Some determinants of internal judicial independence: A comparative study of the courts in Chile,Peru and Ecuador

This article explores the primary determinants of internal judicial independence in three Latin American countries. Considering the relative absence of research focused on this dimension of judicial life, this article is innovative in demonstrating how it is affected by two variables: the quality of judges' training and respect for their judicial careers as criteria for promotions or transfers. While these variables explain why some countries enjoy greater internal judicial independence than others, this article also shows – contrary to popular wisdom – that judicial activism does not have a strong influence on internal judicial independence. Conducting a comparison of the courts in Chile, Peru, and Ecuador using surveys and semi-structured interviews, this study also shows that judges' autonomy from politicians does not necessarily follow the same path as the lower-court judges' independence from their hierarchical superiors.     

A Comparative Institutional Analysis of Korean and Japanese Clientelism

Clientele networks are differently structured across nations, depending on the political institutional setup and the configuration of political and social forces. The political institutional setup, which is cross-nationally different, determines where clientele networks are formed, how extensive they are and how long they can persist. The configuration of political and social forces, which varies over time, defines who takes the lead in clientele networks and how effective they are for producing policy effects. A comparison of Korean and Japanese clientelism suggests that the Korean case represents a form of national-level, defensive, non-cumulative and high political-risk clientelism, while the Japanese case illustrates a form of local-level, cumulative and low political-risk clientelism. Korean clientelism is not a copy of the Japanese variant. Based on this analysis, the author suggests that not every social organisation is functional for democratic governance. He also points out that the gradual process of disintegrating clientele networks is on the move.     

论大学自治权与学生权利的平衡——从台湾地区司法实践切入

大学自治权不仅涉及与外部国家公权力的关系,也涉及与内部学生权利的关系。从外部视角而言,台湾地区大学自治权获得了宪法性保障地位,不仅可以对抗行政权的不法干涉,也可以对抗立法权的不当规范;从内部视角来看,校园传统的特别权力关系理论被彻底破除,大学生获得了全面的诉讼权。在此背景下,如何在尊重大学自治权与有效救济学生权利之间寻求恰当的途径成为司法实践的关键。台湾地区司法机关在经历一系列的实务尝试后,放弃了合法性审查模式,确立正当性审查模式。这种司法经验值得大陆借鉴。     

Informal institutions and foreign investment in China

During the reform era, China has been very successful in attracting foreign direct investment (FDI) for its economic development. That this has taken place despite a rather weak legal system in China challenges conventional institutional theories, which emphasize the centrality of effective state institutions to economic development and international cooperation. This article suggests that the solution to the puzzle lies in the informal institutions underlying FDI development in China. On the basis of extensive interviews in the mid- and late 1990s, I find that networks of personal connections (guanxi), which are pervasive in Chinese society, have played a major role in facilitating FDI flows to China. They have done so by complementing and compensating for the weak Chinese legal system. This article dispels a number of misconceptions about the nature of guanxi, discusses its relationship with friendship, bribery, and social capital, and analyzes the conditions underlying the transnationalization of guanxi networks. It concludes with some important caveats to the major thesis and a discussion of possible future scenarios of institutional development in China.     

Asian crisis,transparency and the international media in Singapore

Abstract

The issue of Taiwan and relations across the Taiwan Strait is not only of fundamental interest to China, but also crucial to peace and stability in the Asian Pacific, thereby also making it of key concern to major players such as the United States and Japan. Beijing has faced enormous challenges over how to solve its dilemma. I would like to achieve reunification with Taiwan through a peaceful path, but perceive that it must be prepared for a war scenario if Taiwan insists on breaking from the mainland for its independence. The dilemma facing Beijing in terms of war or peace with Taiwan has become more acute since the Democratic Progressive Party (DPP) moved to power in 2000. This article analyses Beijing's dilemma over the above policy choices by examining five stages of Beijing's assessment toward regime change in Taiwan from late 1999 to early 2005. It also illuminates the potential impact on major power relations in East Asia.     

能动司法与司法判决的公众认同——兼论司法公信力的提高

面对纷繁复杂的矛盾纠纷,法官应该能动司法,追求民意和司法判决的平衡,以提升司法的公信力,实现司法的政治效果、社会效果和法律效果的统一。能动司法有利于提升司法判决的公众认同度和实现法律价值。为进一步促进司法判决的公众认同,在实践中,应推崇走下＂神台＂的法官——倡导亲民式审判;了解道德习惯——探寻民意和司法判决的平衡;注重合理引导——恰当地行使释明权;打开判决过程中的＂暗箱＂——对判决理由据理说明,进而不断提高司法的公信力。     

裁判要旨生成的逻辑机理——规范解释发现裁判规则

规范之势,法条有尽,事情无穷。汉语法律表意系统内,时有规范而无事实指向,抑或时有事实而无规范指向。当事实有具体的规范指向时,司法裁判的过程区分为事实构建过程与依据三段论涵摄推理二个阶段,前者依据规范关系衡平当事双方权利义务,在证据规则引导下,遵循构成要件认定规范性基本事实,后者通过三段论逻辑路径的法律推理进行归摄及价值判断。法官在大前提与规范性基本事实间往返顾盼选择解决方案,给予个案正当性的结论。     

Political institutions,human capital and innovation: evidence from sub-Saharan Africa

Using data for a sample of 35 sub-Saharan African economies for 1995–2015, this study examines the extent to which political institutions identified as belonging to democratic or autocratic regimes explains the existing differences in innovation across sub-Saharan Africa. While the very few existing studies focus only on the direct effect of institutions, this article examines the impact of the interaction between different regime types and human capital development on innovation in developing countries. The evidence provides very strong support for the direct effect of democratic development on innovation as well as for its indirect effect via its impact on human capital development. However, the results do not support theories that argue in favour of interaction between democracy and human capital, thereby pointing to the need for better calibration of the numerous existing theories and related empirical measures.     

论我国紧急状态法制的实现条件与路径选择——从反思应急法律体系切入

紧急状态法制对于解决宪法上紧急状态制度的虚置问题,推动应急基本法的结构性调整,填补应急法律体系中的制度断层,提升其体系内部各个层次、各个相关条款之间的融贯性,有着十分紧迫的现实意义。经过理论条件和现实障碍的细致论证,可以推导出我国紧急状态法制的实现条件极为特殊,寄希望于短期内制定一部统一的《紧急状态法》似乎不具备可行性。从完善应急法律体系的整体考量,可以将紧急状态法制的任务一分为二,按照实体分散和程序统一的思路分别展开实质性构建,同时发挥“情境化”规范进路的聚合效应,打破分散的形式结构体系,在超常规应急治理(紧急状态)情境中实现规范内容的实质统一。