宽严相济刑事政策应回归为司法政策

宽严相济刑事政策在最初提出时具有明显的司法性特征,但随着实践中从司法理解向立法思路的拓展,该政策完成了向"基本刑事政策"的转变。然而,这种扩张解释没有经过系统论证,也不具有全面充分的理由。宽严相济可以在古代的"宽猛相济"中追溯渊源,其中的"宽"就是以对猛政纠偏的面目出现的。当代宽严相济刑事政策的提出,既是对中国法制传统的弘扬,更是对以前过度强调"严打"的纠正。立法的特点及基本品质表明,宽严相济刑事政策不可能直接表现为立法政策;认为该政策涵括了立法政策,会导致以下逻辑困境:无法正确处理和惩办与宽大相结合政策之间的关系;可能导致重复评价或政策的虚无化;立法有自身的品质要求,其缘由是复杂的,并非宽严相济所能涵盖;如果旧的法律规范已经被新法修改,势必不存在所谓"相济"问题。宽严相济刑事政策应回归为司法政策。     

Convergence in British Cultural Policy: The Social,the Cultural,and the Economic

It is increasingly the case that cultural policy at all levels of governance is expected to address a suite of concerns much broader than those traditionally associated with the arts and creative practice. Indeed, in many nations, including most notably Britain, the concerns of cultural policy now embrace the economic and the social, as well as the cultural. In Britain, this convergence is occurring as part of a broader policy concern to ameliorate social exclusion by providing people with opportunities to participate in the creative economy. Drawing on the findings of a major study of the factors shaping cultural policy internationally, this article identifies and maps the priorities, key intersections, and convergences associated with these priorities in British cultural policy. The article argues that, in spite of taking different forms and having varying emphases depending on the constituency and the level of governance involved, the convergence agenda currently dominating British cultural policy is nevertheless remarkably consistent in terms of the discourses surrounding culture, the remit of the cultural sphere, and strategic policy implementation.     

Sources of Stigma: Analyzing the Psychology of Affirmative Action

Numerous speculations exist about the psychological implications of affirmative action. One of the notions most prevalent among policy analysts is that affirmative action is stigmatizing and consequently is psychologically harmful to beneficiaries. In this article, the policy-analytic vision which leads to this conclusion is shown to have strong parallels with a particular interpretation of the formal social psychological framework known as Equity Theory. Flaws in both the policy analytic and the equity theory visions are highlighted through a reconceptualization of the policy in terms of the theory of Procedural Justice. The general argument is that psychological reactions to affirmative action are linked to the actual structure and perceived fairness of the procedures used to implement the policy. A review of the psychological research on the outcomes of affirmative action based on equity theory and procedural justice shows that psychological responses to the policy depend on the nature of policy-procedures. Since affirmative action procedures do vary and also seem to have legal bearing, it is argued that in order to develop an understanding of the psychology of the policy that is both valid, and relevant to policy design, a procedural justice conceptualization is necessary.     

非营利组织税收政策的双重效应分析

由于非营利组织在公益服务领域的特殊地位和作用,各国政府普遍采用了优惠的税收政策来支持其发展.各国对非营利组织税法规制具有优惠性、特殊性和限制性等一些共同特征,其形成原因是由于宗教自由、弥补政府和市场缺陷等方面的需要.该项政策对非营利组织和社会经济发展具有双重效应.我国应积极借鉴他国政府这一方面税法规制政策的经验和做法,努力改善对我国非营利部门的税收管理工作,以促进我国非营利组织的健康发展.     

Conceptual History of Adaptation in the UNFCCC Process

While adaptation has, in the last 3 years, become the most fashionable item on the climate policy agenda, this was not always so. Since the early 1990s, numerous scientists and policy makers have been making the case that adaptation has been the overlooked cousin of greenhouse gas mitigation. As both are seen to be of equal importance, the lack of policy on adaptation is interpreted as a political strategy by developed countries to avoid admitting liability and the financial consequences of this admission. A tension between those in favour of mitigation over adaptation activities has strongly characterized the discourse on climate change policy. However, a closer look at the history of the concept of adaptation as applied in the United Nations Framework Convention on Climate Change (UNFCCC) process underscores the original intention that the treaty should focus on reducing the source of climate change, rather than on adapting to the changes. Adaptive capacity was considered to be an indicator of the extent to which societies could tolerate changes in climate, and was not seen as a policy objective. As a result of events that have unrolled since the inception of the UNFCCC, needs and perceptions have shifted. Today, there are strong grounds for having adaptation as a policy goal, but it must be recognized that the UNFCCC, and its Kyoto Protocol in particular, are first and foremost about abating greenhouse gas emissions. Thus, adaptation policy may find a more appropriate home beyond the existing climate change regime.     

