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  • 卷首语
  • 社团与法律:引言
  • 结社,人之群性使然。人有善恶,社分雅俗。古时三两文人墨客同聚,或填词赋诗,或击乐引吭,是为雅集。上至朝臣下至百姓,凡同姓、同族、同乡、同庚、同窗、同道,皆有结社佳话相传。而官场沆瀣、聚啸打劫一类,自属俗集乃至“恶集”。征之于史,结社从来都是有规则法度的。社团内部皆有章程约法,各国法律多有结社规定。社团之生存与发展空间实为法律所设定。结社除与法律有关外,还颇受当时社会政治气氛影响。例如,若上下和谐,则君必不以结社问罪于臣;如上下有隙,则骤兴之朋党祸患,其结果不胜惨烈。清末列强入侵,民族危亡,西方观念与制度亦船载以入,士人呼号,百姓响应,结社之风骤起。从太平天国到义和团,从公车上书到同盟会,从农会、工会到民盟、九三学社,从商会到政党,社团的产生和发展在中国现代史上扮演了重要的角色,关于结社的法律也经历了复杂的变迁,并为我们留下了丰富的研究资源。
  • 结社自由与市民社会
  • This paper includes a survey of domestic law, chiefly of the constitutional provisions, on the freedom of association and some general reflections on the functions of association and its place in private domestic law,followed by an analysis of the relevant international law, mainly of the ECHR and its ease law. Finally, by comparing the outcome of above analysis, the author puts forward some propositions about the possible and desirable way in which this freedom further could be developed in the practice of the ECHR institution.
  • 中国商会制度的创立
  • Guild is the earliest association in China in the modem context as well as the association of the greatest social influence. In the legal perspective, the establishment of guild is a process of the establishment of the identity of merchant and a process of the systemization of commercial organization. According to this view, the guild in modem China is a collective association made up of merchants from all industries which plays a role of mediator between the government and merchants. Compared with the guild in western countries, Chinese guild is more official and relies more on the catalysis of legal institutions. The effect of such catalysis is quite remarkable, which modify,assimilate all kinds of commercial organizations and then becomes a beneficial group of independent identity. Guild has spread all over China and become a main representative agent of local commercial society since late - Qing. The government also uses the guild as an important media for commercial administration. Different from the guild in western countries, Chinese guild contains beth civil and official elements. According to the close relationship between the guild and the government, guild is a semi - official agency. Its leader and some members are all of quasi-official status. As the most widespread and important association, guild plays an indispensable role between the government and merchants. It plays as a connector in the process of implementation of new policies in late - Qing.It is also an indispensable social force in the revolution period. The commercial association is the result of the development of modern commerce and social transition. Merchants could not survive without modern commerce. In other words, under the modern commerce, the economic foundation is not feudalGuild is composedeconomy but capital economy.of new merchants and some capitalists. The establishment of guild means the appearance of an independent social association. It strengthens the relationship betwee...
  • 中国工会的历史、现状及有关问题探讨
  • Currently, apart from those in Hong Kong, Macao and Taiwan, there are 120 million trade union members and nearly 1 million grassroots - level trade union organizations in China, all of them are under the unified leadership of the All - China Federation of Trade Unions. In China, the first trade union organization, the Packing Workers‘ Federation, was established in Guangzhou in 1851 .In 1908, the Qing Government promulgated the first law on association in China, namely the Law on Association and Assembly. On 24 February 1922, the Guangzhou Municipal Government adopted the Regulations on Trade Unions, which provided that any laborer who had reached the age of 16 can organize trade unions and that trade unions