《法学研究》2011年第4期中英文提要

顾培东

内容提要：法院如何恰当配置内部各主体、各层级的职权，合理确定各主体、各层级在审判活动中的地位和作用，建立符合审判客观规律和现实条件的审判运行机制，是我国人民法院改革与发展中的重大现实任务。C市人民法院在审判职权的配置与界定、审判流程的建立与控制、审判动态的监督与把控、审判绩效的评价和考核、信息技术的植入和运用等五个方面的探索，正逐步接近其构建“权力关系清晰、主体职责明确、监督制约到位、资源配置优化、审判活动透明、内部流程顺畅、指标导向合理、科技全面支撑”的法院内部审判运行机制之目标。鉴于构建法院审判运行机制在中国特色司法制度微观基础的塑造、我国法院规范化发展、法院改革创新等方面的意义，C市人民法院的实践能为其他司法机构的改革与发展提供有益的启示。

关键词：法院改革 审判运行机制 审判管理 审判职权配置

Abstract: The compound case-decision mode of multi-subject and multi-hierarchy within the People’s court has hindered the collective advantage of the court as the subject of adjudication in the reality of the trial activities. The most important contemporary task with regard to the Chinese court reform is concerned with the achievement of various goals such as the proper allocation of powers to internal subjects and different hierarchies, the appropriate determination of the roles and functions of different subjects and hierarchies in the trial activities, and the establishment of the court adjudicative mechanism corresponding to the objective laws and requirements of adjudication and the present conditions of the courts.

Explorations have been made by C Intermediate Court with regard to the allocation of powers, the supervision of the adjudicative process, the supervision and guidance of the dynamic trial activities, the estimation and examination of the trial performance, and the introduction and exploitation of information technology. Such explorations aim at the establishment of the internal operative mechanism with the characteristics of “clear power allocation, determinate roles of different subjects, proper supervision and control, optimal resource allocation, transparent trial proceedings, effective internal process, rationally oriented guidelines and comprehensive technological support”. Due to the significance of the construction of the internal operative mechanism of adjudication to the micro-foundation of the judicial system with Chinese characteristics and the normalization and renovation of the court activities, the explorations and practice of C Intermediate Court may provide beneficial implications in terms of the renovation and development of other judicial organs.

Key Words: court reform, operative mechanism of adjudication, administration of adjudication, allocation of trial powers

2. 审判管理：功效、局限及界限把握

龙宗智

内容提要：审判管理是对审判活动的组织、协调和监督。当前加强审判管理的特点，包括审判管理组织与管理措施的强化，管理的严格性与精细化程度的提高，信息平台的构建与技术手段的充分利用，管理活动中行政元素的强化以及对审判的渗入。这种状况既有国家管理的宏观背景支持，又有法院自身的原因。其现实意义是有利于保障审判的公正、效率、廉洁和司法统一性。但也有不符审判规律及不规范的问题，还可能扭曲审判行为。应当从“法院逻辑”即“裁判逻辑”中寻求司法建设的常识，重视审判资源配置，强化基础意识防止轻重倒置，同时继续按照司法规律推动法院改革；注意审判管理重在审判权外部展开，实现“以外促内”；限制和规范审判管理权干预案件的实体处理；正确把握评查与考绩的方法与限度。

关键词：审判管理 审判权 司法规律 相对合理

Abstract: Trial management is the organization, coordination and supervision of trial activities. Presently, the strengthening of trial management has several characteristics, that is, the strengthening of trial management organizations and measures, the improvement of the strictness and elaboration in management, the establishment of information platform and full exploitation of technological approaches, and the strengthening of administrative elements in management activities and its pervasion into trial activities. Such a situation results from both the macro-background of state management and the needs of the court system itself. The positive side of this situation is that it can guarantee the fairness, efficiency and probity in trial and the unity of justice. However, it may also deprive personal experience in trial and hinder independence of judgment, thus affect the quality of decision. Moreover, it may cause unrighteous trial and trial management, suppress the initiative and sense of responsibility of trial personnel, and bring about some kind of “route-reliance” and a vicious circle.

