司法意识形态:能动与克制的反思

能动司法在中国有多种意义,但其基本的含义是超于法律和职权进行司法活动。能动司法因与法治的基本要求不吻合因而不宜作为司法理念,只能作为法律方法层面灵活处理案件的姿态。能动司法不可避免,但对其不能放任,而应该约束。最近提出的能动司法得到了很多赞赏,接受程度很高,这是有历史原因的,当然也是值得警惕的。在依法治国建设社会主义法治国的进程中,能动司法会不会冲击这一方略是我们必须研究的。我国的法治建设刚刚起步,经不起能动司法的折腾。     

宪法保留：对基本自由权利限制的限制原则

法律保留原则要求某些重要事项必须留给立法机关以法律的形式加以规定,目的是约束行政权,防止行政权滥用,并在客观上要求司法机关依法裁判;然而,宪政的本质特征之一是有限政府的理念,即使是立法机关的权力本身也应当是有限度的。实际上,宪政国家违宪审查制度的普遍确立正是主要基于对立法权滥用的矫正;而我国从依法治国到依宪治国思路的转变也在事实上承认了立法权本身存在滥用的可能。因此,从法律保留到宪法保留,是保障人民基本自由权的重要原则,这一原则立基于对多数决暴政的恐惧和对有限政府理念的信奉,它在一定程度上杜绝了宪法一手承认人民基本自由权利,而法律的另一手却又予以剥夺的弊病。     

Regional fiscal cooperation in metropolitan areas: An exploration

This article explores the potential benefits and costs of regional cooperation on metropolitan area fiscal policies. After discussing the relationships between cities and suburbs, as well as the role of local fiscal policies in regional well‐being, the article presents and tests a model for measuring benefit spillovers resulting from fiscal policies. The results show that state and local infrastructures have important effects on metropolitan property markets, and that current spending is less influential than the level of public capital in place in determining property values. State highway investments are found to reduce the attractiveness of metropolitan area locations. Enhancements to central city infrastructure are estimated to significantly increase suburban property values, and the results of some simple policy experiments are examined.© 1999 by the Association for Public Policy Analysis and Management.     

Lack of European Identity and the Failure of the Eurozone

Since late 2007, the Eurozone has been embroiled in a crisis that has seen GDP per capita stagnate, public debt soar, and unemployment reach record levels. This article argues that the Eurozone crisis will inevitably force fundamental changes in the structure of the EU. The only way to make the Eurozone work is through deeper fiscal integration of Eurozone economies. Yet wholesale fiscal integration cannot be achieved in the near term, due to the fact that EU citizens continue to identify more with their own nationalities than with Europe as a whole. The Eurozone economies of southern Europe will, therefore, continue to flounder, leading to further anti‐EU sentiment. Anti‐EU sentiment may eventually increase up to the point where one or all of these countries leave the Eurozone or the EU altogether. These propositions are supported with arguments from economic theory, and are bolstered by evidence from surveys and opinion polls.     

Local revenue structure under economic hardship: reliance on alternative revenue sources in California counties

This article investigates how a worsening economy affects local revenue structure, and whether the impact is moderated by the fiscal relationship within higher levels of government. The revenue potential of nontax sources – fees/charges and fines/forfeitures – is considerable for local governments under economic hardship. With the panel data from California counties over a period of 11 years (2000–2010), this article shows that reliance on nontax revenue largely depends on the economic and fiscal factors that vary across counties, and the effect of economy is contingent on local dependence on intergovernmental transfers. Counties are likely to raise nontax revenue when the economy worsens and their transfer-dependence increases, while the marginal effect of the economic indicators changes from negative to positive as transfer dependence increases. This article illuminates the characteristics of the two types of nontax sources in terms of the mechanisms of incentivising human behaviour and concludes with policy implications for researchers and practitioners.     

