浅析美国宪法解释的原旨主义与非原旨主义方法——基于美国公用征收案例中公共使用条款的解读

在当下,为实现宪法的价值,应当重视宪法解释制度已经成为学界的共识。面对宪法的高度概括性,宪法解释的方法问题就成为关键。通过解读美国公用征收案例中“公共使用”条款的判断标准,对美国宪法解释中的原旨主义以及非原旨主义进行梳理,可以为宪法解释提供合理之途径。     

论农民宪法权利平等保护的国家义务

农民宪法权利的完美实现必须以国家义务的合法有效履行为前提和核心。从横向上看,与农民宪法权利的多重权能面向相对应,国家对其依次负有尊重、保护和给付的宪法义务;从纵向上看,以上任何国家义务的履行都必须以平等保护为其核心议题。实现农民宪法权利的平等保护,国家不仅要树立“以人为本”、“公平至上”的宪法理念,同时还必须在此基础上设计出具体的平等保护路径。     

Shooting Down a Hijacked Plane—The German Discussion and Beyond

The article examines whether state officials may shoot down a hijacked airplane which carries uninvolved passengers, if it is known that the plane will be used against the lives of other human beings. In its first sections, it explains the German Federal Constitutional Court’s verdict against such a permission, and it scrutinizes the crucial arguments in this ruling (restrictions on the use of military weapons; human dignity arguments). The author then extends the discussion beyond the path taken by the court. She examines the defensive claims of passengers aboard the plane and the protective claims of potential victims who are present at the hijackers’ target zone. In contrast to the German Federal Constitutional Court, she concludes that state officials must take the claims of both groups of potential victims equally serious, and that such conditions allow applying a consequentialist calculus (“save the greater number”) because it is the only way out of a genuine dilemma.     

Challenges and Changes in Dutch Family Law

Since the “Divorce Challenge” in the Netherlands, a lot of initiatives have been taken on a political level, from the judiciary and in practice, to improve the situation for children of separation. Experimental legislation is on its way to enable the development of new court procedures. One of its ideas is to introduce a so‐called family's representative. This new professional, a lawyer or mediator, can represent both parents in court or coordinate the entire divorce process, both before and after the court procedure.     

An Improved Protection for the (Mentally Ill) Trans Parent: A Queer Reading of AP,Garçon and Nicot v France

The European Court of Human Rights has been deciding cases concerning LGBT rights since the early 1980s. Its case law on trans rights has changed drastically over time, imposing upon the states of the Council of Europe certain minimum standards regarding the legal recognition of gender identity. In its recent judgment of April 2017 the Court laid down a new rule to be adopted by domestic legislation; namely, that the legal recognition of gender transition cannot be made conditional upon pursuing medical or surgical procedures which have (or are likely to have) sterilising effects. This article analyses the judgment from a critical perspective grounded in queer theory, noting both the positive and the negative elements of the Court's decision.     

MAGNA CARTA AND THE AMERICAN POLITICAL IMAGINATION: TWO INSTANCES OF HABEAS CORPUS VINDICATED

Magna Carta has long been understood as a source of inspiration for the U.S. Constitution, and especially its enshrinement of the writ of habeas corpus — the right of any prisoner to test his or her detention according to the law. In the “Suspension Clause” of the U.S. Constitution (Article I, Section 8), Congress is granted permission to suspend habeas corpus only “when in cases of Rebellion or Invasion the public Safety may require it.” This article surveys two failed attempts by the U.S. government to suspend the writ of habeas corpus. The first (which was actually the very first such attempt) was in 1807 and followed revelations of the so-called Burr Conspiracy. The second (incidentally the most recent in American history) occurred during the War on Terror and culminated with the Supreme Court’s decision of Boumediene vs Bush in 2008. A close examination of these two historical episodes reveals just how different were the constitutional processes of the early republic and contemporary times. Additionally, comparing the uses of Magna Carta during the two episodes demonstrates marked changes in American political culture. Historical consciousness, vital to early Americans’ understanding of their political system, has shifted to an elite level. Likewise, the protection of fundamental liberties has migrated from the popular branch of government (Congress) to the elite one (the Supreme Court). This article considers the implication of this shift in both constitutional processes and historical consciousness.     

A generalization of the obligation to prevent: From genocide convention to racial discrimination convention

The decision of the International Court of Justice in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) highlights states’ obligations under the Convention, especially the obligation to prevent. When it comes to the case concerning the International Convention on Elimination of All Forms of Racial Discrimination (“Racial Discrimination Convention”), the decision of the Court indicating provisional measures seemingly purported to generalize its jurisprudence in the Genocide Case. By elaborating this kind of new jurisprudence, the Court echoed to the responsibility to protect, as well as to Article 48 and Article 54 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles of State Responsibility”). It appears that each State Party should have an obligation to intervene in the coming genocide incidence, perhaps as well as in the coming racial discrimination cases. Nevertheless it is unclear in what manner a state could implement it effectively.     

论五四宪法的国际化和本土化--对五四宪法与苏联三六宪法的比较研究

五四宪法在诸多方面受苏联三六宪法的影响 ,但并没有照抄照搬苏联三六宪法 ,而是借鉴了苏联三六宪法的社会主义性质又考虑了中国国情 ,是本土化与国际化结合的典范。     

ECJ rules on acts of “Extraction” that infringe database right

Four years from the European Court of Justice's seminal rulings on database right in the British Horseracing Board and Fixtures Marketing cases, the Court has once again looked at the extent of protection this right affords. The earlier decisions had suggested the right was weak, with many databases not qualifying for protection and the extent of infringement required being difficult to meet. However, the ECJ's recent ruling in the Directmedia case (C-304/07) handed down in late-2008 is more positive for database owners. Adopting the reasoning of the Advocate General, the ECJ has clarified the types of acts which can constitute infringement of database right and confirmed they are broad in scope. The outcome and implications of the ruling are discussed below.     

司法赔偿中确认程序之检讨及前瞻

在我国《国家赔偿法》中,确认程序是赔偿请求人获得司法赔偿的必经程序,然而由于现行的司法赔偿的确认程序存在着主体中立性不足、确认期限缺省、确认标准模糊、确认救济途径单一等诸多不足,使得确认程序遭致广泛的批评。对待确认程序的理性态度是揭示出其生成的宪政体制因素,并以此为基础将现行司法赔偿确认程序设计成可选择的程序,并在人大中设立最终处理机关。