From a relatively reasonable angle of view, the targets of judicial improvement should be based on the law of justice. For this purpose, we should seek common sense of judicial improvement in the“trial logic”. We should attach importance to the allocation of trial resources, strengthen basic awareness so as not to put the cart before the horse, and keep promoting court reform according to the law of justice. To find a relatively reasonable boundary between the power to adjudicate and the power of trial management, and to realize appropriate interaction between them, we should be aware that trail management should not interfere with the power to adjudicate, limit and regulate the interference in the substantial handling of cases by the trail management power, and handle correctly the method of and limits on performance appraisal.

Key Words: trial management, power to adjudicate, law of justice, relative reasonableness

3. 司法的道德性与法律方法

秦策 夏锦文

内容提要：在一些具有道德意味的案件中，法官是否具备明确的道德意识，并正确地回应社会公众的道德需求，已成为判断裁判社会效果的重要指标之一。法官应当掌握一定的裁判技巧，遵循一定的司法方法论原则，以缓和法律与道德之间的内在张力。从法律方法论的角度，司法道德性可以在四个视域内加以分析：以规则适用实现法律规则中的道德要求；以原则裁判宣谕法律的道德内涵；以客观和平衡的司法方法遵循社会主流道德观念；以确认和规制良心司法体现法官道德准则。

关键词：司法道德性 规则适用 原则裁判 良心司法

Abstract: China is a nation with a strong moral atmosphere, thus the morality of judicature is evitable and needs to be taken seriously. In some cases with ethic factors, one of the important standards to evaluate the social effect of a judgment is whether the judge has a clear awareness of these ethic factors and responds correctly to the moral demands of the mass. But after all, the acceptability of a judgment has to be confirmed in both moral community and legal community. For that purpose, judges must use adjudicatory techniques and follow some principles of judicial methodology to mitigate the inherent tension between law and moral.

From the view of legal methodology, morality of judicature can be analyzed and tested in the following four perspectives. Firstly, judges should actively find moral demands incorporated in the legal rules when applying them, and use purposive interpretation and natural law interpretation to deliver the moral implication of the legislators to the case. Secondly, judges might declare the moral meaning of the legal system by way of adjudication according to principles, when legal rules are not adequate in hard cases. Methodological constraint is necessary to eschew subjectivity and over-moralization because the legal principles are too general and vague. Thirdly, when weighing different values, judges should take the mainstream moral ideas in the society as an objective basis and apply them in a balanced way to avoid value suppression. Lastly, adjudication with conscience ought to be permitted because judges’ self-consciences play an important role in complementing the inadequacies of the law, keeping the law to be obeyed properly, guiding the judges into the social value, and correcting the absurdity in the legal rules. Meanwhile, the adjudication with conscience should also be exercised in a regulated way.

Key Words: morality of judicature, rule application, adjudication according to principle, adjudication with conscience

4. 判例生成与中国案例指导制度

宋晓

内容提要：依据法律功能主义，我国案例指导制度可纳入广义的判例制度之中。判例生成制度是判例制度的物质基础。我国指导性案例的生成，主要依赖最高人民法院的司法外权力，采取不以司法等级权威为基础的案例选拔方式，没有遵循普遍的形式主义进路，没有严格依傍法院体系和审级制度，其实效有待观察。最高人民法院和高级人民法院都应成为判例法院，并可遴选自己法院的案例为指导性案例，现行案例遴选标准大体符合判例遴选的一般原理。判例遴选制度对应的是有限援引制度，有限援引制度在成文法语境中并不会面临普通法语境中的正当性质疑，案例指导制度应允许法官直接援引指导性案例。案例指导制度的未来发展应与我国整体司法改革彼此深化、相互促进。

关键词：案例指导制度 判例制度 判例生成 判例遴选

Abstract: From the perspective of functionalism, the case-guiding system in China may be classified into the system of precedent in a broad sense. The formation and selection of our guiding cases mainly depend on the extra-judicial power of the Supreme People’s Court, which are not rested on the judicial hierarchy and do not follow the approach of the general formalism. In order to promote the case-guiding system, the trial instance jurisdiction should be reformed accordingly, and the judicial function of the Supreme People’s Court should be strengthened, while the legislative function reduced.

