法治国家、法治政府与法治社会一体建设的途径

法治国家、法治政府与法治社会一体建设的重要途径就是必须全面推进科学立法、严格执法、公正司法、全民守法.     

Presupposition under cross-examination

Conclusion Facts do not carry their own guarantee of acceptability or criterion of truth around with them and they are relevant to judicial proceedings only as extrajudicial antecedents of an overall narrative version and explanation of events. Apart from the story being told, there are two main factors in the verification of the story: the demeanour of individual witnesses, and the plausibility or consistency of the whole narrative as presented to the Court. Lawyers speak of the quality of evidence: evidence may be of good or bad quality in the sense of standing up to scrutiny and being convincing, or otherwise.Presupposition is one form of indirectness, a method of verifying facts and credibility by making it a little easier for witnesses to give one answer rather than another so that, if they then reject the easier and choose the more difficult, some additional weight may be attached to the answer chosen. It thus elicits a better quality evidence, in the sense of being more likely to convince, more plausible, more persuasive or more coherent. In allowing counsel to present his story, while formally asking questions and thereby respecting the rules of evidence which require witness participation in the story-telling, it seems to test new information somewhat more efficiently than old, by relying more directly on witnesses' perception of what is actually being asked so as to accept or reject it. It is also one method by which evidence may be checked against a witness's earlier testimony or that of another witness in a manner that does not alert him to the immediate or entire purpose of the questioning, thus adding some extra credibility to his evidence if he seems to be in full control of a coherent and consistent (part of the) story.Presupposition, then, has three basic uses in Courtroom questioning: it can help to tell the story, it can introduce new items of information and it can help to test witness credibility. In each case it makes a legitimate, effective and perfectably respectable contribution to the judicial process.     

中国法中的代位求偿权

本文论述了中国法中代位求偿权的含义及范围 ,保险人的直接诉权 ,被保险人保全代位求偿权的义务 ;指出中国海上保险中的代位求偿权制度存在许多问题 ;建议立法、司法机关尽快采取措施予以解决。     

不可抗力与合同中的民事责任承担——兼与罗万里先生商榷

通过对不可抗力下不同合同履行情况进行个别分析 ,认为不可抗力下并非可以“一刀切”地免除所生的所有民事责任 ,可免除的责任仅限于违约金责任和违约损害赔偿责任 ;进一步分析不可抗力规则下双方利益状况 ,由此认为不可抗力免责规则是合乎公平之原则 ,反之 ,若采按比例分配风险规则将导致不公。     

高科技语境下的电子信息犯罪

电子信息犯罪是现代高科技发展的衍生物。不法分子运用窃听、窃录、窃照、发送不良手机短信、制造计算机病毒、伪造信用卡和破坏互联网传输功能等手段，严重危害国家信息安全，实施商业欺诈，侵犯社会组织和公民的隐私权，对经济发展、社会和谐造成极大威胁。面对这一新的挑战，我们必须采取法律的、技术的手段进行控制和防范。     

自由主义传统下的社群主义

20世纪90年代，西方社会兴起了一股新的政治思潮——社群主义。社群主义的复兴是后冷战时期各种社会条件的产物，其本质仍是对新自由主义的补充。它是在意识形态的领域内对资本主义的挽救和改良，但它也关注一定的社会目标，进而拉开了资本主义质变的序幕。它促进了西方政治哲学的竞争和发展，为第三条道路的发展奠定了理论基石，对西方社会的发展起着一定的促进作用。     

Adoption under Soviet Family Law

A ramified system of public institutions for children has been established in the USSR, in which children who have been left without parents live and study. At the same time, legislation has provided for the adoption of children by individual citizens who may wish to take children into their families, raise and take care of them as they would their own.     

Research spending under regulatory uncertainty

Using a simple model this paper examines firm behavior under three types of uncertainties dealing with innovation occurrence, innovation scale, and a possible threat of regulatory action. Firms compete in the existing product market and engage in R&D in Stage I. Innovation takes place in the second stage, the successful firm achieves a monopoly and becomes aware of the scale of innovation. Regulators examine the new product and decide on possible action. Results show that increases in the probability of regulation reduce research spending as do higher regulatory taxes. These results are reversed when the regulator grants a subsidy, instead. An increase in the probability of drastic innovation increases research spending under certain conditions. The effect of market entry is unclear. Our results generally carry through when the model is extended to include only an innovation race or the nondrastic innovation is alternately regulated. Policy implications are discussed.

Environmental liability under uncertain causation

Recently, the European Commission has issued the “Directive 2004/35/CE on environmental liability with regard to the prevention and remedying of environmental liability”. The Directive extends liability that usually refers to personal injuries and private property to harm where private property does not exist (e.g. biodiversity and endangered species). In these cases, problems with multiple causation and uncertain causation tend to be even more severe than for cases where solely private property is affected. Nevertheless, the otherwise very ambitious Directive remains silent about how to deal with these problems. We focus on uncertain causation and analyze second best optimal standards of proof in a model where benefits of risky activities are private information, and where the firm’s care level chosen to avoid the damage is only imperfectly observable. We derive three results: first, we characterize the factors determining the second best standards. Second, and conversely to the previous literature, high standards of proof such as proof beyond reasonable doubt can be second best optimal even though they lead to inefficiently low care levels. Third, legislators should leave discretionary power to courts which allows them to choose the standard of proof conditional on factors such as the degree of uncertainty over causation or the information quality about care levels as taken by injurers.     

司法克制下的司法能动

司法能动或是司法克制体现了法官释法的意识形态。司法能动和司法克制是法官在司法中进行自由裁量时享有多大的自由或者受到多大的限制问题,并没有一个绝对的标准可供遵循。在我国当下,去除僵化的司法克制与无序的司法能动,并且实现司法克制下的司法能动应是明智的选择。     

中國法下的壟斷協議

壟断協議規制制度是反塱斷法中最古老的基本制度之一,世界各國的反壟斷法發展到今天,積累了大量在壟断協議規制領域的實踐經驗,這對于反壟斷法剛剛生效不到一年的中國來説,具有重要的借鑒意義。但是,應當明確的是,由于歴史、政治、經濟和文化種種因素的影響,中國市場中的壟斷協議行爲與西方發達市場經濟國家相比,仍有很大的區别,作爲一個舶來品,     

Displaced discretion under Ohio sentencing guidelines

The argument that curbing judicial sentencing discretion generates more prosecutorial discretion at earlier decision points in case processing received little empirical attention beyond Miethe's (1987) before/after study of the Minnesota guidelines. This article presents an examination of whether Ohio's sentencing reform resulted in significant changes in prosecutorial decisions related to indictment severity, dropped charges, charge reductions, and overall plea bargains. The implementation of determinate sentencing guidelines corresponded with a significant yet modest increase in the likelihood of charge reductions only. Some changes also occurred in the specific effects of various defendant characteristics on some of the outcomes examined, but these changes did not uniformly result in harsher dispositions for defendants facing greater social and economic disadvantage. Similar to Miethe's observation regarding Minnesota's sentencing scheme, any increase in levels of prosecutorial discretion that might have occurred under Ohio's latest scheme had not resulted in substantive extra-legal disparities in case dispositions.     

民主政治下的为民之道——对政治、行政及其关系的一个分析

在现代化进程中,处理传统方式与现代方式之间的关系,更为合理的思路在于,在现代方式的主导下,容纳并发挥传统方式的长处,而不是相反。由此,就政治、行政及其关系而言,民主政治下的为民之道、价值主导下的治理逻辑、程序机制下的服务意识,应该成为中国政治和法律发展的一种可取方向。