《法学研究》2010年第4期中英文提要

徐继强

内容提要：对宪法权利的理解、解释和落实必然遇到的一个核心问题是，宪法权利能否因其他宪法上的利益、公共政策以及与之相冲突的权利而受到限制。从规范法学的观点来看，宪法权利具有一种复杂的结构，既内含排他性层次，又内含权衡的层次。因此，宪法权利推理呈现一种衡量与不衡量结合的双阶结构。宪法权利之作为权利，是一种对公共权威作出某种行为时所依凭的理由的限制。对某些政府行为的理由，宪法权利能将其坚决排除出去，而对另一些政府行为的理由，包括为了公共利益，则需要和权利仔细加以权衡而做出取舍。这样的宪法权利规范及其推理体现的是一种理性的、民主的政治慎思机制。

关键词：法律规则 法律原则 宪法权利 推理

Abstract: Since the constitutional rights clauses tend to be highly abstract and generalized, their meaning should be clearly articulated by either legislation drafting or the exercise of constitutional review so as to protect citizens' rights. The process of articulation should not be arbitrary and should be subject to objective reasoning.

The key issue is whether the constitutional rights can be restricted to accommodate other constitutional interests, public policy or other rights. There are two polarized theories concerning to this issue. One contends that constitutional rights are absolutely exclusive, while the other allows the flexibility for balancing. However, the constitutional rights tend to lay out a complicated structure with a combination of exclusiveness and flexibility, as is evident in both the text and application of the majority Constitutions in the world. Consequently, the constitutional right reasoning is a double-layer structure that includes both balancing and non-balancing features.

Thus the initial rights enjoyed by the citizens are not always superior to the public policy. And the restriction of constitutional rights is not always prohibited. The core of the constitutional rights implementation lies on the legitimization of the restriction. And the legal effect of constitutional right norms can not only be judged by the internal characters of rights, but by the balancing of other elements.

Given that in China the primary approach of implementing constitutional rights is through legislation, the structural characters and the reasoning process of those rights have not yet be demonstrated. But this fact relates to the fundamental problems of whether the government wants to protect constitutional rights and whether the citizens can actually enjoy those rights. International experiences tell us that the constitutional rights reasoning should accommodate democratic and rational values. The structure of constitutional right norms and its reasoning model above-mentioned are just the mechanism which can make it.

Key Words: norm, principle, the reasoning of constitutional rights, balancing

2. 权益侵害之要件化

龙俊

内容提要：伴随着侵权责任法的出台，我国传统的构成要件理论已经陷入实质和形式两个层面的困境，有必要依第6条第1款的文义对之进行重构。该款规定的"权益侵害"应该作为一般侵权行为的独立构成要件，在功能上取代违法性要件，在地位上取代损害要件。一般侵权行为的构成要件应包括行为、权益侵害、责任成立的因果关系、过错，这是第15条所规定的各种责任形式所共通的构成要件；而损害和责任范围的因果关系则为损害赔偿责任的附加构成要件。为使权益侵害要件具有可操作性，在解释上可引入日本的相关关系理论，对权利和利益进行区别保护，让不同层次的权益对应不同判断基准的过错。为与其规范功能相适应，侵权法宜采狭义的权利观。

关键词：权益侵害 一般侵权行为 构成要件

Abstract: With the enactment of the Tort Liability Law of PRC, the traditional constituent elements theory of tort has trapped into dilemma both in substance and in form. On the substantial level, the traditional theory does not distinguish interests from rights, so could merely solve simple and traditional cases of tort, and seems of less use when confronts complex and modern cases. On the formal level, there exists conflict between the traditional theory and the literal meaning of Paragraph 1, Article 6 of the Torts Liability Law. The traditional theory could not explain the relationship between Paragraph 1, Article 6 and Article 15 of the Tort Liability Law either.

Therefore, it is necessary to reconstruct the constituent elements theory of tort according to the literal meaning of Paragraph 1, Article 6. That is, "infringement on right or interest" as provided by this paragraph should be considered as an independent constituent element of tort. As a result, it replaces the element of illegality in function and the element of damage in position. Thus the general constituent elements of tort include act, infringement upon right or interest, causation of liability establishment, and fault. These four elements are the common constituent elements of all kinds of tort liabilities provided by Article 15 of the Tort Liability Law. Meanwhile, compensation for damage, with two additional elements of damage and causation of liability scope, is merely one sort of tort liabilities.

