论欧盟条约中的辅助性原则

《欧盟基础条约》和尚未生效的《欧洲宪法条约》均规定了辅助性原则。虽然该原则不可避免的具有内在的模糊开放性,但仍不影响它作为一项宪法性原则的地位。辅助性原则最大的意义在于:为在欧盟和成员国或其他主体之间选择最为合适的权力行使主体提供了程序性的保障,因而提供了一个促进协调以取得平衡的重要概念空间。     

Christian Wolff on Subsidiarity, the Division of Labor, and Social Welfare

In more than one way Christian Wolff (1679-1754) has provided the grammar for modern social sciences in general, but economics in particular. Next to his path-breaking contributions to philosophy and international law, which are generally recognized, he has also pioneered the social sciences and provided the notions with which modern economics is still largely working. This is important also for modern law and economics research, since Wolff conceived of both law and economics still largely as one discipline and therefore was able to integrate naturally what has today to be integrated conscientiously, and with effort.     

辅助性原则与中国行政体制改革

20世纪50年代,德国学者在反思福利行政时率先提出了辅助性原则。此后的半个世纪,辅助性原则在西方国家解决国家与个人关系、中央与地方关系以及欧洲一体化与国家主权之间的关系中扮演了重要角色。中国当下行政体制改革的核心任务是政府职能转变,而政府职能问题恰好是辅助性原则首先要解决的问题,因此可以将辅助性原则作为中国行政体制改革的理论基础。     

The Way We Do Europe: Subsidiarity and the Substantive Democratic Deficit

The new institutional framework of subsidiarity is expected to lower the EU democratic deficit. In contrast to this optimistic scenario, I argue that the success of subsidiarity depends on its capacity to unravel the EU's ‘substantive’ democratic deficit. Linked to the Union's functionalist institutional design, this dimension of the democratic deficit has developed due to two limitations of EU‐level politics. First, the EU functionalist design has narrowed the range of topics open to democratic debate (horizontal substantive democratic deficit). Second, the proportion of the debate which we could genuinely describe as being political is declining as a result of the de‐politicisation of EU goals, underpinned by a massive accumulation of allegedly apolitical expert knowledge (vertical substantive democratic deficit). Against this background, I contend that by involving actors relatively alien to the EU functionalist thinking, subsidiarity could offer an opportune ground for the re‐politicisation of democratic ‘blind spots’ in EU policy making.     

Democracy,Subsidiarity, and Citizenship in the ‘European Commonwealth’

Is there a ‘constitutional moment’in contemporary Europe? What if anything is the constitution of theEuropean Union; what kind of polity is the Union? The suggestionoffered is that there is a legally constituted order, and that asuitable term to apply to it is a‘commonwealth’, comprising a commonwealthof ‘post-sovereign’ states. Is it a democraticcommonwealth, and can it be? Is there sufficiently ademos or ‘people’ for democracy to be possible?If not democratic, what is it? Monarchy, oligarchy, ordemocracy, or a ‘mixed constitution’? Argued: thereis a mixed constitution containing a reasonableelement of democratic rule. The value of democracy isthen explored in terms of individualistic versusholistic evaluation and instrumental versus intrinsicvalue. Subsidiarity can be considered in a similarlight, suggestively in terms of forms of democracyappropriate to different levels of self-government.The conclusion is that there is no absolute democraticdeficit in the European commonwealth.

     

From watchdog to sneak: the UK's new trade mark notification regime

Legal context: This article discusses the move from ex officio refusal of trademark applications based on relative grounds, to a notificationregime. The order making power for this derives from Section8 of the Trade Marks Act 1994. Owners of qualifying earlier registered rights, in respect ofwhich registration of the subject application would be consideredto lead to a likelihood of confusion, will be notified of thelater subject application, and must decide for themselves whetherto oppose. Key points: The article examines the justification for such a shift, interms of the need for a proper evidence and submission basedevaluation of the respective marks, as well as the need to takeall market factors into account in any evaluation. It also addressesthe legal and cultural shift entailed in such a change. Finally,the article attempts to set out three objective measures bywhich an evaluation of success could be measured. Practical significance: The change will affect all those who already have, or will have,registered trade mark rights in the UK. The author's concernin particular is for those who will be receiving notificationletters and what their response might be - given that many willbe unrepresented. The author also believes that more notificationswill be sent out than marks that are currently ‘cited’.     

Subsidiarity and 'Arguability': the European Court of Human Rights' Case Law on Judicial Review in Asylum Cases

The European Court of Human Rights’ case law on judicialreview in asylum cases is not entirely consistent. However,it can be interpreted as consistent if two presumptions areaccepted. First, that, as the Court's role should be subsidiaryto that of domestic courts, domestic judicial review shouldat least be of the same quality and substance as the EuropeanCourt of Human Rights’ review. Secondly, that the Courtdistinguishes between arguable and non-arguable cases not justin the context of Article 13 ECHR and of the admissibility ofapplications, but that this distinction is central to its entirecase law about the asylum procedure. This analysis results ina coherent doctrine on deadlines for submitting evidence, theburden of proof, the intensity of judicial review, and suspensiveeffect. If the Court understands its case law in this way, itcan prevent it from becoming, in some respects, a court of firstinstance.     

