The Harmonization of Property Law

The property law is the most difficult part in the harmonization of private law because of its characteristics. At present, the efforts of unification and harmonization made in this field focus on two important aspects: transfer of ownership of movables and security in movables. The first involves the harmonization of two kinds of modes about the transfer of movables: the consensual systems and the systems based on tradition; the latter involves the confirmation of different kinds of security on movables and the harmonization of concrete regulations in different countries. On the one hand, the achievements which have been made in this field adopt “soft law” as the legislative technology, which is easier to be accepted by the national laws comparing with the international convention; on the other hand, they adopt flexible and practical attitudes on legislative policies. Some efforts have been made to harmonize the property law, for there is a need of harmonization in this field as well. But comparing to contract and commercial law, it is more difficult to establish an uniform regulation in this field. Maybe the time to harmonize the property law is not ripe.     

The law of migrants

While it is acknowledged that international migration law is attracting increased interest, this law merely describes the conditions of admission, sojourn, employment, and exit of migrants, thus amounting in many respects to a restatement of the law of aliens considered in a different perspective. This article concentrates on the humanitarian aspects of migration law, in an attempt to determine the possibility of joint promotion and dissemination of human rights, international humanitarian law, refugee law, law of migrants, and relief law. Refugees are protected by a series of international legal instruments, both universal and regional, which are complemented, if need be, by resolutions of the competent bodies. 2 reasons why the law of migrants deserves to be highlighted and developed are: 1) we have seen that the characteristic aspects of migration are either ignored or only partially taken into account by existing law, and 2) it is important that individuals should be protected in every circumstance. There exists a relatively narrow basis for joint action; since this must be built on points of convergence, a preliminary step consists of identifying this common denominator. The forms which joint action may take can be less structured and reflected in the individual practice of each organization The sine qua non of successful joint action is an awareness of the enterprise's ultimate goal: to assure in every circumstance better protection for human beings, whatever their legal status may be.     

The Need for Domestic Violence Laws With Adequate Legal and Social Support Services

Long overlooked by the law, the area of family violence is one of the most strident examples of the law's potential impotency when unsupported by strong enforcement procedures and serious re-education programs. The law, by itself, is simply a grouping of words and phrases, innocuous in and of themselves. A law must have the backing of the community for which it is passed. If it means a major change in the lifestyle of the people, concurrent services must be made available to facilitate that change. A domestic violence law without necessary support services involving medical, legal, psychological, economic, and child care needs may as well not exist at all. Even though most states have passed some recent legislation involving family violence, much more needs to be done in order to adequately implement those laws. The major thrust of this article seeks the development of comprehensive domestic violence programs which take into consideration all aspects of the problem.     

Disability at work: Understanding the impact of the ADA on the workplace

It has been more than 25 years since the Americans with Disabilities Act (ADA) was passed by Congress. Many supporters of the law hoped that it would improve the employment outcomes for people with a disability, yet many scholars argue that it has fallen short in achieving this goal. Such judgments of success or failure are typically offered with little regard for the complex relationship between law and social change. In this paper, I apply a socio‐legal perspective to scholarly research regarding the impact of the ADA on employment. Socio‐legal studies offer a variety of concepts and perspectives, which better capture the complexity of law's impact on social life, and the various paths through which it might have an impact on social change. From this perspective, studies tend to assume that ADA law will either impact social change directly or indirectly. I discuss the findings of both of these approaches and conclude with some directions for future research.     

青少年法律服从意识的测量

特定的成长阶段与特殊的心理特点决定了青少年有独特的法律意识。研究发现，多数青少年或多或少曾出现过违法行为；青少年服从法律既有工具性的现实利益考虑，也有内规范价值取向的原因；相比较法律的惩罚性后果，同辈评价对青少年法律行为的影响更为显著；青少年的法律服从意识多源于个人的道德判断而非对法律体系的认同；青少年的法律服从更多源于对法律机构的崇拜情结，而不是责任意识。因此，为增强青少年法制教育的实效性。促进其守法行为，必须从他们法律心理的特点入手，重视法律行为的强化，突出价值观的塑造，将同辈压力当作有效资源。     

