Dispute Settlement under the Rome Statute of the International Criminal Court: Article 119 and the Possible Role of the International Court of Justice

This paper examines the dispute settlement procedure establishedby Article 119 of the Rome Statute of the International CriminalCourt, with particular attention paid to whether that provisioncreates any relationship between the International CriminalCourt and the International Court of Justice. The paper firstdiscusses the jurisdictional reach of Article 119, detailingthe types of disputes addressed in its two subsections and themanner in which such disputes are to be handled. Secondly, itfocuses on the possibility of referral of disputes covered inArticle 119(2) to the International Court of Justice. Althoughthe provision expressly contemplates such a referral, it remainsunclear whether the provision adequately supports the jurisdictionof the International Court of Justice in accordance with theStatute of that Court. The paper goes on to suggest ways inwhich the International Criminal Court Assembly of States Partiescan take steps to improve the likelihood that such referralwould be deemed proper in order to enhance the possible andfinal settlement of disputes.     

The European Commission's Opinions under Article 6(4) of the Habitats Directive

The contribution examines the Opinions which the European Commissionhas issued so far under Article 6(4) of Directive 92/43 (HabitatsDirective). It examines Member States' reasoning for justifyingthe application of Article 6(4) of the Habitats Directive inthe light of the European Court of Justice rulings, and comesto the conclusion that probably not one of the cases submittedwould have been accepted by the Court.     

Principle of Community exhaustion upheld by Court of Justice

The European Court of Justice confirmed that Article 4(2) ofthe Information Directive did not permit member states to introduceor retain a rule of international exhaustion of the distributionright and rejected a challenge to the validity of that provision.     

大陆法系勘验协助义务之演化及其启示

对于当事人或第三人是否负有勘验协助义务的问题,德国《民事诉讼法》及日本旧《民事诉讼法》均未规定。日本新《民事诉讼法》第233条第1款已经规定准用第223条关于文书的规定,当事人或第三人均有依法院的命令提出勘验物或容忍勘验的义务。我国台湾地区修法后,其＂民事诉讼法＂第367条已经增列第344条及第348条准用的规定,明示当事人和第三人均负有提出勘验物或容忍勘验的义务,以杜争议。但是,祖国大陆现行立法并未规定鉴定或勘验协助义务,因此确有必要引入鉴定、勘验协助义务以便法院遇有不协助鉴定、勘验时依据证明妨碍原理认定事实。     

《民法典》夫妻债务条款的不足与应对

《民法典》第1064条关于夫妻债务的条款源于《最高人民法院关于审理涉及夫妻债务纠纷案件适用法律有关问题的解释》,该条款原来只针对夫妻对外关系,上升为法律条文后同时适用于夫妻对内和对外关系,即“内外同一”模式。由于债权人不易了解夫妻内部情况,这种做法较易损害债权人利益,对此可以通过适当放宽债权人举证责任和强化法院职权探知予以应对。该条文从司法解释上升为法律条文时与第1089条的衔接不够顺畅,遗漏了夫妻中举债一方的举证责任,应予补充。在内容上,该条第1款和第2款都出现“共同意思表示”,鉴于该条款的法理基础是《最高人民法院关于适用〈中华人民共和国婚姻法〉若干问题的解释(一)》第17条,建议将第1款的“共同意思表示”解释为签订合同的民事法律行为,将第2款的“共同意思表示”解释为表见代理。此外,条文中的夫妻“共同生产经营”的含义具有不确定性,建议对其进行目的性扩张解释。     

The Rule of Reason in European Citizenship

Abstract:  This article reviews the European Court of Justice's case-law on European citizenship in the light of aspects of the rights theories of Ronald Dworkin and Robert Alexy. More specifically, the free movement right in Article 18(1) EC is conceptualised as a Dworkinian principle and as a prima-facie right or 'optimisation precept' in Alexy's sense. Against this backdrop the article argues that Article 18(1) can best be interpreted by drawing an analogy with the economic free movement provisions. The central argument is that the rule of reason also applies to European citizenship, or that there is a rule of reason in European citizenship. The analogy encompasses both the definition of the scope of Article 18(1) and its limitations. With regard to the latter, it is contended that there is no conceptual distinction between the 'limitations' and 'conditions' referred to in that provision. Particular emphasis is placed on the recent case-law concerning the question of access to welfare benefits. In this regard it is suggested that the notion of a 'structural link' constitutes both a threshold criterion to trigger the prima-facie right in Article 18(1) as well as a benchmark for assessing the degree of solidarity owed to the migrant citizen. The rule of reason approach leads to the stipulation of a thin, juridical conception of European citizenship that does not rely in any way on thick, essentialist properties.     

