《法学研究》2011年第1期中英文提要

——对我国宪法第35条和第41条的规范比较

杜强强

内容提要：基本权利的规范领域和保护程度之间存在反比关系：规范领域愈宽，保护程度愈低；规范领域愈窄，保护程度愈高。我国宪法第35条规定的言论自由，其规范领域宽于宪法第41条规定的监督权，因此宪法对监督权的保护程度高于对言论自由的保护。基本权利对公权力裁量余地的限制，随着所涉及基本权利的不同而有所差异：公权力对言论自由的限制，需要提出充分的理由；对受保护程度更高的监督权的限制，需要提出更强有力的理由。宪法对监督权的高程度保护，体现了制宪者对民主监督的期盼和对民主建设的信心。

关键词：基本权利 言论自由 监督权

Abstract: The coverage and protection of constitutional rights are logically different questions. Only when the conduct of individual falls within the coverage of constitutional rights, then the question whether the conduct is protected by the constitutional law arises. Thus, delineating the coverage of constitutional right is the threshold question implicit in every constitutional right case.

There is an inverse relation between the coverage of constitutional right and its protection, that is, the less limited range of the coverage, the less protection awarded by the constitution, and the more limited range of the coverage, the more protection by the constitution. Because free speech is broader than criticism in ordinary meaning, the coverage of § 35 (free speech) of Chinese Constitution is broader than that of § 41 (supervision right). Thus the constitutional protection of supervision right is higher than that of free speech.

With the different protective degree for free speech and supervision right, the limitation on governmental discretion also differs. To limit supervision right which is highly protected, the exercise of governmental power must provide more compelling justification than to limit freedom of speech. The higher protection of supervision right embodies the purpose and intention of the framers of Chinese Constitution, that is, the expectation of democratic supervision and the confidence in democratic construction, which is the outstanding characteristic of socialist constitution.

Key Words: constitutional right, freedom of speech, supervision right

2. 人民陪审员制度的复苏与实践：1998-2010

彭小龙

内容提要：1998年以来人民陪审员制度的复苏是多种社会需求合力催生的结果，承载了推进司法民主、维护司法公正、强化司法监督、提高司法公信力等多重期望。然而，由于陪审员难以有效地参与审判，该制度在人力补充、调解协商、知识提供等方面的作用较为突出，其他效果则不太明显。经验材料由此呈现“一种制度实践、两种复苏原因及效果判断”的现象。相对于立法意图和人们的预期，人民陪审已出现某种程度的职能异化。未来的改革应致力于职能分化，强化专门领域案件和轻微案件中民众参与审判的作用，同时注重提升陪审员在重大案件中的代表性和参审效果。

关键词：人民陪审员 陪审制度实施效果 陪审制度改革

Abstract: As the non-professional judge participating in the trial, the people’s assessor system has suddenly entered into a period of strong recovery since 1998 when the judicial professionalization heated up in China. From the perspective of Sociology of law, emerging, transforming and declining of the legal system always depend on the relationship between its potential functions, social requirements and social environments. Accordingly, this paper provides a positive study on the recovery and practices of people’s assessor system, which finds that the recovery of this system maybe the product of various social needs, bearing many expectations such as supervising judges, promoting judicial justice and advancing judicial authority. However, under the influences of formal and informal power structures in the judicial process, people’s assessor always could not effectively participate in the judicial decision-making. Therefore, in contemporary judicial practices, the people’s assessors mainly act as human resource supplement, mediator and knowledge supplier in special cases, and other expectations are unaffordable for them.

Those roles undertaken by the people’s assessors are out of the expectations of the institution designers and the common people, which may be called as “function dissimilation”. Future reform efforts should be made to achieve “function differentiation”. On the one hand, the importance of people’s assessors’ current role in special cases and minor cases ought to be advanced. On the other hand, it is necessary to enhance the people’s assessors’ representation and ensure they can play a practical role in important cases.

