美国联邦刑法法典化述评

美国联邦尚无刑法典,然自建国后,联邦一直致力于刑法法典化,从1790年《治罪法》至1948年《联邦法典》第18主题,到1982年《联邦刑法典草案》,长达200多年的刑法法典化事业至今未竟。联邦刑法法典化呈现独有品性,即启于内外因素双重驱动、历经形式编纂到实质编纂、本体即权力扩张与限制、价值思维系理想主义与实用主义之统合。联邦刑法法典化目的理性,其搁浅缘于工具不善。基于现有刑法不力、刑法治危机以及刑法典的天然优势之事实,结合刑法有效、公正、人道之目的,得以推导出刑法法典化仍需继续之应然结论。未来,联邦刑法法典化之路仍旧遍地荆棘,而联邦刑法典能否问世,取决于美国所动用的实践理性。     

论《人民法院统一证据规定》及大陆法和普通法的融合

中国属于大陆法系，在法官职权、法院地位和对待先例的态度上都与大陆法法系的基本特征一致，而这些特征又是大陆法系同英美法系的区分点，在当今大陆法和英美法互相融合的潮流下，我国的《人民法院统一证据规定》（建议稿）正是融合的标志，这部《统一规定》在证据规定、民事和刑事诉讼程序中都与《美国联邦证据规则》存在很多共同之处，与德国、日本等国家仅仅就审判程序的改革相比，《人民法院同一证据规定》在证据规定方面迈出了更大的一步。本文作者认为，在这个融合的过程中。相同的规定在不同的环境下将演化出另样的甚至是出人意料的结果，但是《统一规定》对“公正和效率”这一价值目标的实现是毫无置疑的。此外，《统一规定》在试用阶段的考察和改良无疑将增强融合后的可行性。     

The role of competition in health care: a Western European perspective

The Federal Trade Commission and Department of Justice 2004 report Improving Health Care: A Dose of Competition expresses a clear allegiance to competition as the organizing principle for health care. In Europe, by contrast, the key organizing principle of health care systems is solidarity. Solidarity means that all have access to health care based on medical needs, regardless of ability to pay. This is not to say that competition is not important in Europe, but competition must take place within the context of solidarity. This article critiques the report from a European perspective, describes the role of competition in Europe (focusing in particular on European Union law), and suggests that the United States could learn from the European perspective.     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

Federal employees health benefits children's equity. Final rule

The Office of Personnel Management (OPM) is issuing final regulations to implement the Federal Employees Health Benefits Children's Equity Act of 2000, which was enacted October 30, 2000. This law mandates the enrollment of a Federal employee for self and family coverage in the Federal Employees Health Benefits (FEHB) Program, if the employee is subject to a court or administrative order requiring him or her to provide health benefits for his or her child or children and the employee does not provide documentation of compliance with the order.     

Grants to states for operation of qualified high risk pools. Final rule with comment period

This final rule with comment period implements a provision of the Trade Assistance Reform Act of 2002 by providing $40 million in Federal fiscal year 2003 and $40 million in Federal fiscal year 2004 to States that have incurred losses in connection with the operation of qualified high risk pools that meet certain criteria. This grant program implements section 2745 of the Public Health Service Act, as added by the Trade Adjustment Assistance Reform Act of 2002.     

法典化理念与特别法发展之间的行政程序法

1976年颁布的德国《联邦行政程序法》正处于时代的转捩点上。德国的行政程序法是由总则性法典、部门(领域)法典和特别法以阶层模式构成的体系。法典化理念在立法现实中是动态的和周期性的,立法史随着法典化理念波动,其是以法典化、解法典化和再法典化为轴心的辩证发展过程。法典具有法的统一化、定向和稳定化、精简规范等功能,但同时其自身也具有割裂风险、过时风险、固化风险等弱点。近年来,德国的行政程序法出现了解法典化的趋势,包括水平的解法典化和垂直的解法典化。德国联邦行政程序法在再法典化的过程中,需要再次反思一般行政(程序)法的秩序理念与结构化能力。     

Assessing the Application of the Principles of Non-discrimination and Gender Equality in Relation to Devolution of Land upon Death in Nigeria

Liverpool Law Review - The Constitution of the Federal Republic of Nigeria 1999 (as amended), guarantees the right to freedom from discrimination. Similarly, the Land Use Act 2004, which is the...     