财税治腐的路径证成——兼论财税治腐的功能变革

党的十八大以来,腐败治理被提升到前所未有的高度,受到各界的广泛关注。"财税治腐"能够克服长期以来以"治人"为主要反腐手段的弊端,这种模式通过明确财权边界、规范公共财产管理等手段,进一步压缩了权力的寻租空间。财税治腐以财政党规和财税法律为制度土壤,以"理财"和"治腐"为两大主题和形式目标,聚合于"国家治理现代化"的终极目标之下。以领域法学理论、公共财产理论以及政党治理与国家治理理论为基石,财税法跨越不同法域的法学研究路径,以其务实、低调、灵活的特质在面对日益复杂的腐败治理难题时展现出十分独特的价值。财税治腐承载着实现权力规制、优化理财方式和推进国家治理现代化的三重任务,同其他权力监督方式相结合,形成对公权的监督合力,共同构建出"法治财政、廉洁政治、现代国家"的理想图景。     

Why can't Europe save itself? A note on a structural failure

Europe's Economic and Monetary Union (EMU) has been struck by one financial crisis after another. Yes despite many bold new initiatives, instability and uncertainty persist. Why can't Europe save itself? The answer, this chapter argues, lies in a structural failure. EMU lacks a credible mechanism to cope with the threat of imbalances within the group – a framework to manage the European region's internal payments problems. The challenge was foreseen from the beginning. How could a regional monetary union manage the risk of fiscal imbalances among its members? Europe might have turned to the USA for inspiration. For analytical purposes, the USA too can be considered as a regional monetary union comparable to EMU, facing the same fundamental challenge. America's solution was to create a permanent ‘transfer union’, featuring more or less automatic flows of funds through the federal budget at the centre. But European policy-makers chose otherwise, for reasons that go to the very heart of their ongoing integration project. EMU is a league of sovereign states, each determined to retain for itself as many rights and privileges as possible. In such a structure, a permanent transfer union never had a chance; and since no adequate substitute has yet been found, Europe is forced to pay a high price in terms of instability and lost growth.     

Measuring horizontal fiscal imbalance: the case of Italian municipalities

In the literature on fiscal federalism, vertical fiscal imbalance has been widely studied, while the theme of horizontal fiscal imbalance and inequality among local governments, due to differences in their fiscal capacities, has been less explored. This article contributes to fill the gap. A new method to compute fiscal capacities based on regression analysis is proposed, which can overcome some of the drawbacks of traditional methods such as the representative tax system. This new approach is then employed to evaluate the fiscal capacities of Italian municipalities over the period 2002–2010. Finally two global measures of the horizontal fiscal imbalance are used to evaluate the equity implication of a major policy change occurred in 2008 in Italian municipal finance.     

¿Cómo recaudar más sin gastar mejor? Sobre las dificultades de incrementar la carga fiscal en México

This article explores how tax revenue can be increased in Mexico, especially through more collection in higher-income sectors. An overview of the Mexican government's capacity to collect taxes is offered before analyzing the reasons why tax revenue has not increased in over more than two decades. A sketch of strategies that the recent Peña Nieto administration could have followed in order to increase tax revenue in a progressive fashion is also provided. One of the article's main arguments is that without more efficient public spending, it will be difficult to collect more taxes permanently, especially in such an open economy, with institutions that are as weak as those in Mexico. Furthermore, in a democracy, there is little public acceptance for more taxes, no matter how progressive they may be, unless the government can provide certainty about more efficient public spending. For these reasons, unless the quality and progressiveness of public spending and tax collection advances, it is even undesirable that the government increase its tax revenue.     

Federalism and Governability in Brazil: Oil Royalties in Dispute

This article discusses the relationship between governability and federalism in Brazil, analysing the dispute among Brazilian states for oil royalties. This conflict features an unusual pattern in federal legislative voting, leading to regional alignment, rather than the usual party political configuration. This study explains the phenomenon by showing how this organisation makes it possible to align the preferences of national party leaders, regional party leaders, parliamentarians, and each state's voters. The political influence of governors and mayors is also underlined, and the Union's role in the process is described in detail.