中国引入辩诉交易制度的三重障碍

辩诉交易制度的基本机能在于规避诉讼风险,同时也有助于提高诉讼效率。但是,从背景来看,辩诉交易制度本质上是一项内生于英美对抗式诉讼模式的制度设计,其运行依赖于对抗式诉讼制度以及契约文化和实用主义的哲学观念,在我国引入辩诉交易制度应当要慎重。     

Five Areas of Value Judgement in Local Adaptation to Climate Change

Abstract

Climate change has generated several new theoretical and policy challenges, many of which concern how local communities ought to adapt to a warmer climate. This paper identifies and analyses a number of value judgements that come to the fore as local authorities adapt to climate change. Five categories of judgements are discussed: evaluation (how should the consequences of adaptation be evaluated?), timing (when should adaptive action be taken?), distribution (how should the benefits and burdens of adaptation be distributed?), procedures (who should be involved in adaptation decision making?), and goal conflicts (how should goal conflicts in adaptation be dealt with?). For each category, further research is needed to assist decision making at the local level.     

Introduction: economic security,globalization and governance

Abstract

This introductory article examines different approaches to conceptualizing economic security by drawing on the broader social science literature beyond realism/neorealism. Arguing that traditional conceptions of economic security that see economics as a source, or instrument of state power are insufficient, it draws on a growing literature that looks directly at the economic roots of conflicts, particularly those arising from the manner in which capitalist production is organized in distinct settings. While the paper identifies a range of ways in which scholars, policy practitioners and communities think about economic security depending on the particular circumstances different states and societies find themselves in, the paper, nonetheless, argues for a notion of economic security that also emphasizes issues of justice/fairness and distributive equity. Under conditions of globalization, it is important for us to think of the needs of those made insecure by prevailing systems of market governance but in ways that do not undermine the integrity of the market nor sanction protection for chronically uncompetitive firms. Drawing on insights from International Political Economy and Economic Sociology, the paper suggests one useful way of conceptualizing economic security under conditions of globalization: that of ensuring a low probability of damage to (a) the income and consumption streams that are deemed appropriate for individual well-being; (b) the income-generating potential of an economy; and (c) some minimal level of distributive equity. To this end, appropriately designed national, regional and global institutions can function as mechanisms of governance in the interests of economic security. The rest of the papers in this Special Issue provide empirical case studies drawn from East Asia on many of the points raised in this introduction.     

Viewing Things Differently: The Dimensions of Public Perceptions of Police Legitimacy

Legitimacy (or “the right to exercise power”) is now an established concept in criminological analysis, especially in relation to policing. Substantial empirical evidence shows the importance of legitimacy in securing law‐abiding behavior and cooperation from citizens. Yet adequate theorization has lagged behind empirical evidence, and there has been a conflation of legitimacy with the cognate concepts of “trust” and of “obligation to obey the law.” By drawing on the work of Beetham (1991) and others (e.g., Bottoms and Tankebe, 2012 ), this study tests the hypothesis that the contents of the multiple dimensions of police legitimacy comprise procedural fairness, distributive fairness, lawfulness, and effectiveness. The study also investigates the relative influence of legitimacy and feelings of obligation on citizens’ willingness to cooperate with the police. Using data from London, the results substantiate the hypothesized dimensions of police legitimacy. In addition, legitimacy was found to exhibit both a direct influence on cooperation that is independent of obligation and an indirect influence that flows through people's felt obligations to obey the police. Implications for future research are discussed.     

构建中国认罪协商制度研究

台湾地区的认罪协商制度有别于西方国家的“辩诉交易”,它独具特色,在许多方面值得我们借鉴。在中国当下,建立认罪协商制度不仅必要,而且可行。中国未来的认罪协商制度,应当在认罪协商的适用范围、认罪协商的内容、认罪协商的主体、认罪协商的程序、认罪协商的救济措施等方面作出科学、合理的构建,并建立起认罪协商制度的保障与监督机制。     

Industrial relations strategy and construction in the UK oil industry: the case of the national agreement

Abstract

This paper is a case study chronicling and analyzing the strategic considerations given to industrial relations in a proposal to upgrade and renew a major production unit in a UK oil refinery. The study is based on interviews and substantial internal documents provided by the case study managers. This represents a unique illustration as to the extent a company goes through in considering the way in which a major capital project needs to consider industrial relations issues before being considered acceptable to the Corporate-level audience and its decision-makers. In particular, the context is interesting – that of an American multinational taking up a national agreement from a process of sector-wide multi-employer bargaining.     