Key Words: people’s assessor, practical effect of people’s assessor system, reform of people’s assessor system

3. 我国食品安全风险规制模式之转型

戚建刚

内容提要：以食品安全风险规制所涉主体为基点，通过考察行政机关、利害关系人、专家和普通公众四类主体在食品安全风险规制中所承载的不同角色和功能，可以抽象出食品安全风险规制的两种模式。我国传统的食品安全风险规制模式属于自上而下模式，食品安全法的颁布与实施强化了该模式。面对当前我国频繁发生的食品安全事件，自上而下的规制模式在风险议题形成、安全标准制定、风险评估、风险信息沟通和风险管理等方面面临全面挑战。相互合作的规制模式有当代政治法律理论和国外食品安全风险规制经验的支持，有助于在食品安全风险规制所需要的理性与感情、科学与民主之间寻求尽可能的平衡，符合我国食品安全风险规制的现实需要。在规范层面上，该模式的制度框架由核心制度、支持性制度和技术制度构成。

关键词：食品安全风险规制 食品安全法 行政法学

Abstract: If we take the roles of administrative agencies, stakeholders, experts and the general public as the variables, we can type the risk governance mode of food safety as the mode of top-to-down and the mode of mutual cooperation. The traditional risk governance mode of food safety in China is the top-to-down mode, and the promulgation and implementation of the Food Safety Law further enhances this mode. In the face of frequent incidents of food safety nowadays in China, this mode has been plunged into a crisis of legitimacy. As the mutual cooperation mode is not only held up by the concepts of political philosophy, the contemporary public theories and the foreign experiences of food safety risk governance, but also consistent with the requirement of an appropriate balance between ration and emotion and between science and democracy which is determined by the dual attributes of food safety risk, the mutual cooperation mode hits the heart of the problems of current food safety risk governance in China.

The institution framework of the mutual cooperation mode is composed by the core systems, the support systems and the technical ones. The core systems include the consultative participation system, the multilateral risk assessment coordination committee system, the food safety risk communication system, the participatory risk management system and the motion system. The supporting systems include the multi-centered information publicity system and the accountability system. And the technical systems include the consensus meeting among the representatives of the general public, the expert seminars and hearing systems and the consensus meeting system among the representatives of experts, stakeholders and the general public.

Key Words: food safety risk governance, food safety law, administrative law

4. 传统的延续：习惯在现代中国法制中的地位和作用

刘作翔

内容提要：在多元调整性文化中，习惯是一种很重要的规范类型。在法律出现空缺的情况下，习惯就成为补充法律漏洞的重要规范依据。这并不意味着习惯就变成了法律。在没有被法律吸收之前，习惯仍然是习惯。法律赋予习惯以法律地位，使得习惯成为在没有法律的前提下，人们的一种行为规范依据和法官的裁决依据。这对包括中国在内以制定法为主要规范依据和来源的国家，具有重要的法治意义。

关键词：多元调整性文化 习惯 法律 政策

Abstract: Custom is one of the very important norm types in multilateral adjustment culture. In default of law, custom is used to be an important supplement for legal loopholes. But it does not mean that custom has become the law. It is still the custom before being absorbed into law. After being admitted, custom will obtain a legal status, which is important because custom therefore becomes behavior rule and basis of adjudication in default of law. Thus custom has acquired a legitimate status in legal structure, which is of legal significance to statute law countries such as Switzerland, Japan and China. Differing from case law countries based on the development of customary law, a legitimate basis is very important both to people’s behaviors and judges’ adjudications in statute law countries.

The breakthrough made by sporadic legislations, judicial interpretations and practices of grassroots courts has provided foundations to establish the due status of custom in our contemporary legal system, but there still exist some problems. To solve these problems radically and make custom play more important role in Chinese future legal course, the way-out still lies in legislation. The provision of Article 1 of Swiss Civil Code on custom has become the example of world’s civil law, which can be used for reference by China’s future civil code. To begin with, we can make a breakthrough in civil law level by stipulating custom’s legal status in civil legislation definitely. Then a model of three-rank norm system including law, policy and custom takes form. Each lower norm can be applied only on the premise of the lack of upper norm.

