德国刑事协商制度研究

德国是职权主义诉讼代表性国家,其刑事诉讼向来以追求实质真实为主要目标。但是由于多种因素的综合作用,以实质真实为目标的传统刑事诉讼正在逐渐被司法实务部门所"发明"的刑事协商所取代。为了拯救传统刑事诉讼的核心价值,同时为非正式协商正名,德国立法机关在2009年通过了《刑事程序中的协商规定》,德国式"辩诉交易"正式成为德国法典的一部分。德国刑事协商的发展历程及其立法规范,对我国刑事诉讼制度的改革具有一定的启发意义。     

Budgetary Negotiations: How the Chilean Congress Overcomes its Constitutional Limitations

Recent research suggests that the Chilean Congress is marginalised in the policymaking process, especially when setting the budget. This paper argues that previous studies have overlooked the fact that the legislature uses two amendment tools – specifications and marginal notes – to increase the national budget and reallocate resources within ministries. This behaviour contradicts the constitution, which only allows Congress to reduce the executive's budget bill. To test this empirically, a pooled two-stage time-series cross-sectional analysis is conducted on ministries for the years 1991–2010. The findings clarify how the legislature surpasses its constitutional limits and demonstrate that specifications are useful to predict when Congress increases or decreases a ministry's budget.     

Who Wins in Settlement Negotiations?

When lawsuits are resolved out of court, what determines thesettlement price? This article uses a laboratory simulationand path analysis to estimate the relative importance of measurablevariables in determining who wins the battle for the cooperativesurplus. In the simulated negotiation conditions, seven variablesexplained more than half of the variation in settlement outcomesachieved by participants, with negotiators’ predictionsof their opponent's reservation prices the most important, followedby negotiator gender and amount of first offer. Although thespecific context of this article is settlement, the insightsgenerated are applicable to any two-party, distributive negotiation.     

Great Expectations: Understanding Bali and the Climate Change Negotiations Process

This article reviews the December 2007 United Nations Climate Change Conference in Bali. It considers expectations for the meeting and whether the event delivered on these expectations. It also evaluates the long-term context of the meeting and examines the discussions in Bali on the post-2012 period (when the Kyoto Protocol's first 'commitment period' expires). The article finds that the Bali meeting did not necessarily meet public expectations or respond directly to the latest scientific assessments calling for urgent action. However, the article also finds that Bali was successful in the context of the prevailing political and diplomatic realities and the immense complexity of the climate change challenge – a problem that does not lend itself to a 'quick fix' solution. The article concludes that Bali produced a solid outcome that gives direction to future talks and sets a clear deadline for their completion. Finally, it argues that, contrary to some experts' opinion, the lack of detail in the Bali outcome may prove to be a strength rather than a weakness, since it provides flexibility to negotiators as they try to craft a consensus by the end of 2009.     

The Devilish Details: Key Legal Issues in the 2015 Climate Negotiations

The ongoing UN negotiations for a 2015 climate agreement have yet to resolve two fundamental legal issues on which its effectiveness will hinge. The first is the precise legal form this agreement will take. Parties had agreed to work towards a ‘protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’. This leaves scope for a range of possible legal forms, only some of which are legally binding. Second, they have yet to determine the legal nature of the ‘nationally determined contributions’ submitted by Parties. This article addresses these two critical issues: on ‘legal form’, it identifies the instruments that could form part of the Paris package, focussing on their legal status, significance and influence; and on the ‘legal nature’ of nationally determined contributions, it considers their nature and scope, the range of options for ‘housing’ these contributions as well as their relationship to the core 2015 agreement.     

The Long Way to the Copenhagen Accord: Climate Change Negotiations in 2009

The Copenhagen Summit did not conclude the 2 years negotiation process initiated in Bali in 2007. Ten official meetings among parties were not sufficient to reach a conclusion on the future of the international climate change regime after 2012. This paper summarizes the main issues addressed by the parties under the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol tracks in the course of 2009, the longest year ever for climate change negotiations, and tries to explain the reasons behind the Summit's failures. Furthermore, an overview of the main points of the Copenhagen Accord is provided together with its implications and relation with the UNFCCC process.     

What is ethically appropriate in Negotiations: An empirical examination of bargaining tactics

Negotiation is an interesting context in which to study ethical judgment. Effective negotiators cannot be completely candid about their preferences, yet some honesty is required for parties to effectively agree. Is there general agreement among negotiators as to which tactics are ethically appropriate and inappropriate? This paper reports analyses of the ratings of 18 marginally ethical tactics by a sample of 320 respondents. Tactic ratings suggest generally strong consensus on those tactics that are appropriate and inappropriate; factor analyses of these ratings suggest tactic groupings that offer partial support for earlier conceptual models. A research agenda is also proposed.