In order to apply the element of infringement on right or interest appropriately, it is suggested to introduce the theory of Interrelation which has been generally accepted in Japan. The theory aims to protect rights and interests distinctly, that is, rights and interests of different levels correspond to different standards of fault. To adapt to the function of this element, tort law should adopt a narrow view of right, in which right refers to absolute right with clear extension in the private law, while relative right, frame right and basic right should be classified as interests.

Key Words: tort, infringement on right or interest, constituent element

3. 社会视野下的死亡赔偿

巩固

内容提要："同命不同价"源于目前占据学界主流的继承丧失说及相应制度安排；在对其批评基础上提出的生命损失说，虽有反思性，但仍不能解决根本问题。它们本质上都是损害填补思维的产物，把死亡视为个体利益的损失加以填补。从社会角度看，生命权被侵犯还具有重要的伦理意义。死亡赔偿实际上要综合发挥救济、弘扬、惩罚、预防等多种功能，结合社会现实，考虑社会效果，继承丧失说及其倡导的个殊化赔偿模式殊不可取，死亡赔偿应向相对定额发展。侵权责任法的理论基础仍是继承丧失说，该法第17条并未真正解决"同命不同价"，应通过对死亡赔偿金的扩大解释予以弥补。

关键词：死亡赔偿 损害填补 多元平衡

Abstract: Compensation for death is a kind of civil compensation liability due to the illegal infringement on the right of life. According to our legislation, there is great disparity between the damages for similar cases of death, which gives rise to a wide range of social controversy and has become one of the difficult problems for the Tort Liability Law of PRC to solve.

According to the theory of "loss of inheritance", death compensation is the remedy to the close relatives and stakeholders of the deceased whose prospective property interest is damaged by the death. Such theory claims to estimate the loss and pay the compensation according to the earning capacity and life expectancy of the deceased. The existing provisions in China have taken a compromise of this theory and determine the damages mainly on the household register. This is the root of social blame for "similar lives but with different values".In recognition of the shortcomings of the "loss of inheritance" theory, some scholars put forward the theory of "loss of life", which claims that the death compensation is the compensation for the loss of "life interest" of the deceased. It is a reflective theory, but full of logical deficiency and hard to carry out, so cannot solve the fundamental problem.

Essentially speaking, the theories of "loss of inheritance" and "loss of life" are both the product of traditional civil law thinking of filling up the damage, in other words, they regard the death as the loss of individual interests which need to be filled up. But from the social perspectives, in addition to fill up the dependents' individual interests, compensation for death bears a variety of functions of relief, punishment, promotion, prevention and so on. The theory of "loss of inheritance", which emphasizes on compensating for personal property loss of the dependent and advocates individualized compensation model, can not give full play of the multiple functions of death compensation, can not embody the respect for the value of life, and is contrary to the spirit of equality. From the ideal angle, and taken social realities into account, China's death compensation system should develop in the direction of "relative fixed amount", tilt to the weaker and play comprehensive functions of relief, promotion, prevention, punishment and so on.

Key Words: compensation for death, filling up the damage, multiple balancing, society

4. 情势变更原则的类型化研究

韩强

内容提要：情势变更原则具有内涵抽象、标准不明、极易被滥用的弊端，在理论和实践上具有极大争议。为正确把握情势变更原则的适用条件，妥当设置情势变更原则适用的法律后果，除参考各国立法例和理论研究成果之外，还应以总结裁判经验为最有效的研究方法。在研究判决材料的基础上，认知司法者对情势变更原则的理解程度和行动取向，可以为我国司法实践正确处理情势变更问题提供稳妥且具有可操作性的学理指引。

关键词：情势变更原则 类型化 法律解释 法律续造

Abstract: How to apply the principle of substantial change of circumstances is an inevitable problem of the contract law practice in every jurisdiction. The legislations, judicial precedents, theories and even international law are exploring, in various degrees, on the topics of whether or not to admit this principle, and how to define the conditions for applying it and its legal consequence. Our contract law has no clear provisions about this principle, but it is always deemed as an important legal problem in the realms of judicial practice and theoretical study. In 2009, the Supreme People's Court put in place the second crucial judicial interpretation concerning to the contract law, within which the principle of substantial change of circumstances is definitely listed as a specific legal institution applicable by the courts.

