我国国际私法立法范式研究

我国国际私法的萌芽可以追溯至西周时期，其后经历了一个从分散立法到单行法典立法的过程。中华人民共和国成立后，国际私法的体系逐步建立，但是其仍然不能够适应我国改革开放的需要。在立法范式上，我国应当制定国际私法法典，完善区际冲突法规定，并且在价值取向上兼顾国际社会本位的理念。     

Regulatory Choice for Alternative Modes of Regulation: How Context Matters

The growing role of alternative modes of regulation (self‐ and co‐regulation) gives rise to major questions about regulatory choice between available governance mechanisms. Strategic policy instruments such as regulatory impact assessment guidelines (RIA) typically suggest assessing the suitability of alternative modes of regulation but they hardly specify assessment criteria. This article identifies contextual factors that should be included in any effort to predict when alternative regulatory arrangements are likely to emerge and to be effective. To demonstrate the value of the approach, it is applied to an analysis of self‐regulation in the domain of content‐rating in the audiovisual industry.     

人文关怀与国际私法中弱者利益保护

现代国际私法在弱者利益保护方面充分表现出人文关怀和实质公平价值取向。人文关怀是人文精神的集中体现 ,而人文精神是国际私法的永恒主题 ,国际私法的构建应贯穿人文精神。现代国际私法对弱者的人文关怀不但表现在有利原则、强制性规范和公共秩序保留等原则和制度层面 ,而且还反映在具体的法律适用规范之中     

Physician self referral arrangements: legitimate business or unethical "entrepreneurialism"

An emerging legal and ethical controversy in the health care industry centers on physician investment in health care facilities to which they make patient referrals. This Article analyzes the policy debate surrounding these physician self referral arrangements as well as the various responses to such arrangements. The Article asserts that an effective legal or ethical response to self referral arrangements must acknowledge and balance both the possible pro-competitive effects of such arrangements and the inherent potential for abuses in this type of business practice. From this perspective, the most effective form of regulation consists of extensive structural guidelines which focus on the physician's referral behavior and limit restrictions on investment procedures. Such an approach would minimize referral abuses and conflict of interest concerns but promote business and competitive freedom.     

Tasks facing Korea's private security business,and its prospects for the 2000's

This thesis forecasts changes in both the domestic and overseas public security circumstances, and analyzes the status of Korea's private security, discussing Korea's private security tasks and prospects for the 2000's, based on the results of problem analysis. Korea's private security business began in the early 60's, and has independently developed since the Security Services Act was established in 1977. Since the early 80's, the private security business has marked rapid growth, thanks to the introduction of Japanese private security capital and technology; and, since the successful holding of the ‘86 Asian Games and the ‘88 Seoul Olympics, the private security business has enjoyed remarkable growth year after year. However, behind such growth lie many problem areas. The internal problems afflicting private security service companies include; first, the private security service providers concentrate too much on labor‐based security; second, equipment‐based security business is limited; third, private security services are not evenly distributed nationwide; fourth, there is only a small scale of private security service providers; and, fifth, there is non‐designation of security vehicles as emergency vehicles. Problems with respect to mutual cooperation with police include (1) insufficient police support in providing training for security personnel, (2) minimal police organization in charge of private security, (3) lack of understanding and cooperation because of low exchange of information between the police and private security organizations, and (4) non‐establishment of standards applicable to the respective roles of the police and private security organization together with lack of emergency mutual contact and information systems. In order to solve these problems and achieve a desirable level of private security performance in the 2000's, a security personnel specialization policy along with security specialist schools must be established and operated. As a developmental policy, it is desirable that the function of examining private security policies be granted to Korea's Police Committee, corresponding to the U.S.A. Regulatory Board, or Japan's Public Security Committee. As a cooperation‐building exercise between the police and private security organizations, systemic meetings, officer‐in‐charge systems, ride‐along programs and crime prevention consulting service centers must be started up and operated.     

Professional Minimalism? The Ethical Consciousness of Commercial Lawyers

This article investigates empirically, through semi‐structured interviews, what shapes the professional ethical consciousness of commercial lawyers. It considers in‐house and private practice lawyers side by side, interrogating the view that in‐house ethics are different and inferior to private practice to suggest as much similarity as difference. In both constituencies, and in very similar ways, professional ethical concepts are challenged by the pragmatic logics of business. We examine how their ethical logics are shaped by these pragmatic logics, suggesting how both groups of practitioners could sometimes be vulnerable to breaching the boundary between tenable zeal for the client and unethical or unlawful conduct. Although they conceive of themselves as ethical, the extent to which practitioners are well equipped, inclined and positively encouraged to work ethically within their own rules is open to question. As a result, we argue professional ethics exert minimal, superficial influence over a more self‐interested, commercially‐driven pragmatism.     

