‘Accountable Independence’ of the European Central Bank: Seeing the Logics of Transparency

The European Central Bank (ECB) emerged from the financial crisis not only as the institutional ‘winner’ but also as the most central—and powerful—supranational institution of our times. This article challenges the so‐called ‘accountable independence’ of the ECB across the range of tasks it carries out. Citizens ‘see’ the ECB today especially for its role in promoting austerity and its involvement as part of the troika and otherwise in the economic decision making of troubled Member States. Far from ECB monetary policy heralding a ‘new democratic model’, the ECB today suffers from a clear deficit in democracy. In between the grandiose concept of ECB ‘independence’ and the more performative ECB ‘accountability’ lies ‘transparency’. Across the range of ECB practices there is a need to take the related concepts of ‘transparency’ and of (democratic) ‘accountability’ more seriously, both in conceptual terms and in their relationship to one another.     

实质诉讼法的“脱私入公”过程及其复兴意义 ——以温特沙伊德《当代法意识下的罗马私法之诉》的解读为主线

民事诉讼法是实质诉讼规范和诉讼程序规范之集合,但通说却将其同义于诉讼程序法而尘封实质诉讼法。从法律发达史上考察,实质诉讼法曾依附于实体私法体系,且与诉讼程序法长期处于分离状态,在脱离私法体系之后于民事诉讼法中找到了安身之处,并且在公法诉权说的推动下皈依了公法。在实质诉讼法脱私法体系而入诉讼法体系的发展过程中,温特沙伊德的《诉论》发挥了主要原动力作用,因而被奉为促成民事诉讼法走向独立化的“门罗宣言”。本文拟通过解读《诉论》,阐述实质诉讼法脱离私法体系而入公法的民事诉讼法之过程,恢复实质诉讼法的本来面目,以为我们克服民事诉讼法同于纯程序法之观念提供理论上的支撑。     

Technical Cooperation and the International Coordination of Patentability of Biotechnological Inventions

Within the formal international framework, the coordination and harmonization of substantive patentability is currently of a limited nature, confined to the level of general principles, in contrast to the greater degree of procedural coordination. This involves increased costs and a lack of legal certainty for those seeking patents in multiple jurisdictions, mainly transnational corporations in some research-based industries such as pharmaceuticals. The problems encountered in achieving even a basic level of international consensus have encouraged informal cooperation through what could be conceptualized as 'global patent networks'. Furthermore, the interrelationship between procedural and substantive patent law issues has led the Trilateral Patent Offices, an informal, transgovernmental regulatory network of technical specialists, to undertake projects relating to the harmonization of procedural and substantive patent law issues primarily in contentious areas of patentability such as biotechnology. This raises the possibility of developing convergent interpretations of the patentability rules, although with implications for accountability and legitimacy.     

Punishment,Accountability, and the New Juvenile Justice

The juvenile justice system has undergone radical change in the past three decades. The procedural revolution that began at the end of the 1960s with the Gault decision has more recently evolved into a substantive revolution. The changes in juvenile justice have been many and in some instances drastic, particularly in the apparent demise of the rehabilitative ideal. New theories or models have emerged, incorporating terminology such as punishment, justice, and accountability into the vocabulary of juvenile justice practitioners and the lexicon of state juvenile codes. The transformation in the philosophy and underlying goals of the system has been well-documented over the past decade or so. It is now time to ask critical questions about the significance and meaning of this transformation and to bring attention to unresolved issues. This article suggests the issues that need to be addressed in order to make both practical and philosophical sense out of the changes in the mission of “juvenile justice.”     

程序公正的价值——兼议实体公正与程序公正冲突的解决

实现公正是法哲学的核心问题。在我国推进法治建设的今天,尤其是目前正处在转型时期,各种利益纠缠在一起,在这样一个价值观剧烈冲突、客观标准剧烈变动,对于实体是否公正不好判断的情况下,程序上的公正就尤为重要了。实体公正与程序公正发生冲突时,应有正确的价值选择以期实现司法公正,实现我国社会主义法治。     

Banking Union's accountability system in practice: A health check-up to Europe's financial heart

The Single Supervisory Mechanism (SSM) and Single Resolution Mechanism (SRM) form the Banking Union, which comprises EU authorities (ECB and SRB) and national authorities (NCAs and NRAs) with vast powers. Although crucial for its legitimacy, the Banking Union’s accountability is flawed, and not for the (stereo)typical reasons: accountability is a visible concept in SSM and SRM regulations, and political, administrative and judicial bodies are knowledgeable, engaged and thorough. Rather, this article posits that the SSM and SRM work very well because the legislature focused on practical details such as information flows, planning and continuity and coordination, while there has been no comparable effort to ensure the functioning of accountability tools. The result is a “system” characterised by limited access to crucial information, lack of continuity, and uncoordinated functioning. Changing this should not be hard but requires replacing blanket criticism and stereotypical views with greater attention to detail.     

