The Planning and Implementation of the Rule of Law Mission of the European Union in Kosovo

Abstract

This article evaluates the planning process and initial implementation of the Rule of Law Mission of the European Union in Kosovo (EULEX). It shows that the original intention was to have a smaller presence than the predecessor United Nations Mission in Kosovo (UNMIK). Yet as a result of a lack of settlement on the international status of Kosovo, the European Union ended up with a robust mandate and it was unable to make a fresh start in order to distinguish itself from the United Nations. EULEX has, nonetheless, successfully established itself, but it remains too early for a final judgment.     

执法办案风险评估预警工作的困境与对策研究

上海检察机关自2011年开展执法办案风险评估预警工作。从风险评估、风险预警、风险处置三个方面对该项工作的现状作出分析,对实践中存在的困境进行研究,并提出相应的对策。     

法治视域下的社会诚信建设

在中国当前社会转型时期,诚信缺失已经成为一个严重的社会问题。诚信与法治具有内在的统一性,诚信应建立在法治的基础之上,必须依靠法律制度作保障。要高度重视法治建设在社会诚信建设中的积极作用,从立法、司法、执法、普法、监督等各个环节、各个层面推动社会诚信建设。     

我国地方行政程序立法的新发展

近年来,我国多个地方政府制定了行政程序规则,这在学界引起了较大反响和争鸣。这些地方行政程序立法的主要内容包括立法目的、原则体系、行政程序的类型、公众参与和信息公开、立法架构、制度创新等方面,其主要特点是回应性、创新性、民主性、程序实体兼顾性。我国地方行政程序立法仍有诸多后续课题需要研究。     

我国精神障碍者非自愿医疗的法律透视——以精神卫生法的出台为背景

随着精神卫生法的颁布,我国非自愿医疗法律制度初步建立,为良莠不齐的地方性立法提供了统一的依据,平等地保护了精神障碍者的合法权益。但该法律制度仍存在法律原则中缺乏明确的无病推定规定、非自愿医疗的分类标准单一、"去行政化"理念未能贯彻到位、精神障碍者与监护人利益冲突悬而未决、非自愿医疗的程序规范力度不够、精神卫生法与刑事诉讼法衔接不畅等诸多问题。为妥善解决这些问题,需要在人文主义的价值理念指引下进行完善,应当依据是否触犯刑法分类处理、畅通非自愿医疗的司法救济渠道、加强监护制度与非自愿医疗制度的耦合、细化非自愿医疗的出入院程序、强化无利益关系第三方的监督机制。     

刑事诉讼法中及时性原则刍议

及时性原则作为联合国刑事司法准则之一,已成为各国指导诉讼效率和期间的基本准则,我国先后两次修订《刑事诉讼法》对及时性原则均有所体现,但未予以实质性加强,一些问题仍亟待解决。     

“Free That Brown Eyed Man”: The United States v. Chuck Berry

As 1959 turned into 1960, amidst escalating national tension over both the growing Civil Rights movement and the controversial popularity of rock ‘n’ roll music, Chuck Berry was charged with transporting a teenage girl across state lines with the intent to engage in “immoral practices.” The public scandal that ensued fed into conservative fears that rock ‘n’ roll encouraged the racial integration of America’s youth, both through the airwaves and at live venues. The federal officials involved in Berry’s prosecution saw him in particular and rock ‘n’ roll more generally as posing the same main threats to the racial status quo as those posed by state-enforced integration: the breakdown of racialized spaces and the erosion of taboos against interracial sex. This piece situates Berry’s music and his 1960 trial and conviction within legal and musical histories shaped by the sexual as well as spatial mandates of white supremacy. Courtroom debate from the trial demonstrates how the perceived unity of gendered racial identity and individual intent dictates the attorneys’ interpretations of both Berry and the Apache teenage runaway on whose behalf the state is intervening; this racialization of sexual intent caters to the state’s investment in jointly regulating the sexuality and mobility of racialized subjects. Portrayed at various points in the proceedings as the lawless foil of a racially segregated Missouri, the Southwest, where Berry and his band were touring when the alleged crimes took place, becomes a racialized space in which delinquency and sexual deviance result from unregulated contact between nonwhite populations.     

The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?

If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Société Générale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the elective theory also applies in the context of a wrongful repudiation of the employment contract by express dismissal or resignation. This note examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.     

Rationalism in Public Law

Rationalism is ‘the stylistic criterion of all respectable politics’. So lamented political philosopher Michael Oakeshott in a series of essays published in the 1940s and 1950s. Rationalism, for Oakeshott, is shorthand for a propensity to prioritise the universal over the local, the uniform over the particular and, ultimately, principle over practice. It culminates in the triumph of abstract principles over practical knowledge in a manner that erodes our ability to engage in political activity. Although Oakeshott's critique was made with the practice and study of politics in mind, it has a wider relevance. Rationalism, as we see it, has become the dominant style in public law. We draw upon Oakeshott's critique to elucidate the risks associated with rationalism in public law and call for a renewed engagement with practical knowledge in the study of the constitution.