TRIPS与我国专利法中的司法审查制度

司法审查制度是现代法治国家普遍设立的一项重要的法律制度 ,WTO《与贸易有关的知识产权协议》(TRIPS协议 )确立了司法审查的原则。为了与世界知识产权规则接轨 ,我国立法部门先后对三部主要知识产权法———《专利法》、《商标法》、《著作权法》做了较大幅度的修改 ,其中最显著的莫过于在知识产权法上司法审查制度的确立。文章针对专利法上的司法审查问题提出了几点看法。     

论科学监督

一、财政监督的本质是公共委托代理 财政监督的本质是什么?对此,人们往往会想起法国政治学家孟德斯鸠的三权分立理论和"一切有权力的人都容易滥用权力,这是一条万古不易的定理",以及英国历史学家约翰·阿克顿"绝对的权力必然产生绝对的腐败"等论断.但是,很少有人了解,孟德斯鸠的这些论断是在英国约·洛克、法国让·罗梭等"主权在民"理论的基础上提出的.     

改革开放以来党的民主观发展

20世纪末以来，民主化浪潮几乎席卷整个世界，虽然民主已成为大多数国家认同的价值，但至今民主仍没有统一的定义。古典民主理论倾向于从观念上来理解民主，用权威的来源或目的来界定民主。近代以来，越来越多的学者接受了程序性民主概念，倾向于从制度上来解释民主。综合来看，民主就是通过一定的制度设计和制度安排来实现人民的统治。民主是普遍性与特殊性的统一。民主政治作为人类的共同价值，有其自身的普遍性，一个健全的民主制体需要法治与选举，需要社会自治与公民参与，还需要权力监督与政治透明等等。     

革命后的第二天——中国“魏玛时期”的思想与政治(1912～1927)

在现代政治之中,究竟谁能代表公意?是议会民主制之下通过投票选出的代议士,还是行政威权之下代表民族整体意志的主权者,还是在民粹革命之中通过直接民主,由人民直接在场,呈现公意?在20世纪的世界政治格局之中,这是英美、德国和苏俄三种不同道路的区别。而在1912年～1927年短短的15年间,民国的政治便浓缩走过了从英美的议会民主制到德国式的行政威权制再到仿效苏俄的党国体制道路。其间制度转换之快、动荡之激烈,世所罕见。而制度表层的剧烈变革的背后,正是公意的实现与代表性危机所致。     

宪制选择与巴西民主的巩固

宪制选择与民主巩固的关系是民主化研究领域中的核心论题。本文选取巴西这一经典案例对此予以深入考察。从对巴西民主崩溃的担忧到对巴西民主日渐巩固的确认，学界对巴西宪政体制的评价也几乎给出了截然相反的判断。本文通过考察巴西宪制选择的现实逻辑以及具体的制度安排之于民主巩固的多重影响，反思民主巩固学中的制度主义学派的研究方法和取向，以期为既有的民主巩固学提供新的知识增量。     

试论法治的若干问题

依法治国是要将我国建设成为社会主义的法治国家。它不仅是治国方式的重大变革,更是一种带有制度性的重大变革,它将涉及到我国社会生活的各个方面。 一、法治的涵义是法律至上 法治的主要标志就是不能容忍有任何组织或个人凌驾于法律之上。根据恩格斯的观点,良法的标准主要有两个,一是能否促进当时当地生产力的发展,二是是否符合正义。现代法治要求法治国家必须建立在民主、进步、科学的基础上,立法、司法和行政权力不能集中于一人或一个机构手中,要建立独立的司法机构体系,以保证司法的客观与公正。所有这些都是现代法治国家法治概念的不可缺少的基本内涵。法治不同于法制,依照通常理解,法制是法律制度的简称,它是相对于政治、经济、文化等制度而言的。而法治是相对于人治而言。一个国家的长治久安和兴旺发达,关键是要有一个良好的法律制度,而不在于一、两个领导人是否贤明。     

经济社会转型时期刑事案例指导制度的合理定位及价值研究

当前,我国正处于由计划经济转为市场经济、传统社会转为现代社会的快速转型时期。在这个转型的关键时期,面对不断出现的各种新问题、新矛盾,在我国重视立法、加快制定立法以完善中国特色社会主义法律体系的同时,如何司法以解决司法实践中常出现的同案不同判现象是必须重视的问题。从法律适用的角度,刑事案例指导制度正是针对同案不同判现象,为统一法律适用、实现司法公正建立的一种与司法解释并行发展的新的司法对策,该制度将对我国法律规则体系、法官思维方式、法学理论研究等方面具有重大而深远的影响。     

