商法探源——论中世纪的商人法

对商法史的考察和分析历来是我国商法学研究的薄弱环节。本文采用史论结合的研究方法 ,对中世纪商人法的产生背景做一些宏观考察 ,并尝试概括出其几个世纪以来演进的基本特点 ,希望可以收到正本清源、以史鉴今之效果。     

Tackling consumer vulnerability in energy and banking: towards a new approach

This article examines the new approach to vulnerability developed by Ofgem and the Financial Conduct Authority to see whether it has been implemented at company level and had an impact on the ombudsman. It sets out the context within which this approach has been developed and then looks at its implementation through two case studies. The main lesson from these case studies is that establishing a broad concept of vulnerability, as has been argued for in the academic literature, is just a first step. Operationalising the concept presents major challenges especially in the context of systems dealing with large numbers of consumers.     

Procedural justice policing and citizen compliance behaviour: the importance of emotion

Research consistently finds that if authorities use procedural justice in encounters with the public then this will promote citizen cooperation and compliance with the law. Recently, the importance of people's emotional reactions in response to procedural justice and injustice, and the subsequent effect this has on behaviour have been examined. This paper utilises a multi-method approach to examine the mediating role that negative affect plays in the effect of procedural justice policing on citizen compliance behaviour. Study 1 utilises both cross-sectional and longitudinal field survey data collected from Australian citizens who have had a recent contact with a police officer. Study 2 utilises an experimental vignette study designed to assess the causal mechanisms involved in the procedural justice–emotion–compliance relationship. Both studies find that procedural justice is linked to people's self-reported propensity to comply with police. Study 1 and 2 also find that negative affect mediates this relationship. These findings have important implications for training police to interact with the public in a manner that reduces negative emotions and ensures the highest level of compliance from the public.     

The problem of interviewing drug addicts in custody: A study of interrogative suggestibility and compliance

Abstract

The interrogation of drug addicts in custody presents a problem. The reliability of confessions made either under the influence of drugs or during drug withdrawal may be adversely affected. This study explores the effect of drug use and drug withdrawal on interrogative suggestibility and compliance. These two psychological factors are relevant to erroneous testimony. The interrogative suggestibility and compliance of heroin addicts on an inpatient drug unit were measured on opiates, whilst withdrawing from opiates and drug free. The interrogative suggestibility and compliance of the group of subjects as a whole did not differ significantly in these three conditions. However the results did suggest that a subgroup of vulnerable individuals may have been more suggestible when under the influence of opiates. Further work is needed to clarify these results and to aid professionals assessing fitness for interview and cases of retracted confessions.     

A Letter from the Tax Office: Compliance Effects of Informational and Interpersonal Justice

It has been argued that authorities attract greater compliance when they treat people according to principles of interactional and procedural justice. Set in the context of taxation, the present research investigates the effects on behavioral compliance of reminder letters adopting principles of informational and interpersonal fairness compared with a standard reminder notice. Study 1 with 199 students confirmed that both fairness letters were regarded as fairer than the standard letter. In Study 2, a field experiment, 2052 Australian taxpayers who had an obligation to file a tax declaration but failed to file on time were randomly sent one of the three reminder letters. The two fairness letters yielded a significantly greater compliance rate than the control letter.

The sex industry,human trafficking and the global prohibition regime: a cautionary tale from Greece

Using the concept of global prohibition regimes as an analytical point of departure, this article interrogates the development and results of the agitation campaign that relayed the new global prohibition regime against trafficking for sexual exploitation in Greece after 1995. In line with the international trend towards the issue of trafficking in the 1990s, the Greek campaign has been successful in shaping perceptions of the change in the Greek sex industry on the basis of an equation of prostitution, trafficking and transnational organized crime, and it also successfully capitalized on transnational supports to induce changes in legislation and public policy. However, a critical examination of the Greek situation suggests that there is a considerable discrepancy between the above conceptualisation and the knowledge of the issue emerging from the activities of criminal justice agencies. The examination of the general conditions of economic exploitation and social marginalization of migrants in Greece in the 1990s and after reveals significant homologies between the social organization of the sex industry and other sectors of the economy that have depended on migrant labour. This result underscores the nature of the idea of organized crime as an ideological construct acting as a diversion from more substantive paths of inquiry into the structures of national economy that bear upon the exploitation of sexual labour.

