The status of the extracorporeal embryo in German law (part. II).

The legislator, in the German Federal Republic, has opted for a specific legal solution in relation to the protection of the embryo. Carola Müller, in this article, describes this regulation as well as the reasons that have led to its adoption. The article finishes with an exposition of the existing social discussion in German society and the effect that the law has had.     

Legal parent versus biological parent: the impact of disclosure

This article addresses arguments regarding disclosure of information to donor-conceived individuals, showing that disclosure is entirely different from the recognition of parental rights and responsibilities for the gamete providers. It argues that disclosure of information is not equivalent to saying: "donors are parents". Instead, information release simply provides a basis for donors, donor-conceived individuals and recipient parents to exchange information about themselves. When a jurisdiction enacts laws that provide for such information release, these statutes are distinct from any other legal rights and responsibilities for any members of the donor-conceived community. In its first section, the article briefly explains the means for determining legal parentage before reviewing research on how parents tell their children about their means of conception. Next, it explores studies of why members of the donor-conceived world search, providing an empirical basis for the claim that disclosure does not equal parenthood. The article explores concerns about information release, and, in the final section, suggests possible approaches for protecting the rights of donor-conceived people while reinforcing the legal separation between social and biological parents.     

民法上“法益”概念的探源与本土化

《民法总则》第126条中的"利益",与我国民法学界持者甚众的狭义法益说中的"法益"含义大致相同,指的是权利之外应当受到法律保护的客体,是立法者为解决其预见性不足的弹性规范设计。上述界定与"法益"概念的原意不符,和刑法学界的惯常用法存在明显差别,属于概念移植过程中的本土化改造。"民事权利和利益"的二分法和狭义法益说在法理、逻辑上都不能成立,也不具备法益理论应当具备的分类、区分保护和评价功能,必然会造成立法表述与司法裁判说理中的冲突。"法益"概念的本土化界定,应当建立在共识的基础上,寻求统一的、适用于包括刑法、民法等在内的各个部门法的"法益"概念。"法益"是应当受到法保护的利益,此处的法既包括实然意义上的法律,也包括应然意义上的法。法益是权利的上位而非平行概念,《民法总则》第126条中的"利益"实质上是未被立法明文规定的未上升为权利的法益,未来修法时应将该条修改为"民事主体享有其他民事权利和未上升为权利的法益"。     

UNCONSTITUTIONALITY OF RECIPROCITY REQUIREMENT FOR RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN JAPAN

This article deals with reciprocity requirement for recognition of foreign judgments in Japan. Following German law, Japanese law requires reciprocity to the rendering state in addition to the jurisdiction of the state, the service of process, and the compatibility with Japanese public policy. Although Japanese courts have rarely refused the recognition of foreign judgments for lack of reciprocity for a long time, some Chinese judgments recently have not been recognized for this reason. The author clarifies first with historical review what was the purpose of the Japanese legislator, when the original law of 1890 required the reciprocity by international treaties, and when later the reform law of 1926 required the simple reciprocity that is similarly provided in the current law. The author surveys then the Japanese case law concerning the reciprocity requirement after the reform of 1926. The author focuses further on the reciprocity between Japan and China and compares the Japanese practice with the German one that led to a different result. Last, it is concluded that the reciprocity requirement is contrary to the protection of human rights under Japanese constitution.     

The status of the extracorporeal embryo in German law (Part I).

The legislator, in the German Federal Republic, has opted for a specific legal solution in relation to the protection of the embryo. Carola Müller, in this article, describes this regulation as well as the reasons that have led to its adoption. The article finishes with an exposition of the existing social discussion in German society and the effect that the law has had.     

The Application of International Legal Norms Over Time: The Second Branch of Intertemporal Law

Intertemporal law governs the applicability of international legal norms ratione temporis. According to often used terminology, intertemporal law has two different branches. This article provides clarification of the so-called ‘second branch of intertemporal law’. It does so by refuting two commonly held assumptions. First, as established in section 2 of the article, the second branch of intertemporal law is not an exception to the first branch of that law. It cannot be, since both branches of intertemporal law centre on the same legal principle: an action or a factual state of affairs must be assessed in the light of the law which is contemporary with it. Secondly, as implicated by the line of reasoning in section 2, and further confirmed by the inferential evidence cited in section 3, the practical relevance of the second branch of intertemporal law is not confined to the application of the law on the acquisition to territory. It pertains to a more widely defined group of norms in international law.