两种民主模式与第三波民主化的稳固北大核心CSSCI

为什么第三波民主化进程中,有些新兴民主国家实现了民主稳固,而另一些却走向了民主倒退甚至崩溃?在常见的"经济水平论"、"制度选择论"、"社会结构论"、"政治文化论"和"国际环境论"之外,本文提出了一个新的视角——"精英行为论"。本文认为,对民主观念存在两种理解("程序性的理解"与"实体性的理解"),而这两种理解导致了两种政治精英行为方式,进而构成了两种民主模式("多元制衡式民主"与"赢者通吃式民主"),后者往往带来民主的倒退甚至崩溃。换言之,在民主转型这样一个历史的"关键时刻",一定观念下的精英行为与选择很大程度上塑造了新兴民主国家民主稳固的前景。在理论阐释之外,本文还选择了南非与委内瑞拉两个案例对此进行详细说明。     

公行天下情自知 正走八方显赤诚——北京市海淀区公证处改革与发展历程

法治作为一种精神,一种状态,体现在立法、执法、司法、守法各个方面,公证和法治同源。公证是现代司法制度的重要组成部分,是法治不可或缺的环节,是法治进程的一种检测器,一个理想的法治社会必定存在理想的公证制度。     

反向的民主化：第三波民主的问题

第三波民主化浪潮中的国家,多在建立法治、公民社会、领导人问责制等现代国家的基本制度之前建立了自由选举制度。相反,第一波民主化的国家则在普选引入之前已经先建立了现代的国家制度。第三波民主化中这种反方向的民主化造成了在大多数国家中形成的是不完全的民主制度。不完全的民主有三种发展前景:(1)继续向前,完成民主化;(2)民主选举制度失败,转向一种不民主的制度;(3)在统治精英低效但公众对民主政治要求也低的情况下,更会堕入一种低水平平衡的陷阱。本文通过分析三个新民主国家的大众观念调查数据,展示这样一种不完全民主的各种问题。这三个国家的前身各不相同:过去属于专制体制的俄罗斯、过去曾有民主和专制的捷克、过去是专制军事政权的韩国。     

Toward Subnational Democracies of Scale: Tensions between Democratic Legitimacy,Legality, and Effective Governance

Although democracy is often discussed as a universally applicable ideology, the liberal democratic state tends to assess democracy on the basis of government institutions. This paper argues that democratic institutionalism favours national governments and makes it difficult for subnational governments to expand their governance capacity and exercise additional powers. Greenland, Shetland, and Tresco (Isles of Scilly) serve as case studies of different subnational strategies for exercising greater governance capacity: 1) Actual adherence to democratic form (Greenland), 2) Symbolic adherence to democratic form (Shetland), and 3) Operating external to democratic form (Tresco). Despite the efforts of local governance actors, governance in these three island communities has proved problematic in terms of democratic legitimacy, legality, and/or effectiveness. It is argued that pressure toward the development of liberal democratic government institutions can in fact decrease the quality of subnational democracy. This requires a reassessment of definitions of democracy and authoritarianism. It is necessary to pursue place-specific and community-sensitive democracies of scale if we wish to democratically empower local communities.     

Democracy,Development and Comparative Institutional Advantage in Africa

Development in Africa has been stalled for decades in a vicious cycle of poverty, underdevelopment, corruption, and conflict. In this paper, we argue that donors should focus on democracy and accountability as a first priority in development aid. We use the theory of comparative institutional advantage to identify the key institutions that are most likely to facilitate economic development in communities in the modern world. These institutions include an efficient non-corrupt government sector. Subsequently, we discuss how a lack of democracy and accountability inevitably undermines development efforts and investment, referring especially to the Ethiopian experience but also considering the experiences of other African dictatorships. Finally, we discuss how donors, by emphasizing democracy and accountability along with other policies that support democratic institutions, have a greater chance of effectively contributing to African economic development.     