The Supreme People’s Court and the Superior People’s Court should have the power to select and set guiding cases from those decided by themselves. The standard of selecting guiding cases should be specific and flexible rather than general. A judge or the panel of judges who preside over the case should be granted the preliminary power to select guiding cases, so the case-load will be decreased, the efficiency will be promoted, and judges will be able to spend more time and efforts to write the opinions of guiding cases. It is impossible for a precedent to be followed virtually without being followed formally. Our case-guiding system should allow judges to cite guiding cases directly in their opinions, because without the formal requirement of direct citation, those guiding cases published by the Supreme People’s Court will never be accepted as guiding ones in the sense of precedents.

The system of precedent is closely connected with and mutually decided by the whole judicial system, even the whole legal system. The case-guiding system in China, however, intentionally distances itself from a series of judicial system, such as the court system, the trial instance jurisdiction, the professionalization and independence of judges, so the actual effect of guiding cases could be doubted. The perfection of the case-guiding system in China should be joined with the judicial reform, and both the system and the reform will be promoted mutually and reciprocally.

Key Words: case-guiding system, system of precedent, formation of precedent, selection of precedent

5. 财产权的三维价值

——论财产之于人生的幸福

易继明

内容提要：财产之于人生的幸福既是一种朴素的情感，也是财产权理论中的一个根本性问题。从财产给予人类的情感价值来说，它包括拥有之乐、获取之乐和利用之乐三个维度。拥有之乐，表达的是财产权所具有的个人情感，目的在于建立起财产权利的边界；获取之乐，实现的是财产权的人生价值，乐在享受财产权力；利用之乐，建立在财产能力之上，体现了财产权所承载的社会意义。建立此种财产价值观，财产权才能作为一种公共政策的工具，在创造个体幸福的同时，也带来整体的共同福祉。

关键词：财产权 情感价值 拥有之乐 获取之乐 利用之乐

Abstract: The pleasures of life due to wealth on the one hand reflect the primitive feelings of human beings, on the other hand, they reveal a fundamental issue of property theories. The capacity of property determines the eligibilities of the persons and legal entities to conduct some actions, while the acquisition, use of and limitation to the power of property lay down the foundations of property regime. If we look at the emotional values of wealth, the pleasures of life due to wealth may include a pleasure of possession, a pleasure of gain and a pleasure of exploitation. The pleasure of possession expresses the individual’s emotions about property rights serving the purpose to delineate the boundary of property rights. The pleasure of gain achieves the individual’s value over their acquiring and enjoying the power accrued from property. The pleasure of exploitation is built on the capacity of property and materializes the social significance of property rights.

Nowadays, the social responsibilities attached to the property rights have been emphasized, and at the same time we can see the switch of the property regime from the primitive semi-commons to several and joint ownership, joint ownership, condominium ownership, the scheme of recognizing the manager’s entitlements, and so on. The system of jus in re aliena has been redesigned and is fully fledged with more diverse types of rights. Besides the traditional usufructuary right and right of pledge, lease, loan and transfer of intellectual achievements have been utilizing the property concept to ensure the social demands and needs met and the industrial innovation continue. Only based on these values can property rights function as the instrument of the public policy, which could result in both the individual happiness and the social welfare growth.

