论刑事和解的正义冲突及其消解

刑事和解的构建初衷在于强化刑事被害人的保护,但刑事和解的适用却无疑一定程度地弱化了对犯罪人的惩罚。被害人保护与犯罪人惩罚均为社会的正义诉求,却在刑事和解中产生冲突。应当在价值松绑、立法解危、司法开路中消解刑事和解中的正义冲突。     

Negotiating North–South dynamics and the Philippine experience in the WTO

This paper elucidates how domestic and external factors have shaped the negotiating policy of the Philippines in bringing about incremental gains not only for its benefit but also for other developing countries during the World Trade Organization (WTO) Agreement on Agriculture Doha Development Round (DDR). The internal factors include the following: (1) executive monopoly of the WTO negotiations; (2) issue-based fragmentation and dispersal of authority; (3) the autonomy and flexibility of the Philippine WTO negotiator; (4) the involvement of civil society in the WTO negotiations, and (4) the central role of the Department of Agriculture as the lead agency in the WTO negotiations. A major reason for this is attributed to an external factor which is the centrality of agriculture as a major WTO issue among developing countries. Other external factors, on the other hand, include the following: (1) the strong solidarity among developing countries and (2) the confinement to particular issues with regards to coalition-building. These factors helped to strengthen the bargaining leverage of the Philippines, a seemingly ‘weak’ country, vis-à-vis the developed countries in the WTO.     

家事协议的效力与认定

家事协议是由具备家事行为能力的家庭成员就家庭生活重要事项协商一致达成的约束所有家庭成员之协议。具体司法裁判中，家事协议效力应基于其与法律之多重博弈关系，通过考量司法政策取向、司法能力及其系统性影响等因素来认定和择取案件最佳裁判路径与效果。     

通讯企业劳务用工管理探析

通讯企业用工形式多样,劳务用工是其当前主要的用工形式之一。这种用工形式一方面为企业减少了人工成本的支出,提高了人员管理效率,另一方面也给企业带来了一定的法律风险。如何完善劳务用工机制,避免不必要的劳动纠纷,使劳务派遣人员的既得利益不受到损害,促进企业健康发展,是通讯企业亟待解决的问题。     

Endangering alliance or risking proliferation?: US–Japan and US–Korea nuclear energy cooperation agreements

This paper seeks to understand why the United States treated Japan and Korea differently in the revisions of bilateral nuclear cooperation agreements. On the sensitive issue of grating its allies the rights of developing enrichment and reprocessing (ENR), the United States did so for Japan in the 1977 and 1987 revisions, but did not for Korea during the 2015 revision. For the great power as a supplier state, there are two factors affecting the decision: policy-makers’ concern about alliance management prior to the calculation of security outcome, and firms’ commercial interests. In order to avoid damage to the US–Japan alliance and to maintain Japan's complementation for the US nuclear industry, Washington granted the rights of ENR to Tokyo. In contrast, because of its confidence of managing the US–Korea alliance and partly because of incompatibility of commercial interests between the two, Washington did not grant the rights to Seoul at the 2015 revision. Based on the comparison of the two cases, this paper underscores a need to alter the power projection theory regarding nuclear proliferation by explicating the alliance management as the ex ante element of power projection and by accounting for commercial interests such as fuel sale and technological partnership.     

医疗纠纷协商和解的利弊分析及对策

协商和解是解决医疗纠纷的重要方式,有明确的法律依据,但在实践当中也存在诸多弊端。要充分发挥协商和解的优势,消除其弊端关键在于依法办事,只有依法办事才能从根本上保障医患双方的合法权益。     

论大调解格局下的人民调解制度定位

大调解格局是对我国社会转型、社会矛盾激增、社会纠纷亟须有效解决的积极回应,是社会管理创新之举。而人民调解制度源于传统调解制度,发展于建国后,对于预防纠纷、解决纠纷曾发挥过重大作用。但在新时期,人民调解一度因不适应社会发展未能充分发挥作用。大调解格局的形成,为人民调解的回归与功能的新定位创造条件。人民调解是社区建设、社区自治的必然要求,可以有市场、管理和司法模式的选择。人民调解是个多元的、开放的体系。     

Full circle? Ideas and ordeals of creating a Free Trade Area of the Asia-Pacific

Abstract

In 2004 and 2006, proposals were made at APEC summits to establish a Free Trade Area of the Asia-Pacific (FTAAP). This was an essentially a reworking of an idea first raised in the mid-1960s to create a Pacific Free Trade Area, or PAFTA. Although the PAFTA initiative never advanced, it helped lay the first organizational foundations for regional economic community building in the Asia-Pacific. The recent FTAAP proposal thus brings us full circle to the antecedent origins of APEC itself. If realized, an FTAAP would also create a free trade zone that would encircle the Pacific Rim economy and thereby subsume the region's now large number of bilateral and sub-regional free trade agreements (FTAs) into one unified agreement. Yet there are many inherent problems with establishing an FTAAP. These broadly relate to deconstructing the preferentialism of existing bilateral and sub-regional FTAs, achieving a consensus on the technical policy content and ideational principles on which an FTAAP would be based, and addressing various geopolitical issues such as reconciling the formation of a pan-regional Asia-Pacific FTA with an already fragile multilateral trading system. Growing interest in a ‘rival’ East Asia Free Trade Area project presents another geopolitical challenge. In considering these and other questions, it is concluded that many obstacles will remain in the path to realizing an FTAAP, and that this may not actually be a desirable objective to pursue for some time yet.     

Overcoming Barriers to Mediation in Intake Calls to Services: Research‐Based Strategies for Mediators

In this article, I investigate intake calls to community mediation services in which disputing neighbors ask mediators to help them resolve their conflicts. These calls are the first point of contact between potential clients and mediators. To maintain their organization's funding, mediators must convert a sufficient number of these callers into clients of the service. Intake calls, however, are not treated as part of the mediation process proper, and mediators are not trained to handle them. I audio‐recorded and transcribed approximately two hundred calls to mediation services based in the United Kingdom and then analyzed them using conversation analysis. I identified several factors routinely present in these intake calls that seemed to prevent disputants from ultimately engaging in the mediation process; I characterize these factors as “barriers to mediation.” These barriers include callers' lack of knowledge about mediation as a service and mediators' often ineffective methods of explaining the process. In particular, callers rejected mediation services when the mediators explained that mediation is an impartial service. Some of the mediators, however, managed intake calls differently, describing it more effectively, expressing empathy or affiliation with callers, and thus were able to overcome many of the callers' most common concerns about the process. In this article, I also discuss this study's implications for understanding the institution of mediation and for training mediators.     

Expert Interpretation of Bitemark Injuries—A Contemporary Qualitative Study

This study attempts to characterize the nature of disagreement among odontologists in determining the fundamental properties of suspected bitemark injuries. Fifteen odontologists were asked to freely comment on six images of supposed bitemarks. Qualitative analysis using a grounded theory approach revealed that practitioner agreement was at best fair, with wide‐ranging opinions on the origin, circumstance, and characteristics of the wound given for all six images. More experienced practitioners (>10 years) tended to agree with each other less than those who had 10 years or less experience in forensic odontology. The differences in opinions can be at least partly accounted for by the inconsistent nature of approaches used by different practitioners in assessing bitemark evidence. The results of this study indicate that more definitive guidelines as to the assessment of bitemarks as patterned injuries should be developed to ensure the highest possible level of practitioner agreement.