司法实践中的普通法法律至上原则

普通法法律至上原则在司法实践中表现为以下几个主要的方面：司法审查,“高级法”观念,法官的权威和适当的法律方法。正是这几个方面保证了法律至上原则在司法实践中得以实现。     

民事诉讼回避制度的两个基本问题

从我国民事诉讼领域观察,回避制度在回避原因、适用程序两个方面存在着结构性的缺陷,在实践中导致侵害当事人诉讼权利的后果。有必要对我国回避制度进行规范分析,并对司法实践运作状况加以考察,对民事诉讼回避制度进行修改、完善。     

The Avalanche Perspective: women jurists in Korea 1952–2008

The author proposes and employs the Avalanche Perspective in analysing the entry of women into the Korean judiciary from the first pioneers in 1952 to the present. Starting from a general atmospheric warming trend towards women in postwar Korea, there developed instability in the status quo, then a breakthrough that led to a cascade of women participating in the legal profession. Although cultural resistance and political obstacles remained to be overcome, this quantitative expansion ultimately led to a greater acceptance of women’s participation in the judicial arena. Significant judicial changes that furthered the causes of women in contemporary Korea were coincident with women being members of the judiciary. The quantitative changes of the past fifty-six years opened the possibility of qualitative progress for women in the Korean judiciary. The Avalanche Perspective as applied to the judiciary in Korea, provides an understanding of the forces at work that have had a profound effect upon the place of women in the new cultural and political reality of the Korean people.

Wisconsin Institutionalism: John R. Commons and His Students

This paper seeks to provide a close examination of the nature and history of the institutional economics that developed at the University of Wisconsin. There has been a significant amount of work done on the thinking of John R. Commons, but much less on the history of Wisconsin institutionalism more generally. The paper proceeds through an examination of the development of the Department of Economics at Wisconsin from the time of the hiring of Richard T. Ely in 1892; the faculty hired to the Department from the early 1900s through to Commons's retirement in 1933; the program of instruction offered, particularly in the late 1920s when the full complement of institutionalist faculty were present; and the areas of study and later careers of Commons's graduate students. It is argued that although Ely played a role in the development of Wisconsin institutionalism, it was Commons who became the center of graduate student work, and that the Department only took on its decidedly institutionalist character after the hiring of Commons and a number of his students as faculty. The program of study in the late 1920s was very heavily institutionalist in character with Commons providing a core course on value and valuation, and a notable emphasis in the fields of public utilities, labor economics, and statistics. Very little instruction was provided in neoclassical theory. Many of Commons's students went on to notable careers in the academic world or public service or both. Wisconsin students were heavily involved in labor legislation issues, and in the development and administration of social security. But a number of Commons's students went into academic careers, and many produced large numbers of PhD students themselves. The decline of Wisconsin-style institutionalism after World War II was not, as has been suggested, a result of Commons's students moving largely into non-academic careers, but of many other factors, including the rise of Keynesian economics, and the migration of what had been much of Wisconsin institutionalism into new schools of industrial relations.     

从程序正义到摆平“正义”:法官的多重角色分析

法院如何建构其主体性?是当下中国社会面临的时代之问。在规则之治、程序正义的逻辑下展开运作的司法因其制度刚性有余而操作柔性不足,难以有效回应中国社会仍停留在传统的具体情境,从而遭到实用主义的解构。但是,在调审合一制度路径下游刃有余的实用主义司法哲学实际上亦并不足以构成对法院主体性的命题支撑,甚至可能是更加错误的道路。作为法院主体性的命题表达,能够体现法院明确的司法功能并与其他权力部门相区分的主体特质始终只在于独立的审判。     

试论在刑事审判中以“参照”方式适用法律

在现行刑法概括性、抽象性的条款较多和法律解释不够系统完善、且滞后的状况下,以"参照"方式适用法律显得十分必要;其目的符合刑法基本原则和量刑一般原则,其本质是法官自由裁量权的具体运用;但需要加以合理规范。     

法官良心与法律适用

法官在社会中扮演着重要的角色,直接适用法律,并决定着案件审理的发展方向.法官的良心即法官的正义感、责任感对于法官审理案件有决定性的指导作用,影响法官对于案件的判断,并对法官的判决作出道德的约束.随着社会的发展,社会冲突不断加剧,法律的制定与法律的适用之间有时会产生差异.基于此,在法律的框架下,有必要提出相应解决策略,使法官的良心能够为法律的正义保驾护航,成为法律最后的守护者.     

论量刑程序中的法官自由裁量权

量刑阶段法官自由裁量权是直接影响被告人人身、自由权利状态的一项司法权力。由于法律的概括性、模糊性、滞后性等原因,导致了法官自由裁量权范围过宽,幅度过大。同时立法水平的限制,现行法律缺乏一个统一、详尽、具体的量刑标准,从而有可能破坏司法公正。然而自由裁量权在审判过程中是无可避免的,因此只有从加强司法解释,确立统一量刑规则,定罪和量刑程序分离,建立检察官量刑建议权等方面予以适当规定,才能更好的发挥其积极作用,为实现量刑公正提供保障。     

法官良知的价值、内涵及其养成

法官审理案件，应以事实为根据，以法律为准绳，以良知为圭臬。法官良知的内涵可以概括为“八心”，即一视同仁、平等对待之心,求真求实、勿冤良善之心,坚守正义、善解法意之心,惩恶扬善、保国安民之心,案结事了、息讼促和之心,真诚恻怛、哀矜裁判之心,勤奋敬业、救人水火之心,清廉如水、一尘不染之心。法官良知的养成，须遵循推己及人的判断善恶之法，养守戒慎的良知形成之法，反躬自省的矫正固化之法，形成文化的扩展推广之法。     

Breaking the Silence: Gender Mainstreaming and the Composition of the European Court of Justice

Why has it taken so long for member states to appoint women to the Court of Justice? Despite having won relatively significant policy instruments for equal treatment at work and high levels of legislative representation, women in the European Union have been slow to extend the demand for gender mainstreaming to courts. Prior to 1999, the Court of Justice had had one woman member until Ireland appointed Fidelma Macken in late 1999, and Germany appointed Ninon Colneric and Austria appointed Christine Stix-Hackl Advocate General in 2000.The 1995 U.N. meeting in Beijing was a catalyst for the demand for balanced participation of women and men in decision-making processes within the E.U., and it coincided with Sweden, Finland and Austria joining and championing the cause of gender equality. In 1999, the Commission published a report on women in the judiciary and women lawyers began to organize across Europe. After tracing the appointment process, I review the European Parliament's role in championing women on the Court and consider recent developments. Courts, particularly supranational and federal courts, are representative institutions even if their representative function differs from legislatures. Non-merit factors have always been a factor in judicial appointments and thus the demand for women on the bench is not a terrible deviation from merit. An all male bench is no longer legitimate. This revised version was published online in July 2006 with corrections to the Cover Date.