"诚信"的自律与他律研究

崇尚诚信是和谐社会建设的重大问题,如何加强诚信建设,应首先对诚信的自律与他律机制进行研究,诚信的自律与他律机制的失灵,导致了我国在许多方面出现诚信危机,严重影响社会和谐.诚信的自律与他律机制的特点和失灵,既有历史文化的原因、又有思维方式的原因,同时还有现代化的原因.重构现代诚信机制须吸取先人及外国人的经验,从多方面入手揭示诚信的自律和他律.     

The work the document does: research, policy, and equity in health

At the center of the politics of health equity, in many countries and circumstances, stands a signal report of research. This article is concerned with what might be described as the architecture of such documents, including how they are produced and organized and the relationships they demonstrate with others that parallel, precede, and succeed them. The article examines how scientific and political authority is established and comments on the evidence of cross-national learning that these documents reveal. It discusses differences in how the problem of health equity is constructed in different countries and how research findings are converted into policy recommendations. It begins to trace a process of implementation by noting how these documents are referred to and written about. The argument is that the politics of health equity are expressed or realized in the documents and reports, which are its principal vehicle. This is not to claim that there is no world beyond the text or that the world somehow is a text, but that to fully understand that world we must understand the text and the work it does.     

Enabling responsible public genomics

As scientific understandings of genetics advance, researchers require increasingly rich datasets that combine genomic data from large numbers of individuals with medical and other personal information. Linking individuals' genetic data and personal information precludes anonymity and produces medically significant information--a result not contemplated by the established legal and ethical conventions governing human genomic research. To pursue the next generation of human genomic research and commerce in a responsible fashion, scientists, lawyers, and regulators must address substantial new issues, including researchers' duties with respect to clinically significant data, the challenges to privacy presented by genomic data, the boundary between genomic research and commerce, and the practice of medicine. This Article presents a new model for understanding and addressing these new challenges--a "public genomics" premised on the idea that ethically, legally, and socially responsible genomics research requires openness, not privacy, as its organizing principle. Responsible public genomics combines the data contributed by informed and fully consenting information altruists and the research potential of rich datasets in a genomic commons that is freely and globally available. This Article examines the risks and benefits of this public genomics model in the context of an ambitious genetic research project currently under way--the Personal Genome Project. This Article also (i) demonstrates that large-scale genomic projects are desirable, (ii) evaluates the risks and challenges presented by public genomics research, and (iii) determines that the current legal and regulatory regimes restrict beneficial and responsible scientific inquiry while failing to adequately protect participants. The Article concludes by proposing a modified normative and legal framework that embraces and enables a future of responsible public genomics.     

宪法在中国实施何以艰难

一部完整的宪法典至少必须解决两项攸关宪政实现的根本问题：一是谁来判断政府机关的行为是否违宪以及违宪之后的责任承担;二是公民的基本权利遭受政府行为的侵害后如何得到宪法救济。如果以此作为衡量现行宪法是否得以充分实施的标尺的话,现行宪法在当下中国的实施仍然存在着诸多问题。一部良宪之实施何以如此艰难？概括起来,其原因主要在于“宪法不是法”的认知观念尚未被打破;法官发现法律之方法机械与教条化;最高法院司法批复客观上阻碍了宪法的可诉性;社会成员普遍缺乏宪法思维以及缺乏宪法实施的制度机制。     

高校毕业生就业立法歧视研究

中国高等学校实施自主择业的毕业生就业制度的几年中,恰逢国有企业职工下岗与再就业工程,国家机关精简行政编制和事业单位裁员的人事制度改革.各地为了缓解应届高等院校毕业生进入本地就业市场的压力,制定规范性文件设置毕业院校、学习专业、英语和计算机合格证书和入学前生源地等条件的方式来限制这部分就业群体.然而,这些限制措施与宪法劳动权和劳动法规定的劳动者享有平等就业和自由选择职业权利相抵触.分析和研究这些地方规范性文件,有助于我们认识目前劳动就业中普遍存在的歧视劳动者的现象,并从立法、执法和司法上加以解决与完善.     