Key Words: multilateral adjustment culture, custom, law, policy

5. 第三人欺诈与第三人胁迫

薛军

内容提要：传统民法对第三人欺诈与第三人胁迫采取区分式的立法模式。在第三人欺诈情形，排除意思表示人针对善意相对人撤销其意思表示的权利；在第三人胁迫情形，则赋予意思表示人以无限制的撤销其意思表示的权利。区分模式忽视对交易安全的保障，造成法律制度内部的冲突。对第三人欺诈与第三人胁迫设立统一规则的模式具有诸多优点，在最近的民法理论中得到越来越多的支持。在未来中国民法典的编纂中，应对第三人欺诈与第三人胁迫采纳统一的规则模式，承认在无信赖利益保护需求时，被欺诈人与被胁迫人享有撤销权。

关键词：第三人欺诈 第三人胁迫 区分模式 统一模式 可撤销法律行为

Abstract: In Civilian tradition, civil codes usually adopt different rules on deceit by third party and duress by third party. In the case of deceit by third party, if the counter party is in good faith, the party under deceit can not avoid his declaration of will. But in the case of duress by third party, the party under duress can always avoid his declaration of will, even if the counter party is in good faith. This solution is usually held to have its origin in Roman law. But the actio metus casa in Roman law is an instrument mainly serving for the scope of the restitutio in integrum, and has its peculiar social backgrounds.

The traditional pattern of civil codes has some obvious defects in protection of party in good faith and becomes a great threat to the safety and stability of transactions. And it can not logically explain why some damage caused illegally by the third party should be transferred to the party in good faith. Based on these arguments, the uniform model which sets the same rule on deceit by third party and duress by third party should be adopted. This model gives more protection to the party in good faith and emphasizes more on the value of stability and certainty of transactions. Moreover, this model has not the defect of over-commercialization. Through the rule on the definition of the “third” party and the concrete criteria on “good faith”, the different social-economic conditions of the parties involved in the transaction will be valued and balanced quite sufficiently. In the codification of Chinese civil law, we should adopt the uniform model on deceit by third party and duress by third party.

Key Words: deceit by third party, duress by third party, differentiation model, uniform model, avoidable legal action

6. 权利推定：实体与程序之间的构造

王洪亮

内容提要：权利推定须从实体法与程序法相结合的角度予以理解。实体法决定了推定的根据以及推定的对象与范围。被推定的权利通常是包含占有权能并以占有之取得为权利取得要件的物权，债权不能被推定。另一方面，程序法上的原理亦会影响实体法的效果。权利推定主要是取得推定而非状态推定，主要根据在于推定相对人举反证推翻推定的范围。权利推定之推翻本质上为程序法问题，但如何平衡当事人之间的利益也会影响实体权利的实现。在程序中，推定权利人须承担程序性的释明义务，占有人必须说明取得之过程，以便推定相对人有针对性地进行反证。

关键词：权利推定 证明负担 取得推定 推定之推翻

Abstract: Presumption of right should be explored from the perspective combining procedural law with substantial law. Presumption of right can be based on the possession and registration. The former aims to relief possessor’s difficulty to prove property right and the latter aims to establish the effect of publicity of real property and maintain transaction security. Although having different purposes, they adopt the same legal technology of presuming property rights which are difficult to prove according to the facts easy to prove, such as acquisition of possession and registration.

Under the legislation in which possession and registration constitute prerequisites for the effective transfer of real rights, it is probable that the appearance coincides with the real situation of right, so it is reasonable to presume right according to possession and registration. Presumption of right means presumption of the acquisition of right, which is supplemented by the presumption of subsistence. Rights which can be presumed are usually with the function to possess and take the acquisition of possession as an element of acquiring real right. Obligatory rights cannot be presumed.

