《法学研究》2010年第5期中英文提要

黄文艺

内容提要：作为一种法律干预模式，家长主义的核心特征是为了保护行为人的利益而限制行为人的自由。尽管中国各个部门法领域都不乏家长主义的法律规定，但在中国的法律话语体系中家长主义并未确立起合法地位。在梳理家长主义概念谱系的基础上，通过分析家长主义法律干预的构成条件、正当理据，可以从理论上确立家长主义作为一种独立的法律干预模式的地位。在中国的政治传统和语境下，为防止政府以家长主义之名随意剥夺或限制公民的自由，必须对家长主义法律干预的设立加以严格控制，谨慎地运用家长主义法律干预。

关键词：法律干预 法律家长主义 法理学

Abstract: Although there are some instances of legal paternalism in branches of law in China, its legitimacy in the system of legal discourse has not been recognized yet. One reason is that paternalism is a derogatory word in Chinese as well as in English. Moreover, there are many misunderstandings and prejudices towards paternalism, especially when people confuse it with other negative things. Most importantly, it has been long repressed and replaced by another powerful legal discourse, that is, non-paternalistic legal interference.

In order to affirm the independency and legitimacy of legal paternalism, we need to clearly define its meaning and reasons. As an important pattern of legal interference, legal paternalism has two basic elements. Firstly, its objective is to maintain the actor’s interest, and secondly, its approach is to restrict the actor’s freedom. The reasons to support paternalistic legal interference include incapacity, economic efficiency, distributive justice, basic human rights and risk aversion.

However, its affirmation doesn’t mean that we can apply legal paternalism randomly to interfere with private life. On the contrary, its application should be strictly confined in China, so as to prevent the government from arbitrarily infringing on private rights. For its application, adequate reasons should be declared, the benefits should be greater than the costs, the least restrictive alternative should be preferred, public hearings should be hold, and judicial review should be available.

The effectiveness of legal paternalism is heavily influenced by its characteristics. For example, many behaviors interfered by it, such as drug abuses, prostitutions, gambling, etc., are more secret than other behaviors, so the costs of its enforcement are higher. Because the victims of such behaviors are either actors themselves or nobody, its enforcement depends on the government’s capacity rather than the victims’ accusation.

Key Words: legal paternalism, legal interference, jurisprudence

2．司法判决中的行政不作为

章志远

内容提要：对最高人民法院公布的80个行政不作为典型案例的实证分析表明，在行政不作为构成要件的把握上，人民法院业已形成了作为义务源自何处、有无现实作为可能以及是否已经作为的三重判断基准。这不仅修正了法律文本中义务来源单一化和不作为表现形态片面化的规定，而且通过个案特殊情境中危险预见可能性、避免损害发生可能性和公权发动期待可能性的权衡，建立了危险防止型行政不作为的判断标准。在行政不作为司法裁判方式的选择上，人民法院大体上形成了履行判决、确认判决和驳回诉讼请求判决三足鼎立的格局。不同类型判决的具体适用，有助于妥善处理司法独立判断、尊重行政裁量及私权有效保障的三重关系。

关键词： 行政不作为 司法审查 判断基准 裁判方式

Abstract: As an important and controversial topic in administrative law, administrative inaction has attracted many scholars in China. They analyze the definition, structure and remedy of administrative inaction from legal dogmatic angle. This research approach may be helpful to understand administrative inaction, but it also neglects native judicial practices. In fact, many judges from grassroots people’s courts have accepted and heard some new administrative inaction cases beyond contemporary statutes and theory. This article therefore collected eighty typical cases relating to administrative inaction in the Bulletin of the Supreme People’s Court and the Selected Cases of People’s Court in order to sum up the wisdom of Chinese judiciary.

As to the ingredients of judging administrative inaction, administrative judges have developed triple standard including the origin of the obligation of agency action, the possibility of agency actual action and whether the agency acted or not. In addition to legal norms, the obligation of action can also originate from administrative rules, administrative contracts, administrative actions and former decisions. As to the possibility of actual action, some typical cases have identified three aspects, i.e., the risk prediction possibility, the damage avoidance possibility and the anticipation of the public. Administrative inaction may have different appearances, so the judgment of whether the agency acted or not should combine both subjective and objective aspects based on individual cases.