Actions Necessary to Prevent Childhood Obesity: Creating the Climate for Change

Childhood obesity has become a public health epidemic, and currently a battle exists over how to frame and address this problem. This paper explores how public policy approaches can be employed to address obesity. We present the argument that obesity should be viewed as the consequence of a "toxic environment" rather than the result of the population failing to take enough "personal responsibility." In order to make progress in decreasing the prevalence of obesity, we must shift our view of obesity away from the medical model (which focuses on the individual) to a public health model (which focuses on the population). At the same time, we must be sensitive to the problem of weight bias. Potential obstacles to taking a public policy approach are identified, as well as suggestions on how to overcome them.     

Unity, Diversity and the Fragmentation of International Law: How Much Does the Multiplication of International Organizations Really Matter?

It seems to be presumed by many that the simple multiplicationof international organizations (IOs) weakens the unity and integrityof international law. There is, in reality, nothing obviousin this assumption. First, there needs to be evidence of duplicationor overlaps in the various competences of IOs. Second, it needsto be proven that, in the instances in which the activitiesof IOs do overlap, such overlap translates into competition,divergence or conflict. Last, and most importantly, rival orcompeting activities must be of normative significance. Thisessay proposes to address the preliminary question which, infact, precedes and underpins all the others as regards the multiplicationof IOs and international legal unity: how do IOs matter in themaking of international law? IOs, we argue, are more shapersthan makers of international law and their multiplication istherefore not a source of increased chaos in the internationalnormative puzzle.     

法伦理学研究的时代价值

法律要具有活力或者被信仰，则必须函摄社会和历史的“魂”。五千年的文化传统无疑是我们构建有中国特色的法律体系、建设社会主义法治国家所应有的“魂”之一，而法律的“魂”则不可能被植入，只可能自然生成。因此，在社会与历史的传统、转型、现代的转换之中，如何将文化的基因纳入其中，便是法伦理学的担当与追求。     

关于利益衡量的两种知识——兼行比较德国、日本的民法解释学

德国的利益法学派所主张的作为补充法律漏洞方法的利益衡量和日本民法者所提出的利益衡量论有着很大的不同,属于两种不同的知识,但在我国却被不加区分地使用着。我国目前正展开对法学方法论的引入与讨论,究竟应该选择德国还是日本的进路,需要我们认真对待。     

Empirical analysis of current approaches to incidental findings

This paper presents results found through searching publicly available U.S. data sources for information about how to handle incidental findings (IF) in human subjects research, especially in genetics and genomics research, neuroimaging research, and CT colonography research. We searched the Web sites of 14 federal agencies, 22 professional societies, and 100 universities, as well as used the search engine Google for actual consent forms that had been posted on the Internet. Our analysis of these documents showed that there is very little public guidance available for researchers as to how to deal with incidental findings. Moreover, the guidance available is not consistent.     

Doing justice to justice

Adshead's recognition that only when taken together can the many different conceptions of justice accommodate what is called for in the particularly demanding setting of forensic mental health care, is to be applauded. Each must be honoured and built into the systems of assessment and treatment that are the tasks of the forensic psychiatrist, she demonstrates. Adshead's far‐reaching revisions could resolve much that is troubling about the present practice of forensic psychiatry. Yet how much these revisions can overcome the moral dilemmas associated with dual roles in forensic psychiatry, is not so clear.     

Legislative Voting Behavior,Seen and Unseen: A Theory of Roll‐Call Vote Selection

The empirical study of legislative behavior largely relies on roll‐call vote analysis, but roll‐call votes in many legislatures represent only a sample of legislative votes. We have good reasons to believe this sample is particularly poor for inferring party effects on legislative behavior. The selection of votes for roll call may be endogenous to exactly the characteristics of voting behavior (for instance, party cohesion) that we want to study. We must understand the roll‐call vote institution and account for its selection effects before we can draw inferences about legislative behavior from roll‐call results. This article develops a game‐theoretic model of roll‐call vote requests predicated on party leaders requesting votes to enforce party discipline. The model offers general and testable predictions about the selection process and how it affects observed and unobserved legislative voting behavior, particularly party cohesion.     

