浮动抵押逸出担保物权体系的理论证成

具有担保功能的权利,并非都是担保物权。如果一项权利既不符合担保物权的特征,亦有违物权法的基本原则,就不属于担保物权。对比浮动抵押与担保物权的特征可以发现,浮动抵押有担保功能但并非担保物权。在民法典编纂背景下,宜将浮动抵押从担保物权体系剔除。考察比较法资料,结合“charge”的词源语义,遵循语言翻译的忠实严谨原则,宜将“floating charge”译为“浮动担保”而非“浮动抵押”。至于浮动担保何去何从,相对合理的方案是将其嵌入合同法域,规定于我国民法典合同编之“合同的担保”章节,以此彰显民法典的体系性与逻辑性。     

敦煌吐鲁番借贷契约的抵赦条款与国家对民间债负的赦免——唐宋时期民间高利贷与国家控制的博弈

敦煌吐鲁番借贷契约中的"公私债负停征,此物不在停限"、"后有恩赦,不在免限"等抵赦条款,是民间社会对抗国家赦免私债的契约表现.始于北魏时期的国家对私债的赦免,针对的是"偿利过本,翻改券契"等民间高利贷行为;唐、五代及南宋、元初赦令,延续了这个传统.这一赦免初衷,也波及到无息借贷,致使抵赦条款也出现在无息借贷契约中,反映了民间防御意识的加强.契约中的抵赦条款的反复出现与国家免除民间债负赦令的频繁发布,反映了民间高利贷与国家控制的长时间博弈.明清时,国家不再以赦令形式免除私债,契约中的抵赦条款也随即消失.     

论当事人收集证据的程序保障

我国在20世纪90年代的民事庭审方式改革中引入了举证责任原则,庭审的对抗性由此得以增强,证据的重要地位也逐渐凸现,这就要求加强当事人收集证据的程序保障。但我国关于当事人收集证据的程序保障的法律规定是严重缺失的,这不仅严重影响了诉讼程序效用的发挥,也阻碍了我国诉讼制度的改革进程。因此应通过加快程序保障措施的法律化,构建独立的审前准备程序,扩大律师的调查取证权,设立书证、视听资料、物证提出命令制度及庭外证人证言收集制度等措施加强当事人收集证据的程序保障。     

关于商法学中商主体概念的探讨

商主体,作为概念,是我国商法学理论中最重要的基础概念之一;作为经济实体,是我国经济活动中主要的参与者和被管理对象.但是,在目前的商法学的权威教材中,不仅对商主体概念内涵的揭示是含混、相互矛盾的,甚至是自相矛盾的,而且对商主体与相关概念的区别也缺乏认真研究,从而导致理论学习和阐述上的混乱.虽然,统一的定义,在科学研究中几乎是不可能的,甚至对科学研究没有益处,但应该承认这种认识上的混乱在相当程度上影响了商法学理论的发展和商法学理论对我国商事立法和经济管理活动的贡献程度.通过介绍、分析,比较我国商法学理论界对商主体、商人、企业和民事主体的概念的不同观点,并结合世界主要商法典的相关规定以及相关经济学理论,阐述了对商法学中商主体与相关主体之间的区分的认识,并最终归纳出商主体的概念.     

旅游合同中旅游营业人的民事责任

在由旅游营业人和旅客构成的旅游法律关系中,旅客经常处于劣势地位,如何保障他们的权益,是一个值得研究的问题.强化旅游营业人的民事责任,为旅客的损害赔偿提供多种救济途径,这应当是未来保障旅客的合法权益的一个行之有效的思路.     

The uses of history by the Polish democratic opposition in the late 1970s

During the late 1970s, members of the Polish democratic opposition revised and reinterpreted key elements in the Polish past in support of their contemporary ideas about Polish society and opposition. The birth of the independent press in Poland in 1976 provided these debates with a medium for wide dissemination and discussion. Analysis of democratic opposition debates in the independent press on the Polish–Lithuanian Commonwealth, historic Polish–Russian relations, and the struggle for and achievement of independence in the early twentieth century shed light on the ways in which the democratic opposition perceived Polish society and the legacy of tolerance, diversity, nationalism, and socialism within it. It also reveals the major divisions within the democratic opposition and its primary tactical proposals prior to the birth of the Solidarity trade union in 1980. Forty years later, these debates continue to reverberate.     

