应然·实然·话语：新时代坚定制度自信的逻辑意蕴

“制度自信”是新时代中国共产党基于国家制度体系和治理体系的显著优势、强大力量和治理效能而提出的重要命题。这一命题体现了制度自视与制度自信之间的逻辑关系,展现了中国之治与中国之制之间的辩证逻辑,反映了制度认同与制度自觉的价值要求。从价值应然逻辑来讲,作为价值应然的制度自信具有先验教育意义、价值引导意义和政治规范意义,从理念认识、价值导向、政治原则视角理解制度自信,突出了社会主义制度在不同属性制度中的绝对优势。从经验实然逻辑来讲,中国特色社会主义制度在中国近现代历史中的比较优势,体现了制度自信在时间范畴上的制度属性优势;中国特色社会主义制度在社会主义发展史中的比较优势,体现了制度自信在空间范畴上的制度形态优势;中国特色社会主义制度在人类社会发展史中的比较优势,体现了制度自信在文明范畴上的制度路径优势。从话语表达逻辑来讲,制度自信话语是新型制度体系、新型治理体系和新型道路的表达媒介,具有阐释功能、传播功能、教育功能。制度自信话语是制度自信理论的阐释介质,制度自信认同影响制度自信话语现实建构,制度自信话语对制度自信理念起反塑作用。     

论保安处分：制度、反思与重构

保安处分制度源于19世纪的欧洲,具体包括决定制度和执行制度两方面的内容.目前,我国的保安处分制度一定程度上存在着决定制度合法性和执行制度合理性的问题.本文从保安处分的基本制度入手,分析了我国保安处分制度本土化和保安处分移植过程中存在的问题,在此基础上对保安处分制度进行了重构.     

试论法律规避制度的终结

法律规避作为法律现象,是客观存在的,然而法律规避制度在实践中遭遇了一系列的困境,本文从现行法律规避制度的理论和实践出发,分析了实践中的困惑,然后探讨废除法律规避制度的必要性和可行性,并探讨了终结法律规避制度后相关制度的设计。     

暗合与差异——论亲亲相隐与证人作证义务

亲亲相隐制度是我国古代法律的重要制度,对亲亲相隐制度的优劣,历来争论颇多,尤其在刑事立法领域。本文一方面梳理了亲亲相隐制度的渊源,从词源的角度分析了该制度的含义,并分析了该制度产生的立法背景;另一方面,介绍了现行证人做证义务的立法规定和该制度产生的立法背景,试图从立法背景这一视角审视这两制度的暗合和差异。     

以制度建设引领“中国之治”

“制度”一词,出自《易·节》。“天地节,而四时成。节以制度,不伤财,不害民。”这强调了以制度来规范事物、秩序。制度是治国之重器。中国的根本制度是社会主义制度。党的十九届四中全会就我国的国家制度和国家治理问题进行了专题研究,通过了《中共中央关于坚持和完善中国特色社会主义制度推进国家治理体系和治理能力现代化若干重大问题的决定》(以下简称《决定》),总结了中国共产党建党以来和党的十八大以来,“中国之治”的伟大成就,并揭示了伟大成就背后的制度优势一中国特色社会主义制度。     

基于内生博弈规则制度观的制度效率分析

制度差异与经济绩效存在着密切的关系.忽视制度的内生性特征和制度之间的相互依存性,是导致新制度效率低下的根源所在.青木昌彦提出的内生博弈规则制度观,阐明了制度差异和经济绩效的关系,揭示了制度之间应当如何相互协调和配合,可以帮助我们认识我国制度效率低下的主要原因.基于内生博弈规则制度观,应当正确选择提高我国制度效率的有效路径.     

