法律援助问题:体制比较

导　　言保护每个人与生俱来的尊严和价值是国际人权法一个最根本的基石。① 人们可以争论说 ,国际人权法有两项基本原则。② 首先 ,在关于个人和群体 ③ 的待遇方面 ,国际人权法设想存在一个全球性标准方面的合意。④ 这种合意体现在那些鼓励国家所签署和批准的文件和条约之中 ,⑤ 而且 ,通过成为这些文件的缔约方 ,各国自愿同意履行它们在这些文件中为其国民的利益所作的承诺。其次 ,人权体系强调每一个人与生俱来的尊严和价值 ,并且为此目的致力于保护每一个人的公民、政治、经济、社会和文化权利。尽管人权体系致力于实现在这些权利行使…     

Intimate Violence in Canada and the United States: A Cross-National Comparison

Using data from the 1985 U.S. National Family Violence Resurvey and the 1986 Canadian National Family Life Survey, this paper compares incidence of intimate violence or “common couple violence” (Johnson, 1995) in both countries. As expected, gender symmetry characterizes common couple violence, which is a product of the privatized setting of many American and Canadian households. Although the United States exhibits significantly higher rates of societal violent crime than Canada, Canadian women and men were more likely than their American counterparts to use severe intimate violence and to inflict it, as well as minor violence, more often, which is contrary to the culture of violence theory that guided the study. Similarly, the higher rates of wife-to-husband severe violence across the life course in both countries are inconsistent with the theory. Several ad hoc explanations are presented to account for these unexpected findings.     

Legal Mobilization on the Terrain of the State: Creating a Field of Immigrant Rights Lawyering in France and the United States

Scholarship on law and social movements has focused attention primarily on the United States, and secondarily on countries that share the Anglo‐American legal tradition. The politics of law and social movements in other national legal contexts remains underexamined. The analysis in this article contrasts legal mobilizations for immigrant rights in France and the United States, and explores the relations between national fields of power and legal practices. I trace the institutionalization of immigrant rights legal organizations in each country and argue that the divergent organizational forms and litigation strategies adopted by professionalized movement organizations reflect the dynamics of the nationally distinct fields of power relations within which law reform has been conducted. My analysis links the material and symbolic resources available to law reformers to the relative authority of private and public juridical actors in each state.     

A Comparison of Punishment Systems in Denmark and the United States

The Danish prison system is recognized worldwide as a model incorporating the most progressive principles of punishment. This article is the result of the author's research in Denmark undertaken to clarify the foundations of Danish penal philosophies. Findings suggest that penal practices are the outcome of a complex interaction of social and criminological theories. Formulated in an atmosphere that minimizes the emotionalism and politicization of crime, Danish crime control policies represent a pragmatic and reasoned approach to dealing with criminal offenders. Prison conditions reflect the social and political attitudes regarding the causes of crime and the treatment of marginal citizens.     

中美知识产权制度比较研究

此处文章由远及近、由大及小 ,远及中美关系发展 ,近涉美国对华政策 ,大处着眼国际背景 ,小处探究具体制度 ,宏观微观把握得当 ,且有用心思考分析之心得 ,乃一整体了解中美知识产权制度相对存在之状态的可读之文。     

Legal Treatment of Cohabitation in the United States*

This article discusses the variety of ways state legal systems in the United States treat cohabitation, both by same-sex and heterosexual couples. The different approaches are described along a spectrum that ranges from one extreme, under which cohabitants have essentially no rights against one another or against third parties, to the other extreme, under which cohabitants are to be treated as though they were married under state law. Different areas of law are discussed, including the rights of cohabitants both against one another (remedies upon dissolution, inheritance) and against third parties, such as state benefits, tort claims, health-related benefits, and rights concerning children. The article concludes with speculations concerning why the remedies offered to cohabitants in the United States are so limited, as compared with other countries.     

