Editor's Introduction

Fear is the unifying theme of the articles that follow. Not the strakh about which Anatolii Rybakov wrote, but rather the fear for the future of stability, democracy, and social justice in Russia. But most of our authors conclude either on a hopeful note or with recommendations for action. In the first article ("The Electoral Map of Contemporary Russia"), Vladimir Kolosov and Rostislav Turovskii present the findings of their analysis of voting behavior in Russia's many regions. While not unlocking individual motivations at this level of analysis, they examine the commonplace assertion that the presidential election of June-July 1996 turned on the decline in people's living standards since the overthrow of Communism and the collapse of the Soviet Union. Almost all press commentary has reported, or assumed, that the anti-Yeltsin vote reflected disillusion with a government that has increasingly impoverished most Russians. Conceding that "the political stratification of Russian regions into reformist and oppositional regions has intensified," the authors nevertheless find that poorer regions sometimes supported Yeltsin over the Communist candidate, Gennadii Ziuganov. Thus, for example, Yeltsin carried Ivanovo Oblast despite its having the highest unemployment rate in the country. They find no direct connection between quality of life and voting patterns in the elections. Political criteria, not economic determinism, offer the best explanation for why people voted the way they did.     

民法本质追求探究

作为部门法的民法,源自古代欧洲的罗马法,当时叫“市民法”,后被注入“私法”、“私权法”、“市民社会的法”等诸多信息。中国通过日本从西方民法及至罗马私法那里继受了作为表征基本部门法的民法。西方传统理解民法或私法的实质含义,是在个人与国家对立的基础上进行的。民法以人为中心,以权利为基点,以行为手段,以责任为保障。民法上的人即市民、私人和私主体,含自然人、法人、非法人团体等。近代社会的个人是个人主义的个人,而现代的个人是兼顾社会乃至自然理念中的个人。称民法人是“经济人”、“具体人”、“抽象人”等多是用作分析民法问题的方法。兼顾社会乃至自然的个人主义和自由主义是民法的哲学基础。民法并未真正社会化。民法所涉及的领域是有限的。民法在精神方面追求平等和自由。这些都涉及到民法本位即民法的中心任务和价值标准问题。     

经济法的观念基础与规则构成——对“需要国家干预论”的反思与拓展

作为经济法的重要学说之一的“需要国家干预论”,因其影响大,而争论和分歧也多,分歧的焦点在于对“谁之‘需要’”与“‘干预’什么”存在不同理解。对此问题,按整体主义理解,国家干预是社会基于整体经济发展的“需要”,这意味着“需要”的主体是社会,干预的内容是具有全局性和社会公共性经济关系。正因“需要”的主体是社会,就防止了国家干预的恣意性,同时,社会整体利益因有国家代表而得以保障,从而彰显了经济法的社会本位属性。另外,社会的“需要”决定了经济法的目的,目的作为指针指出了经济主体的行为准则,同时,整体构造的复杂性预示了经济法技术规范的复杂性与多样性。     

The Rights of the Soviet Police and Socialist Legality

According to the decisions of the November (1982) and June (1983) Plenums of the CPSU Central Committee, the police [militsiia] and other law-enforcement agencies are to mobilize all their forces in order to strengthen public order, to guarantee the comfort and personal safety of citizens, to display a high measure of proficiency and efficiency in their work, and to adhere strictly to Soviet legislation. "The normal course of our society's development," Iu. V. Andropov emphasized, "is inconceivable without the strictest observance of the laws that protect the interests of society and the rights of citizens."¹     

试论监狱行刑的善恶选择

监狱行刑善恶或道德行为选择,是监狱行刑者在一定的善恶观念支配下,在监狱行刑活动中对涉及服刑罪犯执行刑罚或相关利益的行为的自觉自愿抉择,其选择需要具备外在的可能性、内在的可能性以及行为选择能力的必备条件。当下我国监狱行刑善恶选择的现状积极变化和消极变化都很突出,究其原因,既有来自宏观的社会原因,又有出自监狱干警的职业特点和干警自身的因素,目前的状况,使得监狱干警进行善恶或道德选择处于一种两难状态,即陷入了道德困境,如何走出困境?从根本上说,走出困境必须依靠人们包括监狱干警改造社会的实践活动和道德境界及选择能力的提高。在监狱行刑活动实践中,要正确进行善恶选择,监狱干警职业道德建设要把提升干警善恶选择水平作为着力点。     

“行政强制措施”与“行政强制执行”的分界

《行政强制法》既将行政强制措施与行政强制执行"合二为一"(合称为"行政强制"),又在同一法中将它们"一分为二"(分别规定"行政强制措施"与"行政强制执行")。之所以将它们"合一",是基于行政强制措施与行政强制执行有其行政行为上的共性;之所以将它们"分二",是基于行政强制措施与行政强制执行在法律设定和法律适用中的严格区别。作者在反思以前几种区别理论的基础上,认为行政强制措施与行政强制执行之间最为本质的区别应当是行政机关强制当事人履行的"义务"不同:强制当事人履行"容忍、不作为"义务者为行政强制措施;强制当事人履行"作为"义务者为行政强制执行。     

It Is Important to Understand Our Strengths and Weaknesses

[From the editors of Zhurnalist:] The magical metamorphoses of our journalism could happen only in fairy tales. First, it transformed itself from a handmaiden of the Party into a "fourth estate," literally overnight, then reduced itself to a conveyer belt. Clearly there has been much change in us. So what are these changes, what caused them, and what might their consequences be for us and for society?     

