人民法院提起民事审判监督程序的两个问题

民事诉讼法将人民法院提起民事审判监督程序的条件规定为“确有错误” ,违背了诉讼法的基本原则 ,不利于纠正错误 ,也与其他法律规定相抵触 ,立法上应作出具体规定 ,以便于实务中操作。人民法院对本院已经发生法律效力的判决、裁定 ,发现确有错误 ,其提起再审程序的主体既不是本院院长 ,也不是本院审判委员会 ,而只能是人民法院     

Reparative development: re-conceptualising reparations in transitional justice processes

Reparations are increasingly seen as potential avenues to address the socioeconomic structural injustices that have affected victims during conflict or authoritarian rule. Scholars, however, have identified serious limitations in these policies, emanating from faulty design, political reluctance, financial limitations and uneven implementation. This article proposes a reconceptualisation of reparation policies by embedding them in a framework of reparative development. A theory of reparative development is outlined by discussing how principles emanating from key rulings of the Inter-American Court of Human Rights can be articulated to provide a conceptual link between transitional justice and development. This article argues that restitution should consider not only past damages but also lost life opportunities. Reparations should be both individual- and community-based, taking into account the supplemental policy actions required to make them both effective and sensitive to existing human insecurities. Finally, they need to involve local and grassroots organisations in their implementation.     

Authoritarian constitutionalism in Putin's Russia: A pragmatic constitutional court in a dual state

This article analyzes the successful adaptation of the Russian Constitutional Court (RCC) to an increasingly authoritarian regime under President Vladimir Putin. It argues that the key to its success lay in its pragmatic approach, whereby the Court decides cases that matter to the regime in a politically expedient way, while giving priority to legal and constitutional considerations in other cases, thereby recognizing the reality of a dual state. Over the years the RCC has taken a pragmatic approach in its reaction to changes in the rules of its operations, in its personnel, and in the policies of the popular political leader, including reducing the country's subordination of European legal norms. In so doing, the Court and its skillful chairman Valerii Zorkin achieved considerable autonomy in pursuing its own legal vision on many issues and even improved the implementation of its decisions by other judges and political bodies alike (previously a big problem). In short, the RCC developed its own version of “authoritarian constitutionalism”, which may serve as a model for constitutional judicial bodies in other authoritarian states.     

Enter at your own risk: free movement of EU citizens in practice

The citizenship jurisprudence of the European Court of Justice has raised hopes for a more social Europe and triggered fierce debates about ‘social tourism’. The article analyses how this case law is applied by EU member state administrations and argues that they are actively containing the Court’s influence. As a result, rather than reconciling the logics of ‘opening’ and ‘closure’, they are heading towards an uneasy coexistence between free movement and exclusive welfare states. The argument here is illustrated with empirical evidence from Austria and Germany. Although both countries have taken different approaches to EU migrants’ residency and social rights, they produce similar effects in practice: increasingly, EU migrants are being tolerated as residents with precarious status without access to minimum subsistence benefits. Ironically, attempts to restrict residency rights have resulted in a temporary extension of EU migrants’ access to welfare in some instances.     

The ICC indictment against Al-Bashir and its repercussions for peacekeeping and humanitarian operations in Darfur

The impact of the International Criminal Court (ICC) on peace processes has received much scholarly attention. We argue, based on the ICC arrest warrant against Sudanese President Omar al-Bashir, that ICC indictments against government officials not only can be detrimental to the prospects for peace, but can also negatively affect everyday practices of peacekeepers and humanitarian workers. We draw on a combination of quantitative and qualitative data in order to develop our argument. We interrogate some measurable consequences of the indictment in relation to the work of the United Nations – African Union Mission in Darfur (UNAMID) as well as humanitarian actors in Darfur. We do so using a data set compiled to support the work of UNAMID. We also draw on interviews with UN and UNAMID staff, aid workers, and representatives of the conflict parties. Our analysis shows that the indictment of President al-Bashir was perceived by the Sudanese government as the continuation of a confrontational approach pursued by the international community. We further show that the indictment accelerated patterns of obstruction and intimidation of peacekeeping actors, other third-party actors, and local staff associated with these. This complicated the everyday activities of peacekeepers and humanitarian efforts.     

Public commitment strategies in intergovernmental negotiations on the EU Constitutional Treaty

We analyze the impact of public commitment strategies as bargaining tools in the negotiations on the EU Constitutional Treaty using a sequential-bargaining model with incomplete information. The analysis suggests selection bias in observable public commitments with respect to the kind of issues that are publicly challenged as well as the kind of governments that will ‘go public’. Public commitments are more likely under high uncertainty over audience costs. Further, the effect of public commitments on the duration and outcome of negotiation is conditional as well. In our empirical analysis, where we analyze the intergovernmental stage of the negotiations on the European Constitutional Treaty, we find strong empirical support for each of our theoretical predictions. Governments were most likely to commit publicly if they represented a domestic constituency that was negative about the EU Constitution and, at the same time, contained many undecided respondents. Moreover, these public commitments were generally quickly accommodated. In contrast, public commitments were less likely to lead to any changes if they were made by governments representing a domestic constituency that was relatively positive about the draft Constitution or negative and decided. In the latter case, however, public statements made bargaining deadlock more likely.