Brexit: A Cliff Edge or a Small Bump in the Road?

It is becoming increasingly accepted, not least by the Prime Minister and opposition leadership, that the negotiation of a comprehensive trade relationship with the EU is necessary to prevent the UK economy falling off a ‘cliff edge’. This concern is shaping the UK's strategy towards negotiations with the EU and has provided at least part of the motivation for the UK to consider requesting a transition period to facilitate the Brexit process. But how accurate are these fears? What evidence is there for the existence of a ‘cliff edge’? How disastrous would it be for the UK to revert to trading with the EU on the same basis as most other countries in the world, namely according to World Trade Organisation rules? This article seeks to address these issues and it highlights a number of implications for policy makers which flow from understanding the available evidence a little more clearly.     

Advocacy Coalitions in Ontario Land Use Policy Development

In 2005, the Ontario government passed the Places to Grow Act and the Greenbelt Act, both major changes in land use policy designed to preserve greenspaces and combat urban sprawl in the Greater Golden Horseshoe, Canada's largest conurbation. This article examines the actors, actor beliefs, and inter‐actor alliances in the southern Ontario land use policy subsystem from the perspective of the Advocacy Coalition Framework (ACF). Specifically, this paper undertakes an empirical examination of the ACF's Belief Homophily Hypothesis, which holds that inter‐actor alliances form on the basis of shared policy‐relevant beliefs, creating advocacy coalitions. The analysis finds strong evidence of three advocacy coalitions in the policy subsystem—an agricultural coalition, an environmentalist coalition, and a developers' coalition—as predicted by the hypothesis. However, it also finds equally strong evidence of a cross‐coalition coordination network of peak organizations, something not predicted by the Belief Homophily Hypothesis, and in need of explanation within the ACF.     

The rise of the far right in Greece and opposition to ‘othering’, hate speech,and crime by civil and civic organizations

This article focuses on forms of opposition to ‘othering’ and far-right politics in present-day Greece. This opposition takes a variety of forms, comes from a range of actors, and is motivated by a number of concerns with differing assessments of what should be done. More specifically, the article focuses on the far right in Greece and discrimination, hate speech, and hate crime against the ‘other’ from the perspectives of those who are active in mobilizing against racism and counteracting the country’s populist and neo-nationalist turn. Concentrating on the forces opposing discrimination, the analysis describes present-day social movements and actions from grassroots to governmental level, their strategies and politics, their diversity of thought and action, and their contribution in providing the resources for social change, and the production of new meaning in the context of anti-racism in Greece. Trying to provide answers as to how social movements and activists produce meaning, we argue that activists develop less intentional, inadvertent meanings which emerge in the course of the not-always conscious schemas of their struggle. This calls for a more dynamic explanation of the relationship between practice and meaning-making in social movement contexts.     

Built-in Safeguards and the Implementation of Civil War Peace Accords

This article contributes to analyses of peace agreement implementation by focusing on the role of built-in safeguards as procedural mechanisms within peace agreements. Recent empirical studies suggest that negotiated peace agreements are a frequent mode of armed conflict termination and implementation of those agreements to be the primary predictor of enduring peace and the quality of that peace. However, in many instances implementation takes years or even decades and is subject to breakdown before achieving the key implementation objectives. In this article, we identify and theorize three key safeguards in peace accords: transitional power-sharing, dispute resolution, and verification mechanisms. We argue that these safeguards lead to higher implementation of provisions negotiated in peace agreements by addressing mutual suspicion and by facilitating more constructive working relationships among former rivals. To test our arguments, we analyze implementation of comprehensive peace agreements negotiated between 1989 and 2012 from the Peace Accords Matrix Implementation Data (PAM_ID). We find that the built-in safeguards that we have identified significantly explain variations in levels of peace agreement implementation.