民法中的强制性规范——兼论公法与私法“接轨”的立法途径与规范配置技术

立法者应妥当处理宪法与民法、行政法与民法、普通民法与特别民法、民事实体法与民事程序法以及民法典内部各种规范之间的关系,通过部门法的合理分工与互动来实现公、私法的“接轨”。宪法中的规范和纯粹行政法的规范是前置型强制性规范,不宜安排到民法典内部;为实现特定公共政策目标的强制性规范是外设型强制性规范,应安排于民事特别法和行政法规中;为自治的私法行为设定最低法律要求以及铺设通往公法管道的强制性规范为内设型强制性规范,应安排在民法典内部。     

讯问笔录中特殊语言的记写规范探讨

写作是一门实践性极强的学科,因此在公安院校的写作教学中,除了写作理论的讲授外,重要的是训练学生掌握实际操作的能力。讯问笔录作为诉讼证据之一,或作为记载固定违法犯罪证据的手段之一,具有不可替代的作用。办案实践中,不少讯问笔录不符合写作和法律规范,存在这样那样的问题或质量不高。侦查人员要作好讯问笔录,事先应熟悉案情,作好讯问计划,同时应掌握一些特殊语言的记写方法。     

Interests,passions and politics: business associations and the sovereignty dispute in Turkey

This paper examines business associations in a context where the state is being contested from below, focusing on Diyarbak?r, a major Kurdish city in Turkey. Against the backdrop of armed conflict, reform processes triggered by the country’s EU candidacy and socio-economic change, Diyarbak?r has become a contested zone over which the Turkish government and the Kurdish movement have been competing for control. Local business associations have also been implicated in such contestation. Considering the situation of dual power and moral economy at the local level, the paper examines how these associations deal with an adverse situation that is characterized by political instability and uncertainty. The analysis shows that business leaders have been able to make the ‘best’ of the situation.     

Virtuous power Turkey in sub-Saharan Africa: the ‘Neo-Ottoman’ challenge to the European Union

European officials veer towards exceptionalism in their policy communications concerning the EU’s global role, particularly in terms of African development. This article poses a rejoinder to such tendencies through examination of the rise of ‘virtuous power Turkey’ in Africa. It examines how Turkish elites constructed a moralised ‘neo-Ottoman’ foreign policy in wake of stalled EU accession. It then underscores how elites framed humanitarian interventions in sub-Saharan Africa in contrast to the perceived neo-colonialism of an EU ‘other’. In this vein, the article explores the meaning of normative ‘neo-Ottomanism’ for ostensible beneficiaries in Africa, for the EU, and for Turkey itself.     

犯罪本质反思——兼论规范违反说之提倡

在我国刑法理论中,社会危害性一直被视为犯罪的本质特征.进入21世纪以后,人们对该提法展开了全面的反思和批判,社会危害性也在争议声中走过了十多年.应当说,对社会危害性的反思,是犯罪论体系进一步完善的需要.但从整体上看,社会危害性并非无懈可击,在说明犯罪的实质方面,它必须借助于规范违反说才能得以说明.因此,直接将规范违反说作为犯罪的本质特征,是解决这一争议的最终出路.     

Sexual Behavior and Perceived Peer Norms: Comparing Perinatally Hiv-infected and Hiv-affected Youth

A large proportion of perinatally HIV-infected (PHIV) children are becoming adolescents and exploring their sexuality. This study explored the prevalence of sexual behaviors (kissing, touching, engaging in oral sex, or having vaginal/anal intercourse) in a sample of predominantly ethnic minority youths (N = 339; 54.1% Black and 30.4% Latino; 51% female; ages 9–16) perinatally exposed to HIV (61% HIV+). Using logistic regression, we tested the association between sexual behavior and HIV status, demographic characteristics, and peer influences regarding sexual behavior. PHIV youth were less likely to be sexually active. Among sexually active youth, PHIV youth were more likely to engage in touching behavior than HIV-negative youth and were less likely to engage in penetrative sex. Youths reporting that a greater number of their peers believed that sexually active boys were “cool” or “popular” were more likely to report sexual behavior. The association between sexual behavior and peers believing sexually active girls were “cool” or “popular” varied by age, gender, and HIV status. Furthermore, friends’ sexual activity was associated with sexual intercourse. Prevention programs should strengthen messages addressing peer norms regarding sexuality, as well as address specific issues related to adolescent HIV.

