关于《民法草案·物权法编》制定若干问题的意见

日前提交全国人大常委会第一次审议的《中国民法草案》中的“物权法编” ,仍然存在若干问题 ,建议至少在以下方面考虑修改 :强化所有权平等保护的思想 ;调整物权法的整体结构 ;物权变动的要件设计为强制性规范 ;建立统一的不动产登记机构 ;增设先占、添附等动产所有权的取得方式 ;规定取得时效 ;肯定拾得人的报酬请求权 ;不动产不适用善意取得 ;建筑物区分所有权不必要作为独立一章规定 ;邻地利用权回复称为传统法上的“地役权” ;不动产相邻关系与地役权的关系并存但分别规定 ;土地承包经营权的登记仅产生对抗效力 ;宅基地使用权可有限制流通 ;准物权应以单行法另行规定 ;让与担保可暂不规定 ;占有保护适用有权占有 ;物权的保护方法有待加强。     

物权法草案的若干问题

由其第六次审议结果看,物权法草案在如下方面尚需进一步完善:不宜规定“根据宪法,制定本法”;不应废弃“物权法定原则”;不宜规定“野生动物资源属于国家所有”;不宜规定“国有化”措施;承包经营权的期限应统一规定为五十年;不可轻率规定“动产浮动抵押”;“公路、桥梁收费权”和“应收账款”融资,属于典型的“债权转让”,不宜规定在权利质权制度之中。     

Authority and Authorisation

The core of Kelsen's strong views onauthority emerging from his concept of law is this:Authority of law, authority in law andauthority about law are one and the same thing.The conceptual problems suggested by these threedifferent prepositions must and can be solved in onefell swoop. Kelsen's core view will first be probed bygiving an account of what is a promising approachoffered in a fairly early text, Das Problem derSouveränität, namely, what it means to`set' or `posit' the law. Inevitably, this leadsto an interpretation of the Grundnorm, one thatintends to accommodate as many Kelsenian emphases aspossible. The Grundnorm will be presented as ashield against hypostatising authority. From there,some characteristics will be inferred of the type ofauthority that arises from Kelsen's account of legalknowledge, which will be called, somewhat polemically,authority without an author.     

The Family Court–Based Stepping Stones Model of Triage: Some Concerns About Safety,Process, and Objectives*

This article critically evaluates the recommendation that family court–based mandatory mediation incorporated in a tiered service delivery model be replaced by a mandatory screening process incorporated in a stepping stones triage model in which couples are matched with an appropriate conflict resolution proceeding. My conclusion is that implementation of this recommendation should be made contingent upon the willingness of its advocates to address concerns with the safety, process, and objectives as described herein.

Key Points for the Family Court Community:
• Domestic violence screening should be incorporated in the larger triadic process of screening–risk assessment–risk management.
• A Safety First Rule should be followed in screening couples into or out of conflict resolution proceedings.
• Screening decisions must be grounded in an empirically validated method of matching couples with appropriate conflict resolution proceedings.
• Causal mechanisms must be included as items in any risk assessment instrument used in family courts.

     

On terror, drugs and racial profiling

We show that for racial profiling (defined as policy rules that employ statistical discrimination based on racial attributes) to be efficient in fighting ordinary crime, it needs to focus on the racial composition of marginal offenders. Efficiency thus may counter-intuitively call for targeting the group with the lower offending rates. In the context of terror, however, it has to be based primarily on differences in offending rates across racial population groups (group-wise averages). We demonstrate that, assuming correlation between race and crime, racial profiling would nearly always be efficient. Finally, we discuss equity considerations and suggest that if awarding compensation is perceived to be a viable policy option, it should be paid on an ex ante basis.     

The Common Law and the Forms of Reasoning

The purpose of this article is to examine how various forms of reasoning both can and should be used to decide cases in the common law tradition. I start by separating positive questions about what the law is from normative questions about what the law ought to be. Next, I present a Peircean account of three main forms of reasoning – deduction, induction and abduction – and examine how they can be used by judges to decide cases in the common law. Finally, I argue that the three forms of reasoning can be used to answer both kinds of questions, but in different ways. All three forms of reasoning can be used to answer questions of positive law, while questions of normative law present a special case that may require the use of aesthetic judgments of taste in the formation of a legal hypothesis.     

How to select a satisfying typing program for paternity testing

The efficiency of a typing program for paternity testing concerns three specific aspects: first, what is the percentage of non-fathers that cannot be excluded from paternity; second, what is the percentage of true fathers that cannot be recognized as probable fathers, and third, what is the percentage of non-fathers that will be assigned as probale fathers. When extensive materials for observation with any specific typing program are not directly available, only the chance of non-exclusion of non-fathers can be calculated in a relatively simple way.The aim of the present study was to find a relationship between this and the other two criteria. It was found that the variance of the distribution of natural logarithms of paternity index values is approximated rather well by the formula var. $\text{I = 0.65 ×}\text{(n(}\text{ln 1}\text{ne}\text{3}\text{)}{}^2\text{)}$ (n = the number of genetic systems of the typing program and ne = the chance of non-exclusion of non-fathers). This allows the estimation of the two other critical percentages: the percentage of true fathers that cannot be assigned, and the percentages: the percentage of true fathers that cannot be assigned, and the percentage of non-fathers that will be assigned as probably true fathers.     

