Covenanting for Nature: A Comparative Study of the Utility and Potential of Conservation Covenants

Conservation covenants over private land are extensively used in some jurisdictions to secure a wide range of public benefits: in some cases primarily to promote nature conservation, while elsewhere to foster conservation alongside greater public access to ‘green’ space. This article considers the use of conservation covenants in New Zealand, Scotland, and England and Wales. It argues that they can play a unique role in balancing nature conservation, property rights and increased public access to private land. It reviews proposals for new legislation in England and Wales and argues that, if it is to be successful, the potential of conservation covenants to secure greater public access to private land should be more strongly emphasised. Their successful use in New Zealand shows that, while recognising the important balancing function that they can perform, this emphasis is critically important if covenants are to fulfil their potential to ‘reconnect’ people and nature.     

论利益权衡下的行政执行与民事执行衔接

行政执行与民事执行,在现行制度和实践中常有冲突。对于二者关系的厘清与处理,我国现行法中缺乏一般而系统的规定,只有个别条款略有涉及且自相矛盾,由此在法律适用上引发了一系列困惑。妥善处理它们之间的冲突,不仅涉及公法和私法上的执行秩序,而且关系到公益与私益的权衡及其保护。理论上,从利益关系的视角,可将行政执行与民事执行的关系处理规则归类为:公益优先主义、私益优先主义、平等对待主义、非利益考量主义。笔者主张,行政执行与民事执行的衔接,应在综合权衡公益私益的前提下,再行决定相关执行程序和具体措施之先后。具体而言,就是以作为执行权基础的实体权利为依归,进行全面的利益权衡,确立公法上债权和私法上债权受偿的一般顺序。同时,为了保证受偿顺序的公平及其公私法上债权的最终实现,还应当建立起执行协调机制。     

Community participation in the certificate-of-need process: a look at ten-taxpayer groups in Massachusetts

Certificate-of-need statutes give designated state agencies veto power over investment in health care facilities. Some states have sought to temper the arbitrary character of this power by expanding the opportunities for community input into the certificate-of-need process. Massachusetts, for example, has enacted a statute that allows groups of ten taxpayers to petition for a public hearing on any certificate-of-need application. Some observers question whether the benefits of taxpayer-group participation are substantial enough to compensate for the delays and abuses that the statute allegedly invites. To help resolve this question, this Comment examines historical data on Massachusetts taxpayer groups and on their activities and assesses the significance of their composition and tactics to the certificate-of-need process. Although flaws exist in the Massachusetts ten-taxpayer mechanism, in this writer's view it has succeeded partially in making the certificate-of-need process responsive to community opinion. Many groups lack the skills and qualities needed to make constructive use of the ten-taxpayer mechanism. Nevertheless, it serves a valuable purpose by creating a public forum for and by encouraging public participation in the certificate-of-need process, especially by those who might otherwise try to circumvent that process through use of special legislation, of private pressure, or of other similar means.     

《反垄断法》私权利保护之比较研究

历经十三年酝酿的《反垄断法》终于颁布与生效了,对于它的讨论亦如火如荼。适逢我们讨论《反垄断法》之秩序、平等、效益等基本价值追求时,笔者认为,在《反垄断法》中,对于利害关系人私权利的保护亦尤为重要,本文欲从比较法的角度,通过剖析我国《反垄断法》私权利保护之缺失,就私权利救济的完善提出笔者之建议。     

Civil rights and regulatory wrongs: the Reagan administration and the medical treatment of handicapped infants

Beginning in 1982 the Reagan administration tried to impose federal regulations (based on the civil rights approach of Section 504) on the medical treatment of handicapped newborns in the nation's hospitals. After issuing three sets of regulations, the administration found itself rebuffed by the courts and in ill repute with providers and parts of the public, especially after its widely publicized intervention in the case of Baby Jane Doe illustrated the pitfalls of federal regulation in complex medical decisions. Congress, however, soon enacted legislation employing different means to protect handicapped newborns. The episode offers insights into the dynamics of the U.S. system of separated powers, the limitations of the "civil rights" approach, and the importance of negotiating structures for the resolution of private moral dilemmas with public implications.     