Certain Problems of State Administration under the Conditions of the Socialist State of the Entire People

Soviet state administration, constituting the activities of state bodies in the daily and direct guidance of economic and socio-cultural development, retains its importance in full in the period of the comprehensive building of communism. The direct relationship between this form of state activity and the developing economic and cultural processes defines the role of the administrative machinery in the establishment of the material and technological foundations for communism and of all the conditions needed for socialist social relationships to undergo transition to communist relations. "Along with problems of economic development," N. S. Khrushchev remarked at the 21st Congress of the CPSU, "there arise pressing problems concerning the political organization of society, the state structure and administration during the period of the comprehensive building of communism."     

Population Dynamics and the Law

One of the basic functions of human society is that of assuring the continuation of the human race. "According to the materialist view," wrote Engels, "the production and reproduction of life itself is, in the final analysis, the determining factor in history." (1) At various stages in the development of human society, this function has found realization in differing social forms. (2) At present it is implemented almost everywhere through the contemporary monogamous family. The family is the nucleus of society; through it, the state's population policy is carried out. The other functions of the family (educational, economic) are, as a rule, consequences of its primary function. They supplement it and flow from it.     

Coordination: Its Essence and Practice

At the present stage in our country's development, when major problems of the national economy are being resolved, particular significance attaches to Lenin's premise of proper combination of the interests of the country as a whole with those of local concern. "The lack, in the localities, of harmonized work among the various departments," wrote Vladimir Il'ich Lenin, "is one of the great evils interfering with economic development. An enormous amount of attention must be paid to this question" (Poln. sobr. soch. [Complete Works], vol. 43, p. 278). The timeliness of this instruction by Lenin is beyond question. It also pertains directly to the work of the local soviets, particularly their activity of coordination. As we know, the new laws on the local soviets have granted them the right, within the limits of their jurisdiction, to coordinate enterprises and organizations belonging to higher levels insofar as their efforts are directed toward the development of the economy within their geographic boundaries, and above all in the spheres having to do with services to the population.     

A "Standard Yardstick" Does Exist!

There are two fundamental criteria for a state based on the rule of law: respect for the individual and legality. For the time being, "Asianism," which denies both, dominates state construction in Russia. Let us hope that the current fashion for terms such as "president" and "mayor" does not lead us astray; in Russia all these are notorious "officialdom," which inserts itself in the place of various democratic institutions. We still have a long way to go to reach a genuine state based on the rule of law and, moreover, one located on a Russian river, not on the Seine or the Thames. We must flounder along, keeping in mind the factors specific to Russia.     

Clarification of rules involving residual functional capacity assessments; clarification of use of vocational experts and other sources at step 4 of the sequential evaluation process; incorporation of "special profile" into regulations. Final rules

For purposes of this document, "we," "our," and "SSA" refer to the Social Security Administration and State agencies that make disability determinations for the Social Security Administration. "You" and "your" refer to individuals who claim benefits from the Social Security Administration based on "disability." In this final rule we clarify our rules about the responsibility that you have to provide evidence and the responsibility that we have to develop evidence in connection with your claim of disability. This includes our rules about when we assess your residual functional capacity (RFC) and how we use this RFC assessment when we decide whether you can do your past relevant work or other work. These clarifications address issues of responsibility raised by some courts in recent cases; clarify that we may use vocational experts (VEs), vocational specialists (VSs), or other resources to obtain evidence we need to help us determine whether your impairment(s) prevents you from doing your past relevant work; add a special provision to our rules stating that, if you are at least 55 years old, and specific other circumstances are present, we will find that you are disabled; and make a number of minor editorial changes to clarify and update the language of our rules, and to use simpler language in keeping with our goal of using plain language in our regulations.     

Laws for Sale: Evidence from Russia

How does regulatory capture affect growth? We construct measuresof the political power of firms and regional regulatory captureusing microlevel data on the preferential treatment of firmsthrough regional laws and regulations in Russia during the period1992–2000. Using these measures, we find that: (1) politicallypowerful firms perform better on average; (2) a high level ofregulatory capture hurts the performance of firms that haveno political connections and boosts the performance of politicallyconnected firms; (3) capture adversely affects small-businessgrowth and the tax capacity of the state; and (4) there is noevidence that capture affects aggregate growth.

