Criminal law and behavioral law and economics: observations on the neglected role of uncertainty in deterring crime

Criminal sanctions are usually public, stable and predictable.In contrast, the practices governing the determination of theprobability of detection and conviction reinforce uncertainty.We invoke psychological insights to illustrate that criminalsprefer a scheme in which the size of the sentence is uncertainwhile the probability of detection and conviction is certain.Consequently, the choice to increase certainty with respectto the size of the sentence and to decrease certainty with respectto the probability of detection and conviction can be justifiedon the grounds that such a scheme is disfavored by criminalsand consequently has better deterrent effects.     

Explaining the process of change taking place in legal rules and social norms: The cases of institutional economics and new institutional economics

This paper deals with the phenomenon of institutional change and has been conceived as an attempt to answer the following question: Can we retain theimage of institutional change contained in a theory when we replace a methodological foundation on which the theory was built by a different and alternative one? For an answer to be developed, special attention is paid to the contributions made by institutional economists (IE) and those made by transaction cost—new institutional economists (NIE). The question clearly shows that it is a paper on applied methodology rather than a survey on institutional change contributions. Because of that, its main purpose is not to increase our knowledge about the characteristics of real changes in legal rules and social norms, their causes, their processes, or their effects, though several examples are given of those institutionalist and new institutionalist contributions that analyze those changes. Our purpose is to investigate the way in which these two groups of economists approach the object of analysis already mentioned. Our conclusion will be that institutionalist and new institutionalist contributions are built on two different and mutually exclusive approaches because their respective methods of analysis (holism versus methodological individualism) are different and, above all, because they build their respective analyses on some concepts that are mutually exclusive (concepts showing power or nonvoluntary influences versus concepts showing voluntary transactions). Their analyses contain different and mutually exclusiveimages of the changes taking place in legal rules-formal institutions and social norms-informal institutions. Some comments about the limitations of the holist method of analysis are made in the paper.     

论“民营化”与“公共化”的公法统合及条件

公共服务合同外包是民营化发展到第二阶段最为主要的表现形式,此种类型的民营化包含着经济学与公法上的双重价值,单纯依靠市场竞争已不足以实现其复合的责任目标。当合同存在较大"剩余权力",或者合同的消费者为弱势群体之时,有必要将公法规则扩展适用于与政府签订合同的私人主体,以维护合同外包中的公法利益。此种适用将导致"民营化"与"公共化"的统合,这亦是民营化发展的趋向之一。     

Health economics: a report on the field

This study documents who health economists are, what they do, and what they think about professional and policy issues. Using primary data obtained through a mail survey of 518 health economists, we found that health economists are well trained by the standards of their profession. Most are employed in noneconomics departments in universities, where they spend their time very differently from their cousins in economics departments. There is a clear dichotomy in policy views among health economists. The characterization of the field as composed of "narrow" neoclassicists and "broad" eclecticists is supported by our data.     

Restorative justice in the Basque peace process: some experiments and their lessons

This paper contributes to the literature that analyses application of restorative justice in transitional societies. It examines recent attempts to employ restorative justice in the Basque peace process following ETA’s ceasefire. Using the Basque experience, it discusses some of the hidden dangers and tensions which arise when attempts are made to utilize ‘traditional’ restorative justice approaches and assumptions underlying them in transitional settings. One of the initiatives under discussion used a well-established restorative justice method of mediation between individual victims and offenders and attempted to transplant it without alteration from the context of ‘ordinary’ crime to the context of ‘political’ crime. It is argued that the scale and complexity of the conflict that looms behind individual offences in question renders certain assumptions and practices of ‘traditional’ restorative justice questionable both ethically and politically. Several other initiatives that have emerged recently in the Basque peace process are discussed which do not take the ‘classic’ form of restorative justice, yet values underpinning them fit well with the restorative justice philosophy. They might suggest a more promising direction for the development of restorative justice in the aftermath of mass violence.     