民国北京政府与南京国民政府行政诉讼制度比较

行政诉讼制度是现代法治国家不可或缺的法律制度,民国建立后,北京政府和国民政府分别建立了各自的行政诉讼制度。两个不同时期的行政诉讼制度在审判组织、当事人、诉讼程序等多个方面存在着差异,其各自诉讼实践都取得了较为显著的成效。与北京政府行政诉讼制度相比,国民政府行政诉讼制度进一步确立了特别机关审判模式,创设了司法性审判机关,建立了国家赔偿制度、判例制度、再审制度以及诉愿前置制度,推动了行政诉讼制度的发展。民国时期行政诉讼经验对当前中国行政诉讼制度改革具有重要参考价值。     

浅析我国刑事诉讼管辖权异议制度的构建及其意义

刑事诉讼管辖权异议制度是刑事诉讼管辖制度的重要组成部分,在保障人权、实现程序正义等方面具有重要的现实意义,虽然我国的《刑事诉讼法》对刑事管辖制度进行了诸多规定,但并没有明确规定管辖权异议制度这一同样具有重要制度价值的内容.为此,本文结合以往研究成果和工作实践经验,对我国管辖权异议制度的现状和构建这一制度的作用和意义进行了分析和讨论,并就构建这一制度时应当明确的几点问题提出了建议.     

用制度为自由心证保驾护航——以自由心证与法定证据比较为视角

自由心证是连接抽象的立法公正和具体的司法公正的桥梁,但我国立法中没有规定自由心证,学理上对该原则也曾一度持批评态度。本文在肯定应当建立我国民事诉讼自由心证制度的基础上,通过自由心证和法定证据制度的比较分析,初步构建了自由心证制度合理性之保障体系,进一步明确了自由心证制度合理运行的制度条件,并对与自由心证制度相关的、在功能上制约或保障自由心证制度的若干制度的完善提出了意见。     

浅述公司法人的人格否认制度

现代公司法律制度无不确立了公司法人人格制度,这一制度的建立对于鼓励投资、发展经济起到了重要作用。然而公司法人人格制度往往成为股东降低风险,获取利益的工具,公司法人人格否认制度呼之欲出。因此,我国现行《公司法》也确立了公司法人人格否认制度,本文在此对这一制度做了简要的分析和探讨。     

The removal of institutional impediments to migration and its impact on employment,production and income distribution in China

The major objectives of this article are to identify the inter-regional and inter-sector wage differentials that are attributed to the institutional restriction on labor mobility (the hukou system), and then to simulate the impact that the removal of the restriction would have on the Chinese economy. Our simulation results reveal that the removal of the hukou system would be accompanied by a massive migration to cities. The degree by which the labor force would decrease with the removal of the hukou system is higher in rural industry than in agriculture, suggesting that the absence of job qualifications would prevent the vast majority of farmers from changing their occupations. Should off-farm employment opportunities in cities for rural migrants be rationed, the elimination of the hukou system would exacerbate rather than cure the problem of unemployment in urban labor markets, which would adversely affect distributional consequences at the national level.

The Ubiquitous Family Environment: Examining Emotional Insecurity in the Family and Adjustment in School

The present study examines adolescents' emotional insecurity and problem behaviors at school. Adolescents (n = 280; 136 boys, 144 girls, Median age = 13) and their parents reported on adolescents' emotional security and adjustment problems. Adolescents' teachers (n = 240) also reported on adolescents' school adjustment. Results support that emotional insecurity is related to adjustment problems in the home and at school. Emotional insecurity in the family system was a better predictor of adolescents' adjustment problems than emotional insecurity in the interparental relationship. Findings have implications for teachers, parents, school administrators and policy‐makers, as adolescents' problem behaviors at school can be explained by their emotional insecurity.     

Habeas Corpus as <Emphasis Type="Italic">Jus Cogens</Emphasis> in International Law

For hundreds of years procedural rights such as habeas corpus have been regarded as fundamental in the Anglo-American system of jurisprudence. In contemporary international law, fundamental norms are called jus cogens. Jus cogens norms are rights or rules that can not be derogated even by treaty. In the list that is often given, jus cogens norms include norms against aggression, apartheid, slavery, and genocide. All of the members of this list are substantive rights. In this paper I will argue that some procedural rights, crucial for the fair functioning of criminal proceedings, such as habeas corpus, should also have the status of jus cogens norms. I will begin by explaining what it means for a right to have jus cogens status. And I will follow this with a defense of having procedural rights like habeas corpus added to the list of jus cogens norms. I will then rehearse some of the debates about the jus cogens status of procedural rights in the European Commission on Human Rights. At the end of this paper, I will look at the attempts to deal with the abuses at Guantanamo by the American Commission on Human Rights, and by the US and Australian courts, as a way to understand why there needs to be a stronger support for habeas corpus than is today provided by regional courts.     

