Dealing with corruption: the next steps

The 1997 White Paper from the British Government's Department for International Development (DFID) was specific in identifying the role of governance now being addressed by international and national donors: “improving governance can ... improve the lives of poor people directly. It is also essential for creating the environment for faster economic growth. Both aspects can be compromised by corruption, which all governments must address. In developing countries it is the poor who bear proportionally the heaviest cost“ (DFID, 1997, p. 30). Dealing with corruption is thus a priority both in terms of who it most affects and in terms of which objectives of governance — including participatory and responsive government and economic growth — it constrains. Although it has long held a specialist academic interest, corruption has become the subject of growing practitioner attention which means that the focus on corruption is beginning to move significantly from theory to practice and the practical. While there is substance to the belief that fire-engines cannot be designed without a thorough understanding of the fire they are intended to put out, there is also a sense in which the pervasiveness and tenacity of the current fires of corruption are such that action rather than refining theories and processes is what is now required. To paraphrase an analogy made by a senior British civil servant about the general issue of identifying policy — that corruption “is rather like the elephant — you recognise it when you see it but cannot easily define it” (quoted in Hill, 1997, p. 6) — is also to suggest that, while theorising may help draw up longer-term approaches to dealing with corruption, there is enough information and experience to develop best practice proposals for more immediate implementation and for developmental strategies that link to the longer-term approaches. This article addresses some of the issues of this agenda which seeks to develop, for those actively involved in anti-corruption initiatives, frameworks within which to consider realisable and cost-effective shorter-term anti-corruption strategies. This revised version was published online in July 2006 with corrections to the Cover Date.     

Occupational health ethics: OSHA and the courts

Recent court decisions have stressed the necessity for cost-benefit analysis in evaluating Occupational and Safety Health Administration (OSHA) standards, thus raising difficult ethical questions which this paper analyzes using classical approaches of deontology and teleology. Since both modes of analysis have deficiencies, the need for a synthesis using economic and noneconomic measures is suggested.     

论依法行政下的行政权

依法治国的关键是依法行政.现时的中国,由于历史和现实原因,学术界对依法行政已达成共识,即加强对行政权的控制.但行政权的内涵、目的及其运行中具有的特性,要求法律不仅应该为行政权的行使提供保障,而且基于法的阶级意志性及强制性,也必须由法律对行政权的行使予以保障才能实现其运行的目的.     

Civil rights and regulatory wrongs: the Reagan administration and the medical treatment of handicapped infants

Beginning in 1982 the Reagan administration tried to impose federal regulations (based on the civil rights approach of Section 504) on the medical treatment of handicapped newborns in the nation's hospitals. After issuing three sets of regulations, the administration found itself rebuffed by the courts and in ill repute with providers and parts of the public, especially after its widely publicized intervention in the case of Baby Jane Doe illustrated the pitfalls of federal regulation in complex medical decisions. Congress, however, soon enacted legislation employing different means to protect handicapped newborns. The episode offers insights into the dynamics of the U.S. system of separated powers, the limitations of the "civil rights" approach, and the importance of negotiating structures for the resolution of private moral dilemmas with public implications.     

The internationalization of the Polish criminal law: how the Polish criminal law changed under the influence of globalization

Globalization changed the Polish criminal law. During the last 15 years the Polish criminal law has been transformed under the influence of globalization. The purpose of this study is to assess the extent and character of this process. The change was mainly a result of the implementation of legal instruments adopted by international organizations, to which Poland already belonged or aspired (European Union, Council of Europe, OECD, UN). This is what we can call the internationalisation of the Polish criminal law. Modifications affected many areas, in particular criminalisation. Definitions of certain existing offences were extended to cover interests which were not protected before (i.e. corruption offences). Also, new definitions were introduced (i.e. act of terrorist character). Additionally, other elements were changed. However, the impact of globalization on Polish criminal law goes beyond internationalisation. Certain criminalisations were introduced under the influence of foreign laws as a tool of fight against new types of crime, characteristic for the era of unification of cultural and social behaviours (e.g. stalking).     