刑事责任与民事责任不可转换——对一项司法解释的质疑

最高人民法院审判委员会《关于审理交通肇事刑事案件具体应用法律若干问题的解释》第 2条的规定以行为人有无赔偿能力作为定罪的标准之一 ,混淆了刑事责任和民事责任 ,缺乏法理上和立法上的支持 ,且有可能造成对法律面前人人平等原则的破坏。因此值得充分关注。     

作为债之独立类型的法定补偿义务

在公法和社会法领域内,法定补偿义务作为债的独立类型由来已久。但就法定补偿义务可否作为私法上独立类型之债,与合同之债、侵权之债、不当得利之债、无因管理之债等并身而立,民法学界远未达成共识。若从解释论角度出发进行分析,侵权责任法若干条款规定的补偿义务、"分担损失"规则以及"有财产的无民事行为能力人、限制民事行为能力人造成他人损害的,从本人财产中支付赔偿费用"等,都属有关法定补偿义务的规定。它们与民法通则及最高人民法院相关司法解释确认的法定补偿义务一起,构成我国民法中独立类型之债。在我国的责任保险制度尚不发达,社会保障制度还远未健全的背景下,如果法定补偿义务制度运用得当,无疑可在一定程度上济侵权损害赔偿责任制度之穷。     

以民事司法查封财产设定抵押的效力分析

虽然《担保法》《物权法》以及《民法典》明确规定不得以依法被查封的财产设定抵押,但不能据此认定其属于禁止性规定,从而将违反该规定而设定抵押权的行为一律归为无效。查封虽在公法上具有绝对效力,但就其对债务人的效力而言,尤其是在最高人民法院于2004年制定《查封规定》之后,已经由绝对效力转为相对效力。结合《民法典担保制度解释》第37条第2款规定来看,若查封已经充分公示,债务人以查封物设定的抵押权仅是相对无效,不得对抗申请执行人(包括轮候查封的申请执行人)以及其后参与到执行程序中的债权人,但对于其他债权人而言仍是有效的。如果查封的公示效应不达,则允许成立善意取得,就查封物取得抵押权的债权人有权对抗前述主体。     

Dagher redux: searching for the missing pieces

The most relevant question for any joint venture is, when does the relationship become a jointventure and not simply a price-fixing cartel? With respect to this question, this Article juxtaposes Texaco, Inc. v. Dagher, 126 S. Ct. 1276 (2006), against years of contrary precedent. In Dagher, the Court altered the seemingly settled foundation of antitrust law by changing its view on past holdings and abandoning the ancillary effects doctrine. The Article provides an outline of key holdings prior to Dagher, as well as a discussion of the issues that can arise as joint ventures are formed. Additionally, the authors examine how the decision altered the foundation of joint venture law in the United States. In particular, the Article exposes several important antitrust concerns relating to joint ventures that the Supreme Court did not address in Dagher. Perhaps the most perplexing issue of Dagher is whether the venture at issue would have survived analysis under the Federal Trade Commission's "continuum" approach.     

WTO中的公共道德例外条款分析

多边贸易协定一个重要目的就是消除贸易壁垒,实现贸易自由化。但是有时过度地追求贸易自由可能会给一国的公共道德造成威胁。因此,在多边贸易协定中往往内含了一些可以豁免缔约方缔约义务的例外条款。缔约方为了保护本国的公共道德,可以援引这些例外条款来对抗其他缔约方的指控。在WTO中,公共道德例外主要体现在GATT第20条﹙a﹚和GATS第14条﹙a﹚。另外,在《与贸易有关的知识产权协定》第27条第2款和《政府采购协定》第23条第2款中也规定了这种例外。     

Employee Rights on Transfer of Undertakings: Italian Legislation and EC Law

Abstract:  The authors examine the conformity with Community law of the recent regulatory changes introduced to the Italian legal system regarding the safeguarding of employees' rights during transfers of undertakings. The investigation takes place on the assumption that the principle of primacy of Community law applies, which first and foremost means that it must be verified whether the domestic legislation in question complies with the interpretation given to the relative provisions of Community law. According to the authors' opinion, domestic law could be judged as non-conforming to the interpretation that has been given by the Court of Justice, so that the question may be brought before the Court of Justice ex Article 226 EC or by recourse to the preliminary ruling procedure under Article 234 EC, which reveal cases of incorrect implementation of the Directive.     

The Strasbourg Court and Indirect Race Discrimination: Going Beyond the Education Domain

Prohibiting indirect discrimination has been hailed as guaranteeing substantive equality by addressing issues of structural discrimination and inequalities in a way that direct discrimination cannot and will not. However, Article 14, the ECHR's non‐discrimination provision, does not distinguish between direct and indirect discrimination. Only in 2007 the European Court of Human Rights explicitly included the notion of indirect (race) discrimination under Article 14 in DH and Others v Czech Republic, its famous judgment on Roma education segregation. Since then it has applied the prohibition of indirect race discrimination in a limited manner to similar education cases. However, in its recent Grand Chamber decision, Biao v Denmark, the Strasbourg Court started clarifying some unsolved issues in the distinction between direct and indirect discrimination in its case law and finally applied the concept to the much broader area of immigration and citizenship.     

