国际法视野下的企业社会责任与劳工权益保护——兼论社会责任标准在我国的实施

企业社会责任运动要求公司尤其是跨国公司在参与市场竞争的过程中应承担其应尽的社会责任以保障基本人权和劳工权利。考查企业社会责任运动的发展及相关国际法律文件的规定、实施及影响,相较于我国法律的相关规定,企业社会责任标准并非高不可攀的道德苛求,只要我国建立起规范、明确的约束体系,切实实施劳动法等相关法律的规定,劳工权益得到切实维护,企业社会责任的标准也就基本达到了。     

Advancing Direct Corporate Accountability in International Human Rights Law: The Role of State-Owned Enterprises

Resorting to the immensely state-centric international legal system to regulate corporate human rights abuses is often viewed as inadequate. Among many proposals aiming at filling the international regulatory gaps, imposing international human rights obligations directly on corporations is a bold one, which, due to profound doctrinal and practical challenges, is yet to be materialized. However, state-owned enterprises (SOEs), given their prima facie “state–business nexus” that blurs the traditional public–private divide, might provide a renewed opportunity to push forward the “direct international corporate accountability” campaign. This study investigates whether SOEs represent a golden chance for direct corporate accountability in the international legal regime. This study provides a legal analysis supported by case law, and by comparative and empirical research when appropriate. After providing a definitional account of SOEs, it examines the legal status of SOEs under international law. Then, in the reverse direction, it proceeds to explore if the state–business nexus of SOEs as non-state actors could render the argument toward direct international corporation accountability more convincing. Major findings reveal that SOEs, to a limited extent, represent a renewed opportunity to rethink direct corporate accountability under international law.     

Accountability for Corporate Human Rights Abuses: Lessons from the Possible Exercise of Dutch National Criminal Jurisdiction over Multinational Corporations

In the implementation of the UN Guiding Principles on Business and Human Rights, little emphasis has been put on the criminal law as a mechanism to hold corporations to account. From a doctrinal perspective, the main stumbling block for a more intensive use of the criminal law appears to be how to establish jurisdiction and liability with regard to corporate involvement in human rights violations in transnational supply-chains. On closer inspection, however, domestic criminal law offers surprising, although largely untested opportunities in this respect. Criminal liability could notably be based on violations of a corporate duty of care violation, whereas jurisdiction could, relatively non-controversially, be grounded on the principles of territoriality, nationality, and universality. The Dutch criminal law system is used as a case-study in this article.     

Human Rights as a Security Threat: Lawfare and the Campaign against Human Rights NGOs

In this article, I show how the term lawfare is being deployed as a speech act in order to encode the field of human rights as a national security threat. The objective, I claim, is to hinder the work of human rights organizations that produce and disseminate knowledge about social wrongs perpetrated by military personnel and government officials, particularly evidence of acts emanating from the global war on terrorism—such as torture and extrajudicial executions—that constitute war crimes and can be presented in courts that exercise universal jurisdiction. Using Israel as a case study, I investigate the local and global dimensions of the securitization processes, focusing on how different securitizing actors—academics, nongovernmental organizations, think tanks, policy makers, and legislators—mobilize the media, shape public opinion, lobby legislators and policy makers, introduce new laws, and pressure donors to pave the way for a form of exceptional intervention to limit the scope of human rights work.     

Challenging Corporate 'Humanity': Legal Disembodiment, Embodiment and Human Rights

This article interrogates the corporate use of human rightsdiscourse. It does so in light of concern surrounding corporatedistortion of the Universal Declaration of Human Rights (UDHR)paradigm,¹ and in light of the fact that corporations can claimshelter under human rights documents, particularly—asrecently discussed by Emberland²—the European Conventionof Human Rights and Fundamental Freedoms (ECHR). The authoroffers a critical exploration of corporate human rights claims(and some arguments advanced in their favour), and identifiesthe phenomenon of legal disembodiment (or ‘quasi-disembodiment’),linking it to both a genealogical account of human rights andthe nature of liberal legal personality. This reading of humanrights genealogy invites the reader to focus on a series ofparadoxes surrounding human rights, including their nature asa form of sacral construct, and locates human rights at an entrenchedand challenging interface between historical and contemporarypatterns of inclusion and exclusion. Quasi-disembodiment emergesfrom the analysis as a key conceptual conduit for the legalreception of corporate human rights claims. Linking the ECHRto the liberal human rights tradition, the author suggests thatnotwithstanding judicial protection of corporations as beneficiariesof ECHR protection, it remains essential to engage in a normativecritique of the very notion of corporate human rights. Beneathhuman rights law (and the related closures of legal discourse)it is possible to trace a human rights-oriented critique thatadopts human embodiment (and its quintessential link with humanvulnerability) as the ethical foundation of human rights.³ Emphasisingembodied vulnerability as the foundation of human rights yieldsa significant and ethically relevant distinction between corporationsand human beings—a distinction with intriguing possibilitiesfor the future theorisation of human rights—and one thatarguably problematises the corporate use of human rights discourse.     

