由一起碰撞案件看船舶挂靠经营中的侵权责任

在现行法律中很难找到专门针对船舶挂靠经营的规定,这使得关于船舶挂靠经营过程中产生的侵权责任的意见难以得到统一。北海海事法院对2000年发生的一起船舶碰撞纠纷进行了审理,其中涉及对船舶挂靠经营侵权责任的处理,该判决对上述问题的解决提供有益的帮助——船舶挂靠经营是一种合法行为;就挂靠人经营中所致的侵权责任,挂靠人与被挂靠人都是责任主体,并应承担无限连带责任。     

党和国家领导制度的改革与完善

江泽民指出:“各级党委要学会在宪法和法律的范围内加强和改善党的领导”。因此,党和国家领导制度的改革和完善,要形成“四权统一、两权平衡”的政治格局,要正确处理执政党和参政党的关系,要理顺党和人大的关系,要理顺党和政府的关系。     

代位求偿权与被保险人剩余赔偿请求权何者优先——兼对英国《海上保险法》中相关规则的反思

海上保险大多是定值保险,在保险标的价格大幅度上涨的情形下,保险赔偿往往是不充分的;同时,在海商法领域,民法中的全部赔偿原则并不适用,船舶所有人、船舶经营人等享有海事赔偿责任限制的权利,因此,对被保险人负有责任的第三人的赔偿数额经常不足,从而导致保险人的代位求偿权与被保险人未受保险赔偿部分的请求权都无法得以满足。在此种情况下,是应当优先保证保险人代位求偿权的实现,还是被保险人未得到保险赔偿部分的损失应首先得到赔偿？抑或按比例受偿？这个问题充满争议。根据MIA 1906规定,在足额保险的情形下,保险人的代位求偿权优先;在不足额保险的情形下,保险人与被保险人应按比例分摊第三人的赔偿额。对这一结论进行深刻反思,并指出代位求偿权不同于一般的债权转让,依据债权平等的一般民法原理解决这一难题是不妥的,只有根据代位求偿权的立法目的才能妥善解决这一难题,同时基于对中国法的客观解释得出＂被保险人优先＂的结论。     

Editor's Introduction

The Communist Party of the Soviet Union and its Central Committee are giving a great deal of attention to reinforcement of legality and maintenance of law and order within the country, and to problems of combatting lawbreaking and crime. The proceedings of the 22nd Party Congress, the decisions of the Central Committee plenums and other Party documents contain important guidelines for improving the work of the agencies of the courts and procuracy. The attention given by the Party to these problems is not accidental. Under our conditions, crime is above all a manifestation of vestiges of the past. The struggle against lawbreaking and crime signifies a further strengthening of legality in all aspects of our life.     

科级干部成长规律及其需求探析——以烟台为例

政治路线确定之后，干部就是决定的因素。科级干部工作在基层，一方面掌握党的路线方针政策，一方面又直接面对民众，参与社会基层活动，是党的路线方针政策的宣传者与执行者。因此，研究分析科级干部的成长规律．是造就干部队伍的基础性工作。本文从科级干部的特点、成长的一般规律及成长需求等方面进行了初步探讨，以期比较准确地把握科级干部的职能定位，了解科级干部队伍各个方面的现状，更好地促进科级干部队伍建设。     

提高执政能力的三个立足点

加强我党的执政能力建设,提高我党的执政水平,这是我党所处的历史地位和时代赋予的历史使命;要树立起新的执政理念、完善执政方式,就要立足于科学执政、民主执政、依法执政的三大基石之上;科学执政,要求执政党应在认识和把握客观规律的基础上,为人民执好政、谋好利;民主执政,要求执政党在建设民主政治的过程中,保障人民当家作主的权力;依法执政,要求执政党在遵守宪法和法律的前提下,积极执政、为民掌权。     

WTO项下适用于中国纺织品出口的保障措施条款之比较

WTO项下可适用于中国纺织品出口的四种保障措施条款将可能成为WTO各成员国对来自中国的纺织品竞相 适用的国际贸易规则之一。在国际经济法看来,它们在效力范围上具有一般法和特别法,在适用对象上具有一般 物和特殊物的差异。据此,我们不难发现我们的竞争对手在适用上述条款时的政策取向以及我们的应对策略。     

论进一步推进依法行政的必然性、切入点与着力点

党的十七大报告再一次提出要“推进依法行政”，这是新时期对加快法治政府建设提出的明确要求。近几年来，我国法治政府建设取得了一定成效，但还很不完善。为此，既要清醒地认识到进一步推进依法行政的必然性，又要准确把握进一步推进依法行政的切入点和着力点。     

