英国宪政传统的历史成因

英国早在盎格鲁 -撒克逊时代就滋生了“王在法下”的法治传统和政治协商传统的最初萌芽。诺曼征服后 ,在强大王权和贵族联合势力大致平衡的力量对比条件下 ,封建法历史地充当了推动法治传统成长的“不自觉工具”。随后形成的普通法以其特有的判例法形式、相对独立的法庭组织、司法职业化以及富有理性的审判方法 ,进一步巩固了英国法治传统的制度基础。与此同时 ,古代的政治协商传统发展到了具有一定代议性质的政治协商新阶段。到中世纪末 ,以普通法制度和议会制度为支柱的宪政传统在英国确立起来。总而言之 ,促成英国宪政传统形成的根本原因还在于国家和社会的适度紧张关系与相对均衡结构。     

Divergence and Convergence in the Law of Contractual Penalties and Liquidated Damages Clauses in England,Singapore, and Malaysia

Liverpool Law Review - Contracts often make provision for the remedies available upon breach, i.e., by providing for a sum or stipulation available to either party upon breach by the other (an...     

Law, Patriarchies, and State Formation in England and Post-Colonial Hong Kong

The rise of the modern state is often associated with the demise of particularistic ties and authoritarian patriarchy. Classically, particularism gives way to universalism, patronage, hierarchy, and deference to the 'equalities' of contract. But history is not a one-way street nor is patriarchy all of one kind. Society's legal arrangements, structure, custom, power, affect, and sex swing back and forth between values of distance, deference, and patronage and those stressing greater egalitarianism in personal and political relations. Though they vary in type, patriarchy and particularism as cultural systems do not disappear but ebb, flow, and are revived, their oscillation driven by particular economic goals and political insecurities.     

假结婚、假离婚与错结婚的认定和处理

婚姻法只规定了四种法定无效情形和一种可撤销婚姻。对于假结婚、假离婚与错结婚争睛形如何认定和处理,没有法律规定,实践中往往适用民法总则无效民事效力行为的规定,将其认定为无效婚姻。这是错误的,婚姻有效与无效有其独立的评判规则,不能适用适用民法总则。因而,假结婚、假离婚与错结婚一般不能认定其行为无效。     

Forced marriage: an analysis of legislation and political measures in Europe

Forced marriage is of current international concern in Europe. As many cases involve a transnational component linked to migration, it is increasingly receiving attention at the government level. The serious consequences for women, including sexual violence, and the physical and psychological health risks associated with it, seem to receive little consideration. Recent years have seen a rise in initiatives and measures taken by policy makers throughout Europe. As the focus is placed on criminalization and stringent immigration policies, ethnic minority population groups bear the greatest burden. It is argued that specific criminal laws make it more difficult for victims to come forward, while offering very little or no protection in return. The widespread 21-year age rule in immigration law has been denounced by scholars, institutes and magistrates alike for infringing on the fundamental human right to family life guaranteed by article 8 ECHR. The discourse on forced marriage appears to have reached a crossroads. European governments are faced with the challenge to create policies that protect and support victims, while simultaneously cracking down on perpetrators and safeguarding their borders from abuses in obtaining visas. There is a very pressing need to work more closely with those at risk, involving service provisions to directly support them, instead of a one-side top-down policy framework through which minority communities feel targeted and stigmatized.     

试论契约自由及其在我国合同法中的地位

毫无疑问,罗马法应该被视为研究契约自由的起点.正是在罗马法中,契约制度首次得到了全面规定并达到了相当的高度.而且,正是罗马法孕育了契约自由的观念和思想.契约自由从思想到原则的转变是在法国民法典中实现的,而人类进入20世纪之后,契约自由逐步受到限制.在我国合同法中,契约自由也得到了确立,它不仅是我国合同法的一项基本原则,而且也是我国合同法的最高原则.     

Childhood physical punishment and problem solving in marriage

Drawing from social learning theories and symbolic interactionist understandings of social life, the authors suggest that physical punishment teaches aggressive and controlling strategies for solving the problems of living together and hinders the development of important problem-solving skills, specifically the ability to role take with others. These strategies and skills become part of an individual's toolkit for problem resolution within his or her marriage. The analysis is based on 188 married couples in Washington State who participated in a longitudinal study of the first 2 years of marriage. The analysis reveals the following: Individuals who were physically punished during childhood are more likely to engage in physical and verbal aggression with their spouses, individuals who were physically punished during childhood are more controlling with their spouses, and individuals who were physically punished during childhood are less able to take their spouse's perspective.     

论违约责任中的精神损害赔偿

无论是大陆法系,还是英美法系,各国立法和判例都普遍将精神损害赔偿的适用限定于侵权行为。对于能否在违约责任中适用精神损害赔偿,我国法律没有明文规定,理论界的主流观点也是否定的。但在各国司法实践中,一些法院已经承认了在特定合同类型下违约精神损害赔偿的存在。这是法制进步的必然选择。     

Autonomy and private ordering in contract law

This essay reviews Michael J. Trebilcock's book,The Limits of Freedom of Contract (Cambridge, MA: Harvard University Press, 1993), examining crucial and controversial social issues within the rigorous framework of the law and economics of contract. The idea that private markets are the primary institutions for the allocation of limited resources is central to any private ordering model of contract law. Yet such a premise leaves a number of fundamental questions unanswered. Trebilcock is critical of the insufficiency and ambiguity of current contract theory in addressing fundamental legal issues relating to the limits of freedom of contract. Pushing the frontiers of current legal theory, Trebilcock revisits the slippery notion of freedom of contract and tests the actual reach of economic analysis in providing a coherent answer to compelling social questions. The author pursues his ambitious task by examining the conclusions reached by competing paradigms of analysis. In spite of his declared trust in the economic approach to law, Trebilcock pays close attention to alternative analytical traditions, comparing the conclusions of various intellectual perspectives with those suggested by an economic framework of private ordering. The book objectively examines strengths and weaknesses of competing views, affording the reader a balanced position from which to conclude for herself, by illustrating the practical implications of the various approaches. In a number of instances, Trebilcock shows how different theoretical premises may indeed be conducive to similar institutional outcomes.Associate Professor of Law, George Mason University. The support of the Sarah Scaife Foundation and of the John M. Olin Foundation is gratefully acknowledged, as are the helpful comments of Jonathan C. Harris and Charles K. Rowley. Extensive remarks received from Michael J. Trebilcock prior to publication allowed me to remedy earlier omissions.