The European Commission's Opinions under Article 6(4) of the Habitats Directive

The contribution examines the Opinions which the European Commissionhas issued so far under Article 6(4) of Directive 92/43 (HabitatsDirective). It examines Member States' reasoning for justifyingthe application of Article 6(4) of the Habitats Directive inthe light of the European Court of Justice rulings, and comesto the conclusion that probably not one of the cases submittedwould have been accepted by the Court.     

以欧盟为中心看欧洲私法的法典化趋向

随着欧盟政治一体化的不断推进,欧洲法律一体化的步伐也日益加快,其中欧洲私法的法典化趋势尤其引人瞩目.欧盟自身的发展动力,以及法学界围绕<欧洲民法典>工程进行的学术准备,推动欧盟采取正式行动,着手解决欧洲私法面临的困境;其立法规划最终落实为一项所谓的<共同参照框架>.这份即将出台的法律文件是实质的法典编纂,将引发一场深远的欧洲私法的法典化变革.然而受制于欧盟权限,欧洲私法的法典化呈现出不同于传统的独特性.     

Bill of Sale Lending: Reforming a ‘Toxic’ Form of Credit

The Bills of Sale Acts were enacted in Victorian times as a form of secured credit whereby ‘goods’ owned by a borrower could be assigned under the bill of sale to a lender who would have title to the goods transferred to him. The lender would then allow the borrower to retain possession of the goods in exchange for instalment payments with interest. In the twenty‐first century these bills are most commonly used as ‘logbook loans’ for vehicles with extortionate interest rates and very little protection for individual consumers. This article examines the operational background to the Bill of Sale Acts. It focuses upon particular concerns for consumers and businesses and provides critique of the registration process before examining the proposals and consultations for reform currently before the Law Commission.     

International Best Practice and the Constitution,Democracy and Rights Commission

The UK government has pledged to establish a Constitution, Democracy and Rights Commission. This body will have a wide remit to recommend potentially sweeping constitutional change. This article draws on international experience and best practice to outline how the commission might best organise the process to produce proposals which are widely supported, fit for purpose, and durable. We argue that to achieve these goals the commission’s organisation should reflect three key principles: impartiality, expertise, and public participation. This would reflect international best practice and build on recent domestic developments. We argue that these principles can best be achieved if the commission works through a citizens’ assembly that combines members of the public with party politicians. This would be a new departure for the UK, but a necessary one given the scale of the government’s constitutional reform agenda, and its stated goal of restoring public trust in politics.     

解读国资委"管人"职责

国资委的出现意味着我国国有资产管理体制的重大变革.在"管资产和管人、管事相结合"原则指导下的国资委肩负重任."管人"是该原则的核心所在,"管资产"、"管事"都是通过"管人"来实现的.但国资委如何行使"管人"职责使其在监管国有资产运营时既到位又不越位是值得深思的问题.本文拟从国资委"管人"职责定位出发,在分析借鉴国际经验的基础上对国资委的"管人"职责提出了几点参考性建议.     

Cohabitation and the Law Commission’s Project

In 2004, the U.K. parliament passed the Civil Partnership Act which provides a scheme to enable same-sex couples to obtain formal recognition of their relationships through the registration of a civil partnership. When the Civil Partnership Bill was making its way through parliament, attempts were made in the House of Lords to derail the Bill through amendments seeking to extend the Bill to certain familial relationships of care and support. In order to counter these attempts and to facilitate the removal of the amendments, the government gave the assurance that the matter of the economically vulnerable cohabitant would be referred back to the Law Commission for England and Wales for review. Consequently, in July 2005, the Law Commission commenced its project on cohabitation. This paper seeks to examine models of reform (such as the one proposed by the Law Society of England and Wales in its 2002 Cohabitation report) as well as those introduced in other Commonwealth countries. The aim is to identify some of the crucial questions that the Law Commission will need to give careful consideration to if they are to make recommendations that will provide a more radical approach to this area of the law, rather than adopt the more conservative approach of including cohabitation in ‘piggy back’ mode on the marriage model.     

Exploring Transnational Civil Society: A Comparative Study of Colombian,Dominican and Mexican Immigrant Organizations in the USA

ABSTRACT

European integration has added an extra dimension to the perceived crisis of contemporary democracy. Many observers argue that the allocation of decision-making powers beyond the nation state bears the risk of hollowing out the institutional mechanisms of democratic accountability. In EU governance, the Commission has emerged as a particularly active and imaginative actor promoting EU–society relations, and it has done so with the explicit desire to improve the democratic legitimacy of the EU. However, assumptions concerning the societal prerequisites of a working democracy differ with the normative theory of democracy employed. Therefore, expectations concerning the beneficial effect of institutional reforms such as the European Commission's new governance strategy, which was launched at the beginning of the century, vary according to normative standards set by different theories of democracy on the one hand and to the confidence in the malleability of society on the other. Our contribution seeks to pave a way for the systematic assessment of the democratic potential of the European Commission's consultation regime. To this purpose, two alternative theoretical conceptions that link participation to democracy will be presented. A list of criteria for both conceptions that enable us to empirically assess the democratic potential of the EU Commission's participatory strategy will then be presented.     

Anti‐Corruption Watchdog Accountability: The Limitations of Judicial Review's Ability to Guard the Guardians

Anti‐corruption watchdogs form an important part of integrity measures in Australia's system of government. Integrity theory places anti‐corruption watchdogs in a fourth branch of government and as a part of a national integrity system as a way of understanding how they detect and prevent corruption and promote integrity. Integrity theory claims that an important part of the oversight of watchdogs occurs through judicial review of watchdog decisions by the courts. However, it fails to recognise the unique limitations when undertaking judicial review of watchdog decisions. This article submits that it is important to recognise these limitations to properly assess the effectiveness of a national integrity system and a fourth branch of government. The article explores the unique limitations of the court's ability to hold watchdogs to account and offers suggestions for managing these limitations.     

传统司法文化对现代法治的冲击及反思——以司法改革为视角

我国传统的司法文化结合了儒家、法家、道家等各派的法律思想,在历史的传承中形成了自身的特点。某种程度上,我国现代法治进程也是对我国传统司法文化批判地继承的过程。我们应深刻认识到,传统司法文化中有着众多阻碍法治进程的内容,对传统司法文化去其糟粕,取其精华,无疑是当前我国司法改革的题中之义。