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The Judge Who Knew Too Much: Issue Conflicts in International Adjudication 一知半解的法官:国际审判中的议题冲突
Pub Date : 2008-12-31 DOI: 10.15779/Z38X65P
Joseph R. Brubaker
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引用次数: 5
Convicting the Innocent in Transnational Criminal Cases: A Comparative Institutional Analysis Approach to the Problem 跨国刑事案件中的无罪定罪:问题的比较制度分析方法
Pub Date : 2008-12-16 DOI: 10.15779/Z38207M
L. S. Richardson
The adjudication of transnational criminal cases is burdened by a very narrow compulsory process mechanism known as Mutual Legal Assistance Treaties. These treaties regularize foreign evidence gathering for prosecutors and explicitly prevent their use by criminal defendants. The danger of inaccurate verdicts and wrongful convictions that may result from unequal access to evidence highlights the need to resolve this flawed transnational adjudication process, and specifically, its evidentiary method. Building on the works of Neil Komesar, Ronald Coase, and Mancur Nelson, the author utilizes a comparative institutional analysis approach to consider the question of how to obtain parity between the prosecution and the defense in the ability to compel foreign evidence in transnational criminal cases. The issue is of great importance in a post-9/11 world where the fairness and accuracy norms that underpin criminal prosecutions are increasingly ephemeral and illusory. The comparative framework illumes the important considerations for identifying the institution best suited to achieve the norm of parity. Criminal process scholars have not explicitly utilized the comparative institutional analysis framework. This oversight is a mistake. The comparative framework provides an ideal theory to dissect criminal process questions. Explicit institutional comparison, rather than simplistic single institutional considerations, should underlie criminal process scholarship addressing fairness and equity norms.
跨国刑事案件的裁决受到一种非常狭窄的强制程序机制的负担,这种机制被称为司法互助条约。这些条约使检察官收集外国证据的工作正规化,并明确禁止刑事被告使用这些证据。不平等获取证据可能导致不准确判决和错误定罪的危险,这突出表明有必要解决这一有缺陷的跨国裁决程序,特别是其证据方法。在尼尔·科梅萨、罗纳德·科斯和曼库尔·纳尔逊的著作基础上,作者运用比较制度分析的方法来考虑如何在跨国刑事案件中获得控方和辩方在强迫外国证据的能力方面的平等问题。在后9/11时代,作为刑事起诉基础的公平和准确准则越来越短暂和虚幻,这个问题非常重要。比较框架阐明了确定最适合实现平等规范的制度的重要考虑因素。刑事程序学者并未明确运用比较制度分析框架。这种疏忽是一个错误。比较框架为剖析刑事诉讼问题提供了理想的理论依据。明确的制度比较,而不是简单的单一制度考虑,应该成为解决公平和公平规范的刑事程序奖学金的基础。
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引用次数: 3
Dignitarian Posthumous Personality Rights - An Analysis of U.S. and German Constitutional and Tort Law 尊严的死后人格权——美国和德国宪法和侵权法分析
Pub Date : 2008-12-09 DOI: 10.15779/Z38SH3W
H. Rösler
Should reputational protections exist for the dead in general and in artistic works in particular? After all, there currently seems to be a trend to spice up depictions of actual incidents by adding imaginary elements, or to intersperse historical facts and figures to render a fully made-up story more credible. The present article examines whether family heirs have legally cognizable rights against inaccurate portrayals of their deceased relatives. Toward this end, the article compares U.S. law to the quite different German approach in the Mephisto decision - a landmark ruling issued by German Federal Constitutional Court (Bundesverfassungsgericht) that established a right to posthumous personality protections based on human dignity (BVerfGE 30, 173). The traditional common law position is, however, that the publication of defamatory material about a deceased person does not give rise to a cause of action by relatives or an organization having the task of protecting the deceased's reputation, and that even a commenced action often has no survivability. This the dead don't hear approach gets - as said - contrasted with the wide-ranging protection for deceased persons in Germany, which is only limited by the passage of time. The article covers in comparative perspective issue such as human dignity as a constitutional value, the basis of of postmortales Persoenlichkeitsrecht including its time span and rights to sue, the prospects for developing a common law posthumous personality right, the particular value of artistic expressions and the remedies available.
