权利还是自由？——对流浪乞讨的反思

根据权利的构成要件,"流浪乞讨"是以牺牲乞讨者的人性尊严为代价来换取个人的生存,丧失了行为的正当性,因此,不是一种权利.同时,根据霍菲尔德的"权利分析理论","流浪乞讨"缺乏对应的义务主体,因此,只是一种自由.从各国对流浪乞讨的保护程度来看,流浪乞讨的自由不得损害其他人的合法权利和公共利益,所以设立一定范围的"禁乞区"是正当的.但是,社会主义国家不允许流浪乞讨作为一种制度性的存在,国家应当通过社会保障制度来逐步消除这种现象.     

第三法域之"三农问题"论纲

"三农问题"首先是一个政治问题,但从法治社会角度而言,"三农问题"同时是一个法律问题,而且是一个社会法问题.私法仅就农民利益问题寻求救济,而国家行为对市民社会亦难以作为,故"三农问题"由于牵涉到社会整体利益,应归于第三法域--社会法调整范畴.以社会法视角,可从降低农业人口、农村城市化和农民教育三方面,审视我国当前"三农问题".     

The Relationships Between Childhood Sexual Abuse,Social Anxiety,and Symptoms of Posttraumatic Stress Disorder in Women

The relationships between childhood sexual abuse, social anxiety, and symptoms of posttraumatic stress disorder were examined in a sample of 313 undergraduate women. Thirty-one percent of the women reported some form of sexual abuse in childhood. Women with a history of sexual abuse reported more symptoms of anxiety, distress in social situations, and posttraumatic stress disorder than other women. Women who experienced attempted or actual intercourse reported more avoidance than women with no history of abuse and women with exposure only, and more PTSD symptoms than all other groups of women. Women who experienced fondling reported more PTSD symptoms than women with no history of abuse. Pressure, age of onset of abuse, abuse by a family friend, and abuse by other perpetrators were all significant abuse characteristics in predicting adult social anxiety. Implications of these results for research and interventions are discussed.     

“公司多边治理“质疑——兼论“公司利益相关者论“之法理缺陷

"公司利益相关者论"自传入我国后,对我国公司治理理论产生了较大影响,有学者在其基础上提出了"公司多边治理"的概念,用以重塑我国公司治理结构.然而,因缺乏相应的法理学基础以及在市场经济中的不可行性,目前把"多边治理"引入我国公司治理领域非但不能促进公司长远发展和保护社会利益,结果只能是适得其反.     

Violence and Aggression in the Lives of Homeless Children

The present research examined the role of violence and aggression in the lives of children in homeless families, focusing on possible connections among family violence, children's aggression, and children's problems with social isolation and rejection. Measures were obtained from structured interviews with 93 sets of mothers and children. Consistent with past research, average estimates of specific violent incidents experienced by mothers (as adults) were quite high. Measures of this family violence were reliably correlated with children's behavior problems as well as with measures of aggression in peer relationships (victimization, ease of resolving fights with friends).Finally, results of regression analyses were most consistent with a model in which family violenceand economic distress contributed to problematic aggressive behaviors among children; that aggression, in turn, appeared to lead to social isolation and avoidance. The overall results emphasized the need to address violence and aggression in any intervention programs for homeless children and families.     

Prior Experiences as Temporal Frames of Reference in Social Justice: The Influence of Previous Fairness Experiences on Reactions to New and Old Supervisors

This paper focuses on the psychology of social change and social justice. Specifically, we focus on subordinates’ reactions to new and old supervisors, and we argue that in evaluating these different types of supervisors, subordinates may rely on prior fair or unfair experiences as temporal frames of reference. We further propose that a result of these frames of reference may be that previous fairness experiences have a bigger impact on subordinates’ reactions to subsequent neutral communications when an old rather than when a new supervisor is the source of that communication. Findings of two empirical studies indeed show that subordinates who had had fair experiences with a particular supervisor reacted more positively toward subsequent neutral messages when the communication was coming from the old supervisor rather than from the new supervisor. Subordinates who had had unfair experiences, however, reacted more negatively toward the communication when the source was the old rather than the new supervisor. Some evidence was also found for contrast effects such that people who react to a new supervisor may react more positively with the neutral demand from this authority figure when they have earlier experienced unfair as opposed to fair treatment by a different supervisory agent. These findings were obtained on subordinates’ satisfaction with the supervisors’ communication and their acceptance of the supervisor. Finally, we discuss the implications for the psychology of social change and social justice.     

Cracking Through Hegemonic Ideology: The Logic of Formal Justice

In this analysis I argue for the independent effects on social change of the internal logic of formal justice. Institutionally, oppositional ideas that challenge the legitimacy of a hegemonic system emerge in “safe spaces” that subordinate groups create within a culture dominated by hegemonic ideas. The oppositional ideas derive in part from an existing informal culture of opposition, access to repertories of contention, and favorable openings in the political system. In addition, however, these ideas are often propelled independently by the logic of formal justice, in which, when the reasons for separate treatment have been discredited, equality is the default option. The analysis demonstrates the power of this logic and suggests that it spreads through the mechanism of “organized activist” variation and “everyday activist” selection.     

作为超法规违法阻却事由的习惯法--刑法视域下习惯法违法性判断机能之开辟

习惯法在刑法领域中,具有贯穿刑事立法与刑事司法之"横截式"作用与机能.本文的理论目标正在于,开辟和释放习惯法在违法性判断阶段之重要功能.在作者看来,习惯法完全可以作为超法规的违法阻却事由发挥作用,法官可以习惯法上之正当性,排除行为之实质违法性.这不但不与罪刑法定原则相违背,而且有利于保障被告人人权;不仅有利于以收缩的实质理性对抗扩张的形式理性,而且也应合了"社会相当性理论"和"社会危害性理论"--这一违法阻却事由的一般基础和实质违法性判断之根本标准.甚至,习惯法的引入,还将有力地深化和拓展我们对于"社会相当性"与"社会危害性"这一范畴的横向理解和空间理解.     

医院未征得患者同意使用自费药纠纷初探——从社会法“倾斜保护”理论的视角出发

在基本医疗保险制度施行中,医保定点医院未征得患者同意使用自费药的行为构成对患者的一般侵权或侵权违约的竞合;针对医患双方实质地位的不平等,应运用民法及有关社会法的“倾斜保护”理论处理自费药纠纷且应授权执法者考虑个案的具体情况,决定医患双方间如何分担自费药费用,以实现公平正义的法律追求及维护医保患者的利益。     

法学体系中存在中义的"社会法"吗?--"社会法"语词使用之确定化设想

我国学者近十年来在法学体系研究中,所使用的"社会法"语词可以归类为狭义、中义、广义和泛义四种.我国法律体系中也使用了中义社会法的概念.法学体系与法律体系存在着辩证关系.为了在社会法研究中解除困惑、方便使用,建议将这些相关语词统一为"社会保障法"、"社会法"、"社会法域"和"社会中的法".