从法院判决的稳定性解读法律运行的不确定性

对同一案件事实,相同的诉讼证据,不同的法官为何会有不同的认定?同类的案件,相近的事实,为什么不同的法院会作出截然相反的判决?这种法律在运行过程中,由于受到各种因素的制约与影响,使立法者的立法初衷在法律实践中发生了各种形式的变异,就是法律运行的不确定性。本文将在现行司法体制的框架下,剖析法律运行中的不确定性因素,探讨降低法律运行不确定性的对策。以期降低各种不确定性因素对司法行为的不当影响,提高司法能力,构筑法治状态下的和谐社会。     

宪法权利如何进入私法——一个“馒头”引发的法学思考

从年初至今互联网上的"馒头"事件引发出的一连串"博弈"效应,在法学领域具有值得深入发掘的理论价值.文章采用一种"抽丝剥茧"的论证方式,对"馒头"案所涉的私法问题、宪法问题以及宪法与私法之间的博弈问题进行深入细致的阐述,对博弈各方的宪法权利、权利冲撞、冲撞协调给予了一一论证.并结合德国经验的启示,提供了符合中国国情的宪法权利冲突解决方案,为宪法权利进入私法提供一种"实证"性的进路.     

略论我国宪法的司法化

宪法作为国家的最高法律,不能仅仅停留在记载历史事实,描述未来社会的行动纲领或者反映国家的政策主张这一层面上,而是要确立司法手段解决社会生活中产生的宪法问题。但我国现行宪法几乎一直被排除在司法领域之外,这不仅与我国社会主义市场经济体制不相适应,而且也与社会主义法治原则不相吻合。因此,必须积极推动我国宪法的司法化进程。     

The National-Bolshevik Party and Arctogaia: two neo-fascist groupuscules in the post-Soviet political space

Mathyl examines two representatives of the Russian groupuscular right-Arctogaia and the National-Bolskevik Party-and their emergence after the collapse of the Soviet system in 1991, in the context of the radicalization of Russian nationalism that took place during the inter-Russian power struggle of 1992-3. The ideological arsenal of these groups consists principally of a politico-historical reconciliation between western (neo-)fascism and authoritarian nationalist Russian and Soviet traditions, in which those traditions are intensified and synthesized into a new kind of 'national Bolshevism'. The success of neo-fascist groupuscules demonstrates how potentially explosive the fascist diagnosis of the status quo can behaving been preserved virtually intact since 1945-when it meets with a new situation of high political instability and is employed in intensive political propaganda, as was the case in post-perestroika Russia. Following the nationalists' military defeat in October 1993, the Russian groupuscular right attempted both to maintain the revolutionary impetus and, through a variety of cultural-political activities, to contribute to the gradual enlargement of the nationalist-imperialist project, thereby demonstrating its close connection to the New Right and its strategy of struggling for cultural hegemony. Since the end of the 1990s, there has been, within the groupuscular right, both an increasingly apparent ideological transfer from East to West, and evidence of the growing influence of national Bolshevism on western third-positionist groups.     

Conceptualising and measuring ‘centrism’ correctly on the Left–Right scale (RILE) - without systematic bias. A general response by MARPOR

The purpose of this response is to point out that claims of undue centrism in the MARPOR data are directly contradicted by its use to correct centrism in other leading policy measures including expert surveys.     