were legal persons. This was the beginning of trade union legislation in China. During the Second Revolutionary Civil War, the following laws and regulations on trade unions had been promulgated: Organic Law of Red Trade Unions, which was adopted by the Administrative Committee of Jiangxi Province in January 1930 and provided for the nature and tasks of trade unions, and the Draft Trade Union Law,which was adopted by the Congress of Workers, Peasants and Soldiers in Western Fujian Province in March 1930. Trade union movement developed rapidly during the first 3 years of the People‘ s Republic of China, but suffered great loses under the influence of “ultra- leftist” ideology in the years that followed, almost totally destroyed during the period of “Cultural Revolution”, and started to develop again in the late 1970s. On 29 June 1950, the Central People‘s Government promulgated the first Trade Union Law of the People‘s Republic of China. In April 1992, the second Trade Union Law was adopted by the National People‘s Congress.On 27 October 2001, a decision to revise the Trade Union Law was made by the Standing Committee of the Ninth National People‘ s Congress. The revised Trade Union Law is the third one in the history of the People‘ s Republic of China. Trade ...
  • 现状与未来:我国社团立法状况述评
  • 一 成效与不足:社团立法状况浅析。十一届三中全会以来,我国社团立法取得了一定程度的发展,结束了过去那种无法可依状态,但总体讲还很不完备,主要问题是。
  • 深圳市社会团体发展的现状分析
  • 一 深圳市社会团体发展概况。1979年以前,深圳尚属广东省宝安县管辖的一个乡镇,几乎没有什么社团组织。1980年8月深圳经济特区正式成立后,随着社会主义市场经济体制的建立,经济日益繁荣发展,人口素质不断提高,再加上深圳毗邻港澳,地理位置特殊,信息比较灵通,对外交往不断增多,人们的思想观念比较解放,民主意识增强,公民的结社活动日益增多。20多年中,社会团体数量迅速增加。1997年达到历史最高纪录917个。其后,经过清理整顿、重新登记,社会团体虽然在数量上减少了,但在质量上却提高了,结构趋于合理,分布更加均匀。截至2001年底,经过清理整顿合格而重新登记的市、区社团共有622个。
  • 近期中国社团法研究中的几个热点问题
  • 随着改革开放以来我国社团组织数量“爆发式增长”,以及“依法治国,建设社会主义法治国家”被确立为我国的治国方略,对中国社团法律制度的研究自20世纪90年代中期开始逐步受到学术界的重视。就笔者掌握的资料看,该领域的研究大致集中于下述三个方面:一是对改革开放以来我国社团组织发展状况的认识,其探讨的核心问题是社团数量的“爆发式增长”是否改变了我国国家与社会关系的性质;二是对我国现行社团法律制度的评论,其评论的焦点是《社团登记管理条例》规定的“双重管理体制”和有关社团成立的规定;三是对我国新的社团立法的构想。
  • 国际范围内社团立法的成就与问题
  • 尽管到目前为止,有些国家还没有加入两个人权国际公约和国际劳工组织的几个有关结社自由的核心公约,但是经过50多年发展,人权领域还是取得了很大的成就。人权已经成为合法性的基本标准,尊重人权已经是文明世界的基本准则。作为基本人权的结社自由及其原则社会中发挥了积极的作用。表现在下列方面。
  • 《法学研究》2002年1—3期目录
  • 杰·柯恩教授访谈录——中国法研究、法律改革及其他
  • 杰罗姆·柯恩(Jerome A.Cohen)教授是美国当代中国法研究的开创人之一。从60年代初开始研究中国法以来,柯恩教授对美国的中国法研究做出了重要的贡献。这些贡献包括:创建哈佛大学法学院东亚法律研究中心、倡导中美之间在法律和其他方面的友好合作与交流(包括担任北京-纽约姐妹城市美方主席)、积极协助中国当代的法律改革、培养大量专长于中国法的海外学者和律师等等。(对柯恩教授更详细的介绍,可参见《美国的中国法研究:杰罗姆·柯恩教授纪念论文集》序言,载北大法律信息网,http://2111.100.18.62/fxsk/YDSG/reviewcontentasp?fid=15117)
  • 哈耶克方法论个人主义的研究(上)
  • This paper deals mainly with Hayek‘ s methodological individualism as explained by him in his Individualism and Economic Order- Revolution of Science. By this methodology, Hayek argues against both the name individualism and the simple hoslism because these two methodologies make a methodological mistake: they misunderstand the methodological abstraction as the ontological realty, and see individuals and social colleetivities as meaning objects. The author thus argues that Hayek‘ s methodological individualism could only be understood in epistemnlogical way but not in ontological way.
  • 清末和民国时期的司法独立研究(下)
  • With Westem 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 Westem 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 modern 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 shwon by Chinese when facing the process of westernization of traditional Chinese 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 Government, the “Educational Government” of the Guomindang Government in Nanjing and the “Constitutional Government”. 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.
  • 徘徊于前苏联模式下的刑事责任根据理论及前景展望
