《法学研究》09年第6期中英文内容提要

陈卫东

内容提要：作为一种程序外的酷刑预防机制，羁押场所巡视制度通过邀请社会公众不定期地、未经事先通知地访问看守所，巡视看守所的羁押条件、羁押执法活动是否符合我国法律、法规的相关规定，有效地提高了看守所被羁押人的待遇、促进了监管机关执法的规范化。制度的试行还向社会公众传递了看守所规范执法的积极信息，增强了公众对看守所的了解与信赖。该试点研究通过比对试点前后的相关数据，包括衡量看守所条件、权利保障状况的指标得出了上述结论。

关键词：羁押巡视 试点 看守所 实证研究

Abstract: Lay visitor inspection system of detention place, as a kind of torture prevention system outside criminal procedure, invites lay people to be visitors to detention place unannounced and irregularly to check the detention conditions and the legitimacy of related activities enforcing detention law. This system has improved effectively the treatments of detainees. In addition, it can pass good messages to the public that the detention place has done a good job, and can increase public's confidence on the work of detention place. The lay visitor inspection system of detention place can be combined with China's People's Congress institution, which means that members of local congress are selected as lay visitors.

The visitors in Liaoyuan where we conducted the pilot research visited local detention place for 20 times. In each visit, they visited where they would like to see in the detention place and then selected detainees as interview target. They could talk with the selected detainees confidentially and without the intervention from police officers. After the visit, the lay visitors could write down their comments on the conditions and human rights protection situations in the detention place. These comments will be reported to local government and police stations which are in charge of pre-trial detention places in China.

The system can coordinate with other torture prevention institutions, such as interrogation audio or video taping. One of the strong points of it is its economical aspect, which means only small sum of money can be used to support the operation of this system. Certainly the pilot research also found some drawbacks of it. For example, China lacks the culture of volunteer, and without enough NGO and volunteers, the system can not operate for a long time. In addition, the system works better to check conditions of detention place than to protect procedural rights of detainees.

The above conclusions are got through one pilot empirical research in one pilot detention place, in which the researchers compared the data before and after the pilot including various indicators on detention conditions and protection of human rights of detainees. The empirical research used multi-methods including individual interview, group interview, collecting administrative data, observation and survey, which ensure the effects of the empirical research.

Key Words: inspection of detention, pilot, detention place, empirical research

2. 客观归责的体系性地位

陈兴良

内容提要：客观归责是在条件说所确立的因果关系范围内，对构成要件的实质判断。客观归责引入构成要件，使构成要件分为事实与价值两个层面：在事实层面以归因为中心进行构成要件的形式判断，即是否属于构成要件的行为→是否属于构成要件的结果→行为与结果之间是否存在因果关系。在此基础上，再进行价值层面的判断，即是否制造不被容许的风险，以检验构成要件的行为→是否实现不被容许的风险，以检验构成要件的结果→是否属于构成要件的效力范围，以检验整体的构成要件。只有废弃四要件的犯罪构成体系，引入三阶层的犯罪论体系，客观归责在我国刑法学中才有立足之地。

关键词：客观归责 因果关系 构成要件

Abstract: The position of objective imputation is concerned with the nature of constitutive requirements. This article discusses this problem in the context of the substantialization of constitutive requirements. Objective imputation and causation are two totally different concepts. Causation is committed to the issue of attribution, while objective imputation is concerned with blamefulness. Thus objective imputation is parallel to causation and should be coped with by substantially examining the constitutive requirements after solving the issue of causation.

Moreover, the thinking methods of causation and objective imputation are different. The issue of causation only focuses on the relationship between act and consequence, so before determining whether causation exists or not, we should first examine whether the act and the consequence exist or not. This kind of sepration can not examine the constitutive requirements substantially in some instances. In this aspect, objective imputation carries out a substantializing exanimation of act and consequence, thus goes beyond the bounds of causation and comes into the scope of blamefulness.

