信托制度异化论——对我国现行信托产品法律结构之评判

《中华人民共和国信托法》突破了我国原先“一物一权”的成文法系传统,导入了“名义所有权”与“实际所有权”分离的所有权“二元制结构”。面对这种全新的法律结构,实务界往往将信托当作新的融资工具进行利用。事实上,我国目前的信托产品并不具备信托所应具备的法律特征,而立法界与理论界对此又缺少相应的回应,信托产品离真正的信托制度渐行渐远。为此,通过对信托法律关系和法律特征的梳理,剖析并解释现行主要信托产品存在的结构性问题,以期纠正现有对信托“实用主义”功能下的错误认识,还原信托的本来面貌。     

Creating markets in no-trust environments: The law and economics of smart contracts

Smart contracts, self-executing agreements based on blockchain technology, have the capacity to create trust in what we term no-trust contracting environments. We argue that using them in such environments is the path to unleash the full potential of smart contracts. Compared to the contract enforcement mechanisms characterized by traditional contract law or relational contracts, smart contracts can offer a superior solution for facilitating trade.Several lawyers and economists have debated whether smart contracts might offer the prospect of cheaper, faster and better transactions. As we discuss below, contract law scholars caution that they neither replicate the relational context essential for the day-to-day practice of contracting nor offer a superior solution to problems addressed by traditional contract law, such as contract validity and legality. We clarify and systematize the current thinking on the legal nature and reliability of smart contracts, and address the concerns of contract law scholars. While doing that, we suggest a step forward in characterizing contracting environments, contract enforcement mechanisms and the trust relationship underlying contracts.     

Majority representation and legitimacy: Survey-experimental evidence from the European Union

What can policy makers do in day-to-day decision making to strengthen citizens' belief that the political system is legitimate? Much literature has highlighted that the realization of citizens' personal preferences in policy making is an important driver of legitimacy beliefs. We argue that citizens, in addition, also care about whether a policy represents the preferences of the majority of citizens, even if their personal preference diverges from the majority's. Using the case of the European Union (EU) as a system that has recurringly experienced crises of public legitimacy, we conduct a vignette survey experiment in which respondents assess the legitimacy of fictitious EU decisions that vary in how they were taken and whose preferences they represent. Results from original surveys conducted in the five largest EU countries show that the congruence of EU decisions not only with personal opinion but also with different forms of majority opinion significantly strengthens legitimacy beliefs. We also show that the most likely mechanism behind this finding is the application of a ‘consensus heuristic’, by which respondents use majority opinion as a cue to identify legitimate decisions. In contrast, procedural features such as the consultation of interest groups or the inclusiveness of decision making in the institutions have little effect on legitimacy beliefs. These findings suggest that policy makers can address legitimacy deficits by strengthening majority representation, which will have both egotropic and sociotropic effects.     

EU public affairs and the White Paper on Governance

The White Paper on Governance process[This analysis covers the period up to and including the publication of COM (2001) 428 of 25.7.2001, ‘European Governance: A White Paper’.] began life as a search for an issue by a new Commission President. The issue is packaged as enhancing/modernising democracy in the EU and legitimising EU institutions, and searches for further avenues of civil participation. The process ‘sells’ the concept of ‘democratic deficit’, though reveals a highly open and accessible system which is already severely overloaded by interest representation. Rather than escalating a ‘lobby free for all’, the opportunity could be taken to strengthen governance by organising EU interest representation. This could be done by accrediting associations that are able to meet strict criteria of representativity as ‘governance partners’, making them sufficiently attractive to their members to work through them rather than bypassing them, and which would strengthen their ability to contribute to EU governance as policy capable organisations. These associations could find a place in a revamped and reorganised Economic and Social Committee, which would be engaged at a much earlier stage in the EU policy process. Copyright © 2001 Henry Stewart Publications     

Contemporary Compulsory Dispersal and the Absence of Space for the Restoration of Trust

This paper investigates the issue of trust, or mistrust, specificallyin relation to single adult asylum seekers and asylum seekerfamilies compulsorily dispersed across England. It draws upondoctoral research on the social exclusion of asylum seekersas a result of dispersal and their separation from mainstreamwelfare provision due to the creation of the National AsylumSupport Service (NASS) following the Immigration and AsylumAct 1999. Trust is an ambiguous term and four forms of trustare delineated to assist conceptualizing the experience of forcedmigration: social, political, institutional and restorativetrust. This paper provides an overview of the aims and eachphase of the implementation of dispersal. It is argued thatthe dispersal system leaves little room for political or institutionaltrust to be restored and hinders the restoration of social trust.It is suggested that this lack of space for the restorationof trust has negative implications for the longer term resettlementprocess of asylum seekers who obtain refugee status. It is alsosuggested that trust is an essential component of UK governmentpolicies promoting social or community cohesion, community engagementand initiatives to combat trafficking, forced marriage and ‘honour’based violence and that mistrust of asylum seekers as a groupdirectly contradicts such policies and initiatives.     

