刑事涉案财物处置的监察调查制度构建与完善

我国《监察法》非常重视涉案财物调查程序之正当性,针对搜查、扣押等调查工作确立了强制录音录像制度。但是,目前刑事涉案财物调查体系制度定位仍存在偏差,如未能体现其财产保全价值;监察机关能否对刑事涉案财物进行实体处分,立法方面语焉不详;利害关系人之权利保障机制尚不健全。应当以人财并重理念及程序正义原则为指导,强调对物调查之财产保全价值;检察机关应成为财产保全及实体处分的决定主体,加强检察权对监察权的制衡与监督;细化和完善利害关系人之程序性权利,构建以检察机关为主体的程序救济机制。     

从一则案例谈著作权集体管理组织的权利滥用

40多年来,著作权集体管理组织的权利滥用就一直受人关注。法律赋予了知识产权权利人广泛的权利,诸如音乐著作权协会等的著作权集体管理组织,作为管理著作权的机构,更是具有了垄断的地位。虽然在许多的案例中,最终著作权集体管理组织仍是胜诉方,然而这些案例却让我们深思:如何管理著作权集体管理组织,如何使得其权利滥用得到规制,如何保护作品使用者的权利,是一个不容忽视的问题。     

商品化权性质的理论之争及反思

国内外多数学者认为商品化权是一种新型的知识产权,但知识产权体系其实无法包容商品化权。商品化权具有无形财产权的品性,即使是人格因素商品化权也不例外。只有在无形财产权范畴中才能准确把握商品化权的性质。     

试论国际贸易中的权利担保及法律适用

在国际货物贸易中,卖方在销售货物的同时往往需要承担一定的权利担保责任。卖方的权利担保保证买方交易安全的前提,是卖方的重要义务之一。本文旨在对《联合国国际货物销售合同公约》中的卖方权利担保义务的规定及法律适用作具体解析,并试图对我国出口贸易和进口贸易中权利担保责任风险的防范提出相应对策,以期我国对外贸易的顺利进行。     

European Climate Policy: Toward Centralized Governance?

The EU emissions trading system (ETS) is the first large-scale international emissions trading system and a "cornerstone" in EU climate policy. A key element in the ETS implementation process is deciding upon the ceiling ("cap") for the emissions included in the ETS. Over time, a significant change and centralization of this model has taken place. In order to understand this development, we need to acknowledge the increasing acceptance of stronger centralized governance among the member states due to ETS pilot phase problems; take into consideration frustration in the European Commission over complex and differing National Allocation Plans; and add the fact that the Kyoto Protocol target was getting nearer and a good performance of the "flagship" ETS was becoming increasingly important. Hence, although the case supports the importance of acknowledging the multilevel character of the EU, it still emphasizes the key role of changes in member states' interests and positions for understanding outcomes.     

The making of land ownership: land titling in rural Colombia – a reply to Hernando de Soto

Hernando de Soto’s best-selling book The Mystery of Capital argues that economically disadvantaged countries lack institutional arrangements that can spur economic development and capital growth. This article questions de Soto’s institutional economist account. It draws on a 14-month ethnographic study performed at two rural field sites in Colombia and in the central government office responsible for promoting land programmes designed to improve the living conditions of rural communities. This study, which focuses on the daily practices of public officials and rural campesinos, suggests the importance of the title document, and in particular the public deed, for land ownership. It describes the process by which landownership is created by the issuance of the land title document and highlights some important elements and untended consequences that are often neglected in this process of making land a legal and economic asset.     

Means of production versus means of coercion: can Russian business limit the violence of a predatory state?

In their most recent works, North and his coauthors (North, D. C., J. J. Wallis, S. Webb, and B. R. Weingast. 2012. In the Shadow of Violence: Politics, Economics, and the Problems of Development. New York, NY: Cambridge University Press; North, D.C., J. J. Wallis, and B. R. Weingast. 2009. Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History. New York, NY: Cambridge University Press) name the formation of organizations capable of effectively restricting violence in society as a necessary condition for transition from developing societies to societies with sustainable economic growth. However, the mechanisms of emergence and conditions for the operation of such organizations in contemporary developing countries remain unclear. We follow the logic of formation of such organizations using the case study of collective actions of the Russian business community aimed at restricting “state violence” against business. We seek to identify the conditions leading to a shift in the choice of strategies from attempts at informal agreements with extortionists controlling means of coercion to cooperation of businessmen and trace the further evolution of organized forms of collective action. Finally, we assess to what extent the created organizations can be efficient and self-supporting in the long term.     

非法人社团的独立财产权——以工会的独立财产权为中心

非法人社团虽然不具有法人资格,但在某种意义上,并不影响其享有独立的财产权,这一点,对于具有社会公共职能的社团而言,更具有现实价值。工会作为协调劳资关系,保护劳动者权益的重要社团,其独立财产权的享有是其生存和发展的根本所在。这充分表明,不具有法人资格的工会组织也可以准用独立财产权规则。这种准用得到了大陆法和英美法的理论和制度的支持。     

How not to think of land-grabbing: three critiques of large-scale investments in farmland

Large-scale investments in farmland have been criticized, chiefly, because of questions about the capacity of the countries targeted by these land deals to effectively manage these investments in order to ensure that they contribute to rural development and poverty alleviation. This article questions the idea that this is the only or even the main problem raised by such investments. If weak governance were the only problem, then appropriate regulation—and incentives to manage such investments correctly—would indeed be a solution. However the real concern behind the development of large-scale investments in farmland is that giving land away to investors, having better access to capital to ‘develop’, implies huge opportunity costs, as it will result in a type of farming that will have much less powerful poverty-reducing impacts, than if access to land and water were improved for the local farming communities; that it directs agriculture towards crops for export markets, increasing the vulnerability to price shocks of the target countries; and that even where titling schemes seek to protect land users from eviction, it accelerates the development of a market for land rights with potentially destructive effects on the livelihoods, both of the current land users that will face increased commercial pressure on land, and of groups depending on the commons—grazing and fishing grounds, and forests. The article maps these various levels of critiques. It concludes that we need to do more than impose a discipline on land-grabbing: we need a real alternative to this kind of investment in land.     

The global farms race: land grabs,agricultural investment,and the scramble for food security

In a widely read paper, the United Nations Food and Agriculture Organization, World Bank and others propose systematic property rights formalization as a key step in addressing the problems of irresponsible agricultural investment. This paper examines the case of Cambodia, one of a number of countries where systematic land titling and large-scale land concessions have proceeded in parallel in recent years. Cambodia's experience exemplifies the challenges of the ‘formalization fix’ – the proposition that property formalization constitutes a preferable front-line defense against land grabbing – and highlights formalization's uneven geography as an issue that has yet to generate adequate discussion internationally. Three dimensions of Cambodia's less-than-successful formalization fix efforts stand out: (1) the spatial separation of systematic land titling and agribusiness concessions that emerged during the 2000s and has only recently begun to be addressed; (2) the deployment of property formalization as a means of land grabbing, especially when applied selectively and unevenly; and (3) the political arena of efforts to legitimize ‘state land’. The paper questions the formalization fix as a policy solution, and argues for both greater spatial transparency in property formalization efforts throughout the global South, and greater attention to the problem of unmapped state land in general.