美国消费者集体诉讼初探

美国消费者集体诉讼作为一项主要解决小额消费者争议的法律制度,旨在救济广泛而分散的消费者损害,剥夺经营者的不当收益并防止其继续实施违法行为。本文梳理了这一制度的理论依据、基本功能、主要适用范围及其所采用的救济手段等基本问题,并简要分析了其他国家尤其是大陆法系国家移植该制度的可能性。     

行政行为的竞争合规制度研究

建设法治政府特别是治理滥用行政权力排除、限制竞争与发挥市场决定性作用,尤其是产业政策的公平竞争性审查,要求政府必须加强针对行政行为的竞争合规制度建设,促进政府与市场耦合。行政行为的竞争合规制度建设应当通过责任威慑、名利激励、技能帮扶和社会督促这些路径共同推进,它们分别是基于违法成本理论、行政激励理论、竞争倡导理论和信息公开理论的应用设计。行政行为的竞争合规制度建设应当采取实质审查加合理原则的标准,政府干预的合法性尺度设置必须兼具内容合理,政府干预的合理性边界划定应当以弥补市场失灵为限。竞争评估是行政行为竞争合规的工作重点及难点所在,除了操作流程外,在相关市场的界定、竞争影响的考察与合理程度的分析方面,很多内容都需要进行全新系统化制度构建。     

Taking the Rights of Parents and Children Seriously: Confronting the Welfare Principle under the Human Rights Act

This article argues that resistance to the Human Rights Acthas built up in the context of disputes relating to childrenand that such resistance is founded in the attachment of thecourts to the welfare or paramountcy principle as currentlyconceived—the principle that the child’s welfareautomatically prevails over the rights of other family members.It argues that the failure to take account of Convention argumentscould only be a legitimate stance if there was no conflict betweenthe demands of the welfare principle and those of the Conventionguarantees, but that in fact the approach of the European Courtof Human Rights differs considerably from that of the UK courtssince it seeks to balance the rights of different family members.The article goes on to argue that, taking account of the Strasbourgstance and of the already established domestic recognition ofthe presumptive equality of competing qualified Convention rights,it is time to accept the adoption of a new model of judicialreasoning in the context of disputes over children—the‘parallel analysis’ or ‘ultimate balancingact’.     

数据竞争下消费者隐私权保护的竞争法介入

司法实践表明,平台企业间的数据不正当竞争行为威胁着消费者的隐私安全,现有相关法律制度由于主体性缺位而没有提供有效的救济机制。相较于传统单一的私法或公法保护机制,竞争法的优势在于在执法和司法过程中能够掌握到消费者隐私权侵害事实,有助于降低消费者个人的维权成本以及监管机构的执法成本。但竞争法介入消费者隐私权保护的理论争议和制度短板限制了其优势的发挥。《个人信息保护法》的颁布将与竞争法保护形成有效衔接,发挥各自的比较优势。从竞争法角度而言,有必要进一步完善立法补足介入隐私权保护的制度短板,健全竞争执法中的隐私权保护机制,建立监管信息共享平台,提升隐私权保护水平。     

A Tort-Based Approach to Damages under the Human Rights Act 1998

This article argues that a strong case can be made for departing from the current approach to damages under the Human Rights Act 1998, and for the adoption of an alternative tort-based approach. The article critically analyses the English courts' arguments against adopting a tort-based approach and demonstrates that neither the Act nor the European Convention on Human Rights militate against such approach. It makes a positive case for a tort-based approach, arguing that the law of damages in tort provides an appropriate model for damages under the Act as a matter of principle given the common functions and protected interests that underpin both areas of the law. Further, tort law offers an established and elaborate corpus of principles to draw on, which can readily and naturally be read across to the human rights context. A tort-based approach would also promote consistency across English law, while generally affording greater protection to human rights than the English courts' current approach.     

Recasting Competition Concurrency under the Enterprise and Regulatory Reform Act 2013

The concurrent enforcement power granted to certain sector economic regulators is one of the more remarkable features of UK competition law. In practice, regulators have tended to under‐enforce their competition powers, preferring to resolve market difficulties through regulatory interventions. Recent amendments to the concurrency framework, introduced by sections 51 to 53 of the Enterprise and Regulatory Reform Act 2013, seek both to strengthen the priority of competition enforcement and to provide plausible sanctions – including, ultimately, the removal of competition jurisdiction from regulators – for continued underuse. This article assesses these reforms in light of the history and (limited) application of the concurrent competition powers of regulators to date. It argues that the absence of an overarching policy rationale for this curious example of UK antitrust ‘exceptionalism’ complicates the determination of whether the reforms, which ostensibly seek to reinforce but potentially also undermine concurrency, are likely to have a positive market impact in practice.     

