论欧盟金融服务法中的最低限度协调原则

在欧盟金融服务法中,最低限度协调原则是指共同体立法只对各成员国金融监管规则的基本要素进行协调.这一原则尊重了成员国的国家主权,有助于降低金融服务市场一体化的政策成本,并能够充分发挥市场机制的作用以促成最优的监管标准.<欧共体条约>中的特别协调条款是这一原则的直接依据,金融服务指令中的协调条款是其集中体现.最低限度协调原则只适用于符合共同利益的非歧视性限制措施.在其适用范围内,各成员国只能进行执行性立法.该原则的确立和推行是以相互承认为核心、以母国控制为表现形式的一体化模式成功运用的必然结果.晚近的立法实践表明,这一原则有被边缘化的危险.     

UNCITRAL电子商务工作组第四十届大会综述

联合国国际贸易法委员会电子商务工作组第四十届大会有两个议题:一是如何消除与国际贸易有关的国际文书中存在的妨碍电子商务发展的法律障碍;二是讨论审议《电子订约:一项公约草案的条文》。     

JURISDICTION FRICTION AND THE FRUSTRATION OF THE HAGUE CONVENTION: WHY INTERNATIONAL CHILD ABDUCTION CASES SHOULD BE HEARD EXCLUSIVELY BY FEDERAL COURTS

The Hague Convention on the Civil Aspects of International Child Abduction confronts the growing problem of international parental child abduction by providing for the prompt return of the child to their home country. However, the legislation that implements the Hague Convention in the United States confers concurrent state and federal court jurisdiction for cases brought under the Treaty. This vast jurisdictional grant has contributed to delay in case resolution, inconsistent interpretation, and unresolved cases and has frustrated the original intent of the Hague Convention which seeks to expedite the child's return. At their core, Hague Convention proceedings are choice of forum cases in an international context and the Convention depends on reciprocity and respect for the rule of law among Contracting States. Consolidating Hague Convention proceedings within the federal system would encourage uniform interpretation of Treaty provisions and allow expertise to develop among judges. This will promote the interests of parent and child victims by facilitating the prompt return and eventual resolution of the underlying custody controversy while strengthening the effectiveness of performance under the Hague Convention.     

Trade Liberalization and Regulatory Diversity: Reconciling Competitive Markets with Competitive Politics

This paper questions the more extreme or indiscriminate claims for international harmonization or policy convergence with respect to many areas of within-the-border domestic policy diversity. The welfare implications, both domestic and global, of policy harmonization or convergence are highly ambiguous in many contexts. Proponents of more extreme forms of international harmonization of domestic policies also severely discount the importance of competitive governments and politics as a form of demand revelation. A third premise is the distinction between unilateralism and contractarianism, which argues for the adoption of ground-rules in international trade treaties that minimize the extent to which harmonization can be induced by judicial fiat on the one hand, or threats of unilateral sanctions on the other. A final premise is that despite the achievements of the European Union in promoting positive integration, the supranational institutional structures of the EU do not exist now or in the foreseeable future in other international trade and investment contexts, which severely limits the transferability of the EU experience, and argues instead for an elaboration of the negative integration approach that has historically characterized the position of the GATT on NTB's.In the light of these premises, the paper then goes on to examine objections by countries of destination to domestic policies of countries of origin, including (a) anti-dumping duties; (b) competition/anti-trust: export cartels; (c) subsidies and countervailing duties; (d) environmental policies; (e) labour standards.The paper then reverses the perspective and examines objections by countries of origin to domestic policies of countries of destination, including (a) domestic subsidies; (b) competition/anti-trust policies; (c) intellectual property; (d) health, safety, environmental, and conservation measures.The paper concludes by arguing for a refined principle of National Treatment, with appropriately defined exceptions thereto as the framework for evaluating allegations of non-tariff barriers with respect to domestic policy measures beyond or within a particular country's borders. While this conclusion would not, of course, preclude negotiations among countries for mutually beneficial forms of harmonization of domestic policies, it would seek to minimize the threat points that each country brings to these negotiations so as to reduce the risk of coerced forms of harmonization reflecting asymmetric bargaining power, or worse, coerced forms of discriminatory managed trade arrangements.     

