论检察权在民事审判监督程序中的归位——基于《民事诉讼法》第209条第一款的反思

新《民事诉讼法》第209条将当事人向人民法院申请再审设定为当事人向检察机关申请监督的前置程序.从理论上讲,检察机关的地位更趋合理.然而,这种程序设计在实践中又有可能对司法公信力带来负面影响.因此,继续研究检察权在民事审判监督程序中的科学配置,找准检察机关在该程序中的合理定位,对于民事诉讼制度和民事检察制度的健康发展都具有重要意义.     

我国举证责任概念的模糊性问题

举证责任概念是我国民事诉讼法学的基本理论之一。本文回顾了近三十年来我国举证责任的立法状况,着重探讨了《证据规定》中举证责任概念的模糊性问题,认为必须摒弃法律要件分类说,转而采用英美举证责任分层学说,才能使我们真正迈出证明科学的第一步,才能在审判实践中避免出现举证责任概念的模糊性以及由此所引起的一系列混乱问题。     

‘Community development’ as a buzz-word

This article examines the semantic evolution of the term ‘community development’ (CD) in the latter half of the twentieth century. It is argued that CD has acquired different meanings, theoretical grounding, and practical applications, starting from a focus on traditional societies up to the 1960s, moving to a focus on social and/or civil-rights movements up to the 1980s, and further to a focus on the modern middle class from the 1990s. The thrust of the argument is that the concept is not cohesive and unified but represents a repertoire of meanings which include many shades of CD that are not necessarily mutually compatible but reflect particular political and social practices in the contexts in which they occur.     

When aid builds states: party dominance and the effects of foreign aid on tax collection after civil war

ABSTRACT

Does foreign aid strengthen or weaken post-conflict states? We examine the effects of aid on tax collection after civil war, an important dimension of state effectiveness. While the literature emphasizes aid’s perverse effects, the relationship between aid dependence and the growth of tax collection is unclear. We argue that the impact of aid reflects its political utility for ruling elites in consolidating their authority after civil war. While dominant parties subvert tax strengthening reforms to solidify their political base, elites in more fractionalized settings rely on external political backing to manage internal challenges to their authority, and are more likely to comply with donor conditions. We test this argument through a Latent Curve Analysis of tax collection rate growth in post-civil war countries from 1978 to 2012. We find that aid is associated with slower growth in tax collection in dominant party settings, and more rapid tax growth in politically fractionalized settings. The findings highlight the need for attention to internal political dynamics to explain aid effectiveness after civil war, and point to opportunities to strengthen institutions in some post-conflict countries.     

论我国工伤保险赔偿救济模式的立法选择

工伤保险是现代社会应对工业伤害和职业病的积极措施,也体现了现代法律保护社会弱者的价值取向和法律公平正义之基本理念。世界各国对工伤事故的保险赔偿与民事侵权赔偿的关系形成了四种规范模式,我国现行法确立了以取代救济模式为主,有条件地辅以双重救济的模式。通过对四种救济模式比较,惟补充救济模式既分散了企业风险,又避免了受害人获得双重利益,真正符合工伤保险制度建立的目的,能充分发挥工伤保险的作用,所以,我国应确立工伤保险赔偿的补充救济模式。     

Where are all the victims?

Research Summary The passage of new laws that criminalize the trafficking of persons for labor and sexual services has raised public awareness about the problem of human trafficking. In response, police must understand the problem, identify human trafficking victims, and make arrests. The numbers of victims identified to date, however, has paled in comparison with official estimates, which leads some to question the existence of a human trafficking problem. Missing from this debate is information about how frequently police encounter human trafficking and how well prepared officers are to handle these cases. Analyzing survey responses from a national sample of police agencies in the United States, we found that less than 10% of police agencies identified human trafficking cases from 2000 to 2006. Larger agencies were more likely to identify cases of human trafficking but the agency leader perception about the problem in their local communities as well as taking steps to prepare officers to identify and respond were the most important factors to increasing human trafficking identification by police. Policy Implications This study provides much needed information about why U.S. officials have identified so few human trafficking victims. By understanding how often and under what conditions police find, investigate, and prosecute cases of human trafficking we will be in a better position to identify and overcome barriers to police responses to trafficking and understand the limitations of official statistics about human trafficking. Data from a national survey also provide a baseline measure of police identification of human trafficking against which we can gauge the progress of future anti-trafficking efforts.     

行政许可法的制度创新与私权潜能

行政许可法是行政法领域的一部重要的“控权法”。行政许可法的立法宗旨和意义不仅在于规范政府治理社会的行政行为,建设有限、理性、负责的政府,更在于扩大市民社会自由、自主的空间。“听证程序”、“拍卖招标”方式发放特许以及“信赖保护”是行政许可法的三大制度创新,其中体现了私法精神,运用了私法方法,展示了私权潜能,同时行政许可法的立法创举也不无缺憾并面临一些实践挑战。     

遗嘱内容和效力的法律适用问题之研究——兼评《中华人民共和国民法（草案）》第9编第74条

遗嘱内容和效力的法律适用是涉外遗嘱继承关系的一个十分重要的问题,但是理论界对此的研究很少,我国现有的立法未对遗嘱继承之准据法作出明确规定。为此文章拟对上述的问题进行深入的探讨和分析,兼对《中华人民共和国民法(草案)》第74条进行评析,并提出修改意见。     

质疑与废止:刑事附带民事诉讼

刑事附带民事诉讼制度在其产生之初,具有一定的历史合理性,但是已经不适合当前的现实。现实中,该制度矛盾重重,包括刑事诉讼与民事诉讼的矛盾,刑事附带民事诉讼与普通刑事诉讼、民事诉讼的矛盾,刑事附带民事诉讼程序内部的矛盾。同时,国外以刑、民分诉为主流和方向。因此,对该制度应该予以废除。     

The End of Domestic Violence

In this article, I examine the rationales that have been given for extending domestic violence legislation to associated persons. I argue that the empirical and principled rationales are unfounded and that the ideological rationale is reactionary. With regard to the empirical rationale, the extent of violence that the aggregate of associated persons suffers is not high enough to justify privileging associated persons over other citizens with regard to protection from violence. In relation to the principled rationale, the impetus for domestic violence legislation was based on isolation and inequality, which are not experienced in particular by the category of associated persons when taken as a whole. With regard to the ideological rationale, it is worrying that intimacy and equality are emerging as the touchstones of a newer rationale for domestic violence legislation, which rightly has more to do with isolation and inequality than intimacy and equality.