The Real Dirt on Responsible Agricultural Investments at Rio+20: Multilateralism versus Corporate Self‐Regulation

This article uses a fine‐grained anthropological and linguistic analysis to expose the routine negotiating practices and power games behind the conclusion of paragraph 115 on responsible agricultural investments during the Rio+20 Conference in June 2012. These negotiations are simultaneously a telling example for the quotidian stuff of international governance—an arena in which much larger forces are played out through small language‐based tactics, and they are representative of an exceptional moment when global multilateral policy making in the frame of the United Nations was challenged by the legitimation of private authority and corporate self‐regulation. Combining anthropological and linguistic methods, the article focused on language use, analyzing the ways in which people interact in a highly coded language, how they “perform,” by exploring, playing with, and twisting the grammatical structures of the spoken language. At issue is the large‐scale appropriation of agricultural land all over the world by multinational corporations, investment funds, and foreign governments.

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中国新型农村合作医疗制度设计的实证分析--基于贵州、内蒙、陕西试点(旗)县的调研

在我国,占总人口15%的城市人口享用着2/3的卫生保健服务,而占总人口85%的农村人口却只能享用1/3的医疗卫生保健服务,农村居民正在沦为最大的自费医疗群体.农村医疗问题的解决有赖于农村医疗卫生保障制度的建立.自2003年,我国开始在全国范围内开展新型农村合作医疗试点,为最终科学建立新型农村合作医疗制度进行局部试验.各试点地区应在充分考虑农民的利益的基础上进行制度设计,如选择科学的账户模式,合理确定报销方案,建立大病医疗救助制度等,从而保障农村合作医疗政策效果的顺利实现.     

Realizing the Rights Revolution: Litigation and the American State

The implementation and enforcement of civil rights laws in the aftermath of the mid‐twentieth‐century rights revolution has been a prominent concern for a multidisciplinary group of scholars. This article reviews a recent literature that is devoted to better understanding the dynamics of judicial authority and enforcement power and, in particular, how courts are frequently empowered to enforce laws through complex interactions with an array of public and private actors. The article emphasizes new books by Charles Epp and Sean Farhang, which each examine different features of this enforcement process. In The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010), Farhang explores the frequency with which Congress has chosen to enforce its civil rights statutes through incentivizing private litigation. In Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (2010), Epp examines how civil rights are enforced and transformed through the relationship between administrators, activists, and lawmakers within bureaucratic organizations. Together, these books expand our understanding of the politics and processes of implementing rights in practice and, more broadly, challenge and enrich our perspective on the effectiveness of the American state in enforcing rights. The often complex series of self‐conscious legislative, judicial, and administrative choices and interactions necessary in order to deliver rights protections requires that we view policy enforcement from a broader institutional and political perspective. From that perspective, we can see that effective implementation is far from automatic.     

透明度原则及其对中国法治的影响

WTO的透明度原则要求各成员方迅速公布其贸易法律规章和措施,并保证其贸易法律规章和措施的统一实施。中国作为WTO的成员之一,其立法和实践将受到WTO透明度原则的深刻影响。     

Regulating Law Firm Ethics Management: An Empirical Assessment of an Innovation in Regulation of the Legal Profession in New South Wales

The Australian state of New South Wales (NSW) was the first jurisdiction to fully deregulate law firm structure and allow alternative business structures in the legal profession. At the same time it also introduced an innovation in regulation of the legal profession, requiring that incorporated legal practices implement ‘appropriate management systems’ for ensuring the provision of legal services in compliance with professional ethical obligations. This paper presents a preliminary empirical evaluation of the impact of this attempt at ‘management‐based regulation’. We find that the NSW requirement that firms self‐assess their ethics management leads to a large and statistically significant drop in complaints. The (self‐assessed) level of implementation of ethics management infrastructure, however, does not make any difference. The relevance of these findings to debates about deprofessionalization, managerialism, and commercialism in the legal profession is discussed, and the NSW approach is distinguished from the more heavy‐handed English legal aid approach to regulating law firm quality management.     

It's Now Or Never! Using Deadlines as Nudges

Incorporating behavioral insights into regulation is plausibly the most significant development in regulatory theory and practice in recent years. Behaviorally informed regulation encourages self‐benefiting and socially desirable behaviors with little intrusion on autonomy. Drawing on new empirical findings, this article puts forward the hitherto overlooked possibility of employing the deadline effect as a regulatory tool. Deadlines serve as an antidote to procrastination and forgetfulness. Many empirical and experimental studies have examined the use of deadlines in marketing. This study explores the possible use of deadlines by legal policy makers. It describes two survey experiments, a randomized field experiment and a natural experiment, which suggest that deadlines may encourage self‐benefiting and socially desirable behaviors, and that relaxing deadlines may discourage less desirable behavior. The article discusses the practical and normative aspects of using deadlines as a regulatory means, compared to alternative tools, such as default rules and required choices.     

