通过现有规范解决自动驾驶汽车肇事之刑事责任归属问题

以自动驾驶汽车为代表的人工智能产品在给我们带来便利的同时也带来了新的法律问题。为了解决自动驾驶汽车肇事的刑事责任问题,学者或是承认自动驾驶汽车的犯罪主体地位,或是建议修改刑法增设罪名。实际上,既有的刑事法律规范足以解决自动驾驶汽车肇事的刑事责任归属问题。自动驾驶汽车的驾驶人未尽到合理注意义务的,承担过失责任;制造单位生产的自动驾驶汽车存在缺陷或者明知有缺陷而未召回的,承担产品质量相关的刑事责任;使用人发现自动驾驶汽车存在缺陷继续使用的,承担监管过失责任;入侵智能驾驶系统或者利用自动驾驶汽车实施犯罪的,承担故意犯罪的刑事责任。现阶段应克服刑事立法冲动,在既有的刑事法律规范体系内寻求解决方案,更具有现实意义。     

我国宪法权利立法研究

对我国宪法权利的立法进行梳理后发现,很多法律规范虽宣称立法目的是维护宪法权利而实际上是在限制,立法存在着明显的权力秩序追求缺乏对宪法权利的必要尊重,宪法权利在法律规范中缺少可操作性的实施规范。宪法权利被立法所不当限制的重要原因是缺乏权利理念,需要把宪法权利确立为立法的最高价值,通过完善立法实施宪法权利。     

法律实证主义与规范理论——规范性的三个难题

在现代法律理论中,规范性既意味着法律对行为的影响,也用以表达有别于事实的另一世界。有关法律规范性的争议可分解为三个相互关联的理论难题:制裁与义务是否具有同样的规范作用?是否只有一般性的法律规则才具有规范性?哲学实证主义与法律实证主义对规范性的理解是否相同?通过思考这些难题可以得出结论:规范问题不同于价值问题,法律实证主义能够在探讨规范问题时坚持价值无涉的立场;法律的规范性不能化约为唯一一种规范作用,对此有必要进行更加精致的研究。     

The case of the camera in the kitchen: Surveillance,privacy, sanctions,and governance

In the summer of 2007, a member of the Rationality Center at the Hebrew University of Jerusalem took it upon himself to install a closed‐circuit TV camera in the Center’s kitchen. An email explained that the camera was installed in an effort to solve the problem of cleanness in the kitchen. The camera was removed a week later: within this week, the members of the Center exchanged close to 120 emails among themselves, expressing their opinions for and against the camera, and discussing related issues. Taking off from this exchange, this article explores some of the surprisingly rich set of normative concerns touched upon by the kitchen camera incident. Among them: public surveillance and people’s polarised attitudes to it, the invasive gaze and the argument that “if you have nothing to hide you have nothing to worry about,” the efficacy of disciplining behavior through sanctions along with the problem of shaming sanctions, the notion of privacy and its arguable relevance to the kitchen case, and more. In an epilogue, I offer some reflections in the wake of the incident, connecting it to the incipient literature on regulation through observation. I find that it is precisely the smallness, concreteness, and seeming triviality of this incident that helps bring a large set of interconnected, vexing normative concerns into sharp relief.     

Decentralized enforcement in organizations: An experimental approach

Social enforcement, the decentralized action by organizational actors of monitoring, identifying, and reporting legal violations, is widely recognized as a key factor in ensuring good governance. This article reports on an experimental survey conducted in the US and Israel examining the behavior of individuals when confronting workplace unlawful conduct. The study provides novel insights into the relationships between state based, organization based, and employee based enforcement. It finds that the likelihood and the manner of reporting will vary depending on the type of illegality and are strongly correlated to perceptions of legitimacy, job security, and voice within the workplace. Comparing illegalities, employees prefer to report clear violations by rank and file employees rather than violations by managers. At the same time, external reporting to government or media entities is most likely when violations involve the organization as a whole or implicate top management. The study also finds cultural and gender differences in reporting patterns. Finally, the study provides support for the understanding that social norms are more predictive of social enforcement than expected organizational costs.     