The impact of vendorship legislation and interprofessional competition in the market for social workers' services.

The results of this article suggest that, in the short run, vendorship legislation will not result in a large shift of social workers from organized settings into private practice. However, vendorship legislation appears to increase the number of social workers in private practice in areas that have not attracted as many psychiatrists. Thus, vendorship may have a favorable impact on the geographic distribution of mental health providers. Vendorship legislation may result in increases in private practice social workers in underserved areas. The results also suggest that social workers and psychiatrists compete in the market for mental health services. In counties with higher psychiatrist-to-population ratios, fees for social workers' services are lower. Further, in counties with higher psychiatrist-to-population ratios, the number of social workers in private practice decreased after vendorship. Finally, there is a large range of optimal practice size for social workers. Social workers with 20 or more clients per month can provide mental health services at the lowest average cost per client. Thus social workers operating either full-time or part-time practices with more than 20 clients per month can provide mental health services efficiently.     

Bodies of science and law: forensic DNA profiling, biological bodies, and biopower

How is jurisdiction transferred from an individual's biological body to agents of power such as the police, public prosecutors, and the judiciary, and what happens to these biological bodies when transformed from private into public objects? These questions are examined by analysing bodies situated at the intersection of science and law. More specifically, the transformation of ‘private bodies’ into ‘public bodies’ is analysed by going into the details of forensic DNA profiling in the Dutch jurisdiction. It will be argued that various ‘forensic genetic practices’ enact different forensic genetic bodies'. These enacted forensic genetic bodies are connected with various infringements of civil rights, which become articulated in exploring these forensic genetic bodies’‘normative registers’.     

民事诉权制度:一种私权的公力救济

民事诉权作为私权的公力救济路径集中展现了宪法的永恒命题,它涉入私权空间范围及其程度折射出私力救济与公力救济之间的辩证博弈;民事诉权介入私权空间的正当性源于私力救济的有限性和公力救济的有效性;民事诉权介入私权空间的程度决定于私力救济的有效性和公力救济的有限性;在宪法框架内私力救济和公力救济达致和谐的配比。     

‘Private jurisprudence’ and the right to be forgotten balancing test

Upon receipt of a right to be forgotten request, private actors like Google are responsible for implementing the balancing test between competing rights of privacy and data protection and free expression and access to information. This amounts to private jurisprudence that data subjects, lawyers, and interested parties could, theoretically, game to their advantage. This paper critiques this process and argues two separate, but related points. (1) Search engines have become the sole arbiter of the rights to privacy and data protection under Articles 7 and of the Charter of Fundamental Rights and Articles 8 and 10 of the European Convention of Human Rights, when safeguarding should be a responsibility of state authorities. (2) As private actors face litigation if their decision is not acceptable to the data subject, the right to access information and the public's right to know is compromised. Search engines exert considerable power over access to and Internet usage, yet nevertheless benefit from frameworks that permit a lack of adherence to similar human rights standards as public actors or agencies. As such, empowering search engines as decision-makers over conflicting fundamental rights is problematic. Rather than allow the content of the right to be forgotten to be fleshed out by private actors, the significant body of existing jurisprudence should form the basis for public guidelines on how to implement the right to be forgotten. An analysis of case law of national courts, the European Court of Human Rights and the CJEU reveals two related matters: it is possible to reverse engineer how search engines determine which requests will be actioned and those which will be denied. This paper argues a) collectively the body of jurisprudence is of sufficient standing to develop a public and transparent balancing test that is fair to all stakeholders and b) private actors should no longer be resolving the conflict between competing fundamental rights. The paper closes by positing a framework, loosely based on ICANN's Uniform Domain Resolution Procedure for resolving conflict between conflicting cyber property rights that provides transparency and accountability to the right to be forgotten and removes search engines as arbiters of the balancing test in select cases.     

