警察的自由裁量权及其规制

面对纷繁复杂的现代社会,国家赋予警察部门及警察人员一定限度的自由裁量权是有正当根据的。然而,权力扩张的本质一再告诫我们:有权力必应有规制。本文从警察自由裁量权存在之根源及警察行为的分析入手,探讨规制的意义并讨论正确行使自由裁量权的条件。     

完善我国反洗钱刑事立法的思考

“洗钱”作为一种严重侵害国家金融管理制度和司法机关正常活动的犯罪行为 ,为各国刑事立法所重视。伴随着我国对洗钱犯罪的立法 ,对其所进行的学理研究也正逐步深入。诸如完善洗钱罪的构成要件、加大刑罚适用力度和增设反洗钱的相关罪名等观点的提出 ,将会对反洗钱的立法与实践产生积极作用。     

Reputation management as an interplay of structure and agency: A strategic-relational approach

Reputation scholars in the field of regulation tend to focus on the strategic nature—or: “agency”—of reputation management. We know fairly little about the precise nature of the dynamics and conflicts between structural and agential factors that are experienced by regulators in practice, and how these dynamics impact reputation management and its outcomes. This study addresses these questions, using conceptual language from the strategic-relational approach to study the reputation management of the Belgian financial regulator during an event of high reputational salience: the global financial crisis. The results present an image of a regulator as a strategic actor who—either consciously or more intuitively—calculated its possible moves in light of a strategically selective context (which, in turn, was constantly evolving as a result of strategic actions). This contributes to a more complex and behaviorally realistic understanding of regulatory reputation management.     

The Nordic governments' responses to the Covid-19 pandemic: A comparative study of variation in governance arrangements and regulatory instruments

Government responses to the Covid-19 pandemic in the Nordic states—Denmark, Finland, Iceland, Norway, and Sweden—exhibit similarities and differences. This article investigates the extent to which crisis policymaking diverges from normal policymaking within the Nordic countries and whether variations between the countries are associated with the role of expertise and the level of politicization. Government responses are analyzed in terms of governance arrangements and regulatory instruments. Findings demonstrate some deviation from normal policymaking within and considerable variation between the Nordic countries, as Denmark, Finland, and to some extent Norway exhibit similar patterns with hierarchical command and control governance arrangements, while Iceland, in some instances, resembles the case of Sweden, which has made use of network-based governance. The article shows that the higher the influence of experts, the more likely it is that the governance arrangement will be network-based.     

Is regulatory innovation fit for purpose? A case study of adaptive regulation for advanced biotherapeutics

The need to better balance the promotion of scientific and technological innovation with risk management for consumer protection has inspired several recent reforms attempting to make regulations more flexible and adaptive. The pharmaceutical sector has a long, established regulatory tradition, as well as a long history of controversies around how to balance incentives for needed therapeutic innovations and protecting patient safety. The emergence of disruptive biotechnologies has provided the occasion for regulatory innovation in this sector. This article investigates the regulation of advanced biotherapeutics in the European Union and shows that it presents several defining features of an adaptive regulation regime, notably institutionalized processes of planned adaptation that allow regulators to gather, generate, and mobilize new scientific and risk evidence about innovative products. However, our in-depth case analysis highlights that more attention needs to be paid to the consequences of the introduction of adaptive regulations, especially for critical stakeholders involved in this new regulatory ecosystem, the capacity and resource requirements placed on them to adapt, and the new tradeoffs they face. In addition, our analysis highlights a deficit in how we currently evaluate the performance and public value proposition of adaptive regulations vis-à-vis their stated goals and objectives.     

智能理财行业风险的法律应对

以智能理财为代表的金融创新行为值得鼓励,该行业对社会和经济产生了巨大的推动力,使得各国政府都愈发重视。由于智能理财业务模式的创新,其区别于传统投资顾问的新特征也随之出现,这种变化必将给金融行业传统的风险规制带来新的课题:监管者如何区配新的风险规制路径?要让智能理财行业实现良性发展,首先需要清楚地认识到其所具有的金融风险、技术风险和法律风险,并明确其规制路径予,让监管主体有效发挥职能。具体来说,首先需要完善信息披露制度、强化风险提示机制,完善信用体系等资本市场相关制度;其次需要强化市场准入与牌照管理,健全合格投资者制度等准入门槛;最后还需要将穿透式监管、全过程监管、科技监管等新型监管模式贯穿其中。     

平台视角中的社会信用治理及其法律规制

在大数据时代,无论是企业还是政府都逐渐走向平台化。依托于数字技术的发展,以声誉为核心的信用治理在平台治理中发挥了重要作用。对于商业平台而言,信用治理可以高效地管理平台上的生产和交易行为,减少国家权力的介入;对于政府平台而言,信用治理不仅可以减少执法成本,还可以促进国家内部权力的整合,并促使国家权力进一步向社会领域延伸。但是,由于缺乏有效规制,信用治理在商业领域存在着评价黑箱化、商业化和垄断化的公平性问题。在公共管理领域,信用治理在信用信息平台建设、政府内部权力整合、数据收集和使用等方面都面临着挑战。对此,法律规制应该以整体制度设计、市场结构调整和优化规制手段为导向,并从限制信用评价的适用范围、引入多元治理模式和培育国家数据能力等方面实现对信用治理的具体规制。     

Digital Election Observation: Regulatory Challenges around Legal Online Content

Between public debates about ‘hacking’ elections, so-called ‘fake news’ and online disinformation campaigns, it has become hard to imagine what free and fair elections in a digital environment could look like. This challenge is particularly pronounced for election observers who monitor free and fair elections. How should election observers fulfil this task when reliable data in online media campaigns are often not even available to media regulators? The following article provides a brief overview of existing challenges around online content regulation and how these apply to elections and election observation. It then considers where resources for digital electoral observation exist and how most effectively to build on these before, in conclusion, discussing next steps and potential opportunities to develop digital election observation further.     

The Transparency Paradox: Why Transparency Alone will not Improve Campaign Regulations

The role of new sources of data has become of increasing interest to those involved in political campaigning and a legislative focus of policy makers and regulators. Utilising Karl-Heinz Nassmacher’s ‘magic quadrangle’ of ‘accounting, practicality, sanctions and transparency’ and a case study of the Political Parties, Elections and Referendums Act 2000 this article unpicks how successful the ‘guiding philosophy’ of transparency was in delivering increased citizen confidence in the democratic process. I ultimately argue that at the heart of all discussions about what regulation in this area should look like, an uncomfortable paradox has to be accepted: that transparency may well help to quell actual instances of malfeasance and the misuse of data, but may at the same time increase citizen distrust in democratic processes. Any regulation should consider the ways in which transparency might be implemented such that it better supports the stated legislative aims.     

Employees’ resistance to users’ ideas in public service innovation

This article contributes to the existing criticism of the positive emphasis on user participation in service innovation as co-creation by examining employee resistance to user-driven innovation. The empirical base comprises interviews, document studies, and observations from a project that focused on implementing a user-initiated idea in public care services in Norway. To discuss employee resistance to innovative user ideas, a power perspective is included by drawing on the Foucault-based theory of identity regulation and discourse. Employees resist the required identity regulation by distorting the initial innovative idea to align with their problem representations, which is facilitated by entangled discourses. The power relations embedded in the different parties’ subject positions emphasize how governing the user side is incompatible with being governed by the users. The article contributes to our knowledge of service innovation and the co-creation of value by demonstrating discursive mechanisms for twisting value propositions.