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Reviewer Acknowledgements for Journal of Politics and Law, Vol. 16, No. 3 《政法学刊》第16卷第3期审稿人致谢
Pub Date : 2023-08-29 DOI: 10.5539/jpl.v16n3p55
William Tai
Reviewer acknowledgements for Journal of Politics and Law, Vol. 16, No. 3, 2023
《政法学刊》第16卷第3期,2023年
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引用次数: 0
Right to Counsel during Detention for Duty Crimes in China –A Balanced View of Corruption Combating and Human Rights 中国职务犯罪羁押中的辩护权——打击腐败与人权的平衡观
Pub Date : 2023-08-17 DOI: 10.5539/jpl.v16n4p1
Zihang Lan, Xiao Wang, Yanru Yan
In accordance with the Supervision Law of China, the duration of detention for the purpose of investigating duty-related offences may extend for a maximum term of six months. In contrast to the provisions of Criminal Procedure Law, it should be noted that individuals who are detained for duty crimes do not possess the right to counsel. The issue of whether suspects should be granted the right to counsel under the Supervision Law, and how to effectively balance the objectives of eliminating corruption and protecting human rights, remains unaddressed. This paper presents the contention that lawyers’ intervention in the process of detention should be permitted, as the obstacles associated with lawyers for the purpose of combating corruption can be addressed, however, the violation of human rights resulting from the absence of such engagement cannot be adequately rectified. Simultaneously, this study posits that right to counsel is not without limitations. The supervisory organs possess the authority to restrict the right to counsel in the four statutory instances, based on persuasive justifications.
根据中国监察法,为调查职务违法行为而拘留的期限最长可延长6个月。与《刑事诉讼法》的规定相反,应当指出,因职务犯罪而被拘留的个人不享有请律师的权利。是否应根据《监察法》给予犯罪嫌疑人律师权利,以及如何有效地平衡消除腐败和保护人权的目标,这些问题仍然没有得到解决。本文提出的论点是,应该允许律师干预拘留过程,因为可以解决与律师有关的打击腐败的障碍,但是,由于缺乏这种参与而导致的侵犯人权的行为无法得到充分纠正。同时,本研究假定获得咨询的权利并非没有限制。在这四种法定情况下,监察机关有权根据有说服力的理由限制辩护权。
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引用次数: 0
State Immunity in International Investment Disputes: Role of State Immunity in Resolving Investment Disputes and Adjudication Implications 国际投资争端中的国家豁免:国家豁免在解决投资争端中作用及裁决意义
Pub Date : 2023-07-21 DOI: 10.5539/jpl.v16n3p46
Azab Alaziz Alhashemi
The surge in international investment activities has led to a corresponding increase in international investment disputes, presenting significant challenges for states. State immunity serves as a fundamental concept designed to shield sovereign states from being subjected to lawsuits or foreign court jurisdiction. By affording this protection, state immunity permits states and their representatives to carry out crucial public functions without undue interference. Against this backdrop, this review article undertakes a comprehensive analysis of the role of state immunity in resolving international investment disputes and explores its implications for adjudication processes. The study critically examines the intricate interplay between state immunity and international investment disputes, elucidating how this legal principle influences the resolution of such conflicts. It explores the mechanisms through which state immunity operates, highlighting its impact on the ability of investors to pursue legal actions against states in international tribunals or national courts. By delving into relevant case law, international treaties, and legal principles, this review article evaluates the extent to which state immunity can limit or undermine the rights of foreign investors and the implications this has for the effectiveness and fairness of adjudication in investment disputes. Furthermore, the study assesses the evolving international legal framework surrounding state immunity and its implications for the resolution of investment disputes. It analyzes recent developments, including shifts in state practices, treaty provisions, and judicial decisions, to shed light on emerging trends and challenges in this area. By providing a comprehensive examination of state immunity in the context of international investment disputes, this review article contributes to a deeper understanding of the complex dynamics between states and foreign investors and offers insights into the evolving landscape of investment arbitration.
