破产实体要件的审理程序研究

我国现行《破产法》并未明确将破产原因等破产实体要件作为当事人争议和法院审理的对象为其设定正式的审理程序。司法实践中,不少法院是把实体要件和形式要件都放在破产受理这一程序中进行审查的,这样做虽可在一定程度上消除人们对程序启动及案件受理效力等方面有关程序正当性的怀疑,但毕竟受理程序并非正式的审理程序,其程序空间较为狭小,难以承受审理破产实体要件的沉重任务。从增加整个破产程序运行的正当性和保障当事人的程序权利出发,新《破产法》有必要为破产实体要件设立较为正式的审理程序。     

Disputes in Japan: A cross-cultural test of the procedural justice model

Research on procedural justice has provided ample evidence that people are concerned not only with the outcome of disputes but also with the fairness of the procedures used to resolve disputes. The majority of the studies examining the importance of procedural justice have been conducted in the United States and Western European countries. This study tests the generality of the procedural justice model by examining the importance of fair procedures to people in a non-Western country, Japan. This study also examines the meaning of a fair procedure from a legal perspective. Past studies have drawn the procedural justice criteria considered from social psychology. We examine several additional criteria derived from the legal concept of due process of law. Results indicate that fair procedures are more important to subjects than fair outcomes in both a traffic accident dispute and a breach of contract case. Furthermore, across both types of disputes, fairness concerns are more important than nonfairness concerns. These results are consistent with findings from studies conducted in Western countries. A new finding that emerges from the study is that the clarity with which a procedure is formulated and presented is a strong determinant of procedural justice judgments.     

控审分离原则之法理探析

作为近现代国家刑事诉讼中普遍认同的一项基本原则，控审分离有其丰富内涵，诉讼公正系其核心价值，而分权制衡、人权保障、程序主体性、诉讼经济理论以及相应的心理学原理构成其理论基础。     

行政合理性原则之内涵重塑与现实运用

行政合理性原则作为行政法基本原则已经受理论和实践的巨大挑战,重新界定行政合理性原则具有重要的理论和实际意义。     

非退化扩散过程的维数及局部时

本文用一般分布函数的方法讨论了多维非退化扩散过程样本轨道的分形性质,给出了其象集代数和及图集的Hausdorff维数,并证明了其局部时的存在性.     

完善我国行政合同救济制度

行政管理的形式随着我国民主和法治建设的不断发展更加多样化,行政合同作为我国一种新型的行政管理手段,在行政机关运用的越来越频繁。但我国行政合同法律制度相对滞后,行政合同的救济制度存在诸多问题。行政合同行为属于行政诉讼的受案范围,行政程序法应对行政合同行为作专门规定。     

The Combet Case and the Appropriation of Taxpayers' Funds for Political Advertising – An Erosion of Fundamental Principles?

This article contains a critical discussion of Combet v The Commonwealth (2005) and the reasons given by the High Court in that case, for dismissing the legal challenge to the present government's political advertising campaign in support of its Workchoice legislation which was conducted before the publication or enactment of that legislation. It also deals with the implications of the case for the declining significance in modern times of the parliamentary appropriation process as a means of ensuring the accountability of governments for the expenditure of taxpayers' funds. The article concludes with a discussion of the possibility of future parliaments (regardless of their political complexion) reasserting their control over the appropriation process and restricting the use of government advertising for political purposes.     

Independent regulatory agencies in Turkey: are they really autonomous?

This article examines the autonomy of independent regulatory agencies (IRAs) in Turkey. It explores, first, the different factors that have led to the creation of IRAs and second, the legislative basis of their formal or de jure autonomy. Thereafter, the article assesses the extent to which this formal autonomy is really put in practice and how it is perceived by board members. The enquiry was conducted through a survey comprising interviews and a questionnaire applied to the same. It concludes that although formal autonomy is satisfactorily provided for by law, government tends to limit this autonomy through secondary legislation. Consequently, there are some constraints on the actual use of autonomy. Concerning de facto autonomy, survey findings show that boards are exposed to external and internal pressures and interference in their deliberations. Thus, the assumption that ‘the greater the autonomy the more efficient the management’ is questioned. The main sources of pressure on board members are from the regulated sectors themselves. These findings have an important bearing on democracy and the political–administrative interface, as it is confronted by market forces. Copyright © 2007 John Wiley & Sons, Ltd.     

Regulating Lobbyists: A Comparative Analysis of the United States, Canada, Germany and the European Union

Lobbying is central to the democratic process. Yet, only four political systems have lobbying regulations: the United States, Canada, Germany and the EU (most particularly, the European Parliament). Despite the many works offering individual country analysis of lobbying legislation, a twofold void exists in the literature. Firstly, no study has offered a comparative analysis classifying the laws in these four political systems, which would improve understanding of the different regulatory environments. Secondly, few studies have analysed the views of key agents—politicians, lobbyists and regulators—and how these compare and contrast across regulatory environments.
We firstly utilise an index measuring how strong the regulations are in each of the systems, and develop a classification scheme for the different 'ideal' types of regulatory environment. Secondly, we measure the opinions of political actors, interest groups and regulators in all four systems (through questionnaires and elite interviews) and see what correlations, if any, exist between the different ideal types of system and their opinions. The conclusion highlights our findings, and the lessons that can be used by policy-makers in systems without lobbying legislation.     

治安调解若干问题研究

治安调解是公安机关依法对因民间纠纷违反治安管理行为的非处罚性处理方法。究竟需要怎样的治安调解制度,应当将其置于整个纠纷解决机制之中加以考察。依据《中华人民共和国治安管理处罚法》第9条关于治安调解的原则性规定,治安调解适用的情形主要在该法第43条和第49条规定调整的范围内。治安案件不适用“谁主张,谁举证”的原则,当事人只需表明自己的权益受损,证明责任由警察担当。但不应将公安机关的证明责任绝对化,尤其是在当事人因民间纠纷提起治安处罚程序,要求公安机关追究对方责任的情形下,当事人应当对证明自己主张的案件事实承担一定的证明责任。治安调解的程序适用一方面应便于公安机关掌握纠纷事实真相,明确双方责任,提出处理建议;另一方面还须为调解不成或者不履行协议的治安处罚服务。