The Voice of the Community in Private Law Discourse

Formalist private lawyers, with their view of law as an autonomous sphere and their emphasis upon allocative rules, tend to approach the issue of the harmonisation of private law in Europe with the following question: are the substantive rights and remedies of private individual actors sufficiently similar within each of the Member States to allow for the unification of autonomous private legal systems. Here the issue is essentially one of terminology. While sceptical voices maintain that formal private law is also a more complex matter of interrelated procedures and practices, many formalists conclude that whilst the terms of rights and remedies may differ slightly throughout Europe, there is sufficient substantive convergence to allow for harmonisation. However, lawyers of a sociological persuasion who see private law as being contingent upon society Ð a process reflexively and recursively facilitating economic activities and responding to social change Ð consider harmonisation to be dependent upon the harmonisation of market practices themselves. This paper, one of the most subtle of sociological contributions, tackles this issue with an innovative eye to the increasing blurring of the distinction between public and private concerns. The voice of Europe is the voice of a political collective and theoretically, under the once sacrosanct paradigm of the public/private divide, should not be heard within the 'individualistic' sphere of private law. However, just as national private law judges are generally responding to social concerns and are seeking to integrate collective voices within a once 'atomised' realm, so too are they taking note of the political voice of Europe: attempting to respond to the desire for integration and harmonisation within their jurisprudence.     

俄罗斯现代土地权利构成与发展走向

20世纪90年代以来的俄罗斯土地权利立法变迁,分别以土地再分配和土地权利有效实现为阶段性目标,形成了公私并存的土地所有权体系,以土地租赁为主、限制物权为辅的土地利用制度格局和以公法为主、私法为辅的土地权利规范调整模式。当前在俄罗斯联邦民法典现代化驱动下,对土地以及其他自然资源权利的法律调整彻底回归到私法框架中来,遵循物权逻辑改造土地权利体系,强化土地权利稳定性,扩充土地限制物权类型,增加公民、法人利用土地的机会成为俄罗斯土地权利立法再发展的主旨方向。     

公法法治：从尊重私权开始

对法治问题的探讨已经历时久远,众所周知,法治的核心内容是基于保障个人自由和权利的需要而对国家权力施加必要的限制,现在,我们又处于一个界定权利的时代,一个认真对待权利的时代,因此,明确公法法治的目标显得尤为重要。本文的视角就在于以私权为中心,从公法内外入手来把握公法法治的问题,认为要实现公法法治,必须培育公法主体的现代法精神,使其尊重私权利,公法法治应从尊重私权开始。     

私权在行政执法中的地位——以一则行政案件为分析工具

传统观念认为,公共利益优先于私人利益。但在当前更加强调尊重和保护私权的背景下,该种观念的正当性值得进一步检讨,不能认为私权相对于公权始终处于附属地位。在特定情况下,行政权力依法行使的内涵中应包含尊重私权,国家公权在行使过程中应注意对民事主体私权利的保护。     

民事权益受损者行政诉讼原告资格考辨

民事权益受损者本应通过民事诉讼获得救济,一旦其请求行政机关介入查处违法行为或解决民事纠纷时往往会引发行政诉讼原告资格问题.本文采实质诉权说认为,民事权益受损者起诉权的认定应以公法请求权为基础,故需以保护规范理论为工具探寻公法规范中是否包含保护私人利益的指向,而非简单以侵权行为影响论或行政行为影响论判断受害者的行政诉讼原...     

