卷首语 《法学研究》2002年4—6期目录 《环球法律评论》2002年总目录 主题研讨：贸易与环境：引言 贸易与环境，自20世纪末即所谓全球化时代以来，一直是国际讲坛上炙手可热的话题。政治家、经济学家、法学家以及各种环保人士都纷纷加入到这场沸沸扬扬的大辩论。这一现象缘何产生?辩论的结果将会怎样?其影响如何?都是值得深入思考的。在探究问题的本质之前，仅对现象的观察就可以有几个不同的角度。在贸易与环境之间架起桥梁 The linkages between trade and the environment are inescapable. However, trade liberalization and environmental protection appear to be in a tension. It is necessary to narrow the divide between trade and environmental policy goals and practices. For this purpose, the foundation of environmental policy should be strengthened and trade theory should be refined.世界贸易组织内的“环境”争端 Trade-related environmental measures, whether unilateral, based on domestic environmental regulations or based on multilateral environmental agreements might lead to disputes between WTO members. The practice of the WTO dispute settlement over this measures shows the possibility of reconciling trade and environment in the WTO. However, there are still some problems to be resolved in this regard.单边主义与环境保护 Having first questioned the novelty of the unilateral/environment debate, this article proceeds to consider two aspects of unilateral behaviour of particular interest today: the “policy-forging” and the “implementation or enforcement” facet of unilateral acts. The first facet deals with the manner in which unilateral acts shape legal outcomes in the environmental context, whilst considerations of the second facet concentrates on how legally required outcomes are avoided, mitigated or re-interpreted by unilateral acts.欧共体：追求环境与贸易的平衡 EC environmental policy and law has developed pragmatically, without a pre-fixed plan. Over the last 25 years it has managed to achieve, generally and with all due reservation, some balance between the two diverging interests of environment and trade. Where no EC measures have been taken, Member States may take any traderelated environmental measures which they think appropriate. Where the EC has taken measures to protect the environment, Member States may adopt more stringent national provisions. In both cases, national measures should be neither discriminating nor disproportionate.多边贸易规则与多边环境协定——从可持续发展世界首脑会议上的一场争论想到的 The best interest principle is an important principle established by the Convention on the Rights of the Child to promote the protection of the rights of the child. The principle is important not only because it has the legal effect of treaty law, but also because it emphasizes the protection of the child as a subject of individual rights. The paper focuses on the origin, the interpretation, and the application of the principle and its relationship with Chinese law. By sorting out and analyzing the relevant materials, the author gives an in-depth explanation of the basic meaning of the principle and explores the necessity and the methods of applying the principle in Chinese law.中法“环境法与经济”研讨会简述 2002年10月30日，中国社会科学院法学研究所与法国驻华使馆在北京共同举办了以“环境法与经济”为主题的研讨会，会议由法学研究所张若思教授和法国驻华使馆科学教育合作处官员沈天瑞主持。与会中外代表逾百名，包括政府官员、学者、律师和企业代表。兹将会议的焦点和热点问题简述为二，以飨读者。星野英一先生访谈录 渠涛(以下简称渠)：非常感谢星野英一教授能在百忙之中接受我们中国社会科学院法学研究所《环球法律评论》杂志的采访。星野教授曾经为本杂志2001年秋季号主题研讨“日本民法百年”中的“专家评说”栏目惠赐大作。在此。谨对先生以往对本刊的支持再次表示感谢。下面。能否请先生先简单地介绍一下自己的经历。哈耶克方法论个人主义的研究（下） 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 reality, and see individuals and social collectivities as meaning objects. The author thus argues that Hayek‘ s methodological individualism could only be understood in epistemological way but not in ontological way.义务、法律义务内涵再辨析 The key to understanding the concepts of “duty” and “legal duty” is the understanding of the concept of “ought to”, which has four different meanings. The one that has the meaning of duty is the one that demands acts from other people. Duty seems to come from rules, but it actually comes from social valuation and the prior commitment of the duty. Legal duty is the demand for certain act (or omission) made by the legal rules, which represent opinions of the society and the state when certain predetermined conditions are met. Its purpose is to protect certain interests from infringement.欧盟“版权指令”述评 On June 22,2001, European Union issued its “Directive of the European Parliament and of the Council on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society”. This comment is a discussion of some questions on the EU Copyright Directive, such as “reproduction right”, “rights of communication or making available to the public”, “exceptions and limitations”, “the protection of technological measures”and “the protection of rights management information”. In comparison with WIPO Copyright Treaty, WIPOP erformance and Phonogram Treaty and the US Digital Millennium Copyright Act, the EU Copyright Directive bears some new merits. For example, the EU Copyright Directive clarifies that reproduction includes direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part. Besides, the Directive deals in detail with the exceptions and limitations of the copyright in the Internet. Furthermore, to prevent the technological measures from encroaching the exceptions and limitations of the copyright, the Directive obligates the member states to promote “voluntary measures” taken by right holders, or step in and take appropriate measures to ensure that the right holders provide beneficiaries of such exceptions and limitations. China may learn something in this respect.