According to contemporary judicial practices, there are three different judgment forms for court to adjudicate, i.e., judgment for performance, judgment for dismissal of the claim, and judgment for infraction confirmation and compensation. In order to give a suitable judgment, administrative judges should deal with the relationship between the relative independent review and the deference to agency discretion. These fresh native judicial experiences conquest the outdated statute provision and the rigid theory, so we can own our specific contribution to identify and resolve administrative inaction.

Key Words: administrative inaction, judicial review, standard of judgment, mode of judgment

3．治理论还是法治论——当代中国乡村司法的理论建构

陈柏峰 董磊明

内容提要：当前乡村司法呈现出双二元结构形态：基层法官的司法有着法治化和治理化两种形态，乡村干部的司法则是治理化形态。综合考量乡村社会变迁及其所受到的结构性约束，双二元结构形态可以呼应乡村社会的司法需求，回应乡村纠纷的延伸性和非适法性，适应中国乡村的经济基础。在很长时间内，乡村司法都应当在法治化和治理化之间保持某种平衡。

关键词：乡村司法 治理化司法 法治化司法

Abstract: In a broad sense, the rural justice consists of grassroots judges’ judicature and village cadres’quasi-justice. There are two main theoretical approaches on the rural justice in current literatures, one is the governance theory, and the other is the theory of formal legality. They are both biased because of their biased empirical basis. The governance theory is hard to face the radical changes taking place in current rural society. The theory of formal legality lacks of comprehensive understanding of the great rural social changes, and ignores the structural constraints of the rural social changes. To construct the rural justice theory, we should mainly focus on the common agricultural rural areas, where trade and industry are under-developed, and pay attention to other types of rural areas as well.

Before constructing the rural justice theory, we should understand the patterns and actual state of rural justice. At present, rural justice shows a dual structure of two-layered. It has two levels, that is, the dual structure in micro-level existing in the grassroots judges’ judicature, and the dual structure in macro-level composed of the grassroots judges’ judicature and village cadres’quasi-justice. There are two patterns in the grassroots judges’ judicature, one is the formal legality, and the other is governance. And village cadres’quasi-justice shows the governance pattern.

There is a gap between the “is to be” aspect of the actual state of rural justice and the “ought to be” aspect of the rural justice theory. Taking rural social changes and their structural constraints into account, the pattern of two-layered dual structure sounds reasonable. It is able to echo the judicial needs of rural communities, respond to the extension and non-legality of village disputes, and adapt to the economic basis of rural China. A two-layered dual structure theory of rural justice should be the main rural justice theory in new era. For a long time following, the rural justice should hold a balance between governance and formal legality.

Key Words: rural justice, two-layered dual structure, governance, formal legality

4．民法中的财产权竞合规范——以优先规范为中心

常鹏翱

内容提要：作为多重财产权并存的一种，民法中的财产权竞合以债权竞合、物权竞合和债权物权竞合为基本形态，其基本规范要素是管制强弱和时间先后，其规范不同于其他财产权并存规范，但又有相当的关联性。作为核心规范的优先规范以公示为基础，并引申出法定顺位规则，而权利人的意思自治能改变优先规范，由此产生顺位意定规则。

关键词：财产权竞合 管制自治 优先规范 顺位

Abstract: Overlapping is a kind of concurrence of multiple property rights on the same object in civil law. Though the norms of overlapping differ from the other concurrence norms like trust, ownership reservation and so on, they have complementary and cooperative relationships. According to the positive law, there are two basic elements to adjust the overlapping of property rights, that is, the intensity of control and the sequence of time, and different norms established according to them will adjust different kinds of overlapping.

As the focus of overlapping norms of property rights, the preferential norm which bases on publicity, especially registration and deduces rules of statutory sequences, is that the right publicized earlier prevails over the one publicized later. In the area of real estate property, the time of application for registration determines the sequence of rights. Once the sequence is determined, the right in front is prior to the right behind. If the former can cover the latter, for example both are mortgage rights, it can be fulfilled preferentially, which means the latter will remain in an alternative position and cannot be fulfilled until the former is fulfilled earlier. If not, such as the concurrence of usufructuary rights and real rights for security, the right behind can be fulfilled without prejudice to the right in front. With the two rules, the right behind can be established only after an agreement on it and registration. When the right in front is eliminated, the sequence of the right behind remains unchanged.

