Civil money penalties: procedures for investigations,imposition of penalties,and hearings. Interim final rule; request for comments

This interim final rule establishes rules of procedure for the imposition, by the Secretary of Health and Human Services, of civil money penalties on entities that violate standards adopted by the Secretary under the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). We intend that this be the first installment of a rule that we term the "Enforcement Rule." The Enforcement Rule, when issued in complete form, will set forth procedural and substantive requirements for imposition of civil money penalties. In the interim, we are issuing these rules of procedure to inform regulated entities of our approach to enforcement and to advise regulated entities of certain procedures that will be followed as we enforce the Administrative Simplification provisions of HIPAA.     

反对解释的场景及主体

反对解释是法治社会的一个原则。这一原则强调,对明确的法律规范,尤其是强制性法律规范,法官等法律人应该直接认定其意义并加以贯彻,而不能解释,尤其不能过度解释。反对解释的场景是个审判等活动“语境”的问题,但由于场景都是片断,因而难以从理论上系统叙述,所以,我们只是把场景作为思考的起点和归宿,在法治理念下叙说反对解释的一般要求。我们相信,法制要求人们对法律规范的固有意义保持克制,要求尊重法律的权威。能动主义是一种克服司法机械的思路。司法能动主义者几乎把严格等同于机械。但法制恰恰是因为有了适度严格才显示其魅力,如果到处能见到灵活那就不可能有法制。近百年来,几乎所有的法学都围绕着维护或破除法律的严格(或机械)而展开。但从法制基本教义看,司法克制主义是主流,而能动主义只能在克服法律过于死板,或协调法律与社会正义的严重冲突时才显现其功用。反对解释的主体是所有的适法人员,对不同的主体有不同的要求。     

内化法律之路——以内化禁止性规则为切入点

法律作为一套外在的规则体系,存在规则制定者与遵守者的二元对立,为化解这种对立,本文先将法律限缩为禁止性规则,并将其分为自然禁止性规制和实证禁止性规则.然后借鉴康德的形式道德理论说明服从自律要求是遵守自然禁止性规则的原因,再通过演化博弈理论将遵守实证禁止性规则的动机还原为对利益的追求,分别提出内化两种规则的理论进路.从此法律就不再是对人的外在强加,而变成了自愿选择.     

Rule-making, rule-breaking? Law breaking by government in the Netherlands and the United Kingdom

This article concerns a relatively novel issue: rule breaking and unlawful conduct by government bodies; to which degree does it occur, what is the nature of this misconduct, what are the underlying motives, and what are the consequences and possible solutions? Rule and law breaking is harmful for the credibility and integrity of a state and its law enforcement system. However, very little empirical research has been carried out into this issue, in comparison to research into state crime. There is little clarity about how public actors deal with criminal and administrative laws and rules in areas like environmental protection, safety regulations and working conditions. Do government bodies set a good example? Is their behaviour better or worse than the public and businesses? An analytical framework for research will be presented and also the results of an extensive research project in the Netherlands; the main themes of which have been benchmarked against data from the United Kingdom. The article will conclude with a summary of the main findings and a number of suggestions for further research and policy development.     

行政审判中的规则阐明问题研究

规则阐明是司法活动的一项主要内容。法官在审理案件的过程中,解决一系列事实和法律问题,都遵循着一定的规则,发现和阐明这些规则,对提高案件质量、提升司法权威都具有十分积极的作用。行政审判有自身的特点,其纷繁的法律关系和复杂的行政管理活动,为行政法官进行规则阐明提供了广阔的空间,同时也提出了更高的要求。规则阐明是指法官对所要适用的规则进行解释,阐述其涵义,解释规则适用的情境、适用于本案的合理性,包括事实规则、法律规则、法理规则阐明。阐明基础有:行政法基本原则、行政行为构成、行政权与司法权关系、经验政策。阐明方法包括利益权衡、依法解释、区别与类推。中国应当构建现代司法规则阐明制度,完善裁判说理制度,设立规则阐明的激励机制,借鉴判例法制度合理因素,建立规则引用制度。     

On universal relevance in legal reasoning

The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. By that I mean that it is a consideration that must carry legal weight in the justification of some judicial decisions in every legal system in which (1) all disputed matters of law can be adjudicated, and (2) all judicial decisions are to be legally justified. Unworkability's necessary relevance has important implications for a theory of relevance presented by Rolf Sartorius. On this theory, nearly all considerations that are relevant to a judicial decision are supplied by legal principles embedded in the legal rules and decisions, or by extralegal principles dependent, in some way, on the legal principles. (The exceptions to the embedding thesis that Sartorius would, no doubt, recognize are elaborated in the text but can be set aside here.) But there are possible legal systems which do not contain an embedded legal principle concerning unworkability; and nonetheless, unworkability is relevant to judicial reasoning in those systems. Hence, a theory of relevance that relies on principles embedded in the content of rules is too simplistic. Some substantive considerations are relevant for other reasons.     