Key Words: property right, emotional value, a pleasure of possession, a pleasure of gain, a pleasure of exploitation

6. 版权法保护技术措施的正当性

王迁

内容提要：为了实施《世界知识产权组织版权条约》中有关保护技术措施的规定，我国与许多国家的版权法均同时保护旨在防止未经许可观赏文艺作品或运行计算机软件的“接触控制措施”和旨在防止未经许可复制、传播作品等版权侵权行为的“版权保护措施”。但版权法保护“接触控制措施”的正当性存在极大争议。不应以“接触控制措施”能够直接保护“复制权”（防止“临时复制”）和“接触权”以及间接保护版权作为版权法对其加以保护的正当性基础。因为中国版权法不承认“临时复制”为复制行为，也根本不存在所谓的“接触权”，并且只有部分“接触控制措施”能够间接保护版权。版权法保护“接触控制措施”的正当性在于其可保障作者等权利人在版权法中的正当利益，即从他人对作品的利用中获得合理报酬。根据这一正当性理论，如果某种“接触控制措施”无法保障权利人在版权法中的正当利益，版权法就不应对其加以保护。

关键词：技术措施 接触控制措施 版权保护措施 接触权

Abstract: To implement WIPO Copyright Treaty, China and many other countries have amended the copyright law to protect both the “access control measures” which restrict unauthorized access to literal, artistic works or computer programs, and the “copyright protection measures” which prevent unauthorized reproduction, transmission or other infringing activities. The protection of the “copyright protection measures” by the copyright law is easy to be justified since this type of technological measure is a means to protect copyrights. However, unauthorized access to copyrighted works, including reading or watching pirated novels or movies, does not infringe the copyright, so the effect of the “access control measures” is not to protect copyrights. Therefore, the justification for protecting the “access control measures” by the copyright law becomes a highly controversial issue.

One explanation bases the justification on the view that the “access control measures” can directly protect the exclusive right of reproduction by restricting temporary copying and the so-called exclusive “right of access” by restricting unauthorized access to works. This explanation is not well grounded since the “access control measures” cannot protect the right of reproduction in a country such as China where the temporary copying is not covered by the right of reproduction, and the hypothetical “right of access” does not actually exist in the copyright law. Another argument is that the “access control measures” have the effect of indirectly preventing copyright infringement by restricting access to works. But the fact is that only very limited number of “access control measures” can protect copyrights indirectly.

This paper proposes that the justification for the copyright law to protect the “access control measures” arises from the fact that the measures can safeguard copyright owners’ legitimate interests recognized by the copyright law, i.e., to receive financial benefit from others’ exploitation of the works. In accordance with this theory, if an “access control measure” does not safeguard such legitimate interests, it should not be protected by copyright law.

Key Words: technological measure, access control measure, copyright protection measure, right of access

7. 侵权法中权利与利益的区分方法

于飞

内容提要：我国理论和实务界虽有不少在侵权法中建立权益区分保护体系的建议，但缺少对如何区分侵权法上的权利和利益的深入研究。德国民法学对侵权法上的权益区分提出了“归属效能”、“排除效能”和“社会典型公开性”三个教义学标准。归属效能的核心在于将确定的利益内容归属于特定主体；排除效能的核心在于主体得排除他人的一切非法干涉；社会典型公开性的核心在于使社会一般主体有识别利益客体的可能性，从而兼顾潜在加害人的行为自由。同时符合这三个标准的，为侵权法上的权利；反之即为利益。在受害人权益保护成为侵权法优先价值的背景下，以上法教义学标准遇到了理论与实践上的障碍，应从法政策视角弥补法教义学解释力之不足。

关键词：侵权法 权利 利益 法教义学 法政策

Abstract: Chinese legal theorists and practitioners have some suggestions for the establishment of a system that distinguishes between the protection of rights and the protection of interests, but the Chinese legal field still lacks in-depth research on how to distinguish between rights and interests in the tort law. The existing discussion only argues for the necessity of such distinction, but there has been few discussion of how such distinction could be feasibly implemented, so the current theories have little power.