俄罗斯公司立法综论——兼与中国公司立法比较

俄罗斯的公司立法起步很早,但发展缓慢,直到20世纪90年代才形成相对独立的公司法体系。传统上,俄罗斯采民商合一的立法体例,但在民法典之外,仍制定有公司单行法,并与调整公司关系的总统命令和政府规章等规范性法律文件以及联邦最高法院和最高仲裁法院所作的司法解释一并行使调整公司关系的职能。俄罗斯公司立法注重对私权利的维护,以任意性规范为主。但在向市场经济过渡时期,实践中的公司利益冲突不仅危害社会公共利益,最终也损及股东权益。有鉴于此,立法者不得不修订法律条文,增加强制性规范,强化公权力对公司活动的干预。这虽然与我国公司立法的趋向刚好相反,但两国立法的最终目标都是在寻找一个自由与干预的最佳平衡点。     

Medicaid program: redeterminations of Medicaid eligibility due to welfare reform--HCFA. Final rule with comment period

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and the Contract with America Advancement Act of 1996 created changes in Federal law affecting the eligibility of large numbers of Medicaid recipients. These changes include revisions to the definition of disability for children and to the eligibility requirements of non-U.S. citizens and individuals receiving disability cash assistance based on a finding of alcoholism and drug addiction. This final rule with comment period protects Federal financial participation (FFP) in State Medicaid expenditures for states with unusual volumes of eligibility redeterminations caused by these recent changes in the law. We are making changes to the regulations to provide for additional time for States to process these redeterminations and provide services pending the redeterminations.     

Approval of the Commission on Office Laboratory Accreditation--HCFA. Notice

This notice announces the approval of the Commission on Office Laboratory Accreditation (COLA) as an accrediting organization for clinical laboratories under the CLIA program. We have found that the accreditation process of this organization provides reasonable assurance that the laboratories accredited by it meet the conditions required by Federal law and regulations. Consequently, laboratories that voluntarily become accredited by COLA in lieu of receiving direct Federal oversight and continue to meet COLA requirements would meet the CLIA condition level requirements for laboratories and therefore are not subject to routine inspection by State survey agencies to determine their compliance with Federal requirements. They are, however, subject to validation and complaint investigation surveys.     

Grants to states for operation of qualified high risk pools. Final rule

This final rule implements a provision of the Trade Adjustment Assistance Reform Act of 2002 by providing $40 million in Federal fiscal year 2003 and $40 million in Federal fiscal year 2004 to States that have incurred losses in connection with the operation of qualified high risk pools that meet certain criteria. This final rule also addresses comments received in response to the interim final rule that was published on May 2, 2003. This grant program implements section 2745 of the Public Health Service Act, as added by the Trade Adjustment Assistance Reform Act of 2002.     

Federal Employees Health Benefits program: direct payment of FEHB premiums for annuitants--OPM. Final rule

The Office of Personnel Management (OPM) is adopting its previously issued interim regulation that implements section 1 of Public Law 101-303. This section of law allows all annuitants to make direct payment of premiums for their Federal Employees Health Benefits (FEHB) coverage when their annuity is too low to cover the insurance premiums. Previously, only annuitants in the Federal Employees Retirement System (FERS) were allowed to make direct payment of their FEHB premiums.     