The principle of substantial change of circumstances aims at rectifying the various negative effects of legal formalism and pursuing substantive justice in individual cases. Because the superordinate concept of this principle is the principles of justice and good faith, it is abstract in connotation, unclear in standard and easily abused, and has aroused much controversy theoretically and practically. In order to grasp the applicable requirements precisely, set up the applicable mechanism strictly and realize the safe application of this principle as far as possible, it is undoubtedly the most efficient research method to analyze, organize and summarize the precedents other than referencing to the diverse legislative patterns and theories of various countries.

There are a great deal of precedents and case materials available on the judicial application of this principle home and abroad. What's more, our people's courts in different levels have formed abundant judgments on the application of this principle during the past 20 years. By applying the categorization method, we can promote the essences and inevitable mistakes abstracted from these judgments into theoretical model with intrinsic logic system, thus provide beneficial references to further research and judicial application of this principle.

Key Words: the principle of substantial change of circumstances, categorization, law interpretation, law making by judicature

5. 反垄断诉讼的价值定位与制度建构

刘水林

内容提要：反垄断诉讼是反垄断法实施的重要机制之一，是反垄断法理论研究和司法实践中的重要问题。对此问题有两种研究思路：一是以个人权利为中心，将诉讼看作争议解决机制；二是以秩序建构为中心，将诉讼看作建构理想秩序的重要机制。反垄断法的产生、发展与有机社会的生成同步。垄断行为属于风险行为，其造成的损害具有不确定性、延伸性、难以恢复性，因而反垄断法属于现代社会规制法。与此相应，反垄断诉讼应是秩序建构诉讼，在价值上注重竞争秩序的建构，在功能上主张司法能动、积极回应社会在竞争上形成的价值共识，在构造上主张放宽原告条件，建立多元参与的诉讼机制。

关键词：反垄断诉讼 有机社会 风险规制 秩序建构

Abstract: Being one of the important mechanisms to implement the antitrust law, antitrust litigation is an important issue in both theoretical research and judicial practice. There are two research approaches on this issue. One is the individualist idea and thinking paradigm, which takes individual rights as the center and looks the litigation as a dispute resolution mechanism. The other is the holistic view and thinking paradigm, which takes order construction as the center and looks the litigation as an important mechanism for building the ideal order.

This article is of the holistic point of view as to the value orientation and system construction of the mechanism of antitrust litigation. The history of antitrust law and social development shows that the formation and development of antitrust law is synchronous with the formation of organic society, and as a result, the damage caused by monopolization is mainly to the society as a whole, that is, to the condition of competition formed by the interaction of market subjects under certain market concept and system, not just to particular competitors or consumers. Differing from the harm to the individual, the harm to the whole is of uncertainty as regards to the specific subjects harmed, is dynamic as regards to the objects harmed, and is extensible and difficulty to calculate, restore and remedy as regards to the consequence of damage. These characteristics make the monopolization one kinds of risk behaviors, and the antitrust law falls into the category of modern social regulation law.

According to the property of antitrust law, antitrust litigation should be the litigation of order construction. Such litigation, in value, lays stress on the safeguard of competition order instead of the protection of individual rights. In function, it advocates judicial activism and positive response to common values formed among competition in the society. In the system construction, it is in favor of the relaxation of qualifications of the plaintiff and the establishment of a litigation mechanism of multiple participations.