The German civil law offers three legal criteria for the distinction between rights and interests. Rights in the tort law should have the “allocation function”, the “exclusion function” and the “typical social obviousness”. The core of the “allocation function” is to assign a certain interest to a certain subject, while the center of the “exclusion function” is to exclude all the unlawful interference from others. Moreover, the “typical social obviousness” is to make general subjects have the general possibility of identifying the objects of interest, thus takes into account the freedom to act of the potential infringers. Those which satisfy the three criteria concurrently are rights in tort law, otherwise they are interests.

With tort law weighted towards protecting the rights and interests of the victim, the judges begin to tend to interpret some interests (pure economical interests) as rights, where the claimants are few in number and clearly defined, so as to produce more and convenient bases for claims. This has blurred in some instances the three doctrinal criteria discussed above. At this point, we should apply the perspective of legal policy to remedy and bolster the explanatory power of legal doctrine.

Key Words: tort law, right, interest, legal doctrine, legal policy

8. 查明事实、分清是非原则重述

李浩

内容提要：“查明事实、分清是非”是民事诉讼法规定的法院调解应当遵循的原则之一，确立这一原则是为了保障司法调解的公正性。这一原则当下正受到理论和实务界的强烈质疑。我国是以法院为中心规定诉讼调解制度的，法院调解并非诉讼上的和解。调解在性质上仍然是法院的审判行为，调解与判决一样都是完成民事诉讼法所规定任务的手段，加之当事人期待接近裁判的调解结果以及调审合一的程序模式、法院调解的经验教训，这一原则的正当性和必要性具有理论和实践的依据。法院立案调解、对事实存疑案件调解所取得的成功，均不能成为否定该原则的理由。除非将法院调解置换为诉讼上和解，否则继续保留这一原则就有充分的理由。

关键词：法院调解 查明事实 分清是非 审判行为 司法公正

Abstract: “Ascertaining the Facts & Discerning between Right and Wrong” is one of the principles guiding the court mediation in the Chinese Civil Litigation Law, which is established to guarantee the impartiality of the court mediation. But nowadays, the principle is challenged severely by the civil litigation theory and practice field and the voice to eliminate the principle is growing louder.

However, the principle has profound theoretical foundations. The court mediation, which is different in nature from conciliation, is one of the main patterns of the court executing its civil judicial authority. The legislature has provided that mediation and judgment are both the patterns for the court to accomplish the tasks provided by the Civil Litigation Law. The parties’ expectation of justice, the mediation being based on judgment, mediation being part of the civil litigation procedure, and the potential compulsory nature implied in the system of the unification of mediation and judgment have provided sufficient theoretical foundations for this principle.

This principle is also supported by sufficient practical foundations. Only by conforming to this principle, can the court mediation be correctly directed and the result of the mediation be impartial and acceptable. Otherwise, the court mediation will be deviated from the right way and as a result, opportunist and unprincipled mediation will prevail. The history has proved repeatedly this conclusion from the Revolutionary Base Area mediation system to the current mediation system.

In litigation practice, the courts have mediated successfully certain types of cases and even those cases in which the facts cannot be ascertained, and some courts have adopted interim filing mediation. But these phenomena cannot constitute the reasons to negate or eliminate this principle. So far as the court mediation is not deconstructed and rebuilt into conciliation in civil litigation, the principle should still be insisted on in order to guarantee the impartiality of the court mediation.