Promoting Multilingual Consistency for the Quality of EU Law

The process of elaborating EU legislation includes the activity of translation. Drafting and translation cannot be considered separately but are rather two complementary activities whose aim is the quality of legislation. In order to achieve the required quality of legislation, one guiding principle is consistency of terminology. This study examines the particular case of two terms in German that appeared in the EC Treaty: Entscheidung and Beschluss. The inconsistent use of the two terms was the source of interpretative problems, as observed in Case C-370/07 Commission v Council. A comparison of the contested provisions in the EC Treaty and the provisions in the Treaty on the Functioning of the European Union shows that the terminological inconsistency has been corrected. After the examination of this case, we elaborate on the impact of terminological consistency on interpretation as reflected in requests for preliminary rulings.     

The Impact of the Hague Conference's Proposed Judgments Convention for Electronic Commerce and Intellectual Property Disputes

Since the OECD and other organizations issued model conventions and guidelines on various aspects of electronic commerce, the quest for harmonization and global agreement for electronic commerce laws and procedures has intensified. International private law has become one of the most contentious issues where the legislative development and practical application of electronic commerce is concerned. When an e-commerce contract (a contract concluded by electronic means) is disputed, questions of jurisdiction and choice of law have arisen with increasing frequency. Indeed, questions of jurisdiction and choice of law are even more pertinent when the parties to the contract are domiciled in different jurisdictions. Equally, when one party acquires an intellectual property right in one country and the infringement of this right is alleged in another country, the question of which jurisdiction the holder of the IP right should be entitled to raise proceedings.     

现代国际法的多样化、碎片化与有序化

现代国际法的发展呈现出新的趋势:一方面,国际立法活动日益活跃,法律规范越来越多样化;另一方面,各种规范之间的冲突加剧,国际法的体系结构越来越碎片化。这种现象损害了国际法的权威性和可预见性,也给国际关系增加了不稳定的因素。有必要在《维也纳条约法公约》的框架内,通过国际组织间的合作和国家间的协调来寻求解决规范冲突的办法,提高国际法的有序化程度。     

Sincere Cooperation,Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland's Future in the European Union?

The position of an independent Scotland within the European Union (EU) has recently been a subject of considerable debate. The European Commission has argued that any newly independent state formed from the territory of an existing Member State would require an Accession Treaty. This article critiques that official position and distinguishes between a set of claims that could be made on behalf of an independent Scottish state, and a set of claims that could be made on behalf of the citizens of an independent Scottish state vis‐à‐vis the EU. It argues that the general principles of the EU Treaties ought to govern how Scotland is treated, and that a new Accession Treaty is not necessary. Furthermore, notwithstanding the jurisprudence of the European Court of Justice (ECJ) in the area of EU citizenship, we conclude that EU citizenship itself is not sufficient to guarantee or generate membership of the EU.     

European Judicial Cooperation in Criminal Matters

Abstract: European judicial cooperation in criminal matters has its origins under Title VI as part of the Third Pillar (JHA) of the Treaty on European Union, signed on 7 February 1992 in Maastricht. Nevertheless, there have been important amendments to this Treaty and to the contents of the Justice and Home Affairs policy through the Treaty of Amsterdam and the Treaty of Nice (the latter in force since last February), such as, for example, the introduction of the European Prosecutors Cooperation Unit (‘Eurojust’). This brief study is concerned with these innovations as well as some legal instruments in the field of criminal judicial cooperation, in particular extradition, mutual recognition of judicial decisions, mutual assistance in criminal matters and the European arrest warrant which are considered as the most relevant.     