Key Words: antitrust litigation, organic society, risk regulation, order construction litigation

6. 权利的结构：以商法为例

陈醇

内容提要：权利的合成、分解和单纯结构变动是商法中的常见现象，这些现象呼唤一个权利结构方面的理论。结构是权利的重要参数，具有无限性、独立性和整体性等特征。权利的合成、分解和单纯结构变动既可能诱发权利的质变，又可能改变权利的功能，这两点已经被商法广泛运用。权利结构的设计应当是商法乃至整个私法的基本问题之一。

关键词：商法 权利 权利结构 合成 分解 单纯结构变动

Abstract：Combination, decomposition and simple structural change of right are common phenomena in business law. These phenomena call for a new theory concerning to the structure of right, which has been ignored by both Structuralism and traditional right theories. Structure is an important parameter of right with the characteristics of infinity, independence, integrity, and so on. It is possible and necessary for us to design and select appropriate right structures.

Combination and decomposition of right include quantitative and ordinal changes which may further induce qualitative change in the right. Simple structural change of right just includes ordinal change which may also induce qualitative change in the right. Right is scarce, but structural models of rights are unlimited in the theory and we can form sorts of rights with different qualities by structural design.

Structural change of right may also induce functional change of the right. Combination and decomposition of right may produce new rights with new functions. For example, some new rights may have the mandatory, dominant and expansionary functions of the state power, or have the proliferation function of the capital property rights, or even have the strong transferrable function of credit derivatives and form a large financial derivatives market by this function. Simple structural change of right may also make certain rights have functions in promoting democracy, enhancing efficiency, protecting commercial safety and commercial fairness. We can also procure some expected functions of certain right system by structural design of right.

Changing the nature or function of right by structural design have been widely used as two efficient methods in business law and a large number of structural models of rights have formed. Structural design of right should be a basic issue of business law or even the whole private law. The private law and business law in particular should not ignore such issue and should make great efforts to apply excellent structural models, optimize existing structural models, and create new models of right structure. A right structure theory should be added to right theories of the private law henceforth.

Key Words: right, structure of right, combination, decomposition, simple structural change

7. 犯罪论体系的位阶性研究

陈兴良

内容提要：犯罪成立要件是刑法规定的，四要件的犯罪构成理论与三阶层的犯罪论体系在此并无区别，两者的区别仅仅在于犯罪成立要件之间是否具有位阶性。在三阶层的犯罪论体系中，构成要件该当性、违法性、有责性之间具有位阶关系，这种位阶关系对司法的定罪过程具有逻辑引导机能，有助于保证定罪的正确性。而四要件的犯罪构成理论，在犯罪客体、犯罪客观方面、犯罪主体、犯罪主观方面之间没有位阶关系，只是一种排列顺序，可以随意变动，四要件之间是一种互相依存关系。根据四要件认定犯罪，往往主观判断与客观判断颠倒，事实判断与价值判断混淆，存在实用性缺陷，影响正确定罪。三阶层犯罪成立要件理论具有科学性，应当为我国所采用。

关键词：位阶性 三阶层 四要件

Abstract: The constitutive elements of a crime are stipulated by the provisions of criminal law. At this point, there is no difference between the four-element constitutive theory and the three-tier criminal system. The sole difference lying between the two theories is whether there is any ranking relationship among the constitutive elements of a crime. The ranking nature of various elements refers that the prior element should not be established after the existence of the posterior one but should act as the prerequisite of the posterior one, thus forms the progressive logical relationship between various elements of a crime. In the three-tier criminal system, the ranking relationship exists in the three tiers of Tatbestandmaessigkeit, Rechtswidrigkeit and Schuld.

The three tiers of criminal system correspond to three principles and embody the protection of three kinds of value respectively. Tatbestandmaessigkeit corresponds to the principle of a legally prescribed punishment for a special crime, thus safeguards human rights. Rechtswidrigkeit corresponds to the principle of protecting legal interests, and incarnates the value of criminal law to protect the society. And the tier of schuld corresponds to the doctrine of responsibility, and accords with the ethnic or equal value of criminal law. Meanwhile, the ranking relationship among the three tiers functions as the logical guide in the course of conviction in judicature and can ensure its correction. Thus the three-tier criminal system is with scientific nature and should be adopted in China.

However, under the four-element constitutive theory, there exists no ranking relationship among the object, objective aspects, subject and subjective aspects of a crime, but only a sort of order which can be changed freely. As for their logical relationship, the four elements are in an interdependent relationship. When determining cases according to the four-element theory, the order from objective judgments to subjective ones is reversed from time to time, and the fact judgments are sometimes confused with the value ones, which would cause practical defects and affect the corrective conviction eventually.