Labor conflicts in the Toronto construction industry, 1968–1973. A crossroads of ethnic issues,business innovations,class struggle,and union action

ABSTRACT

This article concerns a case study in labor history which represents an interesting example of union action in a workers’ community characterized by intersections between ethnic and class belonging.

The focus of the article is on labor conflicts in Toronto’s construction industry between 1968 and 1973. In that period, the Torontonian residential sector represented a sort of ethnic niche dominated by Italian immigrants, who populated this industry both as workers and as contractors. At the same time, important economic, technological, and organizational innovations formed part of this niche. In particular, it refers to the new Toronto real estate boom and to the introduction of new building techniques such as the drywall technique, or concrete forming, as well as business innovations such as the flying form or the creation of teamwork. This article tells the story of successful unionization in a peculiar industry dominated by continuous formal and informal bargaining. Moreover, the powerful presence of the phenomenon of mafiosi and widespread racism made the context still more difficult. In this situation, despite the ambiguities, the final result was the unionization of thousands of workers and the successful signing of collective contracts.     

论显失公平的民事行为

不论是在《民法通则》中 ,还是在《合同法》中 ,均将显失公平规定为民事法律关系中当事人可以行使变更或撤销申请权的法定情形之一。构成显失公平民事行为的情形共有两种 :一是一方当事人利用优势 ;二是一方当事人利用对方没有经验。笔者针对这两种情况进行了分析并提出了一些看法与建议。     

Understanding gender differences in distributive and procedural justice

Gender differences in treatment and in judgments of distributive and procedural justice were examined. Three hundred nine litigants who had been involved in arbitrated auto negligence lawsuits responded to exit surveys. Two mechanisms by which gender might influence justice perceptions were explored. First, we examined whether a “chivalry bias” might be operating, in which the procedures systematically favor women over men. If such biases occur, women might feel they had been treated more fairly because of egocentric biases. Results provided only modest support for the chivalry bias. While women received slightly better awards and perceived somewhat more control than men, these differences had no effect on perceptions of distributive or procedural justice. Second, we examined whether men and women differ systematically in the factors they use as indicators of distributive and procedural justice. On the basis of group-value theory we predicted that women might place more emphasis on standing or on outcome favorability. The study revealed that men and women did differ in how they defined distributive justice, with women placing more emphasis on their perceived standing and on their perceptions of the favorability of their outcomes. There were no substantial gender differences in how procedural justice was defined. Results are interpreted in terms of how women might be responding to insecurity about facing a justice system historically dominated by men. An erratum to this article is available at .     

Ex Ante and Ex Post Allocation of Risk of Illegality: Regulatory Sources of Contractual Failure and Issues of Corrective and Distributive Justice

The pursuit of welfare objectives through contract law rules could be exemplified in the case of illegality and subsequent nullity sanctions attached to a contract that violates certain regulatory rules. The effectiveness of contractual allocation of risk of illegality (regulatory prohibitions), therefore, varies, depending on which contract theory prevails. Maintaining the validity of a prohibited and failed contract, and allocation of the relevant risks, is crucially dependent on whether we adhere to a welfare or rights-based theory of contract. In this paper we argue that impossibility of ex ante and ex post allocation of risk of illegality is the logical outcome of the adherence to a welfare theory of contract law, as maintaining even a minimum validity of the failed contract would result in some welfare losses. According to this approach unjust enrichment could not be rectified because it would diminish the optimal enforcement of welfare objectives. On the other hand, and despite such prohibition and illegality, a rights-based theory would resist opportunistic and rent-seeking behaviour and would ensure the validity of the contract and just allocation of losses and gains, which arise from the failure of the prohibited contract.