死者的名誉保护应该普遍存在吗,尤其是在艺术作品中?毕竟,目前似乎有一种趋势,通过添加虚构的元素来为真实事件的描述增添情趣,或者穿插历史事实和人物,使一个完全虚构的故事更可信。本文探讨家庭继承人是否有法律上可承认的权利,以反对对其已故亲属的不准确描绘。为此,本文将美国法律与德国在Mephisto一案中截然不同的做法进行了比较。Mephisto一案是德国联邦宪法法院(Bundesverfassungsgericht)发布的一项具有里程碑意义的裁决,该裁决确立了基于人类尊严的死后人格保护权利(BVerfGE 30,173)。然而,传统的普通法立场是,发表对死者的诽谤材料不会引起亲属或负有保护死者名誉任务的组织提起诉讼,即使已经开始的诉讼通常也没有生存能力。正如前面所说,这种“逝者不听”的做法与德国对逝者的广泛保护形成了鲜明对比,后者只受到时间流逝的限制。本文从比较的角度探讨了人的尊严作为一项宪法价值、死后人格权的基础(包括时间跨度和诉讼权利)、英美法系发展死后人格权的前景、艺术表现的特殊价值以及可获得的救济等问题。
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引用次数: 6
The Comparative Law and Economics of Judicial Councils 司法委员会的比较法和经济学
Pub Date : 2008-11-12 DOI: 10.15779/Z383S9H
Nuno Garoupa, Tom Ginsburg
In recent decades, many countries around the world have institutionalized judicial councils, institutions designed to enhance judicial independence and accountability. Our paper, the first comparative inquiry into this phenomenon, has two aims. First, we provide an economic theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we discuss the national experience of several legal systems in light of our theory.
近几十年来,世界上许多国家已将司法委员会制度化,这些机构旨在加强司法独立和问责制。本文是对这一现象的首次比较研究,有两个目的。首先,我们提供了司法委员会形成的经济理论,并确定了它们不同的一些方面。其次,结合我们的理论,讨论了几个法系的国家经验。
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引用次数: 48
International Judicial Lawmaking: A Theoretical and Political Analysis of the WTO Appellate Body 国际司法立法:WTO上诉机构的理论与政治分析
Pub Date : 2008-07-22 DOI: 10.15779/Z38K36H
S. Ghias
Economic liberalization not only requires rules goveming economic exchange (such as multilateral trade agreements), but also institutions (such as courts) goveming how rules are enforced. However, once courts are established to govem economic exchange, they tend to expand their competence to political and social policy. Political scientists have used this theoretical framework to explain the evolution of national (for example the U.S. Supreme Court) and quasi-intemational (for example the European Court of Justice) judicial institutions. In this article, I explain how this model can be extended to a truly intemational "judicial" institution, the WTO's Appellate Body. The thesis of this article is that the Appellate Body has followed the process predicted by political science by using its institutional independence to develop doctrine that has spilled over to political and social policy areas.
