法官自由裁量权论纲

法官自由裁量权的行使是法律适用中的重要问题。本文从法理学的角度首先分析了法官自由裁量权存在的最基本动因,认为法律规则的固有缺陷是法官自由裁量权存在的最基本原因;随后在对法官自由裁量权的不同理解进行考察的基础上,对法官自由裁量权的内涵进行了界定;最后通过对法官自由裁量权运行的分析,指出直觉、知识、逻辑以及视域的开放是法官进行自由裁量时所涉及到的四个最基本的因素,而这四个因素被合理地组织到自由裁量的最基本过程。     

我国人民民主面临的问题及对策——基于协商民主视角的分析

人民民主是社会主义民主的核心要义,是中国共产党和当代中国的理想和追求.我国设计了以人民代表大会制度为标志的一系列制度措施来实现人民民主,但在具体的政治实践中却面临种种问题.协商民主是强调讨论对话和审议的民主形式,恰好在某种程度上弥补了目前我国人民民主实践的不足.     

Parliamentary influence in a new democracy: The Spanish congress

This study, based on elite interviews and quantitative data, examines the public policy‐making influence of the Spanish Congress since the formation of its new democracy (1979–96). Three of the factors considered in this study are derived from previous comparative legislative studies: (1) the size of or absence of majority representation of the government party in the legislative body; (2) the degree of party unity and party discipline; and (3) the existence of a specialised committee system. In new democracies, we must also take into account the malleable circumstances of the new regime. In Spain, the following also appear to have an impact on parliamentary influence especially: (1) the special requirements of the process of democratic consolidation; (2) the nature of legislation; (3) the formal rules affecting parliament; (4) the impact of membership in the European Union; and (5) Spain's asymmetric federal structure.     

检察民主研究

在当今世界的大多数国家,民主成为各种国家权力运行的普遍原则。基于此,本文提出了检察民主的概念,分析了其特征和内容,并对现行的人民监督员制度进行了概评,以求为检察民主的理论发展尽绵薄之力。     

Here comes the judge: the influence of judge personal characteristics on federal sexual harassment case outcomes

This study explored the effects of judges' personal characteristics (gender, race, age, and political affiliation) and case characteristics on the outcomes of federal cases of hostile environment sexual harassment. Results revealed that even after controlling for the effects of relevant case characteristics (e.g., severity of the harassment), judges' personal characteristics influenced case outcomes. Specifically, younger judges and Democrat judges were more likely to find for the plaintiff (the alleged victim of harassment). The probability that the decision would favor the plaintiff was only 16% when the case was heard by an older judge but 45% when heard by a younger judge. The probability that the decision would favor the plaintiff was only 18% when the case was heard by a judge who had been appointed by a Republican president but 46% when the judge had been appointed by a Democrat president.     

中国法官独立制度构建探讨

法官独立是司法独立的重要组成部分，是中国司法改革申一项不可回避的课题。本文先阐述法官独立的内涵，指出法官独立应从司法权独立，审判独立和法官身份独立三个方面加以理解，再分析影响中国法官独立的诸多因素，最后提出在中国构建法官独立制度的设想。     

论司法裁判的事实根据

司法裁判的事实根据中的\"事实\"如何理解和操作,是司法公正内涵中的最基本的问题,也是审判制度及审判方式改革成功与否的前提和基础.对此,世界各国司法理论和实务都备加关注.我国法学界长期坚持的\"客观真实\"标准在理论和实践中均产生了许多问题,因而,适应当前司法改革的需要,重新界定司法裁判的事实标准已成为必然趋势.笔者认为,\"法律真实\"应成为我国司法裁判的事实根据.     

临床法医学鉴定损伤系数的研究及展望

在临床法医鉴定和司法实践中 ,对于不同致伤因子、不同性质、不同部位的边缘性和多元性损伤如何评定 ,对《人体重伤鉴定标准》第 93条、《人体轻伤鉴定标准 (试行 )》第 5 3条如何正确理解和运用 ,本文引入“损伤系数”并就损伤系数的概念、公式来源、应用及在法医鉴定中的意义等进行了综述 ,以期对人体损伤的定量评定这一问题的解决有所推动 ,从而更好地运用国家鉴定标准     

War and democracy in ancient Greece

In the present paper we analyse some of the preconditions for the emergence of democracy in Ancient Greece. For democracy to emerge in Ancient Greece a combination of several enabling factors proved decisive: the development of new military tactic, the phalanx, marked by the appearance of a new type of heavy infantry warrior, the hoplite, who owned individually some property, i.e. land, sufficient to permit him to finance his weaponry and a city-state culture. We describe the emergence of this new type of warrior, link this emergence to the establishment of individual property rights and show how this brought about a military revolution, exemplified in a new tactical formation, the phalanx. We then proceed by showing how the attitudes and learning processes made necessary by this new type of warfare were transformed in the civic values and virtues that shaped democratic institutions. Our thesis can thus be briefly termed as the “military cum city-state” explanation of democracy.     

Constitutional democracy and the legitimacy of judicial review

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.I am indebted to John Rawls and Burton Dreben for their helpful advice and their comments on an earlier draft of this paper.     

Corruption, democracy and the World Bank

In this era of political conditionality and good governance, anti-corruptionhas emerged as a top priority (at least in theory) for all major donors. Thisis almost always linked to support for democratisation efforts, with onenotable exception – the World Bank. The Bank is constricted by anon-political mandate which forbids it supporting one particular politicalsystem through its lending and other activities. Nonetheless, the languageit uses (e.g., accountability, transparency, participation, etc.) and theprojects it supports seem to endorse the spirit of liberal democracy. I arguethat the Bank's mandate is in conflict with a politically sensitive issue likeanti-corruption, and that it is impossible to separate economic issues frompolitical ones in this instance; however, given the lack of consensus on therelationship between democracy, development and corruption, this may bethe best state of affairs for now.     

The judge,the academic and the public intellectual: the totemic scholarship of Richard A. Posner

Richard A. Posner plays a totemic role within law and economics, and not only. His scholarship is so wide to the point that it is quite impossible to face any topic without finding a seminal contribution by him. This introduction presents a special issue devoted to Posner’s scientific and academic work.