美国统一仲裁法修订评析

美国2000年通过了修订的统一仲裁法,确立了一些新的原则和规范,可谓融合了现行仲裁实定法与判例法的精神于一 身,足以代表美国仲裁法制现状。综观其修订后的法律条文,始终有条主线贯穿整部法律——意思自治。     

International pressure and domestic bargains

Japanese drug control policy has been relatively underexplored by the prominent literature on the international drug trade. This article reveals that, although adopted largely in response to U.S. pressure, recent Japanese regulations on money laundering related to the drug trade, and their predecessors, have been primarily shaped by domestic political dynamics.     

The effect of Japanese corporate acquisition on the us military-industrial base

This paper utilizes a technique called the analysis of competing hypotheses to study Japanese acquisitions that involve majority interests in US firms. Findings show that there seem to be strategic trends in the Japanese procurement process, and that there are four domestic product groups that appear to be particularly vulnerable. Such foreign control of American commercial enterprises may well be a threat to the economy and national security.     

内部控制体制的设置与董事义务——以日本企业内部控制体制判例考察为线索

随着《企业内部控制基本规范》与《企业内部控制配套指引》的出台,我国企业内部控制规范已经初具规模,内部控制体制的设置也成为最近我国大中型企业经营上的重要课题。能否依据我国现有法律规定确立董事内部控制的设置义务以及我国未来立法时应该对内部控制设置义务作怎样的规定,就成为亟待解决的问题。日本公司法的公司机关构成与我国公司法有着相当程度的类似性,通过对日本相关法律规定、判决以及学说的研究,在解决以上问题上会对我国提供许多值得借鉴的经验。     

MDPs May Be Dead After Enron/Andersen, But Subsidiary Businesses Thrive

While some commentators believe that the Enron and Arthur Andersen affair that came to light in 2001 is responsible for the demise of multidisciplinary practices (MDPs), the notion of law firms engaging in MDPs lost most of its momentum during the American Bar Association (ABA) debate of 1999 and 2000. Enron and Andersen weakened whatever support remained for MDPs after the ABA defeat, during which MDP opponents raised legitimate concerns. But Enron and Andersen did not derail all models in which law firms successfully provide nonlegal services. In fact, the law-related services ancillary business model (as referred to by the ABA's Commission on Multidisciplinary Practice) is much more relevant post-Enron. Ancillary businesses, or subsidiary businesses as they are referred to at the authors' law firm of Bingham McCutchen LLP, are not MDPs. When structured and managed in compliance with fundamental principles and regulations, subsidiary businesses give progressive law firms the ability to deliver a comprehensive bundle of integrated services in response to client needs .     

Balancing Social and Corporate Culture in the Global Economy: The Evolution of Japanese Corporate Structure and Norms

Japanese corporate law is undergoing a transition with new Commercial Code amendments in 2003 that allow corporations to opt for an Anglo‐American model of governance. Combined with shifts in securities regulation, shareholder activism, and the notion of Japanese lifetime employment, there is an important issue of whether these shifts represent a move towards an optimal corporate governance paradigm. The evolution is tempered by particular cultural norms that drive Japanese corporate law. While there is a perception in North America that Japanese corporations have shifted to an Anglo‐American model of corporate governance, the reality is more layered. It may be that ultimately, the governance model that evolves will adopt the best elements of increased transparency, corporate accountability, enhanced shareholder protection, employee long‐term employment protections, and production synergies, that would allow Japanese corporations to compete internationally, but retain those elements of corporate community that have long been considered a primary objective of the social and economic life of Japan.     

Compensating victims for harms caused by pollution and other hazardous substances: a comparison of American and Japanese policies

This paper reviews recent American proposals to reform the system for compensating victims of pollution and compares them with the Japanese approach. American proposals fall into three categories: balanced approaches that combine administrative relief with tort reform; proposals that would provide administrative relief but eliminate tort remedies; and proposals to reform tort law which have nothing to say about administrative relief. While American policy-makers are still groping for a solution, in Japan tort law changes provided the rationale for a system of administrative relief that preserves the victims' right to sue. While the Japanese approach is not perfect, the early development of a policy reduced legal and political uncertainties and provided a stable environment for economic growth.     