行政过程中相对人程序性权利研究

本文认为,行政过程中相对人的程序性权利是实现程序公正的基本要素。文章首先探讨了实体性权利与程序性权利的内在联系,并以此为基础对行政过程中相对人的程序性权利之具体内容进行分析,明确提出了行政过程中相对人应当享有的旨在保障“最低限度公正”的程序性权利。文章最后从行政程序立法的角度,探讨了程序性权利之保障与救济的法律途径。     

Towards ‘Accountable Independence’? Parliamentary Controls of the European Central Bank and the Rise of a New Democratic Model

The independence of the European Central Bank is legally defined in very clear and strict terms. Although most scholars in economics describe this status as a crucial condition of the Bank's efficiency, it is frequently criticised by politicians and political scientists as a contradiction to democratic theory. This paper will examine the emerging practice of parliamentary control of the ECB, from its installation until September 1999, in order to understand which kind of ‘accountability’ is elaborated in this unprecedented relationship between ‘politicians’ and lsquo;technocrats’. It will first show that MEPs have rejected all forms of parliamentary control based on a logic of constraint. It will then describe the numerous institutional links created between the Bank and the EU political organs to favour their cooperation. Finally it will analyse the recent initiatives taken by MEPs to influence central bankers and to convince them to submit their decisions to public debates. The hypothesis developed from these empirical analyses is that a new kind of ‘accountability’ is emerging in the EU. From a horizontal point of view (inter‐institutional controls), it is based on influence rather than traditional parliamentary constraint. From a vertical point of view (accountability to citizens), it focuses on responsiveness rather than on classic responsibility.     

实体请求权与诉讼请求权之辨——从物权确认请求权谈起

从请求权制度功能上来看,请求权首先是实体法上的权利,具有主观权利的一般特征;其次是实体与诉讼的桥梁。在德国法上,通过代位诉讼以及确认之诉的性质争议,逐渐独立出诉讼上请求权,即争议标的,并将其定为在对国家的法律保护请求权上。由此,诉讼请求权与实体请求权各自适用不同的规则,在某些情况下,对前者可以准用后者的规则,但对诉讼请求权,一般不得为实体法上的处分,如转让、免除、自愿履行等,也无适用诉讼时效之问题。物权确认请求权是确认之诉的一种,其客体应是法律关系,而不是“物权归属与内容”。在存在给付之诉或者其他救济可能时,原则上给付之诉或者其他救济措施优先。     

The Ideal of the Presumption of Innocence

This article clarifies and further defends the view that the right to be presumed innocent until proven guilty, protected by Article 6(2) of the European Convention of Human Rights has implications for the substantive law. It is shown that a ‘purely procedural’ conception of the presumption of innocence has absurd implications for the nature of the right. Objections to the moderate substantive view defended are considered, including the acceptability of male prohibits offences, the difficulty of ascertaining intentions of legislatures and the proper role of prosecutorial discretion.     

Environment Rights versus Environmental Wrongs: Forum over Substance?

Beginning with the 1972 Stockholm Declaration, there have been a number of international proclamations of a human right to a clean environment, both implicit and explicit. The highpoint of this movement towards an internationally recognized substantive right to a clean environment came with the 1992 Rio Declaration. This movement has continued forward in regional and specialized regimes – for example with respect to water and indigenous rights. There has also been a parallel move towards recognition of what can be considered procedural rights, which require public access to information, participation in decision making, and access to justice in environmental matters. This article argues that further development and use of these procedural rights will not only provide opportunities to protect environmental rights, but can also further the development of a substantive right to a clean environment.     

Treatment of procedural irregularities in Nigerian courts and the need for a principled approach: Yaki v Bagudu (2015) in retrospect

The courts are usually stuck in between the need to do substantial justice to litigants and the strict observance of procedural rules. The article considers this issue in Nigerian legal system using the Supreme Court’s decision in Yaki v Bagudu as a signpost. The article argues that the absence of any clear-cut guidelines on procedural irregularities often leads to legal uncertainty and unpredictability of results. Drawing on experiences from other jurisdictions, the article suggests a principled approach which distinguishes between irregularities affecting the substantive jurisdiction of courts and those which do not as a panacea.     