In Defense of the Practice Theory

Hart proposed that law is made possible by the practice among legal officials of observing conventional social rules, the most important being rules of recognition. This view has been dubbed the practice theory, and it has been attacked by many legal theorists. This paper argues that many criticisms of the practice theory fail because they misunderstand the nature of the organizational challenge to which rules of recognition are the solution. The challenge of constituting a legal system is essentially the challenge of constituting a group agent, and when viewed through Pettit’s account of group agency, the practice theory can easily be defended.     

调解、诉讼与公正——对现代自由社会和儒家传统的反思

调解作为一种解决纷争的做法和制度 ,是我国传统法律文化尤其是儒家法律文化的重要部分。在现代法治社会中 ,调解否已经过时 ?本文首先介绍中国的调解传统的哲学基础、理论和实践 ,然后从现代自由主义和法治理想的角度 ,对传统的调解提出批判。本文进而指出 ,调解在当代的中国以至西方仍有顽强的生命力 ,西方学者对调解作为“解决纠纷的另类选择”之一提出了多种理论依据 ,其中不少与儒家传统的睿见不谋而合。本文的结论是 ,经过“创造性转化”后的调解理论与实践能对现代文明作出贡献 ,由此可见 ,传统文化遗产在现代仍是十分宝贵和有用的资源。     

A Positivist Account of the Rule of Law

Despite extensive debate, accounts of the Rule of Law remain strikingly vague and imprecise. This paper begins the task of remedying this situation through the development of an analytically rigorous theory of the Rule of Law. First, it offers a preliminary sketch of a concept of law; second, it shows how the principles traditionally associated with the Rule of Law can be intrinsically connected with this concept of law; and third, it shows how these principles place meaningful restrictions on what states can and cannot do. Further components of the overall project are gestured toward in the paper's conclusion. Apart from advancing the broader goal of developing a complete theory of the Rule of Law, a paper of even this limited scope will be helpful in imposing some much-needed conceptual discipline over the Rule of Law debate.     

论反倾销调查中的BIA规则

“可获得的最佳信息”规则（“BIA规则”）是反倾销调查中被诉企业面临的首要规则之一。BIA规则立法和适用中存在的一些问题，应结合WTO实践，对这一规则加以完善，并以此为参照完善我国关于该规则的立法与实践。我国出口企业在遭到外国反倾销调查时，应及时提交调查问卷所要求的信息，“尽最大努力”回复调查问卷信息，并可考虑谋求政府磋商或提请DSB解决。     

The Rule of Law Beyond Thick and Thin

In this paper it is argued that different understandings of the requirements of the Rule of Law can to a large extent be explained by the position taken with regard to two interrelated distinctions. On the one hand, the Rule of Law can be regarded as either a principle of law or as a principle of governance. On the other hand, the requirements of the Rule of Law can be regarded as defining either a minimum standard which something has to meet in order to be law or as an aspirational standard identifying what it means to be good law. In combination these two distinctions define a range of perspectives on the nature of the Rule of Law that are complementary rather than mutually exclusive.     

对逻辑真几个问题的再检讨

本讨论了以下几个问题：（1）“逻辑真”是否是真的一个子类？（2）逻辑作为度量真的测度标准之一，它如何实现这种标准？（3）逻辑真自身的理论说明依赖于怎样的观念？作分析了以往哲学家、逻辑学家对这些问题的一些代表性看法，认为（1）“逻辑真”不是真的一个子类；（2）逻辑真只能测量观念形式上的关系；（3）逻辑真是认识论意义上的概念，它的本体论说明是一个“自足观念模式”的良性内循环结构。     

Legisprudence as a New Theory of Legislation

Abstract. Legal theory has so far focused exclusively on judicial activity, not on legislation. This is due to the specific legal framework of reasoning, upon which it is essential to act upon rules, wherever they come from. This form of (strong) legalism is criticized and replaced by weak legalism. Weak legalism makes it possible to detect the principles of legislation that underly the activity of the legislator. Legisprudence is the theory of these principles.     

