In line with the national criminal legislation process,the management of misdemeanor litigation source has important value significance and theoretical basis in judicial practice.As far as the procuratorial organs are concerned,the exploration of the management of misdemeanor litigation source is gradually moving towards a higher and deeper level.In judicial practice,on the basis of legality and reasonableness,a series of mechanisms in-novatively explored by the procuratorial organs ensure the quality and effectiveness of misdemeanor management.However,as far as the latest requirements of"Chinese-style modernization"are concerned,it is still necessary to seek support from theory and explore experience from practice to make the modernization of the management of misdemeanor litigation source the broadest judicial consensus,thereby improving the modernization level of prose-cutorial work.
As a development and innovation of the"Fengqiao Experience"in the new era,the management of lit-igation source can effectively control the overall increase in litigation cases,comprehensively improve the people's courts'comprehensive judicial management capabilities of non-litigation dispute resolution and diversified dis-pute resolution,and has become an important measure for the people's courts to prevent and resolve conflicts and disputes in the context of the reform of diversified dispute resolution mechanisms.The pre-litigation settlement of administrative disputes is an effective way to manage the source of litigation in administrative cases and a useful exploration to substantively resolve administrative disputes.The pre-litigation settlement system for administrative disputes is a concrete manifestation of the all-round,multi-level social governance system under the leadership of the Party committee in judicial work,and can effectively prevent and reduce administrative dispute cases from the source.
As an important auxiliary force in maintaining social security in modern society,police auxiliary per-sonnel play a role that cannot be ignored in assisting law enforcement and are an important part of the public se-curity organs.In practice,due to the"auxiliary"functional positioning of police auxiliary personnel,they lack the status of law enforcement subjects and lack due legal protection when performing their duties in accordance with the law,which seriously hinders the effectiveness of the police auxiliary personnel system.Under the actual situa-tion in China,it is unrealistic to completely deny the law enforcement power of police auxiliary personnel.In the-ory,the police auxiliary personnel should be defined,the characteristics of their responsibilities should be clari-fied,and the law enforcement subject status of the police auxiliary personnel should be clarified;in practice,the internal and external authority behaviors of the police auxiliary personnel should be combined,and the flexible measures and rigid auxiliary enforcement measures should be combined to strictly define the boundaries of their participation in law enforcement and clarify their authority to participate in law enforcement;at the same time,strengthen the legal guarantee for police auxiliary personnel to perform their duties in accordance with the law,clarify that violent attacks on police auxiliary personnel constitute the crime of assault on police,and increase the level of security protection against police auxiliary personnel.
China's pre-reorganization procedure for corporate bankruptcy is an innovative legal procedure that combines the advantages of in-court and out-of-court legal procedures for bankruptcy and reorganization,provi-ding a new path for rescuing distressed enterprises.Since the supply-side structural reform proposed in China,with the continuous changes in the social and economic situation,the"dual system"rescue procedure for distressed en-terprise with bankruptcy and reorganization and out-of-court reorganization as the core has been unable to meet the substantial increase in the number of bankruptcy cases in judicial practice.Due to the lack of guidance from national policies and legal documents,local courts have different approaches to pre-reorganization procedures based on their actual circumstances.In order to improve the success rate of reorganization of distressed enterprises and further optimize the business environment,it is urgent to improve the pre-reorganization procedures for corpo-rate bankruptcy in China.To construct the pre-reorganization procedure for enterprise bankruptcy,it is necessary to draw on advanced concepts from abroad and combine it with the actual needs of China to clarify the theoretical issues in the pre-reorganization procedure;clarify the start-up mode of the pre-reorganization procedure with the debtor as the main and creditors as the supplement;clarify the specific rules in the pre-reorganization procedures to effectively protect the legitimate rights and interests of enterprises.
