20世纪上半叶中国马克思主义者对自由问题的探索——从李大钊到毛泽东

历史必然性与主体能动性的相互关系是20世纪上半叶中国马克思主义者探索自由问题的核心之一。本文在回顾李大钊、陈独秀、瞿秋白、艾思奇以及毛泽东相关论述的基础上,初步总结了中国马克思主义者在解决这一问题时获得的积极理论成果,也尝试着揭示其中包含的某些重要的理论思维教训。     

论民间组织的法治意义

民间组织是公民行使结社权的产物,也是公民社会的组织机制和构成要素。民间组织的形成,对构建法治社会具有重要的法治意义。     

The End of Innocence: Open Justice,Free Speech and Privacy in the Modern Constitution – Khuja (formerly PNM) v Times Newspapers Limited

This case note explores the issue of open justice considered by Khuja (formerly PNM) v Times Newspapers Limited in the Supreme Court and argues that the current law is confused and incoherent. Far from settling the debate, it is suggested that the decision further undermines some of the key assumptions underpinning the current approach, especially in the light of the compelling and humane minority judgment. This leaves the area ripe for reconsideration in general terms. This note challenges many of the formulaic slogans and rhetoric in previous case law as well as suggesting that the meaning of open justice has been lost in current discourse. After summarising the facts, this note sets out the majority and minority judgments, before analysing some of the conceptual difficulties raised – particularly those of open justice, privacy, presumption of innocence and freedom of speech.     

Libel: Its Purpose and Reform

Discussion of libel often fails to define defamation law's purpose and thus properly to assess its value. This article argues that defamation's purpose relates to fundamental human interests in sociality, directly linked to important aspects of human health and well‐being. Protecting such interests is arguably required by the right to private life under ECHR article 8 and should not count as a violation of the right to freedom of speech. Some current reform proposals are criticised as failing to appreciate the importance of protecting sociality. ‘Business’ libel, however, often protects not sociality but purely economic interests. The article therefore argues that the protection of libel law, as opposed to that offered by malicious falsehood and the economic torts, should be withdrawn from purely economic reputation, starting with removing the rights of corporations to sue in defamation, a position compatible with the ECtHR's decision in Karako v Hungary.     

宪法诉讼民主价值的构造

民主作为宪法诉讼机制的价值目标,其实质性内涵可以从两个层面加以界定:其一,工具性的民主价值。这种价值实质上就是传统意义上的多数民主价值,即秩序、法治之价值。其二,目的性的民主价值,即自由之价值。     

论高校学位纠纷的司法审查边界

高校学位纠纷中的司法审查是促进学位立法完善的重要推动力。在司法审查中,程序违法对实体问题认定的影响范围、对校规中学术标准的审查力度以及判决类型的选择适用标准都需要进一步明确,以统一裁判尺度,衔接司法与立法,促进学术评价走向真正的学术自治。在司法审查路径上,为实现权利保护,应建立程序与实体全面审查路径,将程序正当性和程序对实体的影响度纳入司法审查范围,并对学位授予的品行要件和学术要件确立不同的审查原则与例外。在司法审查深度上,为实质化解争议,应将高校对于学位争议事项是否尚存实际的裁量余地作为选择适用行政判决类型的标准,区分有裁量余地的学术标准和外观化的学术标准。     

社会主义核心价值观之自由的四重解读 ——基于马克思主义理论视域

自由是社会主义核心价值观的重要组成部分。在马克思主义理论视域下,社会主义核心价值观中的自由具有四种特性。首先,自由具有现实性。我们所追求的自由不是虚幻的,而是在人的实践活动的现实基础上产生的一种价值追求。其次,自由具有阶段性。我们既不能用未来社会的价值观念来衡量当前社会主义核心价值观中的自由,也不能将社会主义核心价值观等同于共产主义社会的自由观。再次,自由具有人民性。社会主义核心价值观所提出的自由不是一小撮人的自由,而是广大人民群众的自由。最后,自由是共性和个性的统一。既要看到自由在各个国家的不同发展阶段的特殊性,又要把握作为全人类共同价值的自由的普遍性。同时,要认清西方国家提出的"普世价值"观的真面目,不能将二者混淆。     

对国际贸易法中绿色贸易壁垒的再认识

绿色贸易壁垒具有双重性质。我们不应只看到它阻碍贸易自由的消极方面,也要看到它存在的合理性,看到它对环境保护、推进可持续发展方面所起的积极作用。绿色贸易壁垒具有国际贸易法上的依据,其在国际争端解决中的实践也有新的发展。我们应在非歧视原则和比例原则的基础上,建立我国的绿色贸易壁垒。     

The liability of website owners for defamation in Israel: A challenge yet to be solved?

From the end of the twentieth century to the present we have witnessed the effects of technology on the way we consume and distribute information. The print media, which in many ways was the natural product of the printing revolution, has given way to the electronic media with websites providing the new “town squares” in which the public discourse is held on political, economic and social issues among others. The Israeli legal system, like the legal systems in other countries, faces a variety of challenges and complex ethical and legal issues when required to regulate (often retrospectively) the manner and processes through which the discourse will be conducted in the virtual “town hall”. In essence, this article focuses on one of the many questions occupying the Israeli legal system and that is whether website owners should be liable in defamation for speech published by third parties on the Internet (through blogs, tweets on Twitter, posts on Facebook,¹ uploaded video clips on YouTube and the like) when no connection exists between the third party and the site owner apart from the fact that the third party has used the website as a platform to publish the offensive speech. The issue of the liability of the website owner has ramifications for the injured party's capacity to institute an action for defamation against the website owner, as often only the latter will be in a position to compensate the injured party (financially) for the offensive speech. The Israeli legal system, which in many ways furnishes a unique and interesting framework for examining the question posed above, as we explain in the body of the article, presents a fascinating example of how the Israeli legislature and the courts have dealt and continue to deal with claims filed against website owners for damage to reputation as a result of speech published by third parties. The article offers a comprehensive review of the status of the right to freedom of speech, anonymity and the right to reputation in Israel, the considerations for and against the imposition of liability on website owners and the latest case law on these questions.     

The Law of Assembly in China

This paper is a comparative study of the law of assembly between the People’s Republic of China (PRC) vs. the Republic of China (ROC). The comparison is achieved by looking at how these two Chinese societies structure police powers during assembly, procession, and demonstration; textually and contextually. Particularly, it investigates into how the forces of history, constitution and politics converge to define and shape the law of assembly. This comparative project is conducted with a view to understand the relative development in police powers in the two Chinese societies, once linked by history and culture and now divided by geography and ideology. In a still larger context, this research rides the tide of comparative policing in exposing and explicating how police in two closed societies, ROC (Confucianism) and PRC (Socialism), come to terms with social protests and political challenges; more broadly how to balance the forces of reform and control with the use of law.