     

Legitimate Force in a Particularistic Democracy: Street Police and Outlaw Legislators in the Republic of China on Taiwan

This article explores a “particularistic” concept of legitimacy important to Taiwanese democracy. This form of legitimacy, I suggest, has been instrumental for Taiwan's successful democratic consolidation in the absence of the rule of law. As evidence, I combine ethnographic observation of neighborhood police work with historical consideration of a type of political figure emergent in the process of democratic reform, which I call the “outlaw legislator.” I focus my analysis on the institutional and ideological processes articulating local policing into the wider political field. The center of these processes is a mode of popular representation that positions the outlaw legislator as a crucial hinge articulating the particularistic local order with central state powers. By analyzing the cultural content of the dramaturgical work used to reconcile low policing with higher‐level state operations, this article shows how a particularistic idiom of legitimacy helps hold Taiwanese democracy together.     

Law of assisted reproductive surrogacy in Malaysia: a critical overview

Both traditional and gestational surrogacy are now entering the public mind as a major public policy issue, because of concern for apparent truncation of the surrogate mother’s rights. This article sets out to investigate some key relevant rights, the policy issues as yet unresolved, and the character of the current regulatory regime. Modern medicine, specifically assisted reproductive technology, has made legislation obsolete in many jurisdictions around the world, including in Malaysia. These new medical practices present many significant legal problems, with which the courts and legislators still struggle. A proposed statute, the Assisted Reproductive Technique Services Act, aimed at regulating reproductive technologies, including surrogacy arrangements, will be introduced in the Malaysian parliament soon. The proposed Malaysian Act will address issues such as surrogacy, sperm or egg banking, and sperm donation. Malaysia is moving cautiously towards regulation on this issue and is trying to avoid becoming a ‘rent-a-womb country’. Thus, this article asks the question as to what policy considerations are in place, in the current Malaysian regulatory regime, to care for the rights of the surrogate mother? It will try to show that there is still a danger that Malaysia could become a ‘rent-a-womb country’, with its necessary implications of property rights over surrogate mothers. The article employs section-by-section synthesis to reach its conclusions. Argument will suggest that the current state of the law in Malaysia, as to both traditional and gestational surrogacy, seems to be that the regulatory regime is a combination of the general law, private ordering, registration and enforceable professional ethics. However, there is no Malaysian statutory law in place, in the contemporary social context, expressly prohibiting a term in a surrogacy contract that might imply property rights over the surrogate mother. This is a serious apparent lacuna in the law, and might suggest that the laws of transnational crime be considered, as an alternative, as applicable to the surrogacy agreement.     

How appropriate are volunteers as 'appropriate adults' for young suspects? The 'appropriate adult' system and human rights

This article discusses the use of volunteers as 'appropriate adults', who are intended to safeguard the rights of young people during the police investigation process. It maps the historical origins of using volunteers to fulfil the role. It then highlights the shortfalls of parents and social workers as appropriate adults and evaluates the suitability of volunteers for the role. Whilst the shortcoming of parents and social workers are not disputed, nor the benefits accrued by using volunteers in the name of administrative and financial efficiency, it is argued that the effectiveness of volunteers in protecting the vulnerable suspect could be impeded by poor selection and preparation. Consequently, this article argues that the effectiveness of volunteers in this role is dependent on prompt and effective regulation and guidance. It warns the Government that if it continues with its current line of inaction, it could result in breaching its obligations under international law. Current appropriate adult practice generally may breach human rights guaranteed under international and domestic law.This article concludes that the lure of resource savings should not come at the expense of less protection for the young suspect in police custody.     

Federal employees health benefits program; medically underserved areas for 1998--OPM. Notice of medically underserved areas for 1998

The Office of Personnel Management (OPM) has completed its annual calculation of the States that qualify as Medically Underserved Areas under the Federal Employees Health Benefits (FEHB) Program for the calendar year 1998. This is necessary to comply with a provision of FEHB law that mandates special consideration for enrollees of certain FEHB plans who receive covered health services in states with critical shortages of primary care physicians. Accordingly, for calendar year 1998, OPM's calculations show that the following States are Medically Underserved Areas under the FEHB Program: Alabama, Louisiana, Mississippi, New Mexico, South Carolina, South Dakota, West Virginia, and Wyoming. North Dakota has been removed from that list, with no new additions for 1998.     