国际投资活动的激增导致国际投资争端的相应增加,给各国带来了重大挑战。国家豁免是一个基本概念,旨在保护主权国家免受诉讼或外国法院管辖。通过提供这种保护,国家豁免允许国家及其代表在不受不当干预的情况下履行重要的公共职能。在此背景下,本文将全面分析国家豁免在解决国际投资争端中的作用,并探讨其对裁决程序的影响。该研究批判性地考察了国家豁免与国际投资争端之间错综复杂的相互作用,阐明了这一法律原则如何影响此类冲突的解决。本报告探讨了国家豁免的运作机制,强调了其对投资者在国际法庭或国家法院对国家提起法律诉讼能力的影响。通过深入研究相关判例法、国际条约和法律原则,本文评估了国家豁免在多大程度上限制或损害外国投资者的权利,以及这对投资争端裁决的有效性和公正性的影响。此外,本研究还评估了围绕国家豁免的国际法律框架的演变及其对解决投资争端的影响。它分析了最近的发展,包括国家实践、条约规定和司法判决的变化,以阐明这一领域的新趋势和挑战。通过对国际投资争端背景下的国家豁免进行全面审查,本文有助于更深入地理解国家与外国投资者之间的复杂动态,并对投资仲裁的发展前景提供见解。
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引用次数: 0
Mitigating Developmental Disparities and Regional Instability through Public Policy Landscaping 通过公共政策美化缓解发展差距和区域不稳定
Pub Date : 2023-07-04 DOI: 10.5539/jpl.v16n3p39
Philip Eyam-Ozung Jr.
Since government is the universally-accepted system that is responsible for midwifing the development and progress of nations and governance is mainly delivered through the making and implementation of public policy, it is imperative to develop a strategic policy view of the root-cause(s) of the bad governance that triggers the developmental disparities within and between nations which invariably engender national and regional instability across many corners of the globe. Developmental disparities within and between nations are especially important as the primary causes of national and regional conflicts as well as trans-national migration and sundry trans-national crimes such as human trafficking. In this article, I argue that public policy is so central to governance and pivotal to national development and progress that it must be recognized as the powerful force that can either unite polities around the pursuit of development and progress or leave them deeply-divided and starved of much-needed development. The crux of this argument is that national development and progress are impossible without national unity and regional stability. My second argument is that commitment to the practice of policy-led governance should be considered doubtful unless it can be proven by the prioritization of the institutionalization of Public Policy systems that are designed to, first and foremost, foster national unity and regional stability. The mission of this article is to introduce the novel concept of Public Policy Landscaping as the strategic means of making the governance landscape suitable for the development and deployment of the environmentally-sensitive public policy systems that can be relied upon to unite policy-led entities around the pursuit of national and regional development. Public policy does to the governance what landscape architecture does to natural land and this means that any neglect of public policy landscaping is bound to leave the governance landscape in a poor state that will invariably impede good policymaking and policy implementation.
由于政府是一个被普遍接受的系统,它负责促进国家的发展和进步,而治理主要是通过公共政策的制定和实施来实现的,因此,有必要从战略政策的角度来看待导致国家内部和国家之间发展差距的不良治理的根源,这些差距总是在全球许多角落造成国家和地区的不稳定。国家内部和国家之间的发展差距尤其重要,因为这是国家和区域冲突以及跨国移徙和诸如贩运人口等各种跨国犯罪的主要原因。在这篇文章中,我认为公共政策是治理的核心,是国家发展和进步的关键,因此必须认识到它是一种强大的力量,可以将各国政治团结在一起,追求发展和进步,也可以使它们严重分裂,缺乏急需的发展。这一论点的核心是,没有民族团结和地区稳定,就不可能有国家的发展和进步。我的第二个论点是,对政策主导的治理实践的承诺应该被认为是值得怀疑的,除非它能被公共政策体系制度化的优先次序所证明,而公共政策体系的设计首先是为了促进国家团结和地区稳定。本文的任务是引入公共政策景观的新概念,作为使治理景观适合环境敏感型公共政策系统的开发和部署的战略手段,这些公共政策系统可以依赖于将政策主导的实体团结在追求国家和地区发展的周围。公共政策对治理的作用就像景观建筑对自然土地的作用一样,这意味着任何对公共政策景观的忽视都必然会使治理景观处于糟糕的状态,这将不可避免地阻碍良好的政策制定和政策实施。
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引用次数: 0
Anglo-American Elements of Constitutional Organization in the Constitutional Arrangement of Bosnia and Herzegovina: An Influence on Rule of Law through Legislative Function 波斯尼亚和黑塞哥维那宪法安排中的英美宪法组织要素:立法功能对法治的影响
Pub Date : 2023-07-03 DOI: 10.5539/jpl.v16n3p21
Zlatan Begić
The current constitutional arrangement of Bosnia and Herzegovina as well as model of the constitutional regulation is the result of peace agreements – Washington Peace Agreement and General Framework Agreement for the Peace in Bosnia and Herzegovina (so called – Dayton Peace Agreement) that were imposed under the dominant influence of the US administration. Thanks to this influence, some elements that are close to the Anglo-American legal tradition and understanding of law have been implemented in the constitutional system of Bosnia and Herzegovina, such as the framework model of constitutional normative regulation based, in most cases, on general legal principles and framework norms of a general nature that regulate constitutional matters in a framework way and without entering into details. This paper, at the first place, contains considerations related to model of constitutional normative regulation in Bosnia and Herzegovina as well as adopted centralized model of protection of constitutionality. This model of constitutional regulation, as will be seen from the following text, is not close to European-continental legal tradition and understanding of law. Second part of this paper considers implementation principles of constitutionality and rule of law – in general through performing legislative function in the condition of American model of constitutional normative regulation in Bosnia and Herzegovina as result of imposed peace agreements. The third part contains considerations regarding organization and structure of political parties in Bosnia and Herzegovina and their influence on legislative function in the condition of actual constitutional arrangements. The results of the research and consideration contained in this paper show that the combination of elements of constitutional arrangements and regulations that belong to the Anglo-American legal tradition and understanding of law with elements that belong to the European-continental legal tradition do not give an adequate result in Bosnia and Herzegovina from the standpoint of constitutionality and the rule of law.
