涉外遗嘱继承法律适用立法研究

传统意义上,继承的目的是为了抚养被继承人的亲属,防止继承人因为被继承人的去世而失去基本生活保障,其体现的是一种家庭伦理关系。为了维持这种伦理关系,各国法律一般都对遗嘱继承施加了较为苛刻的条件。然而,随着社会的进步,个人自由被提到一个新的高度,家庭伦理观念逐渐衰落,当事人意思自治逐步进入涉外遗嘱继承领域。我国立法中还没有涉外遗嘱继承法律适用的规定,应当借鉴国外经验,将当事人意思自治引入涉外遗嘱继承法律适用的立法中。同时,在当事人没有选择法律时,也不必一味地强调适用法院地法保护公共秩序,而应该严格限制公共秩序保留的运用。     

From the Offences Against the Person Act 1861 to the Serious Crime Act 2015 - the development of the law relating to female genital mutilation in England and Wales

Female genital mutilation (FGM) is defined by the World Health Organization to include: ‘procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons’. It is a practice that affects many females in England and Wales and as a result, specific legislation has been introduced to tackle it. This paper explores the development of the criminal and civil law relating to FGM in England and Wales. It discusses the advantages and disadvantages of the approaches adopted and considers whether they are effective. The paper concludes that the creation of a specific criminal offence has proved to be ineffectual; that the introduction of civil FGM protection orders is a more appropriate and effective means of combatting the practice and that legal measures need to be supplemented by non-legal interventions.     

Legislative Constraints on Executive Unilateralism in Separation of Powers Systems

Can legislatures effectively check unilateral executive power? One prominent and counterintuitive finding in previous work is that executives pursue unilateralism less often under divided government. While executives see greater potential policy gains through unilateral action during divided government, we argue that their likelihood of acting unilaterally depends on an opposed legislature's ability to retaliate. When polarization is high and majorities are marginal, executives are freer to act unilaterally given the difficulties legislatures have in statutorily responding. Unilateralism is also more likely when facing opposition if legislatures lack nonstatutory means of punishment, such as regulatory review. In the largest analysis of gubernatorial executive unilateralism to date, we use a new data set of 24,232 executive orders in the 50 American states between 1993 and 2013 to evaluate this argument and find strong support for its predictions. These results provide insights into how legislative policymaking capacity can influence the functioning of separation of powers systems.     

Fifty Years After the 1967 Crime Commission Report

In the 50 years since the U.S. President's Commission on Law Enforcement and Administration of Justice under President Johnson issued its report, feminist activism and both feminist and mainstream research have resulted in defining domestic violence (DV) as a social problem. This awareness of the seriousness and expansiveness of DV has spurred the development of unprecedented programs and policies. Although DV policing changes have been significant, so too have been the development of and changes in safehouses, no‐drop court policies, domestic violence courts, community‐coordinated responses, and batterer intervention programs. In this article, we review the nonpolice responses to DV cases and outcomes and provide recommendations. First, research and policies need to more regularly be aimed at addressing victims’ safety and their diverse needs and experiences. Second, assessments should include addressing the processing of these cases through the impact of responses by individual community and criminal legal system actors (e.g., victim advocates, police, prosecutors, and judges) to victims and offenders.     

论市民社会与继承制度的走向

市民社会的成长决定了继承制度的演进。本文旨在透过市民社会的历史变迁及其与政治国家的互动关系,发现现代继承制度为影印市民社会与政治国家的格局所应考虑的问题。文章第一部分,从继承的目的、继承的客体、继承的主体以及继承当事人的意愿等四个方面,分析了古代市民社会的不成熟性;第二部分,分别从古代社会家(族)内部和家(族)之间寻找市民社会的生长点,揭示继承制度随着市民社会的发展成熟而演进的过程;第三部分,从与第一部分相对应的四个方面,分析市民社会与政治国家的并立与互动关系,提出我国继承制度中存在的一些问题和现代继承制度的走向。     

亲密与伤害:美国家庭暴力中受害妇女的法律保护

家庭暴力是与婚姻关系中的文化观念和权利分配不公平息息相关的。幸运的是,在妇女运动的推动下,世界开始变化。在美国,反对家庭暴力的呼声和行动日益增强,为家庭暴力的受害妇女提供救济的途径越来越多。社会各界开始关注家庭暴力问题,并给妇女权益保护运动提供了强有力的支持。政府也开始意识到家庭暴力问题的严重,通过立法的方式对施暴者严厉制裁,从而维护受害妇女的合法权益。     

Genealogies of the colonial present: the rediscovery of the local in conflict management interventions in Mindanao,the Southern Philippines

This article argues that the current attention on indigenous institutions, and the ‘local’ more generally, in peace-building and conflict management bears similarities with colonial and post-colonial attempts at pacifying volatile borderlands. This will be illustrated through a historical case study of the Southern Philippine island of Mindanao, which has witnessed a recurring Muslim insurgency throughout different phases of its history. In an attempt to cope with these violent uprisings, both the American colonial authorities and the authoritarian Marcos regime, as well as a range of contemporary international NGOs, have endorsed traditional institutional avenues of informal mediation. The argument for the deployment of the local in state reconstruction and peace-building as propagated in current literature on hybrid peace should therefore be reframed as a reinvention of colonial governance techniques of indirect rule. It will hereby also be argued that the underlying rationale for this current deployment of local/traditional institutions of mediation and governance confirms and builds further upon a colonial framing of the non-Western other as incapable of modern, liberal democracy.     

Responding to the ISIS threat: extending coercive non-trial-based measures in the Counter-Terrorism and Security Act 2015

This article evaluates certain recent changes in counter-terror law and policy in response to rising threats to security in recent years, often associated with the activities of supporters of ISIS or similar groups, or suspected supporters. A range of security concerns and policy strands led to the introduction of a number of new counter-terror measures in the Counter-Terrorism and Security Act 2015. This article does not set out to provide a comprehensive examination of the Act's provisions, but covers its extension of coercive non-trial-based measures aimed at terrorist suspects generally, but particularly at persons who have gone abroad to support ISIS or may seek to do so: the introduction of Temporary Exclusion Orders, excluding persons suspected of travelling to Syria to fight with ISIS from the UK temporarily, travel restrictions, and the strengthening of TPIMs (a form of ‘light touch’ control order). This article considers, in the aftermath of the November 2015 Paris massacre, the roles to be played by the new and planned measures in terms of increasing security, and the extent to which their design has also been influenced by the ECHR, taking account of relevant jurisprudence under the Human Rights Act and at Strasbourg.     

论我国继承权丧失制度的完善

继承权丧失制度是继承法中重要制度,直接关系继承权丧失人和其他继承人的切身利益,而且对于维护和睦文明的家庭关系和社会和谐具有重要作用。但是我国《继承法》中关于此制度尚有许多值得商榷之处,对比国外立法例,检讨我国现行立法,以期构建完善的继承权丧失制度。     

知识产权犯罪的类型化探寻

我国《刑法》规定了知识产权犯罪,但是有些没有侵犯知识产权的行为也被定为知识产权犯罪,从而引起不必要的纷争,甚至引起司法实务界对知识产权犯罪理解的混乱。在未来的《刑法》修订时应该作如下调整：首先,把知识产权犯罪从破坏市场经济秩序罪的阴影下解放出来,作为单独的一类犯罪来规定;其次,在知识产权犯罪内部立法中,应把知识产权犯罪分为侵犯知识产权的犯罪与违反知识产权管理秩序的犯罪。