The National Judiciary—Sword of European Court of Justice Rulings: The Example of the Kohll/Decker Jurisprudence

The role of the national judiciary in enforcing EC law, and particularly European Court of Justice (ECJ) rulings, has been largely neglected by empirical legal and political science research. Existing research has categorised the role of the national judiciary as either shielding national legislation from the ECJ or as serving as a ‘sword’ to foster integration and to force change on reluctant governments. This article sides with the second assumption and attempts to empirically assess it using the example of the patient mobility jurisprudence by the ECJ, the so‐called Kohll/Decker jurisprudence. The three case studies on France, the UK and Germany show that national courts played an important role in overcoming the resistance against this jurisprudence: via a multiplication of national court cases that contradicted domestic legislation they forced the legislator to end judicial uncertainty.     

犯罪本质特征新说 --社会学与刑法学立场分野下的认识

行为具有严重的社会危害性,在社会学意义上无疑是犯罪。但在刑法学意义上讲,却并非如此。刑法上的犯罪,离不开法律的规定。刑事违法性,是立法者将那些具有严重社会危害性的行为纳入犯罪圈的标识,是判定罪与非罪的惟一标准。在个罪成立与否的判定中,既要考虑刑法分则的规定,也要考虑刑法总则规定的犯罪定义,以防止形式的犯罪构成解释论。在刑法学中,犯罪的本质特征应该是立法者选定的行为的严重社会危害性,而非仅为行为的严重社会危害性。     

Legislating Dangerously: Bad Samaritans,Good Society,and the Heroism Act 2015

The Social Action, Responsibility and Heroism Act 2015 is a troublesome statute. The Act requires that, when considering a claim brought against a defendant in negligence or for breach of statutory duty, the court must assess whether that party was ‘acting for the benefit of society or any of its members’ (section 2), or ‘demonstrated a predominantly responsible approach towards protecting the safety or interests of others’ (section 3), or was ‘acting heroically’ (section 4). However laudable the Coalition Government's attempts to foster a ‘Big Society’ might have been, this enactment was not the proper vehicle to achieve it. Some provisions merely repeat longstanding common law principles. Others may have been intended to amend the common law to encourage ‘good citizenship’, but fall well short of that aim. And some aspects of the Act's drafting have the (perhaps unintended) potential to sit uncomfortably with established common law negligence principles.     

刑法解释立场的历史考察——主观解释论之提倡

刑法解释经历了从主观解释论到客观解释论的演进过程,现阶段,从世界范围来看,客观解释论正成为一种有力的学说。在不同的历史时期,主观解释论与客观解释论所处的地位并不相同,在经历了罪刑擅断、人治统治的历史之后,人们对立法者充满了无限的期待,体现在刑法解释上就是要求坚持主观解释论。而当法治的进程进一步推进,人们已经不满足于法律的安定性,还要求法律实质上的公平、公正。联系社会发展以揭示法律内涵,遵守成文法不囿于文字本身的刑法解释客观论,遂成为刑法解释论上的特色。从历史的角度看,法治理念、法官素质、刑法实施的时间与刑法解释立场的选择具有密切的关系。我国是经历了几千年的人治统治的国家,法治建设才刚刚起步,法官素质还有待于进一步提高,刑法实施仅十余年,这要求我国在刑法解释上应采主观解释论。     

Federal Employees Health Benefits Program, Medically Underserved Areas for 1999--OPM. Notice of medically underserved areas for 1999

The Office of Personnel Management has completed its annual calculation of the States that qualify as Medically Underserved Areas under the Federal Employees Health Benefits (FEHB) Program for the calendar year 1999. This is necessary to comply with a provision of FEHB law that mandates special consideration for enrollees of certain FEHB plans who receive covered health services in states with critical shortages of primary care physicians. Accordingly, for calendar year 1999, OPM's calculations show that the following States are Medically Underserved Areas under the FEHB Program: Alabama, Idaho, Louisiana, Mississippi, New Mexico, North Dakota, South Carolina, South Dakota, and Wyoming. West Virginia has been removed from the 1998 list, and Idaho and North Dakota have been added.     

