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  • 卷首语
  • 改革司法:引言
  • 古来的公权者,不论国内、国际或区域的,也不论民主、专制或独裁的,都得确立规则,管理事务,裁决纠纷。这三项职能,便是现代所谓立法、行政和司法。立法权、行政权和司法权的配置、载体乃至名称,因治国理念、政治体制和法律传统的不同而多有差异。作为公共权力,司法的责任是裁决涉案纠纷,施与公力救济,以公正为要旨。然究竟何为公正,如何公正,又取决于不同时代和场景里的理解和条件。因此,就像古希腊哲人所说不能两次踏入的一条河流,大至政治原则、审判体制、法官制度,小至法庭布置、法官服饰、判决用语,司法总在不断变化,推陈出新。那么,怎样的变动才称得上“司法改革”呢?
  • 法院的独立与责任
  • By using his research findings on judicial reform in China and on the basis of Western experience and relevant theoretical concepts, the author has presented his thought-provoking analysis and comments focusing on several controversial issues in the field of independence and accountability of courts. In this article, the author mainly discusses the following issues: the functions of judicial independence; the tensions between judicial independence and accountability; and the problem of transitions and the second best, that is, during China‘ s transitional period, it is necessary to explore some imperfect “second best” solutions for the realization of judicial independence in China. Just as the author commented, scholars and reformers should appreciate the complexities of the idea of judicial independence, and how it properly coexists with ideas of judicial accountability and constraint. China can not avoid the necessary tensions between these two values. By further analysing the relationship between these concepts and the development of the balance between them in the behavior of judges and the design of institutional relationships, the author concludes that the dilemmas in finding the right balance between judicial independence and accountability are real, yet an appropriate degree of judicial accountability and constraint can be fostered without at the same time undermining the core elements and functions of judicial independence.
  • 两大法系中的行政法治与司法的作用
  • State and Bureaucracy have enormously expanded their power in particular in the 20^th century. Individuals depend more and more on civil servants who can decide on major issues with regard to existence and future of any individual. In order to limit the power of the administration to decide at the whim of the civil servants on the fate of individuals, the legislatures of states committed to the rule of law principles did introduce several tools to protect their citizens against the abuse of power of the administration. If one needs to know the content of the rule of law with regard to this power of the administration, one has to give an answer to the following questions: 1. What are the roots of law and justice? 2. What courts do to protect citizens against illegal or arbitrary actions of the executive and its administration? 3. What are the remedies of individuals to challenge administrative activities before the court? 4. What jurisdiction do courts have with regard to the protection of persons against the misuse of power by administrative authorities and what are the principle guidelines for administrative court decisions? 5. What are the rights and duties of the parties with regard to the cout procedure?
  • 世纪之交日本司法改革的述评
  • The observation and elaboration of judicail reform now being under way in Japan may be made from two different aspects. One aspect is abstract based itself on the expectation of changes of the society. The other saspect is specific based itself on the demand of change of patterns of administration of state and “devolution” and “relaxation of restrictions”. This article mainly discusses the following issues: Why judicial reform becomes an important political subject in Japan? What different opinions and stands in respect of aims and contents of judicial reform have been upheld by people from political and financial circles and people from legal community, and by people within legal community? What are major modifications and characters in the tentative ideas contained in the Letter of Suggestions that was drafted at the Meeting of Examination of Judicial System and submitted on June 12, 2001?Can fundamental aims of judicial reform be realized ? To answer all the above-mentioned questions,this article first reviews the social context, process of development of and basic propositions brought forward in the judicial reform in Japan, then examines a number of most important factors. On the basis of this effort, the author analyses the complicated relationship between the social institution and judicial reform, and brings forward his personal predictions and observations in view of the obstacles that have already cropped up and are possibly to come up.
