无独立请求权第三人制度的内部冲突与制衡

无独立请求权的第三人制度在我国的民事诉讼的理论和实践中存在许多问题 ,表现在 :无独立请求权的第三人诉讼地位与实体责任之间的冲突 ;第三人参诉方式与司法的被动性的冲突 ;无独立请求权的第三人参诉理由的模糊等。文章在比较大陆法系辅助参加人制度与普通法系追加第三人制度的基础上 ,认为我国的无独立请求权的第三人制度的改革 ,应选择大陆法系辅助参加人的制度模式。在第三人辅助参加的理由方面 ,我们认为应限定为 :基于同一标的物、同一事件或同一事项对当事人一方有义务性法律关系     

论公司独立人格的内在依据与制度需求

公司独立人格理论是公司制度存在与运行的基础,对于公司制度的立法选择与司法适用都具有重要价值。有必要通过公司独立人格的历史依据的考察,明确公司独立人格产生的实践性基础,并从多元视角剖析公司的本质属性,明确公司独立人格的理论逻辑。并可以基于此为独立公司人格的实现作关键的保障性制度设计:完善公司治理结构与公司内外部法律责任分配机制。     

浅议独立董事制度之构建

独立董事源于美国公司法人治理机构实践的一项创新 ,后来逐渐为世界上大部分国家的公司法人所接受。鉴于我国公司的现状 ,笔者认为要按照我国公司股权结构的特点引入独立董事制度 ,从而维护全体股东和整个社会的权益。     

机关法人的独立贡任探讨

文章分析了法人独立责任的具体含义,得出法人独立责任不同于法人责任形态,二者之间没有必然联系,指出了我国机关法人责任制度的立法缺陷,提出了我国机关法人的独立责任不以自身实际支配的财产为限,作为其设立者——国家的责任并非有限,国家应以国库为责任财产最终承担民事责任的立法建议。     

质疑独立担保无效说

独立担保是社会发展的产物,但在我国担保法上和司法实践中却被认定为无效担保。对独立担 保的效力的绝对否定有无理论缺陷和实践弊端,应如何正确确定独立担保的效力与后果,对此作 了分析并提出了相应的立法建议。     

Partisanship and independence: the peculiar moralism of American politics

Against the background of historical antipartyism in practice and in democratic theory, and with a focus on American political thought, this paper takes issue with contemporary arguments that value the political identity ‘Independent’ and disparage partisanship. A typology of ‘Independent’ is offered and both empirical and moral claims about the superiority of Independent voters are rebutted, with particular focus on the ‘weightlessness’ of Independents. The reasons to appreciate the moral distinctiveness of partisanship for democracy are set out: commitment to political pluralism, to regulated political rivalry, and to shifting responsibility for governing. Inclusiveness, comprehensiveness, and compromisingness set the contours for an ethic of partisanship.     

The Rationale Behind the Creation and Diffusion of Independent Regulatory Agencies: The Case of the Telecommunications Sector in Egypt

The creation and diffusion of Independent ^{1 1}Three different meanings of the regulatory state have been identified by Jordana and Levi-Faur (2004): the minimal, the prudent, and the overambitious meaning. The minimal meaning refers to the regulatory state as a field of study grouping scholars from different disciplines. The prudent meaning emphasises the tendency of modern states to use power and authority. An overambitious notion, the regulatory state developed to replace other state forms such as the welfare, developmental, and stabilisation state. Regulatory Agencies (IRAs) was greatly investigated in the context of the developed countries, particularly in Europe. Many scholars have provided different theories to explain the logic behind the formation and the spread of such agencies. These theories are important but not sufficient to explain the same phenomenon in the context of the developing countries wherein socio-economic and political environments are different. Adopting an institutional framework of analysis, and based on an in-depth qualitative documentary analysis and interviews with different stakeholders, this article investigates the creation and diffusion of the IRAs in Egypt particularly in the telecommunication sector. The findings show that the creation of the IRAs in the Egyptian telecommunications sector represents a rational response to the external isomorphic pressures exerted by international agency and can be explained on functional and practical grounds rather than any other factors of democratic governance or political uncertainties.     

Independent Mayors and Local Lists in Large Polish Cities: Towards a Non-partisan Model of Local Government?

The enormous success of local independent lists and independent mayors in Poland suggests it is important to examine their distinctive features, analyse the place they occupy in local politics, and explore the model of local government they encourage. This paper deals with these topics by investigating some extreme cases of non-partisanship at the local level. Research was conducted in three arbitrarily chosen Polish cities governed by independent mayors and dominated by independent lists in the local legislatures. Mixed quantitative and qualitative methods were used: a survey among city councillors; and individual key-informant interviews (IDI). Non-partisans appear to be a separate category of local politicians, different in terms of their views on politics. They explain their non-partisanship using anti-partisan, historical or tactical justifications. It seems that non-partisanship can be a means of institutionalising a particular manner of understanding and engaging in politics. Local lists organised by independent mayors are informal, concentrating on the leader and performing only some of the traditional functions of parties. This paper demonstrates that, due to the vague nature of the links between local politicians and their administration, independent councillors may serve only as a ‘democratic addition’ to a local administration headed by a skilful manager.     

Semi-presidentialism,moderating power and inclusive governance. The experience of Timor-Leste in consolidating democracy

The relationship between the choice of a government system, namely semi-presidentialism, and the performance of democracy is the subject of current debate. This article considers Elgie's proposal for a positive correlation between premier-presidential forms of semi-presidentialism and the success of democratic transitions, and discusses the way in which Timor-Leste fits the model as well as the need for a clear view of the incentive mechanisms at play. It further analyses the importance of “independent” presidents with “moderating powers” as a way of achieving inclusive governance and to facilitate democratic consolidation. Contrary to suppositions that attribute a tendency for president-parliamentary regimes to succumb to conflict between the main political actors, the case of Timor-Leste suggests that the definition of the president's role as a “moderator”, and the exercise of the function by “independent”, non-party personalities counteracts such inclinations with positive effects on democratic consolidation.     

Frustration: The mold of judicial philosophy

Abstract

The Framers understood the Constitution to be the fundamental expression of the rule of law over against the arbitrary, intemperate, and unjust “rule of men” that all too frequently existed in the political world, unfortunately both democratic as well as monarchical. Accordingly, the rule of law requires a well functioning political and legal system that includes legislative checks and balances, the separation of power between the President and Congress, an independent judiciary, federalism, etc. What happens when this “Madisonian” constitutional system, designed to express “the deliberate sense of the community,” runs into a Judicial branch that, in effect, claims we live under a Constitution, but the Constitution is what we say it is. Must the Judiciary itself be subject to the rule of law, and the decisions of a constitutional majority, or does their “independence” extend to being independent of the constraints of the rule of law and, thus, decent majority rule? How did the original John Marshall Court answer these questions, and what light do the leading cases and controversies shed on the relationship between the Marshall Court and the Madisonian System? Are we facing a situation of Marshall v. Madison?