Certain Problems in the Theory of the Socialist State of the Entire People

Having decisively liberated itself from the consequences of the personality cult, the Communist Party has been creatively developing Marxist-Leninist theory in the past few years. It has advanced a number of theoretical propositions of utmost importance, having vast historical significance and based upon a precise analysis of the development of contemporary social life. One of the most important findings of Marxist-Leninist scientific thought, which is today progressing headlong, is the discovery of the socialist state of the entire people. The historical credit for this discovery belongs to the collective intelligence of the Communist Party of the Soviet Union and its 22nd Congress which, in the Program it adopted, revealed and defined the principal tendencies and major paths of development of the state as an organization of the entire people which, under given circumstances, survives until the complete triumph of communism. In so doing, the 22nd Congress of the Party laid firm foundations for the theory of the socialist state of the entire people. This marks a new stage in the development of the science of the socialist state. In this connection it is important to emphasize that the further development of this theory is tied directly to the activity of our Party. And at the present time, in full accord with the Party Program, the creative process of further development of the theory of the state of the entire people is in progress. Persons in all the social sciences should take the most active part in this process. For it is they who are faced with the major and particularly noble task of intensive development of research work in that field of knowledge which is called upon to establish the scientific basis for the guidance of social development.     

The Production Principle in Party Structure

The November Plenum of the CPSU Central Committee, which discussed Comrade N. S. Khrushchev's report "Economic Development of the USSR and Party Guidance of the Economy," was an event of exceptional importance. Its work manifested with new force such Leninist characteristics of our Party as a creative approach to problems of the building of communism which are ripe for solution; the ability at each new stage to distinguish the main link in the chain; the ability to pose problems with revolutionary breadth, and to merge politics, economics, and organizing activities into a single whole. Having condemned the Stalin personality cult, our Party is working persistently to overcome its consequences. It has added to and developed the Leninist traditions. Lenin's standards for conducting Party affairs and his principles of leadership are being asserted more and more fully.     

论我国传统监督体系的缺陷与完善

我国传统的监督体系曾经对于党的执政安全发挥过积极作用,但随着经济体制的转型,也日益暴露了它的许多缺陷。因此,必须通过传统监督体系的内部调整,寻求监督体系的整合与整体功能的扩大,走“政治集约化”的道路。     

监督文化、机制与官员腐败犯罪

触目惊心的官员腐败犯罪说明我国的监督机制亟待完善。我国监督文化存在的缺陷,使得监督官员腐败犯罪的氛围难以形成,并导致监督机制缺乏力度,反腐法网不严密,贪污贿赂犯罪机会多、成本低,法律对官员腐败犯罪缺乏应有的威慑作用。因此,必须采取中央主导型反腐败模式,建立高效、独立、权威的反腐专门机构;以法律形式确立公务员制度、财产申报制度、储蓄实名制度;制定专门的《反贪污贿赂法》,严密法网,堵塞漏洞,减少腐败犯罪的机会,提高犯罪成本。     

Psychological assistance to victims throughout difficult trials

In France, only very recently have victims begun to be assisted throughout "difficult" trials. We have developed different hypotheses to think over the function of psychologists when they step in to help out victims of criminal offences. Moreover, we have developed an argument for the need to set up units of medical and psychological assistance for certain difficult trials. Among other topics, we discuss the victims' expectations for psychic and/or affective reconstruction during trials. We suggest that penal trials can "potentially" heal victims, but more often than not they are "potentially" traumatic. We support our arguments with clinical examples that come from our personal experience of providing psychological assistance to victims.     

A little local difficulty: the management of difficult-to-place people in Oxford.

So far we have outlined the cloud rather than the silver lining; and it is true, for example, that instances of "shared care that worked" could be found. But in general, the situation appeared to be that a small number of people posed difficult problems, often linked with aggression, for a range of agencies. It was perhaps ironic that many of the most difficult problems were picked up by the voluntary sector, which might be characterized as "the only place left to go" when statutory agencies decided that individuals had become too difficult to cope with. Interagency action was certainly possible, and attempted; but structural problems in its organization and differences of perspective between psychiatric and other agencies led to problems of implementation and sometimes to bad feelings. Part of the problem seemed to be that agency workers, in identifying individuals' needs, talked about the kinds of organizations that would be able to cope with the individuals. This limited their horizons. Individual "packages" of measures, perhaps in the form of "shared care," seemed eminently suited to the situation, provided they could be flexible enough to cope with quickly changing needs and provided that many of the relatively trivial details were systematically attended to--such as ensuring that everyone involved in a "package" knew the others' holiday dates. But this would not, by itself, be enough. Developments on these lines would also require movement in two other directions: on the one hand, to institute "top down" measures in the sense that the heads of agencies agree on the ground rules within which they could happen, and on the other, the delegation of more authority to rank-and-file workers to accept or refer cases. In some ways, this is a question of rethinking the forms of accountability within our statutory agencies. There will probably always be, as we have noted, a "rump" of people who cannot be helped perhaps because they do not wish to be; but the possibilities of more effective help and support for the rest were there to be grasped.     