Comparing the legitimacy and effectiveness of global hard and soft law: An analytical framework

The international norms that are developed as tools of global governance can be placed on a continuum from traditional “hard law” treaties to the vaguest and voluntary “soft law.” In this article we develop an analytical framework for comparing norms on different positions along the continuum, thus for comparing international hard and soft law. We root the framework in both the rationalist and the constructivist paradigms of international relations by focusing on two overarching evaluative criteria: effectiveness and legitimacy. These broad concepts are divided into smaller building blocks encompassing mechanisms through which norms can exert influence; for example, by changing material incentives, identities, and building capacity, and by contributing to building source‐based, procedural, and substantive legitimacy. We illustrate the applicability of the framework with three norm processes of varying degrees of “softness” in global climate governance.     

通过现有规范解决自动驾驶汽车肇事之刑事责任归属问题

以自动驾驶汽车为代表的人工智能产品在给我们带来便利的同时也带来了新的法律问题。为了解决自动驾驶汽车肇事的刑事责任问题,学者或是承认自动驾驶汽车的犯罪主体地位,或是建议修改刑法增设罪名。实际上,既有的刑事法律规范足以解决自动驾驶汽车肇事的刑事责任归属问题。自动驾驶汽车的驾驶人未尽到合理注意义务的,承担过失责任;制造单位生产的自动驾驶汽车存在缺陷或者明知有缺陷而未召回的,承担产品质量相关的刑事责任;使用人发现自动驾驶汽车存在缺陷继续使用的,承担监管过失责任;入侵智能驾驶系统或者利用自动驾驶汽车实施犯罪的,承担故意犯罪的刑事责任。现阶段应克服刑事立法冲动,在既有的刑事法律规范体系内寻求解决方案,更具有现实意义。     

International Organisations and the Production of Hegemonic Knowledge: how the World Bank and the oecd helped invent the Fragile State Concept

This article examines the role of the World Bank and the oecd in the emergence and circulation of the ‘fragile state’ concept. These organisations were critical to the early development of the concept and in the consolidation of a knowledge-based agenda set out by Western aid donors to justify international assistance to poor and conflict-ridden countries. Attention is focused on three normative processes affecting the production of transnational knowledge: normalisation, fragmentation and assimilation. ‘Normalisation’ is the process by which influential knowledge producers help to transform a rough concept into a widely accepted transnational norm based on expert knowledge, detailed definitions and statistical exercises. Once the concept has been appropriated by several international actors, it undergoes normative ‘fragmentation’ as it is subjected to various interpretations across time and space. ‘Assimilation’ is the process by which the overarching concept is renewed, enriched and gradually adapted through the incorporation of additional insights. The article argues that the World Bank and oecd have functioned as central knowledge hubs, facilitating the circulation of new and controversial ideas on fragile states and their integration into the prevailing policies of the most powerful aid donors. The two organisations have thus taken an active role in the consolidation and perpetuation of the aid donors’ policy doctrine, ultimately protecting it from major normative dissent.     

Emerging powers as normative agents: Brazil and China within the UN development system

Institutions are frequently thought of as ‘socialising’ member states into pre-established norms. However, this influence is not necessarily a one-way street; members can also affect institutions, whether individually or collectively. This article analyses the behaviour of two emerging powers – Brazil and China – within the field of international development. What roles have these two states played in shaping global development norms? The article examines the key motivations, positions, and initiatives taken by Brazil and China, with special reference to the UN development system (unds). Whereas Brazil and China’s early behaviour within the unds diverged significantly, in the post-cold war period both have become increasingly interested in – and capable of – influencing UN norms. However, despite greater involvement in UN development negotiations, these countries’ leverage in normative debates originates outside of the unds, through their South–South cooperation programmes. The current diversification of platforms through which the norms of international development are negotiated may enhance the influence of emerging powers, although their ability to channel this influence effectively will depend on their capacity for norm entrepreneurship, rather than mere norm blocking.