Administrative law is concerned to secure his proper interests against the government. Constitutional law tries to secure his basic democratic rights, such as free speech, freedom of association and public meeting. In the United States the fifth and fourteenth Amendments to the constitution prohibit any interference with the individual’s life, liberty or property “without due process of law”, and many statutes, both of the United States Congress and of the state legislatures, have been challenged before the Supreme Court as infringing these rights.
1.请用中文简述何谓“ due process of law”。
In federal court, civil cease have traditionally been resolved by a judge’s legal ruling, a jury verdict, or a judge’s verdict in cease not tried before a jury; or the partied’ agreement to settle their case after negotiation, often after a settlement conference presided over by judicial officer.
An alternative to these methods is alternative dispute resolution(ADR); as time goes on, ADR procedures are being used more often in the federal courts.
Most forms of ADR take place out of the courtroom, are not binding on parties, and involve referral of case to a neutral party.
By promoting settlement, ADR may reduce litigation cost and delays. Fed. R. Civ. P.16(b) provides that at any pretrial conference, the court may consider both settlement and “the use of special procedures to assist in resolving the dispute when authorized by statute or local rule.” Variation among forms of court-based ADR allows the court the discretion to choose the form most appropriate for the case at hand.
In some cases the court may decide to incorporate ADR into a schedule of phased discovery.
ADR might be scheduled after a preliminary phase of discovery giving the parties a fairly clear sense of the evidence bearing on the factual issues.
After ADR, the court may schedule a second pretrial conference.
If the parties do not settle, latter phases of discovery take place after ADR.
Local governments’ direct and deep involvement on forced evacuations and demolitions and in disputes over land seizures is a major cause of violent confrontations at the grassroot level.
The overturning of a vehicle of the mayor of Chizhou, Anhui province, East China, during a recent standoff between villagers and demolition workers is only the latest sign of the friction that is developing as local authorites accelerate the pace of “urbanization”
Although the mayor had to be escorted from the scene by scores of fully armed riot police, the most unsettling part of such stories is the damage done to people’s lives in the name of the State and government.
The existing rules are unable to handle these escalating land disputes. On the contrary, in most cases, those murky clauses are the cause of the problem. So the last ray of hope is the proposed Regulations on Requisition of and Compensation for Buildings on State-owned Land. The draft version was published for public opinions on January 29.
Reports have it that the latest draft may exclude local governments from the process of forced demolitions and consign the matter to the judiciary. The idea is to introduce a judicial procedure for such undertakings.
Experts may be overly optimistic in assuming that the courts are aloof from local interests and therefore can guarantee justice. But leaving the matter to the courts’ deliberations is a meaningful step in the right direction, because it may bring us closer to the ideal of rule of law.
However, judging from the present pattern of division of work among branches of the government, there is no way to really divest local governments from forced demolitions. The local courts’ lack of independence from same-level government will inevitably influence their judgments on whether forced demolitions are needed.
At the very least, it will ensure a decent procedural mechanism and the threshold for abuse may be considerably higher. For that alone the idea is worth endorsing. But since a new set of rules is meant to solve real-world problem, instead of showcasing breakthroughs in thinking, we can legitimately expect more.
Besides containing the reported clause, the final draft should include technical details to make sure court decisions do not become handy tools to impose injustice. And the potential victims must be given sufficient means to defend themselves against abuses. The priority should always be to protect those people subject to forced demolitions.