能动司法哲学观的解读

司法能动主义首先是从美国兴起的一场司法运动。在历史上司法能动主义并没有一个统一的含义。在美国历史上就司法克制还是司法能动的争论非常激烈,而司法姿态也是在这两种审判哲学之间呈现出"来回摆动"的情形。随着我国法治建设的发展,这种争论也渗透到我国的司法界和理论界。目前我国提出能动司法的审判哲学,这与西方的司法能动主义存在交集,同时也有区别。对此,我们应该予以辩证地看待。     

关于我市部分企业劳动争议调解组织工作情况的调研报告

我市劳动争议调解组织网络,现已初步形成,劳调组织已成为化解劳动纠纷的"稳压器"。但其组织建设,尚有较大缺位;改制退出企业的劳调工作,也陷入了某种盲区;一些企业劳调水平不高,影响了调解的成效。今后应进一步贯彻落实相关法律法规政策,加大对劳调组织的组建力度,努力推进劳动争议调解与人民调解的有效衔接,以使我市劳调工作能够提升到一种新水平。     

Dimensions of Chinese foreign conflict and cooperation: A research note

Key mediation attributes, such as mediating actors, the strategy they choose, and previous mediation experiences, are widely thought to influence the nature of a conflict management outcome. But how and when these features shape outcomes is not a straightforward matter, and a standard analysis of these factors does not lead to their widely anticipated results. Why? We develop a new analytical framework that argues that a dispute's intensity alters the conflict management processes. Furthermore, in order to observe this variation, we also need to expand the traditional, dichotomous notion of conflict management outcomes (success or failure) to include a fuller range of observed results. Using the most recent International Conflict Management data set and our new analytical framework, we analyze the effect on conflict management outcome of mediator (a) identity, (b) strategy and (c) history. We find that directive strategies and international mediators are effective in resolving high intensity conflicts, procedural strategies and regional mediators are effective in resolving low intensity conflicts, and that mediation history always affects resolution. Our results have implications for both the study and practice of international dispute mediation.     

Third-Party Intermediaries and Negotiated Settlements, 1946–2000

Past studies regarding the success and/or failure of conflict management activities have brought about a wide range of results. In this paper we attempt to gain more definitive conclusions about effectiveness by accomplishing two tasks. First, using a basic theoretical framework we identify expectations of efficacy as they relate to differences between states, coalitions, and IGOs. Second, we also examine the utility of different conflict management techniques in an effort to place in greater perspective the effectiveness of mediation, the most utilized technique of third party intermediaries. Using a new dataset on third-party intermediary behavior in militarized disputes from 1946 to 2000, we find that while all conflict managers are useful in assisting belligerents in reaching a negotiated settlement, IGOs are the most effective. Additionally, while mediation is an effective technique to produce settlements, military intermediary actions, such as peacekeeping, are much more useful.     

International Mediation and Social Networks: The Importance of Indirect Ties

This study extends the previous literature on actors' incentives in conflict management by examining how direct and indirect links between fighting parties influence the prospects for mediation onset from a social network perspective. The paper argues, contrary to existing research, that direct links, i.e., bilateral ties between warring parties, do not notably increase the likelihood of mediation. Rather, indirect links, i.e., ties that connect two states via one or more than one third party to each other, are more likely to determine whether a conflict sees mediation. Although direct links can indicate mutual interests, shared preferences, and decreased uncertainty between the warring parties, these ties either lose importance or become cut off when states enter a conflict. By contrast, indirect ties create a social network that involves outside parties in the dispute process, and indirect ties increase the exchange of information between belligerents and potential mediators and the chances that third parties will have a vital interest in intervention. My empirical analysis using conflict and social network data in 1946–1995 provides strong support for the theory.     

Failed agreements and their impact on subsequent mediation onset and success in intrastate conflicts

ABSTRACT

What impact do failed mediated agreements have on subsequent mediation onset and success? The question of mediation onset and success is undoubtedly important, given that mediation is one of the international community’s preferred conflict management tools, but its voluntary nature leaves room for the conflict parties to (dis)agree to talks and possible settlements. Existing research suggests that previous mediation outcomes can affect subsequent mediation efforts positively or negatively – depending on the outcome in focus. This article argues that failed agreements – an outcome of mediation that has not been accounted for in existing literature – underscore the persistence of the commitment problem, and therefore the hazards of sharing private information. Consequently, the conflict parties question the utility of mediation, and the likelihood of subsequent mediation onset decreases. If subsequent talks take place despite the failed agreement, the conflict parties refrain from sharing private information, and reaching an agreement becomes thus less likely. Drawing on the Uppsala Conflict Data Program’s (UCDP) Managing Intrastate Conflict in Africa data set and the UCDP Peace Agreement data set, the results strongly underline the negative impact failed agreements have on subsequent mediation onset, and thereby show that agreement longevity is crucial not only for peace duration but also for leaving the door open to subsequent talks.     

Mediation Research: A Current Review

In this article, we review the mediation literature from the past decade, utilizing a cybernetic mediation paradigm to organize the material. In this paradigm, we note that the type of conflict, country, culture, and mediation institutions affect the mediation process. Within this process, the mediator and disputants interact with each other, attempting to reach their own goals. This interaction produces outcomes for the disputants, the mediators, and other parties. The literature — organized using this paradigm — indicates that mediation is frequently practiced in many venues; the literature also provides an exhaustive list of mediation goals, describes many mediation strategies, and reports manifold mediation outcomes. Unfortunately, the number of studies examining the relative effectiveness of specific strategies (e.g., pressing, relational, and analytic) seems insufficient. Few studies have used control groups or reported observations of mediator and disputants' behavior in actual mediations.     

Popular punitivism and cultural mediation: The case of Spain

In the last decade, an increasing number of scholars have discussed and articulated embracement of popular punitivism within Spain. The discourse while vital to the study of popular punitivism has missed an important element, specific to the cultural mediators present within the nation. As the current discourse has missed this vital component, the intent of this article is to examine how a post-Franco Spain emerged to embrace elements of popular punitivism, most notably the use of prisons, while embracing a penal structure and philosophy that is reintegrative at its core. As such, it is offered that the cultural factors present within the nation have enabled it to mitigate some of the most harmful characteristics of popular punitivism     

Instituting Peace: Third Party Principles and the Mitchell Effect

Abstract

The notion of legitimacy in international peacebuilding is an assumed one; there is an expectation that the formal, Weberian state institutions advanced therein will automatically be condoned by those in whose name they are delivered. But such bodies have, since at least colonial times, been suspect in many postconflict spaces and have routinely been ignored, resisted and bypassed when their local propriety does not reflect social preferences, and the empirical evidence does not suggest this pattern has stopped. The persistence of this null legitimacy derives from the exclusionary nature of liberal interventionism, which neither seeks local knowledge from which to design institutions nor considers their requirements important in relation to popular legitimacy. This article uses survey data drawn from Southern Sudan to discuss how legitimacy is seen from within and what it might look like.     

民事调解检察监督的若干问题思考

民事调解检察监督制度的确立是我国司法体制以及检察监督体制逐步完善迈开的重一步,如何正确有效行使检察监督职能,成为当前不容忽视的课题。文章从民事调解检察监督必性、原则、范围、方式、困境五个方面探讨调解检察监督,以期进一步落实和完善相关法律制度。