农地征用及农民权益保护的法学思考

本文对农地的权属进行了界定,提出农地权属认定是决定农民土地权益的深层原因的观点,并进一步阐释了农民土地权利出现残缺的具体表现;以法学的视角深入分析了农地转为城市用地过程中产生的巨额利益及其分配格局;探讨了农地征用制度的改革路径,对完善农地征用法律制度、切实保护失地农民权益具有重要的理论价值和实践意义。     

关注刑事辩护律师的权益保障

年初本刊采访最高人民检察院常务副检察长张耕时,张耕副检察长曾透露说高检正在起草一个有关保障律师依法执业的专门规定。果然,最近最高人民检察院公开发布了这个颇受司法界关注的司法文件枣《关于人民检察院在刑事诉讼中保障律师依法执业的规定》(以下简称《规定》)。     

Using rights and the law to reduce women's vulnerability to HIV

Cathi Albertyn's paper, an edited and updated version of her presentation at "Putting Third First," argues that both human rights and the law can play an important, if limited, role within a wider set of national and international strategies to reduce women's vulnerability to HIV. It analyzes the nature of women's vulnerability to HIV/AIDS, and highlights some of the issues and lessons in using rights and the law to advance gender equality and reduce women's vulnerability to HIV/AIDS.     

Barcelona 2002: law, ethics, and human rights. Using the law to improve access to treatments

The XIII International AIDS Conference in Durban, South Africa in July 2000 focused worldwide attention on the problem of accessing treatments in developing countries. In the interim, thanks to the work of activists - from demonstrations to court cases, and from acts of public courage by people living with HIV/AIDS to ongoing lobbying of politicians and trade negotiators - some very significant developments have occurred. But the reality is that the vast majority of people living with HIV/AIDS still lack access to affordable, quality medicines. This article, a summary of a paper presented at "Putting Third First: Vaccines, Access to Treatments and the Law," a satellite meeting held at Barcelona on 5 July 2002 and organized by the Canadian HIV/AIDS Legal Network, the AIDS Law Project, South Africa, and the Lawyers Collective HIV/AIDS Unit, India, explores three approaches for improving access. In the first part, Richard Elliott provides an overview of the state of the right to health as embodied in international human rights law; comments on the experience to date in litigating claims to the right to health; and identifies potential strategies activists can adopt to advance recognition of the right to health. In the second part, Sharan Parmar and Vivek Divan describe price-control and drug-financing mechanisms used by industrialized countries to increase the affordability of medicines; and discuss how some of these mechanisms could be adapted for use in developing countries. Finally, Jonathan Berger describes the use of litigation in the courts by the Treatment Action Campaign in South Africa.     

论死者生前权益的法律保护

作为个体的人死亡以后 ,原先依附于其身的权益是否依然存续 ?如若存续 ,其存续形式是什么 ?当这种权益形式遭受不当侵害时 ,又如何运用法律手段予以维护 ?近些年 ,因侵犯死者生前权益如名誉、肖像等而涉讼的案件 ,每每引起争论 ,说明有必要对与死者生前权益有关的一些问题进行深入的法理思考 ,并在此基础上探讨如何健全与完善我国维护死者生前权益的法律制度。     

Property rights and externalities: the uneasy case of knowledge

Drawing from Coase’s methodological lesson, this article discusses the specific case of knowledge, which was for a long time chiefly governed by exchange mechanisms lying outside the market, and has only recently been brought into the market. Its recent, heavy “colonization” by the property paradigm has progressively elicited criticism from commentators who, for various reasons, believe that the market can play only a limited role in pursuing efficiency in the knowledge domain. The article agrees with the enounced thesis and tries to provide an explanation of it that relates to the fact that in specific circumstances property-rights can produce distinct market failures that affect the social cost and can consequently prevent attainment of social welfare. In particular, the arguments set forth here concern three distinct externalities that arise when enforcing a property rights system over knowledge. First, the existence of a property right may itself alter individual preferences and social norms, thus causing specific changes in individuals’ behaviour. Second, the idiosyncratic nature of knowledge, as a collective and inherently indivisible entity, means that its full propertization can be expected to produce significant harm. Third, property rights can cause endogenous drifts in the market structure arising from the exclusive power granted to the right holder: though generally intended as a necessary mechanism for extracting a price from the consumer, in the knowledge domain property rights can become a device for extracting rents from the market.     