强制治疗精神疾病患者的程序法研究——基于国内六部地方性法规的实证分析

对精神疾病患者实施强制治疗程序包括强制送治程序和强制治疗程序,由于该程序涉及到对人身自由的限制,应该严格遵循法治行政的原则。不过,国内各地所制定的六部精神卫生条例,赋予该程序的法根据并不充足;同时,程序法上的规定也并非十分完善。因此,我国应该尽快制定《精神卫生法》,详细规定强制治疗的程序,为保障精神疾病患者的权益提供坚实的法律根据。     

A plan analysis of pedophile sexual abusers' motivations for treatment: a qualitative pilot study

Many authors have suggested adapting treatment programs to the specific needs of sexual abusers. However, little research has been conducted to understand what these patients seek in therapy or what elements play a key role in keeping them in treatment. In this pilot study, fifteen (N=15) pedophile sexual abusers from La Macaza clinic for sexual abusers were interviewed. Plan analysis was used to investigate the most prevalent components involved in staying in or leaving therapy. Results suggest that many components involved in the plans leading to doing and to avoiding treatment were similar. Differences were found in regards to the outcome of confrontations with the therapists, a tendency to isolate and overcomply, guilt related to the abuse, a need for a stable environment, and a need to be accepted. These results are discussed along with possible ways to improve the patients' involvement in treatment.     

Rule violations of Japanese inmates; An artifact of a low imprisonment rate

Rule violations offer insights to inmate reactions to penal confinement and to the official control system. Japanese prisons are of special significance because of the diversion of convicted offenders when feasible. American critics of community corrections have argued that heavy diversion would impose only the most intransigent criminals on prisons. By the sociocultural standards of Japan, diversion has had that consequence for its prisons. Official data provide the opportunity to examine a system of rule enforcement under those circumstances, including the relationship with inmate recidivism and the length of imprisonment.     

加拿大侵权法中的转承责任

加拿大侵权法中,转承责任不是一种独立的责任形式,但却采用严格责任归责,被告与侵权行为人之间必要关系的建立是转承责任的前提。这与英美法和法国法的规定相似,与德国法、日本法和我国台湾地区的规定不同。加拿大侵权法中关于雇主和雇员、本人和代理人等有关转承责任的规定,为我国转承责任归责原则的确立提供了有益的借鉴。     

从民族性格看美国的法制创新

在世界历史上，美国民族曾创造了法制的辉煌，这种成就与美国的民族性格有着千丝万缕的联系。美国是由众多种族和国籍的移民构成的民族大家庭，经过这一“民族大熔炉“的反复冶炼，最后凝聚成美利坚民族所共有的性格特征——崇尚独立自主，勇于开拓进取，保持乐观自信和注重求实创新。正由于美国民族具有取得成功的信心、坚忍不拔的毅力和奋发图强的精神，才书写了美国社会经济繁荣、法制创新的辉煌历史。     

论区分所有建筑物的管理规约

管理规约是规范区分所有建筑物的管理、使用乃至所有关系的自治规则,它如同公司的章程、国家的宪法,具有业主团体(共同体)根本自治法规的性质。我国管理规约的订立、变更及废止,应由目前的普通多数决变易为特别多数决;管理规约应对业主间的基础法律关系、业主间的共同事务、业主间的利害关系的调节及对违反义务者的处置等作出规定。业主大会、业主委员会的决议、管理人的行为等,不得与管理规约抵触。管理规约的效力原则上及于业主及其特定继受人,但承租人、借用人等区分所有建筑物的占有人(物业使用人),应仅受管理规约事项中有关使用事项的拘束。原始管理规约的设定、效力、登记等应借鉴日本法的经验,原始管理规约的变更(撤销)及公平性,应借鉴德国法的做法,认可对于一些事项业主大会的多数决决议具有变更原始管理规约的规定的效力,认可业主享有变更原始管理规约的请求权。     

中美刑事搜查制度比较研究

美国的法律规定十分之完备,其刑事搜查制度是普通法系国家的典型代表,有着其鲜明的特色。通过比较中美两国刑事搜查制度的异同,借鉴美国刑事搜查制度的经验,改革和完善我国刑事搜查制度,对于控制犯罪,保障人权,更好的为和谐社会建设服务具有十分重要的理论及实践意义。     

