人体器官移植违法行为犯罪化研究

人体器官移植违法行为呈高发态势,某些人体器官移植违法行为具有严重社会危害性,符合犯罪本质属性,应当将其犯罪化认定。目前,我国刑事立法及司法对此类行为的规制和惩罚尚呈空白状态,刑法有必要对这些新型犯罪进行规制,并将其分别置于刑法分则第四章“侵犯公民人身权利、民主权利”和第六章“妨害社会管理秩序罪”之中。     

关于器官移植立法的若干思考

最近一段时间,器官移植和器官移植立法似乎成了社会各界颇为重视的热门话题。先是今年二月底九届全国人大第四次会议召开前夕,上海第二军医大学长征医院将该院去年７月所作的“全国首例脑死亡器官移植”的秘密向媒体公开,当事人称这样做的目的是希望“能够使今年的全国人大会议关注脑死亡在我国的立法问题”。接着湖北电视台于三月二十三日在全国首次全程实况转播了华中科技大学同济医院所作的一例肾移植手术,转播现场嘉宾中的多位专家谈到了     

Ex Pluribus Unum: Fusion of the European Communities into the European Union

Abstract: This article presents the main legal approaches used in constructing the relationships between the TEU, TEC, TEAC and TECSC and the institutions set up by them. It argues that the dominant approaches which separate the European Union from the European Communities run into serious difficulties when explaining the normative framework and the actual practice of the EU institutions. In contrast, the proposed 'unity thesis' asserts that de lege lata the European Union can be considered one entity from the point of view of the organisation, its actions and its law, The article develops in detail the legal premises and some of the consequences of this thesis.     

试论国家赔偿法的修改及完善

我国《国家赔偿法》实施十余年来,尽管在保障行政相对人合法权益,监督国家行政机关依法行政等方面发挥了重要的作用。但是,由于有关方面及人员对其认识的欠缺和重视得不够,以及立法本身的不足等原因,导致该法的实施不尽理想,没有发挥其应有的作用,甚至与立法当初的预测相差较远,已严重影响了国家依法行政的进程和国民对其关注程度。因此,在现阶段进一步加强国家赔偿立法的理论与实践的研究,促成《国家赔偿法》的尽快修改和完善已属当务之急。     

国家法律监督机关职能论——兼与陈卫东教授商榷

检察机关是我国《宪法》明确规定的国家法律监督机关,其主要职能是监督制约公权力,确保公权力在宪法、法律范围内活动,防止其滥用和异化。《宪法》对我国检察机关的职能定位是科学的,检察机关既不是行政机关,也不是司法机关,更不是行政兼司法机关,而是独立的法律监督机关。法律监督职能与职务犯罪侦查职能、公诉职能、批捕职能均是目的与手段,不存在分离的空间。如将法律监督职能与职务犯罪侦查职能、公诉职能分离,只能导致检察机关被彻底边缘化甚至被取消。检察机关的职权配置应紧紧围绕法律监督职能,以对等式监督为模型,重点强化职务犯罪侦查职能。     

The National Labor Relations Act and health care institutions: the persistent paradox.

In the wake of 1974 amendments to the NLRA, nonprofit health care institutions have been involved in a steady stream of labor relations cases. This article examines some of the new labor relations problems facing these institutions, and it provides valuable information and analysis to help administrators keep abreast of the legal and practical developments stemming from the cases.     

A Purposive Interpretation of the National Minimum Wage Act

This article uses a purposive method of interpretation to suggest solutions to various questions raised in the application of the National Minimum Wage Act (NMWA). The article first considers the goals of minimum wage laws (and the NMWA in particular) by putting forward the justifications for such laws and addressing critiques. It is argued that the minimum wage is best understood as a mechanism for redistribution of resources and ensuring respect for the human dignity of workers. Building on this articulation of goals, the article then proceeds to consider which group of workers are included within the scope of the NMWA (interpreting terms such as 'worker', 'voluntary workers', apprentices and trainees); what are considered working hours for the purpose of the Act (focusing on cases of work/sleep combinations); and what constitutes part of the wage (focusing on tips, attendance allowances and deductions for accommodations).     

Health Care Institution Amendments to the National Labor Relations Act: an analysis.

Ira M. Shepard, J.D. herein analyzes the legislative history and the substantive provisions of the 1974 Health Care Institution Amendments to the National Labor Relations Act. The Amendments bring private, non-profit health care institutions and their employees under the coverage of the NLRA, the goal of Congress being to reach a successful compromise of the public's right to receive uninterrupted health care; the health care institution's obligation to provide these services to the fullest extent possible; and the right of health care employees to have the same voice in the determination of their wages, hours, and working conditions accorded other workers under the NLRA.     

South Africa's unintended experiment in school choice: how the National Education Policy Act,the South Africa Schools Act and the Employment of Educators Act create the enabling conditions for quasi-markets in schools

School choice is often identified with right-leaning, voucher-happy, market-oriented public school systems like those found in the United States. Thus, the proposition that a social democratic state such as South Africa will offer many primary and secondary school learners far greater choice strikes many as counter-intuitive and implausible. The authors demonstrate that the three major pieces of education framework legislation—National Education Policy Act (NEPA), South Africa Schools Act (SASA) and Employment of Educators Act (EEA)—conspire with recent historical events and deep political and constitutional commitments to create South Africa's unintended experiment in school choice.

The authors emphasize that the legal framework created by legislation and regulation are necessary but not sufficient conditions—they prefer to call them enabling conditions—for the creation of quasi-markets in schools. The generation of quasi-markets in schools depends on several other factors required for all markets. The absence of many of these features in much of South Africa explains why the majority of South African learners do not have access to quasi-markets in schools. The absence of such features is largely a function of apartheid's legacy of deeply entrenched patterns of inequality in primary and secondary schooling.

Having demonstrated that historical, political, legal and economic conditions had the unintended consequence of producing school choice—and that school choice was not the result of the state's adoption of a conscious and deliberate policy—the authors examine the state's response to this de facto policy. The authors remain agnostic as to the desirability of the de facto policy and conclude with an exploration of some of the primary critiques of choice in South Africa. While they dismiss the ‘political’ critiques as largely facile, the available empirical evidence suggests the limited systemic benefits and the potentially deleterious consequences for the poorest of the poor who reside in areas where quasi-markets exist. The state's current ‘conscious’ attempts to re-engineer a modest mixed model, that emphasizes access to existing quasi-markets—and thus exploits superior existing school stock for the benefit of learners from historically disadvantaged communities—and that shifts public resources to those schools in the greatest need, accords with what little we know about the advantages and disadvantages of choice.     

The politics of health care regulation: the case of the National Health Planning and Resources Development Act

This paper examines the political and bureautic dynamics of health regulation under the National Health Planning and Resources Development Act and, to a lesser extent, the Carter Cost Proposal now before Congress. A number of underlying issues that affect the day-to-day exercise of health planning are considered, including the contest between state and local and federal government for program control, jurisdictional conflict between state and local planning agencies, and the unsettled roles to be played by professional planners, consumers, and providers. When we assess regulatory policy in health, these complicating factors must be added to the long list of handicaps that already exist. One important finding is that local planning agencies have embraced the task of health regulation somewhat more fully than had generally been expected. A number of explanations for this are offered. In short, the controlling factors in health planning are political, not technical, and there is more occurring at the state and local levels than many had predicted, although any impact is not likely to be dramatic.