The Effectiveness of the EU's Ozone Policy

Has the EU's ozone policy been effective? In other words: What caused the 90 per cent phase-out of ozone depleting substances (ODS) within the EU? Was it due to an EU-wide regulatory approach, to national circumstances, or to the Montreal Protocol? As EU's environmental policy has not been overly successful so far, it would interesting to know why ozone policy is an area where the EU and its Member States have reached targets effectively over a relatively short time. We suggest that the effectiveness of EU's ozone policy is due to two factors that together secured this rapid phase-out. First, the ozone policy was enacted by means of an EU regulation – rather than by directives – which required all Member States and all larger ODS-generating corporations to implement a ban simultaneously. Second, with the US administration making a u-turn and the increased availability of ODS-substitute chemicals, Europe saw a political opportunity to speed up the phase-out process. A limited study of the phase-out of ODS in Spain supports this argument. While the EU's ozone policy has been effective, its success owes much to particular economic and political circumstances associated with the issue of ozone depletion.     

Genesis of the CDM: the original policymaking goals of the 1997 Brazilian proposal and their evolution in the Kyoto protocol negotiations into the CDM

A body of literature is emerging applying critical consideration to the Kyoto Protocol Clean Development Mechanism’s (‘CDM’) achievement of policy goals regarding sustainable development, geographical distribution of projects and related matters. This article places this literature in the context of the policymaking goals of the CDM’s Brazilian architects. The CDM arose from the Brazilian Proposal’s Clean Development Fund, and was negotiated between Brazil and the United States in the weeks preceding the Kyoto Conference of Parties. The CDM’s Brazilian architects continued to pursue their underlying policy goals by taking a leadership position in the Marrakesh Accords negotiations. During this period Brazil’s primary policy objectives comprised achieving meaningful mitigation of GHG emissions to avoid dangerous interference with the climate system, derailing a perceived US/IPCC initiative to allocate emissions cap obligations in the Kyoto Protocol on the basis of current emissions, and taking a leadership position both among the G-77 and China and in the multilateral climate negotiations as a whole. The CDM arose in this context from the G-77 and China’s desire to coerce the North’s compliance with the North’s emissions cap obligations through an alternative means of compliance. As a result, there was no focus on broad conceptions of sustainable development, or on broad distribution of CDM projects throughout the South. Instead, the CDM’s Brazilian architects envisioned that CDM-related sustainable development would arise exclusively from the presence of the CDM projects. Similarly, the Brazilian Proposal advocated allocation of the Clean Development Fund on a basis proportionate to each non-Annex I countries projected 1990–2010 greenhouse gas emissions. These views persisted through the evolution of the Clean Development Fund into the CDM and through Marrakesh Accords negotiations. This article argues that the CDM has largely met the policy goals of its Brazilian architects and that the pursuit of different, additional, refined or more nuanced policy goals necessitates corresponding refinements to the CDM, or any successor mechanism, specifically targeting those different, additional, refined or more nuanced policy objectives, lending support to the emerging literature proposing changes to the CDM to pursue corresponding policy objectives.     

正义原则与现代中国公共政策的道德基础

现代中国正经历着一系列重大且影响深远的公共政策变革,学界对这种变革的道德基础究竟是什么存在很大争议。本文认为,现代中国公共政策变革的道德基础是正义原则,我们可以在这一原则的框架内构建具有中国特色的公共政策理论。     

THE CONSTITUTIONAL STATUS OF WOMEN: The Burger Court and the Sexual Revolution in American Law

This article analyzes the revolution in Constitutional Law concerning sex discrimination that has been brought about by the Burger Court. It provides an overview of both the doctrinal changes and the policy changes that have composed this legal revolution. It identifies certain policy areas that have troubled the Burger Court during this process and attempts to explain why some policy problems have proved more intractable than others. It concludes with a modest suggestion for dealing with those problems.     