The preferential norm can be changed by right holders and consequently the sequence of rights can be established by agreement, including abandon, exchange, reservation, promotion and direct equality of sequence, all of which show the freedom of right holders to dispose their rights. Thus the declaration of will of it should be consistent with the elements of legal action, the holder of the sequence should have right of disposition and registration is needed. When the sequences of two rights are the same by agreement, if the value of the right can be quantified, for example the object of a real right for security can be liquidated, the two rights can be repaid based on the ratio of each real right for security. If not, it should be determined by right holders.

Key Words: overlapping of property rights, control, autonomy, preferential norm, sequence

5．民法上生育权的表象与本质——对我国司法实务案例的解构研究

朱晓喆 徐刚

内容提要：生育权就其本意而言是宪法赋予公民的基本人权，不宜在具体民事案件裁判中直接适用。我国司法实务中出现的48个典型的生育权民事纠纷大致可分为三类：生殖器官受侵害型、配偶之间生育侵权型、侵害生育自主权型。前两类案件根本无须“生育权”这一概念的介入，即可依据现有民法体系和规则解决所争议的法律问题。在第三类案件中，虽不当出生或不当怀孕的确构成侵害生育自主权，但也无须动用宪法上的生育权，因为民法上的一般人格权或其他人格利益已经包含了生育自主权的具体内涵。

关键词：生育权 生育自主权 人格权 民法体系

Abstract: The last decade has witnessed the increasing arguments about a general conception, i.e., right to procreation, which is often used to describe the claims concerning personal procreative interests in the current civil academies and judicial practices. However, the right to procreation, based on the meaning of itself, belongs to the constitutional rights. It is inappropriate to resort directly to constitutional fundamental rights in concrete civil judgments, for the constitutional law and civil law have different functions and domains.

The authors use the caseclassification method to study the judicial practices concerning to the right to procreation. We select 48 typical cases from current judicial practices, which can be classified into the following three categories. The first one is the injury of genital organ, that is, the plaintiff’s genital organ is injured by the defendant and cannot function properly, so the plaintiff sues for damages. The second one is the duty violation between spouses, for example, the wife refuses to procreation or aborts the baby against the husband’s will, so the husband claims that the wife breaches the duty between spouses. The last one is the injury of right to autonomous procreation. In this category of cases, the hospital makes a medical conduct negligently and causes the patient to conceive wrongfully or the baby to be born wrongfully, thus the patient claims that the hospital injures his/her autonomy of procreation.

In the first two categories of cases, it is not necessary to introduce the concept of right to procreation, because the solution to these cases can be found in the existing rules of civil law. Only in the last category can the injury of the right to procreation be admitted. However, it is not necessary for this category of cases to resort to the constitutional right to procreation either, because the concept of general personal right or other personal interests can embrace the essence of this concept and therefore these cases can be solved by the existing legal system and theories in civil law.

Key Words: right to procreation, right to autonomous procreation, personal right, civil law system

6．意思主义与形式主义对立的法理与历史根源

汪志刚

内容提要：意思主义是以一个不严格区分物权和债权且物上权利的绝对性尚未完成的财产法体系为基础的。其在法国和英国的首先形成，很大程度是其本国习惯法或判例法与自然法思想和自由主义激情相结合的产物，而非一种对公示的必要性有了充分、清晰的认识之后的理性自觉。意思主义和形式主义的对立本质上是财产权的相对性和物权的绝对性的对立在物权变动规则体系上的延伸，而后一对立又主要根源于二者分别承袭了不同的法律传统。

关键词：意思主义 形式主义 公示 物权的绝对性 财产权的相对性

Abstract: The difference between consensualism and formalism is the most fundamental difference between various modes of real right alteration in modern law. According to consensualism, alteration of real rights needs only consensus of contract parties, and the form of public notification (delivery or registration) is not a constitutive requirement. Under the principle of formalism, alteration of real rights cannot come into effect unless public notification. In brief, the difference between consensualism and formalism is rooted in the difference between the relativity of property and the absoluteness of real right, and the latter difference results from different legal traditions of Roman law and Germanic law.

In the civil law system, principle of consensus first appeared in 1804 French Civil Code, and in the common law system, it first appeared in 1896 England Sale of Goods Act. From a historical point of view, principle of consensus in French and England law was mainly a product of the combination of customary law or case law, philosophy of nature law and liberalism, but not a product of mature legislative technique. In other words, the legislators of French Code Civil and England Sale of Goods Act didn’t have an adequate and general understanding of the function and necessity of public notification of property rights alteration while they made these laws.