中西法律思想中法律与道德关系比较研究——兼论中国程序正义的理性选择

法律与道德的关系是法学问题研究不可回避的一个重要方面。通过对比探讨中国与西方在法律与道德关系研究上所持的不同的理论观点,提出应从制度层面上将人类的道德理想与原则外化为法律规范。同时,强调程序的重要性和公开性,从而为实现中国司法实践中真正意义上的程序正义提供良好的法制现代化环境。     

Changes that cause changes

Beyond determining whether procedures can be manipulated, the real goal for any analysis of “strategic behavior” is to identify all settings where and when this can be done, who can do it, and what they should do. By applying the geometric approach of Saari [7, 8] to the Kemeny's Rule (KR), we demonstrate how surprisingly simple this analysis can be, we identify all three candidate KR strategic behavior, and we show how an almost identical analysis answers most other multiple profile concerns (e.g., the abstention paradox and when voters just make errors). We also introduce new measures, which can be used with any procedure, to compare strategic and other behavior involving “changes.” These measures help to identify settings where it may be more important to worry about honest mistakes than strategic voting. Received: 16 April 1999/Accepted: 29 September 1999     

Protecting and Benchmarking Migrants’ Rights: An Analysis of the Global Compact for Safe,Orderly and Regular Migration

The Global Compact for Safe, Orderly, and Regular Migration (GCM) was to be “guided by human rights law and standards” in recognition of the rights of international migrants, who are currently protected by an overlapping patchwork of treaties and international law. The GCM contains many laudable commitments that, if implemented, will ensure that states more consistently respect, protect, and fulfil the rights of all migrants and also that states incorporate data on migration into a more cohesive governance regime that does more to promote cooperation on the issue of international migration. However, many concerns remain. Using a legal analysis and cross‐national policy data, we find that the GCM neither fully articulates existing law nor makes use of international consensus to expand the rights of migrants. In its first section, this article provides a concise analysis of the GCM's compliance with a set of core principles of existing international human rights law regarding migrants. In the second section, we apply a novel instrument to create an objective, cross‐national accounting of the laws protecting migrants’ rights in various national legal frameworks. Focusing on a sample of five diverse destination and sending countries, the results suggest we are close to an international consensus on the protection of a core set of migrants’ rights. This analysis should help prioritize the work necessary to implement the GCM.     

Accountability of nonprofit organizations and those who control them: The legal framework

Legal accountability, understood as either an obligation to meet prescribed standards of behavior or an obligation to disclose information about one's actions even in the absence of a prescribed standard of behavior, is imposed on nonprofit organizations and those who manage them by state law and by fedral tax-exemption law. A perception that charities are exempt from both the electoral control that holds government accountable and the market forces that discipline business encourages a tendency to look to law to ensure accountability in the charitable sector, to perceive that shortcomings in the law are responsible for shortcomings in the sector, and to conclude that repair or reconstruction of the legal framework is the appropriate corrective. However, although the legal framework is far from perfect, sweeping change will not likely solve the problems and may well undermine the most positive characteristics of the sector. Some aspects of accountability cannot and should not be the subject of legal rules. Efforts to make charities accountable by redrawing legal standards of behavior in accord with popularly recognized standards of propriety, or even “excellence,” are likely to be counterproductive. Instead, adjustment of the legal framework in the hope of improving accountability should be incremental and should be evaluated in the context of organizing principles and core values that reflect our best understanding of the unique strengths of the sector and the functions it serves in our society.     

14 to 18 Year Olds as “Children” by Law?

SUMMARY

The European Union Council Framework Decision 2004/68/JI of 22.12.2003 “on combating the sexual exploitation of children and child pornography” defines as “child” any person below the age of 18. Under Austrian law there are no children between the ages of 7 and 18. The author criticizes that, up to now, the development of age limits in legal history has taken a clearly different way in the various fields of law of the Austrian legal order. The Austrian legislator's tendency, which has evolved in the course of legal history, to grant rights and permits to young people between 14 and 18 years earlier but, at the same time, to impose on them more and more obligations arising from private and public law, to give them the opportunity to grow into adult life with full powers and responsibilities step by step, totally contradicts the Council Framework Decision.

