律师整体独立论

西方国家的律师往往具有特殊的社会地位,实现了律师行业的整体独立.律师整体独立是保障公民权利、实现司法公正、律师职业发展的内在要求.我国并未实现律师的整体独立,司法行政机关在律师管理体制中居于主导地位,因此,我国的律师管理实际上采用的是行政化的管理模式.在宏观上,应当明确我国律师管理体制改革的终极目标为律师整体独立;在微观上应当将实质性律师管理权授予律师协会.社会认同是律师整体独立的前提,律师行业应重塑自身形象,增进社会对律师行业的尊重与认同.     

试论法官同质化

法官是现代法治的基本特征和基本条件之一。实现法官同质化对于保障法律精神的实现 ,法律的高效实施具有重要意义。应从坚持司法相对独立入手 ,通过建立严格统一的法官培养程序推进我国法官同质化进程。     

破产管理人法律地位探微

破产管理人的法律地位始终是破产法学界争论的焦点之一。由于理论界对该问题进行阐述的理论基础不同 ,产生了不同的理论学说。我国现行破产法规定的“清算组”本质上属于“职务说”的范畴 ,但在破产实践中暴露出了很多弊端 ,新破产法草案应将破产管理人界定为破产企业的信托人 ,以保证破产管理人的中立性、社会性。     

Prosecuting high-level corruption in Eastern Europe

Do Eastern European courts effectively constrain politicians and uphold the rule of law? Criminal prosecution of grand (high-level) corruption can further the central principle of equal responsibility under the law by demonstrating that even powerful political actors have to submit to the laws of the land. This article introduces the Eastern European Corruption Prosecution Database, which contains entries for all cabinet ministers (927 in total) who served in a government that held office in one of seven post-Communist Eastern European countries since the late 1990s. The systematic data collection reveals that Bulgaria, Romania and Macedonia consistently indict more ministers than Croatia, the Czech Republic, and Poland; Slovakia has barely indicted anyone. We aim to start a research agenda by formulating hypotheses about which countries will see more corruption prosecutions and which ministers' characteristics would make them more likely to face the court. We use the database to begin testing these hypotheses and find some evidence for several associations. We find no strong evidence that EU conditionality or membership raises the profile of the grand corruption issue or leads to more indictments. Party politics seems to affect the frequency of corruption indictments more than the structure and behavior of legal institutions. Indictment rates are lower when a former Communist party controls the government and individual ministers from junior coalition partners are more vulnerable to indictment than other ministers. The existence of a specialized anti-corruption prosecution or a more independent judiciary do not seem to lead to the indictment of more ministers on corruption charges. Finally, we discuss avenues of future research that our database opens, both for the analysis of country-level and individual-level variation.     

The fragility of an independent judiciary: Lessons from Hungary and Poland–and the European Union

When the European Union was founded, it was assumed that all Member States admitted as consolidated democracies would maintain their constitutional commitments. In recent years, Hungary and Poland have challenged this premise as elected autocratic governments in those countries have captured independent institutions and threatened long-term democracy. The judiciaries of these countries have been hard hit. In this paper, we trace what has happened to the judiciaries in Hungary and Poland, showing how first the constitutional courts and then the ordinary judiciary have been brought under the control of political forces so that there is no longer a separation of law and politics. We also explore why the European Union has so far not been able to stop this process. In the end, the European judiciary, particularly the Court of Justice, is attempting a rescue of national judiciaries, but the results are so far unclear.     

Judicial independence and state-business relations: the case of Taiwan’s ordinary courts

The question of how ordinary courts in new and emerging democracies may gain judicial independence remains an understudied subject compared to its constitutional court counterpart. Through a case study of Taiwan, this article adopts and expands upon the concept of power diffusion from the extant literature, arguing that the growing power of Taiwan’s private corporate sector led the dominant political party Kuomintang (KMT) to grant independence to the ordinary courts as a means to check against this threat, because the excessive rent-seeking and corruption brought about by these empowered corporations were threatening the nation’s successful economic model and its rule of law. Also, due to the corporate sector’s growing influence on the ruling party itself, the KMT leadership had to devise strategies that can credibly commit to ordinary court independence, which would otherwise be reversed thereafter. This unique implication guides a qualitative empirical analysis that reinterprets the historical events surrounding the judicial reforms that took place in the mid-1990s. The results yield strong evidence in support of the theory.     

