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【期刊名称】 《法学家》
ABSTRACTS
【英文标题】 ABSTRACTS【分类】 其他
【期刊年份】 2018年【期号】 5
【页码】 192
【全文】法宝引证码CLI.A.1248754    
  Reflections on the Study of the Socialist Jurisprudence Discourse System with Chinese Characteristics:From the Perspective of Chinese Communist Party Regulations LIAO Yi·1·
  As far as the development of legal discourse theory is concerned,the study of jurisprudence discourse in the strict sense is extremely necessary. The jurisprudence discourse has the characteristics of multiple forms,decentralization,and sentimentalism. The study of its systematization should follow the logic of historical practice. This kind of logic can be empirically demonstrated in the evolution of the socialist legal discourse with Chinese characteristics,represented by “CCP Regulations”. The rise of “CCP Regulations” discourse reflects the overall deepening of the current ideology of the rule of law in China and the legal governance process. A large number of related studies have neglected the historical context and limitation factor of jurisprudence discourse,and it is difficult to play a true theoretical guiding function under the discipline system. The construction of the socialist jurisprudence discourse system with Chinese characteristics should be promoted in the broader vision of historical conditions,form a new analytical framework,and pay attention to the discussion of theoretical strategies.
  Key Words:Jurisprudence Discourse; CCP Regulations; Discourse of Politics and Law; Ideology of the Rule of Law; Historical Practice
  Liao Yi,Ph. D.in Law,Professor of Wuhan University School of Law.
  Construction of A Society of Compliance:Meaning,Rationale and Approach LI Na·15·
  “Full compliance” is an important goal as well as content in the construction of rule of law in China. Compliance however is not a sole outcome of application of legal norms,but a sort of logic of social actions. Construction of a society of compliance requcres three major subjects:the individual,group and organization. And it refers to three principal levels:the society,government and the country. Construction of a society of compliance indicates a high level of rule of law construction as it contributes to national governance. With an comprehensive and processual perspective,compliance construction requires useful interrelation between law,society and the individual,interrelation between the rule,action and ideas,and interrelation between subjective and objective factors. In this sense,the core of a society of compliance includes three critical aspects:compliance awareness,compliance capacity,and compliance conditions. Such three aspects further develop seven basic elements:acceptance of legitimacy,ethical morality,knowledge,resource,legal system,legal deterrence,and social-cultural psychology. In general,the rule of law construction in China calls for new development in both compliance theory and compliance practice.
  Key Words:A Society of Compliance; Construction of Rule of Law; Compliance Awareness; Compliance Capacity; Legal Deterrence
  Li Na,Ph. D.in Law,Assistant Professor of Yunnan University Law School.
  The Structure of Horizontal Separation of Powers LIN Yan·29·
  There exist three common theoretical approaches in explaining the structure of horizontal separation of powers in China,namely the Article 3 approach,the democratic centralization principle approach,and the approach that is based on state organs and their authorities. All these approaches,however,fail to present a comprehensive understanding of the horizontal separation of powers structure. To fill such an academic vacuum,this article tries to capture several identifiable patterns and normative structures of the horizontal separation of powers by sorting out common elements in constitutional norms and the studies of landmark cases and controversies. The quinary structure,the organizationally hierarchical order,the supremacy of People's Congresses,the integration of legislative and executive branches,and the principle of restrained oversight represent the common structure genes of China's horizontal separation of powers structure.
  Key Words:Quinary Structure; Organizationally Hierarchical Order; Supremacy of People's Congresses; Integration of Legislative and Executive Branches; Principle of Restrained Oversight
  Lin Yan,S. J. D.(University of Wisconsin-Madison),Professor,Shanghai Jiao Tong University KoGuan Law School.
