实现自由与秩序的良性平衡——对流浪乞讨问题的宪法学分析

收容遣送制度的废止和救助管理办法的建立并没有完全解决许多城市所面临的流浪乞讨问题,因而当今中国各大城市仍然需要在宪法和法律规定的范围内处理这一问题。本文从美国对相关问题的宪政经验出发,探讨地方立法所必须遵循的宪法学原则。和美国类似,中国宪法虽然没有提到乞讨或露宿的权利,但也规定了和这类问题相关的公民基本权利。结合中国和美国的相关宪政经验,本文认为政府并不是绝对不可对乞讨和露宿行为进行限制,而是必须保证这些限制符合宪法的基本要求。第一,它们所针对的是行为,而不是流浪者或乞丐身份。第二,政府只有在具备合法的公共利益的情况下才能限制这些行为。第三,有关规定不得为执法人员提供不受控制的自由裁量权。最后,要实现自由与秩序的平衡,必须建立独立的宪法解释机构,通过司法过程界定公民权利与地方权力的边界。     

The Problem of Self-Representation at International Criminal Tribunals: Striking a Balance between Fairness and Effectiveness

The principle that the right to self-representation is not absolute,as established by international criminal tribunals, raises difficultquestions of application that are still being worked out inthe jurisprudence. There has been a recent shift in focus, fromestablishing the modalities for the exercise of the right inthe early stages of the Miloevi trial to establishing the circumstancesin which the right may be qualified. This article examines recentdevelopments and considers where the threshold for revokingor qualifying the right to self-representation lies, how thevarious modes of court imposed representation may be synthesizedand what the standard is for counsel who is representing anuncooperative accused.     

Caring for the elderly: a European perspective on today and tomorrow

There is always a temptation to suppose that one's own problems (whether personal or national) are unique. They rarely are. The "problem" of the elderly is no exception and so there is no particular point in looking to the specific characteristics of one's own health, social service, and social security systems for causes. There is, however, every reason to be looking at them for the consequences. They can also exacerbate the causes. In this paper we sketch the principal features (economic, social, and demographic) that have contributed to the "problem" of the elderly in Europe and then outline the main intellectual issues that need to be explored and resolved. That sounds a bit pompous but, if one is to avoid an intellectual morass consisting of the various assertions about needs, obligations, and so on that emanate from rival concerned parties and various professional interests on the one hand, and simplistic political slogans whose only virtue is that they cut the Gordian Knot (but provide no real enlightenment) on the other, then we need to be doing just this. We shall take a few things for granted: that cost-containment is not the be-all-and-end-all of policy; that value for money depends equally on what you get as on what you spend; that overall expenditure per head is mainly determined by income per head (though some countries have managed to get and stay below the regression line); and that it "ain't so" that all one needs to do is to "leave it to the market." To have justified each of these would have taken too much space so we can only assert them and trust that, in swallowing these camels, you won't strain at the gnats to come.     

城乡统筹发展背景下西部地区农村投融资体制改革与创新研究——基于法经济学的分析范式

对于具有典型"二元经济"特征的我国西部地区而言,在技术落后、人力资本匮乏的制约下发展农村经济,资金要素至关重要。良好的农村投融资体制能够将农村资金高效地转化为农村生产资本,进而促进农村产出的提高。然而,西部地区农村投融资体制并不能适应"三农"发展的现实需要,造成西部农村发展面临资金短缺与资金配置效率低下的双重"瓶颈"。从法经济学视角可以发现,我国西部地区农村投融资体制的变迁轨有着特殊的演化逻辑与规律,为此,应有针对性地大力推进社会主义新农村建设,并实现以加快城乡统筹发展为目标的西部地区农村投融资体制的路径创新。     

Striking Out: Race and Support for Police Use of Force

This research examines whites’ and blacks’ support for police use of force using a survey‐based experiment that varies the race of the offender across four different scenarios. Bivariate results show that the race of the offender influences blacks’ approval for the use of force by police, but does not affect whites’ approval. Multivariate analyses examine whether the factors influencing support for police use of force vary depending on the race of the offender. Results indicate that the predictors for approval of police use of force differ by the race of respondent, the race of offender, and the appropriateness of the use of force. The implications of the results for police–community relations are discussed.     

