“债随物走原则”的重构与发展——企业重大资产出售中的债权人保护

最高人民法院在《改制司法解释》中规定了”债随物走原则”，但由于错误解释了其理论基础，该原则在适用中存在诸多缺陷。尽管最高人民法院最近对该原则有所发展，但仍不尽如人意。《改制司法解释》第6条的理论基础为对优惠性清偿的遏制，随着《企业破产法》第32条的生效，该条在中国实践中已无存在必要。虽然《改制司法解释》第7条的适用范围被明确为针对恶意逃债的欺诈行为，却缺乏对欺诈的具体认定标准。借鉴美国法中继受人责任制度的经验，可确立第7条适用中界定欺诈的客观标准，并改进救济手段；并可发现中国法律中缺乏在企业资产并购中对未来债权人的保护制度。扩大第7条的适用范围，可以打击所有企业资产并购中对债权人的欺诈行为。中国还需要通过建立继受人责任制度，以保护在资产并购中可能受损的未来债权人。     

传统德育理念的新审视

从冲突与和谐的关系出发,对传统德育理念进行反思,是很有启发意义的.文明社会应该提倡"见义智为",从"见义勇为"到"见义智为"是社会文明的必然产物."学会分梨"更加符合当代儿童的道德心理特点与社会现实对儿童成长的要求.消极因素面前一味躲避退让是无济于事的,只有用积极的态度对待消极影响才更加有益.忠孝教育应以坚持真理为前提.     

Humanitarian Assistance and Changing Notions of State Sovereignty

Netherlands International Law Review -     

保证债务与主债务的诉讼时效关联

保证债务诉讼时效与主债务诉讼时效的关系应当遵循"从随主"原则:保证债务诉讼时效期间适用主债务诉讼时效期间;主债务诉讼时效中断或中止,原则上保证债务诉讼时效同时中断或中止,反之则否。保证人享有和行使时效抗辩权具有一定程度的相对独立性:主债务被重新确认导致主债务人丧失原时效抗辩权,但不影响保证人享有和行使主债务时效抗辩权;保证人放弃主债务时效抗辩权或保证债务时效抗辩权的,应区分保证成立的原因关系以确定保证人是否丧失求偿权。保证人放弃主债务时效抗辩权或者保证债务时效抗辩权的,即丧失另一时效抗辩权。     

On Fairness and Efficiency

Vanessa Finch, Corporate Insolvency Law – Principles and Perspectives, Cambridge: Cambridge University Press, xxxix + 616 pp, pb £35.00.     

论刑事诉讼中实体公正与程序公正之关系

程序公正近年来在我国法学理论界引起很大争论与探讨,就刑事诉讼中实体公正与程序公正之关系,各种观点百家争鸣,而该问题不仅为诉讼理论问题,且关系到诉讼中人权保障、诉讼模式等一系列实质内容,但有些提法抛开法律文化背景与法制现状,一味强调程序优先或过分坚持实体优先,有失偏颇。     

Expertise, Counterfactual Thinking, and Fairness Perceptions: A Test of Fairness Theory

While fairness theory (Folger & Cropanzano, 1998, 2001) suggests perceptions of injustice are due to accountability judgments and counterfactual thinking, few studies have examined the influence of contextual variables on counterfactual thinking and the mediating role of counterfactual thought. Further, the few studies that have examined this have resulted in mixed findings, which may be attributable to the methodology used. The present research utilized a unique approach to examine fairness theory: the double-randomized design. Study 1 showed that agent expertise is related to would and should counterfactual strength and the generation of other-attributed counterfactuals (X → M). Study 2 showed that would and should counterfactuals are related to fairness perceptions (M → Y). This study integrates previous research examining fairness theory and highlights the importance of counterfactual thoughts on fairness perceptions when a person’s level of expertise is made salient. Additional implications for research and practice are discussed.     

