民法中的强制性规范——兼论公法与私法“接轨”的立法途径与规范配置技术

立法者应妥当处理宪法与民法、行政法与民法、普通民法与特别民法、民事实体法与民事程序法以及民法典内部各种规范之间的关系,通过部门法的合理分工与互动来实现公、私法的“接轨”。宪法中的规范和纯粹行政法的规范是前置型强制性规范,不宜安排到民法典内部;为实现特定公共政策目标的强制性规范是外设型强制性规范,应安排于民事特别法和行政法规中;为自治的私法行为设定最低法律要求以及铺设通往公法管道的强制性规范为内设型强制性规范,应安排在民法典内部。     

Ten Years After Comparing Media Systems: What Have We Learned?

In this article we review research published since the publication of Comparing Media Systems which seeks to operationalize concepts discussed in that work and to test the framework proposed there or to put forward alternatives or revisions. We focus on works that deal with the original 18 countries covered in Comparing Media Systems, and consider the progress made in developing quantitative measures across these cases for key variables, research testing the grouping of cases in Comparing Media Systems, research extending the comparative analysis of Western media systems to new media, and research on convergence toward the Liberal Model. In the final section, we focus on limitations of the research produced during the 10 years following the publication of Comparing Media Systems, particularly the heavy emphasis on quantitative operationalization, and some of the difficulties in using quantitative analysis to investigate complex, dynamic systems.     

Implicating ‘fisheries justice’ movements in food and climate politics

Abstract

While much debate on climate change has emerged around food, forest and land politics, the fisheries sector has only recently become more visibly implicated in these discussions. Similarly, in comparison to food and agrarian movements, fishers’ resistance to intensified mitigation efforts and resource exclusion is still significantly understudied academically, and receives little attention in political spheres. This highlights a critical gap in both food and climate politics literature, which this paper aims to present a framework for addressing. To do so, it contextualises the emergence of overlapping processes of exclusion in global fisheries, and explores the implications global food system transformations have had in the fisheries sector, and the reactions this has spurred from South African fishers. It then traces the convergence of fishers’ movements with other resource justice movements, and how this has contributed to the rise of ‘fisheries justice’. Finally, it presents four interlinked propositions – highlighting food sovereignty, resource access and conflict, climate change and mitigation, convergences between movements, and alternatives proposed by fishers – as a framework for how incorporating fisheries and fishers’ movements can broaden our understanding of transnational social movements, and expand the depth and scope of food and climate politics.     

‘Post-NPM’ by force or fiat? A comparison of administrative reform trajectories in Brazil and Mexico1

‘New Public Management’ (NPM) ideas gained widespread acceptance all over the world in the 1980s and 1990s. In developing countries, notable examples of its influence include the Brazilian ‘Master Plan for Reforming Public Administration’, launched in 1995 by president Cardoso, and the Mexican ‘Federal Public Administration Modernisation Programme’ created in the same year by president Zedillo. Both reflected NPM doctrine and advanced changes for the organisation of the Executive. This article explores the evolution of these two countries' managerial reforms and the extent to which they eventually continued converging (or not) around similar principles, such as those often referred to as ‘Post-New Public Management’ (Post-NPM). By applying quantitative textual analysis of official documents and an analysis of self-reported institutional changes, the article concludes that despite their governing parties' strong political differences Mexico and Brazil did converge during the 2000s, improving controls from the centre, and prioritising the adoption of transparency and participation tools. The comparison of the trajectories of the administrative reforms of these countries between 1995 and 2016 contributes to international debates on policy convergence and Post-NPM reforms.     