There is no hierarchy in the "Four Elements" theory in Chinese criminal law. Although the "Four Elements" theory contains a substantial examination criterion, i.e., the theory of harmfulness to society, this criterion has not been included into the analytic scheme of crime as a constitutive element, and is kept away from even overtops the analytic scheme of crime. There exist three theoretical obstacles to introduce objective imputation into Chinese criminal law under contemporary circumstances, that is, the insurmountable contradiction between objective imputation and harmfulness to society, the insuperable conflict between objective imputation and causation, and the unavoidable inconsistency between objective imputation and the "Four Elements" theory. Only by abandoning the "Four Elements" theory and introducing the "Tripartite Scheme" theory as the analytic scheme of crime can objective imputation theory survive in Chinese criminal law.

Key Words: criminal law, objective imputation, causation, constitutive requirements

3. 风险社会之刑法应对

陈晓明

内容提要：风险社会为理解和把握现代刑法提供了全新的观察视角，也为反思传统刑法提供了重要的理论工具。为了应对风险，有必要制定风险刑法。风险刑法在观念、功能和归责等方面与传统刑法有显著不同，对传统刑法基本原则构成挑战，并对传统刑法价值体系进行裂解，隐含有巨大风险。在风险社会，可以采用传统刑法与风险刑法并存的方式，以弥补传统刑法在功能上的不足和责任追究上的漏洞，两者互相支持，共同达成维护社会秩序和安全的目标。

关键词：风险 风险社会 风险刑法 传统刑法

Abstract: Risk criminal law results from the coming of risk society. The risk society not only offers a new visual angle for understanding and mastering modern criminal law, but also provides an important theoretical tool for re-thinking traditional criminal law. Risk criminal law tries to establish a new model of criminal law to prevent and solve risks beyond traditional criminal law.

The normalization and functionalism of criminal law become the theoretical basis of risk criminal law. The former emphasizes to model people's activities through norms in order to keep people loyal to laws and norms. The latter emphasizes that criminal law plays a more active role in preventing risks in order to maintain the safety and order of society. Risk criminal law is substantially different from traditional criminal law. It establishes a new paradigm of criminal law, adjusts its functions, changes the principle of liability imputation, re-constructs the constitutions of risk crimes and prepositionally uses punishments.

Risk criminal law transforms the value systems of traditional criminal law, thus brings about some risks and dangers. Firstly, it launches challenge to the basic principles of traditional criminal law. It has conflicts with the principle of legality, the principle of criminal responsibility and the principle of proportionality. Secondly, it splits the system of values of traditional criminal law. Its boundary of punishment is quite indefinite because it takes the necessity of preventing risks rather than the infringement of legal interests as the basis of punishment. Thirdly, it changes the principle of liability imputation, so it may excessively expand the scope of criminal responsibility.

In short, equality, freedom and rights advocated and pursued by traditional criminal law are still regarded as the basic values. Therefore, risk criminal law can not completely replace traditional criminal law, and it should be a supplement to make up for the weaknesses and loopholes of traditional criminal law. In other words, traditional criminal law and risk criminal law should co-exist. They support each other to realize the goals of maintaining the order and safety of society.

Key Words: risk, risk society, risk criminal law, traditional criminal law

4. 起诉难：一个中国问题的思索

张卫平

内容提要：我国起诉难问题主要源于我国特有的一种超法律规范的司法政策限制。这种司法政策限制主要是基于我国的现实状况、实质正义优先、传统意识以及治理习惯等因素。但这种调整以牺牲法律和司法的权威性以及法律的普遍性为代价，不利于我国的法治建设。在我国从传统法治转向现代法治的过程中，随着法律调整范围的扩大和法律体系的完善，这种政策性调整的适用应当逐步加以限制以至最终取消。

关键词：民事诉讼 起诉 受理 司法政策

Abstract: This thesis analyzes the long-discussed issue of "difficulty in filing a lawsuit" in the area of civil procedure. This issue does not refer to the situation that the court cannot accept and hear a case due to its inconformity with relevant laws. It mainly refers to the situation that the court, considering some external factors, refuses to accept some cases which conform to the required conditions stipulated in laws, regulations and judicial interpretations. This thesis points out that one main reason of this issue is the judicial policy of our country which overcomes law.

