保险法中的疑义利益解释原则

作为保险合同解释中的一项特殊原则,疑义利益解释原则的适用对于削弱保险人在合同中的优势地位以及保护被保险人的利益具有极其重要的作用。但在该原则的适用过程中,学者们对其合理性不断提出质疑,因此,有必要对该原则之正当性进行分析检讨。     

Social Work and the Security Issue in the Netherlands and Belgium

Over the past years security has become a central issue in political discussions both in the Netherlands and Belgium. This has led to the setting of new governmental schemes in urban areas that rely upon the commitment of social workers to a large extent. Besides that, a number of new professions linked to social intervention have appeared. The purpose of this article is to analyse the emergence of security as an issue and the effects of the new governmental schemes in the field of social work, and to compare the political and social backgrounds, how security is dealt with and the effects on social work in Belgium and the Netherlands. The general assumption is that the practice of social professions tends to a new balance between change and control, the two usual poles of social work, at the expense of emancipatory practices towards marginalised people. In other words, it is wondered whether the action of social workers is to put in place a system of control and risk prevention as a mix of social work and people policing. The article shows that the development in this direction in the two countries is similar, in spite of significant background differences.     

赠与合同的局限及完善

《合同法》第186条规定了赠与合同的任意撤销权制度，学术界对赠与合同任意撤销权的理论基础及其与《合同法》第189条之冲突等问题尚存在较大争议，文章就赠与合同的局限性等问题进行粗浅的分析，并提出相应的立法完善建议。     

Recrafting the national imaginary and the new “vanguardism”

An opportunity exists to assess the limitations in building long-term peace in post-conflict states, particularly given the extent to which negotiated settlements incorporate demands for democratic mechanisms. By assessing how post-conflict governments construct new majorities through policy tools as well as assessing how they are constrained by the structural realities of negotiated settlements, we gain some purchase on the reasons why some post-conflict state projects succeed while others fail. This has potentially transformative implications for our understanding of how social contracts, and their attendant issues of consent, dissent, and legitimacy, operate in the modern world and the ways they impact such critical discussions as democratic transition, post-conflict reconciliation, and nation-building. We use the case of post-apartheid South Africa to analyse how post-conflict states are limited in terms of forging social contracts among citizens and between citizens and governments. Of specific interest is the way that post-conflict social contracting compels nation-builders to eschew the uncertainties of viable electoral democracy in favour of dominant party regimes or electoral authoritarianism. We suggest that this tension is less a result of pecuniary interest on the part of nation-builders and more a consequence of the imperfections of the modern social contracting process.     

Unwanted cohabitation agreements

Given the predominant role in American law of cohabitation agreements in protecting cohabitants, this Article presents an informal study that measured attitudes toward such agreements. The results confirm the literature findings that people generally are not inclined to want cohabitation agreements upon cohabitation. Further studies might explore the reasons for the unpopularity of cohabitation agreements and the ways to improve the protection of cohabitants, and this Article offers potential considerations.     

设立中公司独立性问题探讨

2011年颁布实施的《最高人民法院关于适用〈中国人民共和国公司法〉若干问题的规定(三)》(以下简称《公司法解释(三)》)第1条至第5条对公司设立阶段发生的债权债务做出了规定,填补了《公司法》立法的不足。司法解释的出台使得债权人的利益得到最大限度的保护,有利于交易安全的维护。但是对于设立中公司的地位,司法解释并没有给出定义,学界对此争论不下,赋予设立中公司形式上独立的法律地位,有利于维护设立中公司自身的合法独立利益。     

Fisher Body revisited: Supply contracts and vertical integration

The vertical integration of Fisher Body by General Motors has been a leading example in both the transaction-cost theory and the property-rights theory of the firm. The present paper makes the following contributions. First, we show how a simple extension of the property-rights theory of the firm (which allows for contractible trade) is able to rationalize the observed ownership arrangements, supply contracts, and investment behavior both before and after integration. Second, the model lends support to Klein’s (2000) view that an increase in demand for closed automobile bodies was pivotal for vertical integration. JEL Classification L22 · L24 · L14 · K12     

论劳务合同的类型

劳务合同以雇佣合同、委托合同和承揽合同为三种基础类型,三种合同的区分具有合同法和侵权行为法的双重意义,区分的标准自罗马法以来有了很大的变化。我国《合同法》上,三者的区分标准虽明确,但尚不足以解决问题,对于模糊领域中的某具体合同的类型归属,需研究其不同类型归属的法律效果,依据价值评判以最终确定。     

Incomplete Contracts, Intellectual Property and Institutional Complementarities

In the New Property Rights model ownership of assets should be assigned to the most capable agents. While, in a world of incomplete contracts, the application of the model to IPRs provides insights on the nature of their second best allocation, suggesting a direction of causation going from technology to property rights, also the opposite direction of causation may arise: owners of IPRs tend to develop more capabilities in the production of new IPRs. For some firms and countries, a virtuous complementarity between the development of IPRs and skills arises. For others, the disincentive effect of the exclusion from intellectual property has more damaging consequences than the lack of access to material capital.     

Relational Contracts, Repeated Interaction and Contract Modification

The paper uses the theory of repeated games to model relational contracts. It demonstrates that there are cases where it is better to leave a long term contract more incomplete than it needs to be in order to secure optimal renegotiation at every point. In this particular class of contract problems, it may be optimal to allow contract modification even in cases where the buyer could have put the modified terms into the original contract.