International Organisations and the Production of Hegemonic Knowledge: how the World Bank and the oecd helped invent the Fragile State Concept

This article examines the role of the World Bank and the oecd in the emergence and circulation of the ‘fragile state’ concept. These organisations were critical to the early development of the concept and in the consolidation of a knowledge-based agenda set out by Western aid donors to justify international assistance to poor and conflict-ridden countries. Attention is focused on three normative processes affecting the production of transnational knowledge: normalisation, fragmentation and assimilation. ‘Normalisation’ is the process by which influential knowledge producers help to transform a rough concept into a widely accepted transnational norm based on expert knowledge, detailed definitions and statistical exercises. Once the concept has been appropriated by several international actors, it undergoes normative ‘fragmentation’ as it is subjected to various interpretations across time and space. ‘Assimilation’ is the process by which the overarching concept is renewed, enriched and gradually adapted through the incorporation of additional insights. The article argues that the World Bank and oecd have functioned as central knowledge hubs, facilitating the circulation of new and controversial ideas on fragile states and their integration into the prevailing policies of the most powerful aid donors. The two organisations have thus taken an active role in the consolidation and perpetuation of the aid donors’ policy doctrine, ultimately protecting it from major normative dissent.     

Emerging powers as normative agents: Brazil and China within the UN development system

Institutions are frequently thought of as ‘socialising’ member states into pre-established norms. However, this influence is not necessarily a one-way street; members can also affect institutions, whether individually or collectively. This article analyses the behaviour of two emerging powers – Brazil and China – within the field of international development. What roles have these two states played in shaping global development norms? The article examines the key motivations, positions, and initiatives taken by Brazil and China, with special reference to the UN development system (unds). Whereas Brazil and China’s early behaviour within the unds diverged significantly, in the post-cold war period both have become increasingly interested in – and capable of – influencing UN norms. However, despite greater involvement in UN development negotiations, these countries’ leverage in normative debates originates outside of the unds, through their South–South cooperation programmes. The current diversification of platforms through which the norms of international development are negotiated may enhance the influence of emerging powers, although their ability to channel this influence effectively will depend on their capacity for norm entrepreneurship, rather than mere norm blocking.     

Evaluating the influence of international norms and shaming on state respect for rights: an audit experiment with foreign embassies

ABSTRACT

How do international norms affect respect for human rights? We report the results of an audit experiment with foreign missions that investigates the extent to which state agents observe international norms and react to the potential of international shaming. Our experiment involved emailing 669 foreign diplomatic missions in the United States, Canada, and the United Kingdom with requests to contact domestic prisoners. According to the United Nations, prisoners have the right for individuals to contact them. We randomly varied (1) whether we reminded embassies about the existence of an international norm permitting prisoner contact and (2) whether the putative email sender is associated with a fictitious human rights organization and, thereby, has the capacity to shame missions through naming and shaming for violating this norm. We find strong evidence for the positive effect of international norms on state respect for human rights. Contra to our expectations, though, we find that the potential of international shaming does not increase the probability of state compliance. The positive effect of the norms cue disappears when it is coupled with the shaming cue, suggesting that shaming might have a ‘backfire’ effect.     

公司社会责任本土资源考察

公司社会责任包含着大量属于道德规范的内容。中国有着沿续几千年的道德传统和丰富的道德资源。从中国实际出发,挖掘“本土资源”,从影响乃至塑造我国道德传统的古代思想中探寻建构我国公司社会责任理论的基础点并寻求公司社会责任实现的“药方”,是深化公司社会责任研究的又一进路。中国传统文化与公司社会责任实现所需要的环境既有相容的一面,也有矛盾冲突的一面。我们应当在坚守法律底线和尊重公司营利性的基础上采取必要措施强化道德规范对公司行为的约束。大力营造与社会主义市场经济相适应的道德环境,提升公司社会责任的实现程度。     

讯问笔录中特殊语言的记写规范探讨

写作是一门实践性极强的学科,因此在公安院校的写作教学中,除了写作理论的讲授外,重要的是训练学生掌握实际操作的能力。讯问笔录作为诉讼证据之一,或作为记载固定违法犯罪证据的手段之一,具有不可替代的作用。办案实践中,不少讯问笔录不符合写作和法律规范,存在这样那样的问题或质量不高。侦查人员要作好讯问笔录,事先应熟悉案情,作好讯问计划,同时应掌握一些特殊语言的记写方法。