倒签海洋运输货物保险单有关法律问题探析

通过对倒签海洋运输货物保险单法律性质的探讨,分析倒签保险单的有效性,以及倒签保险单情况下保险人赔偿后的法律后果,并提出如何避免倒签保险单引起法律后果的措施.     

再论倒签提单的责任属性——兼论民事责任构成体系

所谓倒签提单的责任属性，是指行为人对自己在海上货物运输过程中违反法律规范实施倒签提单的行为所引起的法律后果，应当承担的民事法律责任。长期以来，中外法学界、司法界对倒签提单是违反法律规范韵违法行为的认识并没有什么差异，而对这种违法行为引起的后果应当承担什么样的民事法律责任却产生了分歧。争论的结果，虽侵权责任说占了主宰，但对这种“归责”并未真正达成共识。     

倒签提单的法律责任属性研究

倒签提单和预借提单是国际货物运输中普遍存在的海运欺诈现象,这种不规范的操作行为给国际货物买卖安全造成了极大的损害。而有关倒签提单和预借提单的法律责任属性在理论界和实务界一直存在争议,为了明确倒签提单、预借提单的法律性质,本文将对倒签提单责任属性的各种理论进行分析,以期能对倒签提单的受害者进行法律救济和法院审判此类案件提供一定的帮助。     

论承运人倒签提单或预借提单的法律性质

承运人倒签提单或预借提单的法律性质的各种学说,实质上是侵权说与违约说的争论。本文从分析侵权行为与违约行为的本质区别的角度探讨承运人倒签提单或预借提单的法律性质,并通过分析海上货物运输合同的性质、提单的性质、承运人倒签提单或预借提单究竟侵犯了收货人何种权利等重要问题得出承运人倒签提单或预借提单构成侵权行为的结论。     

论倒签提单的法律性质与法律责任

本文介绍了倒签提单的相关概念和内容,对倒签提单的法律性质和法律责任进行了简要的分析和认定。     

倒签提单的法律性质之探讨

在国际贸易中,风险防范的问题正越来越引起各方面的关注。在运输方面,因为远渡重洋的关系,货物的发运和货物的提取只能凭借一纸提单为证,同时往往由于竞争的无序,倒签提单在现代国际贸易的实践中便成为了一种十分常见的现象。倒签提单涉及到的理论及实务问题相对较为复杂,审判实践中大家的认识不尽一致,处理上也不尽相同,往往引致诸多争议。特别是对于倒签提单的相关法律问题,例如法律性质问题等,都是大家争论的焦点,但是一直都没有定论,以下本文将对承运人恶意倒签提单的若干法律问题做出新的探讨。     

预借、倒签提单法律性质之我见

前言近年来预借提单、倒签提单及无单放货的海运纠纷案件日益增多，而对于上述案件的法律性质的探讨已成为我国海商法界的热点。然而，我国海事法院在认定上述案件的法律性质上所持普遍性观点是侵权而不是违约。最典型的案例是XX海事法院判决的福建宁德地区经济协作公司诉日本国日欧集装箱运输公司预借提单纠纷一案，XX海事法院在该案的判决书中明确认定：“被告在货物装船前签发了已装船提单，是对原告的侵权行为，应对由此产生的后果承担责任。”在我国海商法理论界，虽然对预借提单、倒签提单及无单放货的法律性质仍有争议，但专家们的…     

论预借提单和倒签提单的法律性质

关于预借提单和倒签提单的法律性质 ,学术界存在侵权责任说、合同责任说、多重责任说、竞合责任说、缔约过失责任说等诸多观点。本文提出 ,预借、倒签提单的法律性质是一种加害给付行为 ,并从理论和实践两方面予以论证     

恶意倒签提单的法律性质

一、引 言 在法学理论界,对恶意倒签提单的法律性质到底是违约行为还是侵权行为尚无定论。在我国的海商立法中,亦未对恶意倒签提单的性质作出明确的规定。在我国海事审判中,多将此种行为定性为侵权。本文在此对提单的法律性质作出新的探讨,以求教于学界同仁。     

中化公司诉马航公司、泛洋公司倒签提单纠纷案评析

对一起倒签提单纠纷案进行评析,认为正确识别承运人并进而确定饲签提单的侵权行为人,是审理倒签提单侵权案的基础性工作,准确界定倒签提单的侵权损害赔偿范围、公平保护双方当事人之合法权益,乃海事司法的题中之意.     