The notice of ordering to correct is widely used in the practice of administrative management,but there is no consensus on the actionability of the notice of ordering to correct in the practice of administrative trial.Through the investigation of batch cases involving"the notice of ordering to correct",it can be found that the no-tice of ordering to correct is usually excluded from the scope of acceptance by the people's courts.However,a large number of practical cases have shown that the notice of ordering to correct is also actionable on the basis of meeting certain conditions.When judging whether the notice of ordering to correct is actionable,it should be in-vestigated in a specific case,with whether the notice of ordering to correct has an actual impact on the rights and obligations of the counterparty as the core judgment standard,specifically and comprehensively judged from the rights-related nature of the notice of ordering to correct,the specificity of the object of ordering to correct,the ex-ternal effectiveness of the content of the notice of ordering to correct,the finality of the legal effect of the notice of ordering to correct,and whether there are other non-actionable factors.
Data has become a new type of production factor.The unclear definition of data property rights will hinder the realization of the value of data elements.Based on the traditional ownership system,academic circles have put forward theories such as"single data ownership model","dual data ownership model"and"dual data rights structure".However,due to the strong exclusiveness of ownership,these theories are difficult to adapt to the actual needs of market-oriented allocation of data elements."Opinions on building a data basic system to better play the role of data elements"creatively puts forward the idea of"separation of three rights"of data property rights,in which the creation of the right to hold data resources becomes the cornerstone of the"separation of three rights",which urgently needs to be legally demonstrated its legitimacy and provided theoretical support for the le-gal confirmation of this right.
China is undergoing a judicial reform that transforms from"investigation-centered"to"trial-cen-tered".Although the"Criminal Procedure Law of the People's Republic of China"stipulates that defense law-yers can learn from the investigation agency about the suspect's alleged crimes and relevant circumstances of the case during the investigation period,and provide legal opinions,it does not clarify that defense lawyers have the right to review the files during the investigation stage.Considering the background of China's judicial reform and the legal basis of lawyers'right to review files,it is necessary and legitimate to grant lawyers the right to review files during the investigation stage;at the same time,personal information can be protected through the electronic file system of the public security organs,and supporting measures,such as lawyers'confidentiality obligations must be strictly stipulated to avoid violating the principle of"non-disclosure of investigation".Granting defense lawyers the right to review files during the investigation stage can ensure that lawyers fully understand the facts of the case and provide more effective defense;it is conducive to protecting the legitimate rights and interests of criminal suspects and better promoting the judicial reform process in China.
The development of the Internet has given rise to the employment models under the new forms of em-ployment,providing job seekers with a large number of employment opportunities.However,it has also put for-ward new requirements for the traditional theory of labor relations and the current identification rules of labor re-lations.Through analysis and research on the identification of labor relations under the new forms of employment in judicial practice,there are problems such as low identification rate of labor relations under the new forms of employment,insufficient supply of labor regulations and rigid application in China currently.There is still room for improvement and explanation in the current theory of labor relations based on personality subordination inter-nally and economic subordination externally,so an expanded explanation can incorporate the employment models under the new forms of employment into its system.On the basis of reforming China's existing theory of labor relations,we should construct identification rules based on the principle of protecting vulnerable groups with four strata,two elements and multiple elements,and establish oblique evidence rules to strengthen the employer's bur-den of proof to safeguard the legal rights and interests of employees under the new forms of employment.
Telecom fraud crime is a special form of fraud crime.It is one of the negative effects brought about by the development of communication technology in the information age.It has the characteristics of great social harm and difficulty in case detection.In recent years,public security departments in China have continuously in-creased their efforts to prevent,control and crack down on telecom fraud,and have achieved remarkable results.However,the crime is still at a high incidence currently,and characterized by younger age,specialization and in-telligence.To this end,it is necessary to raise the anti-fraud awareness of the whole society,take precise preven-tion and curb telecom fraud from the source.We should insist on mobilizing the whole city and taking precautions for the whole people;insist on fully monitoring clues and cracking down on the whole chain;insist on fast early warning and wake-up throughout the whole process;and insist on clearing up the source of the epidemic across the region and tackling difficulties across the board,to effectively protect the people's"fund sources".
