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【期刊名称】 《法学家》
ABSTRACTS
【分类】 其他【期刊年份】 2019年
【期号】 3【页码】 190
【全文】法宝引证码CLI.A.1263375    
  ABSTRACTS
  
The Genesis and Normative Construction of Power for Demand to Review of RegulationsWANG Jianxue·1·
  The demand to review of regulations, which has the ability to initiate review procedure, is a power conferred to certain state organs by law on legislation.The normative characteristics of this power should be understood under the Constitution.The traditional review is triggered by the National People's Congress and its Standing Committee as sovereign representative organ, legislative organ and reviewing organ.The establishment of passive demand procedure is a self-restraint.By conferring the demand power to the five bodies, the NPCSC could establish a more diversified and efficient review system.The share of demand power signifies the mutual supervision of demand bodies among each other, therefore, the review object should rather be interpreted broader than the textual enumeration based on the purpose of law.The function of demand review procedure is determined by the perfection of state supervision system.In order to avoid the conspired harmony of the five bodies, the NPCSC should urge them to enact the concrete rules of exercising the demand power.
  Key Words Law on Legislation;Demand to Review of Regulations;Constitutional Review;State Supervision System
  Wang Jianxue, Ph.D. in Law, Professor of Tianjin University Law School.
  Illiteracy,Legal Illiterate and the Transition of the Social Effective Scope of Judicial AuthorityWU Dezhi·13·
  The judicial authority of ancient Chinese society is a kind of hierarchy authority with whole social effect.It is not only because the meaning of the law, common sense and moral of ancient society are coherent and thorough, but also ancient judiciary had gathered most of advantages about knowledge, moral, status, treasure and power to transcend other social stratum, due to the difference category illiteracy/intellectual and asymmetric distribution of social and matter capital brought by imperial examination system.In the modern society of functional differentiation, most people become law-ignorant.The phenomenon of legal illiterates not only embodies the ignorance of legal norm knowledge, but also the estrangement of the meaning of modern legal systems.Judges also lose the whole advantage of other group.In order to set up the whole social authority, we should dress up the foreground of modern legal systems by moral information and then can infer the inherent reliability of backstage through a kind of method of lower cognitive cost.On the other hand, we should borrow the judicial authority construction method and concentrate the advantages of different social fields on judges, thus mold judges into superior social stratum.
  Key Words Illiteracy;Legal Illiterate;Stratified Society;Functional Differentiated Society;Judicial Authority
  Wu Dezhi, Ph.D. in Law, Associate Professor of Anhui University Law School.
  On the Practical Basis and Normative Rationality of Civil Investigation OrderCAO Jianjun·29·
  The civil investigation order is an original evidence collection system that has been tested in China for more than 20 years.At the normative level, there are problems such as subjective legitimacy, objective rationality, procedural guarantee and effectiveness.It is necessary to improve these rules in the respect of applying subject, command object, stage of time and space, scope of evidence collection, issuance procedure, relief procedure, consequences and sanctions.At the institutional level, the order for production of documents competes with civil investigation order and has advantages of fairness and efficiency.If we refer to the civil law system and develop the collection scope to the third person and other types other than the documentary evidence, the two can be integrated into one civil evidence collection system in the future.However, in accordance with China's realistic reform logic, namely enriching the parties' right to obtain evidence and filling the loopholes in the court's powers, the civil investigation order is the system designed for the court to transfer the enforcement power of evidence collection to lawyers, and has meaning of independent existence, personal experience and initiative of evidence collection and the complementary practical effect.Therefore, after preventing practical rationality from becoming absolutized, the original civil investigation order system can also basically realize the transformation of modernization.
  Key Words Civil Investigation Order;Order for Production of Documents;Evidence Collection;Judicial Authorization.
  Cao Jianjun, Ph.D. in Law, Lecturer of Tianjin University Law School.