波斯尼亚和黑塞哥维那目前的宪法安排和宪法规范模式是在美国政府的主导影响下实施的和平协议——《华盛顿和平协议》和《波斯尼亚和黑塞哥维那和平总框架协议》(简称《代顿和平协议》)的结果。由于这种影响,一些接近英美法律传统和对法律的理解的元素在波斯尼亚和黑塞哥维那的宪法体系中得到了实施,例如在大多数情况下,基于,关于一般性法律原则和一般性框架规范,这些原则和规范以框架方式规范宪法事务,而不涉及细节。本文首先对波斯尼亚和黑塞哥维那宪法规范性规制模式以及所采用的合宪性集中保护模式进行了思考。从下文中可以看出,这种宪法规范模式并不接近欧洲大陆的法律传统和对法律的理解。本文的第二部分考虑了合宪性和法治的实施原则——一般来说,通过在美国宪法规范性法规模式下履行立法职能,在波斯尼亚和黑塞哥维那实施和平协议。第三部分论述了在实际宪法安排条件下波斯尼亚和黑塞哥维那政党的组织结构及其对立法职能的影响。本文的研究和思考结果表明,从合宪性的角度来看,将属于英美法律传统的宪法安排和法规的要素以及对法律的理解与属于欧洲大陆法律传统的要素相结合,在波斯尼亚和黑塞哥维那并没有产生充分的结果以及法治。
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引用次数: 0
Personal Data Protection in the Iranian Legal System 伊朗法律体系中的个人数据保护
Pub Date : 2023-06-06 DOI: 10.5539/jpl.v16n3p10
Mohammad Mustafa Mohiqi
Currently, legislators are paying special attention to the personal data of individuals since these data can be processed, transferred quickly and are available in cyberspace. The purpose of this article is to describe the process by which Iran's legal system protects personal information and privacy. There is no specific law in Iran regarding the protection of personal data, and therefore this data should be protected in accordance with other laws. While there is no specific legal sanction in the Iranian legal system for the violation of data privacy, it is not without legal consequences, and for the legal consequences, one can refer to other Iranian laws and foundations. For example, for civil remedies, it is possible to make reference to the Civil Liability Act. Based on the different laws of Iran, it can be seen that in this country, the principle is to safeguard the privacy of the individual. Although the right to privacy may not be violated in all cases, it may be violated in exceptional circumstances, such as when it comes to national security, because in every country, issues such as order and public interest take priority over the rights of individuals.
目前,立法者特别关注个人的个人数据,因为这些数据可以在网络空间中快速处理、传输。本文的目的是描述伊朗法律体系保护个人信息和隐私的过程。伊朗没有关于保护个人数据的具体法律,因此应根据其他法律保护这些数据。虽然伊朗法律体系中没有针对侵犯数据隐私的具体法律制裁,但这并非没有法律后果,关于法律后果,可以参考伊朗其他法律和基金会。例如,关于民事补救办法,可以参考《民事责任法》。根据伊朗不同的法律,可以看出,在这个国家,原则是保护个人隐私。尽管隐私权可能不会在所有情况下都受到侵犯,但在特殊情况下,例如在国家安全方面,隐私权可能会受到侵犯,因为在每个国家,秩序和公共利益等问题都优先于个人权利。
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引用次数: 0
The Enlightenment of the Distribution of Subject Responsibility in Japan's Household Appliance Recycling Law to China 日本家电回收法主体责任分配对中国的启示
Pub Date : 2023-06-02 DOI: 10.5539/jpl.v16n3p1
Xiaochuan Guo
Waste home appliances have become new urban polluters because of the replacement of home appliances; however, they are also recyclable resources. To regulate the recycling of home appliances, the Japanese government has issued the ‘Household Appliances Recycling Law’, which clearly defines the responsibilities of manufacturers, retailers, consumers, governments and other entities involved in the recycling process of waste household appliances. This article analyzes the distribution of subject responsibility and legal effectiveness in the law, as well as the current legislative status of China's home appliance recycling industry and proposes several inspirations for China's home appliance recycling industry: enact special legislation, extended producer responsibility, the tripartite burden of recovery costs, and improve recycling channels.