经济自由化不仅需要管理经济交换的规则(如多边贸易协定),还需要管理规则如何执行的机构(如法院)。然而,一旦建立了管理经济交换的法院,它们就倾向于将其权限扩大到政治和社会政策。政治学家使用这一理论框架来解释国家(如美国最高法院)和准国际(如欧洲法院)司法机构的演变。在这篇文章中,我解释了这种模式如何扩展到一个真正的国际“司法”机构,世贸组织的上诉机构。本文的论点是,上诉机构遵循了政治科学预测的过程,利用其机构独立性来发展已经蔓延到政治和社会政策领域的理论。
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引用次数: 8
AFTA after NAFTA: Regional Trade Blocs and the Propagation of Environmental and Labor Standards 北美自由贸易协定之后的亚洲自由贸易协定:区域贸易集团和环境与劳工标准的传播
Pub Date : 2008-06-23 DOI: 10.15779/Z382W7G
Jack I. Garvey
Acknowledging the special difficulty of managing the politically critical linkage of free trade with labor welfare and environmental protection across the Pacific Basin, this Article argues that, despite the differences between various regional free trade groupings, regional development of this linkage presents distinct advantages over the GATT model of global, multilateral standards. It examines the regional model that evolved as a product of controversies over NAFTA (and particularly the dispute resolution model originated in the NAFTA Side Agreements). The Article demonstrates how this model can be drawn upon to facilitate constructive linkage of trade liberalization with environmental and labor welfare, to meet the challenges for developing a Pacific Basin free trade area.
承认管理跨太平洋盆地自由贸易与劳工福利和环境保护的政治关键联系的特殊困难,本文认为,尽管各区域自由贸易集团之间存在差异,但这种联系的区域发展比全球多边标准的关贸总协定模式具有明显优势。它考察了作为北美自由贸易协定争议的产物而演变的区域模式(特别是起源于北美自由贸易协定附带协议的争端解决模式)。本文展示了如何利用这一模式来促进贸易自由化与环境和劳工福利的建设性联系,以应对发展太平洋盆地自由贸易区的挑战。
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引用次数: 2
How Much Time Is Reasonable - The Arbitral Decisions under Article 21.3(c) of the DSU 多长时间是合理的- DSU第21.3(c)条下的仲裁决定
Pub Date : 2008-05-27 DOI: 10.15779/Z38D65H
Shin-yi Peng
The arbitral decisions under Articles 21.3(c) of the DSU raise various legal questions that may poses a threat to the certainty and predictability of the WTO regime. This paper explores the potentially relevant factors for determining implementation periods, and performs a critical analysis of the difficulties arbitrators face when determining reasonable implementation periods. This paper also seeks to clarify what criteria should be relevant to the determination of a compliance deadline. This paper highlights factors that arbitrators may find determinative in 21.3(c) proceedings. With regard to domestic constitutional issues surrounding implementation, most arbitral decisions take the position that the amendment of an act by Parliament or Congress is generally more time-consuming than the amendment of an act by the Executive. As to social and political complexity, this paper concludes that simple contentiousness is not a sufficient consideration under Article 21.3(c) to justify a longer period of time. With regard to economic situations, it agrees with the view that economic harm suffered by foreign exporters should not have an impact on what is the shortest period possible within the legal system of the Member to implement the recommendations and rulings of the DSB. As for the mandate of the arbitrator, this paper concludes that it is up to the implementing Member to determine the proper scope and content of anticipated legislation, and that only after the Member has selected how it will implement the DSB's recommendations and rulings, should an arbitrator consider whether the proposed reasonable period of time is the shortest period possible for the anticipated means of implementation within the legal system of that Member. The proper concern of an arbitrator under Article 21.3(c) is when, not what.