煤矿生产安全事故中受害矿工民事权益救济初探

频频发生的煤矿生产安全事故给矿工的生命、健康造成了极大损害,受害矿工却只能获得极少的民事赔偿。本文认为,造成实践中损害与赔偿极不对称的原因在于相关制度的短缺,相关法律制度的不完善与司法最终救济的缺失导致了受害矿工不能获得充分合理的赔偿。文章分析了受害矿工民事权益救济的现状,指出了其中存在的种种问题,最后提出了解决这些问题的一些建议。     

Woman to woman marriage and cognates in Nigerian law: an easy coalition between customary law and human rights

This article argues that when conceived as an adoption mechanism rather than a marriage simpliciter, the woman to woman marriage common in parts of Nigeria becomes juridically explicable, and with it, several other cognate customary law arrangements which have proved challenging to scholars and adjudicators historically as well as in recent appellate court jurisprudence. Thus reconceived, the woman to woman marriage and its cognates assail the negative appellate court jurisprudence thereon and their ramifications become amenable to exposition in ways that evince the genius of the arrangement and its designers’ ingenuity.     

论刑事简易程序中被告人权益之保障

刑事程序的简易化作为一种世界性的实践,已为许多国家所接受.我国顺应世界刑事诉讼发展之趋势,并结合司法实践的需要,在修改刑事诉讼法时增设了简易程序,从而使我国的刑事诉讼程序更具科学性和灵活性.但我国首次设立的刑事简易程序,"以提高诉讼效率为主要目的"[1],与现代刑事诉讼所追求的双重价值目标--公正与效率不符,也与被告人人权保障之国际标准存有差距.本文拟对刑事简易程序中被告人权益保障问题作一探讨,以期完善立法.     

完善农民消费者合法权益的保护体系

完善农民消费者合法权益保护体系既是由农民消费者本身的特点决定的,也是严峻现实的需要.在观念层面上,要强化农民的权利意识与法律意识,达到"以法抗争",实现依法自我维权之目的;在制度层面上,要完善或制定相关的法律制度,实行国家法制保障.而强化行政机关对农民消费者合法权益的保护和完善司法机关对农民消费者合法权益的保护则是重点.     

沦"儿童最大利益优先原则"在中国的确立——兼论《婚姻法》等相关法律的不足及其完善

International documents like the Declaration of the Rights of the Child (1959) and the Convention on the Rights of the Child (1989) propose that in mediating on children issues, the best interests of the child should be the primary consideration. In China, the Constitution and the Law on the Protection of Minors have already set out the terms in principle for the protection of minors, however, it has not been defined in the Marriage Law (2001). In order to enforce the commitment of respecting and safeguarding human rights, the child’s best interest principle should be established in marriage and family law, along with amending related provisions. Chen Wei is a professor of law, and director of the Research Center for Foreign Family Law and Women Theories in the China Southwest University of Political Science and Law. She is in the teachings of civil law, family law, law of succession, the history of civil law and comparative family law for years. During 2003–2004, Prof. Chen, being a visiting scholar, studied foreign family laws in the Faculty of Law, Sydney University. In academic field, she has published over 50 research articles in China and abroad; and her monograph is Research on the Legislations of Marriage and Family Law of China (2000). Further, she has taken charge of editing over 10 books, for instance, A Comparative Study of Family Laws between the Mainland and Hong Kong, Macao and Taiwan of China (2002), A Comparative Study of Foreign Marriage and Family Law (2006) and A Comparative Study of Succession Laws among the Mainland, Hong Kong, Macao and Taiwan of China (2007).