刑事立法模式的宪法考察

现行刑事立法采取了将所有犯罪规定在一部刑法典中的模式,没有在行政法、经济法等法律中直接规定构成要件与法定刑,导致刑法典中出现大量的绝对空白刑法规范与相对空白刑法规范,并且形成了自然犯与法定犯一体化的立法体例。法律保留原则、明确性原则与比例原则是宪法原则;绝对空白刑法规范违反了法律保留原则,相对空白刑法规范不符合明确性原则;自然犯与法定犯一体化的立法体例不符合比例原则。只有改变现行刑事立法模式,在行政法、经济法等法律中直接规定相关犯罪的构成要件与法定刑,在刑法典中仅规定自然犯,才能使刑事立法模式与宪法相协调。     

Between Tradition and Modernity: The Re-trial System of the Beiyang Period in the Early Republic of China (1912-1928)

During the Beiyang period of the early Republic of China, the re-trial system覆判 referred to the practice where cases considered by the county magistrate had to be sent to the provincial high court for re-trial to ensure that the case facts were true, the law was correctly applied, and the penalties were appropriate. The scope of the re-trial cases continuously expanded from 1912 to 1922 and, finally, the Amendment to the Statutes on the Re-trial System in 1922 stipulated that all cases under the jurisdiction of the district courts where county magistrates tried, whether through appeal or re-trial, had to be re-tried by the high court or its branches. The adjustment of the scope of the re-trial cases was closely related to the extent to which the county magistrates’ judicial discretion was restricted. During the Beiyang period, due to the failure to establish formal courts of the first instance in counties throughout the country, the county magistrates concurrently handled judicial affairs, which inevitably caused the magistrates’ judicial discretion. The re-trial system was originally designed to compensate for the drawbacks of county magistrates managing judicial affairs and to facilitate the transition within the judicial system. However, the interpretation of the role of the re-trial system should not be limited to reconciliation and adaptation of the old and new judicial systems in the Beiyang period but also to compensate for the deficiencies of county magistrates’ judgments by continuously improving the re-trial procedure and to ensure the fairness of justice through restrictions on the judicial discretion of county magistrates, the enjoyment of equality of procedures, and the establishment of supervision procedures.     

论行政机关协助执行行为的可诉性

行政机关协助执行行为认定为"司法协助行为+行政行为",可以在确保司法权威与提高执行效率的同时促进法治政府的建设,为当事人合法权益救济提供可能。《关于适用〈中华人民共和国行政诉讼法〉的解释》第一条第二款第七项但书前的规定,因为受司法权作用,是不具有可诉性的司法协助义务;但书后的规定,因为有行政机关独立自主的意思表示,是具有可诉性的行政行为。其中,但书中"扩大执行范围"包括执行范围内容、种类、期限的扩大,"采取违法方式"包括滥用职权、超越职权以及程序违法。"缩小执行范围""不作为""擅自撤销或变更"等协助执行违法行为需要通过类推适用的方式对条款的法律漏洞予以填补。     

Conceptualising,evaluating and communicating uncertainty in forensic science: Identifying commonly used tools through an interdisciplinary configurative review

This study provides a set of tools for conceptualising, evaluating and communicating uncertainty in forensic science. Given that the concept of uncertainty is one that transcends disciplinary boundaries, an interdisciplinary configurative review was carried out incorporating the disciplines of medicine, environmental science and economics, in order to identify common themes which could have valuable applications to the discipline of forensic science. Critical Interpretive Synthesis was used to develop sub-synthetic and synthetic constructs which interpreted and synthesised the underlying evidence and codes. This study provides three toolkits, one each for conceptualisation, evaluation and communication. The study identified an underlying theme concerning the obstacles that would need to be overcome for the effective application of these toolkits and achieving effective conceptualisation, evaluation and communication of uncertainty in forensic science to lay-stakeholders. These toolkits offer a starting point for developing the conversation for achieving greater transparency in the communication of uncertainty. They also have the potential to offer stakeholders enhanced understanding of the nuances and limitations of forensic science evidence and enable more transparent evaluation and scrutiny of the reliability, relevance and probative value of forensic materials in a crime reconstruction.     