In legal perspective, consensualism is founded on a system of property law in which the right in rem and right in personam are not strictly distinguished and the absoluteness of right in res is not fully developed. Under this system, the nature of property right in res lies in the domination which means the direct dominate or control over a specific res by the holder, but not the absoluteness which means the challenge or exclusion to rights of any others. To the contrary, the mode of formalism in German Civil Code is founded on a system of real right law in which the right in rem and right in personam are strictly distinguished. It not only inherits the major heritage of Pandektenwissenschaft, but also realizes the shift from the dominant ownership to the absolute ownership. It is exactly the absoluteness of real right determines that the alteration of real right must have some external visible forms defined by law.

Key Words: consensualism, formalism, public notification, absoluteness of real right, relativity of property right

7．非物质文化遗产的公共属性

孙昊亮

内容提要：非物质文化遗产具有文化本位性和公共物品的属性，关系公共利益，公权保护是最适合的保护方式。我国应该尽快立法，明确由政府承担保护非物质文化遗产的主要责任，以公权为基础，主要运用公法手段，在政府的主导下采取各种措施为非物质文化遗产的传承和发展提供平台、创造条件。非物质文化遗产的开发利用与保护是不同性质、不同领域的问题，政府应当引导和规范非物质文化遗产的开发利用和产业化，保证公共利益不被损害。

关键词： 非物质文化遗产 公共属性 私权 产业化

Abstract: Intangible culture heritage has the value and function of protecting cultural diversity and increasing group identification. The protection of intangible culture heritage which plays an important role in the development of human society reflects the growing of man’s spiritual and cultural demand after their material life is basically satisfied.

There are a lot of problems in the theory and practice of China's intangible cultural heritage protection. In theory, some scholars confuse the intangible cultural heritage with its manifestation and try to realize the protection of intangible cultural heritage through private rights. In practice, some local governments and enterprises industrialize intangible cultural heritage in the name of protecting it, only focusing on its economic benefits and neglecting its cultural character. Such practice has divorced intangible culture heritage from its original cultural environment and made it lose its original substance and essence.

Intangible culture heritage, relating to the public interest, is of the nature of culture role and public goods, therefore, to protect it through public authority is the most appropriate mode. Although private rights can protect the manifestations of intangible cultural heritage and may thus protect it indirectly, there are many serious limitations in it. Private rights are to protect private interest, and can not play a fundamental role in protecting public interest. Meanwhile, the market rules can only resolve the problem of interest assignment of intangible cultural heritage and can not resolve the problem of its declination.

Therefore, the government, as the representative of public interest, is to assume the responsibility to protect intangible cultural heritage. Relevant laws should be made to stipulate the responsibility of government and adopt various public law measures to support and guide the protection of intangible cultural heritage. The government should provide a platform and create necessary conditions for the protection of it so as to promote its inheritance and innovation. Besides, the government should actively guide and standardize the development, utilization and industrialization of intangible culture heritage and prevent improper utilization of it so as to protect the public interest from being infringed.

Key Words: intangible culture heritage, public nature, private right, industrialization

8．竞争政策：经验与文本的交织进化

史际春 赵忠龙

内容提要：竞争政策是国家制订、贯彻经济政策和反垄断法实施中面临的一个基础命题。在竞争政策系统中，总是存在剩余立法权和剩余执法权。这一方面要求政策执掌者勤勉、忠信、合理地善用自己的专业判断能力和权力，另一方面要求将其权力纳入可问责的法治轨道中去。竞争法的文本交织于竞争政策的动态经验，不仅构成政府调控、监管经济的实践理性，而且反映出我国国家战略发展进程中国家治理模式的变迁。

关键词：竞争法 竞争政策 经济政策 法治

Abstract: The competition policy is a basic proposition in the making and enforcement of state’s economic policy and the implementation of competition law. The reason why a society ruled of law still needs policies lies in that laws alone cannot carry themselves out. Legislations, regulations and clauses are full of contradictions, duplications, mistakes and gaps, so proper policies are needed to eliminate the impure, retain the pure, fill up vacancies and supply deficiencies, thus policies become the creeds and guidelines of laws. Meanwhile, policy making and enforcement cannot kick over the law, thus policy and law have been blent into the same system.

Competition policy system is comprised not only of competition laws, but also of their enforcing institutions such as competition law enforcement agencies and ultimate courts. In the competition policy system, there always stands residual law-making power and residual law-enforcing power, which requires the decision-makers to perform their business judgment ability and power with diligence, fiduciary duty and equitability, as well as to bring their power into the accountability mechanism.

