探寻宪法解释的中国之路——读范进学教授《认真对待宪法解释》

宪法解释对于宪法研究和宪政建设都有着重要的作用。当前的宪法解释研究,应从理论体系的研究转向制度层面的实施,在尊重宪法文本权威的前提下,在维护现有宪政体制稳定性的基础上,运用宪法解释的方法来推动中国的宪法研究和宪政建设。     

AN EVALUATION OF THE CHINESE LEGAL SYSTEM ON SUSTAINABLE DEVELOPMENT

The philosophy of binary purpose in conjunction with a holistic approach reflects sustainable development.These ideas are in accordance with Chinese traditional philosophy and culture,as well as the contemporary economic and social development.It calls for the central government's support to achieve sustainable development at the initial stage.However,in the long run,this approach has drawbacks which are concealed Thus,prompt adjustment is needed.In the relationship between the systems of sustainable development and democracy,human rights,sovereign equality of states,and sustainable development are approbated by the Chinese law system.The bottleneck of sustainable development is linked to its ideological system.Integration is related to the bottleneck of binary purposes,good governance,public participation,and human rights.The government-oriented mechanism has a time element that is related to the bottleneck of utilitarianism and basic economic law.For China's sustainable development,breaking the bottleneck to improve the system and seizing the opportunity to make innovations are of great significance.     

THE OVERVIEW ON THE UK-CHINA CONFERENCE ON PUBLIC LAW

Renmin University of China hosted the first ＂＇UK-China Conference on Public Law＂ on 2-6 September, 2013. The conference was a collaboration between Renmin University of China, Oxford University, University College of London （UCL）, China Association of Constitutional Law, and the United Kingdom Constitutional Law Group. The conference was eo-organised by Nick Barber from Oxford University, Jeff King from UCL, Han Dayuan from Renmin University and Li Ruiyi from Nankai University. It was partly sponsored by multinational law firm Clifford Chance. More than 50 Chinese and British academics participated. A range of topics was covered including the position of soft law and conventions in constitutions, constitutional structure, the rule of law, judicial independence, protection of human rights, interaction between welfare states and the rule of law, and the role of the court and the judge in regulating administration. Chinese and UK academics of public law actively participated in discussions. The conference marked an unprecedented communication and exchange on constitutionalism between Chinese and British scholars.     

THE LAWS,POLICIES, AND POLITICS OF REGULATING LEAD POLLUTION IN CHINA

This article examines the politics, laws and policies related to regulating lead pollution from lead-acid battery related manufacturing facilities in China. Particularly, this paper examines how China＇s Ministry of Environmental Protection （MEP） was able to force the temporary closure of nearly 90 percent of lead-battery manufacturing facilities within a period of months in 2011, after years of enforcement failures. The authors analyze the extent to which the Government＇s response to address lead pollution was based on laws and policies that can be systematically and consistently deployed by MEP as needed, or whether such measures are reliant on political will from outside MEP. Additionally, the authors are concerned with the extent to which China ＇s governance response to lead pollution primarily addresses environmental and public health issues; or rather it primarily addresses political and economic development issues, and whether this difference is significant. The article makes suggestions for how China can improve its environmental enforcement, and in so doing, contributes to a growing field of scholarship that examines environmental governance issues in the context of developing countries.     

BEHIND MORE LITIGATION: POSITIVE AND NEGATIVE IMPACTS

Since the reform and the opening up to the world of China, there has been increasingly more litigation in China, which has stimulated further development of the legal profession and greater public and private expenditure on the legal practice. Accordingly, legal reform has become an important component of the national scheme of social transformation. On the other hand, the rapid increase in litigation has unexpectedly eroded the traditional means to resolve disputes of both mediation and judicial mediation. More alarming is that judicial credibility is seriously challenged by judicial corruption and poor enforcement of judicial decisions. The increasing number of litigation-related complaints by the public, and the large number of vetoes against the working reports of the Supreme People’s Court and the Supreme People’s Procuratorate by the National People’s Congress, are two indicators of the crisis of judicial credibility. This paper is to analyze the data of litigation, legal profession, mediation, and the phenomena of judicial corruption. Based on this analysis, it suggests that, to overcome the current quandary of judicial development, further reform should not only focus on courts, but also on all functional departments that could collaborate one way or another with the judiciary, should not depend only on governmental organizations but also on NGOs in resolving disputes and social issues, and should explore and develop innovative ways of social management.     

WRONGFUL CONVICTIONS AND THE EXCLUSIONARY RULES IN CHINA

Wrongful conviction is the shadow of the criminal justice system. Under this shadow are the flaws and deficiencies of the system, which must be shed light on in order to instigate and promote reforms and improvements to the system. Extracting confessions with torture is a major cause for wrongful convictions in China. The exclusionary rules against illegally obtained evidence should be an effective way to eliminate tortures from criminal justice. The Provisions on Several Issues Concerning the Examination and Evaluation of Evidence in Death Penalty Cases and the Provisions on Several Issues Concerning Exclusion of Illegal Evidence in Criminal Cases and the newly amended Criminal Procedure Law have made progresses in this regard, but we still have a long way to go to turn the laws on paper into the rules in action.     

AN EXAMINATION OF RETAIL CLIENTS’ INVESTOR SUITABILITY RULES IN THE COBS AND THE LESSONS FOR CHINA

Nowadays, the complexity of financial products makes it difficult for retail clients to identify investment risks, and there is an increasing tendency for firms, stipulated by the maximum profits, to recommend or enter into unsuitable transactions to or for retail clients while providing services of investment advice and portfolio management, which causes great losses to a significant number of investors. So, in the contemporary society, the investor suitability rules through which retail clients can purchase suitable financial products are the indispensable legal basis of investor protection. Currently, the regulations concerning investor suitability management in China have several problems, including the chaotic legal system, low effectiveness level and defective contents, which may make it difficult for suitability to be applied in justice and managed effectively. Since the UK’s investor suitability rules in the Conduct of Business Sourcebook that apply to retail clients whose contents include requirements of obtaining retail clients’ information, requirements of information to be provided to retail clients and criteria of assessing suitability are clear and comprehensive, the authors believe that the UK’s experiences can provide a great enlightenment for China to better investor suitability management rules, including integrating legal documents and optimizing effectiveness level, rationalizing application scope, adding criteria of assessing suitability and revising specific clauses.     

TRAGIC CONSCIOUSNESS,NATURAL LANGUAGE AND MODERN SPIRIT OF THE RULE OF LAW

Tragic consciousness, which originated in childhood, is complex compassion based on strong self-consciousness. After being moralized, tragic consciousness presents the dichotomy of good and evil, which has not only profoundly affected the formation of natural language, but also cradled the theory of natural law and religious spirit. Modern jurisprudence attempts to get rid of the shackles of classics and Christian humanism, to shape the autonomous and self-consistent image of law with the de lege lata as center. However, it is difficult for modern jurisprudence to surpass the natural language which rooted in tragic consciousness, and impossible to neglect or deny the independent value of the human. The inherent conflict within the rule of law makes ironically a tragedy, especially in the context of contemporary China.