我国政府过程性信息公开的困局与纾解

在我国。政府过程性信息是否公开随着个案的陆续出现引发了较大的争议,相关立法、行政机关、司法机关对此存在着不同的判断。在城外一些国家信息公开的立法与实践中,均对过程性信息的公开有着充分的考虑和细致的制度规定,值得我国借鉴。为平衡公众知情权与行政机关的行政权。我国信息公开立法应将政府过程性信息列入免于公开的范围,但须制定公共利益的特别裁量标准,如公共政策的制定等影响面较大的政府行为,应最大程度地将政府过程性信息公开。     

The Parliamentary Standards Act 2009: A Constitutional Dangerous Dogs Measure?

The scandal which broke over MPs' abuses of the allowances system during the course of the last parliamentary session shows little sign of abating. As a result of an audit undertaken by Sir Thomas Legg, some MPs have been required to repay sums which were successfully claimed up to five years ago. Although this development has been welcomed by the public, it has been condemned by some in Parliament as being retrospective and unfair. In this article, the discussion focuses on the key provisions of the Parliamentary Standards Act 2009 which was enacted in order to tackle the issues raised by the expenses scandal. It considers their import and how they are likely to apply in practice. Since the Act is a further example of ‘fast‐track’ legislation, there was no opportunity for pre‐legislative scrutiny. This may help to explain why the Act differs in several important respects from the Bill which was originally introduced. It is highly likely that the 2009 Act will be the subject of post‐legislative scrutiny, especially since it contains a renewal provision.     

SLAPPs: Intent or Content?Anti-SLAPP Legislation Goes International

Due to the increasing interest in adopting anti-SLAPP legislation outside of the USA (where it was first implemented), the definition of what constitutes a SLAPP is being questioned. Some commentators have advanced the suggestion that, in order to account for jurisdictional differences, outside of the USA it is the motivation to intimidate or chill public speech that is the aspect of a SLAPP on which anti-SLAPP legislation must focus. However, defining SLAPPs by the initiator's alleged intent to intimidate can render anti-SLAPP legislation, in any jurisdiction, ineffective. SLAPPs should be defined by the involvement of public participation, rather than by the intent of the SLAPP plaintiff. Effective anti-SLAPP legislation employs procedural protections that are engaged once a threshold demonstration has been made that the case involves protected public interest communications. Generally, this approach is appropriate to adopt in any jurisdiction where the legislature desires to protect public interest communications.     

The Children Act 1989: Some implications for management and practice

Conclusion Given that the Government has accepted much of the research evidence as indicative of poor performance of local authorities in making and implementing plans for helping children and families, and of the unwillingness or inability to involve parents and children in identifying needs, it is clear that some authorities will need to engage in a major re-think of policies, procedures and practices. Moreover, the idea of a mixed economy culture may be a difficult pill to swallow but the medicine must be taken. It is evident from the account presented here that much will be gained by authorities undertaking an audit utilising not only the provisions of the Act but also an appreciation of developments which have influenced its form.Whether one agrees with its philosophy or not the Children Act 1989 represents a very clear statement of Government intentions. All concerned with the care and upbringing of children should take it seriously. Paradoxically, while encouraging private ordering, its success in promoting and safeguarding the welfare of children may only be measured through the resolution in court of conflicts between families and public authorities about what constitutes good parenting. That these issues raise ideological and economic questions, particularly about the availability of services, should not divert us from the clear messages in the legislation.General Editor. Principal Lecturer in Law, Liverpool Polytechnic.     

可持续发展的实施与公众的行政参与

在全球经济不断发展之时,尽管可持续发展战略早已提出.但在具体实施方面却少有成效,其原因不仅在于可持续发展理念的欠缺和制度的缺乏,更主要的是因为在实践中缺乏必要的公众行政参与.公众作为可持续发展的直接受益者和受害者理应成为可持续发展实施的关键.为保障可持续发展的实施,必须让公众融入其中,让公众参与到与可持续发展实施有关的行政立法和行政活动程序之中,并应保障公众行政参与权的实现.     