"oligarchy ... throws a close network of dependence relationshipsover all the economic and political institutions of present-daybourgeois society without exception... ." —Vladimir Lenin,"Imperialism: The Highest Stage of Capitalism" (1916)

     

关于我国反垄断立法相关问题的研究与探讨

我国在加入WTO的环境下,形成了新的市场经济环境。而我国反垄断法的立法始终处于缺位,在新的经济环境的压力下,我国制定《反垄断法》是十分必要的。反垄断法是现代国家调节社会经济的基本法律之一,是经济法体系一个重要组成部分,并将长期居于经济法体系的核心地位。我国实行社会主义市场经济,不能不制定这种法律。对于市场经济来讲,反垄断法的积极作用是空前的。     

The Great Recurrence: Karl Polanyi and the crises of the European Union

In his seminal 1944 book The Great Transformation, Polanyi describes the rise and fall of liberal capitalism during the long nineteenth century. Many have realised that Polanyi has a lot to tell about the European Union in the aftermath of the financial crisis. The paper begins with an overview of Polanyi's historiography of the failure of nineteenth‐century liberal capitalism and his account of the four elements that helped liberal capitalism thrive, while precipitating its collapse—the idea of the self‐regulating market, the gold standard, international peace and liberal constitutionalism. Thereafter, the paper describes the particular transformations that these four elements underwent in the course of European integration and after the financial crisis, with a particular focus on the case law of the Court of Justice. The paper argues that their current constellation has a destructive potential that exceeds the economic dimension of the Union and might pave the way for a much greater failure, one that might defeat Europe's greatest success: the establishment of peace. Ultimately, the paper assesses current reform proposals in light of these insights and makes a number of proposals for re‐embedding the economy in society.     

反就业歧视及其法律建构

就业歧视是一个世界性难题,它在我国有愈演愈烈之势,并正日益成为妨害我国市场经济健康发展和建构社会主义和谐社会的消极因素,亟待我们采取相应的制度措施进行规范和干预。针对就业歧视的现状,我国应当完善反就业歧视法。     

“贪官外逃”现象分析及其社会司法应对——以防控国家和民众被害为视角

"贪官携款外逃"是我国当下经济犯罪与腐败现象的一个新动向."贪官出逃"事关社会的安定,影响着民众的福祉,对公众"违法必究"的朴素理想构成了巨大的挑战.打击跨国腐败犯罪这一工作涉及更多的国际合作,但更重要的仍是建立起我国国内的预防腐败的制度体系.我们应构建一种全社会参与、各部门配合的整体监控体系.     

Communing with Disaster: What We Can Learn from the Jusen and the Savings and Loan Crises

Now that the Japanese economic miracle has soured into the Japanese economic meltdown, scholars are confronted with a new challenge: instead of trying to penetrate the secret of Japan's successes, they must try to unravel the enigma of its misfortunes. Professors Curtis Milhaupt and Geoffrey Miller (1997) have performed a great service in documenting one of the most dramatic of those misfortunes – the collapse of the jusen companies. Professor Shinsaku Iwahara (1997) has also performed an equally valuable service by placing this event in the larger context of Japanese politics and society. But despite its record setting scale, the jusen problem was not unprecedented; Japan merely followed in the footsteps of its economic mentor, the United States, which experienced a very similar financial meltdown about a decade earlier. This commentary briefly describes that event – the U.S. savings and loan crisis – and then draws some tentative conclusions on the basis of a comparison of the two events.     

法的渊源意识的觉醒

迄今为止的法律学说在很大程度上是环绕着法的渊源展开的,法的形成和法的应用甚至以法的渊源为立命的前提性基础;然而法的渊源意识的基础和依托至今仍然殊为薄弱。奥斯汀固然奋力呼吁人们革除法和法的渊源研究方面的弊病,把法和法的渊源从散漫、驳杂和喧闹不已的“超市”中引领出来,却又失之于将其禁锢在一个狭隘的天地。奥斯汀身后的法律学人在探讨法的渊源方面亦有努力,但这种努力并未达致较为成熟的程度。实际的情形表明,如欲转变长期以来未能深究法的渊源因而总是被动地同法的渊源发生关联的情境,俾使法的渊源、法律学说和法律实践三者的融合处于和谐状况,促动法的渊源这种宝贵的资源、进路和动因在良法美制的形成方面展现上佳作用,很显然需要法律人形成自觉且科学的法的渊源意识,需要有普遍的法的渊源意识的觉醒。     

论社会公共利益和经济法

社会公共利益是比较重要但又很难定义的概念,实践中不乏有借用"社会公共利益"之名侵犯其他利益的事例.经济法与社会公共利益的关系是经济法理论最为基本的问题之一.试从利益的定义及分类、法律与利益的关系、实体法对社会公共利益的规定等方面来探讨社会公共利益与经济法的关系问题,并对社会公共利益的含义、经济法与公益诉讼的关系也提出自己的一些看法.