One of the most important reforming measures taken by Chinese government is to establish special regulatory organs to weaken the monopoly power of government departments in charge and some big enterprises. But the systematic effect of competition policy is not formed simultaneously because the organs lack of competition idea and relevant policies. To prevent one branch from becoming supreme, to protect the “opulent minority” from the majority, and to induce the branches to cooperate, the governance system should form the mechanism of separation of power.

The design of the competition policy program can follow various approaches that involve different combinations of policy instruments. The text of competition law is combined with the empirical competition policy in a perspective of legal evolution, which becomes the practical ration of government regulating economy and government’s economic activity and reflects the transition of government governance pattern in the consideration of national strategy.

Key Words: competition law, competition policy, economic policy, rule of law

9．竞争倡导研究

张占江

内容提要：竞争倡导是反垄断执法机构实施的除执法以外所有改善竞争环境的行为，具有促进和补充反垄断执法、推进竞争政策有效实施和推动竞争文化建设的重要作用。反垄断执法针对私人限制竞争，竞争倡导关注政府干预限制竞争的风险，故所倡导的竞争应围绕干预的适当性、主导权及期望实现的目标来界定。分析各国竞争倡导的制度路径，借鉴其成功经验并结合我国现实诉求，我国竞争倡导制度构建的重点在于引入立法优先咨询制度、推动准入管制的放松、逐步缩减反垄断除外适用范围、健全对管制的竞争评估、帮助企业进行合规制度建设，以形成多样化的倡导工具。

关键词：竞争倡导 竞争执法 立法优先咨询 竞争评估 合规指引

Abstract: Competition advocacy refers to those activities conducted by the competition authority relating to the promotion of competitive environment for economic activities by means of non-enforcement mechanisms. These activities can be classified into two groups. On one hand, competition advocacy involves convincing other public authorities to abstain from adopting unnecessary anticompetitive measures. On the other hand, it comprises all efforts by competition authority to make other government entities, economic agents and the public at large more familiar with the benefits of competition and with the role competition law and policy can play in promoting competition and enhancing welfare. So competition advocacy is of great importance to facilitate and complete antitrust enforcement, promote the effective implement of competition policy and build the competition culture.

Only when the competition advocated by competition authority has enough rationality can it be accepted and observed by more stakeholders. Competition may not only be hindered by private anticompetitive conduct, but also, in certain circumstances, by public regulatory intervention and rule-making. Regulatory intervention may go beyond the strict necessities and impede competition in some sectors. The antitrust enforcement is concerned with maintaining competition in private markets. So the determination of the competition advocated should concentrate on the appropriateness of government intervention, the dominant power of government intervention and the objectives achieved by the competition.

On the basis of the major countries’competition advocacy institutions, their successful experiences and the actual conditions in China, the following measures can be put forward on how to establish competition advocacy institutions. It is necessary to introduce the institution of prior statutory consultation, promote the relaxation of limitations on taking part in competition, narrow the range of exception of antitrust law step by step, improve the system of competition assessment of government regulation, and help enterprises set up competition compliance programs, thus establish diversified competition advocacy tools. Competition is a dynamic process. In order to achieve effective competition, the advocacy activities conducted by competition authority must adapt themselves to the changes.

Key Words: competition advocacy, antitrust enforcement, prior statutory consultation, competition assessment, competition compliance guidance

10．责任主义与量刑原理——以点的理论为中心

张明楷

内容提要：量刑关系到被告人的人权保障乃至国家的人权状况。量刑必须以刑罚的正当化根据为指导，并合主义要求妥善处理好责任刑与预防刑的关系。贯彻责任主义是尊重人权的基本要求，点的理论是消极的责任主义的必然结论；法官必须区分影响责任刑的情节与影响预防刑的情节，并且只能在责任刑的点之下考虑预防犯罪的目的，不能为了一般预防的需要对被告人从重处罚，任何场合都不得在责任刑的点之上量刑。

关键词：责任主义 量刑基准 罪刑均衡 量刑方法

Abstract: The passive Responsibilism, “nulla poena sine culpa”, is a commonly agreed criminal principle and the basic requirement of human rights. Penalty measurement concerns the protection of the human rights of defendants and even the general human rights condition in a country, thus the Point theory of penalty measurement, which is the inevitable conclusion of the passive Responsibilism, should be adopted. According to the Point theory, criminal responsibility determines the toplimit of a punishment. Only under this point can judges consider the necessity of crime prevention. The opinion and its practice of measuring penalty beyond the toplimit decided by responsibility for the necessity of crime prevention or sentencing a heavier punishment under the responsibility-decided penalty (point) for the needs of general prevention not only go against Responsibilism, but also violate defendants’dignity.