As an important means to adjust social relations,resolve social conflicts,maintain social security and stabilize social order,social governance must transcend traditional social management concepts and methods and form a social governance pattern that is compatible with the overall changes in China's economy and society in the new era,in order to achieve the purpose of promoting social development.Based on the development status of social governance in Liaoning,focusing on the two aspects of public security and social participation,and taking Liaoning's successful experience in rule of law construction,social security,conflict resolution,and community development as the starting point,we can summarize and refine the comparative advantage of current social gov-ernance in Liaoning,and further explore effective ways to enhance the comparative advantage of social govern-ance in Liaoning.
Today,with the rapid development of networking,intelligence and digitization,procedural justice and traditional justice theory need to keep pace with the times as the dispute resolution model changes in the digital era,so digital justice theory emerged as the times require.China's online dispute resolution mechanism(ODR)is divided into three implementation paths:civil ODR,judicial ODR and government ODR.They resolve their re-spective online disputes respectively,form an orderly and diverse digital governance pattern,and explore a new path to digital justice.Especially during the outbreak of the COVID-19 epidemic,China's judicial ODR has be-come the main channel for rights relief due to its efficient and convenient characteristics,and has overtaken the world's ODR development level.However,there are still many deficiencies in ODR practice in China.It is neces-sary to increase the publicity of ODR,build a unified portal website,and recognize ODR at the legislative level.At the same time,we must strengthen the protection of personal information,standardize the construction of ODR talent teams,and provide a feasible path to promoting ODR to achieve digital justice.
认罪认罚从宽视域下,检察机关贯彻"少捕"刑事政策面临双重困境:一方面,认罪认罚从宽对降低逮捕率的制度激励不足;另一方面,认罪认罚从宽与羁押强制措施的"错误绑定"可能压迫认罪认罚自愿性.对此应当进一步优化以"社会危险性"为中心的审查逮捕工作机制.具体而言,理清"不认罪认罚"与"逮捕强制措施"之间的关系,细化认罪认罚情节对社会危险性的影响,并通过数字化监管健全非羁押强制措施保障机制.
进入信息时代以来,新型网络犯罪不断出现,其高发性、高科技性给传统侦查方式带来了巨大挑战.在打击新型网络犯罪的过程中,网络在线提取成为收集电子数据的重要方式.当前,电子数据网络在线提取在司法适用上面临诸多困境,具体包括适用条件模糊、启动与审批程序不明确、境内外差别对待等,给公民个人隐私以及网络信息安全带来一定的威胁.借鉴域外电子数据取证的相关规则,结合中国司法实践,对网络在线提取电子数据的方式进行合理优化,可以在有效打击网络犯罪的同时,维护公民信息网络时代的各项基本权利.
2020年1月1日起施行的《土地管理法》明确规定了农村集体经营性建设用地入市制度,以实现与国有土地同权同价.2022年9月6日中央全面深化改革委员会通过了《关于深化农村集体经营性建设用地入市试点工作的指导意见》,进一步明确规定农村集体经营性建设用地与国有建设用地同等入市、同权同价,在城乡统一的建设用地市场中交易,适用相同规则.但《民法典》却未将农村集体建设用地纳入到"建设用地"章节中统一规范,导致农村集体建设用地的民事规范缺位,阻碍其正常有序入市.依据相关法律与实践要求,健全农村集体经营性建设用地入市制度,可以从农村集体经营性建设用地使用权属于用益物权、农村集体经营性建设用地入市客体包括存量用地和增量用地、政府在再次土地流转中可征收土地增值收益调节金、缩小土地征收范围、协调与农村集体经营性建设用地入市流转的关系等角度综合考量,以实现农村集体经营性建设用地有序流转,保障农民合法经济利益.