论当前消费者权益保护的立法缺陷

1993年颁布的《消费者权益保护法》为消费者合法权益的保护提供了强有力的保障。但15年过去了,《消费者权益保护法》因受制于制定时的经济发展水平和消费环境,存在的一些缺陷与不足日益显现。因此,进一步充实和完善维护消费者权益的相关法律法规迫在眉睫。     

The Role of Parliamentary Intention in Adjudication under the Human Rights Act 1998

This essay gives more detailed content to the widespread viewthat the Human Rights Act 1998 (HRA) has changed the traditionalrole of parliamentary intention in statutory interpretation.It begins by outlining the various ways in which legislativeintent has featured in traditional (pre-HRA) statutory interpretation.This is followed by an examination of the interpretive principlesdeveloped by the senior judiciary under the HRA case-law, focusingon the extent to which they seem to depart from traditionalprinciples. It is argued that although the traditional roleof parliamentary intention is partly preserved post-HRA, theinterpretive obligation under s 3(1) HRA nonetheless shiftsthe interpretive focus away from what Parliament originallyintended in enacting the legislation under HRA scrutiny, towardsfulfilling the overriding goal of achieving compatibility withConvention rights. The final sections of the essay attempt toprovide an account of what is involved in this shift.     

论知识产权保护与竞争法实施的协调

竞争是市场经济的基本要素,保护和促进竞争是各国竞争法的基本宗旨。知识产权作为一种合法的垄断权,一般认为不受竞争法的规制。但是,知识产权这种垄断权往往会使其拥有者在某一特定市场形成支配地位,或者在行使过程中不适当地扩张了垄断权的范围,从而限制了竞争,损害了社会公共利益。竞争法应当适用于知识产权领域。由于知识产权合法权利的存在和行使相互交织,知识产权对竞争促进和阻碍的双重作用,使竞争法在知识产权领域的适用变得复杂。在知识产权保护日益受到重视的知识经济时代,产生于工业时代的竞争法如何适用于知识产权领域,如何把握知识产权保护和限制的“度”?这是各国竞争法面临的新问题。     

英国1998年人权法案

英国1998年人权法案@梁淑英~~     

Clashing Rights, the Welfare of the Child and the Human Rights Act

Under the Human Rights Act so far there has been until very recently little judicial or even academic recognition of the difference between resolving clashes of Convention rights and addressing conflicts between utilitarian concerns and such rights. This article has chosen to illustrate that failure of recognition and to consider methods of resolving the conflict between rights, by concentrating on one particular clash of rights – that between media free speech under Article 10 and the privacy of children under Article 8. It argues for presumptive equality for the two rights and for conducting a 'parallel analysis' of their application to the circumstances of a particular case. It contends that therefore the principle that the child's welfare is paramount must be abandoned in its present form, as must the presumptive priority accorded to Article 10 where that principle is not found to apply.     

The Alchemists' Search for the Philosophers' Stone: The Status of Registered Social Landlords under the Human Rights Act

Social housing in Great Britain is undergoing a radical transformation with the transfer of local authority housing to housing associations, more particularly registered social landlords (RSLs). While the former are clearly 'public authorities' for the purposes of the Human Rights Act (HRA), the status of the latter is less clear. The first part of this article addresses the increasingly important role played by housing associations in the provision of social housing, and the significant implications of the stock transfer process. It goes on to explore the meaning of 'public authority' for the purposes of claims under the HRA, taking into account available approaches to interpretation as well as the tests traditionally used to determine amenability to judicial review. It concludes that there is a strong case for acknowledging that RSLs are hybrid authorities for the purposes of the HRA, given in particular their 'publicness' and the fact that they are often carrying out the same functions as local authorities.     

论消费者权之法律边界

消费者权的行使可能会损害经营者的经营自由,权利冲突意味着权利的限制与边界,确立消费者权法律边界的理论依据主要有权利冲突理论和权利不得滥用原则。过错责任是消费者权利与经营者经济自由平衡保护的重要机制,特殊消费侵权行为适用无过错责任时,也应遵循法益衡量规则。     

The Insurance Act 2015: Rebalancing the Interests of Insurer and Assured

The Insurance Act 2015 is the first piece of legislation since the eighteenth century to seek to lay down new principles governing the formation and operation of insurance contracts. Exactly 250 years after Lord Mansfield articulated the routinely‐cited principle of utmost good faith in insurance law in Carter v Boehm (1766) 2 Burr 1905, that principle has been recast, with important implications for both the pre‐ and post‐contractual duties of the parties. The Insurance Act has also imposed important restrictions on the enforcement of policy terms by insurers, and clarifies the law affecting fraudulent claims. The Marine Insurance Act 1906, a codifying measure, looks increasingly outmoded.