In fact, synthesis idealism calls for a balance between responsibility-related and prevention-related punishment and judges need to tell which one is influenced by a special plot, because prevention-related plots can be only considered under responsibility-decided penalty (point). The principle of suiting punishment to crime, which is interpreted as heavy punishment fits heavy offense and light punishment fits minor offense, is just for responsibility-decided penalty, not for declaratory penalty. As to declaratory punishment, such principle should be applied asymmetrically. Namely, in accordance with the Point theory, this principle means only that a punishment can not exceed the responsibility-decided toplimit. In this way, although this principle can be interpreted as light punishment fits minor offense, a heavy penalty does not always follow a heavy crime. On the contrary, a light punishment may be sentenced considering minor needs of prevention, even if a heavy crime is accused. To put it bluntly, the principle of suiting punishment to crime permits a sentence under responsibility-decided penalty (point).

Neither Current criminal theories guiding discussion on the criterion and method of penalty measurement nor the judicial practice insisting on the normalization of penalty measurement fully consist with Responsibilism. For criminal theory and practice, the highest priority is to carry out Responsibilism in the theory and practice of penalty measurement.

Key Words: Responsibilism, criterion of penalty measurement, suiting punishment to crime, method of penalty measurement

11．刑事侦讯：一种权力的表达

牟军

内容提要：从本体论的角度对刑事侦讯的认识，实际上是对刑事侦讯作为一种行为的认识。由这一行为的法律因素和主体因素所决定，刑事侦讯可归类为一种权力行为，确切地说是一种具有权力属性的行为。然而，刑事侦讯的权力属性，并非意味着刑事侦讯属于侦讯者的一种权力，将其称为一种权力的表达可能更为贴切。就刑事侦讯的特性来看，这一权力表达的符号系统可以分为三类：侦讯者的权力表达系统、侦讯环境的权力表达系统和侦讯规范的权力表达系统。刑事侦讯的体系建构须将可能影响和决定刑事侦讯权力表达方式和目标的侦讯自身要素和外部因素纳入考量范畴。

关键词：刑事侦讯 权力表达 符号系统

Abstract: From the perspective of ontology, criminal interrogation can be seen as a kind of action. Determined by its legal and subject factors, criminal interrogation can be defined as an action with power nature. However, the power nature of criminal interrogation doesn't mean that it is the power of interrogators. To use the French sociologist Pierre Bourdieu’s Semiotic Theory, criminal interrogation can be seen as a symbol system. Criminal interrogation is a form of power expression through the symbol system, which can be simply referred as an expression of power.

There are clear legitimate and legal basis for criminal interrogation to be defined as an expression of power. Such orientation can explain the unity of interrogative powers and duties reasonably and has no fundamental conflict with suspect's right to silence and freedom to state. Moreover, such orientation can establish the legitimacy of power and is useful to the effectiveness of criminal interrogation.

According to the characteristics of criminal interrogation, its symbol system can be classified into three categories. The first is the symbol system of interrogators, including their language, behavior, posture, dress and other symbols. The second is the symbol system of interrogation environment, mainly referring to the specific place of interrogation, which inflects the power meaning of interrogative room’s space, color, light, structure and other visible symbols. The third is the symbol system of interrogation rules, including the laws, policies and other power symbol forms. All the symbols are integrated rationally and effectively to promote the expression and acceptability of interrogative power.

Criminal interrogation should be a complete symbol system and consider all the factors which may influence or decide the way and aim of criminal interrogation power expression. On the one hand, it is necessary to adjust the elements of criminal interrogation, optimize the arrangement of the interrogative environment, adjust the interrogation subject, and use the committal proceedings reasonably. On the other hand, the external factors should also be used rationally and effectively. Through the effective and legitimate use of expression of power, the laws, policies and social resources of interrogation can be applied rationally and effectively.