The judicial policy represents itself in civil jurisdiction as restriction and negativity. It means that judicial policy always restricts the acceptance of cases which are in line with the suing conditions. The court will restrict the acceptance of some cases, such as cases of illegal fund raising, infringement due to false information disclosed by listed company, bankruptcy disputes, tainted milk tort disputes, indemnification due to natural disaster such as earthquake, as well as cases that involve sensitive social, political and economic issues.

The reasons for the restriction include the specialty of rule of law in our real society, the limited judicial system and judicial capacity under the specified power structure, the limited regulating scope and function of existing law, and pragmatism, relativism and particularism in consciousness and methodology. In the reality of China, such adjustment by judicial policy is relatively reasonable, for some controversies which concern legal disputes actually involve political and other social factors, which cannot be independently handled and solved by judicial departments. In our country, the influence of adjustment and regulation by law is very limited, and numerous social relations are regulated by administrative and policy-based rules. The status of judicial departments decides that they lack the capability of judging independently.

However, the adjustment by judicial policy which overcomes law also bears high cost. It will obviously jeopardize the authority of law, and even sacrifice public's faith and dependence on rule of law. The author believes that in the background of social transformation including the transformation of rule of law, the judicial policy restriction on filing a lawsuit would be limited gradually and finally terminated.

Key Words: civil procedure, filing a lawsuit, acceptance, judicial policy

5. 重大过失理论的构建

叶名怡

内容提要：传统大陆民法理论关于重大过失的解说既无法提供明确的认定方法，又内在地欠缺解释力。重大过失应当是一种有认识的过失，但同时须在客观上制造了巨大的危险。它是一种偏主观的、行为人很大程度上可避免的过错，是一种具有较强道德可责难性的过错。它是介于故意与普通过失之间、更接近于故意的一种独立过错类型。有认识的认定应坚持"知道"与"有理由知道"两级分类，并有效运用司法推论和立法推定。危险巨大性的认定主要涉及损害可能性与损害程度两方面判断。重大过失的法律效果原则上与故意相同，但有例外。

关键词：重大过失 过错类型 有认识的过失

Abstract: The theory of recklessness in traditional civil law system is simple and crude in content and fragmented in system. Lacking of explanatory power inherently, it can not provide clear criterion and methods for judicial adjudication and is unable to explain why recklessness amounts to intention. The theory of fault in criminal law has always been influential to civil law, so that the recklessness theory in civil law can well absorb the essence of related theory in criminal law.

Firstly, recklessness should be a kind of conscious negligence, that is, the actor has knowledge about the high probability of the damage occurred and the non-legitimacy of his act. Secondly, the actor should de facto create a huge risk, that is, the probability that the damage would occure is very high and the damage occurred is huge after the realization of risk. Such fault is a subjective fault which can be avoided to a great extent by the actor and a kind of fault under strong moral condemnation. It falls into an independent type of fault between intention and ordinary negligence and is much closer to intention. The judgment of "knowledge" should stick to the classification of "knowing" and "having reason to know", and judicial inference should be effectively applied in typical situations and legal presumption applied where law expressly provides. The determination of the seriousness of risk refers to the comprehend judgment of the probability and extent of damage, and the cost of prevention should also be taken into account.

The legal effect of recklessness is in principle the same as that of intentional tort with also some exceptions. The legal effect of recklessness mainly includes its influence on the establishment of liability for damage, on the application of the rule of contributory negligence, on the presence or absence of the right of recourse when somebody is held accountable for other person's behavior, on the liability for damage of depository without charge or donors, on the amount of compensation for mental losses, and so on. Additionally, recklessness is the manifestation of maliciousness and thus constitutes a typical circumstance where the punitive damages are awarded.