从法律制度建设看逻辑的科学理性和人文理性

任何制度保障,都是在现实的社会实践中通过制度建设逐步形成、完善的。制度建设必须体现集体思维中逻辑的精神、意义和作用,以促成和谐社会的生成。在此过程中,有几个问题需要思考。一是如何给予道义逻辑的思维必然性以现实保证;二是如何在通过制度建设,促成和谐社会生成的过程中,提高我们的人文精神;三是如何在通过制度建设,促成和谐社会生成的过程中,体会任何制度创新都有和谐社会的伦理基础;任何制度创新都是为和谐社会服务的。从而体现在制度创新中的思维方法论意义。     

Measuring intimate partner violence (IPV): you may only get what you ask for

With the goal of understanding the true extent of intimate partner violence (IPV), researchers have put tremendous effort over the past 20 years developing, revising, and assessing IPV screening instruments. The enhancements made in IPV instrumentation reflect our improved understanding of the nature of IPV. Unfortunately, as is often the case with progress, we are presently at the stage where IPV researchers have an arsenal of multiple IPV screens that are, in some cases, slightly different, whereas in others, the differences are sizeable. This article explores the evolution and variation of a sample of IPV screens. To further progress in IPV research, we must make conscious decisions concerning the best tool for our individual research. Simultaneously, we must enhance our understanding of how these IPV screening instruments overlap so that comparisons of IPV prevalence or incidence across time and population are possible.     

关于反行政垄断的立法思考

行政垄断是我国社会主义市场经济体制建设过程中的一大障碍,必须通过立法加以规制。行政垄断与经济垄断在实施主体、行为属性、法律责任、救济方式上存在诸多差异,不宜在反垄断法中进行规制,否则会使我国的反垄断法失去经济法的本质,难以与世界接轨。应构建以专门的行政法性质的《反行政垄断法》为核心的法律制度体系规制行政垄断。     

行政立法过程的利益表达、意见沟通和整合

行政法律规则需要通过沟通程序证明自己的正当性 ,即客观性 (真实性 )和主体性 (可接受性 )。通过社会学视角和手法 ,可以揭示行政立法的非正式程序和正式程序的多样性和复杂性 ,以及它们如何表达不同利益、吸纳不同意见的。在多元利益冲突的后计划时代背景下 ,政府必须在行政立法过程中调整和协调不同利益 ,既要坚持中立原则又要坚持主动原则。     

Policy,Practicalities, and PACE s. 24: The Subsuming of the Necessity Criteria in Arrest Decision Making by Frontline Police Officers

PACE, as amended by the Serious Organised Crime and Police Act 2005, establishes a complex framework of factors that police officers must consider during arrest decision making. Officers must possess a reason to arrest, it must be necessary to arrest for that reason, and they must give at least a ‘cursory consideration’ to alternatives. Based on a four‐year ethnographic study of frontline officers from two forces in Northern England, we argue that the 2005 reforms have not achieved their aims. The new regime tasks officers with undertaking a complex legal assessment prior to arrest, but officers are often confused about the necessity criteria which, moreover, is typically a minor consideration in contrast to demanding practical and policy pressures. This means that unlawful and non‐human‐rights‐compliant arrests continue to be regularly made and, equally significantly, many suspects are escaping the criminal justice system because officers are not considering arrest alternatives.     

电子警察法律问题研究

"电子警察"的使用对维护道路交通秩序、保障交通安全功不可没,然而,由于不规范执法因素的存在,导致"电子警察"获取的资料在作为证据使用时遇到了法律的挑战,这就需要尽快制定有关"电子警察"的立法.     

Reasoned ‘Balance’ in Europe's Area of Freedom,Security and Justice

This article considers how we might understand a constitutional ‘balancing’ of goods. In doing so, the article considers the EU's ‘Area of Freedom, Security and Justice’ (AFSJ) which poses the challenge as to how we balance our desire to feel secure with commitments to freedom and justice. The approach taken will be to argue that a ‘balance’ is a reasoned judgment, which must be understood in both a symbolic sense but, at the same time, also rooted in the practice of our constitutional decision making. This enables a political community to make sense of its value commitments so as to achieve a reflective balance between them. The article concludes that if the EU is to achieve an area of freedom, security and justice then it must be capable of developing a balance that can be a reasoned understanding of this constitutional commitment.     

Marital status and woman abuse theory

An area that has received insufficient attention in woman abuse studies is marital status. Although many feel that ending the marriage will end the violence, this may not be the case. An examination of National Crime Survey victimization data shows that most victims are, at the time of the interview, divorced or separated. There are reasons to believe that this is partially accounted for by the fact that many or even most women leave abusive relationships. If this is the case, then the traditional question of why women remain in battering marriages is improperly put. If most women do take appropriate steps, then we need much more information on both how women are victimized by ex-spouses and how women take active steps to improve their own lives.