Today, adolescents live in a cultural environment characterized by globalized pop culture and world-wide communication technology. Access to “extreme ideas” is offered everywhere and anytime. It is highly difficult to grow up without any interference and develop one's own personality and sexual orientation according to one's inherent nature under such circumstances of a world society, and this process may be seriously disturbed or even prevented by inappropriate prohibitions imposed by criminal law. However, the aim of any education is to accompany adolescents while they are growing up so that they become self-assured, self-responsible citizens with an understanding of how to work for peace and common welfare who know “how to walk upright” and do so, and who are informed about their civil rights and are able to exercise the same decidedly. We do not need only consumers but also citizens of the world! Repatriarchalization and criminalization are the wrong answers to the urgent questions of world society. The question how to combat child pornography commerce is certainly one of the most important concerns because it is abused children and adolescents for whom it is most difficult to develop their personalities and become citizens of the world.

Legally useful answers can only be expected by those who address precise questions to the law. In this respect Europe failed. Given the fundamental right to respect for one's private life and the prohibition of discrimination on the grounds of age the creation of new offencesinvolving a definition of the child as a person up to the age of 18, which contradicts well established law and is unrealistic-shoots past the mark in the author's opinion. Such provisions miss the target group of potential offenders, and infantilize and criminalize society instead. With the proposed legal means it will not be possible to attain the actual aims, i.e., to finally destroy the market for child pornography, and to punish its organizers, “wire-pullers” and users as offenders, and to eliminate them once and for all. The legal status of adolescents is weakened or at least serious curtailment of their claims arising from the fact that they have fundamental rights depending on personality and age; and the Council Framework Decision contradicts the equality guarantees in primary law of the European Union that they must not be discriminated on the grounds of age.     

Union survival strategies for the twenty-first century

Clearly, the necessary changes in the law and culture will not come easily or quickly. But, transcending all forms of these labor market segments is a set of concerns that arguably should spur a search for common ground between labor and management. The proliferation of automated technologies, together with the continuing impact of foreign competition with cheap labor markets, has led some to predict that, over the next quarter century, we will witness the elimination of the blue-collar, mass assembly-line worker from the production process.¹⁴ Moreover, the theory that those losing jobs in the manufacturing sector will be generally absorbed into the service sector is losing currency as it is becoming clear that service jobs are, themselves, not invulnerable either to offshore outsourcing (e.g., telephone operators, data processors) or to automated technology (e.g., bank tellers, office secretaries). Nor is it realistic to expect the new “knowledge sector” to absorb more than a fraction of the unemployed and underemployed casualties of this transformation. As a result, the widening gap between the haves and have nots will only continue to grow. As the trend accelerates, certain possibilities for a labor-management accommodation emerge. For one thing, although corporations may be enjoying short-term gains from present wage stagnation, downsizing, outsourcing, and casting off of permanent employees, the longer term effects include a work force with considerably diminished consumer purchasing power. In some industries, corporations are already acknowledging the adverse effects of this trend. Furthermore, as employers are contributing into pension funds on behalf of fewer and fewer “employees,” the forced savings pool that has for many years constituted a primary financing source of capital investments in our economy, will gradually be depleted.¹⁵ At the same time as employers are coming face to face with the disadvantages of the union-free environment they have so long sought, employers are also rediscovering the contributions to productivity, quality, and efficiency that can be gained from a truly empowered work force with an independent voice in the workplace. All of this should lead an enlightened management to place less currency on resisting unionization and other legitimate forms of independent employee representation, and to join labor in advocating strong labor standards and effective labor law for all four of the labor market segments that exist today and will exist tomorrow. The authors wish to convey their deep appreciation for the invaluable contributions to this paper made by David Silberman of Bredhoff & Kaiser and Craig Becker, Associate General Counsel, Service Employees International Union. Another version of this paper was published in Labor Lawyer.     

The Rehabilitation of the Child Sexual Abuse Accommodation Syndrome in Trial Courts in Kentucky

This article attempts to reconcile the position of Kentucky law in regard to the CSAAS with that of Dr. Roland Summit's views as outlined in his previous articles. Our goal is to show that the CSAAS may still be admissible evidence, if properly presented in Kentucky Trial Courts. In doing this, I have given an outline of Kentucky's brief legal history concerning this issue.     