Social junk,social dynamite and the rabble: Persons with AIDS in jail

The issues surrounding AIDS in corrections have forced administrators to develop policy which accurately reflects the realities of the AIDS crisis. Moreover, administrators must base their policy decisions on available research findings, much of which is generated by government agencies and research policy groups. Whereas this research does serve the proper function of guiding policy, it is somewhat removed from the theoretical implications that AIDS has to societal reaction and social class. This article introduces a theoretical framework comprised of Irwin’s (1985) concept of the rabble and Spitzer’s (1975) notes on social junk and social dynamite. In addition to discussing this framework as it relates to social metaphors and social control, the implications to correctional policy are also be presented. The author gratefully acknowledges Marie Mark for her assistance in preparing the final version of this article.     

论刑事政策对刑法理论的影响

本文从刑事政策定义的不同解读入手,通过对欧陆刑法学说史的研究以及对欧陆刑法学行为价值学说的辩证分析,正确阐释了刑事政策对刑法理论的影响及其相互关系。作者认为,现代欧陆刑法学说史证明了刑事政策思想决定刑法理论的走向,而不同国家坚持的不同刑事政策立场决定了一个国家主流刑法理论的选择。同时,刑法理论对刑事政策的制定和推行具有重要影响力或反制作用,我国刑事政策从偏离罪刑法定原则的"严打"刑事政策向"宽严相济"刑事政策的理性回归与转变,正好验证了"刑法是刑事政策不可逾越的藩篱"。     

Public opinion and the politics of obesity in America

Health policy experts have recently sounded the warning about the severe health and economic consequences of America's growing rates of obesity. Despite this fact, obesity has only begun to enter America's political consciousness and we have little information about what average Americans think of obesity or whether they support obesity-related policies. Using unique survey data collected by the authors, this essay examines public attitudes toward obesity and obesity policy. We find that, contrary to the views of health experts, most Americans are not seriously concerned with obesity, express relatively low support for obesity-targeted policies, and still view obesity as resulting from individual failure rather than environmental or genetic sources. Given the absence of elite discourse on this problem, we also find that typical determinants of policy preferences, such as ideology or partisanship, are not good predictors of attitudes on obesity policy. Rather, with a low-valence issue such as obesity, the public utilizes other attitudinal frameworks such as their opinions on smoking policy and the environmental culpability for obesity. The implications of these findings for obesity policy and research on health-related public opinion are discussed.     

论宽严相济刑事政策的实践方向

贯彻宽严相济刑事政策是构建和谐社会的必然要求,是我国刑事基本政策的丰富和发展,是刑罚思想由侧重惩罚、报应转向惩罚与教育并重的重大转变。在司法实践中,正确把握这一政策的实施方向,科学诠释这一政策实施与建设社会主义法治国家之间的内在联系,充分体现社会现实需要并有效调节社会矛盾,是践行这一政策的客观要求。     

Breaking gridlock: the determinants of health policy change in Congress

Prior to the 2010 health care reforms, scholars often commented that health policy making in Congress was mired in political gridlock, that reforms were far more likely to fail than to succeed, and that the path forward was unclear. In light of recent events, new narratives are being advanced. In formulating these assessments, scholars of health politics tend to analyze individual major reform proposals to determine why they succeeded or failed and what lessons could be drawn for the future. Taking a different approach, we examine all health policies proposed in the U.S. House of Representatives between 1973 and 2002. We analyze these bills' fates and the effectiveness of their sponsors in guiding these proposals through Congress. Setting these proposed policies against a baseline of policy advancements in other areas, we demonstrate that health policy making has indeed been far more gridlocked than policy making in most other areas. We then isolate some of the causes of this gridlock, as well as some of the conditions that have helped to bring about health policy change.     

Implications of changing social policy for the medicalization of deviance

Conclusion Since medicalization of deviance is ade facto rather than explicit social policy, it is affected by policy changes in the medical and criminal justice systems. I have pointed to some of the implications of changing social policy on medicalizing deviance. In summary, it appears likely that social policies such as decriminalization, decarceration, the production of more physicians and the enactment of national health insurance may encourage more medicalization. On the other hand, increased individual responsibility for health, the fiscal crisis in medical costs, and the punitive backlash may discourage medicalization and promote some demedicalization. What seems clear from this vantage point, however, is that medicalization of deviance, with few exceptions, remains a residual product of other social policies and its consequences are usually overlooked in policy deliberations. Since medicalization has important social consequences [32], it should be afforded consideration in policy discussions.My thanks to my collaborator Joseph W. Schneider and to Michael L. Radelet and David F. Greenberg for comments on earlier drafts of this paper.     