通过程序控制死刑

如何控制死刑问题已经成为中国亟待解决的重大现实课题。从各国的实践来看,控制死刑主要包括实体控制与程序控制两种路径。尽管通过宪法或者刑法可以对死刑控制起到立竿见影的效果,但是,通过实体控制死刑,存在难以克服的局限性。相比较而言,通过程序控制死刑,则具有明显的优势。在中国目前无法全面废除死刑而实体控制又存在较大难度的情况下,通过程序控制死刑应是明智之举。     

Towards European Procedural Primacy in National Legal Systems

Abstract: In the polycentric judicial architecture of the Community, there is a rich, constant interplay between national procedural rules and European interventions. In the making of the European legal order, EC law depends on national procedural law and therefore, substantive EC supremacy depends, existentially, on procedure. In this context, the author argues that the traditional sharply defined dichotomy of national procedural autonomy versus Community law effectiveness no longer reflects the implicit course of action laid down by the Court of Justice. Instead, the European legal order has moved, as a praxis, from national procedural autonomy to a more subtle combination of national procedural competence and European procedural primacy. The rationale behind this trend testifies both to the importance of the interrelationship between procedure and substantive law in the making of Europe and to the flexibility of procedural law; EC law depends on procedural law and procedure readily submits to the demands of a new legal order. In doing so, it also creates new choices and venues for European supremacy.     

重塑程序意识——论程序法与实体法的关系

本文从法哲学的高度,通过对程序法与实体法在实践意义上的同一性、目的与手段的辩证关系以及程序法与实体法之间的现实性与可能性联系等三个方面的论述,阐明了程序法与实体法的关系及程序法的重要价值,并对程序法的概念作出了新的界定,提出程序法与实体法区别的相对性,程序正义包涵着无限的实体正义,程序法赋予实体法以现实的法律意义和现实的实体意义等观点。     

判决执行力主体范围的扩张——以实体权利转让与执行权利的获得为中心

通过诉讼程序已经得以确定的实体权利在执行开始前以及执行程序中,能否在权利人将其权利转让给受让人后,使受让人因此而获得执行申请权以及其他执行权利,这是一个司法实践中有争议的问题。应当说,受让人在获得实体权利的情况下,就享有相应的程序权利。这种程序权利的获得是基于实体权利主体的变更,而非程序权利的转让。它是执行力主体范围扩张其权利主体变更后,应采取措施保证强制执行的正当性。     

立法公正的实现与保障机制

立法公正不仅包括立法程序上的公正 ,还包括立法的实体公正 ,而立法实体的公正则是经由程序公正而获得的。立法程序公正的基本要件是程序公开、程序参与、程序自治、程序中立、程序效率等。实现立法公正要进一步完善公众立法的直接参与制度、立法公开制度、立法回避制度以及立法听证制度等     

'The necessity must be convincingly shown to exist': standards for compulsory treatment for mental disorder under the Mental Health Act 1983

Current English law has few controls on the involuntary treatment of persons detained under the Mental Health Act 1983. In 2001, R (Wilkinson) v. Broadmoor Special Hospital Authority provided some hope that, in conjunction with the Human Rights Act and the European Convention on Human Rights (ECHR), meaningful substantive and procedural standards for compulsory psychiatric treatment might be developed, but that hope has not been fulfilled. Using Wilkinson and the ECHR jurisprudence as a starting point, this article considers when, if at all, compulsory psychiatric treatment might be justified. In particular, it considers the difference between the 'appropriateness' standard of the English legislation and the ECHR requirement of 'therapeutic necessity', the requirements for appropriate procedure and appropriate legislative clarity, how the courts should deal with disagreements among treating physicians, and the relevance of the capacity and best interests of the detained person.     

论公诉案件庭前审查程序

公正是诉讼追求的永远价值目标，但在司法实践中存在诸多制约此目标实现的因素，庭前审查程序成为其中之一种。在不能彻底废弃此类制度之前，必须将实体审查改革为单纯程序性审查，如此，或可为其后的审判程序及审判结果提供相对公正的保障。     

辩论主义的根据

对辩论主义的根据,理论上存在本质说、手段说、防止意外打击说、程序保障说、多元说、法探索主体说、信赖真实协同确定说等观点,它们从不同的角度论证了实行辩论主义的必要性。由于现代民事诉讼法的价值理念包括实体价值和程序价值两个方面,并且民事诉讼在客观上乃民事诉讼法和民事实体法共同作用的“场”,因而辩论主义的确立和贯彻,有其实体根据和程序根据,是以此为基础的多元根据的必然要求。