  • 清末与民国时期的司法独立研究(上)
  • With Western scholarism disseminating gradually in the Orient and under pressures from home and abroad, the late Qing Dynasty had to embark on its judicial reform. The reform basically modeled Western judicial system. However, the transplant of the system and introduction of concepts and principles were not accomplished at the same time,though the two related to each other closely,neither did they have similar assimilating effect.But such situation just provides us with a point of view to study the judicial system during that period. It is exactly what the author intends to do in this article. The article,indeed,has described the actual situation of the development of Chinese judicial system ever since modem times by analysis of the introduction of the core principle of the independence of judiciary in judicial system and the understanding of its cultural significance held by Chinese. Reference is also taken in regard of the practical implementation and operation at institutional level. All of these have revealed cultural, psychological and institutional response and change shown by Chinese when facing the process of westernization of Chinese traditional judicial system. The author mainly tries to present readers a true picture of actual situation of the introduction of the concept of the independence of judiciary then and threads of its inherent development in the Qing period, in periods of Nanjing Provisional Government of the Republic of China, the Northen Govememnt, the “Educational Government” of the Guomindang Government in Nanjing and the “Constitutional Govemenmt”. In presenting this picture, the author has relied on exploration of judicial conditions as well as historical examination of propositions about the independence of judiciary and theories during those periods.
  • 飘移在两种司法理念间的司法改革——台湾司法改革的社经背景与法制基础
  • Many states have placed judicial reform on their cross-century reform agenda. The direction of reform is determined by social and economic conditions of each state while the specific content of reform is determined by individual judicial system and the basic concepts supporting it. Although sharing a similar understanding of judicial authority, the continental legal system and the common law system have actually developed judicial concepts that are quite different from each other.As a result, whether in judicial organization,proceedings and the administration of the profession, the two legal systems differ remarkably. As they all link with one another, a practical reformer may only engage in functional adjustment on the basis of the system. The cross-century judicial reform launched in Taiwan is confronting an arduous challenge. Being bold and resolute in action than ever, the Taiwan “Judicial Yuan” has worked out an ambitious reform scheme. Much to our regret, however, the reformers have overlooked different judicial concepts behind the system. The scheme, as a matter of fact, is wavering between two concepts. This is likely to lead to a consumption of tremendous social cost. Yet due to failure to grasp the very cause of the decease,the reform will by no means solve the problems it intended to resolve. More problems may crop up eventually.
  • 中国需要什么样的司法权力?
  • Judicial reform has been one of the important social topics in China in recent years. After speeches by state and Party leaders,lengthy articles by academics,endless studies and research,and innumerable reform measures in the judiciary, it seems that all that can be written has been written, all that can be said has been said, and all that can be done has been done. Yet, in the wake of such tremendous efforts, the level of public satisfaction with the results of judicial reform is quite low and disappointment often surpasses expectations. As a result, some people believe that the fountain of judicial reform is exhausted, and to them, the reformers and scholars should change course and try to fred the next hot spot of reform for governing the country according to law. This, of course, is not advisable. To achieve the constitutional goal of building a socialist rule-of-law country, a modernized judicial system is indispensable. This is not merely a theme in the study of jurisprudence,but also the logic of the concept of the rule of law itself. Therefore, though the road of reform may be hard and tortuous, we have no choice but to charge ahead.Judicial reform is a long-term task,not a single action that is clearly defined. The Chinese society is developing and changing. So the judicial system that is charged with the responsibility of maintaining social justice must be well adapted to the developments and changes. This paper will take a mission as to do a bold review for the social background of judicial reform, the achievements made since 1980‘s, to explore issues like the contradictions and difficulties in further reform,and most importandy, to re-affirm an ideal judicial power suited to the needs of China‘s development in the new millennium.
  • 中国司法改革的回顾与前瞻——宽沟会议述要
  • 1. A General Description of the Judicial Reform in China.2. The Judicial Reform Experiences Accumulated in other Counrtries and Area.3. The Elements Effecting the Judicial Reform.4. The Reform of Both of Judicature and Prosecuting Institution.5. Judges and Judicial Independence.6. Human Rights and Judicial Reform.7. The Further Developments of Chinese Judicial Reform.
  • 论当前我国的统一司法考试与法律教育改革
  • In the 21 century,legal education is shouldering a double historical tasks of implementing the strategy of rejuvenating China by science and education and the strategy of governing the country through rule of law.Legal education will not only serve legislative and judicial work,legal service and legal supervision conducted by legal departments concerned, but also train various highly qualified legal personnel required by the building up of a socialist country ruled by law. The establishment of the system of national judicial examination is a good beginning of the reform of judicial system. And it is also a new breakthrough in this respect. With the introduction of this aytem,institutionally, various legal disciplines and legal profession will be linked together. This is obviously helpful to put an end to the divorce of legal profession from legal education.
