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Diigo newsmarks 05/20/2007

五月 21, 2007

2007怎样看待中国法学的“法条主义”(刘星)-北大法律信息网 – 法学文献 –  Annotated

    中国的“法条主义”,在学者们看来,基本上是中国特定社会政治还有法律制度建设等条件下产生的,有其特定的历史意义,当然,还有必要的当下意义。在法律和政治、法学话语与其他话语(比如政治话语)的对比中,而且在中国法律职业迫切需要发展巩固的背景中,“法条主义”具有了表达和推进的必要性及正当性。然而,正是这些学者,尤其是从事法学基本理论研究的学者,在参照其他法学理论比如晚近出现的与“法条主义”大有区别的诸如注重从其他学科切入法学研究的理论操作中,又在指示、担忧甚至批评“法条主义”。从法学纵向谱系的学术历史判断看,这种指示、担忧甚至批判隐含着这样一个意思:“法条主义”,大致来说具有“历史的合法性”,其基本上是暂时的、特定时期的、担负一定历史任务的;一旦时过境迁,或者之后,其便可能、应当或者有必要被其他法学运作模式(比如人文哲学化、社会科学化的研究)所替代。
    WriteZhu(‘1’);

      20040930武汉首例政府信息公开案审结 女工获信息查阅权  Annotated

        向武汉市劳动局申请查看单位改制报审材料遭拒后,武汉下岗女职工刘玲以“不正当履行政府信息公开义务”为由,申请行政复议。武汉市政府法制办近日作出复议决定:市劳动局不受理申请的行为违规。

        据悉,这是武汉市自今年7月1日实行政府信息公开制度后,首起审结的“行政复议申请案件”。

        刘玲称,8月4日她到武汉市劳动局递交申请书,要求查阅武汉市某企业改制报审材料,被该局拒绝。她认为,武汉市劳动局的行为属“行政不作为”,当即向市政府法制办申请行政复议,要求该局立即履行政府信息公开义务。

        在复议审理中,经法制办工作人员多次督促,武汉市劳动局于8月20日受理了刘玲的申请。法制办审查认为,武汉市劳动局8月4日不予受理的行为,违反了《武汉市政府信息公开暂行规定》。由于该局于20日已受理,所以再责令其履行法定职责已无实际意义。(黄志宏
        汪国强 胡新桥)

          20070502How Wide Is the Door to Chinese Governments’ Information Disclosure?- CaiJing magazine《财经》杂志网站  Annotated

            Li told Caijing that local officials grappled with the balance between
            openness and confidentiality while drafting the local regulation. She said rules
            about public records and secrecy are contradictory but also connected, and that
            a good, information disclosure regulation must specify which data are viewed
            sensitive. 


            Now, with the national public-access law in place, Li said the next step
            should be amending Law on Keeping Confidentiality of State Secrets. 


            “The effort to revise the secrecy law should be quickened,” she said. “A
            better result can be achieved only if these two laws work together.” 

            • conflict of laws, conflic between national administrative regulation and local governmental rules – post by foistudy

            But the experience of Chen Shuwei, a 34-year-old resident of
            Shenzhen in South China’s Guangdong Province, sheds light on the resistance to
            make public records at local government offices. 


            Although Guangdong has relevant regulations, Chen said his
            repeated requests for information in 2006 have been ignored. Most of his more
            than 100 administrative complaints have had no “satisfactory results”. 


            “Many of the prescriptions in the national regulation can be found
            in the local ones,” he said. “But it’s not easy to implement them. 


            “Now the national law has been announced,” Chen said. “I hope it will be put
            into practice, and will not become another piece of paper.”

            • case study-request – post by foistudy

            Indeed, a check-and-balance system has been built into the new regulation.
            Governments will be required to issue an annual report with information about
            the number and residency of people seeking information, and how their requests
            are processed. 


            This, according to Qin, can help guide prospective applicants seeking
            government information, help supervise government work and, more importantly,
            reduce administrative costs by avoiding repetitive or invalid
            applications. 

              Mo Yuchuan, law professor with the Renmin University of China who
              participated in the legislation, told Caijing that balancing openness and
              confidentiality were contentious issues during the drafting process. 


              Mo said most of the legal experts participating in drafting the law believe
              that openness should be a basic principle.  


              Nevertheless, the new regulation requires governments to examine the
              information according to the Law on Keeping Confidentiality of State Secrets
              before making the information public.   


              According to Mo, in fact this was not included in the initial draft of the
              regulation in May 2006. 


              He believed that the idea that confidentiality is more important than
              publicity remains in place to some extent.   


              “It is such a pity,” Mos said.  

              Qin said the national regulation mainly stems from the lessons learned during
              the Severe Acute Respiratory Syndrome (SARS) outbreak. The 2003 SARS outbreak
              made authorities recognize the importance of releasing official information in a
              timely manner.  


              Since then, a number of internationally embarrassing events — coal mine
              disasters in 2004, the bird flu crisis in 2004 and 2005, and the 2005 pollution
              of the Songhua River in the northeast province Heilongjiang — added a sense of
              urgency to the calls for opening Chinese government records to public
              scrutiny. 

