Punishing Wrongs from the Distant Past

On a Parfit-inspired account of culpability, as the psychological connections between a person’s younger self and older self weaken, the older self’s culpability for a wrong committed by the younger self diminishes. Suppose we accept this account and also accept a culpability-based upper limit on punishment severity. On this combination of views, we seem forced to conclude that perpetrators of distant past wrongs should either receive discounted punishments or be exempted from punishment entirely. This article develops a strategy for resisting this conclusion. I propose that, even if the perpetrators of distant past wrongs cannot permissibly be punished for the original wrongs, in typical cases they can permissibly be punished for their ongoing and iterated failures to rectify earlier wrongs. Having set out this proposal, I defend it against three objections, before exploring how much punishment it can justify.

     

论刑事案件中的被害人过错

被害人过错的界定,需要把握被害人行为的不正当性、被害人行为与犯罪行为的关联性以及犯罪行为的针对性.据此展开,判断被害人行为是否构成被害人过错,被害人行为违反某种善良的社会规范是规范条件;被害人主体适格性是主体条件;利益关联性是事实条件;时间关联性是紧密性条件;犯罪行为的针对性是对象条件.国外有关被害人过错的立法例对我国有借鉴意义,被害人过错影响量刑有其刑事法学、文化传统以及自然法哲学方面的正当性与合理性.结合我国刑事司法实践,被害人过错这一酌定量刑情节需要法定化.     

再论法律解释学

本文通过对法律解释学与概念法学、法社会学、价值法学、解释学法学、立法学关系的揭示,旨在厘清法律解释学的概念及其范围。法律解释学是一个偏重方法论的学科,属于实用法学的范畴,是一种能够在一定程度上体现实践理性的法学。法律解释学把司法作为思考问题的出发点,以建构裁判规范为己任,强调根据法律进行解释是其基本方法,但它并不否认其他法学方法融入裁判规范。当代法律解释学承认制定法、法律价值、事物的本质、公共政策、良善风俗等都可以通过发现、论证、解释、衡量进入作为裁判规范的法律,都可以作为法官法源。法律解释学是以司法方法论为核心内容的实用法学。     

Reconsidering Transferred Loss

The Supreme Court's recent reconsideration of the ‘transferred loss’ exception stopped short of clarifying why it is justified at all. The usual candidates are that it applies to loss transferred with property, or operates more broadly to vindicate the claimant's interest in performance. This note suggests that neither is a sound basis for the rule, and that the promisee ought generally to be entitled to sue for loss suffered by third parties, but is obliged to pass on the damages he recovers.     

论人身权侵权获益赔偿的性质、功能与适用

学界通常认为获益赔偿是损害赔偿的一种计算方法,体现的是＂填平＂理念,而《侵权责任法》第20条确定的人身权侵权获益赔偿与损害赔偿的理念不符,其功能也绝不仅仅是填平,而更多地体现了威慑、剥夺不当得利以及保护人身权支配性。获益赔偿的适用独立于损害赔偿、不当得利与不法无因管理,也不应要求被害人必须证明损害;获益赔偿应只适用于故意行为;法律应当允许在获益计算时扣除可变成本,但对扣除项目应作严格限定。     

Environment Rights versus Environmental Wrongs: Forum over Substance?

Beginning with the 1972 Stockholm Declaration, there have been a number of international proclamations of a human right to a clean environment, both implicit and explicit. The highpoint of this movement towards an internationally recognized substantive right to a clean environment came with the 1992 Rio Declaration. This movement has continued forward in regional and specialized regimes – for example with respect to water and indigenous rights. There has also been a parallel move towards recognition of what can be considered procedural rights, which require public access to information, participation in decision making, and access to justice in environmental matters. This article argues that further development and use of these procedural rights will not only provide opportunities to protect environmental rights, but can also further the development of a substantive right to a clean environment.     

Consequential Responsibility for Client Wrongs: Lehman Brothers and the Regulation of the Legal Profession

Should transactional lawyers bear responsibility when their competent actions facilitate unlawful activity by their client? Or is a lawyer's only concern to act in the client's interest by providing her with the advice and support she seeks? The high profile failure of Lehman Brothers provides a unique opportunity to explore these questions in the context of the provision of a legal opinion by a magic circle law firm. A legal opinion which, although as a matter of law was accurate, was a necessary precursor to an accounting treatment by Lehman Brothers which was described by the Lehman's Bankruptcy Examiner as ‘balance sheet manipulation’. The article argues that the law's existing understanding of when consequential responsibility should be imposed on those who assist another's wrongdoing provides a theory and a tool‐kit whose application can be justifiably extended to the professional regulation of transactional lawyers.     