行政法的适用

行政法的适用规则是诸如行政立法、行政执法、行政司法等其他相关制度不能包容的 ,而应当与其他行政法制度相并列。在理论上构设行政法适用标准时 ,应贯穿以下规则 ,即现时考虑优于立法背景考虑、缩小解释优于扩大解释、一致性优于多样性、社会认同优于利益体现等。     

论《京都议定书》对国际政治和国际经济的潜在影响

《京都议定书》是国际社会在防止全球气候变暖的国际合作方面取得的一份具有里程碑意义的国际法文件。《京都议定书》对国际政治将产生如下影响:发展中国家,尤其是中国、印度等发展中大国承受着越来越大的减排压力;推动欧盟一体化的进程,并进一步提升欧盟的国际政治地位;发展中国家阵营内部呈现出进一步分化的趋势。《京都议定书》对国际经济的影响主要表现在:对各国总体的经济福利产生影响;《京都议定书》产生的“碳泄漏”问题可能使得缔约国在竞争力和产业结构调整等方面发生一系列变化;对国际资本流动产生影响;《京都议定书》将推动能源技术的进步,尤其是推动低碳技术和高能效技术的创新与扩散。     

Can and Should Greenhouse Gases Be Regulated as Hazardous Air Pollutants under Clean Air Act Sec. 112?

This article poses three questions: (1) Can greenhouse gases be regulated under § 112 of the Clean Air Act? (2) If they were to be regulated in this way, what would the practical consequences be? (3) Should greenhouse gases be regulated this way? To summarize the offered answers: greenhouse gases can indeed be regulated under § 112; if they were to be regulated, the practical consequences would be substantial but potentially manageable; and whether or not they should be regulated in this way depends entirely on the nature and survival of the upcoming New Source Performance Standards under § 111(d). If § 111(d) regulation survives, the question of whether or not § 112 regulation could coexist arises, with the answer being in the affirmative albeit with potentially prohibitive difficulties. If § 111(d) regulation fails, § 112 regulation may serve as a regulatory last resort on which the Environmental Protection Agency may have to rely in order to seriously tackle the threat of climate change.     

The Inevitability of Moral Evaluation*

According to contemporary legal positivism, law claims to create obligations. In order for law to be able to create obligations, it must be capable of having authority. Legal positivism claims that for law to be capable of having authority, it only has to meet non‐moral or non‐normative conditions of authority. In this paper it is argued that law can only be capable of having authority if it also meets certain normative conditions. But if something must meet certain normative conditions in order to be capable of having authority and if it must be capable of having authority in order to be law, then it is only law if it is conceivable that it meets these normative conditions and this can only be ascertained by means of an evaluation. Therefore, legal positivism's claim that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations (the separation thesis) is incompatible with its claim that law must be able to create obligations. Further, an analysis of Hart's concept of law shows that it is not only possible that the identification of the law depends on moral evaluation, as Hart claims, but that it is conceptually necessary that it does.     

试论法律方法的意义及其局限之克服

对于法律的理解,人们难免会有争议,其原因在于前理解(前见)。为避免法律解释流于恣意,应以法律方法加以制约,但由于各种法律方法并不一致,导致各种解释结果产生矛盾。为此,应引入先例和学说中对有关规范的解释,对法官裁判加以限制。     

Blinking Subjects; Blinking Justice? – Law,Medicine and the PVS Patient

This paper argues that in medical discourse, there is insufficient unanimity of opinion with regards to the time at which an accurate diagnosis of PVS can be made and that clearly, there is an incomplete medical knowledge of the PVS condition. The judiciary chooses neither to question medical opinion that patients can be considered to be in PVS despite a failure to satisfy the diagnostic criteria, nor medical opinion that patients in `near PVS' will never recover. It is apparent from an examination of the judgements given in PVS cases that the law does not ascribe such individuals with full human status. Such a legal position is particularly problematic in ethical terms when applied in cases involving patients who are in a `near PVS' position, and in the light of evidence that some PVS diagnoses are inaccurate. The application of the best interests test in PVS cases results in the adoption of a paternalistic, objective approach that fails to respect the former competent individuals whom PVS patients once were. If, alternatively, the substituted judgement test were to be adopted, the principle of individual autonomy would become central to the question of whether PVS patients' treatment should be withdrawn. Furthermore, the application of this test would also ensure that PVS patients continue to be viewed as `persons'.     