Key Words: criminal interrogation, expression of power, symbol system

12．《唐律》别籍异财之禁探析

艾永明 郭寅枫

内容提要：禁止别籍异财是中国古代法律规范家族财产、维护家族制度的一项重要规定，但长期以来人们往往将其视作一个整体，忽视别籍和异财的相对独立性及其相互关系。根据《唐律》和其他原始资料，我们可以看到别籍和异财实际上是两个问题而又紧密联系，法律禁止的重点是别籍而不是异财。

关键词：唐律 户婚律 别籍异财

Abstract: The prohibition of “separation of family registration” and “division of family property” is an important rule of ancient Chinese law system, which can regulate family life and maintain family regulation. However, for a long time, people consider the two parts of the prohibition as a whole unity, think that the function of them is to protect the right of the head of family to administrate the family property, and ignore the relative independence and relationship between them.

According to Tang Code and other original materials, it is quite obvious that the prohibition of separation of family registration emphasized the administration of family life, which is a precondition for the autonomy of family when the country lacked of public administration resources. On the other hand, the prohibition of division of family property reflected more about the authority of the head of family concerning to the family property.

The legislators of Tang Code paid more attention on the prohibition of separation of family registration than on the prohibition of division of family property. The former could also be applied to the head of family, while the latter prohibited only his sons or grandsons. Meanwhile, the standard of the former is family registration, while the standard of the latter is much vaguer. Logically speaking, separation of family registration always leads to division of family property, but not vice versa, and the former prohibition is of much more importance in terms of the public law, so it is the key point of family regulation by legislators.

Key Words: Tang Code, separation of family registration, division of family property

13．中国古代法上的和离

崔兰琴

内容提要：和离指夫妻双方因情意不协而自愿离婚的制度，它与七出、义绝共同构成中国古代法上的离婚制度。和离之制渊源于《周礼》，自唐代始进入法典，形成正式制度，后代基本相沿不变。该制强调婚姻的两相情愿，不受外力强制的特性。它广泛应用于一般民众，但对宗室成员和官员有不同程度的限制。考察现有案例可见，和离之法对保护女方平等的离婚意愿及女方的财产都有一定价值，但司法过程中表现出的对女方离婚诉求的抑制也反映出中国古代礼法结合、维护家族利益的特点。

关键词： 和离 唐律 七出与义绝

Abstract: There are various divorce systems in ancient China, such as Qi Chu, Yi Jue, etc. Among them, He Li (divorce by agreement) is the system that the couples choose to divorce when their feelings are inharmonious. He Li system originated from Zhou Li. It became a formal system in the Tang Dynasty and was inherited by later dynasties. As a supplement to the divorce systems of Qi Chu and Yi Jue, He Li takes the couples’divorce willingness into consideration, emphasizes mutual responsibility between husband and wife, and excludes external pressures.

Generally speaking, in ancient China, it was more common for the husband to require divorce by way of He Li than the wife to do so and the purpose of husband can be reached easily. In contrast, when the wife wished to terminate the marriage relationship, the result depended to a great extent on whether the divorce reason of the wife met the request of Confucianism. As for royalties and officials, there were different limits when they choose to divorce by way of He Li.

He Li system had certain value on protecting the wife’s divorce will and her own property. It put emphasis on the relationship between the couple, regarded both husband and wife as equal subject and admitted that either partner has right to divorce when their affection is inharmonious. Later, it also tended to allow the wife to take away her own dowry. From the perspective of social development, He Li system satisfied the requirement of the progress of marriage life itself. At the same time, it also provides system design and legal culture tradition for modern consensus divorce.

He Li system arised in the Confucianist mainstream consciousness of gender roles orientation and the traditional society of tiny-scale peasant economy, thus was subjected to many restrictions embodying various characteristics of ancient society. In order to maintain the family stability of the small-scale peasant economy and the sustainable development of social reproduction, the country not only implemented the policy of divorce restriction, but also limited the divorce appeals of the wife. By the same token, the limitations on imperial clans and officials in their divorce by way of He Li aimed to exert their exemplary role in the maintenance of marriage ethics and social morals.