Privatization in Poland: Politics,Society, and the Law*

The paper presents the beginning and the initial results of the process of privatization in Poland. Starting from the summer of 1990 it examines the political debate on the Privatization Act and corresponding social reaction. It shows how the society answers such important questions as: who, and on what principles, is to take over the hitherto state-owned property? The next question is on the content of the “social contract on privatization”: the legal starting point and the first empirical results. It appears that the most visible social effect was the growth in the inequalities between workers and the elites of the society. The role of workers in the process of transformation is also of special interest. Finally, the paper examines the role of privatization law, which on the one hand presents a compromise between the ruling class and the society and on the other hand has been replaced by current privatization policy.     

德国水务私有化及其监管

德国水务事业改革是城市公用事业改革的重要组成部分,理论基础为给付行政模式由直接走向间接以及自由化和私有化理论,实践模式主要有企业管理或运营者模式和特许经营模式。从改革的经验看,政府监管体制的保障是私有化改革非常重要的方面。我国推行公共行政民营化,在借鉴德国经验时,既要注意事务分配、公权力调整、监管目标确定等一般性问题,还应当注意基准评估制度以及供水业管网和经营相分离的具体制度。     

公用事业民营化管制与公共利益保护

当前,各国政府在公用事业领域普遍采取了民营化的改革措施。民营化倡导私人部门替代公共部门承担社会公共产品和服务的供给功能,借以提升公共产品和服务的品质和质量。民营化背景下,政府对公用事业行业的管制手段和方式发生了明显变化。公用事业管制的价值内核是公共利益的维护和保障。公用事业管制的行政行为方式主要是行政特许。基于公益保障的理念基准,行政许可的制度塑造应该从保护计划经济下的垄断行业利益转变为民营化背景下的公益保障价值基准。同时,为了使公用企业有效承担起公益保障的责任,应该将公用企业纳入到行政主体范畴中来,使其承担相应的公法义务,避免政府通过民营化方式规避其传统的公法义务。     

Analysis on the Path of Right Privatization in Mineral Resources Lawmaking

整体看来,我国的矿产资源法体系是一个包括行政法、民法和刑法规范的复合体,透射出的主要是公法色彩,无法满足市场经济条件下社会经济对矿产资源开发利用的要求.为此,矿产资源立法中的私权化和矿权的市场化进路不失为求解之道.如果能走得更远,则制定系统的《矿权法》亦未尝不可.     

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.     

刑法私法化:现实图景与理论空间

大体上,刑法私法化是指在以纯粹公法建构的刑法中引入私法的理念、原则与方法,以实现在刑事法治框架内的犯罪治理多元化。刑法私法化在刑事立法和司法中均有显性体现,其蕴涵了恢复正义、经济效益等价值追求,如此现象的产生既有刑法之内的原因驱动,也有刑法之外的因素使然。尽管刑法私法化在一定程度上冲击了传统刑法理论及其适用范式,但其并未走向真正的对立面。传统刑法理论中犯罪的法益侵害性、消极的责任主义原理以及罪刑法定、罪刑相适应等刑法基本原则,均为刑法私法化提供了充分的理论空间。     

国企民营化存在的风险及法律对策

按照国有经济“有进有退”的战略方针 ,一大批国有企业从相当一部分行业中退出已成为国有企业改革的重要任务之一。而要完成这项任务在具体操作上就是要使数量巨大的国有企业实行民营化改革。拟就国企民营化所产生的风险 ,从其产生的原因入手进行分析归纳 ,并提出相应的法律对策     

矿产资源立法的私权化进路分析

整体看来，我国的矿产资源法体系是一个包括行政法、民法和刑法规范的复合体，透射出的主要是公法色彩，无法满足市场经济条件下社会经济对矿产资源开发利用的要求。为此，矿产资源立法中的私权化和矿权的市场化进路不失为求解之道。如果能走得更远，则制定系统的《矿权法》亦未尝不可。