The English protoindustrial family: old and new perspectives

English research on protoindustrial communities in general and the protoindustrial family in particular has fallen somewhat behind that in many continental countries. Constrained by inadequate sources and a historiographical literature that has constantly placed the small and simple nuclear unit at the heart of English residential arrangements, English historians have often seen the protoindustrial family as little different in form and function from those to be observed in rural areas or market towns. This article uses sources generated by the English poor law to offer different perspectives. Focusing on Lancashire, as the protoindustrial phase of its development began to truly break down in the early 19th century, the article suggests that the English protoindustrial family was volatile in form and size and that the nature of underlying protoindustrial demography and the communal welfare system provided a powerful impetus to a process that saw the constant redistribution of kin between related households. It concludes that in Lancashire the expectation among protoindustrial families must have been volatility and that complex families rather than simple nuclear families have long held the English imagination.     

Constitutionalising Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union

Abstract:  The article establishes three propositions. First, if a constitution establishes the principles of subsidiarity and proportionality as legal principles, questions of competencies are closely tied up with questions of regulatory policy. This means that the Treaty carves out a powerful role for the Court of Justice to assess the jurisdictional reasonableness of market intervention when reviewing whether the EU was legally competent to act. Second, general scepticism about courts being able to play such a demanding role in policing jurisdictional boundaries in federal systems are unjustified in the EU. The new procedure established in the Constitutional Treaty, which is likely to be included in any renegotiated constitutional settlement, involves national Parliaments and the Commission building a written record addressing the relevant policy issues on which the court can base its review. Additionally national courts serve as an external check on the Court of Justice, disciplining the Court of Justice to focus on taking competencies seriously or facing the prospect of national courts disapplying EU law on the grounds that it was enacted ultra vires. Third, even though there are some promising points of departure in its case law, the Court of Justice has not yet adopted a doctrinal framework that effectively operationalises the Treaty's commitment to subsidiarity and proportionality in the context of the common market.     

Judicial Review in the European Community: The Environment, Subsidiarity and the Question of Intensity

This paper examines the manner in which the EuropeanCourt of Justice has developed certain principles enunciated inthe Treaty into judicial review standards. It focuses on thelimited intensity of that review in relation to subsidiarity andthe environmental principles. The paper contends that reviewcould be intensified by use of institutional declarations on theprinciples as aids to interpretation.     

Incoterms2010：自由穿梭于国际贸易与运输之间的新规则

国际货物买卖合同与国际运输合同在法律属性上虽然各就其位,但一直“并驾齐驱”地实践着跨国货物的输出与输入的职责,而自由地穿行于两者之间的国际习惯法便是Incoterms2010。租船订舱被视为买卖双方最重要的权利与义务之一,而新的货物风险转移标准与时俱进,无比折射着国际运输法则的理念。赋予Incoterms2010术语在国内贸易与国际贸易领域同等的效力,再次印证了国际盛行的自由贸易区演变规律。鉴于THC费用的纷争错综复杂,借助传统的公法——班轮公会反托拉斯豁免制度干预私法领域,增加了Incoterms2010保护交易的公平与秩序的砝码。     

区域协同立法的合法性困境与出路——基于辅助性原则的视角分析

区域协同立法的合法性困境主要体现在缺乏直接的《宪法》《立法法》依据,地方立法机关因为惧于区域协同立法面临的违宪违法风险鲜于从事区域协同立法活动。区域协同立法合法性依据的缺失背离了限制权力的法治原则,容易导致地方立法权的滥用和地方保护主义的再次强化。辅助性原则为破解区域协同立法合法性困境提供了有益启示。基于辅助性原则的基本主张,我们首先需要尊重地方的探索试点精神,同时尽快启动中央干预措施,可以通过修改《立法法》赋予区域协同立法以合法性,在上级干预措施的选择上,基于比例原则的要求,也可以采用法律解释的形式赋予区域协同立法以合法性,这样既能维护法律的稳定性和权威性,同时也可以使区域协同立法早日摆脱合法性困境,以便更好地服务于跨区域社会治理和区域一体化进程。     

Structural conditions for novelty: the introduction of new environmental clauses to the trade regime complex

When do parties introduce novel clauses to a system of contracts or treaties? While important research has investigated how clauses diffuse once introduced, few empirical studies address their initial introduction. Drawing on network theory, this paper argues that novel clauses are introduced when agreements are concluded in certain structures of earlier agreements and the clauses they include. This paper demonstrates this argument using the example of 282 different environmental clauses introduced into the trade regime complex through 630 trade agreements concluded between 1945 and 2016. We find that trade agreements are more likely to introduce novelties when they involve parties with a diversity of experience with prior environmental clauses and introduce more novelties when more parties are less constrained by prior trade agreements between them. Contrary to prevailing wisdom, power asymmetry between the negotiating parties is not statistically significant.

     

试论商业秘密权及其法律特征

我国反不正当竞争法第十条规定:“商业秘密”是指“不为公众所知悉,能为权利人带来经济利益,具有实用性并经权利人采取保密措施的技术信息和经营信息”,规定通过不正当手段获取、泄露或使用他人商业秘密属于违法行为。新刑法第二百一十九条规定,侵犯他人商业秘密给权利人造成重大损失的,构成刑事犯罪。这就从民事法律和刑事法律上确立了一项权利——商业秘密权。