电子数据司法鉴定主要类型及其定位简

电子数据司法鉴定已经成为当前司法鉴定研究热点问题之一。它是计算机司法鉴定的一种主要类型。根据鉴定性质不同，电子数据司法鉴定可以分为以“发现证据”为目标的鉴定和以“评估证据”为目标的鉴定。前者包括数据检索与固定、数据恢复、数据来源分析、数据内容分析、数据综合分析；后者包括同一鉴定、真伪鉴定、相似性鉴定、功能鉴定、复合鉴定等不同性质的鉴定项目。这两类鉴定在鉴定目标、程序、风险、意见主观性和证据审查等方面均存在显著差异。     

Lawyers’ economics versus economic analysis of law: a critique of professor Posner’s “economic” approach to law by reference to a case concerning damages for loss of earning capacity

We provide a comparative overview of the process of implementation, harmonization and stabilization of public oversight systems for statutory auditors across the European Union (EU) after Directive 2006/43/EC. We build on institutional change theory to identify potential determinants as to why some countries still lag in this harmonization process. Oversight systems are a key institutional factor to guarantee the quality of financial information, essential to maintain investors’ confidence and deep and stable capital markets. Thus, the harmonization of these systems has long been an objective of the EU. Our analyses serve to identify, analyse and compare how EU countries have incorporated European-wide requirements into their national legal systems. Particularly, we study: (1) basic characteristics of the system and bodies for public oversight, (2) organizational structure, (3) financing (4) transparency, (5) supervisory, and (6) disciplinary mechanisms. We show that significant diversity still exists across systems and that both the incentives for institutional change and the distance between pre-existing systems and the Directive are important explanatory factors of the achieved level of harmonization.     

EU Constitutionalism in Flux: Is the Eurozone Crisis Precipitating Centralisation or Diffusion?

The Lisbon Treaty was supposed to mark the end of an almost‐decade‐long period of treaty reform. After the tumult of the failed Constitutional Treaty, the settlement it imposed struck a sustainable balance between the competing forces of centralisation and the diffusion that characterise European integration. Yet this constitutional settlement is now threatened by the Eurozone debt crisis and official responses to it, most notably the proposed fiscal compact. A prevalent view regards the crisis as an opportunity to complete the process of political and economic union that the Maastricht Treaty began. However, this article cautions against such a view, which would jettison the post‐Lisbon Treaty constitutional settlement in favour a peculiar kind of German‐led, intergovernmental centralisation. Whether the crisis response measures achieve their stated aims remains to be seen, but the integration project will be reconfigured in the process. Thus, EU constitutionalism is bound to remain in a state of flux.     

Sub-Constitutional Engineering: Negotiation, Content, and Legal Value of Interinstitutional Agreements in the EU

Abstract:  This article analyses the roles and impact of Interinstitutional Agreements (IIAs) in the EU, taking into account their relationship to primary law. Concretely speaking, these roles range from (a) explicitly authorised specifications of Treaty provisions via (b) not explicitly authorised specifications of vague Treaty law to (c) pure political undertaking. Based on the distinction between the constitutional and the operational level of the political game, we challenge the assumption that IIAs usually strengthen the European Parliament. As our case study, the 1993 interrelated package of IIAs on democracy, transparency and subsidiarity, illustrates, the European Parliament is not the only institution that benefits from IIAs, especially if they lack a sufficiently precise Treaty basis. Furthermore, if Treaty provisions underlying IIAs are precise, they also tend to produce precise and thus legally relevant content. Conversely, if IIAs deal primarily with elusive concepts they are likely to be legally ambiguous or even irrelevant at all.     

Soft Post‐Legislative Rulemaking: A Time for More Stringent Control

The Commission's soft post‐legislative rulemaking by way of communications, notices, codes and similar instruments has become an increasingly important tool for the adequate functioning of the system of shared administration in the EU. However, the development of its legal framework has not kept pace with this, as the Treaty on the EU nor the Treaty on the Functioning of the EU (TFEU) recognise this regulatory phenomenon. As a result, its current procedural control is of a very ad hoc nature. Given the risks this rulemaking involves for the legitimacy of the EU, its practical and legal importance for legal practice and the way in which the Treaty of Lisbon has sought to condition and control the behaviour of the Union institutions, it is argued that the time is ripe for a more stringent and consistent procedural control of soft post‐legislative rulemaking. Some options to realise this are presented for further research.     

The use of the Foster & Freeman Fx5 Fibre Finder in forensic textile examinations.

