慈善信托法律制度运行机理及其在我国发展的障碍

慈善信托作为结集慈善资源的重要途径和方式,历经百年,理应得到长足发展,然而现实中,其在全球的发展并不理想,与制度设计初衷反差较大。慈善信托作为从英美国家借鉴引进的法律制度,基于两大法系国家和地区不同的文化传统与不同的福利体制,其植入中国社会面临着诸多障碍。慈善信托制度的根基在于信用,如果信用不被视为社会基本行为准则,那么该项制度则很难发展起来,这就是慈善信托制度现阶段无法在中国植根、发展以及进一步以法律形式确定的根本原因。从具体实践层面上看,慈善信托制度与我国现行法律规范存在一定张力,无论是在设定主体上、信托财产属性上、设立程序上,还是慈善信托监察人制度以及税收优惠政策的驱动力上,诸多方面都存在不足与滞后。目前,我国正在起草《慈善事业法》,鉴于慈善信托制度缺乏在我国建立与发展的原初动力与条件,因此现阶段不宜在《慈善事业法》中规定该项制度。     

试论社会资本视阈下我国社区慈善超市的运营机制

作为一种新型的慈善事业运作平台与机制,社区慈善超市的运营发展离不开社会资本的积累。我国社区慈善超市实际上是社会慈善和政府救助的混合体,社会资本的缺乏正是其发展受制的重要原因。因此,应正确处理慈善超市与政府的关系,构建政府、社会、公民之间的互信机制,加强制度建设和慈善超市发展的网络机制建设,增加社区慈善超市的社会资本。     

Trust,Distrust and Reassurance: Diversion and Preventive Orders Through the Prism of Feindstrafrecht

This article considers Günther Jakobs' controversial theory of ‘the criminal law of the enemy’ (Feindstrafrecht). Taking an interpretive perspective that is anchored in social theory, rather than normative principles, the article traces the implications of Jakobs' central claims concerning trust relations in society as mediated by the criminal law and endeavours to articulate their relevance for English law, particularly as regards the growing role of diversion and preventive orders in criminal justice. It identifies the various ways in which these current alternatives to the criminal sanctioning process link with neo‐liberal technologies of government by connecting Jakobs' thoughts on trust with key themes in the Foucauldian governmentality literature and recent research on the ascent of auditing as a meta‐regulatory mechanism.     

Living in a Policy State: From Trust for Sale to Trust of Land

The Trusts of Land and Appointment of Trustees Act 1996has transformed the nature of co-ownership interests in land.The trust for sale, which governed dealings in co-ownedproperty under the Law of Property Act 1925, and whichmade sale the presumptive object of co-ownership, has been replaced by a trust of land, under which co-owners retainan interest in the land itself, rather than its capital value.This article considers the likely impact of this legislativepolicy departure, particularly in relation to the court'swillingness to grant an order for the sale of co-owned propertyon application by a creditor, and against the wishes of anon-debtor co-owner occupier.     

公益信托的法律特征及我国模式的探索

公益信托主要是一种以公益为目的而设立的信托,其具有目的公益性、一律实行要式主义、适用力求近似原则解决其信托财产或其他剩余部分的有效利用问题、实行税收优惠的特征。我国公益信托的发展尚处于起步阶段,需要积极探索公益信托的中国模式。     

Seeing Like an Islamic State: Shari‘a and Political Power in Sudan

Islamic law, or shari‘a, has been incorporated into the legal systems of many states. In much of the existing literature, this process is understood as part of the colonial and postcolonial state's attempt to render law legible—that is, codified, standardized, and abstract. In this article, I show how some state actors chose to move in the opposite direction, actively discouraging the transformation of shari‘a into a formal and codified system of law. Using the case of colonial and postcolonial Sudan, I argue that these actors viewed legal legibility as a threat to state power, recognizing the jurisgenerative potential of an informal and uncodified law.     