Politics and culture in a Diva's diversion: The body of Astrid Hadad in performance

Performance

Song of Lawino. Directed by Valeria Vazilevski and choreographed by Ja‐wole Willa Jo Zollar. Aaron Davis Hall, City University of New York, New York, January 5–8, 1989.

Abingdon Square. Directed by Irene Fornes. American Place Theatre, New York, 1988.

The Kathy &; Mo Show: Parallel Lives. Written and produced by Kathy Najimy and Mo Gaffney. Westside Arts Theatre, 1989.

Annulla, An Autobiography. Written and Directed by Emily Mann, performed by Linda Hunt. TNT (The New Theatre of Brooklyn), New York, October‐November, 1988.

The Warrior Ant. Written and directed by Lee Breuer; music composed by Bob Telson. Brooklyn Academy of Music, Next Wave Festival, October 19–30, 1988.

Go Between Gettysburg. Written, directed and designed by Linda Mussmann, in collaboration with Claudia Bruce and composer Semih Firincioglu. Theatre of the Riverside Church, New York City, November 10–20, 1988.

Mary Surratt. Written, directed, and designed by Linda Mussmann, in collaboration with Claudia Bruce; music by Semih Firincioglu. Time &; Space Limited production. New York, 1988.

Elizabeth Streb. Dance Chance series, Dance Theatre Workshop, New York, January 4–8 and 11–13, 1989.

Books

Dance, Sex and Gender: Signs of ‘Identity, Dominance, Defiance and Desire, by Judith Lynne Hanna. Chicago: University of Chicago Press, 1988 ($15.95 paper).

The public forum

Sexist Images in Women's Performance. Performances by Jerri Allyn, Ellen Fisher and Dancenoise, and Panel moderated by Peggy Shaw. Movement Research, New York, December 19, 1988.

The Edinburgh Fringe Festival. Edinburgh, Scotland, 1988.

Plenty Money, by Pat Kaufman; Men, Women and Margaret Fuller, by Laurie James; “An Evening of Dance: Karen Bernard, Jean Churchill and Joanna Zubaty”; “Readings by Sonia Taitz,” Women &; Performance Events Series, produced by Katheryn Kovalcik‐White. Tisch School of the Arts, New York University, June‐December, 1988.     

从政治竞争看宪法法院在亚洲的不同命运——对韩国、印尼和泰国的比较分析

作为西方国家法治进步的产物,宪法法院在20世纪后期陆续进入亚洲国家,成为民主转型过程中重要的制度设计,但其实际效果却存在差异。韩国宪法法院在功能上呈现"多点开花"的态势,在民主、法治和人权等领域均表现良好。印尼宪法法院成功解决了总统选举过程中的争议,维护了基本的民主规则。相比之下,泰国宪法法院则经历了"高开低走"的蜕变。它在成立初期相对较好地履行了宪法赋予的职责,2006年之后却越来越深入地卷入到政治斗争之中,丧失了独立品格,做出了一系列明显违反法治精神的判决。对此,既有解释存在"西方中心主义"的弊端,而且难以同时解释宪法法院在建立和运行两个阶段的不同情况。作为一种以民主转型国家实践经验为基础的学说,政治竞争理论因其内生性、系统性的视角而具有更强的解释力。以该理论视角观察宪法法院在韩国、印尼和泰国的不同命运,在验证其科学性的同时,可以发现其中隐含的前提条件及其适用范围的有限性。     

Crimes Against Humanity in Colombia: The International Criminal Court’s Jurisdiction Over the May 2003 Attack on the Betoyes Guahibo Indigenous Reserve and Colombian Accountability

The Colombian military and the United Self-Defense Forces of Colombia (AUC) have committed systematic attacks against the Colombian people that violate international law. One such heinous incident took place in May 2003 at the Betoyes Guahibo indigenous reserve in Colombia. Unlike other acts of terror, the attack at the Reserve is well documented. Because of this, the attack on the Reserve is an excellent case for International Criminal Court (ICC) prosecution. This article exposes acts of cruelty and makes a persuasive moral case for ICC prosecution. The ICC has jurisdiction over the attack on the Betoyes people by the AUC and Colombian military. The article further discusses the potential legal exposure of the Colombian government, individual Colombians and US individuals through its military support and training of the Colombian military.

The Incongruities of Grutter

This article scrutinizes the inconsistencies in the 2003 Grutter v. Bollinger Supreme Court decision which upheld the University of Michigan’s law school affirmative action policy. The decision, which now governs university admissions policies in all 50 states, ruled that “diversity” remains a compelling state interest that legally justifies discriminating between individuals on the basis of their race in determining college admissions. This article examines two incongruous justifications offered by the Grutter court in justification for their ruling: the “critical mass” justification and the no “undo harm” argument. Neither rationale is able to withstand careful, logical examination.