People matter more than numbers: organized efforts against prison privatization in Florida

As the American prison population increased, so did the correctional labor force. Correctional officers in the United States have gained increased professionalism and strong representation since the 1980s. Meanwhile, many states have pushed to privatize state-run prisons in order to dampen correctional spending. Although a substantial amount of research has been conducted on the comparison of costs and qualities of confinement in public and private prisons, correctional officer labor has so far not been examined. In Florida, Senate Bill 2038, proposing the single largest expansion of prison privatization in US history, was defeated in February 2012 in the state Senate mainly as a result of lobbying by state correctional workers. By investigating the question of correctional labor from a critical perspective and by comparing salary levels, work benefits, training, and education opportunities in public and private prisons in Florida, the professionalism of correctional officers in state-run prisons vs. the working conditions their counterparts face in private facilities is contrasted. The findings suggest that adverse working conditions for correctional officers in private prisons may negatively impact correctional costs and efficiency in the longer term.     

The Supremacy of Techno-Governance: Privatization of Digital Content and Consumer Protection in the Globalized Information Society

The article aims to describe the role of technology and contractin regulating access to digital content deregulating intellectualproperty law monopoly. In particular it argues that the anti-circumventionprovisions for technological protection measures and digitalrights management systems enacted in the United States and inEurope compromise the consumer’s capacity to exerciselegitimate rights, such as the private use exemption, by givingcontent owners extralegal protection for their works. It alsoanalyses how these acts have caused an inappropriate delegationof governmental decision making to a non-governmental entitywith a consequent privatization of the government’s rolein protecting intellectual property and in setting technicalstandards for digital infrastructure and interoperability.     

附带诉讼被害人权利保护缺位及其改进

附带诉讼关系到公权与私权利的关系和公民私权利的冲突。国家公权力介入私权利冲突凸现司法制度的价值取向。如何处理私权利之间的冲突及其与国家公权力的冲突,是制度设计的难点,又是司法程序利益分配和诉讼制度是否公正的检验标准。我国目前的附带诉讼制度,延续浓厚的国家至上的价值观念,牺牲了个体的私人利益,没有从程序上体现出照顾多数、保护少数,维护强者但不漠视弱者的现代司法精神,需要从实体法和程序法及其二者的协调配合予以改进。     

论新生代农民工自救犯罪的特点及原因

所谓新生代农民工自救犯罪,是指新生代农民工在面临对自身生存发展构成的威胁或合法权益遭受侵害时,依靠自己的力量,以非法手段和方式来维护自身权益的犯罪行为,具有犯罪手段暴力化、犯罪主体低龄化、犯罪形式团伙化、犯罪对象确定化、犯罪动机简单化、犯罪事先有预谋等特点。公力救济难到位和社会保障水平低是新生代农民工自救犯罪的外在原因;用人单位违规失信是新生代农民工自救犯罪的直接原因;行为人的人格扭曲是新生代农民工自救犯罪的内在起因。     

Negligence and Human Rights Law: The Case for Separate Development

A number of judges and academics have argued in favour of the convergence of negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part the law of negligence ought not to be affected by human rights considerations. It is argued that the case for convergence is based on two false assumptions, namely that human rights law and negligence law perform similar functions within our legal order and that the norms of human rights law are more fundamental than the norms encapsulated in negligence law. It is also argued that convergence would undermine the coherence of negligence law. Ultimately, the case for separate development rests on the desirability of recognising public law and private law as autonomous normative systems with their own distinctive rationales, concepts and core principles.     

论财产权与征税权的冲突与协调——以权利(权力)性质的法律解析为视角

私人财产权与国家征税权的冲突贯穿于国家税收始终。以财产权与征税权性质的法律解析为视角,对财产权权利性质及征税权权力性质进行定位与论证。财产权与征税权在彼此冲突中实现其权利(权力)价值,而冲突过程的实质亦是两权协调的过程,通过两权的协调最终达到国家与人民的共赢结果。既保障纳税人的私人财产权不受征税权的非法侵犯,又使国家在纳税人依法让渡财产权的基础上奠定其存在物质基础,从而为纳税人提供公共产品与公共服务,增进纳税人的公共福利。