严格行政程序 规范政府行为

本文分析了目前我国政府行政程序违法的诸多表现及给相对人和公共利益带来的危害。提出政府应增强全社会的程序意识，规范政府行政行为，严格按程序办事的对策建议，以确保政府行为公正、合理。     

知识产权与民法典的制定

“知识产权是私权” ,是世界贸易组织 (WTO)《与贸易有关的知识产权协议》(TRIPS)所确认的基本原则。鉴于WTO是当今世界各国在贸易方面最主要、影响也最为广泛的组织 ,而TRIP业已成为知识产权国际保护领域最重要的条约 ,因此 ,可以认为 ,世界上大多数的国家和地区是承认或不得不承认知识产权的私权性质的。知识产权的私权也即民事权利属性其实在我国立法中早已得到确认 ,《民法通则》即在第五章“民事权利”中规定了知识产权的内容。从世界范围看 ,英美法系国家中 ,由于没有法典编撰的传统 ,知识产权法一般是采用单行法的立法体例 ,…     

论附条件法律行为之条件拟制的立法完善

附条件的法律行为作为行为人分配风险与计划将来的重要手段,在实践中并不罕见.这里所附的条件作为不确定的事实必须是因自然进程而发生或不发生的:而在现实生活中,因条件的成就或不成就而受利益或不利益的当事人,极有可能以不正当的行为促成或阻碍条件的成就或不成就,即构成条件成就与不成就的拟制.时此,我国<合同法>已作出规制,本文正是从我国对条件拟制的立法现状出发,结合国外的相关立法例,具体解析了条件拟制的构成要件,对<合同法>第45条第2款中涉及到的相关概念作以明晰;并且提出了我国在未来民法典中应当采取何种立法模式的建议,以期能达到更好的对条件拟制行为进行规制、更有效的保护相对人之利益的目的.     

Using feminist judgments in the property law classroom

This article describes how the Feminist Judgments book will be used as a resource for a new, compulsory LLB property law module. The module (which was still in the planning stages at the point of writing) takes the development of co-ownership law as its subject matter. Students will be guided to read cases that reveal both the evolution of different legal solutions to co-ownership disputes and the gendered situations of the parties concerned, and will be assessed in part by writing a judgment of their own. The feminist judgments will provide students with models of feminist analysis and judgment-writing. The aim is to bring feminist scholarship into the core curriculum and to learn useful critical, research and writing skills.     

论私有财产权的法律保护

随着我国非公有制经济的发展,私有财产权的法律保护显得尤为重要,然而,目前我国对私有财产权的法律保护还不充分,制约了我国经济体制改革和市场经济体制建设的发展。因此,必须采取各种方式和途径加快我国私有财产保护的法律制度建设,保证个体工商户和私营企业主的财产安全,发挥其社会主义现代化建设的积极性。     

The impact of economic theories on the law in market relations

The impact of economic theories on legal development, thinking and practice is undeniable. This is particularly true for neo-classical and institutional economics. Neo-classical economics are based on model assumptions of human behaviour such as pursuit of personal advantage, individualistic goals, complete information and at the same time law obedience which are the foundations of the functioning of the market mechanisms. The assumption leads to an almost mystical belief in the self-regulatory power of the market and a strong disdain and disapproval of the State. The concepts of a minimal State and de-regulation of all social relations follow from there. This article argues that model assumptions are valid scientific tools, as long as they are not taken to reflect the real world which is populated by real people that are not necessarily behaving like homines oeconomici. Preaching de-regulation and the dismissal of the State can prove simplistic and even dangerous and may lead to financial and economic crises like the ones witnessed in recent years. Institutional economics part from these empirical findings. They do not question individualism and the pursuit of egoistic objectives of market-participants, but they insist on inherent risks of this mechanism which stems from opportunistic behaviour, lack of information and transparency and the limits of trust. Property economists deduct from there that sustainable and dynamic economic development is unthinkable without well defined property title, the distinction of property and possession and credit securities. These institutions cannot be self-regulatory but need a clear legal frame, in other words rules established by a State. Transaction costs economists understand the danger of opportunistic behaviour and a corresponding systemic lack of trust in the negotiation, conclusion and execution of contracts. They underline the necessity of institutions which are capable of limiting these dangers and thus reducing transaction costs. Institutions may be customs, informal arrangements and formal law. At the end two examples are presented-real estate transactions and post-patriarchal family relations-to test the utility of these considerations.     