Law clinics in England and Wales: a regulatory black hole

There has been very limited consideration to date of how the regulatory environment in England and Wales impacts on university law clinics and the solicitors who run them. This paper sets out the current regulatory framework pertaining to university law clinics and explains the restrictions and limitations it poses. It highlights the current failure on the part of the regulators to meet their statutory duty to promote access to justice in relation to university pro bono services and sets out a series of recommendations as to how clinicians and regulators can secure a more certain and enabling future for clinics.     

Trade Measures and Climate Compliance: Institutional Interplay Between WTO and the Marrakesh Accords

This article examines the potential of trade measures to induce more climate-friendly policies, focusing on the relationship between global trade rules and the Kyoto climate regime. At the core of this interplay is the normative consistency of trade-related rules in the two regimes and any hierarchical relationship between them. The stronger clout of the WTO and its compulsory dispute settlement system suggest that issues involving competing claims would be referred to WTO bodies. Such bodies have so far been restrictive regarding the exceptions in WTO agreements to the general ban on embargoes and discrimination. The normative compatibility of the two regimes will also depend on their participatory interplay, specifically how they differentiate groups of actors as to rights and obligations. Non-members of WTO receive the least protection, and their vulnerability to climate-related trade measures is largely determined by their interdependence with states that consider employment of such measures. Among WTO members, the findings of a dispute settlement body would presumably differ depending on the status of the target under the Kyoto Protocol. A non-complier with Kyoto commitments would be more shielded than a non-party, because by joining the Kyoto regime a non-complier has exposed itself to regime-internal and less trade intrusive measures that should be exhausted first. A third dimension of interplay is linkage, or efforts to influence the regime interplay. To date there has only been moderate cross-agency coordination, but considerable attention is paid within each regime, including in the Millennium Round of trade negotiations, to the desirability of avoiding conflict between them.     

On the expansion of species protection in Nepal: Advances and pitfalls of new efforts to implement and comply with CITES

Abstract

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) has proven particularly difficult to implement due to the complex legal requirements that it imposes on its parties. As with many other nations, Nepal lacks national implementing legislation, which has greatly hindered compliance with the treaty's provisions in the country and, indirectly, in the region. Here we explore several case studies of actual and potential CITES violations in Nepal that have come to light in the past decade, and review new draft legislation that is designed to implement the Convention and close gaps in enforcement. We predict that some gaps will remain regarding implementation and compliance with CITES in Nepal, and make several recommendations to address these issues via rule‐making procedures during the formulation of Regulations and via the actions of the CITES Coordination Council, a provision in the draft Act that is designed to improve cross‐sectoral cooperation.     

商事登记与市场准入关系的法经济学思辨

考量商事登记与市场准入的关系,可以借助法经济学识别商事准入效率与安全的均衡性。这需要首先区别一般准入与特殊准入、民商私法与经济法之间价值定位的差异,并具化商事登记一般准入机制设置的目的及其必要性、合理性。结合对传统政府规制理论的批驳,以及对现今我国工商登记管理体制中设置过高登记门槛的反思,商事登记的制度设计应在公益与私益客观辩证关系基础上,在宏观层面的保障私权以及在最低层级上维护公共利益,并由此凸显维护公私权益衡平的现代登记理念。     

论虚假诉讼的刑法规制——基于对虚假诉讼发生与司法实践状况的实证研究

近年来,虚假诉讼案件在我国频繁发生且呈现出逐年增多的趋势,但我国刑事立法中缺乏恰当的罪名对虚假诉讼行为进行定罪,无法对其进行全面评价。虽然各地出台了大量司法性文件以识别和预防虚假诉讼,但这些司法性文件并无法改变刑法存在漏洞的事实,相反,其对虚假诉讼的罪名设定存在争议,部分规定甚至存在侵犯当事人诉讼权利的嫌疑。因此,通过确立虚假诉讼罪来规制虚假诉讼至关重要。     

立法含混的法教义学弥补：以刑法第289条为分析样本

由于现行刑法第289条规定的模糊含混,导致该条文适用过程中歧义丛生,增加了司法适用的难度。通过梳理该条的历史变迁与法益变化,从法教义学角度客观把握＂聚众‘打砸抢’＂的内涵与地位,同时运用＂拟制规定＂与＂注意规定＂分析方法来厘定刑法第289条条文性质并作出合理解释乃消除实践分歧之可行路径。     