法治副校长制度的建立和完善是公安机关参与校园安全治理的重要路径之一.公安机关的职能优势以及长期积累的宝贵经验,决定了公安民警担任中小学法治副校长具有其他群体所不具备的独特优势.实践中,公安民警担任中小学法治副校长存在着制度保障不完善、职责定位模糊不清、运行机制尚未健全等阻碍性因素.有必要通过重视履职考评,强化制度保障;明确职责定位,细化校园警务内容;创新工作形式,实现有效融合等路径,提升校园安全治理能力,走出当前校园安全治理面临的困境.
"少捕慎诉慎押"刑事司法政策目的在于构建良好的司法生态,适应当前我国刑事犯罪的结构变化,落实人权保障、审慎用权的要求,保护犯罪嫌疑人、被告人的合法权益.依法推进羁押必要性审查是落实"少捕慎诉慎押"政策的重要抓手,可以更好地发挥检察机关在减少社会对抗、化解社会矛盾中的重要作用.加强对羁押必要性审查的监督、救济,有利于及时恢复被羁押人正常的权利状态,保证审查程序的公正性.羁押必要性审查制度的监督与救济机制的构建需要从审查程序的内容、标准、责任、构造等方面着手,精准把握、统一适用审查羁押措施的条件,以社会危险性为标准进行多方面、多层次、多角度的可量化审查,转变既往的错误办案观念,构建正确羁押观.
反制裁是指一国为应对他国单边制裁在先的行为,根据国际法以及国内法实施的合法对等的经济外交手段,是为维护国家的利益、安全与发展而被动克制地采取反制措施的行为.作为涉外法治和国内法治交汇的关键领域,我国反制裁不仅在国际法上具有合法性,而且具有明确的国内法依据.我国反制裁应坚持统筹国内法治和涉外法治,从立法、执法及司法角度完善反制裁实施机制,建立反单边制裁措施有效评价和调整机制.
彩礼纠纷的解决关涉乡村治理的质效和脱贫攻坚成果的巩固拓展.近年来,针对因彩礼引发的纠纷不断增多的现象,中央陆续出台文件,要求破除农村婚姻陋习.当前,全国四级法院对彩礼纠纷作出的司法解释或指导性意见,均存在过于原则、规范冲突以及规范欠缺等不足,难以切实有效地发挥司法引领和教育功能,也无法从根本上破除婚姻陋习.将《民法典》中"适用习惯处理纠纷"和"违背公序良俗的民事法律行为无效"的规定适用到彩礼纠纷案件中,可以深刻影响此类案件的审理思路和裁判结果,对彩礼纠纷的预防和解决起到重要推进作用,进而从根本上破除婚姻陋习,形成良好的社会风尚.
我国已经进入民法典时代,公安民警应当具备与之相适应的职业素养.基于人民警察职责与保护民事权益的契合性、保护民事权益能力的不可替代性以及警察权对民事权益作用的双重可能性,公安民警应当更加强化民事权益保护意识;应当弘扬民法典主导价值观,具备平等待人的职业修养、公正处置民事权益的职业能力以及友善对待群众的职业道德;应当了解民法典与公安机关职责相关的规定,掌握执法办案、帮助群众化解矛盾纠纷等服务人民工作中的常用民法知识.
《中华人民共和国民法典》对原有调整民事法律关系的法律规范进行了体系性的整合与收编,其中对原本较为传统的、以侵权损害责任类型为主的侵权责任体系进行了调整和细化,为绝对权的前端保护及对应的预防性请求权提供了法律基础.然而,行使绝对权预防性请求权不仅存在因现有法律体系中立法漏洞而导致的法律原则适用不明之虞,更在环境污染诉讼领域存在着法律冲突等不足,从而催生了一系列实务中适法困难、诉讼满足率差异较大等负面效应.因此,应当在预防性请求权行使边界及规制手段层面予以规范解释,结合环境污染案件的特殊性,就其中归责原则定位、容忍义务适用与对应责任承担方式的细化等内容作出进一步厘清,以明确预防性请求权的实践进路.
