论我国刑事错案责任追究制度的完善 ——以侦查机关为视角

我国刑事错案追究制度自实行以来,其运用的合理性以及有效性一直饱受争议。从侦查机关的视角考察,错案追责情况主要存在纠正程序不具体、追责程序透明度不高等相关问题。结合我国实际情况考虑,从内部制度与外部监督入手考虑设立独立的错案追究机关来进行解决是可行的,同时可从细化错案责任追究的相关程序、明晰实体责任性质的认定标准、建立健全办案质量终身责任追究制度和建立追责程序相关信息发布机制等方面来完善刑事错案追究制度。     

Linking democratic anchorage and regulatory authority: The case of internet regulators

Scholars and practitioners have repeatedly questioned the democraticness and the authority of transnational multi‐stakeholder organizations, especially those that regulate the internet. To contribute to this discussion, we studied the “democratic anchorages” and the regulatory authority of 23 internet regulators. In particular, we conducted a fuzzy‐set qualitative comparative analysis assessing whether and which anchorages correspond to necessary and/or sufficient conditions for exerting regulatory authority. Our results show that strong anchorage in democratic procedures is specifically relevant for this outcome. Further, we find that weak anchorage in democratically elected politicians leads to high regulatory authority, confirming the significance of non‐state actors in this policy field. More generally, our findings support but also qualify expectations about the compatibility and mutual reinforcement of democratic quality and regulatory authority at the transnational level.     

劳动争议处理之我见

近年来,我国的劳动争议案件逐年增多,且呈现复杂化、群体化、涉外化等趋势.我国政府为了实现社会公正,走上了通过扩大劳动者个人的权利来解决劳动争议的路子,致使劳动者、企业单位、工会、行政权力以及法院在处理劳动争议过程中的职能、地位发生扭曲.所以必须关注并完善劳资双方的信用关系、工会的职能与地位、行政权力在劳动争议处理中的地位和权威、法院最后的司法救济,从深层次解决原来的处理体制"用其所短"的弊端,实现劳资关系的和谐.     

法律推理视角中的法官自由裁量

法官自由裁量客观存在于法律推理过程中;审判三段论的大前提和小前提分别蕴涵着法官对适用法律和案件事实的自由裁量;在实质法律推理中法官通过价值判断进行自由裁量.     

The European Court of Justice and its political impact

This article reviews recent advances in the study of the European Court of Justice (ECJ) and its political impact at the European and member state levels. New quantitative as well as qualitative analyses show with great empirical precision that member state preferences guide the Court. The article summarises these findings, but argues that greater attention needs to be given to the (over-)constitutionalisation of EU law in order to fully capture the political impact of ECJ jurisprudence. Even if European judges are less activist than is often assumed and individual decisions are more restrained in the face of member state opposition, incrementally, case law evolves in a highly expansive fashion. And, exercising caution regarding unrealistic expectations about quasi-deterministic judicial law-making, it is found that the Court’s constitutionalised jurisprudence impacts heavily on European and member state policy-making.     

Moderator or Manipulator? How International–Local Relations Emerged as a Function of UN Authority-Building in Cambodia

The success or failure of international peacebuilding missions is predominantly evaluated in reference to interveners’ ability to exercise their mandated authorities. To test the value of an empirically based analysis of authority-building processes in the course of such missions the article turns to the United Nations Transitional Authority in Cambodia (UNTAC, 1992–1993). In order to safeguard the country’s stability many supported the idea of holding presidential elections in addition to the ones for the Constituent Assembly forming the new government. To organize such unforeseen elections UNTAC would have had to change its mandate as determined by the Paris Peace Accords (PPA). Based on extensive archival research the paper analyses the debate surrounding this proposal as a series of legitimacy claims that were selectively recognized and rejected. The article concludes that evaluations of peacebuilding missions are indeed too focused on interveners’ authority to decide, while neglecting or underestimating challenges to their authority to interpret. This fosters a false sense of control over the direction of political processes.     

司法解释场域的“央地矛盾”及其纾解——以“地方释法”为中心的分析

在以统一法制为目标的法律解释体制下,最高司法机关供给的司法解释资源无法满足地方司法机关的释法需求,构成了司法解释场域的“央地矛盾”.为了缓解供需矛盾,地方司法机关开始自发转向“地方释法”,试图以发布地方释法文件的方式实现司法治理效果.中央虽对“地方释法”持禁止态度,但制定的相关规制规范却过于宽松,未能起到应有的限制作用...     

Authority in rebel groups: identity,recognition and the struggle over legitimacy

This article asks how rebel leaders capture and lose legitimacy within their own movement. Analysing these complex and often uneasy relations between elites and grassroots of insurgency is important for understanding the success or failure of peace processes. This is because internal contestation over authority between rival rebel leaders can drive a movement’s external strategy. Based on ethnographic research on the Karen and Kachin rebellions in Myanmar and insights from Political Sociology, the article suggests that leadership authority is linked to social identification and the claim to recognition among insurgent grassroots. If rebel leaders manage to satisfy their grassroots’ claim to recognition, their insurgent orders are stable. Failing this, their authority erodes and is likely to be challenged. These findings contribute to understanding insurgency and peace negotiations in Myanmar and civil wars more generally by showing how struggles over legitimacy within rebel groups drive wider dynamics of war and peace.     

The Landless invading the landless: participation,coercion, and agrarian social movements in the cacao lands of southern Bahia,Brazil

This contribution draws on Nancy Fraser's concept of ‘participatory parity’ to analyze the reproduction and contestation of inequalities internal to land reform settlements affiliated with the Landless Rural Workers’ Movement (MST) located in the cacao lands of southern Bahia, Brazil. These inequalities are variously manifest in unequal control over land and legal documents, disparities in status and what Fraser calls ‘voice'. These circumstances help account for quantitative evidence that shows a strong preference among local landless populations for land reform organizations that are more decentralized and less hierarchically organized. These circumstances also motivate direct actions undertaken by grassroots MST settlers seeking to destabilize the conditions that ground these inequalities. This research highlights the importance of attending to local histories and interactions through which participatory disparities are christened and reproduced; indicates potential methodological consequences; and examines the interplay of transgressive action, dialogue and recognition as settlers struggle to bring about ‘participatory parity' – or what they might call genuine ‘friendships' – in their communities.     

Juvenile and Family Court Judges’ Knowledge and Attitudes About Sex Trafficking of Minors: Associations with Gender,Race, and U.S. Region

Juvenile and family court judges are a professional group that have a significant amount of decision-making power in cases of sex trafficking of minors. The purpose of this project is to examine the association of juvenile and family court judges’ gender, race, and U.S. region with their attitudes and knowledge about sex trafficking of minors. Drawing from a survey of 55 juvenile and family court judges in the U.S., this study used standardized scales to measure attitudes and knowledge about child sex trafficking. Results indicate some differences by gender and geography in a sample of experienced judges across the U.S. The consistency of these findings are discussed in the context of other research and implications for targeted training.