哈特社会规则理论的限度

哈特以社会规则理论为核心阐释法律的概念,使规则区别于习惯,并将法律视为初级规则与次级规则的结合。同时,社会规则理论也具有一定的限度,这集中表现在,根据哈特的理论,在法体系之下,作为法律规则的初级规则的成立并不以其具有社会规则这一身份为必要条件。被制定出来的法律规则能够经由通过法体系效力判准的检验而在其被真正实践之前就成立,因此,有些法律规则不是社会规则,社会规则理论不能适用于所有的法律规则。     

死刑案件中证据审查与采信的反思

刑事诉讼中应确立“法律真实”的证明标准,也就是通过证据来证明犯罪构成的事实和量刑轻重的事实,并达到排除合理怀疑的程度。为此,应确立证人、被害人、鉴定人出庭作证规则和排除传闻证据规则,并建立完善的非法证据排除规则。这些制度的确立和完善,对于防止死刑案件中的误判误杀,坚持“少杀慎杀”死刑政策,具有重要的意义。     

The class certification of medical monitoring claims

The tort claim of medical monitoring has produced a disarrayed set of state and federal court opinions. The procedural dimensions of this claim are as vexing as the related substantive issues with which courts and commentators have long been grappling. Ordinarily, mass tort actions, typically involving claims for money damages, are certified under Rule 23(b)(3), which class category requires the right to notice and to opt out of a proceeding, and the fulfillment of "predominance" and "superiority" requirements. Such features are absent in Rule 23's mandatory classes. Nevertheless, this Note argues that it is appropriate for claims exclusively for medical monitoring to be certified as a mandatory class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure or its state law counterparts. Given that a medical monitoring fund is an equitable remedy, nonpreclusive of a future damages claim, and groupwide in nature, the (b)(2) class category adequately protects the due process rights of class plaintiffs.     

论我国自由裁量权制度的构建

按照对规则的尊重程度,可将自由裁量权分为弱自由裁量权和强自由裁量权。自由裁量权的作用包括:减轻法律的严峻性、制定利益妥协方案、作出体现最大利益的判决、拒绝适用成文法规则、创设新的规则等。法律规则、法律程序和法律原则都具有约束自由裁量权的作用。要构建和谐社会,既要防范自由裁量权的异化,也要防范规则的异化。     

'An Unqualified Human Good': E.P. Thompson and the Rule of Law

The late E.P. Thompson described himself as 'a historian in the Marxist tradition' But when he embraced the Rule of Law (in Whigs and Hunters , many of his colleagues on the left ostracized him as an apostate. This essay argues that Thompson's critics have largely misunderstood what he meant by the Rule of Law. His was a minimal and historical conception, which merely sought to distinguish states whose rulers had unfettered discretion from states whose rulers were constrained by legal rules, whatever their source and contents. Also, in contrast to other radical theorists, Thompson recognized that law would be a necessary institution in any complex society, no matter what its economic basis, to mediate social relations. The essay concludes with some thoughts about the relevancy of Thompson's conception of the Rule of Law for ongoing efforts to revitalize a more `radical liberalism'.     

Positivism, Idealism and the Rule of Law

The modern lawyer operates within a conception of law as a bodyof rules. To confront the law of contract, of torts, or of property,is to familiarize oneself with an intricate set of rules. Suchfamiliarity is not yet legal scholarship, much less legal practice.For in order to use the rules as lawyers use them, the rulesmust be contemplated and considered, and the relationship betweenthe different rules must be understood. Because the intellectualprocesses involved in handling the rules exhibit a high degreeof sophistication, those intellectual processes may themselvesbecome the subject matter of philosophical argument. Thus wemay regard jurisprudential theories as embodying differing understandingsof the processes of handling legal rules; and we may conceiveof legal theory as the attempt to grasp the moral significanceof rules as a foundation for social order. This essay shalloffer some thoughts on the relationship between the rule oflaw, considered as a moral ideal, and the notion of rules asthe principal means by which legal order is manifested.     

Representing the healthcare organization in a post-Sarbanes-Oxley world: new rules, new paradigms, new perils

The Sarbanes-Oxley Act (Act) significantly changed the expected corporate behavior of public companies. The Act governs the relationship between corporate organizations and their in-house or outside counsel. Under Section 307 of the Act, the Securities and Exchange Commission initially proposed expansive rules regarding counsel's duties. After comments and criticism from much of the bar, a final, narrower, version of rules under Section 307 (Final Rule) was adopted. The Final Rule contains alternative reporting procedures, attorney responsibilities, and sanctions for violations. In addition to the Act, the American Bar Association's (ABA) Task Force on Corporate Responsibility(Task Force), which was itself a reaction to Enron, reported on the importance of counsel's role in a corporate setting (Cheek Report). The ABA adopted amendments to its Model Rules of Professional Conduct (Model Rules) 1.6 and 1.13 as proposed in the Cheek Report. The Final Rule and amended Model Rules together suggest that attorneys may owe duties beyond those owed to their clients.