Key Words: court mediation, to ascertain the facts, to discern between right and wrong, trial act, judicial justice

9. 法律的公众认同、功能期许与道德承载

——对刑法修正案(八)的复眼式解读

肖世杰

内容提要：刑法修正案(八)不但针对我国转型时期的社会情势和国情民意予以了很大程度的回应，而且也体现了官方和主流民意对刑法的功能期待，承载了当下社会基本的集体道德情感，但被一些刑法改革者认为立法理性不够或过多地迁就了庸俗的民粹主义，以致没有较好地摆脱传统工具主义和重刑主义的思维与窠臼。诚然，转型时期高度复杂的社会情势和大众心理基质难免使得实定刑法所蕴含的价值理念互有差别、充满悖反乃至相互抵牾。欲对这种吊诡的多重面向予以同情之理解与有效的解读，除了法学与逻辑的思维论证，更重要的可能还必须导入法律社会学、社会心理学和法律经济学等多维度的复眼化视角。

关键词：刑法修订 公众认同 功能期许 道德承载 复眼化视角

Abstract： In general, the Eighth Amendment of the Criminal Law of China on the one hand made modifications for the purpose of decreasing and restricting the use of the death penalty, regulating the crime-penalty structure and adjusting the criminal penalty system, which has made the criminal law system and the crime-penalty regulation more reasonable in formality. Those modifications in some sense accord with the worldwide trend of moderate criminal penalty and the progress of the rule of law. On the other hand, the Amendment responds effectively both to the domestic situation and the voices of the general public in a transformed society. It also expresses the expectations of the authority and the mainstream public opinion for the functions that the criminal law serves, and reflects the social fundamental collective moral feelings. Therefore, the promulgation of the Amendment aroused the criticism from the academic society. They thought the criminal law should be more rational rather than simply follow the populism.

Practically speaking, a modern society with highly complexity puts heavier burden on the law. A so-called legal issue may not be a pure one, yet other aspects of the social life may be involved in it. And so does legislation. The reform on legal system always takes place after the changes of the society and the collective living conditions. Therefore, to have an overall picture of the Amendment, it is more effective to take a dimensional vision, not only from the legal and logical aspect, but also from legal sociology, social psychology, legal economics and other aspects. Thus, it is possible to have a constructive reading on the said Amendment and the ideology that governs the Criminal Law of China.

Key Words: amendment of the criminal law, public recognition, expectation for function, moral bearing of the law, dimensional vision

10．强制性侦查措施的法律规制与法律监督

李建明

内容提要：不需要得到相对人自愿配合而直接实施的侦查措施为强制性侦查措施。强制性侦查措施具有正当性，同时也具有侵害公民基本权益的弊端。为避免或减轻强制性侦查措施对公民权利造成侵害，需要通过法律规范强制性侦查措施，同时需要加强对强制性侦查措施的法律监督。目前我国强制性侦查措施的法律规制严重不足，对于强制性侦查措施的法律监督局限于对逮捕等强制措施适用的监督，对搜查、扣押、冻结等大量强制性侦查措施尚未形成有效的监督机制。强化对于强制性侦查措施的法律监督，需要通过立法完善强制性侦查措施的规范体系，同时也有赖于检察机关改革、优化侦查监督的工作机制。

关键词：刑事侦查 强制性侦查措施 法律规制 法律监督

Abstract: Compulsory investigation measures can be implemented directly by investigation agencies without the voluntary cooperation of the relative persons. As necessary and important tools to expose and punish the crimes, the compulsory investigation measures have legitimacy, but still have the disadvantage of infringing the basic rights of citizens. To avoid or alleviate this disadvantage, legislation should be enacted to regulate these measures, the principles and procedures to apply these measures should be set and the legal supervision over these measures should be strengthened.

In China, the current legal regulation of compulsory investigation measures suffers severe weakness, and for many measures there exist no laws for regulation. Accordingly, the legal supervision over compulsory investigation measures is limited to the compulsory measures such as arrest, and the effective supervision mechanism regarding many other compulsory investigation measures such as search, seizure and freezing has not been established yet. The legislation of compulsory investigation measures lags seriously, making the non-normative application possible and the prosecution agency get into the trouble of having no laws to follow. In order to strengthen the legal supervision over compulsory investigation measures, we should improve the normative system through legislation, reform the prosecution agency and optimize the investigation supervision working mechanism. That is, we should set up and improve the judicial review system, the record censorship system, the prosecution guiding investigation system and the citizen complaint system, so as to elevate the strength and actual effectiveness of the supervision over compulsory investigation measures.