论我国规制网络言论立法之完善

法律在规制网络言论中具有重要作用,目前世界上多数国家都有规制网络言论的法律规定。我国规制网络言论的立法覆盖面广,各领域基本做到了有法可依,但存在立法层次低、权威性不够以及法制不统一等问题。完善规制网络言论的立法,应遵循必要性原则、明确性原则和公众参与原则。国务院应加强对行政法规、规章的审查和清理工作。全国人大常委会应适时出台《网络信息管理法》和《个人信息保护法》。     

论民事诉讼程序中的公共利益

在民事诉讼程序中,只要公共利益的主张会引起对私人利益的限制与克减,就必须存在一定的程序系统来保证这种限制与克减的正当性与合法性,因此,公共利益的正当性只有通过对程序的约束方能实现,非优先性和法定性就成为程序对公共利益的自然要求.法院作为民事诉讼程序中的公益代表,同样也具有自利性,但其自利性在程序中应当处于辅助地位,为公益性服务.     

行政强制执行时间限制与拒绝给付禁止之制度解析——评《行政强制法》第43条

《行政强制法》第43条规定关涉的行政强制执行时间限制与拒绝给付禁止之规定透射出这样的利益博弈:公民权的保障与行政权的限缩、个人利益的凸显与公共利益的隐退。由此足以解读立法者设置该条的旨意。该种立法内容设计存在正当性瑕疵:从宏观上来看,存在与该法同一章节预置规则相冲突之嫌;从微观来看,内容设计之科学性不足。基于此,行政强制执行时间与手段限制的革新应以"抑公扬私"的立法理念为导向探求行政强制执行时间的限度;从法律依据、适用条件、程序设置等方面规制拒绝给付制度。     

行政信赖保护之立法思考

人们对信赖保护的认识已经提到了一定的高度 ,将信赖保护规定在行政程序法之中已基本上形成共识。但信赖保护究竟是作为具体法律规则的立法还是作法律原则的立法 ,甚至能否作为行政程序法的立法目的之一 ?信赖保护仅仅是实体性保护 ,还是包括程序性保护 ?在构成要件上 ,是否需要与公共利益相权衡 ?在保护请求权上是否需要设定时效 ?等等 ,这些问题需要在立法上引起足够重视并得到妥善解决 ,以让信赖保护能够收到良好的效果。     

Beyond the property debate: animal welfare as a public good

Abstract

Animal protection is socially constructed through laws specifying which animals should be protected and how. Most jurisdictions codify animal abuse by specifying the legal protections granted to animals. While these vary between jurisdictions, western legal systems generally provide for better levels of animal protection by incorporating animal welfare and wildlife crime laws into criminal justice systems. UK legislation has long held that animal welfare is a public good, thus animals should be protected in the public interest. However, despite the protective provisions of animal protection laws they generally fall short of giving animals actual rights, protection exists only to the extent that animal and human interests coincide. Animals’ legal status as property dictates that much anti-animal abuse and wildlife crime legislation is about allowing animal exploitation commensurate with human interests. However, UK legislation in the form of the Animal Welfare Act 2006 subtly shifts this position in respect of domestic animals by imposing a duty of care towards companion animals. This paper argues that by requiring owners and responsible persons to give active consideration to the needs of individual companion animals, the Animal Welfare Act provides animals with a level of protection that amounts to a form of legal rights.     

Mens Rea by the Numbers

Before the recent presidential election, a bipartisan congressional effort was made to pass a criminal justice reform bill. The bill faltered in part because of a proposed default mens rea provision: statutes silent on mens rea, that were not explicitly identified as strict liability by the legislature, would be taken to require for guilt proof of knowledge with respect to each material element. This paper focusses on a prominent line of disagreement about the default mens rea provision. Proponents argued that it would reduce the number of unjust verdicts in corporate cases. They noted that there have been convictions of corporations and corporate officers for public welfare offenses in instances in which there was good reason to believe that the defendants lacked mens rea. They touted the legislation, then, as a way of reducing the false positive rate. Opponents noted that the provision would also reduce the rate of true positives in corporate prosecutions—convictions of those possessing mens rea who could not be proven to—and opposed the legislation on those grounds. Both sides, then, accepted that the relevant question was, in part, numerical: under the provision, would the reductions in guilty verdicts of those lacking mens rea outnumber and outweigh the increases in acquittals of those possessing it? This paper critically examines this numerical approach for assessing and justifying the default mens rea provision. The paper argues that there is a small domain under which it is appropriate to reason in such numerical terms about a default mens rea provision, but that that domain is so small as to make such arguments inappropriate when it comes to sweeping legislation, such as that proposed. The paper further argues that in light of this conclusion the default mens rea provision must be examined non-numerically, through appeal to principled considerations about the necessary conditions for morally justified infliction of punishment. When such arguments are freed from numerical considerations of the kind that dominated the public discussion of the legislation, they decide the matter: the default mens rea provision deserves bipartisan support.     