Overview of: “Getting the Law Involved a Quasi-Experiment in Early Intervention Involving Collaboration Between Schools and the District Attorney's Office”

Research Summary Precursors to serious and chronic delinquency often emerge in childhood, stimulating calls for early interventions. Most intervention efforts rely solely on social service programs—often to the exclusion of the juvenile justice system. The juvenile justice system has been reluctant to become involved in the lives of relatively young children fearing net widening or further straining resources that could be used for older youth with documented delinquency histories. We report here the results of an early intervention program sponsored by and housed in a district attorney's office in Louisiana. Using a quasi-experimental design, we examined outcomes associated with program involvement as well as whether the obvious involvement of the prosecutor's office was associated with further reductions in problem behavior.

• 1 : The results revealed that significant reductions in problem behaviors of young children could be attributed to program participation.
• 2 : The obvious involvement of the district attorney's office, however, was associated with limited, albeit significant, reductions in specific problem behaviors.
• 3 : These findings show that successful early intervention efforts can be made part of the juvenile justice system and that in some limited situations prosecutorial involvement can result in positive outcomes.

Policy Implications The expansion of early intervention programming into the juvenile justice system offers opportunities to address early problem behavior. Our study and its results have the following policy implications.

• 1 : Closely coupled partnerships between schools and the juvenile justice system can effectively address, mitigate, and perhaps prevent an early onset of antisocial behavior.
• 2 : Even so, coupling early intervention efforts to the mission of the juvenile justice system warrants debate. Net-widening, resource diffusion, and the potential for officials to rely too heavily on the deterrent characteristics of the justice system represent serious threats to the integrity of effective early intervention programs.
• 3 : We suggest substantial debate and consideration is given before coupling early intervention efforts to the juvenile justice system.

     

The Law‐Before: Legacies and Gaps in Penal Reform

This article introduces the law‐before as an analytic tool for enhancing explanations of legal reform. Based on an integration of neo‐institutional law and organizations studies and punishment studies of local variation in penal policy, I define the law‐before as the past organizational practices and power arrangements that precede law‐on‐the‐books and shape present day implementation. I utilize the law‐before as a heuristic to investigate the legacy effects of variations in local practice on the implementation of the prison downsizing law, AB 109, or “Realignment,” in California. I analyze organizational documents produced by county practitioners in the aftermath of AB 109's enactment in 2011 as empirical windows into how actors shape the meaning of law in local settings. I find that practitioners in counties with divergent historical imprisonment patterns enact four processes (overwriting or underwriting law, selective magnification, and selective siting) to arrive at distinct interpretations of AB 109 as mandating system‐wide decarceration or the relocation of incarceration from state prisons to county jails. Although my data do not speak to the ultimate implementation of AB 109, the processes revealed have practical implications for the reform goal of decarceration by rationalizing distinct resource allocations at an early stage in the implementation process.     

Distribution of the Minutiae in Hypothenar Palm Prints in Slovak Adults: Indications for Personal Identification

Minutiae are small distinguishing features found along every ridge flow, which make each friction ridge print unique. The most common friction ridge prints found at the crime scene are fingerprints; therefore, the most of the minutiae studies are focused exactly on this kind of prints. The authors believe that further examination and enlargement of the palm print database could result in better use of the palm prints for personal identification. We analyzed a total of 160 palm prints from 40 females and 40 males aged between 18 and 70 years from Slovakia. For the evaluation of the minutiae, the area of the hypothenar had to be marked out. The classification of the minutiae used for this study was based on a modified version of the classification system using the total of 13 types of minutiae. The frequency of every minutiae type was calculated and, using the chi-square test with Yates's correction, bilateral and sex differences were assessed. The relationship between the different types of minutiae was examined with Pearson's correlation test. During the initial phases of the identification process, the focus should be on the least common types of minutiae (Y or M and return), which were found not to correlate; thus, their mutual occurrence is random (e.g., overlap—Y or M, crossbar—return, or Y or M—dock). The results of the present study show which specific minutiae types are the most suitable for personal identification. These findings may be beneficial in more effective outcome of the identification process.     