The Inefficiency of Quasi–Per Se Rules: Regulating Information Exchange in EU and U.S. Antitrust Law

It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the relevant approach under the EU competition regime. Using economic theories of harm concerning information exchange to understand the imposition of liability in relation to “stand-alone” instances of information exchange, we argue that such liability must be grounded on the conception of a prophylactic rule. We characterize this rule as a form of ex ante regulation and explain why it has no ex post counterpart in antitrust law. In contrast to the U.S. antitrust regime, we argue that the implementation of such a rule pursuant to EU competition law leads to higher error costs without a significant reduction in regulatory costs. As a majority of jurisdictions have competition law regimes that resemble EU competition law more closely than U.S. antitrust law, our thesis has important implications for competition regimes around the world.     

The Cyprus and other EU court rulings on data retention: The Directive as a privacy bomb

This paper discusses the controversy surrounding the Data Retention Directive with an emphasis on the 2011 decision of the Cyprus Supreme Court which has annulled several district court orders that allowed the police access to telecommunications data relating to certain persons relevant to criminal investigations. The annulment has been on the ground that the legal provisions upon which the orders have been issued are unconstitutional. It will suggest that the decision does not entail a direct rejection of the EU Data Retention Directive and that in any event, Cyprus is not a Member State resisting the particular measure. This is because the legal provisions are deemed unconstitutional, though part of the law that has transposed the relevant Directive into national law are provisions that go beyond what the EU legislator intended to regulate through that Directive. Still, the particular Directive sits rather uneasily within the ‘human rights’ regime, in particular the one governing the individual right of privacy.     

Human-nonhuman chimeras: a regulatory proposal on the blurring of species lines

The chimera of modern biotechnology is defined broadly as a single organism composed of a mixture of materials from two or more organisms possessing distinct genetic backgrounds. Unlike the United States, which does not regulate chimeras directly, Canada has responded to the unregulated pursuit of chimera technology by banning certain chimeras as part of comprehensive legislation designed to regulate human reproductive technologies. In 2004, the Canadian Parliament passed the Assisted Human Reproduction Act despite criticism urging greater legislative justification for the Act's provisions and modification to it statutory definitions. Because current regulatory mechanisms in the United States, including patent law and administrative oversight, fail to regulate chimera technology, the United States should enact new legislation, using Canada's legislation as a model, to prohibit embryonic chimeras and to regulate other human-nonhuman combinations. Unregulated biotechnology threatens to disrupt legal and social institutions; therefore, the United States must make a balanced effort now to protect the public interest.     

Incitement of Racial Hatred

Legislation on incitement of racial hatred is an essential instrument for counteracting racist and anti-Semitic spoken or written communications. In Sweden, the various provisions, which are not only to be found in the Penal Code but also in the Ordinance on Freedom of Expression and in constitutional law on the freedom of expression, are fundamental elements of the legislation against racism, anti-Semitism and similar forms of agitation. In these provisions the legislator has set limits to the freedom of expression as far as racism, anti-Semitism, etc., are concerned. This is true regardless of whether the communication is expressed orally, as printed matter, through other media or in other ways. It is not necessary for the communication to have been disseminated publicly for punishment to be incurred; it suffices that dissemination has taken place within a limited circle. The provision appeared in its initial form in 1948. With the advent of the 1965 Penal Code it was transferred from the former Punishment Law to the new Code and has subsequently been modified in 1970, 1982 and 1988. It should be noted, however, that there is no provision for prior censorship. Each text, each symbol, each slogan, and so forth, must be adjudged by a court. The law in its basic form was sanctioned in 1956. The present article touches on trends concerning reported offences, trials and convictions during the 1990s. Unfortunately, it is not possible here to present statistics going further back in time, since the offence of incitement of racial hatred was not coded specifically in the crime statistics before that time. In the opening passages of the article, the advent of the law and important cases during the post-war period are discussed. The aim here is to describe how and why legislation has been used as well as the changes that have taken place over the past ten years.