Key Words: ranking nature, the three-tier criminal system, the four-element constitutive theory

8. 从客观归因到主观归责

冯亚东 李侠

内容提要：在中国现行刑法的明文规定和犯罪构成四要件的解说体系下，对因果关系及刑事责任的确定应遵循从客观归因到主观归责的分析进路。所谓客观归因，即对因果关系的判断只是确定行为人承担刑事责任的客观基础，故采用"条件说"即能以最简捷方法予以解决，不需要引入见仁见智的各式规范判断学说；至于由此而导致的责任范围过于宽泛的问题，则可以通过对主观罪过的精确界定予以解决，在主客观相统一的更高层面最终解决对行为人是否归责的问题。

关键词：因果关系 体系分析 客观归因 主观归责

Abstract: Causation is one of the most complicated issues in the field of criminal law. In foreign criminal law theories, causation is evaluated by referring both to factual and normative aspects. For the former, purely objective condition theory is popular and for the latter, the leading views focus on the objective evaluation of the normative rules so that the criminal responsibility can be properly imputed.

Nevertheless, such reasoning adopted by the foreign theories of criminal law may not be suitable to China as different states have different legal norms and different constitutive theories of a crime. German theory on causation may be a good example in this regard. The reason why the theory emphasizes that the criminal responsibility issue should be completely determined in the factual aspects lies not only in the view of taking the criminal punishment as a consequence of "imputable responsibility" but also in the "attributable unlawfulness" which leads to security punishment and may serve to exclude the evaluation of issues such as criminal culpability and faults of criminal perpetrators. By this reasoning, some crimes may be categorized as Objective Crimes. Under the Chinese law, the criminal responsibility must be attributed to both subjective and objective aspects of the crime and the connection between the subjective and objective aspects of the crime must be established.

Therefore, under China's Four Elements Theory, the evaluation of causation may follow the reasoning of "objective cause" and "subjective responsibility"."Objective cause" means that the evaluation of causation is merely the factual basis upon which the criminal responsibility may be determined, thus excludes the debatable arguments of various normative theories. The possibility of criminal responsibility expansion which may be incurred by the condition theory can be properly restrained or excluded by the accurate evaluation of the fault of criminal perpetrators. Thus the criminal responsibility may be correctly imputed by the evaluation of both the objective and subjective aspects of a crime in question.

Key Words: causation, objective attribution, subjective imputation

9. 注意规范保护目的与交通过失犯的成立

刘艳红

内容提要：交通过失犯的本质应是结果回避义务，判断该义务之有无应以预见因果关系为内容的结果预见可能性为前提；注意规范保护目的是判断此种因果关系成立与否的理论，只有当行为人违反了注意规范保护目的而致损害法益结果发生时才能成立交通过失犯。注意规范保护目的是以作为刑法规范下位规则的交通法规为基础的可普遍适用于交通过失犯的判断标准，它属于交通过失犯中的违法要素，使用它无须通过客观归责理论。注意规范保护目的理论能合理限定交通过失犯的成立范围，有效克服我国司法实践中普遍存在的以交通事故责任书直接作为刑法上交通过失犯成立依据的不妥做法。

关键词：交通过失犯 结果回避义务 注意规范保护目的 结果预见可能性

Abstract: Negligent traffic crime refers to the crime conducted by persons with foreseeing capacity who breach the duty of care and infringe the legal interest during transportation. According to the new theory of negligence, the essence of negligent traffic crime is the duty of result avoidance. Whether the duty of result avoidance is violated or not relies on whether there is causation between the conduct and result of the traffic accident. That is how the concept of the protective scope of rule gets into our view.

According to the old theory of negligence, whether causal process complies with the protective scope or not is a problem related to the possibility of factual result avoidance. While pursuant to the new theory however, it should be considered as an issue with regard to whether there is a duty of result avoidance or an increasing danger, which are determined by the possibility of normative result avoidance. By analyzing the mechanism of result foreseeing possibility, the principle of criminal responsibility, and burden of proof in negligent traffic crime cases, it can be concluded that the new theory should be adopted.