严厉打击涉黑犯罪倾力服务平安世博

一、充分认识平安世博面临的严峻形势，打击涉黑犯罪不容丝毫松懈今年，是上海的世博之年。随着世博会的日益临近，举办一届快乐和安全的世博盛会，越来越受到社会各界的关注和重视。早在2002年申博时，上海就曾充满自信地表示要建设世界上最有安全感的城市，保证广大世博参观者的安全。这些年来，上海时刻不忘申博承诺，紧紧围绕世博会筹办这条主线，为建设安全城市作了大量艰苦细致的工作，为打造平安世博奠定了扎实的基础。但必须看到，     

Human rights safeguards and international cooperation in extradition: Striking the balance

Conclusion It is necessary to strike the correct balance between safeguarding the rights of the individual and engendering mutually beneficial cooperation between states in extradition matters. In the absence of effective global international human rights enforcement mechanisms, many of the traditional safeguards still have a real role to play in extradition. This article reviewed five such safeguards and found that all but the nationality exception should be retained to ensure that international cooperation and individual protection are both safeguarded for the common good of society.This is a revised version of a paper presented at an international workshop on Principles and Procedures for a New Transnational Criminal Law, organized jointly by the Society for the Reform of Criminal Law and the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany, May 21–25, 1991.LL.B., University of Exeter 1973; LL.M., Osgoode Hall Law School 1974; D. Jur., Osgoode Hall Law School 1976.     

生命的守护还是疏离——评醉驾入刑的情节

鉴于醉酒驾驶机动车发生交通意外、危害公共安全的现象日益严重,《刑法修正案（八）》适时增设了危险驾驶罪,将醉酒驾驶行为纳入刑法调整范围。但是,单从《刑法修正案（八）》第22条条文本身以及立法原意来看,醉驾入刑似乎并不需要考虑情节问题。最高人民法院、最高人民检察院和公安部在对待此问题上的看法也不相一致。为此,有必要从理论上对该问题进行梳理、论证,以树立“情节”在醉驾入刑中的核心地位。     

Elderly suicide: a 10-year retrospective study

The suicide rate in the 65-year and older age group has been increasing since 1980. The elderly attempt suicide less often than younger people but are successful more often. The authors retrospectively reviewed all cases referred to the Forensic Pathology Section of the Medical Examiners' Office at the Medical University of South Carolina (Charleston, SC) from January 1988 through December 1997. The cases of suicide in victims 65 years and older totaled 78, accounting for 11.5% of all suicides reviewed. Of these 78 cases, 41% were autopsied and 59% were externally examined. All of the cases were initially analyzed as to age, race, sex, and method of suicide. Files also were reviewed to determine time of year of the suicide, toxicology results, psychiatric history, social history, medical history, and whether a suicide note was left. The ages of these suicide victims ranged from 65 to 94 years; men comprised 85% of the victims, and whites, 94%. The male-to-female and white-to-black ratios were 6:1 and 15: 1, respectively. The average age of the victim was 73 years. Gunshot wound was the most common method of suicide, accounting for 80.7% of the cases. Other methods included overdose (6.4%), hanging (3.8%), fall from height (2.6%), incised wounds (2.6%), drowning (2.6%), and carbon monoxide poisoning (1.3%).     

Caring for the Disabled? New Boundaries in Disability Discrimination

The scope of the disability-related less favourable treatment provisions of the Disability Discrimination Act 1995 has been reduced by the House of Lords in a housing case, London Borough of Lewisham v Malcolm , while the European Court of Justice has taken a broad approach to disability discrimination and carers within the EC Framework Directive in Coleman v Attridge Law . In discussing both cases, this note suggests that the pre- Malcolm approach to identifying the comparator in disability-related discrimination claims should prevail in the employment context, in view of the obligations under the EC Framework Directive.     

From Balance to Conflict: A New Constitution for the EU

As the crisis (and the Union's response to it) further develops, one thing appears clear: the European Union post‐crisis will be a very different animal from the pre‐crisis EU. This article offers an alternative model for the EU's constitutional future. Its objective is to invert the Union's current path‐dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post‐crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalise within their decision‐making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.     

Finding the Balance: Intoxication and Consent

Sexual offences in England and Wales have had a dramatic reimagining in the last 15 years, with the Sexual Offences Act 2003 establishing not only the boundaries of the most heinous of offences such as rape, but also defining one of the most important elements; consent. This article seeks to explore the problems that surround establishing if legally valid consent has been given, with particular regard for cases where voluntary intoxication takes centre stage. The problem that often arises is the question on whether or not an intoxicated victim had the capacity to consent, or establishing if she did consent when memory of the event is hazy, possibly from both parties. Using comparative analysis with other jurisdictions and their take on the offence of rape, the author seeks to discover if the current rules are sufficient to fit within twenty-first century western culture. The victim will be referred to as ‘she’, although the law here and all situations discussed are equally applicable to male rape.