Good faith mistakes and the exclusionary rule

Frank Anechiarico and James B. Jacobs, The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective Chicago: University of Chicago Press, 1996, 274 pp.     

论公证诚信的建设

诚信是公证的生命。处于职能弱化的中国公证只有把握住客观、公正的立场,才能发挥其在法律体系中 的作用,才能进一步谋求发展。通过建立失信惩罚机制、提高失信成本,并建立失信赔偿机制、保障守信方的利益来 促进我因公证诚信的建设。     

Good faith in international transactions

Conclusion Historically, the conception of good faith has been shaped by a variety of forces — political, mercantile and religious among them. Similarly, the CISG also treats the duty of good faith in a holistic manner; rather that attempt to explicitly define the good faith obligation in isolated provisions, the drafters of the CISG marked good faith as an integral and pervasive requirement. The drafters rightly understood that unfair dealing is best recognized in specific factual scenarios; judges and arbitrators will know bad faith when they see it. Thus, the drafters designed a systematic approach to international sales transactions with the assumption that the basic obligations of good faith and fair dealing are understood by the parties. In so doing, they have provided a source of confidence to traders who, due to the nature of the modern international marketplace, must forge their agreements fax-to-fax rather than face-to-face.Law Clerk, Allan Kanner & Associates, New Orleans, Louisiana. B.A., 1989, Georgetown University; J.D. candidate, 1994, Tulane Law School. For their many valuable suggestions, grateful acknowledgement is made to Chris Anderson, Carla Bachechi and Joachim Zekoll.     

培养法律信仰 促进东北振兴

良好的法治环境是东北振兴的前提,法律信仰的缺失是东北法治建设步履维艰的症结所在。东北法治环境落后于南方的根本原因在于由计划经济体制向市场经济体制转变缓慢,也就是市场化改革滞后即制度变革滞后。经济市场化是保证权力信仰、政策信仰不可逆转地为规则信仰、法律信仰所取代的物质基础。国家工作人员对法律采取的是肯定还是否定的态度直接影响到一般公民对法律的看法,这就要求严格控制和监督国家机关的行为,确保立法民主科学,行政法治和司法公正。     

论乡村法律信仰的缺失及培育

乡民对国家法律缺乏信仰,直接影响到法治建设的成败。通过田野调查发现,法律在乡民生活中未获得现实生命力,法外行政与司法权滥用抑制了法律信仰的形成。培植乡民对法律的需要,从体制上根治司法腐败,加大对乡村的法律服务供给,实为乡村社会建构法治秩序之前提。     

论赃物的善意取得及其回复请求权

犯罪人将侵占的被害人的财物转让给善意受让人之后，司法机关一般不能通过追赃活动追讨。被害人是否有权向善意受让人请求回复其物，关键在于赃物是否适用善意取得制度。赃物能否适用善意取得，需要根据犯罪人取得赃物时被害人的主观状态和预测、控制危险的能力作类型化分析。如果某些赃物不适用善意取得，被害人便可以行使回复请求权，回复其物。法律需要兼顾善意受让人的利益，对被害人回复请求权作适当限制。     

Blind faith and the juvenile justice system: A response to binder

This response to Arnold Binder's critique of my 1985 article, “A Systemic Analysis of Diversion: Net Widening and Beyond,” affirms the validity of that study. Binder seems to be concerned that criticism of diversion programs is equivalent to calling for their abolition. My position is that empirical assessment of these programs is necessary to evaluate not only their manifest consequences, but also their latent effects, including net-widening. Findings indicating that some programs do not meet their stated objectives or have effects contrary to those objectives need to be taken seriously.     

从《物权法》角度审视我国的善意取得制度

源于日耳曼法"以手护手"原则的善意取得制度是适应商品经济发展需要而产生的一项交易规则, <中华人民共和国物权法>(以下简称<物权法>)颁布实施以后,善意取得制度在我国又有了新的发展,笔者试从善意取得制度的概念、构成要件和适用范围入手,通过介绍善意取得制度在我国的历史演进,从<物权法>角度审视了我国的善意取得制度,并提出了完善我国善意取得制度的几点建议.     