风险社会的刑法调适——以危险犯的扩张为视角

风险社会的实质是人类在从现代技术手段获益的同时,却无法完全掌控这些手段,陷入对自身行为所可能带来的风险无法预测与控制的境地。风险社会的风险源于人的决策与行为,因此,如何有效管控人的行为,最大限度地规避与控制各种潜在风险,成为人类社会所面临的共同任务。作为社会调控最后手段的刑法也必须针对当前的风险状况及时做出回应。现行刑法基于传统的以实害犯为主的立法模式,无法有效地规制各种风险行为。危险犯的立法设计,特别是抽象危险犯的设置,能够将刑法的保护防线提前,从而达成法益保护的早期化,有利于对社会共同体的安全保障,是应对风险行为的有效处置手段。     

中国物权法草案的修改意见:总体结构与制定目的

在中国民法典制定进程中,单行法模式也是一种较为现实的选择。全国人大常委会2004年10月15日委员长会议审议稿《中华人民共和国物权法(草案)》采五编制结构,虽不失严谨,但也是作茧自缚。物权法在总体设计上应该采取较为松散的结构模式。一种可供选择的总体结构包括12章和附则,依次为:通则,所有权,关于土地、矿藏、森林、草原、江海湖泊等自然资源的使用,地役权,居住权,典权,抵押权,质权,留置权,让与担保,优先权,占有,以及施行法。作为一部单行法,物权法在第1条中规定立法目的是有必要的。草案第1条规定基本上体现了物权法的价值取向,但也有失宽泛。建议将该条修改为:“为了保护物权权利人的民事权益,明确物的归属,充分发挥物的效用,制定本法。”     

中小企业劳动资本出资行为的法律思考

中小企业在经济发展特别是高新技术行业发展中的作用已为世人所瞩目,但同时也面临向纵深发展的多重障碍。劳动资本出资可以为中小企业克服资金、技术及动力机制等方面的实际困难提供保障,这种制度在立法上的确认不但可行,而且必要。当然,劳动资本出资行为也应接受法律的规制以实现其合法化的最佳运作。     

Filial Piety in Israel: Between the Law in the Books and the Law in Action

This paper explores the main legal aspects of filial piety in Israel. Based on a socio-legal study, it traces a significant gap between the law in the books, which mandates that children support their parents financially if the latter cannot support themselves, and the law in action, which narrows this obligation to cases in which the parents must be cared for in a State nursing home. The study also highlights the relevance of religious and cultural norms in shaping filial piety in multicultural countries and thus points to the urgent need to tailor filial piety legal policies according to socially constructed, actual, and diverse filial piety perceptions and practices.     

The global stocktake: design lessons for a new review and ambition mechanism in the international climate regime

International Environmental Agreements: Politics, Law and Economics - The pledge-and-review architecture of the Paris Agreement on Climate Change has been praised as a new model of global...     

论中国外贸管理法的范式转换——全球治理与公共行政的视角

中国加入WTO旨在积极参与、有效利用多边贸易体制,分享国际贸易增长与世界经济发展的成果。本文从全球治理与公共行政视角出发,认为有必要从法律内容、法律功能、法律价值及法律实现等方面实现我国外贸管理法的范式转换。法律内容方面,实现以实体规则为导向到以程序规则为导向的转换;法律功能方面,实现防御型立法到防御型与进取型立法相结合的转换;法律价值方面,实现“公共利益为导向”到“以私人利益为导向”与“公共利益为导向”相结合的转换;法律实现方面,实现从“政府主导型”模式到“政府主导型”与“私人驱动型”相结合的转换。     

民国时期钱业习惯法与国家法的冲突——以三十年代银行立法为视角

上世纪三十年代我国加强了银行立法,以实现金融垄断。1931年《银行法》是其颁布的第一部银行法,对银行设立条件、资本额、监管体制等均采取严格主义,有一定进步性。但为将钱庄纳入垄断金融体系,该法以许多规定否定钱业习惯法,以打击其势力,体现了法律规则与习惯规则调整社会秩序的不同效力,也是阶级利益冲突在法律上的反映。从钱业习惯法与银行法的冲突,可见习惯法有其存在的合理性,能弥补国家法的缺陷,实现社会法律多元化。