由于家用电器的更换,废旧家电已成为新的城市污染源;然而,它们也是可回收的资源。为了规范家电回收,日本政府颁布了《家电回收法》,明确规定了制造商、零售商、消费者、政府和其他参与废旧家电回收过程的实体的责任。本文分析了法律中主体责任的分配和法律效力,以及我国家电回收行业的立法现状,并对我国家电再生行业提出了几点启示:制定专门立法、扩大生产者责任、回收成本三方负担,改善回收渠道。
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引用次数: 0
A Case Study of Subject Identification and Immunity in the Pre-Litigation Procedure of Shareholder Representative in China 我国股东代表诉前程序中的主体识别与豁免问题研究
Pub Date : 2023-05-25 DOI: 10.5539/jpl.v16n2p45
Bingni Liu
Whether the pre-litigation procedure of shareholder representative is effective is one of the important issues about the functioning of shareholder representative litigation. In judicial practice in China, the identification of the subject of shareholder representative and the necessity of the pre-litigation procedure are the most common and controversial points. In this paper we will analyze the subject identification and the exemption situation in the pre-litigation procedure of shareholder representative from the perspective of interpretation and legislative theory, based on the cases obtained from sources such as China Judgments Online and Jufa.com. Through the empirical analysis of the above two aspects, it is found that there are problems and loopholes in the connection between legal texts and judicial practice, and finally suggestions are proposed to improve the pre-litigation procedure of shareholder representative, in order to improve the adaptability of the legal text specification of the shareholder representative litigation system and the review of judicial practice.
股东代表诉前程序是否有效,是股东代表诉讼运作的重要问题之一。在中国司法实践中,股东代表主体的认定和诉讼前程序的必要性是最为常见和争议的问题。本文将以中国裁判文书网、聚法网等资料为基础,从解释和立法理论的角度分析股东代表诉前程序中的主体认定和豁免情况。通过以上两方面的实证分析,发现法律文本与司法实践的衔接存在问题和漏洞,最后提出完善股东代表诉前程序的建议,以提高股东代表诉讼制度法律文本规范与司法实践审查的适应性。
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引用次数: 0
Reviewer Acknowledgements for Journal of Politics and Law, Vol. 16, No. 2 《政法学刊》第16卷第2期审稿人致谢
Pub Date : 2023-05-25 DOI: 10.5539/jpl.v16n2p58
William Tai
Reviewer acknowledgements for Journal of Politics and Law, Vol. 16, No. 2, 2023
《政法学刊》第16卷第2期,2023年
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引用次数: 0
The Impact of Political Polarization on the COVID-19 Vaccine Hesitancy in the United States: A Qualitative Study 政治极化对美国新冠肺炎疫苗犹豫的影响:定性研究
Pub Date : 2023-05-16 DOI: 10.5539/jpl.v16n2p37
Peiran Ma
This study explored the role of political polarization in an individual's decision of receiving the COVID-19 vaccine. A total of 15 participants participated in individual interviews and focus group discussions about the relationships among domestic political polarization, vaccine hesitancy, and behavioral responses to the COVID-19 pandemic. Political affiliation affected an individual’s decision on the COVID-19 vaccination, such that people who identified as Liberals and Democrats were more accepting of the vaccine. On the other hand, the level of influence declined over time (2020-2022) when the general conception of COVID-19 immunization shifted from political to personal. Results provided qualitative support to the previously identified positive relationship between divided political opinions and COVID-19 vaccine hesitancy and highlighted the decreasing trend in the power of political polarization in vaccination and the existence of other factors.
这项研究探讨了政治两极分化在个人决定是否接种COVID-19疫苗中的作用。共有15名参与者就国内政治两极分化、疫苗犹豫和行为应对之间的关系进行了个别访谈和焦点小组讨论。政治派别影响了个人对COVID-19疫苗接种的决定,因此自由党和民主党人更容易接受疫苗。另一方面,随着时间的推移(2020-2022年),COVID-19免疫接种的一般概念从政治转向个人,影响程度有所下降。结果为先前发现的政治分歧与COVID-19疫苗犹豫之间的正相关关系提供了定性支持,并突出了疫苗接种中的政治两极分化力量的下降趋势以及其他因素的存在。
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引用次数: 0
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Journal of politics and law
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