Open issues in happiness research

Happiness research is one of the most vivid and fruitful parts of modern economics. The focus is on empirical findings. In contrast, theoretical work has been rather neglected. The paper deals with three areas needing more analytical work: the choice or imposition of comparison or reference groups; and the extent, speed and symmetry of adaptation to positive and negative shocks on happiness. In both areas, theoretical propositions are derived which can in the future be empirically tested. The third area relates to the political economy of happiness. Many governments intend to take the happiness index as a criterion of how successful their policies are. As a consequence, survey respondents get an incentive to misrepresent their happiness level, and governments to manipulate the aggregate happiness indicator in their favor. A country’s constitution must induce governments to carefully observe human rights, democracy, the decentralization of political decision making, and market institutions and provide people with the possibility to acquire a good education and find a suitable job.     

The constitutional future of the European Union

The formal distinction between a treaty and a constitution is much less important than the question of who is authorized to interpret and amend it. The judges of the European Court of Justice interpret the Treaty by simple majority, while unanimity of the member-states would be required to reverse these decisions. The European Union needs a Court whose judges are empanelled from, and selected by, the highest courts of the member-states. The Treaty on European Union violates three fundamental constitutional principles: (i) the principle of the separation of powers, (ii) the democratic principle, and (iii) the principle of subsidiarity.     

Islamic constitutionalism and rule of law: a constitutional economics perspective

This study investigates the relationship between Islamic constitutionalism and rule of law. Al Azhar, one of the most respected Sunni religious institutions in the world, developed a model of an Islamic constitution. This study uses Al-Azhar’s constitution as a model of Islamic constitutionalism and examines its stance in regard to the rule of law. We find the Al-Azhar’s constitution to be incompatible with essential concepts of rule of law. For example, the powers vested in the head of the Islamic state are enormous, making the executive branch of government far superior to the legislative and judicial branches. Women and non-Muslims are explicitly discriminated against throughout the constitution. Moreover, laws stemming from this constitution are not stable since many differences exist among schools of Islamic jurisprudence (fiqh). Consequently, we show that state-of-the-art Islamic constitutionalism lacks essential components needed in any constitution based on rule of law.     

The economic effects of constitutions: do budget institutions make forms of government more alike?

According to an influential theoretical argument, presidential systems tend to present smaller governments relative to parliamentary countries because the separation between those who decide the size of the fiscal purse and those who allocate it creates incentives for lower public expenditures. In practice, however, presidential and parliamentary countries come in many forms. In particular, variation in procedural rules that assign budget prerogatives across the popular branches of government may affect the underlying incentives that differentiate these types of regimes in terms of fiscal outcomes. More specifically, we argue that more hierarchical rules that concentrate budgetary power in the executive relative to the legislature do not only reduce the extent of the common pool problem but also limit the degree of separation of powers, which may have a countervailing effect. Consequently, the effect of the form of government on public expenditures is conditional on specific procedural rules. We test this hypothesis on a broad cross-section of countries and find that presidentialism has a negative impact on government size only when executive discretion in the budget process is low (that is, in a context of separation of powers). However, the negative effect of presidentialism on expenditures vanishes when the executive’s discretion over the budget process is higher. This result, in addition to highlighting that not all budget institutions have the same effect on incentives and outcomes, points out how important it is to go beyond broad characterizations of political institutions for explaining policy outcomes, and more generally, for moving forward the research agenda in constitutional political economy.     

Constitutional stability

Political scientists in the pluralist tradition disagree sharply with public and social choice theorists about the importance of institutions and with William Riker in particular, who argues inLiberalism against Populism that the liberal institutions of indirect democracy ought to be preferred to those of populism. This essay reconsiders this dispute in light of two ideas unavailable to Riker at the time. The first, offered by Russell Hardin, is that if we conceptualize constitutions as coordinating devices rather than as social contracts, then we can develop a more satisfying view of the way in which constitutions become self-enforcing. The second idea derives from the various applications of concepts such as the uncovered set. Briefly, although institutions such as the direct election of president are subject to the usual instabilities that concern social choice theorists, those instabilities do not imply that “anything can happen” —instead, final outcomes will be constrained, where the severity of those constraints depends on institutional details. We maintain that these ideas strengthen Riker's argument about the importance of such constitutional devices as the separation of powers, bicameralism, the executive veto, and scheduled elections, as well as the view that federalism is an important component of the institutions that stabilize the American political system. We conclude with the proposition that the American Civil War should not be regarded as a constitutional failure, but rather as a success. I have benefitted from the comments of a number of people on earlier drafts of this essay, especially William Riker, Emerson Niou, Kenneth Shepsle, Gordon Tullock, Thomas Schwartz, and Matthew Spitzer.     