The good faith exception to the exclusionary rule: Some implications for the police

Since 1961, when the United States Supreme Court ruled that evidence obtained by unreasonable search and seizure would not be admissible as evidence in state courts, police officers have had to work within the constraints imposed by the so-called “exclusionary rule.” This article traces the history of the exclusionary rule, reviews the Supreme Court's changing rationale for its existence, and examines a variety of proposed alternatives. Law enforcement officials need to be aware of the alternatives, for virtually all of them would remove the burden of the results from the prosecutors and the courts and place them on the officer and/or the agency. This article concludes that the implications of a good faith exception have ramifications for both the officer and the agency, ramifications that would fall most heavily, however, on agency policies and resources.     

Alive and well: the good faith principle in Turkish contract law

Good faith is a principle prominent in civil law countries but less so in common law countries, and which allows courts to deviate from black letter law. It provides them with flexibility to change the outcome of a deductive legal decision if they regard it as absurd. The principle of good faith thus empowers the judiciary to deviate. It can be used for an indefinite number of cases and might lead to almost all conceivable legal consequences. For instance, the judge can invalidate the contract, change the price, suspend or change a clause in the contract, or grant injunctive relief, compensation of damages, the disgorgement of profits or a removal claim. We argue that if the principle of good faith is used to develop contract law into an instrument for redistributing wealth in favor of poor parties, this can destroy the concept of contract as a social mechanism for generating mutual gains for parties, which might lead to unwanted economic consequences in terms of efficiency losses. We argue that the principle of good faith must be carefully and reluctantly used to reconstruct the fully specified contract and that well-informed judges, who understand the factual environment of a contract well should ask how fair bur self-interested parties would have allocated the risk in a pre-contractual situation. If the courts restrict the application of the good faith principle to these functions, this provides elasticity that otherwise would not exist if courts would strictly use the rules laid down in black letter law. Moreover, it saves transactions costs and is therefore in line with economic reasoning. We look at the most important Turkish cases and find that the Turkish Supreme Court following Continental European doctrines of good faith actually uses this principle to curb opportunistic behavior of parties and not to achieve redistribution from the rich to the poor by way of interfering into contract law.     

Problematizing the healing metaphor of restorative justice

Beginning with the premise that our linguistic and cognitive systems are fundamentally metaphorical in nature, this study seeks to explore the predominant metaphor of restorative justice (RJ), the metaphor of healing. Metaphor choice is important, particularly in conflict situations, as they encourage and discourage particular behaviors, attitudes, and perceptions. The conceptualization of RJ as a healing process (where participants heal the wounds caused by offending behaviors) is pervasive and integrated into the academic literature. Perhaps either due to its banality or its seeming beneficiality, we assert that the healing metaphor has not received sufficiently critical reflection. We examined primary metaphor use among RJ facilitators using 319 single-spaced pages of interview data gathered from 20 RJ facilitators. Our results suggest that the healing metaphor is potentially problematic for victims, offenders, and facilitators. We suggest an alternative, garden metaphor, for consideration as an alternative.     

论董事问责的诚信路径

The mode of deferential review on directors’ management decisions coincides with the requirements of adaptive efficiency, being conducive to encouraging directors’ tentative experiments. However, under the rule of business judgment, directors’ accountability requires for onerous burden of proof on the plaintiff, and the formal review of directors’ decisions and the uncertainty of the standard of care have rendered the duty of care almost an empty shell, and consequently the unfaithful conducts of directors between gross negligence and malice are always at large. The good faith path is not only a mechanism to fill the gap of accountability but an important mechanism to overcome the information asymmetry between shareholders and directors. The judicial practice of directors’ accountability in the 1990s produced a good faith path, and the good faith concept has been rejuvenated with creative changes, the standards of conducts become clear with the increasing operability of judicial reviews. In China, the standards on fiduciary conducts can be defined by the judicial interpretation of the Company Law, so as to incorporate such misconducts as intentionally causing the violation of law by company, failure to disclose candidly, abuse of power and gross disregard of responsibilities, hence inducing the good faith path to accountability. Zhu Yikun got his Ph.D in economics at Management School of Jinan University (1999) and LL.M at Southwest University of Politics and Law (1991). He is the executive dean and doctoral tutor of the Law School of Jinan University, and a legislative counselor of the standing committee of Guangdong Provincial People’s Congress, and a monitor of Guangdong Provincial Procuratorate. His research focuses on company law and corporate governance. He has twelve monographs published, including five law books in English language, esp. the book “China’s Business Contracts: Forms and Precedents” was published by Butterworth in 1997. Moreover, he has released over 100 papers in academic journals including China Legal Science and Chinese Industrial Economy. At present, he is leading a national bilingual course program on American and British commercial law (2008).     

