中国民法典制定的冷思考--从《法国民法典》看我国民法典的制定

《法国民法典》在特定的政治、经济、文化背景中产生 ,具有划时代的历史意义。其所体现的思想内容和精神价值在当代社会仍具有巨大的震撼力 ,主要包括法律公开、司法独立、私权天赋不可侵犯而独立于公权、法官不得拒绝裁判等 ,这些观念为后世各国制定民法典所遵从 ,也为我国制定民法典所参考。由于我国当前不具备自主制定成熟民法典的各项基础要素 ,因此应克服仓促制定《民法典》的急躁心态。     

关于刑事证明标准的三点新认识

证明存在于诉讼角色独立的两方之间。证明标准是一方说服另一方的最低限度要求,因此证明标准存在于司法审查程序中。同时,由于有罪或无罪的判决结果对控辩双方都有重要意义,所以控诉方为了自己的利益往往设立内部标准来把握案件。当然,由于司法审查程序在整个刑事诉讼程序可能有多种,为了更好地实现公正,保护诉讼参与人的权利,真正做到在每个诉讼阶段更为严格地对案件进行把关,立法应当确立不同层次的证明标准由不同的司法人员来把握与适用。     

被告人与律师之间的辩护冲突及其解决机制

被告人与其辩护律师之间的辩护冲突是我国辩护实践中的一个突出问题,这一问题无论在理论上还是在实践中都没有得到很好的解决。域外处理辩护冲突有两种模式：一种是以美国为代表的“当事人主导辩护”模式,另一种是大陆法系国家的“律师独立辩护”模式,两种模式分别有其形成的内在机理和运行逻辑,且各有利弊。我国辩护冲突的解决应当借鉴“律师独立辩护”模式之所长,实现从“绝对独立”向“相对独立”的转型,并通过“辩护协商”的工作机制预防和化解辩护冲突。     

Conflicts of Interest and Governance Mechanisms in Italian Local Public Utilities

Stemming from different theoretical perspectives the article examines the conflicts of interest arising among the actors (citizens, local governments, private shareholders, service providers) that at various levels are involved in local public utilities governance systems. The main results of a multiple case study analysis on 10 Italian listed local public utilities are summarized. Different and coexisting situations of conflicts of interest among multiple principals and agents are identified. In this context, governance mechanisms (e.g., the board of directors) have different roles and functions and may prevent and mitigate such conflicts. However, our findings suggest that the ownership structure influences board composition and functioning and that higher numbers of independent directors do not necessarily mean “actual” board independence. The article contributes to the debate on conflicts of interest and governance mechanisms in local public utilities.     

Shall the law set them free? The formal and actual independence of regulatory agencies

Regulation by independent agencies, rather than ministries, is believed to result in better policy outcomes. Yet this belief requires one to accept a complex causal chain leading from formal independence to actual independence from politics, to policy decisions, and, ultimately, to policy outcomes. In this study, we analyze the link between the formal and actual independence of regulatory agencies in Western Europe. New data on the appointment of chief executives of these agencies is used to create a proxy for the actual independence of agencies from politics. The analysis demonstrates that formal independence is an important determinant of actual independence, but the rule of law and the number of veto players matter as well.     

Religion and the Scottish Independence Referendum

The Scottish independence referendum debate, like the Act of Union of 1707, has significant religious dimensions. The Act gave special recognition through the monarch to the Presbyterian Church of Scotland. The Church, a national church, has not yet declared a position on independence, but is seeking to protect its existing privileges whatever the result. The Roman Catholic Church, recognised by the Scottish Parliament, unlike its formal rejection by the UK Parliament and monarchy, symbolically associates itself with the case for independence. Paradoxically, Catholics supporting independence subject themselves, in their religious lives, to an authoritarian foreign power. The SNP Scottish Government attempts to draw Roman Catholic support for independence from its traditional support base in the Labour Party by cultivating a sense of religious grievance that is not justified by the evidence. Old religious divisions are still relevant but non‐religion is growing fast and resulting in new perspectives on the independence debate.     

Specificity and independence of the literary game

In developing his theory of the “literary field,” Pierre Bourdieu essentially had in mind the case of France from the second half of the nineteenth century, the use of which as a case undoubtedly contributed to his marginalizing numerous aspects of the national microcosm. Among its unstated and unrecognized particular qualities, France is mono-national (rather than multinational) and monolingual (rather than multilingual), and occupies the dominant position in the international Francophone world (much as Germany is at the heart of the German-speaking world). A state, a nation, a language, a territory, a literature – all of these make one unit and prevent one from considering situations more complex or tangled, such as those of many minority literatures. These allow the tackling of issues – among others, problems of their “autonomy” in relation to realities outside of literature such as the political, religious, linguistic, and economic. Rather than imposing constraints on a research agenda, the study of minority literatures allows one to shed light on the complex and contradictory relations between the political (the national, the communal, and sometimes the state), the market, and the literary game.     

Families in need of supervision

Abstract

Even judiciaries that do not have histories of serious or pervasive corruption need to be watchful lest what I refer to as judicial corrosion occurs. Drawing on studies of institutional entropy, I identify some of the external and internal sources of such corrosion and comment briefly on challenges that face its prevention or repair within the judicial realm.     

Welsh Devolution and the Union: Reform Debates after Brexit

The survey addresses three key reform debates relating to devolution in Wales. These concern first, the case for the further devolution of powers, notably those over criminal justice and policing; second, the defence of Wales’ devolved powers in the context of Brexit; and third, the rooting of devolution in new constitutional ideals, primarily the Welsh government’s preferred model of the UK as a voluntary association of nations, or the alternative pressed by the independence movement. In each case, there are strong pressures within Wales for resolutions which sustain and develop devolution; and in the case of independence, have the potential, with reform debates elsewhere, to transform the UK Union. However, there are also grounds for reflecting on the contested nature of further change, the long road that a case for independence may yet have to travel, and the interests of UK government.     

探析我国独立电信管制机构的建立

对独立电信管制机构含义进行深入分析,在此基础上总结出独立性的三个层次;在对目前世界上存在的四种不同独立管制机构模式进行对比分析的基础上,针对我国电信市场的实际状况,提出建立我国独立电信管制机构的具体建议.