银监会法律性质研究

2003年中国银监会的成立是我国金融监管机制步向专业化与法治化的一个重要举措。但银监会＂国务院直属正部级事业单位＂的现有定位广受诟病。＂事业单位＂的定性使国务院组成部门、直属机构和事业单位的界限变得模糊不清;＂正部级＂的冠名使得行政级别的设置进一步强化;＂国务院直属＂的设置模式无法保证银监会监管的独立性。从银监会的专业性、独立性、权力混合性及其履行职责的性质来看,其应当定性为国家经济调制机关。     

Market structures,political surroundings,and merger remedies: an empirical investigation of the EC’s decisions

This paper aims to build and empirically evaluate a discrete choice model of merger remedies as a basis for policy analysis. The database consists of 229 merger cases accepted in Phase I or Phase II of the European merger process between 1990 and 2005. We focus on the following question: Which merging firms’ characteristics lead the European Commission to decide whether to require conditional acceptance? Although a lot of empirical studies have been carried out these last years, ours is distinguished by at least two original features. First, we explore determinant factors of the Commission’s decisions with a neural network model differentiating cases accepted with or without remedies (either structural or behavioral). Secondly, we implement three multinomial logit models. We find that variables related to high market power lead more frequently to a remedy outcome, no matter the phase. Innovative industries such as energy, transportation and communications positively affect the probability of a behavioral remedy. Lastly, former Competition Commissioner Mario Monti’s policy appears to be pro-remedy, i.e. seeking concessions from merging parties.     

Good governance as a precondition for subsidiarity: human rights litigation in Nigeria and ECOWAS

ABSTRACT

Similar to the European Union, the Economic Community of West African States (ECOWAS) evolved gradually from little more than a customs union to a supranational organisation with sophisticated governance arrangements. As a consequence, subsidiarity has become an inevitable adjustment mechanism to align individual member state policies with objectives of the Community as a whole. In particular, since the inclusion of a protocol on good governance and democracy in 2001 an increasing number of policy areas require a delineation of competencies between state and Community organs. Moreover, the ECOWAS Community Court of Justice confines itself to the vertical application of human rights law and does not accept human rights claims against private persons since the extension of its mandate in 2005. Many cases involving the Federal Republic of Nigeria illustrate well a double procedural effect of the principle of subsidiarity in the human rights litigation within the ECOWAS legal order.     

Money Matters: The Financing of the Conservative Party

The article examines the financing of the Conservative Party in the aftermath of the 2001 general election. An examination of the party's income and expenditure shows that pre-2001 patterns remain - the Conservatives are the poorer of the two main parties but continue to be the principal recipient of corporate and in-kind donations. However, the article also demonstrates that income rose sharply in the aftermath of the change of leadership in 2003, suggesting that this change may have stimulated donations. Also, as for other parties, questions of probity continue to arise following larger donations but, like Labour, the Conservatives oppose any caps on political giving.     

Trusting in Trust(s): TheFamily Home and Human Rights

In July 2002, the U.K. Law Commission published its Discussion Paper No.287 on home-sharing. The conclusion drawn by the Law Commission was that it would not be possible to devise a statutory scheme for the resolution of family property disputes which is both workable and flexible enough to deal with the wide range of personal relationships that exist. It further took the view that, with appropriate changes to the way in which trusts principles are currently interpreted and applied by the courts, these trusts principles are sufficiently flexible and coherent to deal with the question of ascertaining and quantifying property rights over the family home. The aim of this paper is to examine the implications of these particular conclusions drawn by the Law Commission for both the law of trusts and the resolution of family property disputes between cohabitants. In particular, the paper will consider the extent to which trusts law remains a workable and desirable option and whether any mileage may be gained by drawing on the human rights culture that is emerging in U.K. legal and political discourse. This revised version was published online in July 2006 with corrections to the Cover Date.     

Leaking,leak prevention,and decoupling in public administrations: the case of the European Commission

Abstract

The European Commission is frequently faced with leaks, much like other public administrations in Western democracies. While executive leaders often criticise the practice of leaking as an unwanted breach of confidentiality and secrecy, leak prevention is usually not taken seriously compared to the scale of the phenomenon. This article discusses leaking and leak prevention more broadly and analyses the efforts of the European Commission to prevent leaks. It finds that leaking and leak prevention were regularly discussed at the highest level of the EU’s executive between 2006 and 2015. However, few Commission officials have been sanctioned for leaking in that period, and mostly for leaks that appear unrelated to the substance of those discussed at the political level. This mismatch is explained by a decoupling of talk and action regarding leak prevention, allowing the European Commission and other public administrations to manage inconsistencies in competing internal and external demands for openness and confidentiality.     

Collaborative leadership in EMU governance: a matter of cognitive proximity

Abstract

Collaborative leadership has stood at the heart of European politics since its inception. Yet EU scholars have only recently started to examine the concept and mainly from an institutional perspective. This article conceptualises the phenomenon of collaborative leadership from an actor-centered perspective. It explores a central condition for successful collaborative leadership identified in the literature: the existence of shared beliefs among the leaders involved. To do this, the article focuses on four events in the history of European Economic and Monetary Union. Using the method of cognitive mapping, the study establishes the extent of congruence in the beliefs on European integration and fiscal and monetary policy of the four leadership trios overseeing these events. On the basis of a survey of leading experts in the field, the article reveals that the level of cognitive proximity in leaders’ beliefs aligns with the perceived success with which the trios exerted collaborative leadership.     

审判委员会制度改革的思考及建议

我国审判委员会制度的"存"、"废"、"改"之争在法学界一直激烈地进行着.司法实践中,审判委员会制度所固有的一些弊端日益显现.最高人民法院"二五改革纲要"明确了要对审判委员会制度进行全面的改革,使争论统一到对审判委员会的改革和完善上来.针对这些弊端,应尽快修改人民法院组织法,通过完善三大诉讼舷法中的相关制度,力求给予这项传统的司法制度以新的科学含义.     

Study on the Procedure of the Supervisory Committee in Handling Duty Crime Cases——A Case Study of 768 Judicial Documents

According to the empirical research of 768 judgment documents made by the court since the establishment of the Supervisory Commission, it is found that the defense rate of the entrusted lawyer is high; the duration of detention is relatively long and the arrest rate after the removal of detention is high; the system of leniency of confession and punishment and the application rate of quick decision procedure are low;the illegal evidence is difficult to exclude; the conclusion of the case is based on verbal evidence, and the mutual “confirmation” of the evidence has become a typical mode of handling such cases. Based on this, it is necessary to guarantee the time and litigation rights of defense lawyers to intervene; to improve the applicable standards of retention measures; to clarify the applicable standards of leniency system of confession and punishment in duty crime cases and the procedures of obtaining and presenting synchronous audio-visual materials; to implement the principle of direct words in court trial, to strengthen the examination of evidence, and to establish a mechanism for witnesses, appraisers and investigators to testify in court.     

英国反就业歧视制度及实践研究

英国习惯法并不禁止歧视行为,但随着英国加入各种国际组织及国内平权运动的高涨,在20世纪70年代后,英国对于禁止性别、残疾、年龄等制定了大量的法律。当前英国反就业歧视的法律渊源主要包括:欧盟立法和专门性法律。这些法律中就有关就业歧视的违法行为进行了详尽和周密的规定,包括直接歧视、间接歧视、骚扰和受害等四种歧视形态,禁止在雇佣关系中各个阶段的任何歧视。为了有效地防止就业歧视,英国依据《平等法》成立了人权与平等机会委员会。平等机会委员会在应对英国社会中相对突出的就业歧视问题扮演了重要角色。