Is There a Duty to Legislate for Linguistic Minorities?

In April 2005, the Scottish Parliament passed the Gaelic Language (Scotland) Act 2005, requiring certain public bodies in Scotland to provide some services through the medium of Gaelic. This Act was modelled to a certain degree on similar legislation for Welsh, the Welsh Language Act 1993. Both Welsh and Gaelic, and to a lesser extent Irish in Northern Ireland, benefit from a range of other measures of legislative support. Many other languages are, however, spoken in the United Kingdom, and their speakers have needs and expectations. In this article, the extent to which a state is obliged to legislate for these is assessed. Fundamental principles such as the right to freedom from discrimination, equal protection of the law, substantive equality, and the protection and promotion of cultural and linguistic diversity may argue for legislative intervention and support, and the provision of such support to linguistic minorities must itself be non-discriminatory.     

Human-nonhuman chimeras: a regulatory proposal on the blurring of species lines

The chimera of modern biotechnology is defined broadly as a single organism composed of a mixture of materials from two or more organisms possessing distinct genetic backgrounds. Unlike the United States, which does not regulate chimeras directly, Canada has responded to the unregulated pursuit of chimera technology by banning certain chimeras as part of comprehensive legislation designed to regulate human reproductive technologies. In 2004, the Canadian Parliament passed the Assisted Human Reproduction Act despite criticism urging greater legislative justification for the Act's provisions and modification to it statutory definitions. Because current regulatory mechanisms in the United States, including patent law and administrative oversight, fail to regulate chimera technology, the United States should enact new legislation, using Canada's legislation as a model, to prohibit embryonic chimeras and to regulate other human-nonhuman combinations. Unregulated biotechnology threatens to disrupt legal and social institutions; therefore, the United States must make a balanced effort now to protect the public interest.     

中国反恐立法的形势、问题与对策

面对日趋严峻的恐怖活动威胁,国际社会和世界各国不断地探索通过立法的方式预防和打击恐怖活动.目前,由于我国的反恐立法存在立法格局不科学、缺乏系统性等问题,难以满足预防和打击恐怖活动的需要.为适应我国反恐形势的新变化、推进反恐工作依法开展以及履行我国应尽的反恐国际义务,应当尽快制定一部系统、全面的《反恐怖法》,同时,注重运用政治、经济、外交、法律等手段对社会进行综合治理,以期从根本上消除滋生恐怖活动的根源.     

两岸紧急采购制度之比较分析

政府采购法乃是市场经济国家管理政府公共支出的一种基本途径，祖国大陆、我国台湾（以下简称“两岸”）均透过政府采购法规定相关政府采购行为，借以保障采购质量和有效控制预算支出并提升采购效率及效能，营造公平市场经济。近年来由于气候异常全球暖化现象世界各地灾情不断，台湾地区近年发生921大地震、莫拉克风灾、H1N1疫情蔓延等灾害；祖国大陆亦遭遇舟曲泥石流、四川汶川大地震，及各地发生之洪涝、旱灾等，接连考验两岸＇-3局危机应变能力，并彰显出紧急采购之重要性。在遭遇各种灾害紧急状况下，因应紧急采购所需，两岸均有制订相关法律规定。本研究比较两岸之紧急采购制度，并参照相关实务案例，说明台湾采购法实施偏重法治化，但辅以行政部门采购稽核作业，及监察部门的审计稽查，均可对采购作业进行防杜弊端，避免不法情事产生积极作用。祖国大陆在政府采购法规范下，则较偏向因地制宜之弹性方式实施，可因应不同之地方需求，快速反应并确实符合实际灾害抢救需求，惟需注意相关稽核制度之管控。     

Refusing medical treatment after attempted suicide: rethinking capacity and coercive treatment in light of the Kerrie Wooltorton case

The inquest into the death of Kerrie Wooltorton in Norfolk, England, ignited extensive public debate on the scope of the common law right to refuse medical treatment where a patient is distressed, depressed or actively suicidal. In Australia, a patient's wishes need not be honoured if the patient is not legally competent, if he or she falls within the ambit of the compulsory treatment provisions in the mental health legislation, and possibly also if there is a recognised public interest in preventing suicide which is sufficient to override the patient's choice. This article argues that decisions about whether to give medical treatment despite an apparent refusal should be based solely on a determination of the patient's competence to make their own choice. However, the test for legal competence must take into account the person's agency in making the decision, and decisions which will effectively end the person's life must be shown to be thought through.     