  Administrative Hearing as a Process of Communication SHI Xiaoxue·44·
  The traditional form of hearing is an adversary trial-type process,which meets some predicaments when it is transplanted to the administrative process. It makes a trap that the formal hearing is an adversary trial-type one,which cannot fit in with different kind of administrative tasks. This study finds two ideal pure types of hearing procedure:case-deciding and policy-making. It is a reciprocal communication in adjudication hearing process,while a communication with common aims in policy making hearing process. There are two sets of characteristics of these ideal types:simplicity and diversity,defensiveness and constructiveness. The different functions between case-deciding type of hearing and policy-making type of hearing lead to the divergence of their procedures.
  Key Words:Administrative Hearing; Ideal Type; Communication; Case-deciding; Policy-making
  Shi Xiaoxue,Ph. D.in Law,Lecturer of Kenneth Wang School of Law of Soochow University.
  Regulation of Solicitation by Civil Law ZHANG Hong·61·
  Solicitation is a kind of agreement involving such questions as the validity of the contract,the attribution of fees and the culpa in contrahendo. Considering the lack of civil provisions concerned with this problem,the regulation should be adopted through civil judgment and thus the base of the society governed by rule of law can be strengthened. Solicitation can be classified into different categories including solicitation of official positions,school admission solicitation,solicitation of influencing judicial judgment or administrative procedures,solicitation of qualification,solicitation about assuming other's name,solicitation of taking advantage of media relations to influence the judicial or administrative procedures,solicitation of debt collection via violence,and solicitation of examination impostor. The solicitation should be defined as commission in civil law. The validity of solicitation which can violate the mandatory provisions or pubic order and fine custom should be determined according to the article 54 subparagraph 4 or 5 of the contract law and the article 153 of the General Provisions of the Civil Law of the People's Republic of China. Three models including return,not-return in case of illegal payment and seizure can be applied to the attribution of fees on the base of the validity of the contract and the evaluation of the particular characteristics of specific cases.
  Key Words:Solicitation; Regulation by Civil Law; Validity; Take over
  Zhang Hong,Ph. D.in Law,Professor of Law School of Zhongnan University of Economics and Law.
  The Alienation of Justifiable Defense in China and the Function of Criminal Law System LAO Dongyan·76·
  In the judicial practice of China,the constitutive requirements of justifiable defense have always been interpreted in the direction of denying its claim,which makes it nearly impossible to raise such a defense for the defendant successfully. There is an unbridgeable gap between the legislative provision of justifiable defense and its judicial application. The alienation of justifiable defense in the judicial practice derives not from the poor construction of its dogmatic theory,but mainly from a mistaken self-orientation of conflict resolution for the judicial adjudication in its function. Through the invalidity problem of the statutory provision of justifiable defense in China,we need to consider seriously a shift of the judicial adjudication in its basic function from conflict resolution to evaluating its lawfulness for a conduct. On this basis,the primary function of criminal law system should be redefined correspondingly. In a risk society of high indeterminacy,the primary function of criminal law system lies in making the normative expectation stable among the people. In view of this,it is especially necessary to rethink and reconstruct the dogmatic theory of criminal law on the whole,and to manage to finish the shift of its theoretical framework.
  Key Words:Justifiable Defense; Functionalism; Normative Expectation; Dogmatic System of Criminal Law; Confirmation of Norm's Validity
  Lao Dongyan,Ph. D.in Law,Professor of Tsinghua University Law School.
  The Internal Logic of the Chinese-Style Burden of Proof:An Analysis of the Guiding-Cases by the Chinese Supreme Court HU Xuejun·91·
  In Chinese current judicial practice,the general reason or common sense of “who claims,who proves the evidence” is still followed to distribute the “burden of proof” of the facts to be proved. It is especially popular to change the burden of proof when the lack of evidence leads to difficult judgment of facts. The consequence of this burden of proof is that the facts of the case are unfavorable to the party concerned. In the context of our country,the name of “non liquet” and its judgment method are different from the modern theory of burden of proof in continental law system. This Chinese-style burden of proof conflicts with the classical theory of burden of proof and the current

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