<Emphasis Type="Italic">Maslahat</Emphasis>, the state and the people: opium use in the Islamic Republic of Iran

This article tracks the development of opium use in present day Iran. Investigating how opium use is influenced by ideological change within the country, this paper intimately attempts to understand how Iranian intellectual, religious and national movements affected and still affect opium use. Working from an historicist approach, this paper furthermore investigates the changing response of the state to this opiate addiction. Analyzing the Islamic Republic's response to opiate-drug use is key in understanding how state policy decisions are influenced by and embedded within these ideological movements of a nation, and, specifically, how the Islamic Republic’s constitutional policy of maslahat allows for flexible legal strategies to combat drug control. Such an investigation is important, not only in understanding the etiology of Iranian policies of drug control and criminalization, but also in understanding how ideological movements affect an individual’s choice to use illegal substances.     

Can justice be achieved for slave descendents in Mauritius?

This article discusses challenges to achieving justice for slave descendents in Mauritius 177 years after the abolition of slavery. It reflects on the 2009 institution of a Truth and Justice Commission (TJC) in Mauritius to investigate the legacies of slavery and indentured labour. It is argued that time, the ethnic and cultural complexity of Mauritius as well as the TJC itself makes it difficult for Mauritians to achieve restorative justice for slave descendents. Reviewing transitional and restorative justice, the article argues that the Mauritius case study is potentially useful to reflections on the issue of social justice for ancient atrocities and for reflections on the challenges of reparations in complex and democratic societies. It concludes that the greater participation of civil society is required in decisions regarding reparations and that such decisions need to be grounded in contemporary and democratic approaches to achieving justice and the protection of human rights.     

US tax treatment of foreign grantor trust during the year of the Grantor's death

This article, specifically, addresses the US tax treatment ofa foreign trust that changes from a foreign grantor trust toa foreign non-grantor trust when the grantor (settlor) diesduring the year and how the trust accounts for its distributednet income and undistributed net income in the year of death.¹     

Can the Public Trust Doctrine Save the High Seas?

Abstract

The high seas is one of the last remaining commons on the planet, but comprehensive efforts to save this area beyond national jurisdiction have not been successful. This article examines the feasibility of applying the public trust doctrine to the high seas by first evaluating tools that are currently in place to protect biodiversity then analyzing the public trust doctrine in its traditional application in the United States and other countries. With this foundation, the article examines the possibility and methodology of applying the public trust concept to protect the high seas.     

Communication error management in law enforcement interactions: a receiver’s perspective

Two experiments explore the effect of law enforcement officers’ communication errors and their response strategies on a suspect’s trust in the officer; established rapport and hostility; and, the amount and quality of information shared. Students were questioned online by an exam board member about exam fraud (N_study1 ?=?188) or by a police negotiator after they had stolen money and barricaded themselves (N_study2 ?=?184). Unknown to participants, the online utterances of the law enforcement officer were pre-programmed to randomly assign them to a condition in a 2(Error: factual, judgment)?×?3(Response: contradict, apologize, accept) factorial design, or to control where no error was made. Our findings show that making (judgment) errors seem more detrimental for affective trust and rapport in a suspect interview, while no such effects appeared in a crisis negotiation. Notably, we found a positive effect of errors, as more information was being shared. The ultimate effect of the error was dependent on the response: accept was effective in re-establishing rapport and decreasing hostility, while contradict threatens it. Accept seems more effective for the willingness to provide information in a suspect interview, while apologize seems more effective for affective trust and rapport in a crisis negotiation.     

Are Women Getting (More) Justice? Malaysia's Sharia Courts in Ethnographic and Historical Perspective

Religious law is commonly understood as deeply conservative and unfriendly to women, even when it is reform oriented and “this‐worldly.” This essay challenges that understanding. It does so by engaging the practice and lived entailments of Islamic family law and gender pluralism in Malaysia, based on ethnographic fieldwork conducted since the late 1970s. My research reveals that sharia courts are more timely and flexible in responding to women's claims than in decades past, and that these courts are more inclined to punish husbands who transgress sharia family law bearing on women. In addition, women nowadays have far more access to resources for negotiating marriage, its dissolution, and the aftermath. This is not to say that women and men experience marriage, divorce, or the sharia juridical field as social equals; they do not. But this situation is changing in ways that benefit women as long as they embrace increasingly salient and restrictive codes of obedience and heteronormativity. More broadly, the essay problematizes tensions and oppositions between Islamic law and women's rights that are the subject of considerable scholarly debate and contributes to our understanding of the complex entanglements of religion and law.     