              • legislative background – post by foistudy

              Another reason for the new rule is that it should help stamp out official
              corruption and abuse of power. 


              “The new rules will help to contain and prevent corruption institutionally
              and at its roots,” said Zhang Qiong, deputy director of the Legislative Affairs
              Office of the State Council, at a press conference in Beijing. 

              • dimension_fight_corruption – post by foistudy

              20070509The environment needs freedom of information | 信息公开是环境管理的有效手段  Annotated

                These regulations – the first departmental rules relating to the release of
                state information – are a milestone on the path to guaranteeing the public’s
                right to access environmental information. The regulations make wider public
                participation in conservation possible, and provide an incentive
                for environmental departments to act according to the law.

                  The experiences of a number of developed countries that
                  have faced heavy pollution show that
                  freedom of information can be an
                  effective pollution-control measure. In 1986, when the US government first required
                  companies to release annual reports of their use of hazardous
                  chemicals
                  , media and environmental organisations could expose big
                  polluters for the first time. To combat the effects of
                  negative publicity, corporations began to introduce pollution-control measures.
                  Since then, the harmful emissions of companies in the US has fallen steadily.
                  This particular success story influenced the 2001 European Union decision that
                  required 50,000 companies to disclose information relating to the use of
                  hazardous materials.


                  Freedom of information can help China urge companies to take responsibility
                  for the environment. Using statistics provided by government departments, we
                  were able to produce a map that shows 5,100 companies breaking environmental
                  regulations. On March 22 this year, 21 environmental organisations joined a call
                  for consumers to make “green choices”, urging them to be aware how some companies’
                  manufacturing processes can result in excessive pollution, and that
                  such products should only be bought with caution. Public pressure has
                  already resulted in
                  more than 20 multinational and domestic corporations
                  making contact with us to offer explanations for incidents where they have
                  broken regulations. Six of these companies promised to accept third-party
                  inspections within the time limits set out by the regulations.
                  Their hope is that they can show the public they have changed, and work to meet
                  emissions standards.

                    20070423Chilean Court to Decide First Constitutional Access to Information Case  Annotated


                      The Justice Initiative’s brief describes the main principles that govern
                      access to sensitive commercial information under international and comparative
                      law and practice. It argues that third party (private) information held by the
                      state should be disclosed, absent a clear showing of harm to legitimate
                      commercial interests. Such harm should be weighed against the public interest in
                      transparency: for example, when public health or the financial integrity of
                      government operations is at stake, a prevailing public interest should require
                      disclosure of certain private information, even if sensitive.


                      The constitutional case arose out of a series of requests filed by a Chilean
                      company with Chile’s Customs Department for information regarding certain
                      business practices of its competitors which could reveal alleged irregularities.
                      (The underlying case is known as Casas Cordero and Others v. National
                      Customs Service
                      ). The requesting company, represented by Colombara Olmedo
                      Abogados, argued that the Chilean third party exemption is unconstitutional by
                      virtue of the excessive discretion it grants government agencies and the
                      overbroad nature of the commercial interests it protects. Only the
                      Constitutional Tribunal has authority to find the statutory provision
                      unconstitutional.


                      The current case gives the Chilean Tribunal an opportunity to elaborate on
                      some of the key principles enunciated in the Inter-American Court of Human
                      Right’s landmark judgment in Claude Reyes v. Chile, which was the first
                      international ruling to recognize the right of access as a basic human right.
                      Partly in response to the Claude judgment, the government of President
                      Michelle Bachelet has introduced a new legislative proposal aimed at overhauling
                      the Chilean access regime. The Constitutional Tribunal’s decision could help
                      clarify the standards applicable to third party confidentiality as well as to
                      restrictions on access more generally.


                      A hearing on the case has been set for April 26. The full text of the brief
                      filed by the Justice Initiative—available in English or Spanish—can be
                      downloaded by clicking on the icon at right.


                      Ropes & Gray LLP, a US-based law firm, provided pro bono legal
                      assistance to the Justice Initiative in the preparation of the brief.


                      Contact: David Berry: +1 212 548 0385 (New York).

                      res_desc

                      The URL for this page is: http://www.justiceinitiative.org/db/resource2?res_id=103745


                        20061115Council of Europe urged to recognise broad right of access to information – Access Info  Annotated

                          Three leading freedom of information organizations are calling on the Council of
                          Europe to broaden its future treaty on access to official documents to a wider
                          treaty on access to information. Three leading freedom of information
                          organisations are calling on the Council of Europe to ensure that its future
                          treaty in the area of freedom of information provides a robust safeguard of the
                          right to access information.

                            20061017Justice Initiative Intervenes in Armenian FOI Suit  Annotated


                              The brief argues that the existence of a right to information is well
                              established in European and international law, and urges the Court to find that
                              Article 10 of the European Convention on Human Rights establishes a right of
                              access to information held by public authorities. The brief also elaborates on
                              the close links between access to information, free expression and political
                              participation.

                              res_desc

                              The URL for this page is: http://www.justiceinitiative.org/db/resource2?res_id=103453


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