The protective scope of rule as we discuss here includes not only criminal law and its duty of care but also traffic regulations and their duty of care. Traffic regulations are the sub-laws and the basis of duty of care in criminal law. The theory of the protective scope of rule does not need to be used under the objective imputation theory, because it relates to the problem of whether the development of causal process in negligent traffic crime complies with legal order. It is not an element of liability, but an element of illegality. For its judiciary application, the theory of the protective scope of rule must be applied case by case and the protective purpose of both criminal law and traffic regulations should be taken into account.

In Chinese criminal theory, it is unclear whether the essence of negligent traffic crime is the duty of result foreseeing or the duty of result avoidance, which has resulted in expanded conviction of negligent traffic crime in practice by directly relying on the administrative decisions about responsibilities for traffic accidents without considering the criminal essence from legal perspectives. This negative reality can be changed with the theory of the protective scope of rule in which the conviction of negligent traffic crime relies on the analysis of causal relation.

Key Words: negligent traffic crime, duty of result avoidance, protective scope of the rule, possibility of foreseeing the result

10. 中国量刑程序改革：误区与正道

左卫民

内容提要：对抗化的量刑程序改革试点效果不尽如意，某种程度上可以归因于制度改革所赖于支撑的理论根据。该理论认为，量刑制度的主要问题是量刑程序不公正，解决之道是借鉴英美模式，建立对抗式量刑程序。然而，真正引起社会普遍关注乃至广泛质疑的是量刑不均衡与量刑僵化问题，这主要是实体法问题；认为英美法系在传统上采用对抗式量刑程序的观点在一定程度上也是对英美法系量刑制度与实践的误读。未来的量刑制度改革应以实体性改革为主，程序性改革为辅；而在量刑程序改革方面，不宜大改，可以小改或微调。

关键词：量刑程序 量刑模式 实体性改革 程序性改革

Abstract: In practice, those experimental programs of adversarial sentencing procedure reform have not proved successful. Empirical study has revealed that compared with previous practice, the reformed sentencing procedure does not lead to apparent differences in presenting sentencing evidence and facts, nor does it result in significant changes with respect to sentencing outcomes. The reformed procedure also consumes more judicial resources and impedes court efficiency. In general, within the current criminal penalty structure, although some progress has been achieved in the adversarial sentencing procedure reform, it has not yet met the expectation to produce reasonable and fair sentencing.

Such result can be attributed to the underlying theory upon which the reform is established. The theory argues that the major problem in current sentencing system is the unfairness of sentencing procedure. In particular, criminal trials focus only on conviction, judges care only for conviction facts, and the current law does not provide a sentencing procedure in an adjudication model. So the theory suggests to learn from the common law model and to establish an adversarial sentencing procedure. However, it is a mistake that traditional common law sentencing practice employs an adversarial procedure.

In contemporary China, those sentencing issues that draw public attention and criticisms are not whether the sentencing procedure is fair, but the unevenness and rigidness of sentencing, although both are substantive issues. Rigid sentencing reflects the lack of flexibility in sentencing and the failure to take into consideration detailed facts and individual circumstances of a specific defendant. Therefore, the main problem is not a procedural one, but the mistake of addressing a substantive issue in a procedural manner. Future sentencing reform should firstly center on substantive reform supplemented by procedural reform. Specifically, the first step should be the standardization of sentence criteria, and then move to the reform of sentencing procedure and use procedural reform to fertilize substantive reform. Secondly, only small changes, instead of a thorough one, should be taken in sentencing procedure reform. Future reform should also standardize sentencing procedure in accordance with principles of efficiency and rationale, develop a sentence reasoning system, and establish remedial procedure for sentencing.