Constructions of girls’ bodies in Israeli academic literature: a critical scoping review

This scoping review offers an opportunity to examine the spread and reclaiming of feminist theoretical tenets in a central domain of youth studies. We examined critically the development of the academic literature on Israeli girls and their bodies, based on a girlhood studies perspective. Data consisted of the 255 academic works (articles, book chapters and graduate theses) published on the topic since Israel’s inception. The analysed variables included: decade, language, discipline, topic, focus population, approach and genre. The findings outline a gradual increase overtime of works on the bodies of girls, dominated by health-related topics and quantitative methodologies, alongside a relatively small number of studies on sub-populations of girls and based on a critical approach. The discussion situates the trends found regarding study populations, topics and approaches in the global and local literature on girls, highlighting signs of an emerging girlhood studies perspective in the reviewed literature in the past two decades.     

Avoiding Theoretical Stagnation: A Systematic Review and Framework for Measuring Public Value

Public value theory has become a hot topic in public administration research, but its proponents have long recognised difficulties in empirically testing the theory's central propositions. There has been a lack of clarity about how to measure the extent to which organisations are generating public value, which has rendered researchers unable to quantitatively study the causes, consequences and correlates of public value. The current study systematically reviews the growing literature on public value measurement to identify, evaluate, and synthesise available measures. Through a qualitative synthesis of the themes present in published measures, we identify four key components for measuring public value that appear to be important across a range of policy and national contexts. Our review identifies a promising framework that could be used to structure a comprehensive measure of public value and, in doing so, provides a means to progress theoretical development and testing of the public value approach.     

违宪法律的效力

违宪法律是否具有效力,并非完全取决于“违宪”的判断结论,而视乎无效决定之效力状态。各国对于违宪法律应否具有效力的处理方式有所不同,但仍存在一定的规则：违宪法律的对象效力范围,与维护宪法秩序和保障个人权利这两种法律价值观密切相关,并有一般无效与个别无效两种不同的法律处理;违宪法律的时间效力范围取决于“构成说”与“宣示说”这两种无效学说下的不同规定性,而违宪法律的自始无效与将来无效则成为各国设计违宪法律的时间效力范围时必须面对的关键问题。     

司法证明模糊论

“真实”本身具有多元解释,是一个不可能得到精确认定的模糊概念。“事实”必须为法官所确立,是一种个性思维过程后的结论,可称为“法官真实”。从模糊理论与心证演变模式的三个阶段的视角看,自由心证的实质是模糊心证。司法证明必须容忍甚至鼓励富有极大模糊性的日常生活语言以描绘案件事实。模糊理论为司法证明科学的发展带来了新的视角与方法,扩展了研究者理性选择的空间,做出了不同于既有法学语境的诠释,试图形成一个能够科学描述和处理司法证明模糊性的概念体系和方法论框架,以突破摇摆于确定性与不确定性之间的困惑。     

Joint sector reviews—M&E experiments in an era of changing aid modalities: Experiences from JSRs in the education sectors of Burkina Faso,Mali and Niger

Aid policy and practice have been thoroughly shaken up over the past few years. One of the reform areas relates to monitoring and evaluation (M&E). In short, aid recipients are asked to elaborate result‐oriented frameworks while donors are expected to harmonise and align their policies and frameworks. This article examines the extent to which joint sector reviews (JSRs) could take the M&E reform agenda forward. JSRs are M&E exercises at the sector level which have the potential to satisfy the M&E needs of various stakeholders while, at the same time, also contributing to the M&E reform agenda. They are increasingly utilised on the ground, yet, so far, there do not exist any systematic stocktakings and/or analyses of them. Our own analysis of a sample of JSRs from the education sectors of Burkina Faso, Mali and Niger indicate that JSRs score highly on harmonisation, coordination, leadership and broad‐based participation, but poorly on alignment. They generally prioritise accountability over learning needs and largely neglect accountability and learning at the level of the sector institutional apparatus. In this article, findings from the field are contrasted with insights from evaluation theory and practice so as to provide suggestions for on the ground JSR improvements. Copyright © 2009 John Wiley & Sons, Ltd.     

联邦最高法院在美国社会中的功能探析

联邦最高法院作为美国司法权的最高象征,在美国社会发展历程中发挥着巨大的解决纠纷功能、政治功能、公共政策制定功能、法制统一功能以及经济功能。