根据DSU第21.3(c)条作出的仲裁裁决提出了各种可能对WTO制度的确定性和可预测性构成威胁的法律问题。本文探讨了确定执行期的潜在相关因素,并对仲裁员在确定合理执行期时面临的困难进行了批判性分析。本文还试图澄清哪些标准应该与合规截止日期的确定有关。本文强调了仲裁员在21.3(c)程序中可能发现的决定性因素。关于围绕执行的国内宪法问题,大多数仲裁决定采取的立场是,议会或国会对一项法案的修正通常比行政部门对一项法案的修正更耗时。至于社会和政治复杂性,本文的结论是,根据第21.3(c)条,简单的争议性不足以作为延长期限的理由。关于经济情况,它同意这样一种观点,即外国出口商所遭受的经济损害不应影响到该成员在其法律制度内执行DSB的建议和裁决的最短可能期限。关于仲裁员的授权,本文的结论是,应由实施成员确定预期立法的适当范围和内容,并且只有在该成员选择了如何实施DSB的建议和裁决之后,仲裁员才应考虑拟议的合理期限是否为该成员法律体系内预期实施手段的最短可能期限。根据第21.3(c)条,仲裁员应该关注的是何时,而不是什么。
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引用次数: 3
Getting Paid: Processing the Labor Disputes of China's Migrant Workers 获得报酬:处理中国农民工的劳动争议
Pub Date : 2008-05-16 DOI: 10.2139/SSRN.1133731
Aaron Halegua
Many of China's 150 million migrant workers travel from their rural homes to labor in the cities each year only to have their wages withheld by their employer. This phenomenon has led to riots, protests and violence by frustrated migrants. Therefore, finding a better means for resolving these wage disputes is crucial to preserving China's social stability. This article examines the various paths that migrants can take to get this money back. It argues that despite government attention to this problem, the formal dispute resolution system of arbitration and court tribunals has failed these workers because it is both inaccessible to them and ineffective at resolving their disputes. Instead, informal mediation is a far more suitable and effective means of inducing employers to pay the wages owed to the workers. Moreover, a case study of the organization Little Bird reveals how NGOs may be more successful at mediating these disputes than are government officials. This article is based on over two years of fieldwork in China, which includes countless interviews of the actors involved in the labor dispute resolution system, a review of internal government reports, Chinese laws and regulations, media reports, official handbooks and scholarly articles, as well as the observation of several labor arbitrations and mediations. In concluding, the article considers the options for reforming the China's labor dispute resolution system, the significance of the 2007 Labor Dispute Mediation and Arbitration Law, and the implications of this paper's findings on the rule of law and social stability in China.
在中国的1.5亿农民工中,每年有许多人从农村到城市打工,却被雇主扣发工资。这种现象导致了沮丧的移民的骚乱、抗议和暴力。因此,找到一个更好的方法来解决这些工资纠纷对维护中国的社会稳定至关重要。本文探讨了移民拿回这笔钱的各种途径。它认为,尽管政府关注这一问题,但仲裁和法庭的正式争议解决系统使这些工人失望,因为他们既无法进入,也无法解决他们的纠纷。相反,非正式调解是一种更合适和有效的手段,可以诱使雇主支付拖欠工人的工资。此外,对“小鸟”组织的案例研究表明,非政府组织在调解这些纠纷方面可能比政府官员更成功。本文基于两年多来在中国的实地考察,包括对劳动争议解决制度中涉及的行为者的无数采访,对政府内部报告、中国法律法规、媒体报道、官方手册和学术文章的审查,以及对几起劳动仲裁和调解的观察。最后,本文考虑了中国劳动争议解决制度改革的选择,2007年《劳动争议调解仲裁法》的意义,以及本文研究结果对中国法治和社会稳定的影响。
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引用次数: 48
Protean Jus Ad Bellum
Pub Date : 2008-05-08 DOI: 10.15779/Z387H2Z
S. Murphy
The jus ad bellum is generally viewed as a static field of law. The standard account is that when the UN Charter was adopted in 1945, it enshrined a complete prohibition on the use of force in inter-state relations, except when action is being taken in self-defense against an armed attack or under authorization of the UN Security Council. Yet it seems likely that in the years to come, many states and non-state actors will increasingly insist upon a different vision of the jus ad bellum, one that conceives of it as more protean in nature. Protean jus ad bellum acknowledges that, as of 1945, the static view was correct, but that over time-as we approach the 70th anniversary of the United Nations-the jus ad