Sexual Consent

SUMMARY

What role can the criminal law play in the battle against child sexual abuse? Should sexual relations of, and with, persons under a certain age be criminalized regardless of the circumstances, even if they are consensual (“age of consent”, “minimum age”)? Where should such a minimum age-limit be fixed? Should there be a special, higher age-limit for particular conditions (e.g., “seduction”, “corruption”)? Should sexual contacts with minors within a relationship of authority be criminalized generally or just if authority is abused? Should criminal proceedings be instituted ex officio or upon complaint only? Should authorities be provided with a power of discretion or should they be obliged to prosecute and sentence in each case? In answering these important questions, it is highly beneficial to have a look across the borders to the solutions other countries have reached in this area.

This analysis will provide an overview on the criminal law governing the sexual behavior of, and with, children and adolescents in all European jurisdictions and in selected jurisdictions outside of Europe. It will show which categories of offenses exist and from which age onward young people can effectively consent to various kinds of sexual behavior and relations in the different countries. It turns out that all states in Europe and all of the studied jurisdictions overseas do have minimum age limits for sexual relations, do punish sexual relations with persons under a certain age. Nowhere is this age set lower than 12 years. In Europe in one-half of the jurisdictions, consensual sexual relations with 14-year-old adolescents are legal; in two-thirds with 15-year-olds; in a majority, this is also the case when the older partner has started the initiative (and also when the initiative contains an offer of remuneration). In nearly all jurisdictions, such relations are legal from the age of 16 onwards. Nearly all European jurisdictions set the same age limit in the criminal law for depicting sexual activity as for the sexual activity itself. Most states apply a higher age limit for contacts in relationships of authority. If the authority is not misused the age limit in most jurisdictions is set between 14 and 16; if it is misused between 16 and 18. Most states make no difference between heterosexual and homosexual relations.     

Professional status at midcareer: The influence of social and academic origins on lawyers' achievement

Research on intraoccupational status attainment within the legal profession is extensive, but it has not generated consistent findings on the effects of social backgrounds and academic performance in college and law school on types of legal employment. This research has been either carried out on lawyers employed in geographically circumscribed communities or has been limited to particular types of lawyers. This study investigates the effects of social backgrounds and academic achievement on types of legal practice for a national sample of lawyers a quarter of a century after their graduation from college. We find that occupational inheritance and religion predict academic achievement in college and law school, and that these variables in combination influence the allocation of lawyers to solo and firm practice. An important contextual feature structuring legal careers is the population size of the communities in which these lawyers practice.An earlier version of this article was presented at the annual meeting of the Eastern Sociological Society, Providence, Rhode Island, April 1991. The authors are listed alphabetically.     

Labor policy in the EU: The new emphasis on education and training under the treaty of Amsterdam

Labor market policy in the EU is seemingly a rather different animal today than heretofore because of the belated recognition that healthy employment development is the precondition for achieving fair and decent social and working standards. The pursuit of often ambitious mandatory labor standards appears to have been downplayed, and the notion of coordination to have superceded harmonization. The new means of coordination (via national employment plans) is benchmarking, identifying best-practice measures in employment policy, and offering encouragement to member states to progressively develop their own policies in this light. The presumed goal is to secure meaningful common action in the context of institutional diversity in national labor markets —the perennial problem in EU social policy formation. I review the new employment strategy with special reference to its education and training components ajid in the process question whether recent developments presage a sea change in the evolution of Community labor policy. ” If I were to set the process of uniting Europe in motion once more, I would start with education.” (Jean Monnet) This is a revised version of a paper presented at the First Biennial Conference of the Hong Kong Economic Association, Hong Kong, December 16, 2000.     

Rejected asylum seekers: the problem of return

During this decade the return of rejected asylum seekers has become an issue of increasing concern to major asylum states in the industrialized world. This article exposes the various political and legal approaches taken by returning states as well as the constraints emerging from human rights law.
As a rigid control paradigm and related enforcement practices entail a considerable risk of human rights violations, it seems reasonable to focus on measures enhancing the voluntary compliance of all actors involved with norms governing return.
This means negotiating a broad political consensus between returning states and countries of origin, specifying the legal framework with a view to securing the human rights of the rejectee, arranging for impartial monitoring of return practices and rendering voluntary forms of return more attractive.     