Key Words: sentencing procedure, sentencing model, substantive reform, procedural reform

11. 法律责任概念的形式构造

余军 朱新力

内容提要：凯尔森的法律责任概念体现为不法行为与其所引起的规范效果之间的充分且必要条件关系。运用霍菲尔德的基本法律关系分析框架，这一法律责任概念的形式构造可以转换为不法行为是"狭义权利-狭义义务"或"特权-无权利"救济权法律关系的充分必要条件。这个分析结论可为法律责任机制的正当性提供规范意义上的解说，还可用于澄清学界在行政法、侵权法、国家赔偿法等领域对于法律责任、不法行为的诸多错误认识，从而在各种具体情形中捍卫作为规范性概念的法律责任的精确性与纯粹性。

关键词：法律责任 不法行为 救济权 法律关系

Abstract: From the viewpoint of legal phenomenon, an ideal legal normative concept includes three levels, that is, its value element (due content), its normative element (validity) and its fact element (social effect). Thus the foundation of liability (imputation), the redress relationship and the compulsion by public power embody the three elements of legal liability as a normative concept. The essence of legal liability is the specified redress relationship due to the specified legal fact which infringes right or interest. Therefore the comprehension of legal liability should centers attention on its redress relationship.

In Hans Kelsen's theory, delict is a sufficient and necessary condition of its normative effect (ought to be sanctioned). That is, the result of sanction can be inferred from delict, and delict can also be inferred from sanction. When analyzed from the view of legal relationship, such formal structure of legal liability can change its expression into the redress relationship, thus the normative effect of sanction due to delict can be expressed as the specific redress relationship.

In the four categories of redress relationship, the relationship between right and duty and the relationship between privilege and no right as in summary compulsion not only contain the content of sanction, but also can be realized by actual compulsion. These two categories of redress relationship can be the normative element of legal liability. The relationship between right and duty exists widely in civil law, administrative law and criminal law, and is the most common and universal form, while the relationship between privilege and no right exists only in summary compulsion, thus only a special form of the normative element of legal liability.

The analysis of this article deepens Hans Kelsen's legal liability theory in the analytical frame of basic legal relationship, and may provide a kind of explanation for the legitimacy of legal liability mechanism and safeguard effectively the purity and veracity of legal liability as a normative concept.

Key Words: legal liability, delict, redress relationship

12. 预防性行政诉讼

解志勇

内容提要：现行行政诉讼法规定的事后救济型行政诉讼，常常无法排除或修复行政活动对原告造成的严重损害后果，导致原告合法权益得不到有效保护，直接威胁到行政诉讼救济的有效性和社会稳定与和谐。应尽快弥补这个法律缺失，建立以事前和事中救济为特征，旨在对抗威胁性行政行为和事实行为的预防性行政诉讼制度，真正实现权利有效保障。

关键词：行政诉讼 预防性行政诉讼 权利保障

Abstract: Administrative litigation provided by the current Administrative Procedural Law is of the nature of ex post facto. It is unable to exclude or restore the severe damage resulted from administrative activities and cannot protect the legal rights and interests of the counterparts effectively, which directly threatens the effectiveness of administrative remedies as well as the steadiness and harmony of the society. The loophole in legislation should be filled up by constructing the new preventive administrative litigation with the nature of ex ante remedy.

The preventive administrative litigation conforms to the tenet, purpose and development discipline of administrative litigation system. It can protect the rights and interests of administrative counterparts timely and effectively, realize the ultimate thought and logic of law, and demonstrate the truth of rule of law. From the aspects of enforcement environment, experience accumulation and actual requirements, it is of great urgency for our country to construct the preventive administrative litigation institution and perfect the system of administrative litigations.

There are solid theoretical foundations, unequivocal constitutional law grounds and mature experiences from other countries and areas for our country to construct the preventive administrative litigation institution. The substantial principles of human rights and administration by law, the procedural requirements of effective right protection and remedy and the principle of ultimate judgment by judicature, and other legal values and ethnics, constitute its theoretical foundations. According to our constitutional law, our country should respect and protect human rights, should protect the basic rights of citizens such as personal rights and property rights. And citizens can charge against the illegal or delinquent act of administrative organs and their staff. Our constitutional law also provides in several places the supervision upon administration. These all provide it with constitutional law grounds. Moreover, there are many systems of administrative litigation or judicial review with the function of prevention in other countries and areas which can be taken as examples.