中国省际制造业收敛与省际经济增长分异研究——来自部门生产率增长与跨部门资源再分配的视角

文章将生产率增长分解为部门内生产率的增长和部门间资源的重新配置，分析造成中国省际制造业收敛而整体经济增长分异的原因。研究发现：服务业部门在省际间的发散是导致整体经济不收敛的关键原因，但不是全部原因；尽管制造业的生产率在省际间是收敛的，但是由于制造业劳动力加速转出，导致制造业收敛对整体经济的收敛作用被产业结构的变迁削弱了；从农业流出的劳动力进入服务业和非制造业部门，而不是劳动生产率更高的制造业部门，产业结构变迁对整体经济增长的实质拉动作用受到限制。     

附属刑法:实现刑法参与国家治理的有效形式

目前我国立法机关存在将有关行政法等部门法律直接引向犯罪的趋势。这不仅导致了附属刑法的弱化,甚至使附属刑法的作用被忽视,还对我国司法实务的操作造成了不便,将本不该由刑法规制的行为错误地划分为犯罪。为了解决这个问题,有学者开始关注我国并不存在的附属刑法。附属刑法本身具有实现维系刑法典稳定、衔接刑法与各部门法、为刑法提供持续性保证的功能。其具有实在内容、又以刑法典为基础和本源,故附属刑法是可以修正刑法典并达到刑法对社会治理作用的有效形式。     

Is global inequality getting better or worse? A critique of the World Bank’s convergence narrative

The dominant narrative of global income inequality is one of convergence. Recent high-profile publications by Branko Milanovic and the World Bank claim that the global Gini coefficient has declined since 1988, and that inter-country inequality has declined since 1960. But the convergence narrative relies on a misleading presentation of the data. It obscures the fact that convergence is driven mostly by China; it fails to acknowledge rising absolute inequality; and it ignores divergence between geopolitical regions. This paper suggests alternative measures that bring geopolitics back in by looking at the gap between the core and periphery of the world system. From this perspective, global inequality has tripled since 1960.     

Agricultural Policy Reform and Policy Convergence: An Actor-Centered Institutionalist Approach

This article examines the entry into the agricultural policy arena of a new market liberal vision. Battles over market liberalism are some of the defining struggles of the present age. The article develops a stylized framework designed to help understand some of these political struggles and some of the underlying dynamics of the complex policy debates that have occurred. It begins with a brief review of the changed economic context for farming that gradually took place in the 1990s and then provides an overview of how market liberal values and norms might be applied to agriculture. Constructing a stylized set of negotiations in a game-theoretic form that might take place in a debate over the merits of a market liberal approach, it shows two different paths for agricultural policy reform. The analysis suggests that policy change is likely to move more in a market-liberal direction under a center-left government than under a conservative one. This model isthen tested by looking at policy change in two sectors (cereal grains, dairy) in three countries (Australia, Canada, and the United States of America). The analysis suggests that the models are more helpful and policy convergence is more pronounced when sectors are open to international competition. In contrast, the models work less well and convergence is lower in highly protected sectors.     

劳动关系研究的当代理论争论及对创新中国特色劳动关系协调机制的启示

不同国家之间的劳动关系协调模式存在着系统性差异,这种差异会逐渐走向趋同还是继续保持多样性是当代劳动关系研究的核心理论争论之一。按照这一主题,相关理论在当代的演进大体上可以划分为三个阶段,包括20世纪50-80年代的趋同理论、80年代中后期到2000年左右的资本主义多样性理论、2000年以后的制度逐渐变迁理论。上述理论的争论及其历史演进对创新中国特色劳动关系协调机制具有重要的启发意义,特别是相关理论中对主要发达经济体劳动关系协调模式的分类和走向的预测,以及对劳动关系制度和其他经济政治制度之间互补性的强调,为我国劳动关系协调机制的构建提供了重要的概念工具。     

The Adaptive Capacity of Markets and Convergence in Law: UK High Yield Issuers,US Investors and Insolvency Law

This article examines the increasing access by UK issuers of high yield bonds to US investors notwithstanding substantive differences in the approach to valuation of the issuer in financial distress in US and UK restructuring law and, therefore, in anticipated return on default. It examines the development of the market in the context of existing theories on the relationship between law and finance and suggests that previous accounts have overlooked the adaptive capacity of the finance market to legal environment and the implications of such structural adaptation for the prospects of convergence in law. Three states are identified: where the market is poorly adapted to the legal environment and reinforces other pressure for change, where the market is adapted to the legal environment and is a neutral influence on, or even dampens, other pressure for change and where both legacy and adapted structures exist, potentially pulling in different directions at the same time.