Key Words: criminal investigation, compulsory investigation measure, legal regulation, legal supervision

11．我国公诉制度改革若干问题探讨

陈光中 彭新林

内容提要：我国的公诉制度有必要通过正在进行的刑事诉讼法再修改实行以下三项重要改革：1.在起诉程序中适用非法证据排除规则。检察机关应当尽可能使进入审判程序的证据具有证据能力。2.建立附条件不起诉制度。建立此项制度有其理念、政策和现实根据。立法应当合理规定附条件不起诉的案件范围、考察期限。实行附条件不起诉应当与当事人和解、犯罪嫌疑人社会调查制度相结合，并建立有效的监督机制。3.创建量刑建议制度。以与规范法院量刑程序相配套，有助于实现量刑公正和有效辩护，提高诉讼效率和公诉能力及水平。

关键词：公诉改革 非法证据排除 附条件不起诉 量刑建议

Abstract: With the gradual deepening of China’s judicial reform, the revision of Chinese Criminal Procedure Law is on going. It is necessary to reform the existing public prosecution system to make the criminal prosecution ruled by the law further. The reform of our public prosecution system must have the following three important aspects.

Firstly, the exclusionary rule should be put into practice. In the process of examination and prosecution, the establishment of the exclusionary procedure has an important effect on improving the value of procedural justice, eliminating the illegal evidence from the trial process, and avoiding the occurrence of miscarriages of justice. It is an important feature of Chinese prosecution system that the procuratorial organ has a duty to exclude illegal evidence in the process of examination and prosecution.

Secondly, the conditional non-prosecution system should be established. Compared to the doctrine of prosecutive discretion, the doctrine of conditional non-prosecution is more important and favored by many countries and districts. It should also be recognized by the revision of the Criminal Procedure Law to carry out the criminal policy of tempering justice with mercy, maintain the modesty of the criminal law, reflect the economy of litigation, and promote social harmony and stability. Legislation should confirm reasonably the scope and the test period of the conditional non-prosecution system.

Thirdly, the sentencing suggestion system should be created. As an important part of the prosecution system, the sentencing suggestion system has considerable universality in today’s criminal justice practice in the world and should also be adopted by our country. It helps to achieve the justice of sentence and the effectiveness of defense, and can improve the efficiency, capacity and level of public prosecution. We must build a scientific and feasible operative mechanism to make sure the sentencing suggestion system, an innovative reform initiative, has maximum effect in the administration of justice.

Key Words: reform of the public prosecution system, the exclusion of illegal evidence, conditional non-prosecution, sentencing suggestion

12．南朝法制的创新及其影响

——兼论“南北朝诸律，北优于南”说不能成立

吕志兴

内容提要：南朝法制继承了晋律令的内容和体例，但从刘宋时起即开始形成一些新规定。梁、陈二代都制定了律令法典；梁律令在法典编纂体例方面有重要创新，特别是对《晋令》篇目的删修，开后世令典30篇（卷）体例之先河；梁、陈在重要法律制度上亦有许多创新。南朝法制对北周、隋、唐有深刻影响，是隋唐法制的主要渊源之一，在编纂体例和重要制度创新、文明程度及对后世的影响上均不在北朝之下，学界流行的“南北朝诸律，北优于南”说与历史事实不符，不能成立。

关键词：南朝法制 梁律 北齐律 陈律

Abstract: The Southern and Northern Dynasties are an important period for the development of ancient Chinese legal system. However, the research on the legal system of the Southern Dynasties before is very limited and underestimates its accomplishment. This paper aims to analyze the codifying style and layout, the important institutional innovations and the impact of the legal system of the Southern Dynasties.

