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1.
仲裁第三人的法理基础与规则制定 总被引:2,自引:0,他引:2
仲裁第三人是仲裁实践中的一个突出问题,对其进行学理分析并制定相应规则颇为值得研究。仲裁第三人与诉讼第三人以及“仲裁协议效力扩张论”既有联系,又存在区别。在界定仲裁第三人概念时,除考虑第三人与仲裁案件在实体法上的牵连关系外,亦应结合仲裁的特点,将当事人的意思表示纳入考量范围,以弥补“仲裁协议效力扩张论”之不足。合同相对性原理的例外规则、仲裁制度的价值取向、“意思自治的历史发展趋势以及仲裁的制度特点均为第三人参加仲裁提供了法理基础。在现行的仲裁法框架下,通过直接立法模式完全可以纳入仲裁第三人。 相似文献
2.
谈国际商事仲裁的法律适用问题 总被引:1,自引:0,他引:1
在国际商事仲裁中,法律的选择和适用是一个很关键的问题,它直接关系到裁决的效力及其承认与执行.本文将结合有关仲裁法律、规则、实践,谈谈国际商事仲裁的法律适用问题.国际商事仲裁的法律适用,包括仲裁程序法的适用和实体法的适用两个方面.一、关于程序法的适用问题仲裁程序法在许多学术著作中被称为仲裁法(Icrarbirri),意指支配仲裁的法律.各国仲裁程序法不尽相同,但都是有关国家制定的可用以控制仲裁或在当事人无约定时可对仲裁起到协助补充作用的法律.仲裁程序除包括仲裁庭进行仲裁的程序规则以外,主要还包括:仲裁协议… 相似文献
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……四、撤销仲裁裁决案件性质问题的学理分析……(三)撤销仲裁裁决之诉之性质———程序法上形成之诉通过前文的分析和论述,笔者认为撤销仲裁裁决的请求完全可以定位为一种诉,即设立撤销仲裁裁决之诉。同时,笔者认为撤销仲裁裁决之诉在性质上为前文所介绍的大陆法系学理中已经进行论述的程序法上的形成之诉,具体理由如下:第一,正如前文所述,应该在观念上和立法上确立“撤销仲裁裁决之诉”这一概念和救济制度,将撤销仲裁裁决的请求纳入到“诉”的范畴内,只有这样才能使当事人享有作为民事争议的主体而向法院提起诉讼的依据,同时也可以促使国… 相似文献
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国际商事仲裁程序法(以下简称仲裁程序法)是指支配种裁程序的法律规范的总称。仲裁程序法的适用是国际商事仲裁领域中一个颇具争议论题,由于国际商事仲裁无论从仲裁员的选任还是仲裁地的选择方面都和诉讼有不同之处:仲裁员对争议的管辖权和裁判源于当事人的自主选择,仲裁地的选择和确定可能完全是出于对该地便利及中立地位的考虑,争方本身未必与该地有实质性联系,所以“诉讼程序依法院地法”,这种单纯依靠空间连接因素确定应适用的法律的方法,并不能绝对推广用到仲裁领域。在国际商事仲裁中,当事人及仲裁庭将耐如何适用程序法的问题。各国对此的立法和司法实践不尽相同,归纳起来主要有以下三种做法。 相似文献
6.
目前我国关于仲裁第三人的理论比较混乱,这些理论大都混淆了仲裁第三人同仲裁当事人变更、合并仲裁、仲裁协议第三人这几个概念的关系,因此有必要进行澄清,并将仲裁第三人在理论体系上给予准确定位。同时,本文经分析认为,从域外直接引进的刺破公司面纱、集团公司、第三方受益人等理论都不是针对仲裁第三人问题的理论,学界在这一问题上存有重大误读。 相似文献
7.