美国2011年专利法第一案Myriad案评——人类基因可专利性的再思考

Myriad公司从人体DNA中分离的两种基因片断(BRCA1,BRCA2)获得了专利。美国分子病理协会等提起诉讼,宣称人类基因不是可专利性客体,该专利无效。上诉法院判定该基因片断是合法的专利客体,但该判决与最高法院的先例并不完全吻合。在成文法及司法先例对基因类专利都没有明确规定的情况下,公共政策的分析是更适当的切入角度。从政策性角度分析,否认人类基因的可专利性是对社会最有利的政策。专利制度是工具,不是目的。加拿大的有益实践启示我国也应坚持否认人类基因类专利的政策。     

EMU and the Shift in the European Labour Law Agenda: From ‘Social Policy’ to ‘Employment Policy’

This article examines the interaction between EMU and the European Union (EU) employment strategy and its implications for law. It focuses on the importance of EMU as a catalyst in the development of the EU's social and employment policy in the years following the Treaty on European Union in 1992, up to the inauguration of a new employment policy in the Treaty of Amsterdam. In analysing the EU's discourse on labour market regulation, it is arguable that a shift has occurred in the EU's position on the ‘labour market flexibility’ debate: that the EU institutions are more readily accepting of the orthodoxy that labour market regulation and labour market institutions are a major cause of unemployment within EU countries and that a deregulatory approach, which emphasises greater ‘flexibility’ in labour markets, is the key to solving Europe's unemployment ills, along with macroeconomic stability, restrictive fiscal policy and wage restraint. As the EU's employment strategy has matured, this increased emphasis on employment policy has come to displace discourses around social policy. This change in emphasis has important implications for EMU since it signals a re‐orientation from an approach to labour market regulation which had as its core a strong concept of employment protection and high labour standards, to an approach which prioritises employment creation, and minimises the role of social policy, since social policy is seen as potentially increasing the regulatory burden.     

政策变迁的理论与实践浅析

政策变迁通过对政策目标、政策内容、政策手段等某一方面或几个方面的调整,使政策合理化。任何政策都不可能一成不变。可以说,政策变迁贯穿于每个政策过程;并且政策变迁本身就是政策过程的一个子循环。所以,政策变迁是对现行政策进行的变革活动。可能引起政策变迁的原因是多方面的,如:政策主体主观认识的变化、政策自身缺陷的显现等。针对中国政策实践和相关理论研究的实际,既要加强对政策变迁问题的探讨,又要为合理的、必须的政策变迁创造条件。     

Crown Copyright Regulation in the UK - Is the Debate Still Alive?

Having been an observer of public policy towards Crown copyrightfor a number of years now it is interesting to see just howfar government has moved over the past decade in its stanceon the issue. What began as a fairly entrenched viewpoint thatCrown copyright was a necessary instrument of control over theprocess of official publication, seems now to have moved forwardto a position that permits more radical thinking about the policy.Originally the enforcement of Crown copyright was seen as ameans of maintaining control over the publication of the material,with a licensing policy for re-use and added-value exploitationby the private sector publishing industry. The private sectoritself had long argued that the policy diminished prospectsfor the proper exploitation of official information. This itargued had had a detrimental effect, both for the industry itselfand the degree to which the information might be used for thebenefit of the national economy. Government began to listento these arguments but HM Treasury consistently maintained theneed for departments and agencies to recover costs and in somecases obtain profits from the distribution of official information.It was seen very much as a resource belonging to cost centresthat should be exploited. Since the fall of the former ConservativeGovernment it has become clear that those engaged in this debateare no longer as committed to these trenchant positions as theyonce were. Instead it would seem that a more open debate isunderway within a broader reassessment of the nature, organizationand functioning of the public services. This article exploresthe progress in that debate and assesses where the policy nowstands.     

Mental health law and the EU: the next new regulatory frontier?

Over the last decade the EU's engagement with health law and policy has rapidly increased and there is now a growing body of literature highlighting this evolution and the impact of legal and regulatory structures in this area. In contrast the specific impact of EU law and policy in relation to the area of mental health remains the subject of comparatively little engagement. The aim of this paper is to examine whether mental health law and policy will become a major site for EU policy and law in the future. It examines the development of EU policy in this area. It sets this in the context of related legal developments such as the Charter of Fundamental Rights and the new EU Patients Rights Directives. It suggests that while it might be at present premature to envisage that a single body of EU mental health law itself may be unlikely that nonetheless the EU presents what is a potentially very influential site for regulation, law and policy in this area in the years to come.