Legal Neutrality,Public Benefit and Religious Charitable Purposes: Making Sense of Thornton v Howe

Thornton v Howe (1862) concerned a trust to promote the works of Joanna Southcott, a millenarian prophetess. Sir John Romilly's assertion of legal neutrality towards religion sits uneasily with the outcome of the case, but a contextual study shows that Romilly was sincere and that in its heyday Southcott's sect was a significant group with particular attraction for women. By the time of this litigation, however, her dwindling following was ill-equipped to administer the inadequate trust fund and prolonged litigation. Although Romilly's neutrality approach was correct at the time, it was overtaken by the impetus for greater scrutiny of religious charitable purposes through a requirement of public benefit.     

The emergence of the Islamic trust

The Islamic trust, governed by both the laws of the jurisdictionunder which it is written and by Shari'ah law, has become apopular financial and devolution planning vehicle for assetsheld by Muslims. This article examines how these trusts havedeveloped.     

我国公益信托发展中的税法缺失

公益信托是为实现公益目的和公众利益而设立的信托。我国公益信托无法满足社会对公益事业的强烈需求，税法的缺失是我国公益事业发展之路上难以逾越的障碍。逐渐完善税收制度，尤其是增加对公益信托的税收激励，是促进公益信托在我国顺利发展的行之有效的途径。     

Islamic Law in Action: A Historical Discussion

This review essay engages Kristen Stilt's recent book, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (2011), in a fashion that highlights its contributions to the study of Islamic law. In particular, it underlines the methodological arguments made in the book that might help us think about Islamic legal practice in sophisticated and historically grounded ways. As elaborated in the article, these arguments have important implications for modern as well historical settings. Specifically, Stilt's discussion of “Islamic law in action” reveals the inherent flexibility of Islamic legal practice to accommodate political change. The article also discusses how further research on the topic could benefit from specific approaches and orientations.     

A Normative Approach to the Quistclose Trust

This is the first article to undertake a sustained analysis of normative justifications for the Quistclose trust. Whilst much of the existing writing on this topic has focused on the better classification of such trusts – for instance, whether they are express, resulting, constructive or sui generis – this article asks why the law should recognise a trust in addition to any underlying legal relationship. Four key justifications are addressed, based on respecting party intention, unconscionability, fairness, and the incentivisation of desirable transactions. It will be argued that: (i) there are difficulties with each of these justifications, although an intention‐focused explanation is probably the most convincing; and (ii) the existing law and commentary lacks coherence and consistency, as seen in the mismatch between normative and doctrinal analysis, and the failure to properly address the ramifications of the Quistclose trust during insolvency.     

Freedom of association in labour relations in the context of the <Emphasis Type="Italic">Maqasid</Emphasis>-<Emphasis Type="Italic">al</Emphasis>-<Emphasis Type="Italic">Shari’ah</Emphasis> principles

Labour relations are an important chapter in economic and industrial development. Labour relations are divided into personal employer-employer relationship and collective relationship between employer and trade union. The collective relationship forms the core of the employees’ right to freedom of association. This article discusses the right of employees to freedom of association including the right to strike from the Islamic perspective. The Islamic principles applicable in this context are Maqasid-al-Shari’ah (the higher objective of Islamic law), Haqq and Jama’ah (the functional concepts in Islamic law). Freedom of association in labour relations which is basically a western concept suits the three Islamic principles and the Islamic principles are in line with the ILO standards and European law. This article is written by using pure legal research method, i.e. adopting a content analysis approach with the Islamic sources such as the Qur’an and Hadith as a point of reference.