行政诉权行使的合理限度——诉权保障的逆向思考

"保障当事人诉权"是司法改革中的基础环节和核心命题之一。在行政诉讼实践中主要有"问题导向型"和"理念贯彻型"两种正面推进思路,但一味正面推进势必会增加其矫枉过正的潜在风险。从反向角度探寻行政诉权行使的合理(最小)限度,借以明确诉权保障之推进场域,不失为一种全新思路。行政诉权行使限度以事物限度理论与权利限度理论为正当性来源,并以司法资源的有限性、司法解决行政纠纷能力的有限性以及司法的谦抑性为考量因素。在诉权层次理论付之阙如的当下,行政诉权行使的合理限度应当以现行的起诉方式、起诉条件为准,且当事人以言之有理为限,法院以形式比对、核对为度。至于行政滥诉等行为的风险防控,可由当事人签署具结书的形式得以实现。     

Can You Build a Better Cop?

Research Summary

By drawing from psychology and economics, we present an experimental evaluation of a procedural justice training program designed to “slow down” police officers’ thought processes during citizen encounters. We find that officers who were randomly assigned to participate in training were as engaged in the community as similarly situated officers, but they were less likely to resolve incidents with an arrest or to be involved in incidents where force was used. These changes were most evident among officers who worked in areas with a modest level of risk.

Policy Implications

Police officers who are actively engaged with the public can reduce crime through general deterrence and by arresting criminals. Nevertheless, excessive discretionary arrests and the use of force by officers can reduce public trust in the police. To date, there is scant evidence as to how police departments can successfully train officers to balance enforcement and public trust in the field. Through our study, we demonstrate that a relatively minor supervisory intervention may cause substantive changes in how police and citizens interact with each other.     

审前程序中的律师辩护权

被指控人的辩护权是一项贯穿刑事诉讼始终的诉讼权利 ,律师作为辩护人协助被指控人行使辩护权。由于审判前程序与审判程序在目的、地位、结构等方面的差异 ,导致审判前程序中的律师辩护与审判程序中的律师辩护相比 ,呈现出辩护权的有限性、辩护的准备性与独立性、辩护功能的受制性、程序性辩护的重要性等特点。加强我国审判前程序中的律师辩护 ,应当在扩充辩护权、纠正审判前程序的具体定位、调整审判前程序的诉讼结构以及完善强制措施制度等方面做出努力     

程序控权与程序性立法的控权指向检讨——以《行政诉讼法》立法目的为个案

就对权力的规制而言,一个合理分权的权力结构当是最为根本和富有实效的,然在这一根本性前提尚未具备且短期内难有实质性变化的境况下,程序对于控权的意义更应被特别强调,尤其在如《行政诉讼法》这样的程序性立法中.因为对权力的规制需要程序要件的满足;权力行使的过程性要求对其制约的程序性;程序特别是正当程序本身即为控权机制;程序制约的过程正当性是法治之德的核心;程序的牵制性有助于催发权力结构的合理变化.但遗憾的是,在如《行政诉讼法》这样的控权性质相当浓厚的程序性立法中,由立法目的所体现的对于权力刻意维护的立法指向却是需要深刻检讨的.     

论清代前期报刊法制的体系与特点

经过从顺治至道光朝近200年的努力，到鸦片战争爆发前，清政府已经形成了包括调整和建立报刊运行体制、对报刊内容进行管理和控制、查处违反报刊管理和运作规定行为、提塘建设和管理以及查处民间小报等方面的报刊法制体系。与明朝的报刊法制相比较，表现出“清因明制”、“斟酌损益”和“严刑峻法”的特点。     

Organizational commitment and satisfaction with work among transferred employees: An application of Referent Cognitions Theory

Referent Cognitions Theory (RCT) predicts that resentment is highest among persons who combine high referent outcomes (i) with low likelihood of amelioration and (ii) with perceived unfairness of the procedures leading to their actual outcomes. In organizations, resentment can be expressed in decreased commitment and decreased satisfaction with the organization, and with one's work and work situation. Predictions derived from RCT were tested in a field study among employees who, due to the retrenchment strategy adopted by their company, were put into an outplacement and transfer procedure. Results were only partly consistent with RCT predictions. Support for all predictions was found only among employees who successfully went through the transfer program. None of the predictions were supported by the results obtained from employees still in the program. Results suggest some limitations with respect to the validity of RCT.     

Procedural justice in managerial selection: Identification of fairness determinants and associations of fairness perceptions

The study examined procedural fairness in managerial selection practices. A sample of professional managers were asked to make first, fairness judgments about managerial selection procedures in general; and second, specific fairness judgments based on their own previous experiences in applying for such positions. Using the general fairness ratings, the determinants of procedural fairness in selection were identified by the factor analysis technique. Five procedural factors (three process and two decision factors) accounted for 57.4% of the total variance. The factor scores derived from fairness ratings of specific selection procedures were then correlated with ratings of candidates' later organizational commitment, work satisfaction, and perceptions of organizational effectiveness. Results showed that process factors were significantly associated with candidate variables but decision factors were not. The findings were discussed in the context of current procedural justice theories.     

Privacy and procedural justice in organizations

This paper advances the argument that individual privacy is a procedural justice issue in organizations. A review of the organizational privacy literature supports this argument, and new directions for procedural justice research are suggested. In addition, it is argued that a focus on individual privacy highlights the political and paradoxical implications of procedural justice issues in organizations.     

Sentiments of justice

In empirical research on social inequality one question remains largely open: Why are certain types of social inequalities legitimate or not? Three theoretical approaches to this question are discussed: the universalist, the cultural, and the interactionist approach. The interactionist approach is defended: Sentiments of justice can be predicted or deduced from the system in which the actors are located. It is important to know whether actors have reasons to be interested in the system of interaction in question, including reasons for approving the rules and the mode of its functioning. At the same time, the existence of an unrestricted residue must also be recognized: With good reasons one group of individuals can find that a certain state of affairs is just, another group that it is unjust. Because divergences of opinion are inescapable, certain questions pertaining to the issue of social justice can only be resolved by the method of regulated political debate. Questions of social justice can in no way be resolved a priori.     

Perspective and procedural justice: Attorney and litigant evaluations of court procedures

A comparison of the procedural justice judgments of attorneys and those of lay people judging the same procedures offers an opportunity to generate new information on what factors affect judgments of fairness. In a survey of reactions to conventional and innovative procedures in a United States district court, attorneys and lay people involved in tort and contract cases were asked to judge the overall fairness of court procedures and the fairness of specific procedures used in arbitration hearings. The respondents were also asked for their judgments concerning the favorability of the procedure's outcome, the opportunity to have the case heard and decided by an impartial third party, and their side's control over what happened in the case, all of which are factors found in previous studies to affect procedural fairness judgments. The results showed that, while attorneys gave higher overall fairness ratings than did litigants, the difference was not affected by the procedure assigned to the case. In addition, attorneys and litigants appeared to use the same standards to evaluate the fairness of procedures, although they disagreed about where the procedures they experienced fell on these dimensions. The theoretical and practical implications of the results are discussed.