试论技术入股股东的权利、义务与法律责任

技术出资方式迥然不同于货币、实物、土地使用权等出资方式,技术入股股东不仅具有其他股东的权利、义务与法律责任,而且还具有自己的特殊权利、特殊义务与特殊法律责任。从技术入股角度出发,《中华人民共和国公司法》有关股东权利、义务与法律责任的规定需要充实。     

论作为人权与公民权的自由权

自中世纪以来 ,自由就是人类所追求的一种价值目标和生存状态。本文从人权和公民权的角度来论述自由权。在具体论述时从自由的含义出发 ,阐述自由和自由人权 ,进而揭示自由的法律意义 ,即法律上的自由权。在此基础之上 ,本文最后简要论述了自由与平等、秩序等价值目标的矛盾和平衡。     

人权的法律保障与和谐社会的构建

和谐社会应当是依法保障人权的社会,人权不仅需要法律保障,更需要健全而完善的法律体系的保障.因此,有必要从立法、司法等方面完善人权法律保障体系,构建和谐社会.     

论作为人权和公民权的表达权

党的十七大报告首次提出保障公民的"表达权"的概念和承诺.表达自由是首要的基本人权和公民权,是公民实现政治参与的前提.其中言论自由是表达自由的核心,是公民参与政治、监督国家、实现当家作主的必由之路,是推进先进思想文化和人类精神境界的动力.新闻自由则是作为人民对政府和公众人物进行舆论监督的镜鉴.而没有出版自由,则其他一切自由都是泡影.论述体现在这三方面的表达自由的理念和规范.     

Balancing Between Human Rights Assumptions and Actual Fundamental Human Rights Safeguards in Building an Area of Freedom,Security and Justice: a Cosmopolitan Perspective

Rhetoric often claims that the European Union (EU), in issues related to Justice and Home Affairs, has to be united in its diversity. As such, the asylum and judicial systems of the Member States are initially perceived as equally good. By applying the cosmopolitan theory on two fields of interstate cooperation, asylum and judicial cooperation in criminal matters, the article explores how cosmopolitan the EU is in these fields, with a specific focus on material detention conditions. For cosmopolitanism to work, it has to be grounded in commonly shared norms, which enable the EU to regulate its dealings with the otherness of the Member States. The crucial role of the European Court of Human Rights and the Court of Justice of the European Union in placing boundaries on the equal goodness of the Member States’ asylum and judicial systems is analysed. This judicial reality in which cosmopolitan norms are established and protected is discussed, together with the political realities dominating policy debates in order to build an Area of Freedom, Security and Justice.     

论我国公司社会责任的制度完善——兼论对欧盟国家公司社会责任实践的借鉴

公司社会责任是指公司对社会、环境和雇员、消费者、临近社区等利益相关者所承担的法律义务与道德义务。欧盟国家对公司社会责任争议不大,其公共政策的方方面面都在积极落实公司社会责任。我国新公司法第五条规定了公司的社会责任,该规定对立法和司法都是有指导意义的。我国应完善公司社会责任的强制性规范、任意性规范与倡导性规范,更要完善公司社会责任的道德建设。     

Jurisdiction and Scale: Rent Arrears,Social Housing,and Human Rights

This article draws on the recent work of Mariana Valverde on jurisdiction and scale to frame a study of the interaction between mandatory possession proceedings brought by one particular type of social housing provider – housing associations – and national as well as human rights law. It was the explicit political choice to focus social housing provision on housing associations, as opposed to local authorities, which opened up the mandatory possession jurisdiction. The essence of the argument is that, despite the apparent incommensurability of these different scales and jurisdictions, they are able to accommodate each other quite happily. Two sets of texts are used to develop this argument. First, consideration is given to the legal technicality through which mandatory possession proceedings might be challenged. Second, we draw on data from a study of housing associations practices and policies on the use of one particular mandatory ground of possession for rent arrears, demonstrating the way in which scale and jurisdiction, political rationality and technologies intertwine.     

未上升为权利的法益——合理使用的性质界定及立法建议

目前学界对于合理使用的性质界定,大致有三种观点:"权利限制说"、"侵权阻却说"和"使用者权利说",这三种学说均有明显的不足之处.合理使用实际上是一种未上升为权利的法益,对其保护应采取一般条款加具体规则的立法模式.对此分析的基础上,对我国<著作权法>第22条关于合理使用的规定提出了修改建议.