African American Child Discipline: Differences Between Mothers and Fathers

Child rearing methods used in African American homes have been the subject of much commentary among social scientists, child welfare, and legal personnel. Much of the deliberation has centered on firm disciplinary techniques used by African American mothers. However, few studies have included the perspectives of African American fathers. This study investigated the differences between African American mothers' and fathers' responses in relation to child misbehavior. Several significant differences were found with mothers utilizing more intense disciplinary methods than African American fathers. Results of this investigation underscored the importance of obtaining the viewpoints of African American fathers as well as mothers in understanding parenting in African American homes.     

日本海法生成与体系研究

阐释了日本海法的生成与体系,论述了其成长过程及规律,指出日本海法继受了《德国商法典》体例,在具体制度上兼采法国商法商行为主义和德国商法商人主义,同时还在判例法、习惯法等形式以及优先适用国际条约等形式引入英美海法制度的兼容并蓄的折衷法系的特点。     

论警察的社区照管紧急权——以美国法为范例的考察

警察在应对紧急情况的过程中,可以行使紧急权力。以美国法为范例,介绍了美国法院有关执法紧急权和社区照管紧急权的相关规定,考察了警察社区照管紧急权法律界定及运作原则。     

Japanese biological warfare experiments and other atrocities in Manchuria, 1932–1945, and the subsequent United States cover up: a preliminary assessment

Japanese microbiologists and other scientists, as early as the 1930s, used humans for test purposes in their quest for a viable offensive biological warfare system. Thousands of men, women and children were tested with a host of pathogens to determine the appropriate dose required to kill. Those who survived the initial tests were subjected to other experiments. No one left the test sites alive. They were either killed in the experiments, or they were sacrificed when they outlived their usefulness. Field tests in China unleashed plagues that killed tens of thousands, and possibly hundreds of thousands.American intelligence in early 1942 discovered that Japan had a large biological warfare enterprise in Manchuria and China. By the end of the war, Intelligence was in possession of a comprehensive outline of Japanese operations. American scientists at Fort Detrick, Md., home of the American biological warfare program, learned of the Japanese research. They sent emissaries to Japan to negotiate with those scientists who escaped from Manchuria and returned home. After two years of negotiations, a deal was made. The Japanese would turn over to the Americans their research data. The Americans would not prosecute the scientists as war criminals. Not one Japanese scientist under American jurisdiction was ever prosecuted, but, instead, was permitted to live a normal life in post-war Japan.The paper was presented at the University of Cologne Forum on: Medicine without Compassion-Past and Present, September 29, 1988     

Misclassifications of Hispanics Using Fordisc 3.1: Comparing Cranial Morphology in Asian and Hispanic Populations

It has been brought to the attention of the authors of Fordisc 3.1 that Hispanic samples will often misclassify as Japanese when Asian population samples are included. This study examined this problem in an effort to better document the occurrence and deduce possible causes via comparative analyses. Asian and Hispanic samples were first compared utilizing the existing samples from the University of Tennessee's Forensic Data Bank. Additional modern Japanese, Thai, and Korean samples collected by the first author that have previously not been utilized in analyses were subsequently included. Results of this study confirm frequent rates of misclassification among Hispanic and Japanese groups. Furthermore, a close morphological relationship is identified through further group comparisons and the addition of data used in conjunction with Fordisc samples. Similarities identified among Hispanic and Japanese crania may stem from similar population histories reflected in ancestral Native American and East Asian populations.     

The journey: moving racial diversification forward from mere commitment to shared value in elite law firms

This article draws on institutional theory to analyze racial diversification in elite law firms in the United States, and to suggest ways of moving racial diversity forward beyond mere commitment to a shared value among firm members. Using published diversity reports, interviews, and American Lawyer Media demographic data spanning 13 years, this article argues that elite law firms are committed to maintaining racial diversity as a corporate identity – outward presentation to clients – because their clients have come to rely on this commitment. Conversely, racial diversity is not yet an organizational identity, or a shared value among elite law firm members. This article suggests that a commitment to racial diversity can become a shared value among law firm members through the work of diversity champions and by incorporating ‘intentional diversity.’