  • Criminal responsibility and its grounds are not only points at issue in criminal theory in China,they are also the heart of the matter in criminal law in the former Soviet Union. A wide debate focusing on this issue had been held in 1950‘ last century in the former Soviet Union, with opinions varying greatly among the informed people. As the consequence, the doctrine of criminal components serving as the determinant came out of that debate. In 1970‘, some new notions and theories emerged. However, up till now, criminal law in Rusia still follows the doctrine of criminal components serving as the determinant just as in the past. In the meantime, though there are some new developments in the theory of grounds of criminal responsibility, yet we have never cast off influence of notions of criminal components and other relevant theories of the former Soviet Union. How to break through all barriers of traditional concepts, to absorb the quintessence of modem criminal theory, and to establish a theoretical system of criminal law covering criminal components, criminal responsibility and criminal punishment is just the purpose of this article.
  • 家庭暴力:从国际到国内的应对(下)
  • According to relevant international 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 occurrence of 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.
  • 韩国1998年《外国人投资促进法》
  • The article introduces exhaustively 1998 Law of South Korea on Promotion of Foreign Investment(hereinafter referred to as 1998 Law on Foreign Investments) while also touches upon historical change and development of system of direct investments by foreigners in South Korea. In a great number of laws pertinent to direct investments by foreigners in South Korea, 1998 Law on Foreign Investments is one of the most important legal documents. In the course of amendment, the fundamental principle followed changed from the principle of “regulation and administration” to one of “assistance and promotion” .It mainly deals with system of application and report of investments by foreigners. In order to speed up processes of various acceptance/permit formalities, the law provides that within KOTRA, a Center for Assistance of Foreign Investments shall be instituted and One-stop service system shall be set up. Besides, the tax preferential system has been expanded in the said law, defining clearly regions where investments by foreigners may be made and financial and economic assistance central government shall provide to local governments on purpose to encourage the latter to implement measures for absorbing foreign investments. The author points out that against the background of global economic integration, 1998 Law on Foreign Investments serves as a new starting point of South Korean government to seek development in ever fierce competition of international capital market.
  • 欧洲归来话人权
  • 2001年10月,我受中国社会科学院法学研究所指派,参加由欧盟项目办公室和司法部组织的中国一欧盟法律和司法合作项目高级访问者代表团,到欧洲进行了为期一月的学习考察,先后访问了英国、丹麦、比利时、德国以及欧盟和“大欧洲”的有关机构和组织,所涉及的内容比较广泛。大多与公民权利的司法保护有关。本文仅在访问所涉及的范围内,参考有关文献,对欧洲国家在公民权利司法保护方面出现的几种趋势作一概括叙述。
  • 不知老之将至——波斯纳《衰老与老龄》代译序
  • 1995年,56岁的波斯纳法官出人意料地出版了《衰老与老龄》。出人意料不在于波斯纳继续贪得无厌地推进了从经济学进路研究非市场的行为的视角,而在于他把学术目光从性的领域(《性与理性》[1992])投向了老龄化这样一个在法律学术界一直不大看重的领域;的确,这个问题远不如性那么有意思,那样容易引人注目。出人意料还在于,这本书在波斯纳的学术传统和生涯中似乎有点横空出世的感觉。此前,波斯纳发表的论文著作中几乎没有迹象显示他正关注和讨论过这样一个问题(尽管事后看《司法/正义的经济学》中已经涉猎了这样的问题,同时这在某种程度上也是《性与理性》中讨论的生育问题的另一种方式的延伸)。写作此书时,波斯纳本人身处壮年,在美国法官中则当属中年,因此老龄问题似乎也还不是他这位法官的人生问题。此外,老龄问题在美国社会中也并非一个学术热点。但就这样冷不丁,波斯纳拿出了一本不仅令法学家感到意外(这本书是波斯纳著作中最少法律家书评的一本),而且许多人口学者甚至专门研究老龄化问题的学者也不能不予以赞许的著作(我在网上就发现这本书被列入了一些人口研究院研究生的推荐著作)。
  • 《环球法律评论》封面

    主管单位:中国社会科学院

    主办单位:中国社会科学院法学研究所

    社  长:张广兴

    主  编:徐炳

    地  址:北京市东城区沙滩北街15号

    邮政编码:100720

    电  话:010-64022194

    电子邮件:[email protected]

    国际标准刊号:issn 1009-6728

    国内统一刊号:cn 11-4560/d

    邮发代号:2-529

    单  价:25.00

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