论宪法第三条第四款——也读毛泽东《论十大关系》第五节

1982宪法第三条第四款所规定的中央与地方关系乃是政策式的,并非真正的法律性的规定,即缺乏操作性,因此,实践中的中央与地方关系更多的是靠中央政府与地方政府的权力博奕。既然是作为一种博弈,那么其必然更少地依赖规则,或者说至少不具有"常规化"的外表,而新中国建立以来的包括中央与地方关系在内的政治实践也倾向于这种选择。更重要的是,具备严密组织性的中国共产党在中央及地方的各级组织强有力地支持了这样的处理方式,并且,党组织本身构成了该处理方式的重要组成部分。     

Deportation, Detention and Medical Intervention

In the UK the foreign national prisoners who have breached immigration rules suffer deprivations from which the ordinary citizens are exempt. Their subjection to prison regimes often on pain of deportation leads to psychological illnesses that cause them long term damage. The deportation regime that arises by default under the Border and Immigration Act 2007 has made it difficult to avoid prison for the breach of immigration rules. The research published by NACRO shows that it can lead to trauma because there is duress accompanied by an uncertainty of fate. The decision by the Court of Appeal in R (Medical Justice) v Secretary of State for the Home Office (2011) has brought this issue of deporting ill patients into the limelight. There are expert reports that reveal that those foreign nationals who are refused permission to stay are at risk from psychiatric illnesses when they are detained. The findings are that the mental illnesses are particularly severe in the most vulnerable prisoners who develop symptoms of long term mental disease. It is critical for the medical professionals to consider their involvement at an early stage when they will be able to supervise and diagnose illness before there is damage. This is particularly the case as the NHS treatment is denied to prisoners who are foreign nationals which is makes it necessary to implement a strategy with local agencies to prevent the onset of debilitating illnesses.     

哈尔滨解放区对外侨案件的审理

哈尔滨是中国共产党建立稳定政权的第一个国际化大城市,外侨人口众多,犯罪率高,法律纠纷量大。从1946年—1949年,哈尔滨解放区法院受理外侨刑民事案件分别为447件和813件,占其所受理的刑民事案件总数的8.3%和14.7%。法院在涉侨审判中以民国法律、解放区的革命政策法令、苏联法以及外侨的善良风俗作为审判依据,有效地解决了纠纷,维护了社会秩序。     

Neither War Nor Peace,But Disband the CCU!

Politicians may amuse themselves however they please, but do not touch the Fundamental Law. After all, it is not as hard to rectify what is wrong as it is to avoid excessive noise when doing it. Agreeing that the constitution was changed in 2004 with procedural violations, the people's deputies are now furiously discussing ways to go back to the past. The "regionals" [Party of Regions members] are advising us not to make a tragedy of this. The opposition is calling on the guarantor and the Constitutional Court to reject the automatic restoration of the 1996 Constitution.     

船舶抵押权登记若干法律问题研究

船舶抵押权登记在中国具有＂相对的公信力＂,未经登记不能对抗的＂第三人＂包括已另行设立且登记的船舶抵押权人以及依法律行为取得船舶所有权的所有权人,船舶抵押权登记日期依申请日确定比较合理,不应允许对抵押金额及抵押期限予以登记,应建立船舶抵押权登记请求权制度和登记错误的补救机制。     

废除南京国民政府"六法全书"之思考

废除南京国民政府"六法全书"在当时是必然的,这是由共产党人的法律观、马克思主义的国家观以及中国传统法律文化等方面的原因决定的."六法全书"的废除,对新中国法制建设产生了深远的影响,既有正面的经验,也有反面的教训.其最大危害就是中断了中国法制现代化的历史进程,强化了中国社会蔑视法律的民族传统心理,为新中国政策治国、以党代政、以党治国开了方便之门.