Key Words: divorce by agreement, He Li, Tang Code, Qi Chu, Yi Jue

14．程序法视野中冲突规则的适用模式

宋晓

内容提要：程序法视角和程序法原理对于分析冲突规则依职权适用抑或任意性适用的问题虽必不可少，但程序处分主义和辩论主义均不能成为冲突规则任意性适用的基础。在法官依职权适用冲突规则的制度下，必须强化法官对冲突规则以及相关法律适用问题的释明义务，以防发生突袭裁判，并由当事人证明外国法。只有依职权适用而非任意性适用冲突规则，才能最大限度地维护当事人依据国际私法体系所享有的法律适用的权利。

关键词： 冲突规则 程序法 依职权适用 任意性适用

Abstract: Private international law, an indivisible part of each legal system, should have the same dignity and value as any other legal field. Consequently, conflict rules should be applied by judges ex officio rather than at the mercy of the parties. Neither the dispositive principle nor the adversarial principle nor a practical caring for the procedural interests of parties provides a strong argument for the facultative application of conflict rules. From the perspective of procedural law, however, the related rules of civil procedure should be taken into consideration in the analysis of the application mode of conflict rules.

When the conflict rules are applied by judges ex officio, it is the judges’responsibility to disclose to the parties any information about the related conflict rules and the applicable law referred to. On the other hand, the parties should bear the duty to prove foreign law. The procedural interests of both parties will be best protected by this approach. The ex officio application of conflict rules does not mean any mandatory application of foreign law which conflict rules refer to. This mode does not neglect the will of parties on whether to apply foreign law, nor does it disregard the weighing of the costs and gains of applying foreign law by parties.

The ex officio application of conflict rules is proximately a “procedural process”. Its crucial function or purpose is that, when conflict rules or the applicable foreign law does not invoked by the parties initiatively, judges will disclose the law application problem to the parties and urge them to think it carefully. Consequently, the parties’right to apply foreign law will not be renounced due to their ignorance, incompetence or negligence. This mode will mostly protect the parties’rights under both international private law and substantive law.

To make it clear to accept the ex officio application of conflict rules, which denotes to regard foreign legal systems as equal to ourselves and protect international private law order on conflict law rather than lex fori, will serve as a symbol of the magnanimity which China should show to the outside world as a great power.

Key Words: conflict rule, procedural law, application ex officio, facultative application

15．国际司法机构的源起与发展路径

邓 烈

内容提要：国际司法机构的兴起是现代国际法最重大的进展之一。中外学界一般认为，其源头始于1899年和1907年的两次海牙和会，其后的所有发展都是海牙和会所开启之进程的延续。这种看法与实践并不完全吻合。裁判人权、国际刑事或国际公务员案件的国际法庭或法院，在性质、原则及结构体制上都与国际法院等所谓海牙法庭存在很大差异。它们有着自己的演进路径，其源头不是海牙和会，而是1919年的凡尔赛和会。海牙和会代表了国家间基础上的横向权力结构，而凡尔赛和会则是纵向的、有组织的现代国际社会兴起的标志。现代国际社会在可预见的将来仍会维持这种二元结构，这也就决定了国际司法机构在相当长的时间内仍会分别沿着不同的路径继续发展。

关键词： 国际司法机构 海牙和会 凡尔赛和会 国际组织

Abstract: The rising of international judicial organs from the early 1900’s is one of the greatest progresses which have been made in the field of modern international law. As to the origin of the international judicial organs, both Chinese and foreign scholars hold the viewpoint that all kinds of international courts or tribunals can be traced back to the Peace Conferences at Hague in 1899 and 1907, and the Conferences blazed the path for the development of all the judicial organs. But this contention works against the practice of international adjudication.

According to this article, many international judicial organs, such as the international administrative tribunals, the international courts of human rights, and the international criminal courts or tribunals, are different from the so-called “the Hague courts and tribunals” in their nature, principles, structure and so on. They have their own developing path. Their origin is not the Peace Conferences at Hague, but the Peace Conference at Versailles instead.

The Peace Conferences at Hague tried to bring the experiences of modern international arbitration into the dispute resolution mechanisms with more judicial characteristics, thus opened the first important developing direction of international judicial organs. The Hague represents the traditional horizontal international community which bases on a plat-like power structure between the sovereign States. On the contrary, the international criminal courts or tribunals, and the international courts of human rights judge mainly the recently arisen relationships between individuals and the international society, the States and the international organizations. The Versailles is the sign of the modern vertical international community with organized tower-like power structure.

This horizontal-vertical dual structure, which reflects States’wills for independence and mankind’s hope for global governance, should be the basis of the international community in the foreseeable future. And it means that the international judicial organs will keep up with the two developing paths in quite a long time.

Key Words: international judicial organ, the Peace Conferences at Hague, the Peace Conference at Versailles, international organization