审查起诉阶段刑事和解制度实施之困境与对策——以新刑诉法修改为背景

在理论论证与实践探索的双重支撑下,与恢复正义价值暗合的当事人和解制度终在新刑诉法中占得特别程序之席,比之既往的暗中摸索,新刑诉法使和解程序行之有依,操之有序,但法律规定确显粗糙,和解双方当事人对制度不解甚至产生误解,实施中与检察机关内部旧有考核制度冲突等问题亦渐渐浮现。为此,检察机关须先内而外,完善案件审查,加强和解监督,改革考核指标,方能为此制度成长提供广阔之天地。     

企业国家出资人代表类型的实态及其优化

国家出资人对出资企业委派其代表的类型应当符合现代企业法制的要求。现行企业国家出资人代表的设置却不断突破法律的界限,通过行政立法打补丁的方式叠加设置其在企业中的代表,导致企业组织成本增加并引起治理机制的紊乱。企业国家出资人代表的设置应当遵从企业法基本原理,以利建立符合现代企业制度的治理机制。     

真正身份犯中无身份共同正犯的处罚依据--兼论贪污罪的司法适用问题

身份犯中,纯正的身份犯其身份具有构成要件要素的性质,如贪污罪中的国家工作人员身份。非具有身份者不能单独构成犯罪,但刑法规定可以与有身份者构成共同正犯,但其处罚依据在学理上存在疑问。处罚非身份共同正犯的依据并不在于形式的不法与有责身份分离说（结果无价值论）,也不能从基础单薄的法律拟制说中找寻正当依据。承认真正身份犯中非身份行为人责任与具有身份的行为人责任具有连带性质,是解决此类身份犯处罚依据的可行理论途径,此解释路径也可纠正相关身份犯罪非身份共同正犯的司法适用中的错误做法。     

Beyond the Blame Game: Political Strategies for State Funding Reform

There is growing concern that intergovernmental financial relations in the Australian federation are becoming increasingly acrimonious and dysfunctional. This paper argues that it is necessary to analyse State funding as a whole, including the critical relationship between State‐level taxation and its reform and the broader Commonwealth Grants Commission regime, if we are to establish a system of State funding which is financially sustainable, promotes economic efficiency and is broadly congruent with established norms of Australian federalism. Above all, based on international experience, we argue Commonwealth leadership is required to achieve this goal. We conclude with a case study concerning resource taxation which demonstrates how the Commonwealth could provide leadership using a ‘bundled’ approach to policy reform. It is argued that such an approach has the potential to alleviate wider intergovernmental conflicts which currently afflict Australian federalism.     

The meaning of war: A heterodox perspective

This article raises serious methodological, conceptual, historical and empirical questions concerning the notion of China as the next world superpower. The most dynamic sector of growth is the private sector, but within that sector foreign capital is growing the fastest, especially in strategic export sectors and increasingly in finance and the domestic market. Historically China has passed from a semi-colony to a collectivist state to a state capitalist economy toward a neo-liberal economy which contains the seeds for the re-emergence of a foreign capitalist-dominated economy. Contradictions in the current neo-liberal economy are leading to increased class struggle especially in the countryside and increasing tension between the super-rich Chinese bourgeois allied to foreign capital and ‘national statist’ sectors of the governing class. The efforts by the new leadership to ameliorate the contradiction through increased social spending are too little and too late.     