业主撤销诉讼当事人研究——兼评最高人民法院两个司法解释的相关规定

《物权法》第78条第二款规定业主有权对业主大会或业主委员会的不当决定请求人民法院予以撤销,规定过于简单,没有明确撤销的效果、请求撤销的期限,缺乏可操作性,无法应对现实生活中复杂多变的情况。撤销诉讼中原告一般应限于具有业主身份者,但在特殊情况下也应扩及房屋所有权人的继承人以及房屋的实际管理、使用人等。作为被告的业主大会或者业主委员会的诉讼主体资格存在疑问,目前可以考虑通过司法解释来解决这个问题。     

Originality in software law: Belgian doctrine and jurisprudence remain divided

Legal context: Article 1.3 of the Software Directive stipulates that ‘acomputer program shall be protected if it is original in thesense that it is the author's own intellectual creation’.The same condition is formulated in Article 2, part 1 of theBelgian Software Act. Key points: Belgian doctrine and jurisprudence remain divided regardingthe question whether the romantic (continental European) originalitycriterion applies so that a computer program should bear thepersonal mark of the author, or whether a lower (Anglo-Saxon)threshold level is applicable. This threshold means that a computerprogram is already protected the moment it is not a copy ofanother program. The rulings of the Ghent Court of Appeal of13 April 2006 and the Antwerp Court of Appeal of 19 December2005 reflect this division. Practical significance: There can be no doubt that legal security is under serious threat,both from the developers of software and from potential infringers.The time is right to put a preliminary question to the EuropeanCourt of Justice on this matter.     

Are works communicated through television sets in hotel rooms a 'communication to the public'?

The European Court of Justice makes it clear that, while themere provision of physical facilities does not as such amountto a communication within the meaning of the Copyright Directive(2001/29/EC), the distribution of a signal by means of televisionsets by a hotel to customers staying in its rooms, whatevertechnique is used to transmit the signal, constitutes communicationto the public within the meaning of Article 3(1) of the Directive.     

Rectification of the Register – Prospective or Retrospective?

In Gold Harp v MacLeod the Court of Appeal considered paragraph 8 of Schedule 4 of the Land Registration Act 2002 and interpreted this provision to mean that the priority between mistakenly de‐registered interests and registered interests can be altered following rectification. The court can give the de‐registered interest the priority which it ‘would have had’ but for the mistake. In other words, it allows for retrospective rectification. This case note concludes that this is the correct interpretation of paragraph 8 and of the words ‘for the future’. However, it argues that the current range of options available to the court in terms of rectification are producing uncertainty, and that a better approach may be to rely on the priority provisions in sections 28 and 29.     

Article 260(2) TFEU: An Effective Judicial Procedure for the Enforcement of Judgements?

Article 260(2) TFEU (ex 228(2) EC) enables the European Court of Justice to enforce compliance with its judgements. This article analyses its use in doing so and questions whether it could be applied more effectively. It commences by highlighting the principally economic and environmental context of the case‐law, and by examining the initiatives taken to tackle delays in bringing these cases before the Court. The article then critically evaluates the effectiveness of the financial sanctions available to the Court. In doing so, it aims to fill a gap in present research by looking beyond the procedural measures through which the Court and the Commission operate to examine the practical impact of Article 260(2) itself.     

Registration of terms borrowed from another language

In answer to a question referred by a Spanish Court in a disputeas to the validity of the Spanish trade mark MATRATZEN, theEuropean Court of Justice (ECJ) has ruled that trade mark ownersare not precluded by Article 3(1)(b) or (c) of the Trade MarksDirective (Council Directive 89/104) from registering in oneMember State a term borrowed from another language, unless itcan be demonstrated that relevant public in the Member Statein which registration is sought are capable of identifying themeaning of the term.     

Domestic violence in Torun region,Poland — 1995, 1996

The following report concerns research conducted by this author in early January 1997 in the District Court (Sad Rejonowy) in the city of Torun in Poland. The purpose of the research was to investigate the scope and nature of the phenomenon known in Western countries as “domestic violence.” The legal provision concerning that crime is contained in Article 184 of the Polish Penal Code of 1969. The provision was placed in Chapter XXV of the Code entitled “Crimes Against Family, Custody, and the Youth” which also contains the following crimes: bigamy, continuous leading of a minor to drunkenness, evasion of alimony obligations, abandonment of a person who is dependent on others, and abduction.