宪政视野里的人权观念重构

在我国现已加入多项国际人权公约的背景下,我国的现行文本宪法仍未引入国际通行的人权概念。本文试图从宪政体制的视野,针对宪政体制和人权保障,宪法文本的阶级话语和人权观念的冲突的角度,分析并认为将马克思主义的无产阶级革命理论运用到社会主义建设时期,用无产阶级革命时期理论思维去指导社会主义的国家建设,用阶级矛盾和阶级斗争思维去建构我们的宪政体系是我们现行宪政体制中人权认识上步入误区的原因所在,也是我们在宪政视野中对人权价值观念进行重构的起点。     

是限制特权,还是保护特权?--评婚姻法修正案第33条的实质影响

婚姻法传统中旨在维持军婚的特权体制,在此次修订中被加以了限制,但这较之过去并没有实质改变军人的特权地位.解决问题的关键不是对法条的修补或解释,而是将争议诉诸宪法审查.     

论行政合同的基本特性

行政合同是行政主体为直接实现行政的目的或单纯为行政事务与他方订立的合同。在行政主体合同权利的限制、行政主体在合同中的特权、合同的瑕疵与救济方面,行政合同均存在有别于普通合同的特性。这些特性意味着行政合同具备自身存在的理论基础和实践价值。     

《刑事诉讼法》修改凸显人权保障——论不得强迫自证有罪和非法证据排除条款

此次我国《刑事诉讼法》修改,规定了不得强迫任何人证实自己有罪,还增加了非法证据排除的规定。这些新增内容之间存在紧密联系,每一项又有各自的意义。"不强迫自证其罪"条款是"尊重和保障人权"的进一步体现,关系到我国刑事侦查、检察和司法部门的职责和个人权利的保障;非法证据排除是落实不强迫自证其罪的具体措施,通过约束侦查部门取证行为对侵犯个人权利提供了补救措施。这些都是我国《刑事诉讼法》在原则性和制度方面的重大修改。文章详细研究了新增加的这些条款的确切含义,指出其中的进步意义,分析了存在的问题,提出执行新增加的这些法律条文必须注意的事项。     

Keynes,Friedman, or Monnet? Explaining parliamentary voting behaviour on fiscal aid for euro area member states

This article investigates the determinants of parliamentary support for international fiscal aid. Departing from the literature on presidential systems, it analyses an exemplary case of a parliamentary system, Germany. Two theoretical accounts are distinguished. The first perceives MPs as policy-seekers and focuses on the positioning of government and opposition parties and individual MPs on an economic left?right and a pro- versus anti-EU dimension. The second regards MPs as vote-seekers and presumes an electoral district connection. The statistical analysis of a new data-set containing information on 17 Bundestag roll-call votes from 2009 to 2015 finds support for the first account: voting in favour of fiscal aid measures is mainly driven by government membership and EU support. By contrast, neither economic ideologies, nor district or mandate characteristics influence support for fiscal aid. The article contributes to a growing literature on the domestic politics of international political economy.     

Power of the law or power of the sword: the conflictive relationship between the executive and the legislative in nineteenth-century Peru

ABSTRACT

The Peruvian parliament was a central institution in the early republic, but so far very little has been written on its history. This is due to the fact that military leaders took control of power for most of the nineteenth century. This article reflects on three main questions: what was the role of the legislative in nineteenth-century Peru? What was its relationship with the executive power? And what part did conflict play in these relationships? Most initial congresses were tasked with writing up constitutions, because institutions had to be created, and there was a strong belief that having a written charter mattered. The strongmen who took power felt the need to obtain legitimacy from both constitutions, and elections, but often did not see eye to eye with congress. This led congress to be closed, particularly when legislators refused to bow down to presidential power.     

Gender,Ethnicity, and Education as Privileges: Exploring the Generalizability of the Existential Guilt Reaction

Two cross-sectional questionnaire studies were conducted to replicate and extend previous research on the existential guilt reaction. In Study I, gender was considered as a privilege. Male student participants (N = 141) were confronted with the low proportion of women in high-ranking positions and asked to appraise this situation. Self-reported behavior, behavioral intentions, and appeal to authorities aimed at advancing equal opportunities for both genders served as criterion variables. Path analyses were performed to explore the correlation structure among the variables. Self-reported behavior depended most strongly on behavioral intentions and on belief in control. Behavioral intentions depended most strongly on existential guilt. This effect accords to previous existential guilt research. Ethnicity and education were considered as privileges in Study II. Privileged Paraguayan students (N = 80) were confronted with the disadvantageous living conditions of Indians and Campesinos. They were asked to appraise the situation. Behavioral intentions and appeal to authorities directed at improving the living conditions of Indians and Campesinos served as criteria. As in Study I, existential guilt was the strongest predictor of behavioral intentions. Study II revealed the role of values in the process of existential guilt and prosocial behavior. This is a new research finding. Indirect effects of the two values of universalism and benevolence on behavioral intentions were obtained. The effect of universalism was mediated by existential guilt and moral outrage, the effect of benevolence was mediated by injustice and existential guilt. Tradition had a negative indirect effect on behavioral intentions. This effect was mediated by justification of deprivation and probably means that adherence to tradition eases the justification of traditionally existing social inequalities in a society.     

紧急状态对西方法治的挑战及其理论反思

运用紧急权应对紧急状态已经成为一个日益棘手的问题。西方的法治与紧急状态是矛盾的。我国的法治及其民主建设应该从西方法治与紧急状态之间的矛盾汲取有益的经验和教训。     

Parliamentary Scrutiny of Delegated Legislation: Lessons from Comparative Experience

Recent years have seen an increase in the use of delegated legislation to implement major policy decisions in the UK. This has exacerbated the longstanding criticism that Westminster lacks sufficiently robust procedures for parliamentary scrutiny of delegated legislation. However, the UK is not the only country to use delegated legislation, or to face the challenge of ensuring it receives adequate parliamentary scrutiny. This article therefore places the UK system in wider context by comparing it to six other national parliaments. We highlight one comparative strength of the UK system, two weaknesses it shares with the other six cases, and one way in which the UK might learn lessons from elsewhere. Overall, our evidence suggests that no one country offers a clear template for more rigorous parliamentary scrutiny of delegated legislation. Successful reform of the UK's system is likely to require creative procedural innovation.     

Geographic Representation in Party‐Dominated Legislatures: A Quantitative Text Analysis of Parliamentary Questions in the German Bundestag

Political representation in European democracies is widely considered partisan and collectivist. This article, however, stresses that there is more to the representative process in European democracies than just its textbook version. It emphasizes the role of geographic representation as a complementary strategy in party‐dominated legislatures that is characterized by two distinct features. First, legislators employ distinct opportunities to participate in legislative contexts to signal attention to geographic constituents without disrupting party unity. Second, these activities are motivated by individual‐ and district‐level characteristics that supplement electoral‐system‐level sources of geographic representation. We empirically test and corroborate this argument for the German case on the basis of a content analysis of parliamentary questions in the 17th German Bundestag (2009–13). In this analysis, we show that higher levels of localness among legislators and higher levels of electoral volatility in districts result in increased geographic representation.