我国环境公益诉讼立法存在的问题及其对策——美国判例法的新近发展及其经验借鉴

美国是世界上首创环境公民诉讼制度的国家,其判例对该制度的创新和发展起着非常重要的推动作用。1992年联合国环境与发展大会以来,美国环境公民诉讼判例法在诉讼目的的实现途径、原告的范围、起诉权的要件、法院的受案范围、诉讼的请求、律师参与诉讼的支持机制等技术层面具有一定的发展和变化。相比之下,中国的相关立法则很不发达。发展我国的环境公益诉讼立法,在法律体系方面,不仅应修订《宪法》、《环境保护法》、《民事诉讼法》和《刑事诉讼法》,还应当修订单行环境立法,发挥司法解释的作用;在具体规定方面,要明确规定环境公民诉讼的受案范围、主体要件、前提条件、程序规则、诉讼请求、举证方式和条件,不仅应承认公民的环境权,扩展环境损害的范围,扩大社会团体以及非直接利害关系人行使起诉权的案件范围,还要建立介入诉讼、环境公诉制度及有利于律师参与和代理诉讼的收费标准。     

论公民环境权及其法律保障

公民环境权是一项新型基本人权,应该成为法律上的权利和公民实有权利。从其内容体系和性质分析,公民环境权是一种复合型权利,兼具公益性和私益性双重属性。全面构建公民环境权的法律保障体系,需从以下几方面着手:确立公民环境权的完法地位;在环境立法中系统规定公民环境权的具体内容;公益性环境权应构筑以环境法和行政法为主的保障和救济途径;私益性环境权应构筑以民法为主的保障和救济途径。     

Law of assisted reproductive surrogacy in Malaysia: a critical overview

Both traditional and gestational surrogacy are now entering the public mind as a major public policy issue, because of concern for apparent truncation of the surrogate mother’s rights. This article sets out to investigate some key relevant rights, the policy issues as yet unresolved, and the character of the current regulatory regime. Modern medicine, specifically assisted reproductive technology, has made legislation obsolete in many jurisdictions around the world, including in Malaysia. These new medical practices present many significant legal problems, with which the courts and legislators still struggle. A proposed statute, the Assisted Reproductive Technique Services Act, aimed at regulating reproductive technologies, including surrogacy arrangements, will be introduced in the Malaysian parliament soon. The proposed Malaysian Act will address issues such as surrogacy, sperm or egg banking, and sperm donation. Malaysia is moving cautiously towards regulation on this issue and is trying to avoid becoming a ‘rent-a-womb country’. Thus, this article asks the question as to what policy considerations are in place, in the current Malaysian regulatory regime, to care for the rights of the surrogate mother? It will try to show that there is still a danger that Malaysia could become a ‘rent-a-womb country’, with its necessary implications of property rights over surrogate mothers. The article employs section-by-section synthesis to reach its conclusions. Argument will suggest that the current state of the law in Malaysia, as to both traditional and gestational surrogacy, seems to be that the regulatory regime is a combination of the general law, private ordering, registration and enforceable professional ethics. However, there is no Malaysian statutory law in place, in the contemporary social context, expressly prohibiting a term in a surrogacy contract that might imply property rights over the surrogate mother. This is a serious apparent lacuna in the law, and might suggest that the laws of transnational crime be considered, as an alternative, as applicable to the surrogacy agreement.     

The Best Pharmaceuticals for Children Act of 2002: the rise of the voluntary incentive structure and congressional refusal to require pediatric testing

On January 4, 2002, President Bush signed into law the Best Pharmaceuticals for Children Act, which is the government's most comprehensive legislation regarding pediatric research to date. The Act offers pharmaceutical companies a six-month exclusivity term in return for their agreement to conduct pediatric tests on drugs. It also provides public funding and organizes private funding to help conduct pediatric research on those drugs that pharmaceutical companies opt not to test in children. This Note reviews the history of pediatric research and traces the development of the Best Pharmaceuticals for Children Act's unique incentive and public funding structure. The Note contends that, while the Act is comprehensive and promotes important pediatric studies, its incentive structure forces consumers and taxpayers to bear the costs of testing pharmaceuticals in children instead of the manufacturers who research, develop, and market those drugs. Congress should consider mandating pediatric studies in any future enactment of the legislation.