民事诉讼非法证据的排除

民事诉讼非法证据排除规则在适用中有三个程序问题需要解决——依当事人申请排除还是由法官依职权排除,合法性发生争议时证明责任由哪一方当事人负担,法院在诉讼中的哪个阶段做出排除与否的决定。民事诉讼的根本目的是在发现真实的基础上适用实体法规则解决纠纷,为实现此根本目的,同时也为了与诉讼效率、程序安定的目标相协调,宜设置当事人对合法性提出质疑后法院再来审查证据是否合法取得,合法性发生争议时由异议者对收集证据的非法性负证明责任,排除非法证据的决定在对各种相关权益和因素进行权衡后的判决阶段做出的程序规则。应当采用利益衡量的方法决定是否排除非法证据,并据此对非法证据排除规则进行重构。     

The return of censitary suffrage? The effects of automatic voter registration and voluntary voting in Chile

How does a change from a compulsory voting system to a voluntary one affect election turnout? It is often argued that an electoral regime under which voting is voluntary reproduces class bias or, in other words, that the rich vote more than the poor. This bias is corrected either by the introduction of compulsory voting or the existence of strong left-wing parties and trade unions able to mobilize poorer segments of the population. In this article, we put forward an alternative argument. We assert that when voting is voluntary, class bias can disappear if an election is very competitive since this affects both turnout and its socio-economic composition. To evaluate this argument, we examine the case of Chile's 2012 municipal election when voting was voluntary for the first time, instead of compulsory.     

Unpaid debt to society: exploring how ex-felons view restrictions on voting rights after the completion of their sentence

The Supreme Court has asserted that ex-felon disenfranchisement is not a punishment. Regardless of the Court’s interpretation, however, many ex-felons perceive restrictions on voting rights as punitive. Therefore, felony disenfranchisement should be examined in terms of criminological theories of sanctions. In Florida, ex-felons are prevented from voting after the completion of their sentence until they go through a lengthy and in some cases impossible process of rights restoration. The consequences of this policy have resulted in hundreds of thousands of Floridians who have completed their sentences, but are unable to vote. This research employs 54 semi-structured interviews with men convicted of felonies in Florida who have lost the right to vote, but have completed their sentencing obligations to the state. Our purpose is to better understand the meaning former offenders attribute to the loss of their civil rights. Findings from this study suggest that many former offenders view this type of punishment as illegitimate and are angered by both the complex system of restoration and the inability to participate in democratic life. Other ex-offenders are embarrassed or fatalistic about their loss of rights. The implications for criminal justice policies and practices are discussed.     

刑事侦查自由裁量论纲

当今中国的刑事侦查实践,自由裁量权的行使存在泛化、滥用等不规范现象,在实践中造成极其恶劣的后果,引发社会公众的广泛谴责.相反,理论界对于这一问题尚缺乏深入透彻的研究,实属遗憾.为保障刑事侦查机关正确行使权力,避免权力行使越界,有必要从理论层面对刑事侦查自由裁量的基本理论问题进行阐释,并且剖析中国刑事侦查自由裁量的突出问题,同时提出完善的基本对策.     

人体器官移植中生命权法律保护的探讨

生命权是一切权利之根本,属于基本人权之范畴。作为挽救病人生命的重要方式,人体器官移植应恪守尊重生命权的原则。因此,对人体器官捐献、摘取和器官捐献者生命状态的判定应遵循严格程序,器官摘取和移植中的相关法律责任要明确规定。我国人体器官移植方面的法律法规,也要根据上述要求,加以完善。     

论我国加处罚款制度的立法完善

我国立法对加处罚款的制度规定尚显稀疏,这已然成加处罚款遭受现实冷遇的重要原因。为了确保加处罚款的作用得以有效发挥,立法在肯定加处罚款的数额应当受限的基础上,还应当对加处罚款在非诉执行中能否申请人民法院强制执行、起算时间如何计算以及执行程序等问题做出进一步的规定。     

Political opposition and the challenges of a dominant party system: The democratic alliance in South Africa

The African National Congress enjoys a position of leviathan-like dominance in South Africa. In official opposition stands the Democratic Alliance whose support has risen considerably since South Africa's first democratic elections in 1994. The white electorate strongly favours the party over its main rival, the Freedom Front Plus. The coloured community in the Western Cape has also given the Democratic Alliance its support. Although the party has done well in attracting the support of ethnic minority groups it has not been so successful among the African electorate. In accounting for the success of the Democratic Alliance this article considers three themes: firstly, the reasons why white voters, especially Afrikaners, shifted their support to the party; secondly, the brand of South African patriotism now used by the party to promote the primacy of a non-racial South African identity; and finally, the party's understanding of political opposition and the obstacles that exist to it making further electoral progress.     

Testing proximity versus directional voting using experiments

A long-running debate about how voters use issues to evaluate candidates pits the proximity theory of voting against directional theory. Using surveys, both sides of the debate have found support for their preferred theory, but disagreement remains because of differing ways of analyzing the data. Lewis and King (2000) point out that these researchers make assumptions that bias results in favor of their theory. To avoid these difficulties, our approach creates fictitious candidates with controlled positions, presents these candidates to randomly-assigned subjects, and examines the relationship between subjects’ evaluations of these candidates and their ideological beliefs as a neutral test of proximity and directional theory. Our results provide reasonably strong support for proximity theory but little for directional theory.     

不准离婚判决的不当性及诉讼程序的改革

作为婚姻法律关系基础的婚姻感情具有特殊性。原告一方在起诉离婚时要证明感情破裂有一定的困难。人民法院禁止离婚判决存在一定的不当性。应对当前的离婚审判制度和远期的离婚诉讼程序进行相应的改革。     

Edwards v Chesterfield Royal Hospital – Parliamentary Intention and Damages Caused by Maladministration of a Contractual Dismissal Procedure

In Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58 [2012] 2 W.L.R. 55 the Supreme Court addressed the following question: is an employee, who can establish that (a) if a contractual disciplinary process had been correctly administered he would have been exonerated, and (b) thereafter employed until retirement, able to sue for loss of the earnings that he would have acquired until retirement? Three members of the Supreme Court held that such a remedy was not reconcilable with the enactment, originally in the Industrial Relations Act 1971, of a statutory unfair dismissals protection regime. It was Parliament's intention that an employee should not be able to outmanoeuvre the statute's compensation limitation rules by deploying a superior common law remedy. This note considers that reading of Parliament's intention.