论仲裁中的第三人问题 总被引:1,自引:0,他引:1
仲裁作为一种非诉讼的争议解决方式,具有高度的契约性和自治性,这就决定了仲裁在很大程度上排斥第三人。但由于仲裁当事人之间实体权利义务关系的交叉性、重叠性,使得当事人之间的争议又具有相互牵连的特点。因此,订立仲裁协议的原始当事人之间的争议牵涉到其他人的情况不可避免地会发生,仲裁活动中客观上存在着第三人问题。本文将对仲裁协议和仲裁程序对第三人的效力进行分析。 相似文献
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《政法学刊》2019,(6):57-66
股东投资渴求营商环境法治化,但现实却折射出巨大落差,"南华公司案"即是例证。在公司与第三人就争议解决方式约定仲裁的前提下,当控股股东或董事等与第三人间存在关联关系或其他利益关系而致公司怠于主张权利时,公司与第三人间的纠纷处理必然陷入僵局。在此情形下,股东是否有权启动仲裁程序,法院、仲裁机构均存在对立观点,这反映了营商环境的实然尴尬。经由对《中国人民共和国公司法》第一百五十一条之扩张解释,股东派生仲裁制度能缓解此尴尬局面。此外,利益衡量理论、"公平合理期待"原则、代位权理论、仲裁协议扩张理论能进一步为股东派生仲裁提供理论支撑。未来我国立法应明确承认股东派生仲裁制度。在实体法方面,启动股东派生仲裁需满足公司与第三人之间存在有效仲裁协议、纠纷确系仲裁条款约束之事项、主观上需有"善意"并灵活借鉴股东派生诉讼之条件;在程序法方面,股东应竭尽内部手段,公司宜与股东同列为仲裁申请人,且应注意仲裁员之选择、做好诉讼与仲裁的程序转接、明晰仲裁费用的承担问题。 相似文献
10.
试论程序法与实体法的辩证关系——评“法即程序”之谬 总被引:8,自引:0,他引:8
试论程序法与实体法的辩证关系——评“法即程序”之谬杨建顺刘连泰在中国现代行政法学研究中,面临着一个复杂的哲学问题,即过程与结果、程序与实体的关系与地位的问题。众所周知,行政法上的合法性原则,既要求符合实体法,又要求符合程序法。这样看来,程序和实体并重... 相似文献
11.
Sthaneshwar Timalsina 《Journal of Indian Philosophy》2009,37(4):367-382
The concept of avidyā is one of the central categories in the Advaita of Śaṇkara and Maṇḍana. Shifting the focus from māyā, interpreted either as illusion or as the divine power, this concept brings ignorance to the forefront in describing duality
and bondage. Although all Advaitins accept avidyā as a category, its scope and nature is interpreted in multiple ways. Key elements in Maṇḍana’s philosophy include the plurality
of avidyā, individual selves as its substrate and the Brahman as its field (viṣaya), and the distinction in avidyā between non-apprehension and misapprehension. A closer investigation shows that Maṇḍana is directly influenced by Bhartṛhari’s
linguistic non-dualism in developing the concept of avidyā. This study also compares other key constituents such as
vivartta and pariṇāma that are relevant to the analysis of avidyā. As the concept of counter-image (pratibimba) emerges as a distinct stream of Advaita subsequent to Maṇḍana, this study also compares the application of pratibimba in the writings of Bhartṛhari and Maṇḍana. 相似文献
12.
David Mellins 《Journal of Indian Philosophy》2007,35(3):227-251
In his twelfth century alaṃkāraśāstra, the Candrāloka, Jayadeva Pīyūṣavarṣa reverses the sequence of topics found in Mammaṭa’s Kāvyapr-akāśa, an earlier and immensely popular work. With such a structural revisionism, Jayadeva asserts the autonomy of his own work
and puts forth an ambitious critique of earlier approaches to literary analysis. Jayadeva investigates the technical and aesthetic
components of poetry in the first part of the Candrāloka, prior to his formal semantic investigations in the latter half of the text, thus suggesting that aesthetic evaluations of
poetry beneficially inform scientific investigations of language. Jayadeva’s organization of his chapters on the semantic
operations, moreover, intimates that the study of suggestive and metaphoric functions of language clarifies our understanding
of denotation, which is conventionally understood to be the primary and direct path of verbal designation. 相似文献
13.
Douglas Osto 《Journal of Indian Philosophy》2009,37(3):273-290
This article argues for a new interpretation of the Sanskrit compound gaṇḍa-vyūha as it is used in the common title of the Mahāyāna text the Gaṇḍavyūha-Sūtra.The author begins by providing a brief history of the sūtra’s appellations in Chinese and Tibetan sources. Next, the meanings
of gaṇḍa (the problematic member of the compound) are explored. The author proposes that contemporary scholars have overlooked
a meaning of gaṇḍa occurring in some compounds, wherein gaṇḍa can mean simply “great,” “big” or “massive.” This general sense is particularly common in the compound gaṇda-śaila (a “massive rock” or “boulder”) and is found in such texts as the Bhāgavata Purāṇa, the Harivaṃśa and the Harṣacarita. Following the discussion of Gaṇḍa, the author examines the term vyūha (“array”) as it is used in the Gaṇḍavyūha-sūtra. The article concludes with the suggestion that a more appropriate translation of the Gaṇḍavyūha-sūtra would be “The Supreme array Scripture.” 相似文献
14.