Legal Advice Privilege and its Relevance to Corporations

This article considers whether the rationale for legal advice privilege applies to corporations. It examines the rationale for legal advice privilege in the aftermath of the disagreement between the Court of Appeal and the House of Lords in the Three Rivers litigation, and argues that the rule of law rationale for advice privilege endorsed by the House of Lords is based largely on the needs and behavior of individuals. The paper examines the case for recognising advice privilege for corporations. Recent developments in corporate law and governance, especially in relation to directors' duties, have arguably reduced the need for a corporate privilege. Public and large private companies in particular already have sufficient incentives to obtain accurate legal advice about their affairs even without a privilege. There are also sound policy reasons for restricting the right of corporations to claim legal advice privilege given its costs to the administration of justice.     

Looking for some light through the lens of “cryptowar” history: Policy options for law enforcement authorities against “going dark”

As companies and end-users increasingly deploy end-to-end encryption, law enforcement and national security agencies claim they “go dark”, i.e. lose in practice the power to legally intercept and gain access to information and communications. This has revived a debate that seemed closed by the late 1990s, namely whether backdoors should be embedded in encryption systems. This paper provides a historical overview of the policy debates surrounding encryption, to identify the potential regulatory options for policy-makers, based on the lessons that can be learned from “cryptowar” history. We discuss the First Cryptowars (1990s, focusing on backdoor schemes), the Interbellum (featuring a rise in powers to order decryption), the Second Cryptowars (2010s, renewed backdoor discussions) and their aftermath: the newly emerging battlefield of legal hacking. The latter can be seen as a condition for the truce with which – for now – the Cryptowars seem to have ended. Cryptowar history teaches us that the two main policy options for decryption by government agencies – ensuring access to keys ex ante (backdoors) or ex post (decryption orders) – both suffer from fundamental flaws. Therefore, legal hacking powers – if human rights standards are sufficiently taken into account – could be the only realistic policy option to preserve some light in an era of dark communication channels.     

Climate change and national laws across Commonwealth countries

This paper furthers the Commonwealth agenda on climate action by exploring the kinds of ‘practical and swift action’ that might be taken through national legal frameworks to implement the Paris Agreement. The paper reviews national laws of Commonwealth member countries as they currently apply to and intersect with climate change. The paper investigates legal measures that relate directly to implement climate change policy, including climate change legislation and regulatory instruments such as emissions trading schemes and energy efficiency measures. It also considers indirect legal measures that can provide ‘co-benefits’ in relation to climate change policy, such as waste legislation and air quality measures. The paper presents examples of these different kinds of climate intersections in different Commonwealth legal systems, highlighting examples of what has worked well and what has not worked well to date, within different legal, economic and political cultures, and in different geographies and climates.     

Victims’ responses after mass atrocities: a note on empirical findings

Empirical research has shown that in the aftermath of mass atrocities, a large majority of the victims of gross human rights violations are much more concerned with their immediate needs than with the criminal prosecution of the perpetrators of these violations. The focus must shift from the perpetrators to the victims and that, in order to bring about desirable compensating improvements in the lives of those victims who are directly affected by these gross human rights violations, greater weight must be given to the interests and concerns expressed by them about matters fundamental to their well-being. The attention of legal scholars, policy analysts, and human rights campaigners and activists of the imperativeness of material reparations to meet the crying needs of a society emerging from political violence, comparative to criminal prosecution of the perpetrators must be engaged.     

