基本法之下立法、司法与行政的制衡

在香港基本法下,立法会和行政长官之间的"制约和平衡"是互相联系的,附件二还为立法会规定了一个独特的投票机制。除了立法和行政分支的平衡之外,基本法第七十三条还规定了立法会对政府的其它制约。香港现时的三权制衡体制较像英式,而不等同于美式的三权分立,它与香港的行政主导体制并没有矛盾。     

On the enforcement of specific performance in Civil Law countries

Proponents of specific performance as a remedy for breach of contract have found support in the alleged use of the remedy in Civil Law countries. However, we provide evidence that specific performance is in fact a rare remedy in Denmark, Germany and France, and under CISG, when performance requires actions to be undertaken, and we relate this to costs of enforcement. We argue that it is administratively costly to run a system of enforcement that renders specific performance attractive to the aggrieved party, and that the Civil Law countries have (like Common Law countries) chosen not to incur these costs of enforcement. This is especially clear in the case of Denmark, where specific performance of actions has been abandoned as a legal remedy.At the normative level, we argue that enforcement costs provides an additional rationale, over and above the rationales of the theory of efficient breach, for damages and against specific performance as the general remedy.     

An unforgettable trip to Munich

正From June 15-20,as CAFIU council member,I participated in the 2014 Re-thinking Asia-"Understanding and Cooperation"Dialogue in Munich,which was co-organized by the Chinese Association for International Understanding(CAFIU)and Friedrich-Ebert Stiftung(FES)and co-sponsored by the Chinese Foundation for Peace and Development.     

Innovation Through Collaboration

正I am not an expat,but I come to China so of ten I feel like one.My mission is to build UK Chinese links in innovation.It is recognized that innovation flowers at the intersection of cultures either in time or space.For me the differences in culture be tween Europe and China are amazing and cover     

Merger Melancholia: An Empirical Analysis of the Perceptions of the Residents of the Forcibly Amalgamated Manilla Shire Council

Notwithstanding cogent reasons for the continued existence of small local authorities in the sparsely populated Australian hinterland, compulsory council consolidation has been a recurring theme throughout the history of Australian local government. Despite its ubiquity, especially in rural, regional and remote Australian communities, its local consequences have not yet been fully examined by scholars or policy makers. The present paper seeks to remedy this neglect with an exploratory study of the social and economic consequences of forced local government amalgamations through the lens of the ‘lived experience’ of the small rural community of Manilla, which was forced in merge with the much larger Tamworth in 2004.     

Rising start-up costs of voting: political inequality among first-time voters

Abstract

Research on voting behaviour stresses that whether citizens become habitual voters depends on the very first elections in their adult life. This article focuses on the increasing participation gap of first-time voters with low and high levels of resources. Looking first at 14 European countries and second at long-term dynamics in Germany, the turnout rate of first-time and older voters over time is compared. It is shown that the turnout gap has increased substantially since the 1980s. In contrast, educational differences in electoral turnout among older citizens are still comparatively small. It is argued and shown that the turnout gap among the young is due to rising ‘start-up’ costs of voting, which affect mainly those who are resource poor.     

重新审视律师在场权:一种消极主义面向的可能性——以侦查讯问期间为研究节点

经过《刑事诉讼法》三次修改,中国的刑事辩护制度在立法上取得重大进展,基本上已与国际规则和标准接轨,律师的各项权利不断丰富发展,日益完善。但时至今日,唯独律师在场权没有落实。西方法治国家均建立了讯问时律师在场权,并呈现出积极和消极两种模式。随着"以审判为中心"的诉讼制度改革开展、认罪认罚从宽制度入法,律师在场权的问题再一次被提出,其在我国已具备现实可行的条件和契机。鉴于制度本土化的诉求,应当考虑借鉴消极面向的基本范式,即以监督和事后反馈的方式保障犯罪嫌疑人的诉讼权利不受侵犯。同时,制度改革需要详细构建侦讯期间律师在场权的适用范围、供给来源、权利类型和流程设计等规则。     

Satisfaction,Alternatives, Investments,and the Microfoundations of Audience Cost Models

In this paper, we suggest that the Investment Model of Commitment, developed in social psychology, offers a solution to an important microfoundational issue in audience cost theory. Audience cost models are useful for thinking about the foreign policy behaviors of democratic and nondemocratic states. However, they often assume that citizens reliably penalize leaders who break their foreign policy promises even though the empirical record suggests this is not always the case. We argue that public commitment to foreign policy assets and relationships is a precondition for the application of audience costs. Using the UN and NATO as case studies, we hypothesize that the commitments people develop to international organizations emerge as a function of (1) their satisfaction with the performance of the organization, (2) the investments in those organizations, and (3) an assessment of the alternatives to these associations. Correlational and experimental tests of the model confirm that the strongest individual-level commitments arise when people are highly satisfied with the performance of specific institutions, believe that much has been invested in support of them, and perceive that the alternatives to particular institutions are poor. Implications for the development of audience cost theory are discussed.     

许霆案归责的法经济学分析

法律责任的归责要遵循四个基本的原则,分别是责任法定原则、责任相称原则、责任自负原则、因果关系原则,这些基本原则是有机统一的。这些原则可以运用个人主义、交易成本、公共选择、外部性等经济学原理进行分析。通过这些理论工具的运用,本文认为,许霆案的司法判决违反这四个原则,因此从经济分析的角度来看,许霆案的判决是无效率的。     

The impact of economic theories on the law in market relations

The impact of economic theories on legal development, thinking and practice is undeniable. This is particularly true for neo-classical and institutional economics. Neo-classical economics are based on model assumptions of human behaviour such as pursuit of personal advantage, individualistic goals, complete information and at the same time law obedience which are the foundations of the functioning of the market mechanisms. The assumption leads to an almost mystical belief in the self-regulatory power of the market and a strong disdain and disapproval of the State. The concepts of a minimal State and de-regulation of all social relations follow from there. This article argues that model assumptions are valid scientific tools, as long as they are not taken to reflect the real world which is populated by real people that are not necessarily behaving like homines oeconomici. Preaching de-regulation and the dismissal of the State can prove simplistic and even dangerous and may lead to financial and economic crises like the ones witnessed in recent years. Institutional economics part from these empirical findings. They do not question individualism and the pursuit of egoistic objectives of market-participants, but they insist on inherent risks of this mechanism which stems from opportunistic behaviour, lack of information and transparency and the limits of trust. Property economists deduct from there that sustainable and dynamic economic development is unthinkable without well defined property title, the distinction of property and possession and credit securities. These institutions cannot be self-regulatory but need a clear legal frame, in other words rules established by a State. Transaction costs economists understand the danger of opportunistic behaviour and a corresponding systemic lack of trust in the negotiation, conclusion and execution of contracts. They underline the necessity of institutions which are capable of limiting these dangers and thus reducing transaction costs. Institutions may be customs, informal arrangements and formal law. At the end two examples are presented-real estate transactions and post-patriarchal family relations-to test the utility of these considerations.