According to the rule of presumption of right, the beneficiary of presumption is exempt from burden of proof, but the other party can overturn the presumption by counter evidences. When the beneficiary himself makes a statement about acquisition course, the other party can overturn the presumption by counter evidences concerning to such acquisition course. In the legal procedure, the possessor must explain his acquisition course and sometimes has to explain why he can’t provide information related. If he rejects to explain and still quotes the rule of presumption, his behavior will constitute abuse of right.

Key Words: presumption of right, burden of proof, presumption of right acquisition, to overturn of presumption

7. 抽象人格权与人格权体系之构建

杨立新 刘召成

内容提要：当今的人格权法中出现了一般人格权、人格商业利用权以及自我决定权等。这些非具体人格权的产生是对具体人格权的补充性发展，而非体系构建的产物，因而由其与具体人格权共同构成的人格权体系内部产生了矛盾。传统民法注重对外在人格和内在人格的保护，对此通过具体人格权制度予以实现，但对于处于人格核心地位的意志自由则欠缺保护。意志决定自由是人格的本质，决定了人的人格个性和人格发展，民法应当予以保护。抽象人格权就是对于意志自由的保护。它包括自我决定权、一般人格权和人格商业利用权。抽象人格权在人格权体系中的地位是具体人格权的权能，同时具有一定的独立性。由抽象人格权与具体人格权构成完整的人格权体系，对意志自由、内在人格和外在人格提供全面的保护，并且可以解决具体人格权与各种非具体人格权之间的矛盾。

关键词：抽象人格权 人格层次 自我决定权 一般人格权 人格商业利用权

Abstract: After 100 years development, except for concrete personality rights, personality right law also includes non-concrete personality rights such as general personality right, personality’s commercial use right, and self-determination right. They are the supplement to the concrete personality rights, not the result of systemic construction, so the system made up of them and concrete personality rights is full of contradictions. The construction of personality right system should be based on the classification of personality, so that the corresponding relation between concrete personality rights and abstract personality rights can take form and the above-mentioned contradictions will be overcome.

Personality can be divided into three aspects, that is, free will, internal personality, and external personality. Traditional civil law focuses on the protection of external and internal personality through concrete personality rights, but free will is not under its protection. Because the determinative freedom of will is the essence of personality, which determines the attribute and development of an individual and is confirmed by constitution, it must be protected by civil law. Abstract personality rights including self-determination right, general personality right and personality’s commercial use right can supply full protection for the determinative freedom of will. In the system of personality right, abstract personality rights are the functions of concrete personality rights, but also have relative independence. Thus the whole system of personality right is made up of abstract personality rights and concrete personality rights, and supplies full protection for free will, internal personality, and external personality.

Key Words: abstract personality right, self-determination right, general personality right, personality’s commercial use right

8. 公证证明效力研究

张卫平

内容提要：公证证明具有约束法院认定案件事实的效力，法院对公证证明事实的实质审查判断的自由裁量权受到限制或排除，对提出公证证明的当事人而言则具有免证的法律效果。公证证明在证据证明力方面具有优越性。公证证明的效力源于法律上的推定。公证对案件事实的证明存在复式证明和单式证明两种形式，无论哪种形式，公证文书都是一种证据，在证据属性上属于书证，且是公文书、报告性文书。应在民事诉讼法中明确将当事人要求确认公证文书真伪的诉讼作为确认之诉加以规定。除涉及公证文书本身的真实性和合法性、公证证明事项在内容上具有很强主观性以及其他难以通过公证确认其真实性和合法性的证据以外，其他经公证证明的事项无须质证。

关键词：公证 证明效力 证据属性 公证文书

Abstract: The notarial certification has legal effect both on the court and the parties. The facts in the case under notarial certification have binding forces to the court, which means the court should make decisions on the basis of these facts. At the same time, the party who has provided the notarial certification can be released from the burden of proof. The probative force of the notarial certification is higher than other evidences, because the legal effect of the notarial certification arises from legal presumption. Such presumption is based on following reasons. The notarial office exercises the state notarial functions, and the Notarization Law ensures the authenticity and impartiality of the notarial certification by means of substantive and procedural rules. There are two modes of proof that the notarization can prove the facts of the case, i.e., multi-mode of proof and single-mode of proof. However, the notarial documents in both modes are all one kind of evidence. The evidential property of notarial document is documentary evidence. Actually, it’s a kind of public document and reportorial documentary evidence.