Agile small state agency: heuristic plays and flexible national identity markers in Finnish foreign policy

Studies of small state foreign policy tend to draw relatively bleak conclusions when it comes to small state agency. However, I will examine alternative and more positive modalities of small state agency. One such modality is agility, the strategic maneuverability to take advantage of a chancy environment. Besides leading to dangerous rigidities and biases, particular types of foreign policy imageries and heuristics may also facilitate experimental and agile agency. In studying this possibility, Finland is chosen as an illustrative case because historically Finland has faced a particularly constraining geopolitical context and because it has managed to adapt to multiple upheavals and to different geopolitical contexts. The emphasis is on the heuristic dynamics inherent in Finnish foreign policy culture that have allowed it to actively meet the emerging challenges. Instead of taking a detailed historical approach, I seek to understand the role of the relatively flexible and combinable embodied cultural models, i.e. thick images. They allow for agency-related experimentation that may bring added value that allows Finland to exceed the constraints of the brute geopolitical position. After reviewing multiple embodied foreign policy images, I will use them to analyse New Year's speeches by the Finnish Presidents Ahtisaari and Halonen in order to see how the fickle present is made to resonate innovatively with the known, commonplace, and mythical.     

The revenge of the Caucasus: Chechenization and the dual state in Russia

Post-communist development in Russia has been characterized by the development of a dual state in which the constitutional order is balanced by the consolidation of an arbitrary prerogative state. This horizontal dualism has taken root in Russia's regions; and this is accompanied by the establishment of a form of vertical dualism in relations between the regions and the center. Attempts to overcome this form of segmented regionalism under president Vladimir Putin have been undermined by the development of Chechenization, which represents not only the repudiation of dualism in this republic, but threatens to undermine the precarious balance between the constitutional and prerogative states at the federal level as well. Chechenization has its opponents in Moscow as well and its fate is defined by the struggle between the factions at the center. The process of “separatism without secession” is a highly ambiguous one and reflects broader developments in the Russian state as president Dmitry Medvedev seeks to strengthen the constitutional pillar of the dual state.     

Rewriting the “dirty war”: State terrorism reinterpreted by the press in Argentina during the transition to democracy

Abstract

The Argentine press reinterpreted the period of dictatorial military rule (1976–1983) in terms of an interest in the continuity of democratic protections. La Voz del Interior, the newspaper of record in the provincial capital and second largest city of Cordoba, sought to censure, subordinate, and yet reintegrate the military within a democratic institutional ideology. This study uses discourse analysis to characterize 10 elements of a model of coverage of state‐sponsored terrorism: (1) perpetrators, (2) victims, (3) target population, (4) violence and violation, (5) motives or intentions of the perpetrators, (6) fear or terror among the populace, (7) outcomes or changes in the target population, (8) news sources, (9) remedies and projects, (10) and probable responses or appropriated uses by readers or the press. In 1985–1986, when the elected government sought to judge and castigate senior junta commanders, La Voz supported establishment continuity by legitimating societal actors, including the military, even though its members were perceived as having violated basic societal values.     

Managing and controlling HIV/AIDS talk among Ghanaians living with HIV/AIDS

Abstract

This study explored the meanings people attribute to talking about living with HIV/AIDS. Framed by interpersonal and health communication scholarship based on disclosure and the meanings of talk about illness, people living with HIV/AIDS are asked to describe how and why they discussed their health condition with others. Interviews (focus group and one-on-one) were conducted with 120 people living with HIV/AIDS. A grounded theory analysis of the interviews revealed how communication about HIV/AIDS may be particularly meaningful because it is something people feel they can control during what is already a highly stressful and turbulent time. However, attempts to manage communication are challenged by constraints imposed by others, such as unfavourable and unpredictable reactions to disclosure, which ultimately place limits on how people living with HIV/AIDS control information about them.     

Democratization without a State: Democratic Regime-building in Kosovo

This article examines the relationship between democratization and the state with reference to recent political developments in the non-state entity of Kosovo. Existing analyses of the role of the state in democratic transitions provide critical insights into the politics of democratization, but have suffered from a lack of consensus regarding the concept of the state itself. This study distinguishes three separate dimensions of statehood – recognition, capacity and cohesion – and argues that each has separate implications for transition politics. Analysis of democratic political development in Kosovo suggests two conclusions: first, that international recognition of statehood should not be viewed as a prerequisite for democratization, and second, that problems of state capacity or state cohesion present far more fundamental challenges to successful democratic regime change.