Luminol, leuchomalachite green, phenolphthalein, Hemastix, Hemident, and Bluestar are all used as presumptive tests for blood. In this study, the tests were subjected to dilute blood (from 1:10,000 to 1:10,000,000), many common household substance, and chemicals. Samples were tested for DNA to determine whether the presumptive tests damaged or destroyed DNA. The DNA loci tested were D2S1338 and D19S433. Leuchomalachite green had a sensitivity of 1:10,000, while the remaining tests were able to detect blood to a dilution of 1:100,000. Substances tested include saliva, semen, potato, tomato, tomato sauce, tomato sauce with meat, red onion, red kidney bean, horseradish, 0.1 M ascorbic acid, 5% bleach, 10% cupric sulfate, 10% ferric sulfate, and 10% nickel chloride. Of all the substances tested, not one of the household items reacted with every test; however, the chemicals did. DNA was recovered and amplified from luminol, phenolphthalein, Hemastix, and Bluestar, but not from leuchomalachite green or Hemident. 相似文献
15.
In the study of Buddhism it is commonly accepted that a monk or nun who commits a pārājika offence is permanently and irrevocably expelled from the Buddhist monastic order. This view is based primarily on readings
of the Pāli Vinaya. With the exception of the Pāli Vinaya, however, all other extant Buddhist monastic law codes (Dharmaguptaka, Mahāsāṅghika, Mahīśāsaka, Sarvāstivāda and Mūlasarvāstivāda)
contain detailed provisions for monks and nuns who commit pārājikas but nevertheless wish to remain within the saṅgha. These monastics are not expelled. Rather, they are granted a special status known as the śikṣādattaka. In this paper I explore the rules. concerning pārājika penance and the śikṣādattaka with specific regard to monastic celibacy. Given that five out of six extant law codes recognise this remarkable accommodation
to the rule of celibacy, I argue that we must look to Vinayas other than the Pāli Vinaya if we are to arrive at a nuanced and representative view of Indian Buddhist monasticism.
Grant me chastity and continence, but not yet. Augustine of Hippo (354–430 C.E.)相似文献
16.
Huntington (2007); argues that recent commentators (Robinson, 1957; Hayes, 1994; Tillemans, 1999; Garfield and Priest, 2002)
err in attributing to Nāgārjuna and Candrakīrti a commitment to rationality and to the use of argument, and that these commentators
do violence to the Madhyamaka project by using rational reconstruction in their interpretation of Nāgārjuna’s and Candrakīrti’s
texts. Huntington argues instead that mādhyamikas reject reasoning, distrust logic and do not offer arguments. He also argues
that interpreters ought to recuse themselves from argument in order to be faithful to these texts. I demonstrate that he is
wrong in all respects: Nāgārjuna and Candrakīrti deploy arguments, take themselves to do so, and even if they did not, we
would be wise to do so in commenting on their texts. 相似文献
17.
Alysa Levene 《The History of the Family》2013,18(2):67-79
This article traces new cycles of interest in past children as distinct from past childhood. Recent work highlighting that a conceptualisation of childhood existed even in periods with few written records closes the chapter begun by Philippe Ariès in 1960. Instead, there has been a new surge of interest in children on the edges of family life, as well as children in similarly liminal positions between the worlds of adults and children: runaways, delinquents and orphans. Several themes in the literature are identified, based on the conflicting ideas of ‘body/mind’, ‘victim/threat’, ‘needs/rights’. It is noted that researchers are using more imaginative ways of reaching the lived experience of children than the family or institutional framework, and that an increasing link is drawn between historical and modern concerns such as child abuse and the care of ‘at risk’ children. 相似文献
18.