bellum is changing, buffeted in particular by several significant developments: (1) the emergence of weapons of mass destruction of various types potentially controllable by states and non-state actors; (2) the rise of global terrorism as a mechanism for projecting violence against states by non-state actors; (3) the elevation of the person to a central place in the realm of international law, both in terms of being protected and in terms of being accountable for misconduct; (4) the inability of the Security Council to be accepted by all states as a disinterested arbiter willing and capable of acting to address all threats to international peace and security as they arise; and (5) the continuing erosion of the sanctity of the sovereign state, resulting from exposure to myriad effects of globalization, including intrusive transnational rule of law programs, election monitoring, incessant and extensive media coverage, powerful transnational corporations and non-governmental organization, and relatively unrestricted transborder movement of capital, goods, and persons across borders.This essay suggests that the failure to either formally accept or reject the idea of protean jus ad bellum is likely, over time, to diminish the jus ad bellum's effectiveness as a normative regime. Too often transnational uses of military force are occurring in circumstances that are inconsistent with the idea of a static jus ad bellum: states and non-state actors are, at least in some situations, tolerating certain types of force in response to the overarching developments noted above. As the International Criminal Court moves closer to including aggression within its mandate for indicting and prosecuting persons, government leaders may see greater value in clarifying what uses of force are permissible. Things could continue as they are. But in the long-term, if the jus ad bellum is not to break down, then a more formal way should be found either to reject the notion of protean jus ad bellum or to accept it, and if the latter, then to try to identify the contemporary rules in this area, either through formal amendment of the UN Charter, through authoritative interpretations by the principal organs of the United Nations or regional organizations, or through other means.
战争权通常被视为一个静态的法律领域。一般的解释是,1945年通过《联合国宪章》(UN Charter)时,它明确规定完全禁止在国家间关系中使用武力,除非是为自卫而采取的行动,或者是在联合国安理会(UN Security Council)授权下采取的行动。然而,在未来的几年里,许多国家和非国家行为体似乎将越来越多地坚持一种不同的观点,即认为它在本质上更加多变。多变的战争法承认,截至1945年,静态观点是正确的,但随着时间的推移,随着我们接近联合国成立70周年,战争法正在发生变化,特别是受到几个重大发展的冲击:(1)可能由国家和非国家行为体控制的各种类型的大规模杀伤性武器的出现;(2)全球恐怖主义的兴起,成为非国家行为体向国家投射暴力的一种机制;(3)将此人提升到国际法领域的中心位置,无论是在受到保护方面还是在对不当行为负责方面;(4)安全理事会不能为所有国家所接受,不能作为一个公正的仲裁者,愿意并有能力在国际和平与安全面临的一切威胁出现时采取行动加以解决;(5)主权国家的神圣性不断受到侵蚀,这是由于暴露于全球化的无数影响,包括侵入性的跨国法治项目、选举监督、不间断和广泛的媒体报道、强大的跨国公司和非政府组织,以及相对不受限制的资本、货物和人员的跨境流动。这篇文章表明,随着时间的推移,正式接受或拒绝各种各样的“战时法”概念的失败可能会削弱“战时法”作为一种规范制度的有效性。跨国使用军事力量的情况往往与静态的法与战的概念不一致:至少在某些情况下,国家和非国家行为体容忍某些类型的武力,以应对上述总体发展。随着国际刑事法院越来越接近将侵略行为纳入其起诉和起诉人员的任务范围,政府领导人可能认为澄清允许使用何种武力更有价值。事情可以继续这样下去。但从长远来看,要想使“战时法”不被打破,就必须找到一种更正式的方式,要么拒绝“千变万化”的“战时法”概念,要么接受“战时法”概念,如果接受“战时法”概念,那么就应该通过对《联合国宪章》的正式修订,通过联合国主要机构或区域组织的权威解释,或通过其他方式,努力确定这一领域的当代规则。
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引用次数: 6
The WTO Doha Development Agenda: What Is at Stake 世贸组织多哈发展议程:利害攸关的是什么
Pub Date : 2007-12-31 DOI: 10.15779/Z38F65V
Christine Sevilla
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引用次数: 1
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Berkeley Journal of International Law
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