The Fx5 Fibre Finder has been developed by Foster & Freeman Ltd to automatically search tape lifts for coloured fibres specified by the operator. Experiments and casework studies have been conducted to assess primarily the performance of the instrument but also, where possible, to compare it with manual searching. Tape lifts have always been manually searched at this laboratory and it is a laborious task. The use of a machine such as the Fx5 would release a scientist from many hours of low power microscopy to be free for other duties and therefore could be a valuable labour saving device in forensic textile examination.     

Citizenship of the European Union—A Legal Analysis

Abstract:  The aim of this article is to present a legal analysis of the concept of citizenship of the EU. This concept was considered by some to be embryonic in the original Community Treaties, but was first expressly incorporated into the Treaties by the Treaty on European Union, signed at Maastricht on 7 February 1992. In the case-law of the European Court of Justice, which has given citizenship a content going beyond the express Treaty provisions, the concept is closely related to other basic concepts, including free movement of persons, the prohibition of discrimination on grounds of nationality and the protection of fundamental rights. This article seeks to review the case-law, to disentangle citizenship from other related concepts, and to determine what added value citizenship has brought to the Treaties and what the potential and the proper limits of the concept might be.     

移动设备电子搜查的制度挑战与程序规制——以英美法为比较对象

评估执法的正当需求和手机用户的合法权益成为移动互联网时代的程序规制命题。移动设备搜查对警察权力的重要性和公民权利保护的重要性日益凸显,应当将移动设备视为人们具有合理信赖的一个信息隐私空间。英国、美国的手机搜查规范上的域内不统一导致搜查实践的多样态、公民权利的保护缺陷。但其应对证据的移动电子化的基本思路——根据信息种类或其他变量进行立法,区别对待搜查条件——对中国相关搜查问题的解释和解决具有镜鉴意义。我国需要考虑确立获得搜查批准的原则,通过类型化规则给执法提供明确指导,并且明确搜查后的系列权利保障,进行电子搜查规则的适时调整与动态平衡。     

Limits of Participatory Democracy in European Governance

The Lisbon Treaty (Article 11) recognises the provision on participatory democracy as a democratic principle of the European Union (EU), thus constitutionally legitimising the involvement of civil society in European governance. However, at least three issues relating to the democratic dimension of this practice remain unresolved. First, it is not possible to specify precisely how the participation of civil society relates to democracy. Second, having established representative democracy as the founding democratic principle of the EU (Article 10), the Lisbon Treaty does not allow assessing the provision on participatory democracy as an independent source for democracy. Third, the putative democratising potential of participation would not be construed independently, not only because representative democracy is defined as the founding principle of the EU but also because participation cannot be thought of as independent from the form of the consultation regime, the constitutional framework and the managerial and technocratic styles of policy‐making.     

Common Foreign and Security Policy: The Consequences of the Court's Extended Jurisdiction

Despite the explicit exclusion of its jurisdiction, the Court of Justice of the European Union exercises judicial control over Common Foreign and Security Policy (CFSP). This article examines and explains how the Court's extended jurisdiction contributes to the juridification, judicialisation and constitutionalisation of the EU's compound CFSP structures. It first lays the groundwork by explaining the link between constitutionalisation and democratic legitimation and setting out the Court's formal jurisdiction over CFSP under Article 40 Treaty on European Union and Articles 218(11) and 275(2) Treaty on the Functioning of the European Union. The centre piece of the article then identifies how the Court's jurisdiction has expanded since the entry into force of the Lisbon Treaty, points at additional ‘substantive’ avenues of judicial review on the basis of access to information and access to justice, and analyses the effects of the Court of Justice of the European Union's extended jurisdiction for CFSP.     

中国-东盟知识产权保护与合作机制研究

统一、协调的知识产权保护制度是开展国际贸易的基本环境和条件之一.中国-东盟知识产权保护与合作的进程已经全面启动,但具体的合作机制或制度性安排还有待进一步完善.实现中国-东盟国家间知识产权法律协调的关键,在于建立以政治高层的战略对话为引领,以协调委员会的组织协调为核心,以特别审查机制和执法合作机制为保障的全方位、多层次的知识产权合作机制.