论旅游立法中非物质文化遗产保护的完善

随着旅游业的繁荣和世界各国对非物质文化遗产保护的重视,在旅游过程中如何促进作为重要旅游资源的非物质文化遗产的保护,实现旅游与非物质文化遗产保护的双赢与互动显得尤为重要。非物质文化遗产与旅游契合于文化性。在依法治国的背景下,以旅游法为载体,通过旅游法的体系化实现对非物质文化遗产的保护是可行而科学的。我国应通过制定旅游基本法、行政法规与部门规章、省级地方旅游法规等法律,实现对非物质文化遗产从宏观到微观多方位的保护。     

秦汉时期的和奸罪——以简牍资料为中心的考察

秦汉时期,法律对和奸的论罪区分为亲属与非亲属两类,处罚轻重差别较大。和奸罪的审理程序包括：以“诣告”的形式对犯奸者提起诉讼;受理机关以县廷为主,疑难案例依次向郡国守相及廷尉府疑谳,王侯的和奸罪则交由中央受理;和奸罪的认定必须满足“必案之校上”的条件。对和奸罪的有关规定和处理从维护家族联姻关系、维护家长权力及保证家族“财不出户”等3个方面维护家族秩序和社会等级名份。     

Slaves, servants and wage earners: Free and unfree labour, from Grotius to Blackstone

This article provides an intellectual history of the status of wage earners as conceptualized within the natural law paradigm by European writers both on the Continent and in Britain. Historians of political discourse have mostly investigated the consequences of such a status for the political rights of labourers. This article shows that the crucial moves were made by different authors analysing the relation of servant to master either in the domestic sphere or in private contracts. The article further contends that that resulting deeply ambiguous analyses implied a far from complete personal freedom for wage earners. This had a decisive impact on different visions of commercial society in early modern times, and left a significant legacy for moderns.     

论改革开放以来法价值取向的历史流变与发展趋势

法价值是法学的基本命题,也是社会关注的焦点。中国自改革开放以来法价值取向随着时代的变化而有所侧重。我们可以认为：自党的十一届三中全会以来,中国法价值取向经历了从秩序到效率、法治与人权的历史流变,但其发展趋势必然朝着公平正义的方向发展。     

汉代道德与法律的关系研究——以汉代“劫质”案例考察为中心

道德与法律作为调节社会关系、维护社会秩序、规范人们思想行为的重要手段倍受汉代统治阶级重视。在汉代道德与法律两者之间并非是一种简单的并存关系,其中在汉代道德观念中体现着深刻的法律思想,而在汉代法律思想和司法实践中同样体现着厚重的道德观念,而汉代道德与法律的关系也处在不断变化与发展的汉代社会之中。而本文通过对汉代“劫质”案的考察就集中体现了笔者对汉代道德与法律关系问题的一种诠释。     

Contested Self-determination: Indonesia and East Timor's Battle over Borders,International Law and Ethnic Identity

ABSTRACT

East Timor's twin experiences of colonialism established its collective identity and internally recognised rights of self-determination. Political boundaries were created through negotiated treaties between Portugal and the Netherlands, and Portuguese colonialism provided East Timor with its status as a non-self-governing territory under international law in 1960. Indonesian colonialism resulted in a discursive battle over identity as both the Indonesian government and East Timor's independence movement employed ethnocultural narratives and myths to persuade the international community of the legitimacy of their respective political claims. During debates over East Timor's political status that occurred between 1975 and 1999, Indonesia emphasised the ethnic ‘kinship’ between Indonesians and East Timorese. In contrast, East Timor's representatives emphasised cultural links with Portugal and Melanesia to prove its distinctiveness from Indonesia.     

A conception of the self in the later middle ages

This paper presents a conception of the nature of the individual self in the late middle ages, involving the stance from which the ‘I’ beholds the world (in this case, one newly more autonomous from the corporate/ecclesiastical world view), and the manner in which the self (‘I’) apprehends itself (in this case, self-apprehension involves sensing that one's essentially public face is ‘being seen’ as standing out from the group by others, as well as knowing oneself via ‘reflections’ from others). A theme of ‘seeing’ the world from a more autonomous standpoint while ‘being seen’ as a more separated psychic entity is discerned, which is in keeping with an emphasis on vision in this age, discerned by other researchers. The paper bases its case partly on examination of the arguments and evidence cited by other researchers who have studied the self or individuality in the later middle ages.     

Carl Schmitt on land and sea

Carl Schmitt (1888-1985), one of the leading conservative legal thinkers of the Weimar Republic and Nazi Germany, is best known today for his critique of liberalism. Between the late 1930s and mid-1950s, Schmitt wrote numerous articles and two books addressing the mythical and geopolitical significance of land and sea. In recent years, these texts have begun to attract attention from historians as well as theorists. This article reconstructs the origins of Schmitt's theories about land and sea, and shows how they developed in the context of his efforts to delegitimize the British Empire and justify the persecution of Jews. It also explains how Schmitt selectively misread the history of maritime law in order to critique the ‘freedom of the seas.’ Finally, it reveals that the meaning Schmitt ascribed to ‘the opposition of the elements of land and sea’ changed dramatically to suit his political needs. For all their evocative qualities and insights, Schmitt's texts on land and sea do not constitute a coherent theory, but rather a shifting field of polemical positions in search of theoretical support.     

An ineluctable minimum of natural law: François Gény, Oliver Wendell Holmes, and the limits of legal skepticism

During the first few decades of the twentieth century, legal theory on both sides of the Atlantic was characterized by a tremendous amount of skepticism toward the private law concepts of property and contract. In the United States and France, Oliver Wendell Holmes and François Gény led the charge with withering critiques of the abuse of deduction, exposing their forebears’ supposedly gapless system of private law rules for what it was, a house of cards built on the ideological foundations of laissez faire capitalism. The goal was to make the United States Constitution and the French civil code more responsive to the realities of industrialization. Unlike the other participants in this transatlantic critique, François Gény simultaneously insisted on the immutability of justice and social utility. His “ineluctable minimum of natural law” would guide judges and jurists toward the proper social ends, replacing deduction with teleology. The problem was that nearly all of Gény's contemporaries were perplexed by his conception of natural law, which lacked the substance of the natural rights tradition of the eighteenth and nineteenth centuries and the historicist impulse of the early twentieth. No one was more perplexed than Oliver Wendell Holmes, whose more thoroughgoing skepticism led him to see judicial restraint as the only solution to the abuse of deduction. The ultimate framework for this debate was World War I, in which both Holmes and Gény thought they had found vindication for their views. Events on the battlefield reaffirmed Gény's commitment to justice just as they reignited Holmes’ existential embrace of the unknown. In a sense, the limits of their skepticism would be forged in the trenches of the Great War.     

论数字版权的刑法保护

数字版权的刑法保护是近几年来兴起的一项交叉且边缘性的研究领域。随着数字产业在我国的发展,大量的版权违法犯罪也相伴而生,然而中国现阶段侵犯知识产权犯罪立法却存在着诸多弊端。笔者建议,通过立法,扩大刑法保护对象,修改犯罪行为方式,进一步加大著作权的刑法保护力度,完善数字版权的刑法保护体系,从而达到更好地保护网络知识产权的目的。