宪政理论范式转换及中国宪法学的回应

宪法学作为社会科学的分支,会随着时代的变化而转换研究范式。宪政理论研究范式大致经历了两种范式转换:近现代古典自由主义模式和当代新宪政主义模式。特定的语境和历史场境赋予了西方宪政概念及其理论自身的内在规定性与特定的理论定位和功能。宪政理论要想成为中国宪法学的理论,必须完成其概念和理论范式的转换。宪法秩序概念及理论涵盖了宪法运作现象的不同形态和不同层面,是对整个宪法运作现象和事实的全局性理论把握和综观性理性反映。它能够克服西方宪政理论的不足,体现中国宪法学对这种不足的回应,是宪政理论和概念范式转换的一种尝试。     

农用运输车管理主体变更后的思考及对策

原有农用运输车管理体制存在的问题,导致了近年来农用运输车交通事故率大幅度上升的情况。目前,正值《道路交通安全法》的颁布实施,为加强农用运输车的管理,有必要采取一些行之有效的对策。     

COMPARATIVE STUDY OF INTERNATIONAL CARRIAGE OF GOODS BY RAILWAY BETWEEN CIM AND SMGS

China and some of its trade partners in Western Europe apply different legal regimes for international carriage of goods by railway — respectively Agreement on International Railway Freight Transportation (SMGS) and Uniform Rules Concerning the Contract of International Carriage of Goods by Rail (CIM). For transportation of goods by railway between China and Western Europe both the CIM and the SMGS are often applicable. China’s initiative “the Belt and Road” promotes development of railway transport in Eurasia and creates new incentives for comparative study between those two international legal systems. This article provides a brief historical outline of comparative studies between the CIM and SMGS. This article also purports to show that some similarities and differences between the two regimes might be better understood from the perspective of comparative legal history. Taking into account inter alia the common origin of the current versions of the CIM and SMGS in the 4th revision of the CIM of 1933, differences and similarities between two legal regimes have been analysed with regard to the following topics: the scope of application of the CIM and SMGS; the nature of the carrier’s liability under the CIM and SMGS; exclusivity of the CIM, exclusivity of the contract of carriage under the SMGS; period of responsibility; persons for whom the carrier is liable.     

Having yes,using no? About the new legal regime for biometric data

The rise of biometric data use in personal consumer objects and governmental (surveillance) applications is irreversible. This article analyses the latest attempt by the General Data Protection Regulation (EU) 2016/679 and the Directive (EU) 2016/680 to regulate biometric data use in the European Union. We argue that the new Regulation fails to provide clear rules and protection which is much needed out of respect of fundamental rights and freedoms by making an artificial distinction between various categories of biometric data. This distinction neglects the case law of the European Court of Human Rights and serves the interests of large (governmental) databases. While we support regulating the use and the general prohibition in the GDPR of using biometric data for identification, we regret this limited subjective and use based approach. We argue that the collection, storage and retention of biometric images in databases should be tackled (objective approach). We further argue that based on the distinctions made in the GDPR, several categories of personal data relating to physical, physiological or behavioural characteristics are made to which different regimes apply. Member States are left to adopt or modify their more specific national rules which are eagerly awaited. We contend that the complex legal framework risks posing headaches to bona fide companies deploying biometric data for multifactor authentication and that the new legal regime is not reaching its goal of finding a balance between the free movement of such data and protecting citizens. Law enforcement authorities also need clear guidance. It is questioned whether Directive (EU) 2016/680 provides this.     

“Harden Up and Face Reality:” Exploring Underlying Bullying Beliefs in New Zealand

A growing body of research illustrating the detrimental consequences of bullying has led to many antibullying interventions being developed. Despite good intentions, evidence suggests that such programs vary considerably in their efficacy. The current study examines the social discourse around bullying in the New Zealand environment in order to see whether underlying beliefs may undermine or influence approaches to mitigate bullying. The study employed an exploratory, qualitative approach of social discourses in the media. Using 31 online media articles, and 501 related online comments, methods of applied thematic analysis revealed three main themes which captured the beliefs that (a) victims of bullying are weak, (b) perpetrators of bullying are evil, and (c) bullying is a normal and, in some ways, acceptable behavior. Such findings illustrate the role that societal beliefs play in shaping the environment in which bullying occurs, and have important implications for future bullying research and interventions.     

新时代的政商关系研究：进展与前瞻

政商关系的发展会受到时代背景、制度环境的影响,相关研究也会形成不同的学术话语体系。在新时代的呼唤下,政商关系产生了新内涵,政商关系研究也需要在反思的基础上引入新思路和新研究范式。目前,新型政商关系研究方兴未艾,研究者致力于围绕“如何理解政商关系”“新型政商关系有何新意”以及“应该如何构建新型政商关系”等三大核心问题展开研究。浙江工商大学“新型政商关系”研究团队通过研究综述与学术交流,对新型政商关系的新内涵、新核心、新定位、新机制、新路径、新保障进行了提炼,也对新型政商关系进一步的研究进行了学术展望。     

Keeping the Family Together: Why New York Must Amend Evidence Rules to Protect a Parent's Right to be a Parent

In New York, hearsay statements made by children may be admissible in a child protective proceeding. Under Article 10 of the Family Court Act, an out‐of‐court statement only requires corroboration to support the statement's reliability. The Family Court has the choice to determine what evidence will be sufficient for corroboration. In comparison to other statutes from different states, New York's statute is very broad. This Note proposes amending the current evidence statute under Article 10 of the Family Court Act to strengthen the standard for admitting hearsay statements in child protective proceedings.     

新农村实践：乡村公民社会的培育及其实际偏失

在应然层面上,新农村的实践一方面是大力培育乡村市场体系,促进乡村私人领域的发育,另一方面是积极孵化乡村公共领域,扶持和促进民间力量的成长;但在现实上却也存在着一定的偏失,如农民主体的缺位、集体性失语以及国家在整个新农村建设中单边包揽等。这些缺失,是新农村建设中的一个结构性落差,是乡村社会结构转型的一个必经环节,预示着新农村建设的最终方向是实现乡村公民社会化。     

"9·11时代"美国对外战略的危险"创新"

"9·11时代"美国对外战略的危险"创新"是:以"布什主义"为基本原则;以建立"新帝国"为最高目标;为实施"新帝国"战略而严重夸大外部威胁;以对"流氓国家"的"预防性战争"、"政权更迭"和"民主化改造"作为"新帝国"扩张基本手段。这些"创新"相互影响,其危险是:践踏国家主权平等、和平解决国际争端等当代国际法和国际关系基本原则,加剧国际军备竞赛和"安全困境",威胁世界和平与发展。     

Material Objects and Aura: Popular Culture Images against and for War

Surrealism, altered to fit the politics of marginalized people, helps to analyze popular culture's response to war and terrorism. Metaphors from surrealist art and sources from popular culture, including Fahrenheit 9/11 and the apocalyptic, violent, dispensationalist, Left Behind novel series, reveal many discussions of U.S. policy that are currently occurring. This article asks how political agendas are communicated and framed to society via images and how this influences debate over war. The overall conclusion is that the prowar movement uses images that dissuade U.S. society from critical thought and debate on foreign policy issues. While surrealist imagery provides metaphors for the analytic framework, imagery in support of war uses less thought and more violence, which is appropriately analyzed using German Romantic film as a metaphor.