Key Words: recklessness, type of fault, conscious negligence

6. 损害赔偿范围确定中的法律政策

姜战军

内容提要：现实生活中的损害广泛和复杂，而民法只对有限范围内的损害提供救济。法律政策决定着民法损害赔偿范围的确定。在近代民法，通过过错责任、因果关系、非财产损害不赔偿原则、直接受害人理论以及违约责任中的可预见规则等法技术过滤工具，实现的是最大限度地保障经济自由、行为自由和最低限度地救济受害人的法律政策。随着民法向现代发展中法律政策强调有限制的经济自由、合同风险更加公平的分担以及对人具体关怀下受害人最大限度的救济，各国法通过扩展无过错责任、扩大非财产损害赔偿的范围和可请求赔偿主体以及发展法定的一般注意义务来予以回应。我国损害赔偿法应明确其法律政策，并以此为前提确定更加合理的损害赔偿范围。

关键词：损害赔偿范围 法律政策 行为自由 受害人救济

Abstract: Due to the coexistence of human beings and the universality of causal connections, damage is comprehensive and complex in real society. Nevertheless, only limited damage can be redressed in civil law after they are filtered by some legal skill tools. The scope of damages is determined to a great extend by the legal policy.

By the legal skill tools like fault, causation, the rule of no redress to non-property damage in general, the theory of direct victims, the theory of violation of absolute rights, the theory of privity of contract, and the foreseeability rule in contractual liability, etc., a great deal of damage is excluded from the scope of damages. By such means, the legal policy in modern compensation law, which are to maintain maximum economic freedom, to maintain maximum general freedom, and to minimize redress to victims, is fulfilled.

However, the modern law of damages focused too much on the freedom of act, thus resulted in a serious defect in the relief of victims. Following the failure of the optimistic rationalism, the emphasis of the relevance among human beings and the pursuit of the substantial justice other than abstract justice in the new legal thoughts, the legal policy determining the scope of damages turns to the emphasis of "limited economic freedom and more fair burden of contractual risk" and "maximum redress to victims under the theory to care for concrete persons". Adapting to the transition of legal policy, many countries' legislations or judgments extend non-fault liability and the scope of damages to non-property damage as their positive responses.

There are obvious deficiencies in the scope of damages in Chinese tort law and contract law, and the draft of the Tort Liability Law of PRC for Third Discussion has also little progress. To amend and perfect Chinese law of damages, the transition of legal policy in other countries and the corresponding developments in the scope of damages should be considered and used for reference. Only then can a more appropriate scope of damages be determined in the near future.

Key Words: the scope of damages, legal policy, freedom of act, relief of victim

7. 信息网络传播权的适用

靳学军 石必胜

内容提要：制定《世界知识产权组织版权公约》（WCT）第8条是为了将数字网络中的作品传播权纳入到著作权中。我国著作权法中信息网络传播权的立法目的与WCT第8条相同。不能脱离数字网络传播方式来理解"选定的时间和地点"要件。数字网络传播具有交互性，即在数字网络中，数字信号是否开始向某个特定用户传输由该用户"在其个人选定的时间和地点"决定。从文义解释出发，数字网络传播也应适用信息网络传播权。为弥补立法缺陷，可以删除"选定的时间和地点"要件，合并广播权，确立实至名归的信息网络传播权。

关键词：著作权 信息网络传播权 WCT 数字网络

Abstract: It has become a problem whether the timed online TV broadcasting satisfies the element stipulated in the definition of the right of communication through network in Copyright Law of PRC, that is, whether the users can access online TV series "from a place and at a time individually chosen by them". This element was transplanted from Article 8 of the WIPO Copyright Treaty (WCT).