The fascist who would be king: Count Geoffrey Potocki de Montalk

ABSTRACT

Macklin and Fowlie explore the political life of Count Potocki de Montalk, a poet, pagan and pretender to the Polish throne. Count Potocki is perhaps most famous as a minor cause célèbre among London’s literary intelligentsia after his imprisonment for obscene libel in 1932. Historians, when they consider him at all, often discount him, viewing him as little more than a colourful eccentric, a view reinforced by Stephanie de Montalk’s fascinating biography of the man, which appeared in 2001. Eccentric he most certainly was. However, as this article demonstrates, Potocki also played a key role as an enabler of fascist and extreme right-wing activism through the services he provided myriad groups as a printer of their literature, a career that spanned the interwar and post-war periods. The article examines how his preposterous pursuit of the Polish Crown, coupled with the innate elitism this engendered, led him to reject egalitarianism and democracy and embrace fascism. While the Spanish Civil War saw an outpouring of literature from his literary contemporaries in support of the Spanish Republic, Potocki responded by establishing The Right Review as a mouthpiece for his own personal mélange of monarchism and fascism. Utilizing newly released security service files combined with archival research in the newly deposited Searchlight archive at Northampton University, this article pays closer attention to the political side of Potocki’s activities than has hitherto been the case, particularly his wartime publishing activities. This includes his anti-Soviet pamphlet on the Katyn massacre, which caused great vexation in government circles for fear of the harm Potocki’s (correct) accusations might do to relations with Britain’s crucial wartime ally. The authors conclude with a detailed examination of the role Potocki played in post-war National Socialist networks, for both personal and political ends, not least of which was his continued efforts to further his claim to the Polish throne, which he never ceased to believe was his by divine right.     

La protección de los derechos fundamentales del deportista en la lucha contra el dopaje. Una visión desde el ordenamiento jurídico español

Doping is addressed in this paper from two different scopes: on one hand, the legal regulations for prevention and repression are studied; on the other hand, the clash between the anti-doping control mechanism and a fundamental right such as the athlete's privacy is noted. We start from the irrefutable fact that “awareness against doping” is practically universal. The enactment of this law was a milestone in the history of the fight against doping in the Spanish regulation. However, the problem arises when the anti-doping legislation worldwide and in Spain, which enables some healthcare professionals and other people involved, to carry out several anti-doping operations that may conflict with the athlete's fundamental right to privacy, all of this in a context of strong media and social impact. For this reason, it is pertinent to raise the issue if one of these operations, such as the duty of permanent localization, is sufficiently justified in terms of protecting the sportsperson's health.     

“The ladder of the law has no top and no bottom”: How therapeutic jurisprudence can give life to international human rights

In the past two decades, therapeutic jurisprudence (TJ) has become one of the most important theoretical approaches to the law. But, there has, as of yet, been puzzlingly little written about the relationship between TJ and international human rights law. To be sure, there has been some preliminary and exploratory work on the relationship between TJ and international law in general, but virtually nothing on its relationship to international human rights law in a mental disability law context. This paper seeks to focus on this lack of consideration, to speculate as to why that might be, and to offer some suggestions as to how to infuse some new vitality and vigor into this important area of law and social policy.     

物权的本质

物权的本质为何,千百年来吸引许多私法学者尝试提出一家之言。然而,大陆法系多数学者执着干物权乃人与物之关系,走入歧途;普通法主流学者把物权看成一束权利,同样是打迷糊仗。本文主张物权（或本文之名词“财产权”）有三种核心效力：对世、排他、追及。任何与物有关之权利若具备三种核心效力,就是物权。财产是人与人间关于物之法律关系之组合,而非人对物之关系。此种财产关系又可分成四种典型：人对国家、人对定限物权人、人对特定人如邻居、人对所有其他人。除了人面对国家徵收高权时外,财产关系都有或强或弱的排他本质;而此关系乃自动生成,此正是对世效力之本意。追及效力虽然有时隐而未显,但在财产权移转时会当然发挥作用。此外,所有权是财产权,但非后者之同义词。所有权（而非物权）才是一束权能。     

Default entitlements in personal data in the proposed Regulation: Informational self-determination off the table … and back on again?

This paper aims to assess the proposed General Data Protection Regulation through the framework of default entitlements in personal data. The notion of default entitlements comes from economic analysis of law and provides new insights into the implications of the data protection reform. While, under the principle of informational self-determination the default entitlements should lie with the individual, the Commission is shown to assign a great deal of default rights to others, including the Information Industry. This article cautions against the possibility of reducing the European system of data protection rooted in the values of individual autonomy and informational self-determination to a mere set of administrative rules channelling the flow of personal data, yet without a clear direction.