Interpretive Filters: Social Cognition and the Impact of Turning Points in Negotiation

A number of studies have shown that certain events that occur during a negotiation can alter its course. Referred to as "turning points," these events are precipitated by actions taken either outside or inside the talks that have consequences for outcomes. In this article, we report the results of two experiments designed to examine the impacts of two types of precipitating actions, external and internal. In the first experiment, which focused on external actions, we found that crises — as opposed to breakthroughs — produced more movement in negotiations in which parties viewed the social climate positively (high trust, low power). We found that parties achieved less movement in negative social climates (low trust, high power).
In the second experiment, which focused on internal actions, we found that cooperative precipitants (factors inducing change) were more likely to occur when parties negotiated in the context of positive social climates. Negotiation outcomes were also influenced by the climate: we found better individual outcomes for negotiations that occurred in positive climates (high trust, cooperative orientations). Inboth experiments, the social climate of the negotiation moderated the effects of precipitating factors on negotiation outcomes. Perceptions of trust and power filter the way negotiators interpret actions that occur outside or are taken inside a negotiation, which can lead to agreements or impasses.     

论受托人的权利及其限制

各国的信托法均赋予了受托人较为广泛的权利,同时为了避免受托人滥用权利,对这些权利的行使也作了一定的限制.在对各国相关立法比较的基础上,着重论述了我国<信托法>中的受托人享有的各项权利的含义、法理基础、主要规定及其行使的限制.     

论我国反垄断法域外效力原则的定位

赋予反垄断法以域外效力是适应经济全球化的必然要求.我国反垄断法规定域外效力原则有利于遏制和预防国际垄断行为对中国经济产生的不利影响.反垄断法域外效力原则在立法实践中有多种形式,其核心在于反垄断法域外效力原则的定位.正确定位我国反垄断法域外效力原则对于我国在国际经济交往中避免争议和选择性司法有重要意义.     

中成药治疗儿童注意缺陷多动障碍疗效和安全性的系统评价

目的 系统评价中成药治疗儿童注意缺陷多动障碍的疗效和安全性。方法 检索中国知网、万方数据库、维普网、中国生物医学文献服务系统、PubMed、Cochrane Library、PsycINFO、Embase中所有关于中成药治疗儿童注意缺陷多动障碍的随机对照试验。根据预先设定的标准由两名研究者独立筛选,使用Review Manager 5.3软件进行纳入研究的偏倚风险评估和Meta分析。结果 最终23项研究共2 314个对象被纳入数据分析,未发现中成药与安慰剂比较的研究。中成药组与哌甲酯组的总有效率比较,差异无统计学意义（RR=1.06,95% CI为0.99～1.13,P=0.08）,但中成药组的不良反应总发生率低于哌甲酯组,差异有统计学意义（RR=0.14,95% CI为0.08～0.24,P<0.000 01）。中成药联合哌甲酯组总有效率高于哌甲酯组,差异有统计学意义（RR=1.17,95% CI为1.07～1.29,P=0.000 5）;两组不良反应总发生率的差异无统计学意义（RR=0.53,95% CI为0.24～1.17,P=0.11）。结论 中成药治疗儿童注意缺陷多动障碍疗效良好且不良反应少,但仍需要设计更合理的高质量随机对照研究,尤其是与安慰剂对照的研究来证实。     

信托登记制度比较研究

信托财产对信托业务中产生的对外债务原则上承担独立的有限责任.登记制度则使第三人能知悉上述责任范围,所以将信托财产予以登记成为该责任方式确立的前提条件.登记的范围应限于易于确定的财产.登记的效力以登记对抗要件主义为通行做法.考虑到已登记财产的变动和信托业务的具体特点,某些未经登记的财产具有与已登记财产同样的法律地位.