lords: Chronicle of a Death Foretold

In the days preceding the invasion of Iraq by the Coalitionforces, groups of individuals committed acts of civil disobediencein British military bases to hinder what they thought were unlawfulpreparations for an aggressive war. In R v. Jones et al., theHouse of Lords examined the question of whether individualscan rely upon the alleged prevention of crimes against peaceto justify otherwise unlawful actions under English law. TheLords ruled that the crime of aggression is a crime under customaryinternational law, yet not under English law. This followedfrom the principle that customary crimes cannot be incorporatedinto the English legal system without statutory enactment. Asa result, the appellants could not invoke the ‘Nurembergdefence’ to elude responsibility incurred under domesticlegislation.     

The House of Lords and the Northern Ireland Conflict – A Sequel

This article begins by commenting on an analysis undertaken by the late Stephen Livingstone of 13 cases relating to the troubles in Northern Ireland decided by the House of Lords between 1969 and 1993. It then attempts to repeat the analysis in respect of 12 such cases decided between 1994 and 2005. Areas of law arising for consideration during both periods include the rules on the use of lethal force, aspects of substantive criminal law and criminal procedure and the rights of persons arrested or imprisoned. The more recent cases also raise fundamental questions concerning the status and meaning of the Good Friday Agreement of 1998. The article concludes that there has been a sea-change in the way the Law Lords have handled the Northern Irish cases. From treating them in a way which might have suggested a built-in bias in favour of police, army and government perspectives, they have moved to analysing the competing arguments in the light of more modern approaches to statutory interpretation, the rule of law and human rights.     

谈谈法学论文写作

我本人从事法学的学习和研究已半个世纪了。平心而论,我一直是努力读书、爬格子的,也进行过若干法律实践,先先后后、大大小小地发表和出版一批论文与著作。但大略回忆一下,总的情况是:水平高的不多,水平低的不少。正由于自身不是合格的、成功的法学家,在我收到撰写这篇文章的邀请后,顿时感到诚惶诚恐,愧不敢当。然而,盛情难却,不宜推辞,只能“知其不可为而为之”,借以复命了。     

In The Shadow Of Terror: The Illusive First Amendment Rights Of Aliens

Despite a sustained period of peace and prosperity in the United States, Congress has enacted considerable anti-terrorism legislation, which-like past laws based in fear of foreign threats to the national security-erodes freedom of expression. This article provides a political, historical and legal background before examining this legislation and its application in cases affecting the rights of First Amendment claimants. The article finds that most courts, including the United States Supreme Court, have tended to use a formulaic strict scrutiny analysis of the legislation that endorses the government's position that, for example, the Antiterrorism and Effective Death Penalty Act of 1996, is a content-neutral response to the important interest in reducing the threat of terrorism. The article argues that the courts instead should adopt an analysis based on the real intent and discriminatory effects of the law to find it is impermissibly content based, overbroad and vague.     

AFTER THE ANCIEN REGIME: THE WRITING OF JUDGMENTS IN THE HOUSE OF LORDS 1979/1980

“Ten censure wrong for one who writes amiss; A fool might once himself alone expose, Now one in verse makes many more in prose.” (Alexander Pope, An Essay on Criticism.)     

The ECHR in Iraq: The Judgment of the House of Lords in R (Al-Skeini) v. Secretary of State for Defence

The House of Lords has held that the ECHR does not apply tothe acts of the UK armed forces in Iraq, except in their militaryprisons. More generally, the House has endorsed the positionthat the ECHR cannot apply to areas controlled by a state partyoutside the territories of the Council of Europe. The authordisputes the treatment of the European cases that led the Houseto this position, and criticizes the suggestions that the introductionof European human rights law was culturally inappropriate andeven unlawful under the regime of belligerent occupation.     

Judicial Behavior After a Change of Regime: The Effects of Judge and Defendant Characteristics

This article examines the determinants of judicial behavior in the context of transition. It tests two assumptions: first, that the judges with experience from the pretransition criminal justice system behave differently from the judges with no such experience; second, that minorities are discriminated against due to their dominant position in society before the transition and stereotypical attitudes after the transition. Using evidence from trial-level courts in Estonia, we find no statistically significant effects between case outcomes, the experience of the judge, and the ethnicity of the suspect.     

“世俗化”与法治的概念：法国《禁止在公共场所穿遮面长袍》新法案的讨论

法国参议院于2010年9月14日通过了《禁止在公共场所穿遮面长袍》法案,禁止个人在公共场所穿戴burqa（一种遮面罩袍）、niqab（面纱）或者其它遮面长袍。该法案出台主要基于穿遮面长袍掩盖了人的身份,从而不利于政府应对恐怖分子袭击。此外,在公共场所穿遮面长袍与法国主流人权价值观念冲突,没有考虑到妇女的权利。但是也有学者认为该法案完全没有必要。该法案的出台反映了法国社会世俗化的传统,引起了关于个人自由和法治原则的新的且重要的辩论。特别是在法国行政法院反对通过该新法案后,辩论变得更为激烈。最终,辩论以法国宪法委员会于2010年10月7日裁定该法案合宪而结束。     

Deportation of Suspected Terrorists with ‘Real Risk’ of Torture: The House of Lords Decision in Abu Qatada1

This note discusses the House of Lords' decision in RB (Algeria) (FC) and another v Secretary of State for the Home Department; OO (Jordan) v Secretary of State for the Home Department that the real risk of third‐party foreign torture evidence does not meet the required standard of unfairness so as to prevent the deportation of suspected terrorists under Article 6 ECHR. It considers three key issues that were raised by this case: Parliament has deliberately restricted the right of appeal from SIAC to the Court of Appeal on questions of fact; the procedure of using closed material by SIAC in the assessment of safety on return is unequivocally permitted by statute; and the conclusions by SIAC that diplomatic assurances contained in Memoranda of Understanding do not give rise to points of law and, therefore, are beyond review by the appellate courts.     

论轻罪刑事政策视野下的我国刑罚结构之完善

我国的刑罚结构属于重刑结构而且刑罚方法单调,使我国《刑法》不能适应惩治不同类型犯罪的需要,尤其不适应惩治轻罪的需要,因而应当从构建和完善我国的保安处分制度、增设新的资格刑刑种、完善管制刑、完善拘役刑的宣判及执行制度、提升罚金刑在刑罚结构中的地位等方面进行完善。