The authenticity of the notarial document directly brings the problem whether the civil rights and obligations exist, thus the Civil Procedure Law ought to prescribe that the parties can use civil action to settle the dispute over its authenticity. The matters proved by the notarial certification are immune to cross-examination, except for the authenticity and legality of the notarial document itself, the matters with strong subjectivity, and other matters which is hard to be certificated authentic or legal by the notarization. And last, there are two possible ways to remedy the illegal notarization, i.e., to build up an extraordinary proceeding in the civil procedure law, or to build up a non-judicial proceeding organized and exercised by the Notary Association.

Key Words: notarization, probative effect, evidential property, notarial document

9. 回到抽象的诉权说

严仁群

内容提要：为诉权附加要件会导致其名不副实、无意义并隐含悖论。这是附条件诉权说的重大、致命缺陷。在程序伊始，法院面对的是“无知之幕”。要正当地走出这种状态，要给权利人以救济，就必须接受所有原告的起诉，对所有程序和实体事项的审理都应当在程序内进行。所以，不附要件的抽象诉权说有其深刻的内在合理性。作为修正型的抽象诉权说，司法行为请求权说能够应对针对抽象诉权说的所有批评，且有更多实益。基于抽象的诉权说，诉权与诉讼要件、裁判请求权等的关系能够厘清。

关键词：附条件诉权说 抽象诉权说 司法行为请求权说

Abstract: It has been insisted that right of action should have some conditions, but attaching one or more conditions to right of action would make it unworthy of its name, meaningless, and paradoxical. Those defects are severe and fatal. All the theories of conditional right of action should be abandoned, even if they regard right of action as a human right or argue it to be a constitutional right.

At the beginning of litigation, court is in the state of ignorance. It must accept a case unconditionally and hear all the procedural and substantial issues in due process. For this reason, theory of abstract right of action, which does not annex any requirement to right of action, has inherent rationality. Most of criticism to it is unreasonable. It can strongly sustain remedy to right of action and truly highlight the defect of setting conditions for filing and accepting a case. Theory of right of demanding judicial action does not attach requirement to right of action either, but it is a revisionary abstract theory of right of action, which makes up the defect of the theory of abstract right of action and has more practical significance.

By the two kinds of abstract theory, we can clarify the relationship between right of action and condition of making substantial judgment, right to judicial verdict. The right of action contains only two kinds of right, i.e., unconditional right to bring an action, and right of demanding impartial judicial trial. We should wipe off the heavy burden on right of action exerted by theories of conditional right of action and return to abstract theory of right of action.

Key Words: theory of conditional right of action, theory of abstract right of action, theory of right of demanding judicial action

10. 犯罪构成体系的价值评价：从存在论走向规范论

欧阳本祺

内容提要：德日三阶层犯罪构成体系以规范论为基础，以评价性概念为基石，价值评价的对象是事实，价值评价的实证标准是罪状，实质标准是开放的，诸如新康德主义的超验理性、罗克辛的刑事政策以及雅各布斯的社会规范等。我国四要件犯罪构成体系以存在论为基础，以描述性概念为基石，评价对象与对象评价不分，事实判断与价值评价同一。存在论体系及其描述性概念严重限制了价值评价的功能，无法协调好事实判断与价值评价、体系内评价与体系外评价、积极评价与消极评价的关系。我国犯罪构成体系应该从存在论走向规范论。

关键词：犯罪构成体系 价值评价 存在论 规范论

Abstract: Chinese criminal law scholars have some misapprehensions about the relationship between Chinese crime constitution and German-Japanese crime constitution. Actually, the basic difference between them lies in the value theory. German-Japanese three-tier criminal system bases on norm theory and appraisal concepts. The object of value appraisement is fact, its formal standard is Tatbestand and its material standard is alterable, such as Neo-Kantian transcendental reason, Roxin’s criminal policy, Jakobs’ social norm and so on. However, Chinese four-element system bases on ontology and descriptive concepts. The object of value appraisement can not be distinguished from the standard of value appraisement, and fact judgment equates to value appraisement.