开放型政府的法律理念和实践（下）——日本的信息公开制度 ticle discusses theA general study on Japanese Information Disclosure Law,which was passed on May 7,1999,this arbackground of the enactment of the law and points out that under people‘s sovereignty and democratism, any person may request to the head of an administrative organ the disclosure of administrative documents held by the administrative organ concerned. Besides providing us with basic structure of information disclosure system in Japan,the article also explains the concept of “administrative document” ,the exception of information disclosure in the law, the procedure for requesting disclosure and the implementation method of disclosure. Finally, a detailed explanation on information disclosure remedies in Japan, includingappeal, consultation and review has been presented.西方两大法系行政法基本原则之比较 Throughin-depth comparative study on the basic principles of administrative law of the two western legal systems, the paper reveals that each of the two systems has its own distinct basic principles of administrative law. On the other hand, these principles share some common characteristics and follow some universal rules. The basic legal principles of administrative law common to all modern western countries can be summed up as the followingthree principles: legally prescribed administration, proportional administration and administrative justice. These three principles together constitute the basic standards universally observed by modern western governments in their exercise of power.传闻证据在美国纽约州法院的适用（上） The State of New York is one of the few states in the U.S. which have not yet adopted an evidence law. This, however, does not mean that the state has made no progress in the legislative work in the area of evidence law. This paper introduces some of the remarkable reforms carried out by the New York Court of Appeals under the evidence system relating to hearsay, such as the redefinition of the admissibility standard relating to hearsay and the recognition of the statements of parties made outside the courtroom.儿童权利保护的“最大利益原则”研究（上） The best interest principle is an important principle established by the Convention on the Rights of the Child to promote the protection of the rights of the child. The principle is important not only because it has the legal effect of treaty law, but also because it emphasizes the protection of the child as a subject of individual rights. The paper focuses on the origin, the interpretation, and the application of the principle and its relationship with Chinese law. By sorting out and analyzing the relevant materials, the author gives an in-depth explanation of the basic meaning of the principle and explores the necessity and the methods of applying the principle in Chinese law.重新解读男女平等的法律含义——访挪威男女平等事务督察官 受法学所指派，我有幸访问挪威人权研究所，并就挪威有关妇女人权保障的立法与实践的问题做了半年的学术研究。由于可资利用的英文文献甚少，与有关人员用英语做访谈，就成为我收集材料的主要方式。我先后访谈8次，接受访谈的人数有12人，他们中有议会执政党成员、政府官员、心理治疗师、研究人员、女权主义者及警察。其中，对现任男女平等事务督察官米拉·克里斯丁的访谈，使我对“男女平等”这个当今绝大多数国家法律基本原则术语的法律含义，有了新的理解。微调世贸组织司法裁判与《卫生与植物检疫措施协定》：荷尔蒙牛肉案的教训 By analyzing the Beef Hormone case under WTO and elaborating the SPS Agreement, the author first discusses several important issues relating to the aims and provisions of the SPS Agreement. Then focus is given to the appellate body‘s treatment of the SPS Agreement in the Beef Hormone decision, such as the meaning of relevant articles, risk assessment, scientific standards and procedural points. The role played by WTO instrengthening the SPS Agreement and promoting standardized and international regulation of Hormone-treated beef is also dealt with creatively. The author concludes that the erosion of certain parts of the SPS Agreement can be shored upthrough future WTO jurisprudence. Future panels should give more complete and stringent guidelines about what it means to base an SPS measure on international standards. By articulating and adopting well-established guidelines for dealing with complex evidence, the WTO can demonstrate its competence and foster uniformity and predictability of its rules.