Judgement without justice: on the efficacy of the European human rights regime

The European Court of Human Rights (ECtHR) is widely regarded as the most important human rights court worldwide. This article investigates the extent to which the court addresses cases from countries with the worst human rights performance. Using a new data set on all ECtHR judgments from 1995–2012, the analysis suggests that the ECtHR does not deliver its judgments against members of the Council of Europe with the worst human rights records, but instead against more democratic and affluent states. The reason is that litigating in front of a supranational court requires capacities that vulnerable people are unlikely to possess, except when aided by transnational advocacy groups. However, more judgements are issued against countries that lack independent judiciaries, where cases are less likely to be resolved at the domestic level. While the ECtHR might not address the worst human rights crimes, it plays a subsidiary role in the European human rights protection system by compensating for weak domestic judiciaries. However, the court's inability to independently pursue litigation, together with the lack of capacity in some countries to bring cases forward, have hampered more effective protection of human rights for the most vulnerable in Europe.     

Decentralization as a conflict transformation tool: The challenge in Kosovo

Perspectives are divided on whether decentralization can ease ethnic conflict. This article considers whether asymmetric decentralization reforms in Kosovo have reduced tensions between Kosovo Albanians (K‐Albanians) and Serbs (K‐Serbs). We argue that because decentralization has been linked to Kosovo's sovereignty in the years after the NATO bombings, during the final status talks, and after independence, it has not achieved intended outcomes throughout the territory of Kosovo. Instead of assuaging tensions and generating allegiance to the central government, decentralization has re‐inforced ethnic divisions and strengthened K‐Serb ties to Serbia, particularly in northern Kosovo. Concessions to majority Serb municipalities in Kosovo have been seen by K‐Serbs as a bribe to buy acceptance of independence, while K‐Albanians question their leaders' continued policy of asymmetric decentralization. Since independence, there have been some encouraging developments in southern municipalities, where K‐Serbs have participated in municipal elections organized by Pristina. Based on Kosovo's experience, we argue that policy‐makers must consider the impact of decentralization reforms at multiple levels of conflict. Further, although we find that decentralization may engage minorities in political processes if reforms are attempted after the establishment of a central government, we caution that it must be combined with policies to encourage interaction and dialogue between ethnic groups if it is to assuage conflict. Copyright © 2010 John Wiley & Sons, Ltd.     

Taming the real estate boom in the EU: Pathways to macroprudential (in)action

In the fallout of the 2008 crisis, macroprudential policy has been installed as the policy remedy against future financial instability, a primary focus being developments in the real estate sector. With house prices consistently rising in the EU since 2014, causing alarm among macroprudential supervisory bodies, a core question of EU regulatory governance is how far macroprudential bodies have been capable of bringing about countercyclical actions against the build-up of such vulnerabilities. This paper investigates this question using a novel dataset of macroprudential intensity coded for the 17 EU countries that experienced real estate vulnerabilities post-euro crisis. Specifically, it asks which configuration of conditions account for the (in)capacity of countries to impose stringent countercyclical regulations against housing booms? Using fuzzy set qualitative comparative analysis technics coupled with qualitative analysis of country cases using expert interviews, we find that the absence of political salience of homeownership and the political independence of macroprudential authorities to be crucial conditions that jointly explain countercyclical macroprudential activity. These findings, which show two pathways to action have implications for the capacity of the EU to prevent future crises and future reform of the EU prudential framework.     

民愤的反思：刑事司法的阿基里斯之踵

民愤在刑事司法中扮演着重要角色,能够对司法起到一定的外部监督作用。但从根本上看,民愤违背了司法独立、司法理性、司法公正、司法权威等原则,可以说民愤是刑事司法的一个致命弱点。正确认识民愤有助于摆正舆论监督与刑事司法的关系,进而促进刑事司法公正。