Immigration and Terrorism: A Constructed Connection

In the aftermath of 9/11 several European countries intensified their counter-terrorism policy. This article refers to the Spanish response to the terrorist attacks in the USA and Madrid, with special attention paid to the consequences that (illegal) immigrants faced in relation to their rights. This collective is often depicted in public opinion as “folk devils” in the terminology of the Moral-Panics Theory. Using the latter as a model, this paper establishes that the connection between counter-terrorism policy and more restrictive legislation for foreigners is a construction, which is either insufficient or not satisfactorily explained by the social actors who propose it. The result is a policy that limits the immigrants’ liberty without necessarily making the rest safer.     

Policing with Contempt: The Degrading of Truth and Denial of Justice in the Aftermath of the Hillsborough Disaster

The Hillsborough disaster happened at a premier United Kingdom soccer stadium in April 1989 claiming the lives of ninety-six men, women, and children. Over the next decade there followed a Home Office inquiry, a criminal investigation, compensation hearings as far as the House of Lords, the longest inquests in recent history, a judicial review, a judicial scrutiny, and private prosecutions. Media coverage has remained intense and there has been persistent parliamentary debate. Despite the evidence amassed, much of it undisclosed, the legal argument and official discourse, the bereaved and survivors remain deeply concerned that the 'truth' of Hillsborough has been suppressed and reconstructed.
This paper considers Hillsborough and its long-term aftermath in the context of a theoretical discussion of the reconstitution and registration of 'truth' within social democracies when state institutions stand accused. It adopts a critical analysis drawing on human rights discourse in discussing how 'regimes of truth' operate to protect and sustain the interests of the 'powerful'. In examining the formal legal processes and their outcomes regarding Hillsborough, the paper demonstrates how they were manipulated to degrade the truth and deny justice to the bereaved. In revealing the procedural and structural inadequacies of these processes, the paper raises fundamental questions about the legal and political accountability of the police. Finally, it discusses alternative forms, informed by a human rights agenda, through which 'truth' can be acknowledged and institutionalized injustices reconciled.     

A legal perspective on university technology transfer

In the thirty-five years after passage of the Bayh–Dole Act of 1980, a robust literature has documented the emergence of university technology transfer as a critical mechanism for the dissemination and commercialization of new technology stemming from federally-funded research. Missing from these investigations, however, is what this paper terms the legal perspective, an understanding of how the law and its attendant mechanisms impact university technology transfer. Specifically, the paper reviews the extant legal scholarship and provides examples of how case law, legal structures, and the unique nature of intellectual property law affects technology transfer, as well as higher education policy and management. Throughout, we propose critical questions for future investigation, which serve to form a cross-disciplinary research agenda that can contribute fresh insights to scholarly and policy discussions related to the role of universities in economic and social development.     

Mental health law and the EU: the next new regulatory frontier?

Over the last decade the EU's engagement with health law and policy has rapidly increased and there is now a growing body of literature highlighting this evolution and the impact of legal and regulatory structures in this area. In contrast the specific impact of EU law and policy in relation to the area of mental health remains the subject of comparatively little engagement. The aim of this paper is to examine whether mental health law and policy will become a major site for EU policy and law in the future. It examines the development of EU policy in this area. It sets this in the context of related legal developments such as the Charter of Fundamental Rights and the new EU Patients Rights Directives. It suggests that while it might be at present premature to envisage that a single body of EU mental health law itself may be unlikely that nonetheless the EU presents what is a potentially very influential site for regulation, law and policy in this area in the years to come.     

Abortion and legal policy

This paper reviews four legal policies in abortion from a critical theory of law perspective. Since the Comstock era, abortion policy has undergone radical shifts from criminalization in the last quarter of the nineteenth century to decriminalization in the late 1960s, followed by legalization and medical control over the last decade. Yet, until recently, little scholarly attention has been given to the social and political implications of these various policy shifts (almost all studies focus on the current legal phase only) often in isolation from other social and political realities. In this paper we draw on historical, demographic, participant-observation, interview, and documentary and legal materials to analyze the transformations of legal control structures in abortion. This shows both the creation of abortion law, which is imbedded in structures of sexual domination, and the contradictions in abortion law, which express antagonisms in civil society as well as promote alliances within ruling groups. The abortion case further clarifies the failure of legality to transcend existing gender inequalities, thereby contributing to further erosion of welfare rights for poor women and their children.