The Hurried Justification of Sanctions

In this paper I try to see how the Derridean aporias of the law of the urgency of legal decisions (the law interrupts the input of knowledge in the decision-making process) and the épokhè of the rule (justice can never be done in the present) are revealed in the context of the justification of sanctions. I argue that sanctions can only be justified in a purposive manner in the last instance. They can only be means to an end of punishment which has been opted for, and which can be justified on grounds of principles, or an authoritative calculation of incommensurable entities. I argue against theories, which advocate the internal connection of law and morality, because if such a connection could be established, the aporia of the hurried and unjustified action would obviously disappear. In particular my target is discourse theory as formulated mainly by Robert Alexy with his Sonderfallthese(Special Case Thesis). My objection is that, because of their instrumental nature, sanctions cannot be justified on moral grounds. I also consider some objections that could be raised from Klaus Günther's theory of appropriateness and Habermas' distinction between the moral, ethical and pragmatic employments of practical reason. I am argue that the former, which would become relevant at the stage of application, that is sentencing, does not resolve the justificatory problem of sanctions, and the latter confirms rather than falsifies my claim that punishment can never be said to be just.     

Licensing lifesavers: possible routes to overcome errors and omissions in licence agreements

Legal context. This article is about the possible ways the correctionof errors in a written agreement can be achieved. These errorsmight be in the way that the agreement has been written or thatthe parties misunderstood the agreement each thought they weremaking. Key points. English law provides a number of ways in which suchmistakes or misunderstandings might be resolved, ultimatelyby a court if further agreement cannot be reached. First, thewritten agreement might simply be unenforceable. If not, thena court might construe the wording in the agreement in a waythat reflects the intention of the parties, implying terms intothat contract, or rectify the words used in the agreement. Practical significance. The intention of the article is to makepractitioners aware of these various routes to remedy mistakeswhich have been made in connection with written agreements.This knowledge will enable an informed approach to be takento resolving the dispute of which the mistake or alleged mistakeis the cause. Negotiations can take place around the possibleeffect of the mistake and the available remedies. This knowledgecan be used to resolve disputes arising out of such errors eitherby negotiation, possibly through mediation, and ultimately byappropriate action in the courts.     

Reforming the United Nations: What About the International Court of Justice?

In September 2005, the UN General Assembly adopted an ambitiouslist of reforms of the UN structure, mandate and agenda. Ifimplemented, it is going to be the most radical reform of theUN to date. Yet, the International Court of Justice, the principaljudicial organ of the organization, has been largely ignored.This Report suggests that States should take advantage of thereform-mood at the UN to consider also some essential reformsof the ICJ. These include: Should the Security Council be enlarged,then UN member States should consider expanding the membershipof the ICJ, too; judges should not be allowed to be re-electedand their tenure should be increased to 12 years; age limitsshould be introduced; the number of female candidates to beelected should be increased; intergovernmental organizationsshould have capacity to be a party in contentious proceedings;the new Human Rights Council and certain international courtsand tribunals should be given the power to request advisoryopinions.     

Why Should Remorse be a Mitigating Factor in Sentencing?

This article critically examines the rationales for the well-settled principle in sentencing law that an offender’s remorse is to be treated as a mitigating factor. Four basic types of rationale are examined: remorse makes punishment redundant; offering mitigation can induce remorse; remorse should be rewarded with mitigation; and remorse should be recognised by mitigation. The first three rationales each suffer from certain weaknesses or limitations, and are argued to be not as persuasive as the fourth. The article then considers, and rejects, two arguments against remorse as a mitigating factor in sentencing: that the crime, not the offender, is the focus of punishment; and that the truly remorseful offender would not ask for mitigation. The article concludes with a brief consideration of whether a lack of remorse should be an aggravating factor.

Abolishing Marriage: Can Civil Partnership Cover it?

This paper argues that all adult intimate relationships should be regulated under one single statute. This statute should be the Civil Partnership Act 2004 (which currently applies to same sex couples). The Matrimonial Causes Act 1973 (which applies to opposite sex couples), should be repealed; it should not be amended to include same sex couples. There would, as a consequence, be no such thing as (legal) marriage. Marriage as a legal construct is a heterosexual and patriarchal institution and is therefore so fundamentally flawed it is beyond the possibility of successful reform or repair. The present system of having two distinct legal means of relationship recognition is akin to sexual apartheid and is therefore unsustainable in the long term. Having a legal system which recognises only one form of legal partnership would therefore formally end a discriminatory system. Despite its drawbacks, Civil Partnership does not have the same extent of symbolic and practical degree of flaws as Marriage.

论行政强制检查

行政强制检查属于行政强制措施 ,具有直接执行力 ,应受到法律的严格规制。我国行政强制立法应明确以下内容 :只能以宪法和法律设定行政强制检查 ;以比例原则对强制检查的行使予以实体限制 ;加强对行政强制检查的程序性监控 ;给受害人提供完善的救济途径和方式。