Ontological system and its descriptive concepts restrict the function of value appraisement. This kind of system cannot harmonize the relationship between value appraisement and fact judgment, thus induces the superabundance of fact judgment but the insufficiency of value appraisement. Accordingly, the insufficiency of value appraisement in Chinese system is complemented by the concept of social harm. Secondly, the descriptive concepts in Chinese system cannot leave enough space for theoretical development. Again, the descriptive concepts cannot describe “no”, which is the reason why Chinese crime constitution cannot contain the justifiable acts. Chinese crime constitution system should transfer from ontology to norm theory, from descriptive concepts to appraisal ones, and harmonize the relation between positive appraisement and negative appraisement.

Key Words: crime constitution system, value appraisement, ontology, norm theory

11. “被教唆的人没有犯被教唆的罪”之解释

刘明祥

内容提要：我国刑法采取的是单一正犯体系，教唆犯从属性说无存在的法律基础，用此说来解释我国刑法第29条第2款中的“被教唆的人没有犯被教唆的罪”，不具有合理性。应当将其解释为被教唆的人没有按教唆犯的意思实施犯罪，具体包括四种情形：（1）教唆犯已实施教唆行为但教唆信息（或内容）还未传达到被教唆的人；（2）被教唆的人拒绝教唆犯的教唆；（3）被教唆的人接受教唆，但还未为犯罪做准备；（4）被教唆的人接受教唆，但后来改变犯意或者因误解教唆犯的意思实施了其他犯罪，并且所犯之罪不能包容被教唆的罪。

关键词：教唆犯 被教唆 犯罪 解释

Abstract: In countries adopting the Principal and Accomplice Offender System, the Theory of Subservience of Instigator has legal foundations and becomes the dominant theory. However, because the Chinese Criminal Law adopts a Unitary Principal Offender System, such theory has no legal foundations in China. But some scholars make interpretations to Article 29, Paragraph 2 of Chinese Criminal Law according to this theory, and deny the assertion that this paragraph focuses on the penalties of individual instigators. One of the most well-known opinion is to explain “if the instigated person has not committed the instigated crime” as the instigated person has got down to commit the crime but not accomplished. Another opinion is to explain it as the instigated person has no capacity of responsibility and does not commit the instigated crime, so the instigator should be deemed as unaccomplished indirect principal offender with the act of instigation.

Both of the two interpretations are unjustified. “If the instigated person has not committed the instigated crime” should be explained as the instigated person has not committed crimes in accordance with the intention of the instigator, which includes four cases. Firstly, the instigator has implemented the act of instigation but the instigated information (or content) has not reached the instigated person. Secondly, the instigated person refuses the instigation of the instigator. Thirdly, the instigated person accepts the instigation, but has not made preparation for the crime. And lastly, the instigated person accepts the instigation, but later, due to changing the criminal intention or misunderstanding the instigator’s intention, the instigated person commits other crime which cannot contain the instigated crime.

Key Words: instigator, the instigated, crime, interpretation

12. 前科株连效应的刑法学思考

于志刚

内容提要：前科株连效应是指犯罪人的犯罪记录导致其近亲属和其他家庭成员基于法律法规的规定而受到规范性的株连评价，进而导致特定的权利遭到限制、特定的资格遭到剥夺的情况。此种规范性评价立足于犯罪人的犯罪记录，将本应由犯罪人独立承担的不利法律后果从法律层面上延伸到了犯罪人的近亲属和其他家庭成员。中国现行法律体系中广泛存在着前科株连制度，不仅对于犯罪人回归社会形成了巨大的现实障碍，而且客观上严重破坏着犯罪人的家庭关系，促使犯罪人及其近亲属和其他家庭成员走向社会的对立面，成为可能再次实施犯罪的潜在犯罪人群体。