Both the WCT and WPPT address the challenges posed by today's digital technologies, for this reason, they have sometimes been referred to as the "Internet Treaties". Article 8 of the WCT intends to clarify that the transmission of works in digital networks should be the object of an exclusive right of the author or other copyright owner. "From a place and at a time individually chosen by them" in Article 8 is used to convey the interactive nature of the transmission in digital networks. The purpose of the right of communication through information network in the Copyright Law of PRC is the same as that of the Article 8 of the WCT. Because the transmission in digital networks is characterized by the interactive nature, and the interactive nature is conveyed by "from a place and at a time individually chosen by them", the transmission in digital networks can naturally satisfy such element.

A lot of real copyright infringement cases indicate that the understanding of the majority of people in relevant industries is correct, so the application of the right of communication through information network should accord with this understanding. Whether digital signals begin to transmit in digital networks to a certain user depends on that user's decision from a place and at a time individually chosen by him, so even literally interpreted, various ways of transmission in digital networks, including online TV broadcasting, are all within the scope of the right of communication through information network.

In fact, "from a place and at a time individually chosen by them" can't describe the interactive nature of digital transmission accurately. To amend the Copyright Law to correct the defects and to establish a right worthy of the name of communication through information network, this essay proposes deleting "from a place and at a time individually chosen by them" from the definition, and merging the right of broadcasting with the right of communication through information network.

Key Words: copyright, the right of communication through information network, WCT, transmission in digital networks

8. 证券监管的目标和路径

宋晓燕

内容提要：对证券监管目标的认识应该回到证券市场，只有对证券市场的功能清楚明了，才能客观地把握证券监管的目标。按照经济分析的思路，证券监管的法律架构应该服务于减少交易成本，提高市场效率。但是将提高市场效率作为唯一的监管目标有失偏颇。自然法学并不排除财富最大化和效率，而自然法学中的正义、理性、道德等丰富的思维切入点给证券监管的目标带来了更开阔的视野。证券监管的目标应该包括公平价值引导下的投资者保护和理性限度内的效率。基于不同的分析范式，监管制度的具体设计也表现出不同的选择取向。

关键词：证券监管 目标 路径 经济分析法学 自然法学

Abstract: The fundamental purpose of security regulation should find its answers in security market. While the functions of security market are known as direct financing and pricing, the legal framework of security regulation should be submitted to decrease transaction costs and improve market efficiency according to economic analysis of law. However, making "to improve market efficiency" the only purpose couldn't be considered as a comprehensive thinking.

Firstly, it still doesn't reach the level of effective market even in the developed countries' markets. The fact of irrational investment is very widespread among the world's markets, so effective pricing to improve market's efficiency through considering information may not be available. Moreover, the key point of economic analysis is pricing, but there do exist other important functions in the security market, such as the distribution of shares and system risk. These issues couldn't be resolved simply by the means of pricing.

Secondly, whether the purpose of security regulation should only be efficiency, or should include other lists like fairness and justice? In fact, security market is a confidence market where investors' confidence comes from the operation system of the market. The requirements on fairness and justice are what make investors have confidence. If investors lost their confidence, they will choose to leave the market and make the pricing procedure nonsense.

Thirdly, the contents of security law are in accordance with the rationales of natural law. While forbidding insider transaction and requirement on information disclosure are able to interpret what are fairness and justice, the rule of anti-fraud means a good way to reach "common good". And from the point of view of natural law, there isn't fundament contradiction between efficiency and good. The purposes of security regulation should include the protection of investors and improving efficiency within limited ration.

Finally, the insights and solutions offered by natural law reasoning may provide a different regulatory regime. As to the benefit conflict of security analysts, while the economic analysis' resolving plan considers the necessity of relative regulation regime, listing other alternative regulative methods and evaluating the cost and benefit of all methods, the natural law puts emphasis on the mixture of mandatory and non-mandatory methods to improve the social good.