In general, the Southern Dynasties inherited the content and style of laws and decrees of the Jin Dynasty. However, the Liu-Song Dynasty and later dynasties amended the legal system of the Jin Dynasty, and made a series of new laws and decrees. Laws and decrees of the Liang Dynasty achieved important innovations in the codifying style and layout. It is particularly worth noting that, laws and decrees of the Liang Dynasty created a precedent for the application of 30 chapters (juan) in codification by cutting out and amending the chapters of the decrees of the Jin Dynasty, and unified the annotations by Zhang and Du of the laws of the Jin Dynasty. The Liang Dynasty and the Chen Dynasty also made many innovations in important institutions.

The legal system of the Southern Dynasties had a profound influence on the legal system of the Northern Zhou Dynasty and the Sui-Tang Dynasties, and became one of the main origins of the legal system of the Sui-Tang Dynasties. However, since the Tang Dynasty, the academic circle gave it a low appraisal, especially in the modern history. This paper holds that, whether its content is brief or not cannot be the only standard to estimate a code. The codes of the Southern Dynasties are not inferior to the ones of the Northern Dynasties in the degree of civilization, codifying style and layout, important institution innovations and impact on later legal system. Therefore, the popular view that the Northern Dynasties are superior to the Southern Dynasties in the legal system does not accord with historical facts and cannot be held on.

Key Words: legal system of the Southern Dynasties, laws and decrees of the Liang Dynasty, laws and decrees of the Northern Qi Dynasty, laws and decrees of the Chen Dynasty

13．国际法的人本化趋势与国际投资法的革新

刘笋

内容提要：国际法的人本化要求国际社会不仅要关注跨国经济交往带来的经济增长和社会福利的增加，而且要关注和解决经济活动所伴生的环保问题和人权问题。现有的多数国际投资条约，无论从实体法还是从程序法视角来考察，都无法适应人本化的需求，也无助于与投资相关的人权、环保等社会价值的实现，因而导致了近年来一系列的相关改革。改变现有投资条约过分偏袒投资者而忽略东道国管辖权及与投资关联的各种社会价值的立法导向，强化投资者的社会责任，给予东道国政府及其国民直接依据国际法追究跨国公司社会责任的权利和机会，将是未来国际投资法革新的重要内容。

关键词：国际法人本化 环境保护 人权保护 国际投资法 国际投资条约

Abstract: The humanization of international law means that the international community should not only concern the economic development and the growth of social welfare brought by transnational economic exchanges, but also pay attention to the environmental problems and human rights issues caused by economic activities. Whether from the perspective of substantive law or procedural law, most international investment treaties can’t meet the needs of humanization.

From the perspective of substantive law, the investment treatment clauses and the expropriation clauses are designed obscurely and it is very easy for investors to interpret these clauses very broadly. This constitutes a serious threat to the exercise of legislative, judicial and administrative power of host countries in the field of human rights protection and environment protection. It can even produce “chilling effect” on the future legislation of host countries.

From the perspective of procedural law, the investment arbitration system under the current investment treaties has many obvious defects, and host countries have to face more and more economic cost and risks because of the more and more arbitration cases. The citizens of host countries can’t protect their interests in the field of human rights and environment rights through the current dispute settlement mechanism and the legitimacy crisis of the investment arbitration system is becoming more and more prominent.

Therefore, reform is urgently needed and some reforms have been adopted in some countries in the field of international investment law. The tendency of international investment treaties which shows partiality for investors and ignores the jurisdiction of host countries and the social values associated with the international investment should be changed. Strengthening the social responsibility of international investors, and giving the governments of host countries and their citizens the chances and rights to call the multinational corporations to account for their social responsibilities directly according to the international law will be important contents of the innovation of the international investment law in the future.

Key Words: humanization of international law, environment protection, human rights protection, international investment law, international investment treaty