关键词：前科 株连效应 犯罪预防 刑罚效果

Abstract: The implicative effect of previous conviction refers to the fact that, under provisions of laws and regulations, some specific rights or qualifications of the criminal’s near relatives or other family members are restricted or deprived as a result of the normatively implicative evaluation imposed on them based on the criminal’s previous conviction. This kind of criminal record orients normative evaluation extend the unfavorable legal consequence, which should be born by the criminal himself independently, to the criminal’s near relatives or other family members. This system is the extending and distention of the effect of criminal record to the criminal’s family, whose purpose lies in crime prevention, not bearing the criminal responsibility jointly and severally.

The implicative effect of previous conviction influences not only the criminal’s rehabilitation, but also the living environment of the criminal’s relatives. On the one hand, such implicative effect forms a barrier blocking the criminal’s rehabilitation. On the other hand, it damages the criminal’s family relation seriously. Due to the comprehensive existence of such effect in Chinese current legal system, the criminals and their near relatives or other family members may run opposite to normal society and become potential criminal group to commit crimes again. Therefore, the proportion principle should be insisted in concrete cases to prevent the unfair implicative evaluation on the relatives or families of all the criminals. In the long run, the implicative system of previous conviction should be abolished in the end.

Key Words: previous conviction, implication, crime prevention, recommitment, punishment effect

13. 司法鉴定制度改革的基本思路

郭华

内容提要：司法鉴定制度基于鉴定结论证明案件事实的证据功能而产生。鉴定结论作为鉴定人的判断更需要制度控制和程序检测。然而，我国的司法鉴定制度未能较好地完成这一任务，即使进行了相应改革，改革后的司法鉴定制度仍未能发挥应有的作用。深化司法鉴定制度改革应当以鉴定结论的证据性质、功能及其应然性作为基础，建立具有保障鉴定结论可信性功能的鉴定制度和具有检测鉴定结论可靠性功能的诉讼程序，以使司法鉴定制度能够满足诉讼证明的高标准要求。

关键词：司法鉴定 鉴定结论 可信性 可靠性

Abstract: Similar as other evidences, expert conclusions have no previous proving effect in litigations. In essence, expert conclusions are the recognitive judgment of the experts, embodying their ability to apply their special knowledge, which can also be false. Therefore, the reform of our judicial verification system should be advanced in the direction of safeguarding the creditability and reliability of expert conclusions.

In order to safeguard the creditability of expert conclusions, it is necessary to reinforce the neutrality of verification agencies and the independence of experts. The verification agency in the investigation organ should be abolished to change the “selfinvestigation and selfverification” situation. The admittance threshold of experts should be increased and their practicing scope should be limited. Still, the monopoly by authority organs to start the verification procedure should be broken and the parties should be endowed with the right to select verification agencies and experts, based on a national uniform roll system.

In order to safeguard the reliability of expert conclusions, on the one hand, it is necessary to establish the admittance system of special knowledge verification and the standard system of apparatus, equipment and laboratory, and to unify the method, standard and procedure of verification. On the other hand, the comprehend judging ability of courts concerning to the disputed expert conclusions and other evidences should also be increased so as to exclude incredible expert conclusions, based on the establishment of the procedure of inquiry by parties, the procedure of expert assisting the inquiry by parties, and the procedure of expert serving as an assessor in law case.