Approval of the Commission on Office Laboratory Accreditation for Immunohematology--HCFA. Notice

This notice announces the approval of the Commission on Office Laboratory Accreditation (COLA), which is an accrediting organization for clinical laboratories under the Clinical Laboratory Improvement Amendments (CLIA) program, for the addition of the full specialty of immunohematology. This approval adds immunohematology to the specialties and subspecialties approved by HCFA in a notice published in the Federal Register on December 23, 1993 (58 FR 68148). We have found that the accreditation process of this organization provides reasonable assurance that the laboratories accredited by it for immunohematology meet the conditions required by Federal law and regulations. Consequently, laboratories that voluntarily become accredited by COLA for the specialty of immunohematology in lieu of receiving direct Federal oversight and continue to meet COLA requirements would meet the CLIA immunohematology condition level requirements for laboratories. These laboratories performing immunohematology testing are not subject to routine inspection by State survey agencies to determine their compliance with applicable Federal requirements. They are, however, subject to validation and complaint investigation surveys.     

俄罗斯现行刑法的人权保障--以宪法和国际法为依据的人权价值取向及其规范表现

俄罗斯现行刑法以俄罗斯联邦宪法和公认的国际法准则和规范为依据 ,确立了优先保护人权的刑法价值取向 ,并通过规定合法性原则 ,构建遏制、处罚侵害人的权利和自由行为的刑法制度和规范 ,给予犯罪人人道待遇 ,以及将反人类和平与安全国际犯罪纳入国内立法 ,实现刑法人权保障的基本价值取向     

What Determines Judicial Prestige? An Empirical Analysis for Judges of the Federal Court of Australia

This article examines judicial citations to analyze the determinantsof judicial prestige in the Federal Court of Australia. Firstwe construct two alternative measures of judicial prestige forall current and retired judges of the Federal Court. Second,we regress these measures of judicial prestige on a series ofexplanatory variables covering age on appointment, appointinggovernment, prior experience, which law school the judge attended,how many law review articles the judge has published, gender,and tenure. We compare our results with those of previous studiesthat examine the determinants of judicial influence and prestigein courts in the United States and the High Court of Australia.One of the main contributions of the article is to provide evidencefrom an intermediate appellate court that can be used to testthe general application of findings as to what determines judicialprestige in the United States to courts in other countries withdifferent institutional frameworks.     

Toll-free number for reporting adverse events on labeling for human drug products. Interim final rule

The Food and Drug Administration (FDA) is issuing an interim final rule to codify the provisions of the proposed rule entitled "Toll-Free Number for Reporting Adverse Events on Labeling for Human Drug Products" (69 FR 21778, April 22, 2004) (the toll-free number proposed rule or proposed rule) that, under the Food and Drug Administration Amendments Act of 2007 (FDAAA), became effective by operation of law on January 1, 2008. This interim final rule requires the addition of a statement on the labeling of certain human drug products for which an application is approved under the Federal Food, Drug, and Cosmetic Act (the act). The added statement includes a toll-free number and advises that the number is to be used only for reporting side effects and is not intended for medical advice (the side effects statement). As mandated by FDAAA, this interim final rule does not apply to over-the-counter drug products approved as new drugs under the act if the product packaging includes a manufacturer's or distributor's toll-free number for reporting complaints.     

Medicaid program; recovery audit contractors. Final rule

This final rule implements section 6411 of the Patient Protection and Affordable Care Act (the Affordable Care Act), and provides guidance to States related to Federal/State funding of State start-up, operation and maintenance costs of Medicaid Recovery Audit Contractors (Medicaid RACs) and the payment methodology for State payments to Medicaid RACs. This rule also directs States to assure that adequate appeal processes are in place for providers to dispute adverse determinations made by Medicaid RACs. Lastly, the rule directs States to coordinate with other contractors and entities auditing Medicaid providers and with State and Federal law enforcement agencies.     

The Law and the Desert: Alternative Methods of Delivering Justice

This article considers the way in which the Federal Court of Australia has adapted to the native title jurisdiction. Here we see how common law approaches to law and procedure challenge, and are challenged by, the culture of indigenous peoples and customary law. It conveys the risk of cultural violence in a balancing of legal and cultural norms and shows how access to justice debates reach beyond debates about funding and advice into more fundamental issues about legal process and the nature of substantive law. The Court's approach to facilitating access to justice goes deeper than essential procedural changes. Its approach suggests a cultural change within the Court.