Salafi and Islamist Londoners: Stigmatised minority faith communities countering al-Qaida

The paper highlights the paradoxical position of certain Salafi and Islamist communities in London who have consistently demonstrated skill, courage and commitment in countering al-Qaida propaganda and recruitment activity while simultaneously facing ill-founded criticism from other Muslim communities and secular political lobbyists for creating the conditions that gave rise to the al-Qaida phenomena. In doing so the paper compares the experience of Salafi and Islamist communities living in London during an ongoing terrorist campaign by al-Qaida with Jewish and Irish Catholic communities living in London during earlier terrorist campaigns against the UK’s capital city. In each instance community policing is shown to have a crucial role to play in terms of reassurance for minority faith communities and the prevention of terrorism. However, the intersection between policing and counter-terrorism is shown to produce tensions that may weaken minority community confidence in policing and thereby reduce proactive community support for counter-terrorism measures. At this intersection a London policing initiative is shown to have developed proactive counter-terrorism partnerships with Salafi and Islamist community groups of a pioneering nature. In consequence the same critics who conflate Salafis and Islamists with an urgent terrorist threat to London have accused this policing initiative of appeasing extremism.     

提单权利善意取得构成要件的法律分析

立足于提单权利善意取得的特殊性,结合普通动产及票据权利善意取得的既有理论,对提单权利善意取得的存在依据、构成要件等基本问题展开分析。     

The leap of faith from disease treatment to lifestyle prevention: the genealogy of a policy idea

Since the 1970s public health policy has attempted to counter the rise of chronic diseases by getting individuals to make healthy choices about smoking, alcohol, diet, and physical exercise. Inspired by the so-called new perspective of the 1974 Lalonde report, this shift from disease treatment to prevention has been a key focus of public health policy to this day. Every generation of public health reports presents prevention as the answer to past failures, but the continuous experience of failure is strangely coexistent with a fundamental belief in the ability of lifestyle prevention to produce large health improvements. The article tracks the genealogy of lifestyle prevention as policy idea across three generations of U.S. and Danish public health reports and finds a systematic interpretation of lifestyle prevention as being more successful and promising than acute medical treatment.     

From faith to race? ‘Mixed marriage’ and the politics of difference in Imperial Germany

ABSTRACT

Intermarriage was a key site for testing politics of difference within the multicultural German Empire. Across the German states in the mid-nineteenth century, marriage between members of different religions frequently proved impossible. Until various civil marriage laws were introduced between the 1840s and 1870s, marriage remained within the remit of the church. As a consequence, marrying across confessional lines was rarely permitted. The implications were clear: marriage was seen as the embodiment of one’s culture – defined primarily in confessional (alongside socio-economic) terms, and it was also viewed as a key transmitter of culture by producing new generations of faithful observers of particular denominations. As a country divided between three confessions, religion in mid- to late nineteenth-century Germany proved an important aspect of difference within the new German nation state. By the end of the nineteenth century, following the introduction of civil marriage, mass waves of migration, the growth of urbanization and the expansion of the German overseas empire, the connotation of ‘mixed marriage’ in Germany appeared to have shifted. It remained a code for crossing confessional lines, but its resonance had changed. By the late nineteenth century, ‘mixed marriage’ had come to characterize another kind of cultural mixing as well: that between races, both at home within Germany and abroad within its colonies and diasporic outposts. And, between 1905 and 1912, ‘mixed marriage’ between Germans and ‘natives’ had been banned in German Southwest Africa, East Africa and Samoa. Why and how was intermarriage a flashpoint in debates on German identity politics at the turn of the twentieth century? As this article shows, intermarriage in the German Empire mattered to families, broader communities, and legislators because it was a pivotal means through which social groups formed, interacted and maintained boundaries at a time when visions of Germany were expanding.