Legal training and perceptions of Chief Housing Officers: A southwestern United States study

This study examined the legal training of Chief Housing Officers (CHOs) employed by colleges and universities in the southwest USA. The study also investigated the perceptions of CHOs with regard to legal issues that might confront their institutions in the next five years. The study further examined the possible differences in perceptions of CHOs who have held that position for less than five years versus individuals who have held the position for more than five years. Finally, the study makes recommendations for future research.     

The cohesion and fragmentation of organized medicine in France and the United States

The French and American medical professions share similar historical bases for strong political and economic market positions. As professions, the attributes of common education, ethics, and mission tend to keep physicians together in their political organization. But the medical professions in both France and the United States are also subject to intraprofessional forces of division, such as the conflicts which often oppose generalists to specialists. Although organized medicine in France and the United States shares these commonalities, there is a very important difference between the two countries. The French profession tends toward organizational particularism, both ideologically and nonideologically, which serves to splinter it in ways inimical to the interests of the medical profession. By contrast, the American medical profession tends to organize universally-that is, its organizational base is much more often one of unity and accommodation toward the divergent interests of physicians. Thus, organized medicine in the United States has more easily fought off political and economic pressures coming from government and the private sector-but by no means with total success. On the other hand, highly fragmented organized medicine in France has experienced an almost linear decline in the face of pressures coming from a determined and strong state.     

“契约团结”的法理疏释:面向主体化时代

"契约团结"是实现"和而不同"的理想化社会图景的一种社会学想象。"契约团结"中的"契约"是多元的、网状的、有机的、复合的、相互交织的、并且是伸缩自如的。在社会团结的契约结构中,分工与交往是实现契约团结的基础和纽带,自由共同体是契约团结的载体,而法律则是实现契约团结的条件,它为契约团结的实现提供了土壤。法律的运作所产生的区隔效应以及通过法律对基本权利的保障,为人们的分工、交往、联合创造了一个和平、自由、公平的环境。     

Comparative Sociology of Law: Legal Fields, Legal Scholarships, and Social Sciences in Europe and the United States

This article attempts to gain a better understanding of the sociology(ies) of law in a comparative perspective through a structural and comparative explanation of the American and the French legal fields. It is argued that comparative sociology of law will not be able to explain the difference among countries, scholars, movements, and schools of thought in short, it will not be able to compare—as long as it avoids the analysis of some social and cultural presuppositions related to the context in which these differences take place. It focuses mainly on two of these presuppositions. First, legal fields, with their history, their internal structure, and their power relations, and second the type of relation between the legal field and the state. The empirical examination provided in this article explicitly seeks to offer insights for the reconstruction of Bourdieu's structural theory of the legal field.     

中美认罪协商制度之比较

认罪协商在我国主要体现在认罪认罚从宽制度中,在美国主要蕴含在辩诉交易中。中美认罪协商制度在价值追求、自愿性保障和被害人利益保护方面具有相似性,但在协商主体、协商内容、协商效力、证明标准、撤回认罪以及被告人上诉权等方面存在差异。我国可以从适度降低认罪认罚案件的证明标准、明确撤回认罪的法律规定和适度限制被告人的上诉权等方面,借鉴美国辩诉交易的有益经验,进一步完善我国的认罪认罚从宽制度。     

Individual Dismissals in Europe and the United States: A Model on the Influence of the Legal Framework on Firing Costs

In this article, we present a model of individual dismissals based on the workers' right to file a suit against their employer arguing that the dismissal is unjustified or unfair. The model is a standard pre-trial bargaining game between a firm and a worker. We study two cases: when the law states the severance pay for unfair dismissal (the European case), and when judges can decide freely on the compensation to be paid to the worker (the American case). The model provides some guidelines for Labour Law reforms. In the European case, a decrease in the severance pay for unfair dismissals fixed by law will decrease the severance pay offered by the firm, and only under some assumptions will decrease the expected firing cost and will increase the settlement probability. In addition, the transition from the European to the American case is likely to increase the probability of settlement (and to decrease it in the opposite case) with ambiguous effects on agreed severance pay and expected firing costs.