Intellectual property law and practice in the blockchain realm

Blockchain technology is claimed to be and perceived as one of the revolutionary technologies that will have an enormous impact on our lives in the forthcoming years and decades. The legal questions surrounding blockchain appear to be among the most controversial issues surrounding this novel technology, which create uncertainties as to the scope and speed of its eventual adoption. Is it legal to use blockchain technology? Does or should any governmental authority or court take a record stored in blockchain into consideration in their decisions? Is blockchain reliable? Can the technology be used for the protection and enforcement of legal and property rights?The technological advancements offered by blockchain promise wide ranges of use in a variety of sectors and legal areas, including intellectual property (IP) law. This paper will focus primarily on the possible opportunities that blockchain may offer with respect to the future of IP law and discuss its potential impact on the registration, management and enforcement of intellectual property rights. We will proceed to offer blockchain-based solutions to foster the operation of IP offices, reinforce customs procedures in detecting counterfeit products, and enhance the efficiency of IP rights management by the right holders. The paper concludes by providing some suggestions to pave the way for the advancement of blockchain technology and to increase the number of people that this technology reaches, as well as its successful integration into the various services and registration/transaction channels that we use today.     

An evaluation of the impact of criminal law revision

For many decades there has been a perceived need for criminal law revision in the United States. The American Law Institute sponsored the creation of a Model Penal Code which became available in 1962 and spurred activity which has resulted in some 40 states enacting new criminal codes. Among the many objectives of the new codes is the increased efficiency and effectiveness of criminal justice procedures. The present evaluation effort searched for changes in system rates which, it was assumed, would be effected by the New Jersey Criminal Code enacted in 1979. For example, the evaluation searched for changes in the handling of certain tyes of offenses as well as for changes in various court processes. Evaluation results revealed few changes in the many areas investigated. Consideration of the assumptions underlying criminal law revision and the relative lack of predicted impact raises issues that deserve but have not received much attention, certainly very little research and evaluation. This report ends with a discussion of reasonable expectations for criminal law revision and suggestions for related research.     

Measuring the impact of law enforcement on organized crime

This article explores the possibility of measuring the impact of law enforcement on organized crime in a reliable and accountable manner, both in general terms and with a practical focus on the Canadian context. In considering measures to combat organized crime, a focus on process measurement has obscured the more substantial question of progress as regards the dependent variable itself: the bottom line of reducing the impact of organized criminal behaviour. While outcome measures are more challenging to identify than process measures, this fact alone does not minimize the need to demonstrate the connection between organized crime enforcement and its presumed outcomes to a greater degree of certainty. To date, this has not been realized to any significant degree, as revealed by a review of existing international approaches to measuring the impact of enforcement activity. The article argues that a multidisciplinary focus on community level indicators of crime, if initially less accessible than process measures of impact on organized crime groups, offers promise as a measurement of absolute and relative impact of state investment in enforcement.

2O03年司法考试行政法与行政诉讼法部分分析

法治的实现需要司法共同体的形成已成为法学界的共识,而统一司法考试则是司法共同体形成的必不可少的措施。共同的知识背景、共同的话语,甚至是相同的思维方式,这些司法共同体的要素,凭赖司法考试这一统一的门槛。因此,我们有理由给予司法考试更多的关注。一个发育良好的制度应当是容纳各种批评的制度。正如文学批评促进了文学的发展一样,司法考试也同样应当吸收来自于各方面的批评。批评并不意味着否定,相反,司法考试只会因批评而日臻完善。     

The organizational values of law enforcement agencies: The impact of field training officers in the socialization of police recruits to law enforcement organizations

This article examines how the values communicated by Field Training Officers (FTOs) influence the behaviors of police recruits to conform to the norms of the police culture. Analysis and interpretation of the written responses of police recruits to a program evaluation form in a police department located in the western United States were used to identify the explicit and implicit values that were communicated during the Field Training Program (FTP). The findings of this study indicated that although positive explicit values were communicated during the FTP, several potentially negative implicit values were also communicated to police recruits. Consequently, the perceived status of the FTO is an important factor in police recruits learning job-related values. Recommendations are made for developing effective leadership strategies for bringing greater levels of congruency between the explicit and implicit values of law enforcement organizations that are communicated to police recruits during the training process and organizational socialization. Author Note: Wade Engelson is a lieutenant with the Fresno Police Department. He has been with the department for 12 years and is currently assigned as the Commander of the Special Investigations Bureau. He holds a Bachelor’s degree in Business/Economics and a Master’s degree in Public Administration from California State University, Fresno. He holds a Doctorate in Educational Leadership from the University of California, Davis/California State University, Fresno Joint Doctoral Program. He has taught in a variety of settings and has published articles in the fields of sexual harassment, organizational socialization, tactics, and training issues. His research interests include leadership issues, organizational socialization, and the hidden curriculum of organizations.     

论《农产品质量安全法》的性质及适用范围

近年来,我国农产品质量安全问题已成为社会公众关注的热点问题, <农产品质量安全法>的出台无疑对于解决农产品质量安全问题具有深远的意义,但对于该法的理解和适用还存在着诸多误区,严重影响了该法重要作用的发挥.因此,有必要明晰<农产品质量安全法>的性质及适用范围,以利于该法与<产品质量法>等法律划分管辖,避免重复管辖或者漏管.     

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.     

Special section/issue on race,ethnicity, and the law

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Special section/issue on race, ethnicity, and the law