Key Words: security regulation, purpose, route, economic analysis of law, natural law

9. 公法传统的历史进化与时代传承

--兼及统一公法学的提出和主张

袁曙宏 韩春晖

内容提要：公法传统的历史演进经历了以公法观念为主要载体和以公法理论为主要载体两个阶段，并将进入以"总体的公法理论"或"整体的公法学科"为主要载体的第三个阶段。公法理论的变迁中包含解构和建构二元变量，两者互动形成一种渐进的、局部演进的发展结构，但已经陷入难以为继的境地，需要重大突破和全面创新。在一定意义上，统一公法学的提出担当了传承公法传统、创新公法理论的学术使命，展现出传承与嬗变的双重面相,体现了开放与内化的双向态势，符合现代公法理论发展与创新的基本规律。

关键词：公法传统 公法理论 统一公法学

Abstract: The tradition of public law is a running river. Its historical evolution has undergone two phases, i.e., the period when the notions of public law are its main carrier and the period when the theories are its main carrier. And it will turn into the third phase, namely, the phase of the general or integrated theory. The general theory of public law means that it has a particular theoretical foundation, constructs an independent and precise system of public law, integrates the traditions containing in the notions and theories of public law, and produces specific knowledge of public law openly. Only the general theory of public law can make all the traditions of public law carried by the notions and theories become "concourse", escape "being broken" and come down incessantly.

The evolution of public law theory embraces two variables, that is, deconstruction and construction. The interplay between them brings about a gradual-and-partial developing pattern. This developing pattern makes the theory of public law depart from the theories of politics and nation, inherit lots of traditions, unearth the inherent mechanism of public law, and form the key minds of public law. However, this pattern has entered into a condition which can not be hold on and needs being broken through now.

To a certain extent, the uniform science of public law plays the dual roles of succeeding the tradition and developing new theories. Of course, every innovation of theory has changed the original tradition, and has been kept in the tradition at the same time. This process brings about the growth of new tradition. Equally, the selective succession and alteration of the tradition by the uniform science of public law reconstruct the system of traditional public law, thus it becomes a new pattern of studying public law.

The generation and developing path of the uniform science of public law have maintained two kinds of trends, i.e., opening and integrating. In conclusion, in the long running river of public law tradition, the development and innovation of modern public law theory should look back upon the past, lay foots on the status quo, and forecast the future. The innovation of modern theory should be the inheritance and development of the tradition, and should be the growth of a new tradition at the same time.

Key Words: the tradition of public law, the theory of public law, uniform science of public law

10. 程序违法行政行为的补正

杨登峰

内容提要：如何处理依法定程序行政与行政效率之间的矛盾是行政法经常面对的难题。在处理程序违法但实体内容正确的行政行为时所面临的正是这样一个问题，而补正则是协调这两项原则之冲突的一项折中方案。对单纯程序违法的行政行为采取比较宽容的态度并加以灵活处理是国外行政法的总体趋势，只是宽容程度和处理方式有所不同。权衡我国相关因素并比之于其他国家，借鉴德国经验、确立补正制度是必要的，但在设定补正要件和期限时，应比德国更为严格，且应协调好补正与处理程序违法的其他制度之间的关系。

关键词：行政行为 程序违法 补正制度

Abstract: It is an eternal problem about how to deal with the conflict between the principle of due process and administrative efficiency. When dealing with the administrative action violating some procedures but with a correct decision, the very problem emerges. There may be many ways to deal with the trouble. As an eclectic method, making an amendment has been advocated by many scholars recently.

The amendment, as a remedy, has been prescribed in Chongqing Administrative Procedure Interim Regulations (Expert Propositional Draft, 2003), Administrative Procedure Act of the People's Republic of China (Expert Propositional Draft, 2004), and especially Hunan Provincial Administrative Procedure Provisions (implemented on October 1st, 2008). But there are many differences among these three documents. What's more, the amendment is not compatible with other remedies about unlawful administrative actions, such as revocation, correction and voidance. So there are still a lot of problems to be resolved concerning to amendment.