The EU's Private Law in the Regulated Sectors: Competitive Market Handmaiden or Institutional Platform?

The article contests the claim that EU private law is narrowly circumscribed by a market rationality. Such a claim tracks broader criticism of EU functional legal integration, although it tends to obscure the underlying transformative pressures on private law and regulation and the role EU law plays in coping with such pressures. To offer a number of counter‐narratives, the article draws on examples from the regulated sectors, including telecommunications and energy, to reveal their experimentalist features. These suggest that EU private law is constructed through a process of error‐corrections, which allows for mutual adjustment of instruments and hybridisation of EU and local policy goals. The process results in more finely grained assemblages of autonomy and regulation to respond to concrete problems or newly salient policy goals, so that markets are understood as social institutions that are always works‐in‐progress rather than convergence points. Thus, EU private law provides a platform for transnational market‐building through innovating institutions that promote various normative and policy commitments despite the interdependencies that could undermine them.     

From Planning to Prototypes: New Ways of Seeing Like a State

All states have pursued what James C. Scott characterised as modernist projects of legibility and simplification: maps, censuses, national economic plans and related legislative programs. Many, including Scott, have pointed out blindspots embedded in these tools. As such criticism persists, however, the synoptic style of law and development has changed. Governments, NGOs and international agencies now aspire to draw upon immense repositories of digital data. Modes of analysis too have changed. No longer is legibility a precondition for action. Law‐ and policy‐making are being informed by business development methods that prefer prototypes over plans. States and international institutions continue to plan, but also seek insight from the release of minimally viable policy mock‐ups. Familiar critiques of law and development work, and arguments for its reform, have limited purchase on these practices, Scott's included. Effective critical intervention in this field today requires careful attention to be paid to these emergent patterns of practice.     

浅析国际投资多边立法的不足及其影响

由于资本输入国和资本输出国之间的矛盾，国际投资的多边立法一直进展缓慢。全球性多边投资实体法规则的缺失和有效的投资争议解决机制的缺乏，不利于造就一个稳定的、可预见的国际投资环境。未来的投资法体系的完善，很大程度上取决于国际社会能否尽快找到一个合适的多边投资立法场所，能否确立一套适当平衡南北利益的多边实体法投资规则和有效的投资争议解决机制。多边投资立法的加强，不仅是弥补现有国际投资立法不足的重要手段，也是全球经济一体化和国际投资自由化的必然要求。     

关于起草我国国际私法法典的几点想法

国际私法带有“学说法”的特点，这主要是因它不是实体法，而是法律选择法——“间接法”所决定的。涉外民事法律适用总的指导原则的设立与实施始终是国际私法学中未解决的问题。在清点和检查我国已有法律适用法规定的基础上，进行新草案的起草、说明和论证显得尤为必要。     

外资征收与环境保护——不补偿环境征收之合法性刍议

由于环境保护关系到人类整体和国际社会共同利益,在外资征收的立法与实践中环境保护和外资保护应予一体化考虑,但现状却反映出外资私益优先于环境公益的倾向。从建立国际经济新秩序的角度看,为使发展中国家不致因环保因素付出不必要的代价,环境征收不应具有补偿性。而且,不补偿环境征收合法性根植于污染者付费原则、预防原则、治安权例外以及国际环境法义务优先原则。     

法院地国家国内法中的冲突规则与国际条约的关系

法院地国家国内法中的冲突规则和已对该国生效的国际条约中的冲突规则同属该国国际私法的渊源。多数国家的国际私法制定法均有优先适用国际条约中的冲突规则的规定,但其国际私法分则对国际条约中的冲突规则的处理方式则主要有三种不同的立法模式。在裁判涉外民事案件的实践中,实体法解决办法有别于冲突法解决办法,仅在案件不符合国际统一实体私法条约的适用条件的情形下,才能依法院地国家国内法的冲突规则确定准据法。涉外合同的双方当事人选择已对法院地国家和其他缔约国生效的国际条约并不等于选择了合同准据法。而如果涉外合同的双方当事人选择了尚未对法院地国家生效、但已对两个或两个以上其他国家生效的国际条约,则只能视为对无法律约束力的“非国家规则” 的选择。由于“程序问题适用法院地法”,涉外民事案件的程序事项既不适用冲突规则,也不适用实体私法规则。法院地国家国内法的冲突规则不会同国际条约中的国际民事程序法规则发生抵触。