美国青少年法院的形成与发展

美国的青少年法院在预防青少年犯罪,打击和保护美国青少年群体中起到了重要作用,具有重要意义。文章将系列介绍美国从十九世纪起,至二十世纪九十年代,青少年法院建立及发展的情况,并通过经典案例分析了早期青少年法院存在的司法程序问题,以及各时期美国涉及有关打击青少年犯罪政策变化。     

论地役权的适用范围

目前国内学者将地役权适用范围界定为不动产利用之调和。但笔者在对罗马法以及各国立法实证考察的基础上认为 ,地役权适用范围绝不仅限于此 ,而可依当事人的目的调整各种物之利用形式 ,并提出若干实例。     

Parliamentary Scrutiny of Delegated Legislation: Lessons from Comparative Experience

Recent years have seen an increase in the use of delegated legislation to implement major policy decisions in the UK. This has exacerbated the longstanding criticism that Westminster lacks sufficiently robust procedures for parliamentary scrutiny of delegated legislation. However, the UK is not the only country to use delegated legislation, or to face the challenge of ensuring it receives adequate parliamentary scrutiny. This article therefore places the UK system in wider context by comparing it to six other national parliaments. We highlight one comparative strength of the UK system, two weaknesses it shares with the other six cases, and one way in which the UK might learn lessons from elsewhere. Overall, our evidence suggests that no one country offers a clear template for more rigorous parliamentary scrutiny of delegated legislation. Successful reform of the UK's system is likely to require creative procedural innovation.     

中国近代判例制度及其特征

中国近代判例在文本体裁、汇编体例与适用方法上,较之于英美式判例和大陆式判例存在着很大的差别。它完全依附于成文法,并有着明显的成文化倾向。这一特点是对明清条例制度的继承和回归。这一判例制度可以作为建立当代中国判例制度的参考。     

知识产权惩罚性赔偿制度的司法适用

随着修改后的商标法正式确立相关规则,知识产权侵权惩罚性赔偿的具体适用及其对司法实践的影响越来越受到关注。惩罚性赔偿应以故意侵权为适用条件,情节严重应理解为判断赔偿数额多少的条件。惩罚性赔偿与补偿性赔偿是倍比关系,《商标法》第63条规定的法定赔偿已具有惩罚性赔偿的性质,二者不可并用。法官在审判中不可主动适用惩罚性赔偿,但若原告笼统提出法定赔偿请求,法官也需进行惩罚性的审查。惩罚性理念的引入可望完善法定赔偿制度,为司法实践带来革新。     

商的正当性与儒的新出路：余英时对韦伯论题的回应

揭示现代理性资本主义精神的宗教起源和追索现代理性资本主义所承载的伦理精神,乃韦伯论题的一体两面,而重塑现代资本主义的伦理精神则是潜藏在韦伯竭力避免“价值判断和信仰判断”的科学话语之下的一个意图。余英时对“韦伯论题”的承接,一方面纠正了韦伯在一定程度上对于中国宗教特别是对于近世儒家工作伦理的误读;另一方面他试图得出“恰好与韦伯相反”的结论,即中国近世的宗教伦理,尤其是儒家伦理,能够“为中国资本主义的出现提供精神的基础”的努力,则并不完全成功。而余英时对“韦伯论题”论述方向的转换,则通过对明清儒学、儒士之“转向”的考察分析,表达了一个与韦伯不一样的关怀,那就是,在新的政治社会生态下,何处是儒学、儒士,特别是作为儒士后代传人的现代知识人新的出路、新的安身立命之所。     

The Negligence Standard: Political Not Metaphysical

This contribution distinguishes two kinds of responsibility: the basic (or ‘metaphysical’) kind that we all inescapably have as functioning human beings; and the assignable (or ‘political’) kind that connects each of us with some particular tasks, and not with others. Having explored some differences between the two, and in particular the role of law's authority in connection with each, the discussion turns to the negligence standard, especially but not only as it figures in tort law. Recently, several philosophers have attempted to find a role for the negligence standard in the metaphysics of basic responsibility. This contribution resists that development and stands up for the traditional lawyer's view that the negligence standard belongs to the pliable politics of assignable responsibility. Basic responsibility, it is argued, is fundamentally strict.     

Testing the Hollowing-Out Thesis

In recent years, many economists have argued that governments are discarding pegged exchange rates in favor of alternative exchange rate regimes such as monetary unions and currency boards on the one hand, or floating exchange rates on the other. Capital mobility, such economists argue, has made pegged exchange rates costly to maintain for long periods, and thus the pegging option is being “hollowed-out.” Few, however, have tried to present evidence that capital mobility has a direct effect on exchange rate regime choices. I present two sets of tests using different measures of capital mobility that provide qualified confirmation that developing countries peg less as capital mobility rises. These tests indicate that direct measures of capital mobility have some correlation with de facto exchange rate regimes but not with de jure exchange rate regimes. Capital flows, a consequence of capital mobility, may have a direct effect on the choices of both de jure and de facto regimes. Governments do not make changes in their declared exchange rate policies in rational anticipation of the growing costs of pegging associated with increasing capital mobility. Rather, governments normally adapt their declared exchange rate policies after capital flows have increased and actual exchange rates have become more difficult to manage. The tests also indicate that hollowing-out has not only been the result of systemic factors such as increasing capital mobility and capital flows, but also due to domestic factors such as growing public sector indebtedness and the spread of democracy.     

RETHINKING CHINESE EVIDENCE THEORIES AND RECONSTRUCTING SYSTEM OF EVIDENCE: “A THREAD FOR THE PEARLS OF CHINESE EVIDENCE”

This article analyses Chinese traditional evidence theories that have evolved over a long period of time, to explore which theory, between objectivity and relevancy, best represents the basic attribute and logical thread of evidence. These theories are considered in the context of issues arising in evidential adjudication, including: the “Mirror of Evidence,” truth, the probability of proof standard, the choice between a notion of pursuing 100-percent certainty in adjudication and that wrongful acquittals are better than wrongful convictions, and the statutory proof doctrine comparedwith the system of free proof. Finally, the article presents the framework of and methods for drafting provisions of procedural evidence of the People’s Court.