Affect and Fairness in Economics

A strained relationship exists between mainstream economics and ethics. Over the last decade, behavioral economists have strongly argued for the importance of fairness in motivating behavior, based on substantial experimental evidence. Two main approaches to the modeling of fairness have been proposed: the outcome-based inequity aversion approach, and the intention-based reciprocity approach. Both approaches have been quite successful in explaining the experimental evidence. Nonetheless, this paper questions the role that is assigned to fairness in these models and the way fairness is incorporated, using recent experimental findings concerning emotions and fairness perceptions. The analysis supports the view that feelings are important for justice, also from a policy perspective, and pleads for closer attention being paid to the functioning of emotional brain systems.

Insider Privatisation and Restructuring Incentives

In the literature on privatisation and restructuring it is a generally held belief that manager owned firms will be restructured more rigorously than worker owned companies. This gives the clear recommendation that property rights and control rights should be allocated to managers in the process of (insider-) privatisation. One of the implied arguments is, that managers' career concerns will make them eager to prove their ability by improving company efficiency. The present model shows that in the transition context managers' career concerns might result in the opposite effect. If the bulk of job opportunities are in worker controlled firms, the managers of the few manager controlled firms will want to appear soft on excess labour capacity – hence, restructure less harshly – in order to improve their career opportunities.     

Gender, Police Arrest Decisions, and Notions of Chivalry

The extent of preferential treatment toward female offenders during arrest has been a neglected topic in research on female criminality. This article uses data collected in 1977 during police-suspect encounters with 785 males and females to explore the existence of chivalrous treatment of female offenders in the initial stages of criminal processing. These data indicate that chivalry exists at the stage of arrest for those women who display appropriate gender behaviors and characteristics. In general, the findings suggest that female suspects who deviate from stereotypic gender expectations lose the advantage that may be extended to female offenders. Specifically, older, white, female suspects are less likely to be arrested than their younger, black or hostile sisters. In addition, in the initial stage of criminal processing, female property offenders receive no leniency, and some evidence suggests that offenses against property weigh we heavily in arrest decisions for females than for males. Differences in the factors influencing police arrest decisions for male and female suspects are also examined.     

Fairness in Bargaining

This paper uses historical and contemporary philosophical discussions of fairness to present a structural approach to the definition of fairness. After establishing a set of standards (not a specific definition), we assess the impact of fairness in negotiations and bargaining. Our analysis concludes that truly fair behavior is absent in bargaining and negotiations. Instead, behaviors that have been called just can also be characterized as self-interested. Our review suggests that the term fairness has been used rather loosely, as a convenient label or as a more palatable alternative to self-interested explanations for an individual's choices. For reasons of both parsimony and accuracy, we recommend that the self-interest of the actors be carefully considered before calling their bargaining behavior fair.     

Some Remarks on the Notions of Legal Order and Legal System

Abstract
In this paper, the authors discuss some problems related to the existence and identity of legal norms and legal systems. Firstly, two criteria for identification of legal norms are analyzed: linguistic criteria and non-linguistic criteria. Secondly, the dynamics of legal systems and the distinction between legal system and legal order are examined (close to Raz's distinction between momentary legal system and legal system). Based on the logical relations of membership and inclusion, two ways of analysing the change of legal systems are suggested. Thirdly, a criterion for identification of legal orders (from Bulygin) is discussed and it is shown that this criterion does not explain adequately, on the one hand, the existence of some norms, i.e., customary norms; and, on the other, the existence of invalid norms; i.e., unconstitutional norms. The main conclusions of this paper are: (a) the concepts of legal system and legal order could not explain the existence of law in a given society; (b) the concepts of legal system and legal order could be considered models of rational normative systems.     

债务更新及相关问题的探讨--析长城信托、恒利通中心与兴丰公司借款合同担保追偿权纠纷案

一、案情介绍 1996年7月29日,恒利通中心向中昊财务公司借款人民币2000万元, 中国农业银行信托投资公司(下称农行信托)为恒利通中心提供担保,兴丰公司向农行信托提供反担保,约定兴丰公司对农行信托的担保资金本息及费用与恒利通中心共同承担连带责任。1996年11月29日,农行信托更名为中国长城信托投资公司(下称长城