DEMOCRACY IN REFORMING COLLAPSED COMMUNIST ECONOMIES: BLESSING OR CURSE?

From a political standpoint, post-communists systems include both democratic and non-democratic nations. From an economic standpoint, they include both collapsing and expanding economies. All four logical possibilities exist for post-communist political and economic systems. The Czech Republic is an example of a democratic political system and an expanding economic system. Russia is an example of a democratic political system and a collapsing economic system. China is an example of a non-democratic political system and an expanding economic system. North Korea is an example of a non-democratic political system and a collapsing economic system. The fact that all four logical possibilities exist suggests that democracy is neither necessary nor sufficient for good economic performance. However, democracy is certainly a value in itself that requires certain basic institutions, including free and fair elections, the orderly transfer of power to those elected, the rule of law and the separation of powers, and the protection of individual freedoms and basic liberties, including those of speech, press, religion, assembly, property, and economic opportunity. Economic policies, rather than the form of government, determine the results for an economy. Russia and China, the two largest socialist economies, followed very different economic policies and experienced radically different outcomes. The failure of “shock therapy” economic policies for transition to a market economy in Russia is related to its use of the Washington Consensus SLP package of stabilization, liberalization, and privatization, as recommended by the World Bank and the IMF. The success of Deng's economic policies for transition to a market economy in China is related to its rejection of the SLP in favor of the ICG approach of institutions, competition, and government. Other interesting cases are those of the Czech Republic and North Korea. Those nations in which both political and economic reforms have been simultaneously successful, such as the Czech Republic, are generally small, homogeneous European nations with a historic work ethic, with a relatively short period of socialism, and with support from neighboring advanced industrialized nations. There is great difficulty in simultaneously establishing both democracy and a market economy without a very special set of circumstances. Thus, it is necessary to determine a sequence for political and economic reform. Ultimately, however, the ideal of both democracy and a market economy may be attained even in nations without special circumstances and external assistance, with Russia eventually turning its economy around and with China eventually reforming politically into a democratic nation.     

Modern Politics as a Trust Scheme and Its Relevance to Modern Banking

The trust is, by definition, a hybrid between rights in rem and rights in personam. It is also an English legal concept that distinguishes the English common law from the Roman law tradition of continental Europe. The trust is largely absent in the classical writings of Karl Marx and Max Weber on the origins and nature of capitalism. This essay demonstrates that the trust is central to an adequate understanding of capitalism — including the capitalist institutions of modern banking, corporations, and representative democracy — and demonstrates that modern banking and politics are mirror images of each other. Before capitalism, credit economies created institutions to protect debtors or often revived the social order by cancelling debts. The capitalist credit economy, by contrast, considers strict debt obligations a supreme moral good and a way of securing social order. It creates a political scheme to ensure that debt obligations are strictly fulfilled. This essay argues that this scheme is a trust. The trust turns the debts of individuals, whose death can cancel their debt obligations, into the debts of imaginary groups such as the modern state, whose identities and obligations are permanently maintained by replaceable trustees. The essay further holds that without the politics of the trust, modern banking could not have developed.     

An experimental study of democracy breakdown,income and inequality

Many empirical studies investigate the relationships between economic development, inequality, and democracy survival; however, establishing causal links with naturally occurring cross-country data is problematic. We address this question in a laboratory experiment, where in democracy citizens can invest in profitable projects and vote on income taxation. In the alternative regime—autocracy—efficient investment levels and equitable redistribution are implemented exogenously, but there is a risk of resources being partially expropriated. Citizens can voluntarily switch from democracy to autocracy by a majority vote, which mimics recent historical examples, where voters voluntarily delegate political powers to an autocrat in exchange for a promise of high taxation and redistribution. We find that the likelihood of democracy breakdown increases with the degree of inequality but does not vary with productivity. The link between productivity and democracy survival depends critically on the degree of sophistication of the median voter.