  • 统一司法考试研讨会综述
  • 2001年6月30日,九届全国人大常委会第二十二次会议审议通过了关于修改《法官法》和《检察官法》的决定,规定自2002年起我国将实行国家统一司法考试制度,即国家对初任法官、初任检察官和取得律师资格实行统一的司法考试。这不仅是我国司法改革的一项重大举措,也是司法改革的一个突破口,它必将促进司法官选任制度、培训制度乃至整个法学教育制度的重大变革。
  • 韩德培先生访谈录
  • 受《环球法律评论》之托,笔者有幸以学生身份在2001年4月25日专程拜访了武汉大学国际法教授韩德培先生,92岁高龄的韩先生在珞珈山寓所与笔者作了两个小时的长谈,回答了笔者的问题。
  • 性权与人权——从《性权宣言》说起
  • Sexual fights are fundamental and universal human rights. In order to assure that human beings and societies develop healthy sexuality, the following sexual rights must be recognized, promoted, respected and defended by all societies through all means. These sexual rights include rights to sexual freedom;to sexual autonomy, sexual integrity and safety of the sexual body;to sexual privacy; to sexual equity;to sexual pleasure;to emotional sexual expression;to sexually associate freely;to make free and responsible reproductive choices; to sexual information based upon scientific inquiry; to comprehensive sexuality education;and to sexual health care.
  • 家庭暴力:从国际到国内的应对(上)
  • According to relevant intemational instruments, violence against women violates women‘s human rights. Theoretically, there is no universal definition of the concept of “domestic violence”. Facts prove, however, that a broader definition is necessary so to cover different experience of survivors of domestic violence, and is useful and effective to prevent violence against women. With regard to theoretical exploration of causes of domestic violence,there are many diversified perspectives. It is worth to note that feminist research in this field has not only provided us with a theoretical framework for further analysis of causes of domestic violence, but also supplied a deconstruction approach for understanding social, cultural and legal responses that to a great extent, have perpetuated the occurrenceof domestic violence. In respect of strategies combating domestic violence, there are mainly two strategies: one involves human rights strategy, the other, legal reform strategy. The two have their respective advantages and disadvantages. We should explore the possibility of a combined approach so to work for provision, protection, prosecution and prevention of crime of domestic violence.
  • 日本司法改革的深层
  • 日本正在酝酿司法改革。关于这场司法改革的性质,日本的一些学者称为“体制改革”,甚至为“国体改革”。具体负责改革设计的日本司法制度改革审议会在其最终意见书中也指出:本次所要进行的司法改革是为了在“法的统治”这一宪法原则之下将已经进行的政治改革、行政改革、经济改革有机地结合起来的改革;是有关“这个国家形态”的诸改革中的“最后的关键性”改革。可见,日本这次所要进行的司法改革虽是“司法改革”,但其意义、性质上远远超过单纯的司法改革,确实是一项体制改革和社会改革。因此,我们在认识这次司法改革时,既需要从法和司法的角度去分析,又有必要从体制和社会角度去研究。如单纯从法和司法的观点看待这次司法改革,只会被有关司法改革议论中的漂亮用语所迷惑,只会拱手称颂,却很难领会其真实含意,更难预测其社会后果。着眼于此,本文试图从法、司法与日本社会的关系入手,探讨日本这次司法改革的真实原因、真实含意,预测其可能产生的社会后果,阐明对我国司法改革的启示。
  • 重读奥斯丁的《法理学的范围》
  • 就分析法学(analytical jurisprudence)而言,奥斯丁的理论具有十分重要的地位。他的理论,概括地说,基本体现在《法理学的范围》之中。这一文本。是纲领性的旗帜性的文献。因为,正是这一文本的出现,导致了影响深远的分析法学的浮出。即使是在今日,我们也依然需要重新关注、阅读、解释和回应这一文本所提出的观念和问题。
  • 《司法独立问题研究》课题进展
  • 在依法治国,建设社会主义法治国家的价值追求、规范设计和社会实践中,司法的重要性日渐成为社会各界毋庸置疑的共识。然而,司法自身的地位尤其是司法独立问题,仍然是当前我国法律理论和实践中一个尚未攻克的难题。为此,中国社会科学院法学研究所于2000年6月成立了以李步云教授为主持人的《司法独立问题研究》课题组,课题组的工作受到社会各界的广泛关注和支持,最高人民法院、最高人民检察院、中国法学会、湖南省法学会、湖南大学和新闻界以及福特基金会均以各种方式参与了本课题的工作。
  • 《环球法律评论》封面

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