Valerie Stoker 《Journal of Indian Philosophy》2007,35(2):169-199
This article explores the way in which Madhva (1238–1317), the founder of the Dvaita Vedānta system of Hindu thought, reformulates
the traditional exegetic practice of nirukta or “word derivation” to validate his pluralistic, hierarchical, and Vaiṣṇava reading of the Ṛgvedic hymns. Madhva’s Ṛgbhāṣya
(RB) is conspicuous for its heavy reliance on and unique deployment of this exegetical tactic to validate several key features
of his distinctive theology. These features include his belief in Viṣṇu’s unique possession of all perfect attributes (guṇaparipūrṇatva)
and His related conveyability by all Vedic words (sarvaśabdavācyatva). Such an understanding of Vedic language invokes the
basic nirukta presupposition that words are eternally affiliated with the meanings they convey. But it is also based onMadhva’s
access to a lexicon entitled Vyāsa’s Nirukti with which his critics and perhaps even his commentators seem to be unfamiliar.While
the precise status of this text is the subject of ongoing debate, Madhva’s possession of special insight into the sacred canon
is established in part by his unique claim to be an avatāra of the wind god Vāyu and a direct disciple of Viṣṇu Himself in
the form of Vyāsa1. Thus, Madhva’s use of nirukta invokes his personal charisma to challenge not only conventional understandings of the hymns
but traditional exegetic norms. Madhva’s provision of an alternative tradition of nirukta provoked sectarian debate throughout
the Vijayanagara period over the extent to which one could innovate in established practices of reading the Veda. Articulating
the Veda’s precise authority was a key feature of Brahmin debates during this period and reflects both the empire’s concern
with promoting a shared religious ideology and the competition among rival Brahman sects for imperial patronage that this
concern elicited. By looking at how two of Madhva’s most important commentators (the 14th-century Jayatīrtha and the 17th-century Rāghavendra) sought to defend his niruktis, this article will explore how notions of normative nirukta were articulated
in response to Madhva’s deviations. At the same time, however, examining Madhva’s commentators’ defense of his niruktis also
demonstrates the extent to which Madhva actually adhered to selected exegetic norms. This reveals that discomfort with Madhva’s
particular methods for deriving words stemmed, in part, from a more general ambivalence towards this exegetical tactic whose
inherent open-endedness threatened to undermine the fixity of the canon’s very substance: its language.
Vyāsa’s Nirukti is one of several ”unknown sources” cited in Madhva’s commentaries whose exact status continues to be debated.
Some scholars (e.g. Rao, Sharma, Siauve) maintain that these texts are part of a now lost Pāṅcarātra tradition that Madhva
is attempting to preserve. This may be true for many of these citations. However, in addition to claiming to be both an avatāra
of Vāyu and Viṣṇu-as-Vyāsa’s student, Madhva states in several places (e.g., VTN 42, RB 162) that the canon has suffered loss
during transmission and that only Viṣṇu can reveal it in its entirety. Thus, it is possible that Madhva intends texts like
Vyāsa’s Nirukti to be viewed as part of an ongoing and corrective revelation, a notion that is compatible with many Vaiṣṇava
traditions (Halbfass, 1991: 4). 相似文献
19.
The concept of avidyā or ignorance is central to the Advaita Vedāntic position of Śȧnkara. The post-Śaṅkara Advaitins wrote sub-commentaries
on the original texts of Śaṅkara with the intention of strengthening his views. Over the passage of time the views of these
sub-commentators of Śaṅkara came to be regarded as representing the doctrine of Advaita particularly with regard to the concept
of avidyā. Swami Satchidanandendra Saraswati, a scholar-monk of Holenarsipur, challenged the accepted tradition through the publication
of his work Mūlāvidyānirāsaḥ, particularly with regard to the avidyādoctrine. It was his contention that the post-Śaṅkara commentators brought their own innovations particularly on the nature
of avidyā. This was the idea of mūlāvidyā or ‘root ignorance’, a positive entity which is the material cause of the phenomenal world. Saraswati argues that such an
idea of mūlāvidyā is not to be found in the bhāṣyas (commentaries) of Śaṅkara and is foisted upon Śaṅkara. This paper attempts to show that although Śaṅkara may not have
explicitly favoured such a view of mūlāvidyā, his lack of clarity on the nature of avidyā left enough scope for the post-Śaṅkara commentators to take such a position on avidyā. 相似文献
20.
《Science & justice》2022,62(6):785-794
This paper considers whether the adoption of a subject-specific, classroom-based, voluntary extra-curricular student mentoring scheme could provide an effective mechanism and andragogic approach to enhance higher education students’ employability potential pre-graduation.Over the three-year pilot, 26 more advanced (second to fourth year) undergraduate students actively mentored nearly 400 first year undergraduate students during workshops delivered annually within forensic and policing focused courses. In total, 17 mentors anonymously completed online, post-scheme surveys. Survey data was quantitatively analysed to evaluate the scheme, establish which skills and attributes mentors had developed and investigate whether mentors could appropriately identify example skills within professional terminology used during employer recruitment. In addition, this paper reflects on the implementation of remote student mentoring during the COVID-19 pandemic and its adoption within a blended learning framework.The results from this research strongly support mentoring as an effective mechanism to develop undergraduate employability skills, significantly developing mentors’ self-confidence and self-efficacy in their interpersonal and communication skills. Although mentors were aware of university graduate attributes and thought they could evidence these with appropriate examples, in practice this was not necessarily the case. As a result, a framework is proposed to enable mentors to identify their skills and how they may align with competencies sought by relevant forensic and policing employers. However, other andragogic practices may need to be implemented to maximise the potential for successful graduate employment. 相似文献