  Three Configuring Models of Detention Approval Power in the Procuratorial OrganNIE Youlun·43·
  The function of detention examination and approval is largely related to the configuration of detention approval power in the procuratorial organ.With the continuous development of the procuratorial internal institutions reform and the local pilot exploration, the detention approval power in the procuratorial organ has gradually formed three models.Among them, the investigation supervision model is the result of the internal decentralization and mutual checks in procuratorate power, but in order to guarantee the quality of case investigation, the detention approval power is used as a means of control, supervision and guidance under this model.The“combination of detention approval and prosecution”model is the reverse operation of the above-mentioned decentralization, through the centralizing of detention approval power and prosecution, which attempts to solve the problems caused by the investigation supervision model.The detention approval independence model pays more attention to the realization of the necessity examination of detention.Through the establishment of an independent executive organization, the neutrality and transcendentality of the examination subject could be guaranteed, which would realize the legal function of human rights protection.These three models all have rationality of existence and implementation, and also have a series of theoretical and practical problems.However, considering the litigation principle and the legal background, choosing any of the above models cannot solve all practical problems.By analyzing their generation context and theoretical basis, some general theories of the configuration of detention approval power can be summarized for choosing the ideal model.
  Key Words Detention Examination and Approval;Internal Institution;Investigation Supervision;Combination of Detention Approval and Prosecution;Independence of Detention Approval
  Nie Youlun, Ph.D. in Law Candidate of Renmin University of China Law School, Visiting Scholar of UC Bookley Law School.
  The Method About the Rule of Law on the Division of Governance between the State and Localities:A Discussion Focusing on the System of Administrative Division of Governance in JapanRU Sisi·57·
  The method about how to divide the governance between the state and localities is still in exploration.The system design of the division of governance, which combined legislative authority with financial power, has difficulties theoretically and practically.The method about the division of governance that is based on field also has difficulties such as separating the relation between the stateand localities.In Japan, which is a unitary government as same as our country, there were several otcempts to complete the system design after World War II, but all of them ended up with failure.After the decentralization reform in Japan in 2000, a system has been formed, in which administrative governance is in the central, and other authorities or powers are independent while related to each other according to the principle of the division of responsibility.As for the method of the division, Japan gives up depending on traditional pattern that based on field, but relying on administrative subject and current law to complete the exact administrative attribution.This system design, which is based on the division of administrative governance placed in the central, can provide a new research idea for the rule of law and the division of governance in our country.
  Key Words Relationship Between the State and Localities;Division of Governance;Administrative Governance;Division of Roles.
  Ru Sisi, Assistant Researcher of Law Faculty of Kyushu University.
  The Compilation of Civil Code and the Development of Chinese Civil Law SystemWANG Liming·70·
  The development of the theoretical system of civil law and the compilation of civil code are mutually reinforcing and inseparable.The civil law theoretical system formed by the study of civil law has the function of system construction, concept and terminology establishment, institutional arrangement and rule design.The compilation of the Civil Code will promote the systematization of the discipline of civil law, the improvement of the value system, the development of civil law research, the modernization and the systematic development of legal interpretation.The subjective consciousness of Chinese civil law, namely problem-oriented consciousness, local consciousness, practical consciousness, age consciousness and innovation consciousness, has been improved in the compilation of civil code.The compilation of the Civil Code promotes the development of the theoretical system of civil law with Chinese characteristics, including the value of civil law, the content of civil law, the civil law system, the interpretation of civil law and the diversification of civil law methods.
  Key Words Compilation of Civil Code;Civil Law System;Value System;Subjective Consciousness
  Wang Liming, Ph.D. in Law, Research Fellow of The Research Center of Civil and Commercial Jurisprudence of Renmin University of China, Professor of Renmin University of China Law School.
  Reflections on the Opportunity of Introducing the“Forced Heirship”into
  Chinese Succession Law:And the Possible Way to Improve the Actual“Necessary Portion”SystemLI Bei·83·
  The introduction of the“forced heirship system”occupies an important position in the current debate about the codification of Chinese law of successions.The majority of Chinese scholars are supportive for its introduction, a fine analysis however reveals the great risk of such enterprise: the reasons given to justify the forced heirship are largely insufficient;this institution contrasts with the traditional principles of Chinese law of successions;the immature legislation of such a complicated issue can eng

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