法条竞合特别关系及其处理

特别法条惟轻,造成法条竞合特别关系的中国式争议。法条竞合与想象竞合的结构差异,表明不必区分二者的"大竞合论"不能成立。法益同一是判断法条竞合的实质标准;"本法另有规定的,依照规定"是注意规定,是法条竞合适用原则的重申。"异质的法条竞合"现象下特殊法条数额标准的双重任务以及"典型(常态)立法技术",表明"特别法条惟轻"立法并非没有章法;即便立法有误,适用重法优先原则也无异于让行为人为立法错误"埋单";罪量要素的特殊性表明,应先运用法条竞合理论决定行为类型定型,再根据数量要素,判断该行为是一般违法抑或犯罪、轻罪抑或重罪。只有交叉、双包容关系下的法条竞合,方有"重法优于轻法"之适用。     

Dealing with cryopreserved embryos upon divorce: a contractual approach aimed at preserving party expectations

The development of assisted reproductive technologies, including cryopreservation, or freezing, of embryos created through in vitro fertilization, has given rise to complex legal questions. Because cryopreservation permits indefinite storage of embryos, if couples fail to specify disposition directions, they may disagree regarding embryo treatment upon the occurrence of contingencies such as divorce. Few courts have resolved such disputes, and those that have appear to uphold the rights of the party seeking to prevent implantation in the absence of a written agreement specifying otherwise. In this Comment, Sara Petersen proposes that courts should draw upon contract law principles in determining whether the parties to such conflicts actually reached agreements regarding embryo disposition in the event of divorce. After analyzing existing precedent, the author assesses proposed approaches for deciding which party's interests should prevail and concludes that these methods are inherently ineffective. She then argues that, in an effort to preserve party expectations and to provide fair results, courts instead should examine whether the parties executed binding contracts or achieved mutual assent. Furthermore, she suggests that couples undergoing cryopreservation will be more likely to contemplate and to provide for various outcomes if they know that courts will look at evidence of their conversations and thought processes prior to cryopreserving their excess embryos.     

论法院处理环境纠纷案件中的司法能动

司法能动是法院在案件审理中,不因循先例和遵从成文法的字面含义进行司法解释的一种司法理念以及基于此理念的行动。我国法院在发挥司法能动性,处理环境纠纷案件方面作出了大量努力,为经济社会发展提供了司法保障。但法院在发挥司法能动性处理环境纠纷案件中仍然存在较大的问题。解决这些问题,必须把握法院在环境纠纷案件处理中司法能动的向度,落实司法独立,引导法官正确行使自由裁量权,努力培养环境司法专业人才,发挥法官适用法律的能动性。     

Dealing with Juvenile Offenders in the Criminal Justice System

The treatment of juveniles within the criminal justice systems is a matter of great variety in the 11 European countries studied comparatively. The study focuses on the age of criminal responsibility, ways to divert juvenile offenders from the criminal justice system or avoid criminal justice responses to them, juvenile proceedings and special reactions and sanctions. In spite of different approaches there is a common trend towards preventing juvenile offenders from being treated by criminal courts and being sentenced to criminal sanctions.     

论应对突发环境事件的责任分担

在把握近几年我国突发环境事件现状的基础上，以风险社会理论为指导，分析环境风险、环境责任以及环境风险与环境责任之间的关系，可知，政府、企业与公众应是突发环境事件的责任承担主体。只有政府、企业与公众三方各自承担相应的责任，才能有效防范和化解突发环境事件。     

Pushing the environmental regulatory focus a step back: controlling the introduction of new chemicals under the Toxic Substances Control Act.

Environmental destruction and its attendant effects on the animal world, including human beings, has moved to the forefront of United States and worldwide policy. The effect of this deterioration on human health is unclear. Much debate focuses on the cases of cancer, along with other diseases, that are environmentally induced. Congress has responded with various environmental laws. These laws focus primarily on controlling chemicals placed into the environment, largely by industry. This Note proposes that such a singular focus is inadequate and ultimately costly. A more sensible and efficient strategy to environmental protection places emphasis on controlling inputs to the productive process before the need arises to contain such substances. The Toxic Substances Control Act of 1976 ("TSCA") takes this approach. This Note reviews the means by which TSCA attempted to accomplish its goals and concludes that TSCA's implementation has largely been ineffective. The Note then discusses three possible explanations for TSCA's failure. Finally, the Note proposes how TSCA might be made more effective in regulating new chemicals.     

Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past

The author looks at one component of transitions to democracy: the strategies successor elites develop to deal with injustices committed by the previous, authoritarian regime. He compares post-transition justice in Belgium, France, and The Netherlands after World War II and in Eastem Europe after the fall of communism. He discusses several factors that influence policy choices. Among the most influenrial are the legacy of the past regime, the internutwnal legal context at the time of the passage to democracy, and the mode of transition and its ensuing impact on the balance of power between the old and the new order.