The amendment has been prescribed in the Administrative Procedure Act of Germany, which was put into force in 1976, and the ideas of amendment embodied in the above three documents derived just from Germany. In other countries, such as France, Portugal, Japan, Korea, Britain and America, although the comparable legal system doesn't exist, they take also a lenient policy on administrative actions which only disobey procedure provisions. Therefore, it is feasible to use German amendment for reference, although appropriate alteration is necessary.

The particular circumstances of a nation decide the method selection, such as the economic and politic aim, the citizen's attitude to principle of procedural legality and efficiency, and the citizen's opinion on the procedural independent value and the procedure instrumentalism, etc. According to the situations of China at present, it is necessary to prescribe amendment system in the Administrative Procedure Act of China in the future. And we should choose a stricter policy than Germany. At least, when an administrator does not hold necessary hearing or give sufficient reasons, the decisions made by him should not be legitimated by amendment. What's more, this system should be compatible with other remedies for violation of procedures.

Key Words: administrative action, violation of legal procedure, amendment

11. 自然垄断产业授权立法成本的控制模式

郭洁

内容提要：自然垄断产业是授权立法的主要适用领域。在现代规制的效率目标下，授权立法必须控制代理成本。授权幅度、程序控制、规制机构的独立性、规则的监督这些单一控制工具对于最小化代理成本存在着一定程度的功能障碍，结构控制模式才能实现成本控制的功能整合，并解释各国多样化成本控制制度的权变特征。中国自然垄断产业授权立法应利用结构模式，结合国情，优先选择适应性的规制改革路径。

关键词：自然垄断产业 授权立法 立法成本

Abstract: Natural monopoly industry is the main field of authorized legislation. From the view of efficiency of modern regulation, authorized legislation should control its agent cost, which also becomes the central content of the governance structure of natural monopoly industry of many countries. There are mainly two modes to control agent cost, that is, the single control mode and the structure control mode.

To control the scope of authorization, to make authorizing rules, to maintain the independency of regulation organs and to perfect the procedure of authorized legislation are the four main specific tools used by many countries adopting the single control mode, although different countries have different emphasis. Although the single control mode can decrease the agent cost of authorized legislation, it educes new cost which also should be controlled. To overcome this defect, different control tools should be integrated to support each other, thus the cost control mode shows a transition from the single control mode to the structure one.

The structure control mode has introduced a variety of control tools into itself. It analyzes the relationships between these tools and agent cost, and selects different system tools according to different circumstances. The structure control mode can not only realize the integrity of different functions of different control tools, but also reduce the side effects of different tools and realize their functional complementation. The structure control mode has also revealed that, in different institutional endowments, the systematic tools of different countries to control agent cost can be variable and multiple.

The reality of Chinese regulation reform of natural monopoly industry shows that the decision maker has selected the single control mode and neglected the effect of the structure mode, and such approach selection cannot adapt to the need of reform. The ideal mode to control the agent cost of Chinese natural monopoly industry authorized legislation should make an organic integration of various control tools to construct a structure control mode. And the adjustment of authorization scope should be a priority in the short-time plan.

Key Words: natural monopoly industry, authorized legislation, cost control mode

12. 人民自决权与国家领土完整的关系

赵建文

内容提要：人民自决权与国家的领土完整是统一不可分割的；人民自决权不具有改变现有国家边界的效力；国际法不承认一国的少数人民通过自决实行单方面分离的一般权利；国际法尚未肯定也未否定"救济性分离权"；国际法承认有关各方经自由协议达成的分离安排的合法性；国际社会应当通过多种途径实现人民自决权与国家领土完整的和谐统一；有关国家应当依照国际法解决因单方面分离行为而引发的冲突。

关键词：人民自决权 国家领土完整 单方面分离 国际法

Abstract: Both the right to self-determination of peoples and territorial integrity of a state are fundamental principles of contemporary international law. On the whole, they are harmonized and inseparably connected to each other and have no contradiction between them.