Key Words: administrative litigation, preventive administrative litigation, right protection

13. 玉门花海所出《晋律注》初步研究

曹旅宁 张俊民

内容提要：2002年6月甘肃玉门花海出土的《晋律注》是本世纪中国法制史资料上的重大发现，有利于了解晋律的真实面貌。本文结合传世文献和其他出土资料，探讨了《晋律注》的抄写年代、作者与篇目、捕律和诸侯律若干问题，据此探讨了诸侯律与八王之乱的关系、后魏律渊源以及河西律学是否包含有晋律的成分等问题，提出汉律、晋律与唐律之间有着明显的继承关系等一系列新看法。

关键词：玉门花海晋律注 年代与篇目 捕律 诸侯律 河西律学

Abstract: The paper documents of Jinlv Annotation unearthed in Yumenhuahai are major discoveries in China legal history of this century, which are of great importance to look into the true visage of Jinlv.

The studies of this article have shown that the writing age of the paper documents of Jinlv Annotation is most likely the late period of West Jin. And the author of Jinlv Annotation unearthed from Yumenhuahai may be Du Yu according to its language style. Moreover, Du Yu's annotation of Jinlv was then an official edition promulgated throughout the whole country with great influence, which also supports the above posit. Jinlv Annotation from Yumenhuahai shows that Jinlv has twenty sections, which proves that the record of Jinshu is correct.

Through the discussion about the two examples of law on arrest in Jinlv Annotation, this article tries to clarify that some articles and terms of this law inherited from the law of Qin and Han, which were also inherited by the law of Sui and Tang. Meanwhile, through the textual research on the law governing dukes and emperors in Jinlv Annotation, this article finds that most of the regulations were also originated from the systems of Qin and Han, and had no direct relationship with Zhouli. Moreover, the legislative inspirit of these regulations had no inclination to expanse the strength of dukes and emperors, and had nothing to do with the Rebellion of Eight Emperors in the late period of West Jin. Lastly, the unearth of Jinlv Annotation provides new historical evidence to prove that as one of the sources of the law of Latter Wei, the legal study in Corridor District of Hexi included not only the law of Han, but also the element of the law of Jin.

Key Words: the paper documents of Jinlv Annotation from Yumenhuahai, law on arrest, law governing duke and emperor, legal study in Corridor District of Hexi

14. 国际货币体制的困境与出路

廖凡

内容提要：以国际货币基金组织为核心的现行国际货币体制渊源于大国之间的政治妥协，在约束性和执行力方面存在先天不足。世界经济格局的演变导致该体制的代表性受到质疑，全球金融危机进一步揭示出其所面临的困境，主要表现为机构职能误入歧途、政策监督顾此失彼、治理结构力量失衡以及争端解决有心无力。有鉴于此，应当在近期已有改革举措的基础上，在重塑机构职能、加强双边监督、完善治理结构和促进争端解决四个方面寻找出路。

关键词：国际货币体制 国际货币基金组织 国际经济法

Abstract: The current international monetary system with the International Monetary Fund (IMF) at the core historically originated from the political compromise between major powers, more specifically, between the U.S.and the U.K.This has left the system with inborn deficiencies in terms of effectiveness and enforceability. Moreover, with the evolution of the world economy, developing countries, especially those dynamic emerging markets such as the BRICs, have come to challenge the representativeness of this system dominated by wealthy developed countries. The unexpected global financial crisis further disclosed the underlying problems of the existing system.

From the viewpoint of China as an unique actor in the IMF, the author summarizes the major problems IMF faces today, i.e., strayed institutional role, one-sided policy supervision, imbalanced governance structure, and paralyzed dispute resolution. To cope with these problems, some reform measures have already been taken or on the way, but they are inadequate for a meaningful change of the status quo. The author argues that further efforts should be made in terms of reshaping the institutional role, strengthening bilateral supervision, improving governance structure and promoting dispute resolution. The dual goal of the reform should be on the one hand to readjust the functions of the IMF, in order to enhance the effectiveness of its operation, and on the other hand to rebalance its power structure, so as to promote the democratization of its governance.

Given that any reform can only be realized by means of revising the relevant legal instruments, and given that the revision of the Articles of Agreement themselves is extremely difficult, the author suggests to begin with lower instruments such as Rules, Regulations and Decisions, and make fuller use of the interpretation power conferred on the Board of Governors and the Executive Board by the Articles of Agreement.

Key Words: international monetary system, IMF, reform, effectiveness, democratization