The stranger as seer or voyeur: A dilemma of the peep-show theory of knowledge

The belief that ‘the stranger’ (outsider, disinterested third party) sees things more clearly, i.e. is more “objective,” is seen to be a corner-stone of folk wisdom; underlying Western judicial thought and concepts of objectivity in the social sciences. The author raises the dilemma that both positivistic and humanistic sociologists accept this belief—suggesting 1) that it is a residue of positivism and a quest for certain knowledge, or 2) the possibility that ‘the stranger’ does gain deeper insight into group life than members. The paper examines the concept of the stranger, considering the aura of charisma that seems to have been attached to it in ordinary discourse as well as within the sociological dialogue. Two types of strangers are described: outsiders and enemies within. Finally, an attempt is made to examine the testimony of prominant strangers as they describe their marginal status and speculate on the ways that status has made them unusually perceptive observers of social phenomena.     

THE CONSTITUTIONAL CONTEXT: UNIVERSITIES, NEW INFORMATION TECHNOLOGIES AND THE US SUPREME COURT

The legal context in which universities operate is among the forces shaping the ways in which new information technologies are taken up and used. In the USA, constitutional law - that law which addresses how society is to be structured and what types of processes should be permitted within it - is particularly important in determining what institutions can do. The ultimate arbiter of constitutional law is the US Supreme Court, the decisions of which establish basic principles for the US legal system. This article reviews the entire body of US Supreme Court decisions that deal with higher education and mines them for their implications for the use of new information technologies by universities.     

Constraining campaigning: the legal treatment of non-profit policy advocacy across 24 countries

This paper presents a comparative analysis of the findings of a 24 country study of the legal restrictions on the freedom of non-profit and charitable organisations to engage in public policy campaigning. The countries are divided into those which organise the legal status of non-profit bodies around the concept of a charity, and those that do not. The central finding is that all and only charity law countries have constraints on campaigning which are specific to non-profit bodies. The paper reviews a number of possible explanations for this, at the level of jurisprudential rationales which might show that it is necessary or at least rational for only the charity law countries to have developed such restrictions. To varying degrees, all are found wanting. It is suggested that no explanation based on an ‘inner logic of the law’ will serve to explain the phenomenon, and that future research might concentrate on comparative political history rather than on jurisprudence. Planning Officer, Social Services Department, Royal County of Berkshire. formerfy Acting Head of Policy Analysis and Research, National Council for Voluntary Organisations, London, United Kingdom. (Most of the research for this paper was conducted when this author was Head of Policy Analysis and Research at the National Council for Voluntary Organisations, London, UK.) Full information about the research summarised here is given in 6 and Randon, 1994. This research was conducted with the support of the National Council for Voluntary Organisations. We are grateful to all our respondents for their time in answering a difficult questionnaire, provision of documentation and alternative contacts, patience and advice. They are too numerous to list here: a full list is available from the authors. Some, to whom we are particularly grateful, must remain anonymous because they work in countries or in professional positions where campaigning is a sensitive subject. The Nuffield Foundation made available a small grant to cover our translation costs; PROFTRANS undertook most of the translations for us. Martin Knapp, Marilyn Taylor and Nigel Tarling helped to identify potential respondents. Tymen van der Ploeg, Jacques Defourny and Lindsay Driscoll assisted in piloting the questionnaire. Lindsay Driscoll and Bridget Phelps read and commented on early drafts of part of the paper. The editors and anonymous referees for this journal provided important additional information and advice. The usual disclaimer of responsibility for our errors applies to all of them.     

论法学本科专业《商法学》课程考试改革——以法商结合人才培养为视角

21世纪是法商结合的时代，商业行为离不开法律的应用和规范，法律也寸步不离地在影响着商业行为。基于现代社会对人才的这种需求，高等院校所培养的法律人才必须是法商结合的人才。为实现“法律为市场经济服务，法律人为市场经济建设服务”的法学专业人才培养目标．以社会需求为导向，法学本科专业《商法学》课程必然要进行教学改革，关注学生综合性素质的提高，强化过程性质量评价，充分发挥考试的多方面功能，以考试改革引领教学改革，将考试改革的研究贯穿于整个教学改革研究中，探索考试改革对于教学改革的推动和促进作用。