Qualification and Disqualification in Rape Cases

Between 1946 and 1950, the police in Stockholm interrogated almost 150 men about their involvement in alleged rapes and attempted rapes. The results of these investigations eventually led to seventeen prosecutions and eleven convictions. It was not easy to convict someone of rape. However, a consequence of the way the court operated was also that only certain men could be convicted, only certain women regarded as reliable witness, and only certain kinds of attack regarded as plausible. The question of whether the alleged crime was considered possible to prove was dependent upon who reported whom for what. For the complainants it was a matter of qualifying for inclusion within the protection of the law. But what appeared as a rejection of someone's credibility, was in actual fact a result of a prior rejection of the individual's person and character. From the point of view of the legal system, some individuals were more fitted than others for the role of credible victim or likely offender. The sexually immoral woman and the man at the mercy of his sexuality were both in danger of having their credibility questioned: the former a poor victim and the latter all too suitable an offender.     

‘Wayward Girls and Wicked Women’: Two Centuries of ‘Semi-Penal’ Control

This paper explores the way in which unruly or `deviant' women have historically been subjected to various strategies and mechanisms of control, designed to regulate and reform them back to the acceptable and appropriate standards of femininity from which they were perceived to have strayed. In particular the way in which `semi-penal' institutions were utilised for this purpose is examined. It is argued that `semi-penal' institutions such as refuges, reformatories and homes, occupied a unique position within the social control continuum, somewhere between the formal regulation of the prison and the informal control of the domestic or communal sphere. What made them particularly unique was the way in which they managed to combine both formal and informal methods of control in order to produce feminising regimes, aimed at reforming recalcitrant women into respectable, gendered subjects. In addition, these institutions had the effect of `widening the net' of control for women, establishing an all-encompassing system of surveillance which was at once punitive and reformative. To facilitate this analysis, five groups of women have been identified; prostitutes, criminals, the `wayward', inebriates and the `feeble-minded'. The specific methods utilised to control and reform each of these groups will be discussed along with the themes of continuity which serve to synthesize the history of the treatment of such women. This revised version was published online in August 2006 with corrections to the Cover Date.     

Identifying possible sources of inmate crowding in U.S. jails

This note presents results from an aggregate-level study of several possible correlates of inmate crowding in county jails during 1983 (n=505) and 1988 (n=522). Findings revealed that jurisdiction variables (court caseload, degree of urbanism) and state variables (sentencing practices, degree of prison inmate crowding) are at least as significant as jail variables (type of standards, frequency of inspections, enforcement system for standards, inmate population composition) for predicting the degree of inmate crowding. This suggests that policies designed to reduce crowding should be sophisticated enough to account for the possible effects of all three groups of variables.     

THE APPRENDI‐BLAKELY CASES: SENTENCING REFORM COUNTER REVOLUTION?

Recent Supreme Court decisions have extended jury trial rights and beyond‐reasonable‐doubt proof standards to certain sentence‐enhancement facts. The first two cases, Apprendi v. New Jersey and Ring v. Arizona, were narrow in scope and relatively uncontroversial. But Blakely v. Washington marked a substantial expansion of the rationale and scope of Apprendi, and threatened to invalidate entire sentencing reform systems, both legally‐binding guidelines of the type at issue in Blakely and it's sequel, Booker v. United States, and statutory determinate sentence systems like the one invalidated in Cunningham v. California. Each of these decisions has potential effects not only on sentencing severity and disparity in the cases controlled by that decision, but also on prosecutorial, legislative, and sentencing commission measures designed to comply with the decision, avoid it, and/or mitigate its impact. Field resistance and avoidance measures are likely to be stronger in jurisdictions where the existing sentencing system enjoyed broad support; in such jurisdictions, resistance may be particularly strong to the more controversial Blakely ruling. Impact assessments must therefore carefully distinguish the separate impacts of Apprendi and Blakely in each jurisdiction being studied, and the extent of support for the existing sentencing system. Such assessments should also examine pre‐existing trends and other independent sources of change; leadership by sentencing commissions or other officials in crafting responsive measures; structural and other features of the sentencing system which render compliance more or less difficult; and second‐stage effects, on sentencing, prosecutorial, or sentencing policy decisions, that reflect the prior compliance, avoidance, and mitigation measures adopted in that jurisdiction. The greatest long‐term effects may be on prosecutorial, legislative, and commission decisions, rather than on sentencing outcomes.