侵权获利返还之请求权基础分析——以第三次修订的《专利法》第65条为出发点

在知识产权领域,侵权损害赔偿额除了以权利人因权利侵犯受到的损失为计算根据之外,还可以以侵权人在侵权期间因侵权所获得的利润作为确定赔偿额的根据,形成了知识产权领域特有的确定损害赔偿额根据的规定.但是,侵权获利返还在不当得利领域以及无因管理制度中有自己的请求权基础.以第三次修订的<专利法>第65条规定中.存在的疑惑为出发点,通过对德国判例和日本法律规定的比较研究,结合即将实施的侵权责任法以及最高人民法院关于精神损害赔偿额确定根据方面的规定,对侵权获利返还请求权基础进行了分析,认为在客观获利范围内,侵权损害赔偿与不当得利均是侵权获利返还的请求权基础,两者形成竞合;对超过客观利益部分的侵权获利,建议明确以惩罚性赔偿为请求权基础,而否定无因管理制度的准用.     

Particular Rights and Absolute Wrongs: Giorgio Agamben on Life and Politics

Over the past decade, as human rights discourses have increasingly served to legitimize state militarism, a growing number of thinkers have sought to engage critically with the human rights project and its anthropological foundations. Amongst these thinkers, Giorgio Agamben’s account of rights is possibly the most damning: human rights declarations, he argues, are biopolitical mechanisms that serve to inscribe life within the order of the nation state, and provide an earthly foundation for a sovereign power that is taking on a form redolent of the concentration camp. In this paper, I will examine Agamben’s account of human rights declarations, which he sees as central to the modern collapse of the distinction between life and politics that had typified classical politics. I will then turn to the critique of Agamben offered by Jacques Ranciere, who suggests that Agamben’s rejection of rights discourses is consequent to his adoption of Hannah Arendt’s belief that, in order to establish a realm of freedom, the political realm must be premised on the expulsion of natural life. In contrast to Ranciere, I will argue that far from sharing the position of those thinkers, like Arendt, who seek to respond to the modern erosion of the borders between politics and life by resurrecting earlier forms of separation, Agamben sees the collapse of this border as the condition of possibility of a new, non-juridical politics.

论法学期刊适用同行审稿制度的“是”与“非”

我国法学期刊的数量相对稳定,其发表论文的容量也无多大变化,但研究人员的数量却在不断增加.因此,如何构建科学合理的审稿制度不仅是法学期刊服务学术的根本要求,还是法学期刊健康发展的关键.同行审稿制度在法学期刊的适用,既有其不可替代的优势,也存在一些广为诟病的缺陷.对这些优势与缺陷的全面梳理,目的在于实现同行审稿制度与三审制的有机衔接,更好地服务于我国法学期刊的良性发展,更好地服务于整个法学学术共同体.     

Trouble-Makers and Interactionism: Reconsidering Quarrels in Institutions for Juvenile Delinquents

The tense relationship between ‘troublesome youth’ and conventional society does not end with incarceration or institutional treatment. Rather, it is transformed into an abundance of interpersonal conflicts within incarceration and treatment. This article uses an interactionist perspective to critically assess five research approaches that account for these phenomena in various ways: 1) quarrels as personality disorders, 2) quarrels as deviant subcultures, 3) quarrels as objects of social control, 4) quarrels and the micro-politics of trouble, and 5) quarrels and the sociology of youth and children. It is argued that an empirically open interactionism within and across the latter four approaches should be sharpened in order to better grasp the social nature and shifting emergence of quarrels in institutional treatment.     

Civil Wrongs: Personal Injury Law in the Late 19th Century

This is a report of data drawn from a study of personal injury actions in the Superior Court of Alameda County, California, and in the federal district court for Northern California, for the period 1880–1900. Tort actions, in this period, were relatively uncommon compared to the number of accidents. The most frequent type of action was against common carriers—railroads and street railways. Malpractice actions were rare. Most fired cases were settled or dropped out before full trial and jury verdict. Though plaintiffs won damages in most jury cases, the overall finding is that the system provided little compensation for most victims of accidents. Tort law and practice disfavored passengers less than employees or "trespassers." Three types of barrier blocked the path to compensation: legal doctrines which made recovery difficult; an accident-compensation system which, especially for workers, discouraged enforcement of claims; and the legal culture, which was a culture of low expectations.     

对人道主义干涉现象的新解读——以社会学方法为研究路径

人道主义干涉现象是客观存在于国际社会中的社会事实。在不同的历史阶段,它的表征形式、法律基础和组织基础各不相同,所以,在评判人道主义干涉这一社会现象时,一定要结合它所处的特定发展阶段来具体考察。对当代人道主义干涉现象的评判标准是现有的实在法体系;具体评判规则包括前提条件、主体要件、手段要求和效果原则。据此,可以判断北约发动的科索沃战争的非正常性。为进一步协调人道主义干涉和现行法律规范之间的紧张关系,有必要强化其执行和制约功能,以使该制度趋于完善。