Key Words: judicial verification, expert conclusion, creditability, reliability

14. 普遍民事管辖的发展与挑战

宋杰

内容提要：普遍民事管辖源于美国1789年《外国人侵权索赔法案》。自美国联邦法院1980年首次适用该法案以来，普遍民事管辖的理论与实践引起了国际社会的广泛关注，已发展成为与普遍刑事管辖并列的一个新领域。普遍民事管辖的发展给传统国际法规则特别是与豁免有关的规则带来了重大挑战，也给大陆法系国家带来了法律制度创新上的挑战。中国有必要在本国法律制度中确立普遍民事管辖的相关制度，并在普遍管辖议题的全球性磋商中持更具建设性的立场。

关键词：普遍民事管辖 普遍司法管辖 酷刑公约 海牙私法公约草案

Abstract: The concept and practice of universal civil jurisdiction originates from the interpretation and application of the Alien Tort Claims Act in Filártiga v. Pena-Irala in 1980 by the United States federal court. After this new dimension emerged, especially after the decision of the United States Supreme Court delivered in Sosa v. Alvarez-Machain, it has attracted attentions of some other states and international organizations. Whether universal civil jurisdiction should correspond to the criminal dimension, and whether it should depend on the absence of effective remedies in jurisdiction with traditional links to the prescribed conduct, have become the most important questions for its further application and expansion.

Practices of exercising universal civil jurisdiction have great challenge to the principles of sovereign equality and non-interference. Although some narrators allege that states’ practices in this field support of a customary rule, for neither the Torture Convention nor the Proposed Hague Judgments Convention obliges states to do so, there is no evidence that there are general and consistent state practices in support of this conclusion. However, considering that providing civil redress for alien is not prohibited by Article 14 of the Torture Convention and the perpetrators of torture should not escape from punishment, there is a possibility that more states would be urged to provide effective redress for all torture victims.

This kind of doctrine and practice has caused great challenge to China both for its national interest and for its legal adjustment. It’s necessary for China to introduce this new doctrine into its legal system and participate more effectively in the UN Assembly debate on the issue of universal jurisdiction.

Key Words: universal civil jurisdiction, universal criminal jurisdiction, the Torture Convention, the Proposed Hague Judgments Convention

15. 外国法解释模式研究

徐鹏

内容提要：外国法解释不同于外国法查明。借助解释模式这一概念，可将外国法解释的目标、主体、对象和途径等不同要素统合为有机整体，置于国际私法和法律解释理论的双重脉络中予以探究。在现有外国法解释模式中，解释目标一般为确定外国法在其所属国的意义，故裁判者须完全摒弃先见，作为忠实的外部观察者摹写外国法律共同体对外国法的客观理解。此模式在司法实践中的困境揭示出其在相当程度上偏离了法律解释的内在规律。应重新厘定外国法解释目标，结合外国法适用的“情境化”特点，以法律论证理论重构外国法解释模式。

关键词：外国法解释 解释模式 解释目标 法律论证

Abstract: Interpretation of foreign law differs from proof of foreign law. While the primary concern of the latter lies in the procedural matters concerning how to obtain foreign law materials, the former focuses on understanding the meaning of foreign law. The aim, subject, object and approach of interpretation of foreign law can be integrated systematically through the concept of interpretation pattern, which can be explored in the dual context of private international law and the theory of law interpretation.

In the present interpretation pattern of foreign law, the aim of interpretation is normally regarded as ascertaining the meaning of foreign law in its origin country. The judge should interpret and apply foreign law in the same way as the foreign judges do. In this way, the judge is expected to act as a faithful outer observer in the adjudicating process, and this pattern of interpretation is branded with the mark of complete division between the subject and object of interpretation.

However, this pattern encounters dilemma in the judicial practice. The problem can be traced back to its deviation from the inherent character of law interpretation in some sense. Reflection needs to be made with regard to the aim of interpretation that plays a key role in the interpretation pattern. In the context of resolving the cross-board dispute, the interpretation of foreign law should serve for the just and fair application of foreign law so as to maintain the legal interests and legitimate expectation of the parties effectively. Accordingly, the theory of argumentation of law needs to be introduced to reconstruct the pattern of interpretation, thus the parties and the judge will equally take part in the interpretation process and jointly construct the meaning of foreign law in accordance with the law argumentation rules.

Key Words: interpretation of foreign law, pattern of interpretation, aim of interpretation, argumentation of law