论期待可能性理论在我国适用范围的限定

期待可能性理论源于德国,在日本得到发扬.但现阶段期待可能性在德日刑法理论与刑事司法实践中的适用受到严格限制.然而期待可能性理论在我国方兴未艾,却出现了滥用之势,有必要厘清其适用之范围.首先,不能以是否具有期待可能性检验罪过存在与否;其次,没有法律依据不能以缺乏期待可能性作为出罪根据;再次,期待可能性理论只适用于稀罕案件...     

我国行政程序与宪政冲突的立法修正——以《城市房屋拆迁管理条例》为例

我国的行政程序大量由行政法规或者规章来设置,这些程序性的规定存在诸多缺陷且与宪政精神冲突。由于人民法院没有违宪审查权,因此,为了实现宪法对私人财产权的保护,有必要通过立法来修正。本文以我国《城市房屋拆迁管理条例》为例,对该条例在程序方面的缺陷作出了一般分析,并对立法修正提出了建议。     

马克思制度公正视域下的人的全面发展探究

实现制度公正,是马克思思想的首要价值和目标。不论马克思是对资产阶级抽象的公正观进行批判,还是对资本主义剥削制度下的雇佣劳动进行揭露,抑或对未来理想社会加以描述,每一部分都蕴含着马克思主义的权利观与制度公正思想,形成了“劳动正义”理论。马克思毕生致力于建设一个合乎人的自由而全面发展的环境,这就是自由人的联合体,其最终落脚点还是人的自由而全面发展。     

从革命正义到建设正义——析新中国成立以来正义观的转变

中华人民共和国建国60年来,经历了从革命正义向建设正义的转变,这一转变,从一个侧面反映了中国共产党人领导中国人民从事的革命和建设的艰苦卓绝的探索历程,实践了中华民族解放和复兴史上大写的“正义”。     

走出南海诸岛主权争端的法理迷途

南海主权争端之所以越来越复杂,甚至是迷雾重重,是因为有些国家制造了解决主权争端的法理迷途。文章认为,走出南海主权争夺的法理迷途需要明确:联合国《海洋法公约》不解决主权争端;"实际占有,有效控制"原则充满战争危机;旧金山《对日和约》涉西沙群岛和南沙群岛条款是违法条款。     

试析土耳其文官政治与军人政治的博弈——基于正义与发展党的执政实践

军人在土耳其历史文化中占据重要地位,曾经通过3次军事政变推翻民选政府,并通过还政文官政府使土耳其沿着凯末尔主义的方向前进。正义与发展党上台后,尽管文官政府和军方极力维持脆弱的平衡关系,但双方在权力争夺、加入欧盟、库尔德问题、复兴伊斯兰文化等方面分歧重重,争端不断。文官政治和军人政治博弈的结果说明了土耳其的军人政治逐渐让步于文官政治,军人干政在可预见的将来很难再发生;尽管世俗主义和伊斯兰主义之间的斗争仍很激烈,但已逐渐趋于理性;正义与发展党"保守的民主"模式获得民众的普遍认可,将为中东诸国提供一种民主发展的范式。     

A 21st Century Developmentally Appropriate Juvenile Probation Approach

Principles of adolescent development have accelerated positive changes to the juvenile justice system. These changes have been most pronounced in reducing reliance on incarceration and in approaches to sentencing of youth tried as adults. While juvenile probation has made some developmentally friendly adjustments, it remains an area that is fertile for reform. Many of the principles and goals in this paper have been endorsed by the National Council of Juvenile and Family Court Judges (NCJFCJ), which “supports and is committed to juvenile probation systems that conform to the latest knowledge of adolescent development and adolescent brain science,” and which “recommends that courts cease imposing ‘conditions of probation’ and instead support probation departments’ developing, with families and youth, individualized case plans that set expectations and goals.” 1 NCJFCJ's July, 2017 resolution in support of developmentally appropriate juvenile probation services built on earlier NCJFCJ policies. From the time NCJFCJ adopted Juvenile Delinquency Guidelines in 2005, those policies have grown increasingly robust. 2     

The European Court of Justice in Bolagsupplysningen: The Brussels I Recast Regulation's jurisdictional rules for online infringement of personality rights further clarified

In the European Union the Brussels Ibis Regulation governs the jurisdiction of Member State courts in civil and commercial matters. The reference for a preliminary ruling coming from the Estonian Supreme Court in the Bolagsupplysningen case offered the European Court of Justice another opportunity to develop its interpretation of the special ground for non-contractual obligations (article 7.2). The European Court of Justice's Grand Chamber ruled that legal persons, like natural persons, have the option of bringing a claim based on the infringement of personality rights by an online publication before the courts of the Member State where their centre of interests is located. It laid down that the centre of interests of a legal person pursuing an economic activity is determined by reference to the place where the company carries out the main part of its economic activities. The victim of a tortious internet publication can only seek an order for rectification and removal of the incorrect information in the courts that have jurisdiction over the entirety of the harm sustained and not before the courts that only enjoy jurisdiction with regard to the damage suffered in their territory.     

Opinion 1/15 of the Grand Chamber dated 26 July 2017 about the agreement on Passenger Name Record data between the EU and Canada

On 26 July 2017, the Grand Chamber of the European Court of Justice rendered its seminal Opinion 1/15 about the agreement on Passenger Name Record data between the EU and Canada. The Grand Chamber considered that the decision of the Council about the conclusion, on behalf of the Union, of the agreement between the EU and Canada about the transfer and processing of PNR data must be based jointly on Article 16(2) about the protection of personal data and Article 87(2)(a) about police co-operation among member states in criminal matters, but not on Article 82(1)(d) about judicial co-operation in criminal matters in the EU of the Treaty on the Functioning of the EU. The Grand Chamber also considered that the agreement is incompatible with Article 7 on the right to respect for private life, Article 8 on the right to the protection of personal data, Article 21 on non-discrimination and Article 52(1) on the principle of proportionality of the Charter of Fundamental Rights of the EU since it does not preclude the transfer, use and retention of sensitive data. In addition to the requirement to exclude such data, the Grand Chamber listed seven requirements that the agreement must include, specify, limit or guarantee to be compatible with the Charter.The opinion of the Grand Chamber has far-reaching implications for the agreement on PNR data between the EU and Canada. It has also far-reaching implications for international agreements on PNR data between the EU and other third states. Last, it has far-reaching implications for Directive 681 of 27 April 2016 on PNR data.     

Restorative Justice and Collective Responsibility: Lessons for and from the Rwandan Genocide

Genocide struck Rwanda in 1994. Since then, national and international trials have endeavored to promote reconciliation, deterrence, peace, justice, and human rights. This article posits a disconnect between these trials and the attainment of their avowed goals. This disconnect emerges in part from the influential agendas of international lawyers who equate selective criminal prosecution with the "rule of law" and espouse criminal prosecution as the preferred and uniform response to mass atrocity. Creating a presumption in favor of criminal prosecution has dampened the need to explore whether such trials actually are suitable for the particular afflicted society. A socio-legal analysis suggests that Rwanda is precisely a place where constructed notions of what "rule of law" ought to be are supplanting the need to implement reconstructive policies that may be best for Rwanda. In particular, the populist nature of the Rwandan genocide, coupled with the vast level of victimization, suggest that a shame-based restorative approach may be more successful in promoting reconciliation, deterrence, and peace than the guilt-based retributive approach currently in vogue. This article argues that, when the law blames occurrences of genocidal evil largely on the existence of some evil people, it obscures the fact that so many people, to varying degrees of complicity, are required for this evil to result in so many deaths.