The right to self-determination of peoples has no effect of altering the existing boundaries between countries. It is clear that international law does not recognize a general right of minority to secede unilaterally from their "parent" state. International law attaches great importance to the territorial integrity of a state and leaves the issue of unilateral secession as a domestic affair to the "parent" state. International society also has the duty not to recognize the unilateral secession. Moreover, international law has neither affirmed nor denied the right to remedial secession of minority. Whether the alleged right to secession in the name of self-determination should be permitted or not should be judged case by case.

In the other hand, international law does not exclude the possibility of secession arrangements reached by free agreements of all parties concerned. It is necessary for a legitimate secession to conform to the self-determination of related people. States established in violation of rights to equality and self-determination should not be recognized as subjects of international law.

International society should realize the concordance and harmony between self-determination of peoples and territorial integrity of a state by various ways, among which to protect the rights of members of minority is a necessary requirement. States should avoid external self-determination or secession through "good governance" or "internal self-determination", i.e., minority should obtain the status of subjects of autonomy or other forms of self-determination. It is the duty of states to promote the right to self-determination of peoples and protect the rights of minority in accordance with the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 1992.

Peaceful methods and means should be used to settle the conflicts arising in relation to secession. Nevertheless, a state is entitled to use adequate force, including armed force, to defend its sovereignty, territorial integrity and political unity. In any case, universally recognized norms related to human rights should be respected.

Key Words: right to self-determination of peoples, territorial integrity of a state, unilateral secession

13. 识别的对象与识别理论的展开

宋晓

内容提要：国际私法的识别问题是独特的法律问题，只与法律适用有关，而和管辖权无直接关联。理论纷乱的源头很大程度上源于对识别对象的认识不清。识别的对象是法律规则，识别的中心问题是识别外国法规则和解决识别冲突。识别过程反映了实体规则与冲突规则的对向交流关系，法院地法说和准据法说各执一端。新法院地法说灵活游动于两端之间，透显了识别问题的本质和实践要求。识别问题只宜强化理论指南，而不宜通过立法解决。

关键词：识别 法院地法说 准据法说 新法院地法说

Abstract: As a special legal problem, characterization in private international law is deeply embedded in Savigney's theory, harassing scholars of several generations in this field. Actually, characterization focuses on the interpretation of operative facts which are part of a conflict rule, so it relates only to the process of choice-of-law, and has nothing to do with the civil judicial jurisdiction.

Among fact, cause of action, legal relationship and legal rule, which is the object of characterization? To a great extent, the confusion girding this issue gives rise to all the controversies around characterization. The answer should be the substantive legal rules (mainly the foreign substantive rules), based on which the parties state their facts and assert their rights. In fact, characterization reflects a mutual communication between legal rules (especially the foreign rules) and forum's conflicts rules. Consequently, the key issues of characterization are to classify foreign legal rules and to resolve the conflicts of characterization.

When the object of characterization is accepted as legal rules, various theories or approaches on characterization, their strongpoint and weakness as well, will be easily understood. "The lex fori doctrine" prefers the conflict rules, while "the lex cause doctrine" prefers the substantive legal rules, both of which stand at the opposite ends of the spectrum, reflecting one side of the same coin and neglecting the other. However, two other approaches, that is, "the comparative law and analytical law doctrine" and "the new lex fori doctrine", attempt to surpass the mentioned two theories by trying to take both ends of the spectrum into consideration. Comparatively, "the new lex fori doctrine" deeply touches the nature of characterization, while "the comparative law and analytical law doctrine" is too Utopian to be practical.

In conclusion, the way to characterization remains to be a flexible and unsettled process, like swing of the pendulum, oscillating between the two extremes of the conflict rules and the substantive rules, and finally stopping at a certain point based on specific cases. The issue of characterization, naturally, should be resolved by providing the judges with guidance from theories, principles and approaches, rather than enacting legislative rules by parliament.

Key Words: characterization, the lex fori theory, the lex causae theory, the new lex fori theory