CHILDREN'S RIGHTS IN EUROPEAN LEGAL PROCEEDINGS: WHY ARE FAMILY PRACTICES SO DIFFERENT FROM LEGAL THEORIES?

Debates about child custody following parental separation often have been framed in terms of a battle between the competing rights of different family members. In the United States, advocates of mothers’ rights square off against proponents of fathers’ rights, with each side claiming to truly represent children's rights. Of course, not all advocates lay claim to children's rights in contact and custody disputes merely as a tactical maneuver. Some experts believe that children are entitled to (and benefit from) their own, independent legal advocate in custody cases. In theory, at least, the position that children lay claim to a third set of independent rights is strongly held in Europe, more strongly than in many U.S. states, because of the adoption of United Nations Convention on the Rights of the Child in Europe, but not in the United States. In this article, we examine children's rights in custody disputes from a European perspective, particularly children's legal right to contact with their parents, as well as the children's right to be heard in custody and contact disputes. We find that, despite differences in legal theory, tradition, and family demographics, European countries ultimately face a familiar reality: Custody and contact disputes are, in reality, more about renegotiating family relationships than they are a matter of a mother's, father's, or child's rights.     

集团诉讼存在的理由——关于普通法集团诉讼目的论的研究

普通法系国家集团诉讼目的包括:为社会成员提供权利救济,为被告提供程序保障并矫正其行为,尊重集团成员的个人自治等具体目标。我国现行代表人诉讼制度中蕴含的"两便"目的,难以描述和解释深层立法动机,集团诉讼上述目的对优化我国代表人诉讼制度有借鉴意义。     

Proactive counter-terrorist strategies in conflict with human rights

Three standard governmental policy responses to terrorism have been identified: a military one, treating the fight against terrorism as a form of warfare; a police-based one, treating it simply as a form of criminal activity, to be detected and then defeated using (perhaps some modified version of) the criminal justice system; and a political one, viewing it as a form of armed rebellion to be resolved through negotiation and the political process. All three responses to terrorism may be evident in any particular instance.     

论《物权法》中强制转让物权的法律维度

任何有物权立法之国家均无法回避物权强制转让的内容。依法律规则和法定程序发生的物权强制转让并不违背私法意思自治原则,相反,是对意思自治原则并无绝对性的最佳注释。强制转让物权必须注意强制转让与规则之间的关系、强制转让与权利实现目的之间的关系。鉴于强制转让物权是对权利人意思自治的限制,故物权的强制转让之发生应当具有一定的前提,即权利人行使权利的意志与公共利益发生了冲突。这意味着只有当权利人行使自己之物权与公共利益发生冲突时,方产生物权被按照法律规则进行强制转移的可能。物权的强制转让具有其一般条件和限制,它们与物权转让发生之前提共同构成了强制转让物权法律维度的主要内容。     

尊重党员主体地位和保障党员民主权利的理论基础及时代价值

马克思主义经典作家阐述了尊重党员主体地位与保障党员民主权利的一系列原则问题，为确立党员主体地位和保障党员民主权利奠定了基础。同时，我们党提出“尊重党员主体地位，保障党员民主权利”的重要论断具有鲜明的时代内涵和丰富的时代价值。     

“亲亲相隐”与和谐社会的构建

"亲亲相隐"作为以人伦亲情为纽带的传统法律制度,对尊重人性与实现正义,以及保护人权与构建和谐社会有着十分重要的意义,应当在我国刑事立法中予以体现。本文在介绍"亲亲相隐"制度的历史沿革与国外立法例的基础上,分析了"亲亲相隐"制度在我国现行刑事立法中缺失的成因,论证了如何重新构建亲亲相隐制度,以期裨益于刑事立法与司法。     

物尽其用与矿业权出资入股

判断资源是否得到了合理的配置，需考虑供给与需求的关系。在供给有限的前提下，合理的资源配置决定着人们的需求能够在多大程度上得到满足。不合理的资源配置决策含浪费稀缺资源，降低需要被满足的程度。就矿业权来讲，它在取得时已经发生了大量的成本消耗，再加之资源存在的有限，若将之用于出资，既是封矿藏价值的尊重，又可实现价值利用的最大化。本文试从矿业权物权理论出发，阐述矿业权出资入股符合物尽其用原则的要求。     

What Role for Human Rights in Business?

The Guiding Principles on Business and Human Rights (UNGPs) were endorsed by the United Nations Human Rights Council in June 2011, following the six‐year mandate of the Special Representative to the Secretary General (SRSG) on the issue of human rights and transnational corporations and other business enterprises. The SRSG developed a framework comprised of three pillars: (1) States have a duty to protect against human rights abuses committed by third parties, including business enterprises; (2) business enterprises have a responsibility to respect human rights; and (3) victims of business‐related human rights abuses need access to effective remedies. In particular, guiding principle (GP) 11 provides that business enterprises should respect human rights, that is, they should avoid infringing on the human rights of others and address adverse human rights impacts with which they are involved. This article considers the implications of the Guiding Principles' framework for business; the continuing role of conventional accountability mechanisms in providing access to remedy for victims under the third pillar of the framework; and developments in ‘hard law', with a particular focus on the approach by the UK, since the introduction of the UNGPs, before turning, briefly, to the future for business and human rights.     

Bridging the Gap: The Relationship between INGO Activism and Human Rights Indicators

This article explores the tension between the production of “naming and shaming” reports as tools of activism by international nongovernmental organizations (INGOs) and the usage of these reports as cross-national indicators of human rights violations. Because INGOs are strategic actors, their reports are not a reflection of the “true” levels of abuse. Although existing scholarship has raised this issue in relation to bias in cross-national indicators, it has yet to explain the process by which NGOs produce reports. This article exploits subnational variation across domestic and international NGOs within India, showing how the divergence in their reports can be explained by these groups’ organizational structures, probability of success in their chosen issue areas, and target audiences. By explaining how human rights NGOs produce reports, this article concludes with suggestions to ensure that the biases prevalent in a single source of data do not drive the results of future scholarship.     

略论参政党的民主监督——基于权利的分析视角

民主监督是我国参政党的两大职能之一,是以权利制约权力的监督形式.它既是人民民主权利的重要体现,也是多党合作制度赋予民主党派的权利和职责.本文在分析参政党民主监督的定位和民主监督权利体系的基本要素的基础上,从参政党建设的角度探讨这一权利有效行使亟须解决的若干问题.